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Briscoe, C.J.:
The Kansas Department of Social and Rehabilitation Services (SRS) appeals an order reducing the child support obligation of Earl Lynn Shannon.
Earl and Belinda Lou Shannon were divorced in 1991. They had three minor children, and Earl was ordered to pay child support of $471 per month. Earl moved for a reduction of child support in April 1993. At the hearing on the motion, Earl presented a child support worksheet that showed his support obligation should be $307 per month, based on income at the minimum wage. This worksheet was filed in district court but is not in the record on appeal. SRS presented no evidence but argued child support should not be reduced because Earl was a self-employed businessman and may have understated his income on the worksheet, and that he had substantial assets in trusts established for his benefit. The trial court reduced the amount of child support and ruled that the trust assets were subject to garnishment. Earl appealed the garnishment ruling, but his appeal was dismissed for failure to pay for the transcript. SRS appealed the reduction in child support, and that appeal has been treated as a cross-appeal by this court.
We first address whether SRS’s cross-appeal was timely filed. The multiple issues pending before the trial court and the series of orders filed resolving those issues provide the background for this jurisdictional question. There were three claims or issues before the trial court: SRS’s accusation in contempt, Earl’s motion to reduce child support, and SRS’s motion to sustain garnishment against Earl’s trust property. A chronology of relevant filings is as follows:
8/24/93 Journal entry filed reducing child support and ordering briefs on garnishment issue
8/27/93 Notice of appeal filed by SRS from order reducing support; apparently not docketed in this court
10/5/93 10/14/93 Order filed resolving garnishment issue Notice of appeal filed by Earl from ruling that trust was subject to garnishment
10/26/93 Journal entry of October 1 oral ruling filed, noting receipt of briefs on garnishment issue, finding Earl not in contempt, and certifying the order reducing support as a final judgment under K.S.A. 1993 Supp. 60-254(b)
11/4/93 Notice of appeal filed by SRS from the order reducing child support; docketed in this court.
K.S.A. 1993 Supp. 60-2103(h) provides that cross-appeals must be filed within 20 days after filing and service of the notice of appeal. Here, SRS’s second notice of appeal was filed on November 4, which was 21 days after the service and filing of Earl’s notice of appeal on October 14. Because Earl’s notice of appeal was served in person, SRS was not entitled to three mailing days under K.S.A. 1993 Supp. 60-206(e). However, Earl’s notice of appeal filed on October 14 was premature. One of the issues before the trial court was whether Earl was in contempt for failing to pay child support. That issue was decided on October 1 but was not journalized until October 26. The October 26 journal entry was the final judgment on all issues. We note the 60-254(b)
certification in the journal entry was superfluous because the trial court had decided the other unresolved issue in an order filed on October 5.
Under Supreme Court Rule 2.03 (1994 Kan. Ct. R. Annot. 8), a premature notice of appeal filed after announcement of a judgment but before the actual entry of judgment takes effect upon the entry of final judgment, as if they had been filed simultaneously. Although this rule is not directly applicable when a notice of appeal is premature because of unresolved issues, the Kansas Supreme Court has held that a final judgment disposing of all claims and all parties validates a premature notice of appeal filed after a partial judgment leaves unresolved claims against some of the parties. See Honeycutt v. City of Wichita, 251 Kan. 451, 462, 836 P.2d 1128 (1992).
It would logically follow that the premature notice of appeal takes effect upon entry of final judgment in this situation as well, and the time for a cross-appeal would run from entry of final judgment. We have found no Kansas cases holding that the time for filing a cross-appeal after a premature notice of appeal runs from the entry of final judgment rather than from the filing of the notice of appeal, but such is consistent with the intent of the Code of Civil Procedure. See Honeycutt, 251 Kan. at 461; Sanders v. City of Kansas City, 18 Kan. App. 2d 688, 692, 858 P.2d 833, rev. denied 253 Kan. 860 (1993), cert. denied 128 L. Ed. 2d 339 (1994). See generally Tobin Constr. Co. v. Kemp, 239 Kan. 430, 432, 721 P.2d 278 (1986) (cross-appeal filed more than 20 days after notice of appeal but within 20 days after trial court’s denial of post-trial motion would have been timely if post-trial motion had been timely). A contrary rule would result in the appellant effectively shortening the cross-appellant’s period for filing its notice of appeal by the filing of a premature notice of appeal.
SRS’s notice of cross-appeal was timely because it was filed within 20 days of the entry of final judgment on October 26.
SRS contends the trial court abused its discretion in ordering a reduction of Earl’s child support obligation based solely upon a Child Support Guidelines Worksheet without hearing any evidence. Review of an order modifying child support is limited to determining whether the modification was an abuse of discretion. See In re Marriage of Soden, 251 Kan. 225, 237, 834 P.2d 358, cert. denied 121 L. Ed. 2d 540 (1992).
The courts must follow the guidelines in determining child support. See In re Marriage of Schletzbaum, 15 Kan. App. 2d 504, 506-07, 809 F.2d 1251 (1991). Section I of the guidelines provides that the calculation of child support obligations in line D. 9 of the worksheet “is a rebuttable presumption of a reasonable child support order.” 1994 Kan. Ct. R. Annot. 83. See Schletzbaum, 15 Kan. App. 2d at 506.
SRS does not contend that the court failed to follow the calculation on the worksheet, but argues the worksheet was inaccurate and did not present a complete financial picture because Earl failed to disclose his income-producing assets.
The trial court did not abuse its discretion in reducing support without hearing evidence. In the absence of the worksheet, it must be presumed that the court followed the calculation of Earl’s support obligation in reducing support to $307 per month. Under the guidelines, that calculation established a rebuttable presumption that justified reduction of support. Because there was no evidence presented to rebut the presumption, it was not an abuse of discretion for the trial court to modify support based solely on the worksheet.
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Pierron, J.:
Dr. Roger N. Bise appeals from the district court’s admission of expert testimony and failure to grant a directed verdict in his favor in this medical malpractice case initiated against him by William Tompkins.
Tompkins was injured in a motorcycle accident. Bise, a plastic surgeon, operated on Tompkins to repair his broken jaw. Tompkins later filed suit against Bise, alleging Bise’s treatment was negligent and fell below the appropriate standard of medical care.
At a discovery conference, Tompkins was ordered to identify any and all expert witnesses he planned to use at trial. Tompkins identified Anthony M. Captline, D.M.D., J.D., a dentist qualified to practice oral and maxillofacial surgery, as his expert witness. Bise designated John W. Canady, M.D., a licensed physician who was board certified in plastic surgery and otolaryngology, and Steven L. Thomas, D.D.S., a dentist who was board certified in oral and maxillofacial surgery, as his two expert witnesses. Later, after designating these two experts, Bise filed a motion to strike Captline as Tompkins’ expert witness because Captline was a dentist rather than a doctor and/or a plastic surgeon.
The district court stated that, while Bise is a plastic surgeon, the surgery giving rise to this case was oral and maxillofacial surgery. Because the alleged negligence in this case occurred while Bise was engaged in the practice of oral and maxillofacial surgery, Captline was qualified to testify as to the appropriate standard of medical care. The court ruled oral and maxillofacial surgery was the “profession” referred to by K.S.A. 60-3412, as applied to this case.
At trial, the court allowed Captline to testify over Bise’s objection. Captline testified Bise’s treatment of Tompkins fell below the standard of care for an oral and maxillofacial surgeon.
At the close of Tompkins’ evidence, Bise moved for a directed verdict, alleging there had been no appropriate expert testimony that Bise had fallen below an acceptable standard of care in treating Tompkins. The court denied Bise’s motion
Bise and his experts all testified that Bise’s treatment of Tompkins was appropriate, given Bise’s concern for the well being of the entire patient and not just the jaw area. Bise testified that, for physicians, the most important thing was to take care of the entire patient. He stated he had concerns that Tompkins may have had a closed head injury or pulmonary contusion. Because of these concerns, Bise testified, his approach was, overall, the safer and more appropriate procedure. Captline admitted at trial that he was not a plastic surgeon and was not qualified to treat head or pulmonary injuries.
The jury found Bise 33.75% at fault for Tompkins’ injuries. It concluded Tompkins’ total damages were $195,390.89. The district court entered judgment against Bise in the amount of $65,944.43.
Bise contends the district court erred in allowing Captline to testify because the court misconstrued 60-3412. Tompkins, on the other hand, contends Bise misconstrues 60-3412. He states this statute was intended only to prohibit the testimony of professional witnesses in medical malpractice cases.
This issue involves an interpretation of 60-3412. Interpretation of a statute is an issue of law and subject to de novo review. State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993); Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
K.S.A. 60-3412 states as follows:
“In any medical malpractice liability action, as defined in K.S.A. 60-3401 and amendments thereto, in which the standard of care given by a practitioner of the healing arts is at issue, no person shall qualify as an expert witness on such issue unless at least 50% of such person’s professional time within the two-year period preceding the incident giving rise to the action is devoted to actual clinical practice in the same profession in which the defendant is licensed.”
Bise states there are four requirements under this statute. He contends:
“(1) [T]he underlying action must be a medical malpractice liability action as defined by K.S.A. 60-3401, (2) the standard of care of a ‘practitioner of the healing arts’ must be at issue, (3) the proposed expert witness must practice in the same profession in which the defendant is licensed, and (4) the proposed witness must have practiced in such profession at least fifty percent (50%) of his or her time within the two-year period preceding the incident giving rise to the plaintiff’s action.”
The parties agree this is a medical malpractice liability action and the standard of care of a practitioner of the healing arts is at issue. They disagree about the correct interpretation of practicing “in the same profession as that in which the defendant is licensed.”
Bise alleges Captline was not a health care provider under the statute. Therefore, he certainly could not be considered to be in the same profession as Bise and should not have been allowed to testify against Bise.
K.S.A. 60-3401 applies to the entire act governing professional liability actions, of which 60-3412 is a part. K.S.A. 60-3401(c) simply states that “ ‘[h]ealth care provider has the meaning provided by K.S.A. 40-3401 and amendments thereto.” K.S.A. 40-3401(f) defines a health care provider to include “a dentist certified by the state board of healing arts to administer anesthetics.”
Captline is a dentist certified to administer anesthetics. He would qualify as a health care provider for the purposes of 60-3412, and this part of Bise’s argument is without merit.
The issue is really what the statute means by “actual clinical practice in the same profession in which the defendant is licensed.” The district court interpreted this to mean that an expert could be a person who was engaged in the same type of practice as the defendant. Because the district court concluded that Bise was actually engaged in oral and maxillofacial surgery at the time of his alleged negligence, the court believed it was acceptable for an oral surgeon to testify as an expert against him.
In interpreting a statute, this court should presume the legislature intended to use the actual words it utilizes in a statute and that it intended to use the ordinary and common meanings of those words. Bank of Kansas v. Davison, 253 Kan. 780, 788, 861 P.2d 806 (1993). When interpreting the language of the statute, the court should give the words used in the statute their ordinary, common, and natural meanings. Bank IV Wichita v. Plein, 250 Kan. 701, 705-06, 830 P.2d 29 (1992). Further, when the language of the 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).
All of the above rules are subordinate to the rule that the intent of the legislature governs if that intent can be ascertained. City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). In determining the legislature’s intent, the court should consider the entire act in question. Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992).
Under the plain meaning of the statute, the district court erred in allowing Captline, an oral surgeon who is a dentist, to testify against Bise, a plastic surgeon who is practicing oral surgery. Although both men practice in the field of oral surgery, the statute requires the proposed expert to be engaged in actual practice in the same field in which the defendant is licensed. Bise is licensed by the state board of healing arts in the field of medicine. Capt-line, on the other hand, is licensed by the state dental board in the field of dentistry.
Further, although the case law has interpreted the same professional requirement of 60-3412 liberally to allow one physician to testify against another physician of any specialty, the courts have never allowed a professional from another field to testify against a physician.
In Wisker v. Hart, 244 Kan. 36, 766 P.2d 168 (1988), the Kansas Supreme Court held that a general practitioner could testify as to the standard of care for a surgeon, and vice versa. The court stated:
“K.S.A. 1987 Supp. 60-3412 is intended to prevent the use of ‘professional witnesses.' . . . The statute was not intended to require that only a surgeon could testify as to the standard of care of another surgeon, etc. The weight afforded the testimony of physicians testifying outside their area of professional specialization is a matter to be determined by the jury.” (Emphasis added.) 244 Kan. at 43-44.
See also Denton by Jamison v. U.S., 731 F. Supp. 1034 (D. Kan. 1990), (federal court interpreted 60-3412 to allow a doctor of osteopathy to testify against a medical hospital).
Captline even admitted that to his knowledge, the standard of care for oral surgery may be different than that for plastic surgeiy.
Although we believe the language of 60-3412 is clear in regard to who may testify as an expert in a medical malpractice liability action, we have considered Tompkins’ argument that the statute was only concerned with eliminating “professional witnesses.” To a certain extent, Tompkins’ argument is correct. The legislative histoiy indicates a desire to eliminate the pernicious effects of “despicable . . . ‘hired guns’ who travel all over the country, testifying for hire, and rarely if ever actually practicing medicine.” H.B. 2661, Testimony of David S. Litwin Before House Judiciary Committee, February 10, 1986.
However, the legislative history and language show no intent to also expand the standard for expert witnesses in medical malpractice actions beyond that which is clearly stated in the statute: the expert must be licensed in the same profession. No exception is made for other health care providers who might practice in similar or related areas.
Tompkins further argues Bise acquiesced in the district court’s decision to allow Captline to testify when Bise designated a dentist as one of the experts he would «call at trial. Bise correctly points out that all of the case law cited by Tompkins in support of this proposition applies only to acquiescence in judgments rather than procedural decisions by the district court. Bise contends he did everything he could to preserve the issue of improper expert testimony for appellate review, and the fact that he called his own dentist to attempt to rebut Captline’s testimony should not be used to preclude appellate review.
As a general rule, acquiescence in a judgment precludes any appellate review of the judgment. Younger v. Mitchell, 245 Kan. 204, 777 P.2d 789 (1989).
“[A]cquiescence sufficient to cut off a right to appeal is voluntary compliance with tiie judgment. In order for an appellate court to hold that a party has acquiesced in a judgment, it must be shown that the appellant has either assumed burdens or accepted benefits of the judgment contested in the appeal.” 245 Kan. 204, Syl. ¶ 1.
The rationale for this rule is that the courts do not wish to allow a parly to voluntarily comply with a judgment and later adopt an inconsistent position on appeal. Varner v. Gulf Ins. Co., 254 Kan. 492, 495, 866 P.2d 1044 (1994).
The case law does not apply to individual rulings by the district court. Rather, it applies to actions taken in compliance with the ultimate judgment made by the court.
Further, there are exceptions to the general rule about acquiescence. Even if we accept Tompkins’ argument that the ac quiescence rule applies to individual rulings by the district court, Bise’s action in calling his own dentist falls within one of the exceptions to the acquiescence rule. A waiver of a party’s right to appeal “ ‘is not implied from measures taken by an appellant in defense of and to protect his [or her] rights or interest.’ ” Plein, 250 Kan. at 709 (quoting McDaniel v. Jones, 235 Kan. 93, 102, 679 P.2d 682 [1984]). Bise called a dentist to rebut the testimony of Captline in order to protect himself against the possibility (and eventual reality) of the district court’s ruling that this testimony was admissible. This action is not acquiescence in light of the fact that Bise opposed Captline’s testimony both prior to and at the trial.
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ELLIOTT, J.:
Travis Graham appeals the denial of his habeas corpus petition (K.S.A. 60-1501) challenging his administrative segregation.
We affirm.
Graham, an inmate at the El Dorado Correctional Facility, was placed in administrative segregation pursuant to K.A.R. 44-14-302(g). On the same day, the Department of Corrections (DOC) issued a report stating “reliable information” showed he was dis tributing contraband in the prison. Prison officials searched Graham’s cell and found no contraband.
Weekly review forms were filed for three months listing no change in Graham’s status. Exhausting his administrative remedies, Graham filed his habeas petition, raising several challenges to his segregation. The trial court dismissed Graham’s petition without addressing whether the state’s regulations give rise to a state-created liberty interest.
On appeal, Graham’s arguments are totally reliant on the existence of a state-created liberty interest with respect to his status in the prison population in order to bolster his due process argument.
Graham’s filing of a habeas petition was the proper avenue to attack his administrative segregation. See Levier v. State, 209 Kan. 442, 449-50, 497 P.2d 265 (1972).
Because the operation of penal institutions is an executive function, the conduct challenged must clearly show an infringement of a constitutional right, shock the general conscience, or be intolerable to fundamental fairness. Swisher v. Hamilton, 12 Kan. App. 2d 183, 184, 740 P.2d 95, rev. denied 242 Kan. 905 (1987). We will reverse only on a clear showing of abuse of discretion. Levier v. State, 209 Kan. 442, Syl. ¶ 4, 497 P.2d 265 (1972); See Foster v. Maynard, 222 Kan. 506, Syl. ¶ 1, 565 P.2d 285 (1977).
Our primary issue is whether Kansas regulations governing administrative segregation create a liberty interest, which is required for any due process claim. Without a liberty interest, Graham’s attack on his being placed in segregation simply lacks any constitutional foundation.
We recognize that another panel of this court has held that Kansas regulations recognize a state-created liberty interest with respect to administrative segregation. Gray v. Nelson, 20 Kan. App. 2d 900, Syl. ¶ 2, 893 P.2d 842 (1995). We also recognize that in Shepherd v. Davies, 14 Kan. App. 2d 333, Syl. ¶ 4, 789 P.2d 1190 (1990), we held that the disciplinary regulations involved there did create a protected liberty interest.
We disagree with Gray. The Gray panel relied primarily on Hewitt v. Helms, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983), and Jones v. Marquez, 526 F. Supp. 871 (D. Kan. 1981).
We choose to seek our guidance from a later Supreme Court case and a later Kansas federal case. In Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989), the Court clarified the due process standard. A state creates a protected liberty interest by placing substantive limits on official discretion — by establishing substantive predicates to official decision-making and by certain other mandates. 490 U.S. at 462.
The later Kansas federal case on which we lean is Dotson v. Maschner, 764 F. Supp. 163 (D. Kan. 1991), in which Judge Saffels found the administrative segregation regulations contain no mandatory language limiting the discretion of prison officials. 764 F. Supp. at 166.
K.A.R. 44-14-302(g) states:
“Other security risk. The principal administrator may place in administrative segregation or lock-up, in the inmate’s own cell, any inmate or group of inmates if such inmate or inmates are engaging in behavior which threatens the maintenance of security or control in the correctional facility. In such cases, the principal administrator shall, in writing, explain, for the record, the threat to security and show justification for segregation or lock-up. A copy of this explanation and justification shall be sent immediately to the secretary of corrections.” (Emphasis added.)
The regulation clearly states the warden may place a prisoner in administrative segregation. The regulation also states in the mandatory form (“shall”) certain procedural safeguards.
In Dotson, the court ruled that to create a liberty interest, state regulations must use both mandatory language to limit discretion and require a particular result. 764 F. Supp. at 166.
The Dotson court also reasoned:
“Rather, the relevant regulations provide, for example, only that inmates may be placed in segregation where certain conditions are met, may be placed into greater confinement upon other specified conditions, and may be charged with disciplinary offenses for violations committed by an inmate while in segregation. See K.A.R. 44-14-301 — 44-14-317.” (Emphasis added.) 764 F. Supp. at 166.
See also Templeman v. Gunter, 16 F.3d 367, 368 (10th Cir. 1994) (Colorado law), where the prisoner was apparently held in administrative segregation for seven years. The Tenth Circuit noted Colorado regulations containing mandatory language dealt with procedural requirements. 16 F.3d at 369.
Since the prisoner was not deprived of any liberty interest, “no particular process was conditionally due or required, regardless of state law.” 16 F.3d at 371. See also Goddard v. Kansas Dept. of Corrections, 16 Kan. App. 2d 408, 418, 824 P.2d 991 (1992) (due process requires existence of a liberty interest).
In short, our reading of relevant case law indicates that Kansas regulations concerning administrative segregation in state prisons do not contain the necessary mandatory language accompanied by the specified substantive predicates necessary for the creation of a protected liberty interest. See Dotson, 764 F. Supp. at 166.
Further, Graham’s claims of cruel and unusual punishment and an equal protection violation were conclusory statements unsupported by any factual allegations within the petition. See Templeman, 16 F.3d at 371; Swisher, 12 Kan. App. 2d at 184.
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Brazil, J.;
Matthew A. Clothier appeals the denial of his request for a change of judge and the denial of his motion to modify. We reverse and remand with directions.
Clothier pled guilty to one count of burglary, eight counts of felony theft, and one count of misdemeanor theft. The court suspended imposition of sentence for two years and placed Clothier in a community corrections program. He left the community corrections program and was arrested two weeks later.
Clothier then pled guilty to aggravated escape from custody. The court sentenced him to one to five years, revoked the prior suspended sentence, and imposed sentences for those crimes. The combination of concurrent and consecutive terms resulted in a controlling sentence of 6 to 20 years.
Clothier filed a motion to modify his sentence and requested probation. The court denied the motion. Clothier filed a motion to review and reconsider the denial of the motion to modify. He also filed an affidavit requesting a change of judge. Judge Michael Corrigan denied the request. The trial court denied die motion to review and reconsider. Clothier appeals the denial of the motions to modify and change judge in 91 CR 2134 and 92 CR 2189. The cases have been consolidated on appeal.
Clothier argues that the district court erred in holding that the affidavit supporting his request for a change of judge was insufficient. The sufficiency of an affidavit filed pursuant to K.S.A. 20-3lid is a matter of law over which this court has unlimited review. Niblock v. State, 11 Kan. App. 2d 30, 31, 711 P.2d 771 (1985), rev. denied 238 Kan. 878 (1986).
K.S.A. 20-311d(c) sets out the grounds upon which a request for change of judge may be granted:
“(c) Grounds which may be alleged as provided in subsection (b) for change of judge are that:
(1) The judge has been engaged as counsel in the action prior to the appointment or election as judge.
(2) The judge is otherwise interested in the action.
(3) The judge is related to either party to the action.
(4) The judge is a material witness in the action.
(5) The party or the party’s attorney filing the affidavit has cause to believe and does believe that on account of the personal bias, prejudice or interest of the judge such party cannot obtain a fair and impartial trial or fair and impartial enforcement of post-judgment remedies. Such affidavit shall state the facts and the reasons for the belief that bias, prejudice or an interest exists.”
Clothier filed an affidavit which stated:
“Prior to the hearings on March 8, 1993, Judge Watson made comments in chambers stating that this defendant has been coddled by other Judges because his dad works for the county and he is not going to let that happen anymore.
“[On] June 29, 1993, prior to the hearing, Judge Watson made the comments in chambers that the defendant is going to be disappointed and that he has already decided he was not going to change the sentencing order of March 11, 1993: Further he stated that the defendant had been coddled, by the system because his dad was employed by Sedgwick County. . . .
“The defendant and his attorney do not believe he will be afforded a fair hearing scheduled for July 8, 1993 at 1:30 p.m. The grounds are that it is on account of the personal bias or prejudice of the Judge, pursuant to K.S.A. 20-311d(c)(5).”
' The affidavit itself must contain facts and reasons which give fair support for the belief that, on account of the bias of the judge, the affiant cannot obtain a fair hearing. State v. Goss, 245 Kan. 189, 197, 777 P.2d 781 (1989). The reviewing judge passes only on the legal sufficiency of the affidavit and not on the truth of the facts alleged. Hulme v. Woleslagel, 208 Kan. 385, 389, 493 P. 2d 541 (1972).
Clothier first argues that the administrative judge erred in relying on State v. Griffen, 241 Kan. 68, 734 P.2d 1089 (1987), for fhe standard to be applied to a charge of lack of impartiality. In Griffen, the defendant asked the judge to recuse himself without following the. change in judge procedure under K.S.A. 20-311d. 241. Kan. at 72. The Griffen court stated that in considering whether a judge lacks impartiality, the trial court must determine
“ ‘whether the charge of lack' of impartiality is grounded on fapts that would create reasonable doubt concerning die judge’s impartiality, not in the mind of the judge himself, or even, necessarily, in the mind of the litigant filing the motion,- but rather in the mind of a reasonable person with knowledge of all the circumstances.’ ” 241 Kan. at 72.
Although the defendant in Griffen failed to comply with K.S.A. • 20-311d, the Kansas appéllate courts have employed the Griffen standard in the context of a statutory request for a change in judge. See State v. Strayer, 242 Kan. 618, 625-26, 750 P.2d 390 (1988); Grove v. Orkin Exterminating Co., 18 Kan. App. 2d 369, 377-78, 855 P.2d 968 (1992).
Clothier further complains that the judge erred in considering “circumstances of the case as presented by both counsel.” Clothier argues that the administrative judge is limited to consideration of the affidavit itself to determine bias, or prejudice. It is unclear what information was presented to Judge Corrigan apart from the affidavit since no record was made of the hearing on the legal sufficiency of the affidavit.
The language of Griffen indicates that the test of impartiality is what a reasonable person “ ‘with knowledge of all the circumstances’ ” would believe, based on the facts set out in the affidavit. 241 Kan. at 72. The phrase “knowledge of all the circumstances” suggests that the reviewing judge can consider information in addition to that contained in the affidavit. Given the fact that the judge’s determination is limited to the legal sufficiency of the affidavit and not the truth of the facts alleged, it follows that the additional information considered by the judge should be limited to that purpose. For example, it might be helpful to consider the context in which certain remarks were made.
We must emphasize the importance of making a record of any information outside the affidavit considered by the reviewing judge in determining legal sufficiency. In this regard, the appellate court’s review of an order determining legal sufficiency of a K.S.A. 20-3lid affidavit can be compared to the review of an order determining whether an affidavit/application for a search warrant establishes probable cause. In the latter situation, the magistrate normally limits his or her consideration to the information within the affidavit. If additional matters are considered, a record must be made. This allows an appellate court the opportunity to consider the same information before the magistrate. We recommend that the reviewing judge considering the legal sufficiency of an affidavit filed pursuant to K.S.A. 20-3lid follow the same procedure.
We now address the affidavit in this case. We, like a trial court, must assume for the purpose of determining legal sufficiency that the allegations are true.
The judge’s remarks about coddling were made on March 8, 1993, prior to Clothier’s sentencing. On June 29, 1993, in chambers prior to the hearing on Clothier’s motion to modify, Judge Watson informed counsel that he had already decided he was not going to modify his original sentencing order. He again stated that Clothier had been coddled by the system because of his father.
Clothier’s lengthy record was apparent in the presentence investigation report submitted to Judge Watson. Judge Watson noted that the report indicated Clothier had not spent time in jail for his crimes which ranged from burglary, theft, and robbery as a juvenile to an assortment of adult convictions including battery, possession of marijuana, criminal damage to property, and driving while under the influence. However, neither Clothier s prior record nor anything contained in the record on appeal justifies Judge Watson’s accusation that other judges had coddled Clothier because his father worked for the county. Not only is Judge Watson’s remark not supported by the record, it is an unwarranted attack on the integrity and impartiality of his fellow judges.
The Supreme Court recently identified certain principles to guide the demeanor of trial judges:
“ ‘The trial judge should be the exemplar of dignity and impartiality. He should exercise restraint over his conduct and utterances. He should suppress his personal predilections, and control his temper and emotions. He should not permit any person in tire courtroom to embroil him in conflict, and he should otherwise avoid conduct on his part which tends to demean the proceedings or to undermine his authority in the courtroom. When it becomes necessary during the trial for him to comment upon the conduct of witnesses, spectators, counsel, or others, or upon the testimony, he should do so in a firm, dignified, and refrained manner, avoiding repartee, limiting his comments and rulings to what is reasonably required for the orderly progress of the trial, and refraining from unnecessary disparagement of persons or issues.’ ” State v. Plunkett, 257 Kan. 135, 891 P.2d 370 (1995) (slip op. at 5) (quoting State v. Hamilton, 240 Kan. 539, Syl. ¶ 4, 731 P.2d 863 [1987]).
Judge Watson’s remarks on both occasions would create a reasonable doubt concerning the judge’s impartiality in the mind of a reasonable person. Further, by stating that he had already made up his mind, the judge, for all practical purposes, denied Clothier an opportunity to be heard on his motion to modify.
Judge Corrigan’s order finding that Clothier’s affidavit was legally insufficient is reversed, and the case is remanded for a hearing before a different judge on Clothier’s motion to modify. For this reason, we will not address other issues on appeal.
Reversed and remanded with directions. | [
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Gernon, J.:
This is a divorce action in which Ron D. Wade appeals from a district court order dividing the marital assets of the parties and awarding maintenance to his former wife, Katherine Sue Wade.
Ron and Katherine Wade were married on March. 27, 1982. They had two children, Jacob Andrew, bom October 30, 1985, and Ashleigh Ann, bom November 12, 1982. On September 7, 1993, Ron petitioned the court for a divorce on the grounds of incompatibility. Katherine filed a counter-claim alleging the same grounds.
The trial court granted the divorce after granting Katherine’s motion to bifurcate the issues in the case. That same day, a hearing was held on property division and maintenance issues.
Evidence presented by the parties at the hearing revealed that at the time of the divorce, Ron was 42 years old and served as the vice president of Wade Agricultural Products in LaCygne, Kansas. Katherine was 31 years old and cleaned homes .for a living. Ron earned approximately $31,000 in 1993. .Katherine’s income was approximately $1,200 per month, or $14,400 per year.
The parties lived in an earth contact home with a fair market value of $92,500. The property is part of a quarter section of land that was originally owned by Ron’s parents, Ivan and Barbara Wade. In 1984, the Wades transferred tide to the real estate to their corporation, Wade Farms, Inc., with a reservation in the deed for two houses which already existed on the property. One of these homes was the house in which Ron and Katherine resided during their marriage.
The deed purported to transfer the property to the corporation while “[excepting therefrom a lifetime estate in the personal residences separately occupied and lived in by Gwendolyn L. Gooding [Ron’s sister] and Ron D. Wade.”
Ron and Katherine did not pay anything to live in the house while they were married, but they did pay property taxes and maintain homeowners insurance.
Wade Farms, Inc., is a closely held Kansas family farm corporation with 34,000 shares of capital stock. Ivan and Barbara Wade each own 5,372 shares (15.8% of total stock each, or together 31.6% of total shares), while their children, Ron D. Wade, Gwendolyn L. Gooding, and Carolyn D. Shoemaker, each own 7,752 shares (22.8% of total stock each, or together 68.4% of total shares). Wade Farms, Inc., owns 357 acres of agricultural land in Miami and Linn Counties, which is worth approximately $360,000.
Ron’s present-day interest in Wade Farms, Inc., was valued at $56,750. With the exception of the parties’ marital residence, Ron has no assets other than his personal effects and a bank account that also lists his parents and Katherine as owners. His vehicle and all related expenses, as well as his life and health insurance, are provided by his employer. Ron also receives an annual bonus of approximately $1,700.
The issues raised at trial centered around the parties’ marital residence and how it could be fairly divided. Ron argued that the language in the deed purporting to give him a life estate in the house was ineffective, and, therefore, he had no interest in the house which could be divided. Katherine maintained that the language created a life estate in Ron and that she was entitled to half of the value of this interest.
The trial court found that the deed effectively conveyed a life estate in the houses on the property to Ron and his sister Gwendolyn. The court noted that any doubt regarding this issue was put to rest by Barbara Wade, one of the grantors, and Mr. Brouillette, the scrivener of the deed, who both testified that the clear intent of the parties at the time of the creation of the deed was to reserve a life estate in the homes of the children during the childrens lifetimes.
The court awarded Katherine the parties’ automobile, one-half of the household furnishings, and one-half of the value of Ron’s life estate in the marital residence. The value of Katherine’s one-half interest in the life estate was determined to be $38,112. Ron was awarded his stock in Wade Farms, Inc., one-half of the household furnishings, one-half of the value of his life estate in the residence, and possession of the residence. Katherine’s interest in the marital residence was secured by a lien upon the real estate and upon Ron’s stock in Wade Farms, Inc. The court provided that Katherine’s interest in the house could be discharged in one lump sum payment by Ron, or in five annual installments, with accumulated interest at the rate of 5% per annum, or by equal monthly installments for 60 months, with interest at the rate of 5% per annum.
Regarding maintenance, the trial court found as follows:
“Due to the length of this marriage, the relative earning capacities of the parties and the lifestyles of the parties and in light of the property division set out above, an award of maintenance in the amount of $3,400 per year for four years is fair in this case. This will allow Katherine the opportunity to better her education and her ability to earn a living. She entered this marriage at a very young age which prevented her from educational pursuits and opportunities she had right after high school. Maintenance may be paid monthly in the amount of $283.33 for 48 months through the office of the clerk of the court.”
Ron appeals from the court’s order dividing the marital assets and awarding Katherine maintenance.
Ron argues that the trial court erred as a matter of law in determining that he possessed a life estate in the property at issue. The deed from Ivan and Barbara Wade to Wade Farms, Inc., purported to transfer the property to the corporation while “[excepting therefrom a lifetime estate in the personal residences separately occupied and lived in by Gwendolyn L. Gooding and Ron D. Wade.”
“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). ‘When interpreting conveyances, courts first look at the language used within the four comers of the instrument in an attempt to determine the intent of the parties.” Harder v. Wagler, 17 Kan. App. 2d 403, 408, 838 P.2d 366, rev. denied 251 Kan. 938 (1992). Where there is no ambiguity or uncertainty in a deed and the grantor’s intention is clearly and unequivocally expressed therein, there is no occasion for employing mies of judicial construction. Sporn v. Overholt, 175 Kan. 197, 199, 262 P.2d 828 (1953).
Ron does not argue that the language purporting to reserve a life estate in himself and his sister is ambiguous but, rather, that it is ineffective to convey a life estate in favor of Ron because he was a stranger to the deed. Ron contends that no interest or estate in land may be created in favor of a stranger to the title by means of a reservation or exception in the conveyance.
An exception is a provision in a deed that excludes from the operation of the grant some physical part of the grantor’s real estate which would otherwise pass to the grantee under the general terms of the grant. A reservation does not affect the basic conveyance of the real estate in question but, instead, reserves or re-creates in the grantor a new estate or interest which arises out of the land which has been conveyed. See generally 6A Powell on Real Property § 899(3)(g) (1994). The conveyance at issue in the present case is a reservation.
Ron relies primarily upon a law journal article: Harris, Reservations in Favor of Strangers to the Title, 6 Okla. L. Rev. 127 (1953). The article focuses on the evolution of a common-law rule of feudal origin, namely, that no interest or estate in land may be created in favor of a stranger to the title by means of a reservation or exception in the conveyance thereof. This rule resulted from the general principle that words of grant or conveyance are essential to pass title by deed, and therefore, terms such as “subject to,” “reserve,” “except,” and their generic derivatives fail to qualify as words of grant because they are insufficient in and of themselves to evidence the necessary intention to pass title. 6 Okla. L. Rev. at 132-33. The author describes the extent to which courts in this country have deviated from or circumvented the common-law rule forbidding reservations to strangers and concludes that any rule which can only operate to defeat a grantor’s intention is undesirable and should be discarded unless some overriding public policy requires its retention. 6 Okla. L. Rev. at 134-50. “It is difficult to perceive any overriding public policy to support the common-law rule because, as pointed out earlier, the rule condemns only the method of transferring title, rather than the transfer itself.” 6 Okla. L. Rev. at 154.
The difficulty in allowing a grantor to reserve an interest in favor of a third party stems from the notion that the term “reservation” meant that the grantor kept part of the interest or estate conveyed for himself or herself. The fallacy underlying this argument can be explained as follows:
“But why is it necessary to dwell on die unfortunate use of a particular word? Why can the grantor not be allowed to accomplish in one step what obviously can be accomplished in two? Certainly it is clear that the grantor meant to grant two separate interests to two separate people. If the transaction is so viewed, then the grantor is merely making two grants in the same document, which seems legitimate. If this were not possible, then it would be impermissible for a grantor to convey, in the same deed, a life estate to one person and a remainder to another.
“Recent decisions show a marked tendency toward the rejection of the traditional doctrine. [Citations omitted.] In these cases, die fact that the conveyance grants or reserves an interest in a third person does not automatically invalidate the interest. If die grantor’s intent is clear, the interest is properly conveyed to die third person. . . . However, there remain significant decisions which reject this approach and which continue to endorse the rule that a deed may not reserve an interest in favor of a person otiier dian die grantor. [See, e.g., Estate of Thomson v. Wade, 69 N.Y.2d 570, 516 N.Y.S.2d 614, 509 N.E.2d 309 (1987).]” 6A Powell on Real Property § 899(3)(g).
Kansas has not addressed the issue of whether a grantor can reserve an interest in a third party who is a stranger to a deed. However, the law is clear that the cardinal rule in interpreting the effect of a deed is to ascertain the intent of the grantor. “[E]very conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear or be necessarily implied in the terms of the grant.” (Emphasis added.) K.S.A. 58-2202. In ascertaining whether a conveyance is or is not effective and, if it is effective, what that effect is, the intent of the conveyor is an important and often decisive factor. Winsor v. Powell, 209 Kan. 292, 302, 497 P.2d 292 (1972); Magnusson v. Colorado Oil & Gas Corp., 183 Kan. 568, 572, 331 P.2d 577 (1958). Moreover, as noted by the trial court, a life estate may be created by any words clearly indicating the intention. Bennett v. Humphreys, 159 Kan. 416, 420, 155 P.2d 431 (1945).
Ron cites Ahnert v. Ahnert, 98 Kan. 773, 160 Pac. 203 (1916), and Brown v. Ulmer, 110 Kan. 504, 204 Pac. 1007 (1922). Neither of these cases is relevant to the present discussion. Ahnert involved a deed which reserved the rents, issues, and profits of certain land to the grantor for his life, and after his death to his wife for her life. The court held that the widow of the grantor took no title to the wheat grown on the land, which was harvested, threshed, and placed in granaries before her husband’s death. 98 Kan. at 774.
In Brown, the court held that where a grantee accepts and records a deed containing a specific reservation of the oil and gas rights in the land, takes and holds possession of the land for a period of years under the deed, and, thereafter, executes mortgages upon it, the grantee is estopped to assert that the reservation was improperly inserted in the instrument or that it was not a binding exception. 110 Kan. at 505-06. Neither Ahnert nor Brown involve a reservation in favor of a true stranger to the deed.
The language at issue leaves no doubt that Ivan and Barbara Wade intended to reserve a life estate for two of their children in the two houses that existed on the parcel of land they conveyed to the corporation. Their use of the term “excepting” rather than “reserving” is only a technical defect, and Ron’s argument that because of this language no interest was created places form over substance. See 6A Powell on Real Property § 899(3)(g) (“Although the word ‘exception’ and ‘reservation’ have two distinct historical meanings, the common usage today has tended to ignore or even disavow the distinction.”).
Even if the use of the wrong term does create an ambiguity, extrinsic evidence in the form of Barbara Wade’s testimony and the testimony of the attorney who drafted the deed clearly establishes that the parties intended to give the property to the corporation but wanted to preserve their children’s interests in the houses for the remainder of the children’s lives. As stated by the court in Davis v. Vermillion, 173 Kan. 508, 510, 249 P.2d 625 (1952),
“[a] rule for the construction of deeds as well as wills, to which all other rules are subordinate, is that the intention of the grantors as garnered from all parts of the deed is to be given effect, and that doubtful or inaccurate expressions in a deed shall not override the obvious intention of the grantors. In construing a deed, the court puts itself as nearly as possible in the situation of the grantors when they made the deed and, from a consideration of that situation and from the language used in each part of the deed, determine as best it can the purpose of the grantors and the intentions they endeavored to convey.”
The trial court did not err in finding that the deed at issue effectively conveyed a life estate to Ron in the house where he and Katherine lived during their marriage.
Ron next contends that the trial court determined the value of the life estate based upon improper evidence. Katherine was allowed to testify as to the present fair market value of the residence and the value of the life estate Ron held in the residence. An objection was made by counsel for Ron, contending that Katherine was testifying from a writing of a certified public accountant (CPA).
The information was finally admitted after Katherine’s attorney asked her on direct examination if she had a personal opinion as to the value of the life estate in the residence. Ron’s counsel objected after the answer was given. The court allowed Katherine to testify as to what her opinion was but also noted that it knew that the value testified to was based upon information Katherine had received from a CPA.
We note two things from the record. First, the exhibit referred to had already been introduced into evidence with regard to the fair market value of the real estate. The appraisal was done by Crown Realty. The function of the local CPA was to make a calculation of the life estate based upon the value of the Crown Realty appraisal. Second, these were the only appraisals or values presented to the court.
The court accepted the appraised value and the CPA’s calculation based upon a stipulated admission of the federal estate tax table by Ron’s counsel.
Although the better practice would have been to have the CPA testify to lay a foundation, what occurred, given the admission of the appraisal and the stipulation of the federal estate tax tables, does not rise to reversible error.
Ron also contends that the trial court erred in ordering him to pay Katherine half of the value of the life estate as well as maintenance. He argues that the court should not order him to pay something which he has little or no ability to pay on his own accord. Specifically, Ron was ordered to pay Katherine a lump sum of $38,112, which could be paid in five annual payments of $7,622.40, with accumulated interest at 5% per annum, or in monthly payments of $635.20, with interest at the rate of 5% per annum. In addition, Ron was ordered to pay Katherine maintenance in the amount of $3,400 per year for four years, or $283.33 per month.
K.S.A. 1993 Supp. 60-1610(b)(l) provides:
“The decree shall divide the real and personal property of the parties, whether owned by either spouse prior to marriage, acquired by either spouse in the spouse’s own right after marriage or acquired by the spouses’ joint efforts, by: . . . (B) awarding the property or part of the property to one of the spouses and requiring the other to pay a just and proper sum .... In making the division of property the court shall consider the age of the parties; the duration of the marriage; the property owned by the parties; their present and future earning capacities; the time, source and manner of acquisition of property; family ties and obligations; the allowance of maintenance or lack thereof; dissipation of assets; and such other factors as the court considers necessary to make a just and reasonable division of property.”
K.S.A. 1993 Supp. 60-1610(b)(2) states that the trial court “may award to either party an allowance for future support denominated as maintenance, in an amount the court finds to be fair, just and equitable under all of the circumstances.” The determination of maintenance and the division of property should be made at the same time for, although they are separate and distinct concepts, neither can be intelligently fixed by itself without giving appropriate consideration to the other. In re Marriage of Sedbrook, 16 Kan. App. 2d 668, 675, 827 P.2d 1222, rev. denied 251 Kan. 938 (1992).
Many of the statutory considerations relating to the division of property are required by case law to be considered in the determination of maintenance. 16 Kan. App. 2d at 670-71. Factors which may be considered include the age of the parties; their present and prospective earning capacities; the parties’ needs; the time, source, and manner of acquisition of property; family ties and obligations; and the parties’ overall financial situation. Powell v. Powell, 231 Kan. 456, 460, 648 P.2d 218 (1982); 16 Kan. App. 2d at 671.
On appeal, once it is established that the statutory factors regarding distribution of property were considered by the trial court, the exact manner in which the court weighed the factors will be reviewed by an abuse of discretion standard. See In re Marriage of Sadecki, 250 Kan. 5, 13-14, 825 P.2d 108 (1992); Parish v. Parish, 220 Kan. 131, 134, 551 P.2d 792 (1976) (“The trial court has wide discretion when it comes to matters relating to alimony, and its judgment in awarding alimony will not be disturbed absent a clear abuse of discretion.”). “Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the trial court.” Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973).
The record reflects that Ron earned $31,000 in 1993. This income figure does not include his free use of a vehicle, as well as health and life insurance benefits, which were all paid for by the corporation. He also receives an annual bonus of approximately $1,700. Ron was awarded stock valued at $56,750, half of the value of the fife estate, and possession of the house.
It is important to note that, as the holder of a life estate in the property, Ron can live on the property at no cost. The fact that the interest to be divided in this case is a life estate rather than a fee simple estate is irrelevant; Katherine is entitled to fair and equitable division of all the marital property. “It is not the function of this court to retry divorce cases and divide property between husband and wife.” Darr v. Darr, 194 Kan. 593, 595, 400 P.2d 721 (1965). The trial court did not abuse its discretion in awarding Katherine half of the value of the life estate.
We conclude that the trial judge molded an order which was both flexible and fair. While another judge might have awarded a different amount or made a different division of property, we find no abuse of discretion.
With regard to maintenance, the court stated that $3,400 per year for four years was appropriate considering the length of the marriage, the relative earning capacities of the parties, the lifestyles of the parties, and in light of the property division. The court noted that the award would allow Katherine the opportunity to better her education and her ability to earn a living as she “entered this marriage at a very young age which prevented her from educational pursuits and opportunities she had right after high school.” Ron fails to demonstrate a clear abuse of discretion.
Finally, Ron objects to the court’s decision to trifurcate the proceedings by first granting the divorce and then separately considering property and maintenance issues before addressing child custody matters. Ron argues that the proceedings should not have been split up and that maintenance should not have been ordered until such time as all issues that might affect the financial situation of the parties were determined.
The practice of granting a divorce and later considering property division, maintenance, and child support issues has become a relatively common practice in Kansas trial courts. See, e.g., In re Johnson, 251 Kan. 826, 840 P.2d 515 (1992); McCain v. McCain, 219 Kan. 780, 782-83, 549 P.2d 896 (1976) (in a divorce case where the trial court bifurcates its ruling and causes the decree of divorce to be entered on a date different from that upon which it enters final rulings on other issues in the case such as child custody, alimony, and division of property, the entiy of whichever order is later fixes the date from which the time for taking an appeal runs). Any rulings made regarding maintenance would be taken into consideration by the court when deciding child custody and support matters. See generally Kansas Child Support Guidelines (1993 Kan. Ct. R. Annot. 71).
We find no abuse of discretion by the trial court in deciding to consider the relevant issues in a trifurcated manner.
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|
Green, J.:
This appeal arises from wrongful discharge actions brought by plaintiffs Sherri Kay Moyer (Kay) and Jon R. Moyer (Jon), husband and wife, against Allen Freight Lines, Inc. (Allen Freight). Allen Freight appeals, contending the trial court erred by denying its motion for directed verdict on plaintiffs’ retaliatory discharge claims and Kay’s claim for punitive damages.
In early February 1992, both plaintiffs were terminated by Allen Freight Lines. At that time, Kay and Jon were city drivers on the Riverside route, which involved transporting car seats from the Riverside seat plant to the General Motors plant in the Fairfax District of Kansas City, Missouri.
Kay went to work for Allen Freight in August 1989, as a truck driver. When she was terminated on February 6, 1992, she was the most senior driver on the Riverside route. At various times during her employment, Kay observed certain equipment failures that occurred to her truck and she reported those failures to Allen Freight’s management. She also complained to Allen Freight’s management about excessive overtime hours worked by the drivers. Jon was hired in June 1991 as a city driver and was eventually assigned to the Riverside route in late June 1991.
When General Motors would temporarily shut down its manufacturing plant, Allen Freight would lay off drivers on the Riverside route. During that period, Allen Freight would call in the laid-off drivers if any temporary driving work became available. On February 3, 1992, during, a temporary layoff, Jon was called into work and was asked to clean the battery cables of a truck. Believing he lacked the necessary clothing and tools to do the job, he refused to perform the work. As a result of his refusal, Jon was terminated.
In early January 1992, Allen Freight learned General Motors intended to reduce its work force to one shift at the Fairfax plant in March. In response, Allen Freight planned to reduce its Riverside route shifts from two to one, and on February 6, 1992, Kay was terminated.
Plaintiffs then brought their retaliatory discharge actions. Kay alleged that she had been wrongfully terminated in retaliation for: (1) filing a workers compensation claim; (2) being absent from work due to illness; (3) making complaints to management about Allen Freight’s infractions which affected public- health, safety, and welfare; and (4) filing a claim for unemployment benefits. Jon alleged he had been wrongfully terminated in retaliation for: (1) his filing a claim for unemployment benefits; and (2) his wife’s persistent complaints to management.
After presentation of plaintiffs’ evidence, Allen Freight moved for directed verdict on all claims. The trial court denied this mo tion except for Kay s claim of being absent from work due to illness. The trial court granted plaintiffs’ motion to allow the jury to determine if plaintiffs were entitled to punitive damages.
The jury awarded Kay $15,500 and Jon $12,000 in actual damages, and following a separate hearing, the court awarded Kay $40,000 in punitive damages. Allen Freight timely appealed.
Allen Freight argues the trial court erred in failing to grant its motion for directed verdict on Kay’s claim of retaliatory discharge. Allen Freight contends Kay’s alleged complaints do not pertain to the public health, safety, and general welfare concerns protected by the tort of retaliatory discharge for “whistle-blowing.”
Our standard of review is as follows:
“ ‘In ruling on a motion for directed verdict pursuant to K.S.A. [1993 Supp.] 60-250, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought and where reasonable minds could reach different conclusions based on the evidence the motion must be denied and the matter submitted to the jury. This rule must also be applied when appellate review is sought on a motion for directed verdict.’ ’’ Simon v. National Farmers Organization, Inc., 250 Kan. 676, 683, 829 P.2d 884 (1992).
Kansas courts have recognized several public policy exceptions to the employment-at-will doctrine, which allows either employer or employee to terminate the employment relationship for any or for no reason, at any time. One of those exceptions recognized by our Kansas Supreme Court is called the whistle-blower’s exception. In Palmer v. Brown, 242 Kan. 893, 900, 752 P. 2d 685 (1988), the court declared:
“Public policy requires that citizens in a democracy be protected from reprisals for performing their civil duty of reporting infractions of rules, regulations, or the law pertaining to public health, safety, and the general welfare. Thus, we have no hesitation in holding termination of an employee in retaliation for the good faith reporting of a serious infraction of such rules, regulations, or the law by a co-worker or an employer to either company management or law enforcement officials (whistle-blowing) is an actionable tort. To maintain such action, an employee has the burden of proving by clear and convincing evidence, under the facts of the case, a reasonably prudent person would have concluded the employee’s co-worker or employer was engaged in activities in violation of rules, regulations, or the law pertaining to public health, safety, and the general welfare; the employer had knowledge of the employee’s reporting of such violation prior to discharge of the employee; and the employee was discharged in retaliation for making the report. However, the whistle-blowing must have been done out of a good faith concern over the wrongful activity reported rather than from a corrupt motive such as malice, spite, jealousy or personal gain.” (Emphasis added.)
At trial, Kay testified she had made complaints to the management of Allen Freight of the following: (1) that drivers were repeatedly required to work excessive overtime, sometimes up to 84 hours per week; (2) that her truck’s brake Hues froze; (3) that on numerous occasions the tires on her truck were flat; (4) that she was told to continue to drive her truck after the power steering pump failed; and (5) that someone pulled a safety pin used to secure the trailer to her truck. Kay also testified she had complained to a federal Department of Transportation (DOT) inspector of broken equipment which could cause her truck brakes to lock up or freeze. According to her testimony, those reported equipment failures represented a serious threat to public safety because of the dangers of driving unsafe trucks on the highway. She further claimed the reported equipment failures were in violation of DOT safety regulations.
Allen Freight first argues Kay’s reporting of equipment failures cannot be considered whistle-blowing because its company policy requires employees to report equipment failures. Nevertheless, this argument ignores the public policy considerations for the whistle-blowing exception.
The public policy of protecting employees from retaliatory discharge is to ensure that infractions of rules, regulations, or laws pertaining to public health and safety are properly reported. 242 Kan. at 900. Accordingly, whether an employee is encouraged or is required to make such reports does not absolve an employer from liability for firing an employee for making such reports.
Here, the evidence shows Kay made numerous reports of equipment failures, and Allen Freight’s management was displeased with Kay’s continual reporting of those equipment failures. For example, a former employee of Allen Freight testifying on behalf of Kay and Jon stated that he had overheard one of Allen Freight’s managers express a desire to terminate Kay. The former employee further testified management was upset with Kay because of her equipment complaints.
Next, Allen Freight argues Kay s complaints of equipment failures did not relate to violations of rules, regulations, or laws pertaining to public health, safety, and general welfare. Allen Freight contends Kay s reporting of equipment failures is similar to reporting everyday work problems such as reporting a broken typewriter or reporting of over-withholding of income taxes from an employee’s paycheck. Allen Freight argues if this type of reporting is protected then the employee-at-will doctrine is literally eviscerated. Although Allen Freight cites no authority for its position, support can be found for this position in the recent case of Herman v. Financial Corp., 254 Kan. 870, 869 P.2d 696 (1994).
In Herman, the plaintiff alleged she was terminated for complaining to management of irregularities in a loan application in violation of defendant’s internal bank loan policies. In affirming the trial court’s summary judgment in favor of defendant, the court stated:
“[Plaintiff] confuses the public policy of prohibiting terminations due to whistle-blowing . . . with the more basic idea of categorizing a savings and loan association’s granting a loan where the application does not meet underwriting guidelines as ‘an unlawful or improper act of his or her employer.’ Whether the granting of such a loan constitutes an unlawful or improper act is the question which the district court answered in the negative. That is, the district court correctly concluded that it did not violate ‘rules, regulations, or the law pertaining to public health, safety, and general welfare.’ ” 254 Kan. at 882.
Unlike Herman and Allen Freight’s two aforementioned analogies, Kay claimed her reported complaints involved violations of DOT regulations. No evidence was introduced that contradicted Kay’s claim that the equipment failures were violations of DOT regulations. Moreover, Kay testified the DOT once pulled her truck over to inspect it for equipment failures. While inspecting her vehicle, the DOT inspectors wrote her up for certain equipment failures and warned her to report those failures to her employer. Clearly, the purpose of DOT regulations is to ensure the safety and general welfare of the public by requiring all trucks on public highways meet certain minimum safety requirements.
Because Kay testified she was instructed to continue to drive her truck although its brakes were frozen and to drive her truck on a flat tire, her reporting of those and other equipment failures should be protected as reports of violations of regulations pertaining to the public’s safety and welfare.
Allen Freight next argues that because Kay failed to make any reports of equipment failures outside the company, her claim does not fall within the Palmer public policy exception. Although Kay contends she reported the equipment failures to DOT, the evidence shows she only mentioned some equipment failures to an inspector after her truck was pulled over for an inspection. We conclude the mentioning of equipment failures to a DOT inspector while her truck was being inspected does not rise to the level of reporting to an outside agency a serious infraction of a rule, regulation, or law affecting public health, safety, or general welfare. Nevertheless, Palmer does not require an employee to report the serious infraction to an outside agency. On the contrary, an employee may report a serious infraction of a rule, regulation, or law to either company management or law enforcement officials. 242 Kan. at 900.
In summary, the record establishes two possible reasons for Kay’s termination. Kay contends she was terminated for reporting truck equipment failures to company management, while Allen Freight contends Kay was terminated because General Motors reduced the Riverside route to one shift. Because reasonable minds could differ as to the actual reason Kay was terminated, the trial court properly denied Allen Freight’s directed verdict motion on her claim of retaliatory discharge.
Allen Freight next argues that if we conclude some of Kay’s reports to management would not justify a whistle-blowing claim, the jury verdict should be reversed. Allen Freight contends the jury instructions allowed the jury to base its verdict on complaints that are not protected by the whistle-blowing exception. We, however, will not consider this argument for the following reasons.
First, the record on appeal does not include the complained-of jury instructions. “A party must designate an adequate record on appeal to substantiate contentions made to the appellate court. Without such a record, claims of alleged error must fail. Assertions in an appellate brief are not sufficient to satisfy inadequacies in the record on appeal.” Eisenhut v. Steadman, 13 Kan. App. 2d 220, 223, 767 P.2d 293 (1989).
Second, this issue is being raised for the first time on appeal. “A point not raised before or presented to the trial court cannot be raised for the first time on appeal.” Diversified Financial Planners, Inc. v. Maderak, 248 Kan. 946, 948, 811 P.2d 1237 (1991).
Allen Freight next argues the trial court erred in submitting the issue of punitive damages to the jury. Allen Freight contends Kay failed to present any evidence to show its actions were malicious, vindictive, willful, or wanton. In explaining the requirements for punitive damages, our Supreme Court stated:
“In Kansas, punitive damages are awarded to punish the wrongdoer for his malicious, vindictive, or willful and wanton invasion of another’s rights, with the ultimate purpose being to restrain and deter others from the commission of similar wrongs. [Citation omitted.] A jury may consider an award of punitive damages if any reasonable view of the evidence would support such an award. [Citation omitted.] ‘To constitute wantonness, the acts complained of must show not simply lack of due care, but that the actor must be deemed to have realized the imminence of injury to others from his acts and to have refrained from taking steps to prevent the injury because indifferent to whether it occurred or not.’ [Citations omitted.]” Folks v. Kansas Power & Light Co., 243 Kan. 57, 72, 755 P.2d 1319 (1988).
Allen Freight argues Kay failed to show any action on its part which was wanton, malicious, or vindictive because Kay s complaints about truck equipment failures did not go unheeded and the complained-of failures were repaired. Allen Freight’s argument, however, misunderstands the nature of Kay’s punitive damage claim.
In seeking punitive damages, Kay alleged Allen Freight’s action in terminating her was wanton, willful, and malicious. Kay presented evidence that Allen Freight offered no explanation as to why she was being terminated.
The evidence shows Allen Freight’s later suggested reason for Kay’s termination, the workforce reduction, was a pretext. For instance, as a general rule, Allen Freight terminated and laid off employees in reverse order of seniority. Because Kay had more seniority than any other driver on the Riverside route, she should have been the last driver to be terminated. Instead, she was the second of the four drivers to be terminated. Also, as noted earlier, evidence was presented that the management disliked Kay for her aggressive reporting of equipment failures on the trucks she drove. Considering the evidence presented, the jury could reasonably have believed Allen Freight had acted willfully, maliciously, and wantonly in terminating Kay.
Allen Freight next argues the trial court erred in denying its motion for directed verdict on Jon’s retaliatory discharge claim because the whistle-blowing exception does not protect Jon from being terminated in retaliation for his spouse’s persistent complaints to management. Furthermore, Allen Freight contends no evidence was presented to support his claim.
Allen Freight concedes Kansas law protects a spouse from termination in retaliation for his or her spouse’s actions, if those actions are protected by statute. Marinhagen v. Boster, Inc., 17 Kan. App. 2d 532, 840 P.2d 534 (1992), rev. denied 252 Kan. 1092 (1993). Allen Freight, however, argues this protection should not be extended to protecting Jon for Kay’s whistle-blowing action because the holding in Marinhagen should be limited to workers compensation actions.
In Marinhagen, we declared:
“[A]llowing an employer to retaliate against one spouse because the other spouse has exercised his or her right under the Workers Compensation Act would frustrate the purpose of the Court of Appeals’ opinion in Murphy [v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981)] to protect employees by allowing them to freely exercise their rights under the Act.” 17 Kan. App. 2d at 541.
The rationale used in Marinhagen to protect a spouse in a workers compensation claim is equally persuasive in the context of the whistle-blowing exception. In other words, allowing an employer to retaliate against one spouse because the other spouse has reported infractions of rules, regulations, or laws pertaining to public health, safety, and general welfare would frustrate an important public policy. Therefore, we conclude a spouse shall be protected from termination by an employer in retaliation for the actions of the other spouse in reporting infractions of rules, regulations, or laws pertaining to public health, safety, and general welfare.
Next, Allen Freight argues Jon and Kay failed to present evidence to support Jon s claim he was terminated in retaliation for his wife’s persistent complaints to management. Allen Freight contends Jon was terminated on February 3, 1992, for refusing to clean corroded battery cables as requested by his superior. He was terminated only after being warned that his refusal to do the work would cause termination. Jon does not dispute the facts surrounding his termination, but argues Allen Freight’s using his refusal to clean corroded battery cables as a basis for his termination was only a pretext. He claims the real reason he was terminated was to force his wife to quit.
Allen Freight argues no direct evidence was presented to establish Jon was terminated for his wife’s actions. Allen Freight points out Jon admitted he lacked specific facts to establish his claim and he was speculating on the reason for his termination. Nevertheless, as Jon and Kay correctly note, Allen Freight’s motivation can be established by circumstantial evidence.
In Marinhagen, we said:
“Plaintiffs’ case perhaps rests to a great degree upon circumstantial evidence as do most discrimination and retaliation cases. 2A Larson’s Workmen’s Compensation Law 68.36(c) (1992) suggests:
‘Ordinarily the prima facie case must, in the nature of things, be shown by circumstantial evidence, since the employer is not apt to announce retaliation as his motive. Proximity in time between the claim and the firing is a typical beginning-point, coupled with evidence of satisfactory work performance and supervisory evaluations.’ ” 17 Kan. App. 2d at 540.
In denying Allen Freight’s motion for directed verdict, the trial court found Jon and Kay had presented evidence to support Jon’s claim. Given Jon’s overall good job performance with the company and his treatment as compared to other employees who had refused to perform assigned repair work, the trial court determined those circumstances gave rise to an inference he was terminated in retaliation for his wife’s actions.
To support Jon’s claim that he was terminated to prompt his wife to quit, he contends that another employee who had refused to do work had not been terminated. Jon’s primary evidence was the testimony of a former driver at Allen Freight, Charles Kettron. Kettron testified that he had refused to install a stereo in a truck because he was not an electrician. On cross-examination, he testified he had never installed a stereo in a truck before nor had he ever performed any sort of mechanical or maintenance type work on trucks. Nevertheless, Kettron’s situation is distinguishable from Jon’s refusal to work in several ways. First, before becoming a driver, Jon had worked in Allen Freight’s maintenance shop and had on numerous occasions cleaned battery cables, while Kettron testified he had no prior experience as an electrician or a mechanic. Second, the skill required to install a stereo is more technical than the skill needed to clean corroded battery cables. Finally, after Jon refused to clean the battery cables, another driver cleaned the cables without any difficulty. Nevertheless, when Kettron refused to install the stereo in the truck, the truck was taken off-site to have the stereo installed.
In Ortega v. IBP, Inc., 255 Kan. 513, 874 P.2d 1188 (1994), our Kansas Supreme Court stated a plaintiff must prove his or her claim by clear and convincing evidence. After resolving all facts and inferences reasonably to be drawn from the evidence in favor of Jon, we conclude reasonable minds would have concluded that Allen Freight terminated Jon for his refusal to clean the corroded battery cables. Therefore, the trial court erred when it failed to grant Allen Freight’s directed verdict motion on Jon’s retaliatory discharge claim.
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|
Lewis, J.:
OXY USA, Inc., (Oxy) instituted this declaratory judgment action against Colorado Interstate Gas Company (CIG) and Virgil K. Watson, Jeffrey J. Watson, John D. Watson, Kim W. Watson, and Virgil E. Watson (Watsons). Oxy asked for a determination that CIG was responsible for the payment of one-half of the costs of producing gas from a certain gas well in Haskell County, known as the “Watson E” gas well. Oxy and CIG both filed motions for summary judgment. The trial court held in favor of Oxy, and CIG appeals. While the Watsons are defendants in this action, on appeal they are united in interest with Oxy and seek affirmance of the decision of the trial court.
FACTUAL BACKGROUND
The roots of this controversy stem from the year 1955. In that year, Oxy’s predecessor in interest, American Gas Production Company, held an oil and gas lease on the north half of section 24, township 30 south, range 32 west in Haskell County. Subsequently, Oxy succeeded to the interest of American Gas Production Company. In this opinion, “Oxy” will refer to American Gas Production Company as well as Oxy. The unleased minerals in and under the south half of 24-30-32 were owned by the Watsons.
In 1955, Oxy and the Watsons entered into an agreement for the production of gas from all of section 24-30-32 in Haskell County. The parties reduced their understanding to writing in a gas operating agreement (GOA) which was dated January 4, 1955. The GOA was never recorded in Haskell County.
The record does not indicate that the real estate in question was the subject of the usual oil and gas lease. It is our opinion that the GOA stands in the same basic relationship to the parties as would an oil and gas lease.
The GOA between Oxy and the Watsons designated Oxy as the operator of any gas well produced. As operator, Oxy was to commence drilling a well at a specifically designated location and was to operate and produce gas from the well if drilling operations were successful. The drilling operation resulted in a producing gas well, and Oxy remains the operator of the Watson E gas well on the real estate described in die GOA. The agreement defines the interest of the parties as follows:
“The interests of the parties in and to all the gas produced and saved from the Contract Area and in and to the equipment to be installed therein and thereon shall be as follows:
[Oxy] — 50 per cent
[Watsons] — [50] per cent
and all costs, expenses, and liabilities accruing or resulting from the development and operation of said Contract Area pursuant to this agreement shall be determined, shared, and borne by the parties hereto in said proportions.” (Emphasis added.)
There are two additional provisions in the GOA which are particularly important in resolving the issues in this lawsuit:
“IX. CONTROL AND COST OF OPERATION
“Operator shall have full control of the premises subjected hereto and, subject to the provisions hereof, shall conduct and manage the development and operation of said premises for the production of gas for die joint account of the parties hereto. Operator shall pay and discharge all costs and expenses incurred pursuant hereto, and shall charge each of the parties hereto with its respective proportionate share upon the cost and expense basis provided in the Accounting Procedure attached hereto, marked Exhibit ‘B’, and made a part hereof; provided however, if any provision of said Exhibit ‘B’ conflicts with any provision hereof, the latter shall be deemed to control. Each party hereto other than Operator will promptly pay Operator such costs as are hereunder chargeable to such party. Unless otherwise herein provided all production of gas from said land, subject to the payment of applicable royalties thereon, and all materials and equipment acquired pursuant hereto, shall be owned by the parties hereto in the respective proportions as set out herein. Operator shall at all times keep the joint interest of the parties hereto in and to the leases and equipment thereon free and clear of all labor and mechanics’ liens and encumbrances.
“XIII. OPERATOR’S LIEN
“Operator shall have a lien upon the interest of each Non-Operator which is subjected to this agreement, the gas therefrom, the proceeds thereof and the materials and equipment thereon and therein to secure Operator in the payment of any sum due to Operator hereunder from any such Non-Operator. The lien herein provided for shall not extend to any royalty rights attributable to any interests subjected hereto.” (Emphasis added.)
The agreement also provides that it “shall extend to and bind the respective heirs, executors, administrators, successors, and assigns of the parties hereto.”
In addition to receiving a share of the working interest as provided in the GOA, the Watsons were also entitled to receive a one-eighth royalty pursuant to the provisions of that agreement.
On August 8, 1955, the parties entered into a “Declaration for Unitized Operations.” This instrument was filed of record in Haskell County on the date set forth above and makes several references to the GOA. Although the GOA was not recorded, the record clearly shows that CIG knew of its existence and cannot claim otherwise.
CIG was and is the pipeline company. In essence, it has been purchasing the gas produced from the Watson E gas well and should be quite familiar with the operation.
As near as we can tell, the operation of the Watson E gas well went smoothly and without significant dispute for over 30 years. In 1986, however, CIG filed suit against the Watsons, alleging that they had illegally diverted natural gas from CIG’s pipeline to operate their irrigation well and tailwater pump motors.
In 1987, CIG and the Watsons entered into a settlement agreement resolving the lawsuit described above. In the settlement agreement, the Watsons agreed to do the following:
“Defendants, joined by their respective spouse and their parents, Virgil E. Watson and Vera Watson, by the form of Assignment, attached hereto and marked ‘Exhibit A’ covenant to assign for a term of ten (10) years, all of their right, title, claim, interest, equity and estate in and to all oil, gas and all other mineral royalty, working interest payments, rents and all other payments made on or in lieu of production from the Watson E ’ gas unit well, or any replacement, addition or substitution thereof . . . .”
In order to implement the terms of their settlement agreement, the Watsons executed and delivered to CIG a “Mineral Income Assignment” (MIA). This assignment reads as follows:
“MINERAL INCOME ASSIGNMENT
(Quitclaim)
“THIS INDENTURE made and executed this 15th day of April, 1987, BY AND BETWEEN:
VIRGIL E. WATSON and VERA WATSON, husband and wife; JEFFREY JOE WATSON and LINDA WATSON, husband and wife; JOHN DOUGLAS WATSON, a single man; VIRGIL KEVIN WATSON and ALLISON WATSON, husband and wife; and KIM WHITTAKER WATSON and DANA R. WATSON, husband and wife, all of Haskell County, Kansas, hereinafter identified as ‘ASSIGNORS’
AND
COLORADO INTERSTATE GAS COMPANY, a Delaware Corporation, of El Paso County, Colorado, hereinafter identified as ‘ASSIGNEE’
WITNESSETH:
Assignors, for theniselves, their heirs and assigns, do hereby grant, bargain, convey and assign unto Assignee, its successors’ and assigns, all of their joint and several right, title, claim and interest, in and to all oil, gas and all other mineral royalty payments, working interest payments, rents and all other payments due them on or in lieu of production from the Watson E’ gas unit weE under the Declaration for Unitized Operations filed August 8, 1955, recorded in OE and Gas Book 14 at page 571, in the office of the Register of Deeds of HaskeE County, Kansas, and/or any and aE replacement, substitute or additional wefls produced on, and under said agreement or any subsequent agreement or lease, covering the following described real estate situate[d] in HaskeE County, Kansas, to-wit:
South Half (S/2) of Section Twenty-four (24), Township Thirty (30)
South, Range Thirty-two (32) West of the 6th P.M.
TO HAVE AND TO HOLD unto Assignee, its successors and assigns, for a term of ten (10) years from the date hereof. Upon the expiration of said term aE right, title, claim and interest conveyed and assigned hereunder shaE revert to Assignors, in the same fractional ownership as now held, their respective heirs or assigns.
This Assignment is made without warranty of title, except Assignors warrant that they have made no other conveyance, assignment or pledge of such mineral income in confhct herewith.
IN WITNESS WHEREOF, Assignors have hereunto set their hands and caused this Assignment to be duly executed tire day and year first above written.” (Emphasis added.)
The assignment was signed and acknowledged by all of the Watsons and was recorded in Haskell County in 1987 and again in 1993.
After the assignment was recorded, Oxy continued to operate the Watson E gas well and CIG continued to purchase the gas produced from that well. However, CIG refused to pay any part of the costs of producing the gas from the well. Oxy filed this lawsuit asking the trial court to determine whether CIG or the Watsons were responsible for payment of 50 percent of the costs of production. Oxy alleges that at the. time it filed this action, it was owed operating costs of $14,588.25.
Both Oxy and CIG filed motions for summary judgment. Both parties agreed that there were no genuine issues of material fact to be determined and that the matter was ripe for summary judgment.
The trial court ruled in favor of Oxy. It held that what CIG got from the Watsons was an assignment of the Watsons’ working interest in the gas well. The court determined that the working interest assigned was one-half of the production income less one-half of the production expense. The court determined that CIG was responsible for one-half of the production expenses of the well. The court did not determine the amount owed to Oxy by CIG, nor did it determine what percentage of the production income was royalty income as compared to working interest income.
STANDARD OF REVIEW
The answer to the issues presented is found in the various agreements entered into between the parties. When there is no genuine issue of material fact and there are no ambiguities, a written document can properly be construed in ruling on a motion for summary judgment. Wulf v. Shultz, 211 Kan. 724, 731, 508 P.2d 896 (1973).
“Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entided to judgment as a matter of law. [Citations omitted.] When a 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. [Citations omitted.]” Patterson v. Brouhard, 246 Kan. 700, 702-03, 792 P.2d 983 (1990).
“The burden on die party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from die evidence in favor of die party against whom the ruling is sought. On appeal we apply the same rule, and where we find reasonable minds could differ as to die conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306, 756 P.2d 416 (1988).
In this action, there are no genuine issues of material fact. The GOA, the settlement agreement, and the MIA are not afflicted with ambiguities. See Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 243 Kan. 130, 133, 754 P.2d 803 (1988).
We must determine what type of interest the Watsons held in the Watson E gas well and what they intended to assign to CIG by way of the MIA. There is no question but that we may construe and determine the legal effect of a written instrument on appeal. See Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 243 Kan. at 133. The conveying instrument in this case is the MIA. “In case of doubt, an assignment is interpreted most strictly against the assignor, and generally the rules ordinarily applicable to the interpretation of contracts are applied.” 3 Williston on Contracts § 431, p. 175 (3d ed. 1960).
APPLICATION OF KANSAS UNIFORM COMMERCIAL CODE
We begin by determining what law controls the outcome of this action. CIG argues that this is a debtor/creditor type of litigation and that it is controlled by the Kansas Uniform Commercial Code. We disagree.
We hold that this action is not controlled by the Kansas Uniform Commercial Code. CIG attempts to create a complex debtor/creditor litigation involving priorities between competing creditors of the Watsons. CIG argues that it has a perfected security interest which has priority under Uniform Commercial Code Article 9 over Oxy s unperfected security interest. CIG suggests that the MIA provides it with its perfected security interest. It defines Oxy as a creditor whose interests are that of an unsecured creditor under the GOA.
CIG projects this theory to argue that it has a first lien on the production payments due the Watsons before any cost of production is deducted. CIG applies the Uniform Commercial Code to reach the conclusion that the Watsons are responsible for paying one-half of the production costs.
We disagree, not only with the proposed result, but with its premise. This is not a debtor/creditor lawsuit. CIG is attempting to complicate what is a relatively simple contract interpretation case. We conclude that this action is controlled by basic assignor/ assignee law.
The MIA is unambiguous and we may construe it as a matter of law. It is not and cannot be construed to be a security agreement under the Uniform Commercial Code. It does not, by its terms, create a security interest in the property of the assignor nor in the money from gas sales. See City of Arkansas City v. Anderson, 242 Kan. 875, 883, 752 P.2d 673 (1988); K.S.A. 1993 Supp. 84-1-201(37); K.S.A. 84-9-102(1)(a); K.S.A. 1993 Supp. 84-9-305. The MIA does not amount to an outright sale of an account as contemplated by K.S.A. 84-9-102(l)(b).
Indeed, there is nothing in the language used in the MIA which even suggests that that document was intended to be a security agreement defining rights under the Uniform Commercial Code. We believe that had the parties intended to create a security agreement under the Uniform Commercial Code, they would have done so by using the appropriate language. There is no language employed from which we can construe the MIA to be an instrument controlled by the Uniform Commercial Code.
If CIG is correct and it had a priority secured creditor position under the Uniform Commercial Code, then it somehow obtained something from the Watsons which they did not have — the right to receive production payments unburdened by production costs. Prior to 1955, the Watsons owned 100 percent of the minerals under the south half of 24-30-32. Thus, they were in a position to dispose of the minerals or to make any transaction concerning the minerals that they desired. One of their principal desires was to turn their mineral interest into income by way of gas production. In order to do this, they entered into the GOA in which they pooled their ownership with that of Oxy. At this point, they ceded some portion of their ownership and control over the minerals which they owned. Their interest in the gas production under the GOA was reduced to 50 percent and was expanded over the entire section. They became the potential owner of a working interest in any producing well, but in order to receive one-half of production income, they agreed to pay one-half of the production expense. Oxy agreed to operate any producing gas well and, in consideration, the Watsons gave Oxy a lien on their production income. This restricted the Watsons’ right to receive production income by making that income subject to a lien for production costs. The GOA lessened the interest of the Watsons in their minerals but did so in consideration and in furtherance of their desire to obtain gas production. By signing the GOA, the Watsons altered the ownership of their minerals. Their interest was thereafter burdened by and subject to the payment of 50 percent of the costs of production. In the case of Harding v. Continental Pipe Line Co., 172 Kan. 724, 729-30, 243 P.2d 199 (1952), our Supreme Court dealt with the conveyance of a working interest via an oil and gas lease and said:
“The decedent-lessor had voluntarily conveyed that interest and was no longer the owner thereof. On his death his estate acquired no greater interest in the land than he possessed. His estate was subject to the rights he had granted to others. . . .
“. . . Defendant’s right to continue to produce oil therefrom was a vested right and defendant was protected in exercising such vested right in conformity with the terms of the contract. . . . On the lessor’s death his interest in the land and no more belonged to his estate. Defendant did not lose its vested rights by reason of the lessor’s death. [Citation omitted.]”
We think the instant matter is somewhat analogous. In this case, the Watsons voluntarily conveyed an interest in their minerals to Oxy. They gave Oxy the right to develop a gas well on the premises and a right to subject their interests in the gas pro duction income to the payment of production costs. At the time they signed the MIA in favor of CIG, any interest the Watsons had in the working interest from the Watson E gas well was subject to the rights of Oxy under the GOA. CIG could acquire no greater interest in the gas production than was possessed by the Watsons. Further, as in Harding, Oxy had a vested right to continue to produce gas under the terms of the GOA. In essence, Oxy acquired a vested right to produce gas from the real estate in conformity with the terms of the GOA. The Watsons could not, by a unilateral assignment, extinguish the vested rights of Oxy under the GOA. The Watsons had no right under the GOA to receive income free of the lien granted to Oxy and could assign only what they possessed.
WHAT IS THE MINERAL INCOME ASSIGNMENT?
Having determined that the MIA is not an instrument controlled by the Uniform Commercial Code, we must next determine what type of instrument it is.
This is a relatively simple determination. We have examined the MIA, and it is in form and content an assignment. The language used by the parties is that of an assignment. The parties refer to themselves on a number of occasions as assignors and assignees.
We cannot and will not create a contract for the parties which they did not intend. The MIA is obviously an assignment by the Watsons of their working interest, and other interests, in the Watson E gas well to CIG. We have no difficulty in holding that this unambiguous instrument is what the parties said it was — an assignment — and that it brings into play principles of assignor/assignee law.
There are certain uncomplicated rules employed when dealing with the rights of an assignee.
“This court has recently noted that the assignee of a contract interest acquires no greater rights from the assignment than those possessed by the assignor. See H. Freeman & Son v. Henry’s, Inc., 239 Kan. 161, 163, 717 P.2d 1049 (1986).” City of Arkansas City v. Anderson, 242 Kan. at 882.
“In an analogous situation, it is fundamental that the assignee of a contract acquires no greater rights from the assignment than those possessed by the assignor. Aldritt v. Kansas Centennial Global Exposition, 189 Kan. 649, 657, 371 P.2d 181 (1962); Securities Acceptance Corporation v. Perkins, 182 Kan. 169, 173, 318 P.2d 1058 (1957).
“In 6A C.J.S., Assignments § 99, we find the following:
‘Generally, the assignee of a chose takes it subject to all equities and defenses existing between the assignor and the debtor prior to the notice of assignment, but not those arising after notice of the assignment.’
Likewise, in 6 Am. Jur. 2d, Assignments § 102, we find this statement:
‘In an action on a claim assigned, the assignee is ordinarily subject to any setoff or counterclaim available to the obligor against the assignor and to all other defenses and equities which could have been asserted against the chose in the hands of the assignor at the time of the assignment.’ ” H. Freeman & Son v. Henry’s, Inc., 239 Kan. 161, 163, 717 P.2d 1049 (1986).
“ fl]t is axiomatic that an assignee of a promissory note stands in the shoes of the assignor and obtains the rights, title, and interest that the assignor had at the time of the assignment. [Citations omitted.] Moreover, the assignee of a debt ordinarily obtains all remedies which were available to the assignor against the debtor for the enforcement of the obligation.’ ” (Emphasis added.) Cadle Company II, Inc. v. Lewis, 254 Kan. 158, 164, 864 P.2d 718 (1993) (quoting from Thweatt v. Jackson, 838 S.W.2d 725 [Tex. App. 1992]).
The law is settled that CIG could not acquire a greater right from the assignment than those possessed by its assignor. In this case, the assignor’s right to receive production income was subject to a lien in favor of their share of the cost of production. The assignee can gain no greater interest. This is a fundamental rule of law, and no resort to the complexities of the Uniform Commercial Code can render it impotent in this action. It is conceivable that at one time the Watsons may have expected to receive their share of production income along with a bill of their share of production costs. However, the production costs are now in default in excess of $14,000; Oxy has a lien on the production income for the payment of those costs, and it is a lien which CIG as the assignee of the Watsons cannot avoid. Any argument to the contrary ignores the realities with which we must deal.
The assignee “stands in the shoes of the assignor.” This is a time-honored rule of law, and it means that the obligations, de fenses, etc., which burden the assignor will equally burden the assignee. The production income of the Watsons is burdened with a lien. CIG cannot “stand in the shoes” of its assignor and avoid that lien.
WHAT DID THE WATSONS ASSIGN?
What did the MIA assign? The Watsons specifically assigned to CIG, among other things, their “working interest payments” in the Watson E gas well. This opinion primarily deals with the assignment of the “working interest payments,” which will be the focus of this portion of the opinion. We think it significant that the parties, in drafting the MIA, specifically used the term “working interest.” While that term may not be totally descriptive to the general public, it is a term frequently used and clearly understood in die oil and gas industry. CIG is a sophisticated entity in the oil and gas industry, and we have no doubt but that it was conversant with the term “working interest” and knew precisely what it would obtain by using that term in an assignment.
The term “working interest” is virtually synonymous with the term “leasehold interest.” 1 Pierce, Kansas Oil and Gas Handbook § 4.09 p. 4-8 (rev. ed. 1991); Williams and Meyers, Manual of Oil and Gas Terms, pp. 646, 1379 (8th ed. 1991). “ ‘The working interest owner bears the expense of exploration, drilling, and producing oil or gas.’ ” (Emphasis added.) Mulsow v. Gerber Energy Corp., 237 Kan. 58, 61, 697 P.2d 1269 (1985). See Lathrop v. Eyestone, 170 Kan. 419, 424, 227 P.2d 136 (1951); Davis v. Hurst, 150 Kan. 130, 90 P.2d 1100 (1939); Robinson v. Jones, 119 Kan. 609, 240 Pac. 957 (1925). These authorities make it clear that the term “working interest” refers to the usual interest of a lessee in an oil and gas lease and is generally composed of seven-eighths of the production. It is contrasted with the landowner’s royalty interest, which bears no part of the production expense.
It is important to note that CIG took the assignment of a full working interest under the MIA. There are no qualifying words used to indicate that the assignment of the “working interest” in the Watson E gas well was intended to assign anything more or less than that term implies. The working interest owners bear the costs of producing oil and gas from the well head. The use of the term “working interest” to assign an interest free and clear of the burden of paying production expenses is an oxymoron. We doubt that the term “working interest” would be used in the industry to identify an interest free of the costs of production. There are interests in a producing oil and gas well which are free of costs, and these are the royalty interests. Hence, the landowner generally owns a one-eighth royalty interest, which is not subject to payment of the costs of production. Investors in the well who receive an interest free of costs of production receive overriding royalty interests. The use of any of those terms in the MIA might very well have assigned an interest in production free of costs. It is difficult, however, for us to believe that CIG would expect, in good faith, to receive an assignment of a working interest in a producing gas well that was free of the burden of paying part of the costs of production. A working interest by definition bears all or part of the costs of production. The assignment of a working interest to a third party cannot be made free and clear of that obligation without language expressly indicating that that is the intent of the parties.
CIG suggests that it was assigned production payments, which it argues are non-cost bearing. We cannot agree. The MIA specifically assigns to CIG the “working interest” of the Watsons in this gas well. As we have pointed out, the term “working interest” is a term of art, and we will not assign to it a meaning other than that used in our decisions and commonly understood in the industry.
Our construction of the GOA leads us to conclude that the working interest of the Watsons in this particular gas well gave them the right to receive one-half of the production payments and the obligation to pay one-half of the production expenses. We hold that by the assignment, CIG received the working interests of the Watsons in the Watson E gas well. By virtue of that assignment, CIG has the right to receive one-half of the production payments from the Watson E gas well subject to the lien in favor of Oxy for the payment of one-half of the costs of production. Since CIG “stands in the shoes” of the Watsons, it can acquire no greater interest in the production payments than was possessed by its assignor. Its assignor could not demand one-half of the production payments free of the lien of Oxy for one-half of the production expenses and neither can its assignee, CIG.
The adoption of the theory advanced by CIG would, in our opinion, have a disastrous result on the oil and gas industry. Someone must take the risk and burden of drilling wells and paying the costs of production. This is commonly accomplished by selling “working interests” in the proposed wells. By the sale of these working interests, capital is raised to drill and operate wells for the production of oil and gas. If such an owner could assign his worldng interest free of the burden of paying the costs of production, the result would be chaos. Developers and operators would find their working interest partners replaced by “production owners,” who would take the income and run. Unfortunately, an operator cannot operate very long if the income from production is being drained by “production interest owners” who will not share in the costs of that production. That is not a permissible result. The law requires an assignee to “stand in the shoes” of its assignor, and it is this simple tenet of law that dictates our conclusion in this action.
We do not mean to imply by our decision that CIG has any affirmative obligation to pay for the costs of production over and above the production income it receives. As we construe the MIA, CIG is not responsible for operating costs that exceed production income. The working interest share, which was assigned by the Watsons, is subject first of all to the payment of one-half of production costs. Any inference in the trial court’s decision that CIG would be responsible for operating costs which exceed its assigned share of the production income is set aside.
We also note that at some time in the history of the Watson E gas well, the Watsons may have been entitled to receive their share of production income and then pay their share of production expenses. That time has long since passed. At this point in the litigation, Oxy is owed over $14,000 in production costs, and it has a lien over all of the production payments until those costs are received. For all practical purposes, the right to receive pro duction payments without first deducting one-half of the share of production costs is past histoiy.
On remand, the trial court must determine the precise amount of production costs owed to Oxy by CIG. If CIG has received production income on which costs are owed, an appropriate judgment should be rendered in favor of Oxy and against CIG. If the monies have been escrowed or are still held by Oxy, Oxy should pay them over to CIG less CIG’s share of the accrued production costs.
There is one final bit of accounting. The Watsons assigned to CIG their royalty interest as well as their working interest in the Watson E gas well. Since the royalty interest is not a cost-bearing interest, it cannot be subjected to the payment of production expenses. The trial court is directed to determine what portion of the payments assigned by the Watsons to CIG are royalty payments. Those royalty payments should be paid directly to CIG without deduction for any share of production costs.
The decision of the trial court is affirmed, and the matter is remanded on the basis set forth above.
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Lewis, J.;
Appellant was convicted in 1988 of two separate charges of indecent liberties with a child. He appeals from the denial of his motion pursuant to K.S.A. 60-1507.
In case No. 87CR68, appellant was charged with two counts of indecent liberties with a child. Neither the information nor the journal entry show appellant’s relationship to the victim or the exact age of the victim. In the diagnostic report, the victim is identified as appellant’s stepchild. In this matter, appellant filed an application for a court-appointed attorney. The application is in the court file, is signed by appellant under oath, and shows that the victim was the stepdaughter of appellant and was eight years old on March 27, 1987, the date the application was signed. Appellant pled guilty to one count of indecent liberties with a child in this case, and the other count was dismissed. He was sentenced to a term of 3 to 10 years and placed on probation.
In case No. 88CR126, appellant was again charged with indecent liberties with a child. The victim, according to the presentence investigation report, was 11 years old and was not related to appellant. Appellant pled guilty to this charge and was sentenced to a term of 5 to 20, years, which was ordered to run consecutive to the sentence handed down in 87CR68. Appellant’s probation in 87CR68 was revoked, and he was ordered to serve the original sentence of 3 to 10 years.
Appellant filed a motion pursuant to K.S.A. 60-1507, claiming that his convictions were illegal and that the Department of Corrections had improperly classified his convictions. The trial court denied relief, and this appeal followed.
INDECENT LIBERTIES/AGGRAVATED INCEST
Appellant first argues that under State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992), he could only have been charged with and convicted of the crime of aggravated incest. However, appellant pled guilty to the charge of indecent liberties with a child. In LaBona v. State, 255 Kan. 66, 69, 872 P.2d 271 (1994), our Supreme Court held:
“By entering a plea of guilty, he waived the right to challenge the failure of the State to charge the specific offense of aggravated incest and acquiesced in the convictions for indecent liberties with a child. Thus, the district court was not required to vacate his pleas of guilty, and the sentence imposed was not erroneous. The petitioner cannot now complain that the sentence must be vacated.”
It would appear that appellant’s argument is controlled by LaBona and is without merit.
Appellant, however, argues that LaBona is not controlling. He contends that his plea of guilty to the charge of indecent liberties was not voluntary since he was not informed that the State could not charge him with indecent liberties with a child. Since he was not properly informed, he argues, his plea of guilty was involuntary and should be set aside. This argument conveniently ignores the fact that State v. Williams was not decided until 1992. In 1988, charging appellant with indecent liberties with a child in a case involving a stepchild was proper and conformed to existing legal standards. This practice was not condemned until Williams was decided in 1992.
Appellant relies on Morrow v. State, 219 Kan. 442, 548 P.2d 727 (1976), to support his claim. In Morrow, the defendant was charged with aggravated robbery, aggravated battery, aggravated assault, and theft. Morrow, acting on the advice of counsel, pled guilty to aggravated robbery in exchange for the State’s dismissal of the other charges. He appealed when he learned that the dismissed charges were lesser included offenses of the aggravated robbery charge. The fact is, in Morrow, the State had dismissed charges that it could not charge in the first place. Our Supreme Court decided in Morrow that the voluntariness of his plea was questionable because of his counsel’s failure to recognize the clear legal defect presented by the State’s bargaining with lesser included offenses.
In Morrow, the court said: “It is improper for the prosecutor to induce a guilty plea by misrepresentations of the law or by unfulfilled promises.” 219 Kan. at 445 (citing Brady v. United States, 397 U.S. 742, 755, 25 L. Ed. 2d 747, 90 S. Ct. 1463 [1970]). The court indicated that defense counsel is required to advise his client as to the permissible sentences and possible choices available under law. The court held that a failure to fulfill those obligations resulted in a question as to the voluntariness of defendant’s plea.
Morrow is distinguishable from the instant matter. In Morrow, the charges brought against the defendant were clearly multipli citous under applicable legal decisions. The State misrepresented the law by using lesser included offenses to negotiate a plea agreement. Defense counsel failed to advise Morrow of the evident legal defects in the State’s charging document. In that case, Morrow’s attorney failed to insure that he enter a knowing and voluntary plea of guilty.
In this case, the State’s decision to charge appellant with indecent liberties with a child conformed to existing legal standards. See State v. Hutchcraft, 242 Kan. 55, 744 P.2d 849 (1987), overruled on other grounds State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988). The indecent liberties charge in the instant matter was an appropriate and accepted charge under existing legal standards. The charges in Morrow were not.
In this case, appellant entered into a plea agreement based upon charges that were consistent with the applicable law at the time. We hold that he cannot successfully challenge the voluntariness of his pleas based solely upon the fact that the State and defense counsel failed to apprise him of legal standards that would not be announced for another four years.
Appellant’s argument is controlled by LaBona and is without merit.
We also see no basis for a claim of ineffective assistance of counsel. In this case, appellant entered into a plea agreement in 1987 or 1988. 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, overruled in part State v. Williams, 250 Kan. 730. Williams was not decided until 1992. Realistically, appellant’s counsel could not have known or have reason to know that in 1988, the State could only properly charge him with aggravated incest for molesting his stepdaughter. Under those circumstances, we see no basis for a conclusion that the counsel’s performance fell below the objective standard of reasonableness. See Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985).
We find appellant’s argument to be without merit, and we hold as follows: (1) Appellant pled guilty to the charge of indecent liberties with a child and, under LaBona, waived any right to challenge his convictions based on the decision in Williams. (2) Prior to the decision in Williams, a charge of indecent liberties with a child in a case of this nature conformed to existing legal standards and was consistent with applicable law. (3) The failure of the State or of defendant’s legal counsel to advise appellant of a legal standard that did not exist at that time and would not exist until sometime in the future did not render his plea of guilty involuntary. (4) Appellant has no basis for a claim of ineffective assistance of counsel based upon the failure of his attorney to foresee a change in the law that would not occur until sometime in the future.
SEVERITY LEVEL OF CLASSIFICATION
Appellant next argues that the trial court erred in determining that his crime was a severity level 3 crime for retroactivity purposes. Appellant entered a plea of guilty to a charge of indecent liberties with a child in violation of K.S.A. 21-3503. The information in case No. 87CR68 to which appellant entered his plea of guilty alleged the charge in the following language:
“That on or about a period of time from January 1, 1986 through November 11, 1986, the said Ronald Baker, . . . then and there being, did then and there contrary to the statutes of the State of Kansas unlawfully, feloniously and willfully engage in lewd touching of the person of [C.B.], a child under the age of sixteen (16) years, who is not married to said Ronald Baker and with the intent to arouse the sexual desires of said Ronald Baker.”
The information in 88CR126 reads precisely the same except the date is alleged to have been August 1, 1988, and the victim is alleged to be [J.F.], a child under the age of 16 years.
At die time of die offense, K.S.A. 21-3503 read in relevant part:
“(1) Indecent liberties with a child is engaging in any of the following acts with a child who is not married to the offender and who is under 16 years of age:
“(b) any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both.”
At the time appellant committed the crimes, aggravated indecent liberties, a class B felony, was defined as commission of any of the acts listed in K.S.A. 21-3503 by any guardian, proprietor, or employee of any public or private institution to whose custody a child had been entrusted under color of law. See K.S.A. 21-3504.
In 1993, many of the sex crimes in this state were recodified and reclassified. The net result is that at the time appellant sought conversion to a guidelines sentence, the crime of indecent liberties with a child was defined by K.S.A. 1993 Supp. 21-3503 as follows:
“(a) Indecent liberties with a child is engaging in any of the following acts with a child who is 14 or more years of age but less than 16 years of age:
“(1) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent, to arouse or to satisfy the sexual desires of either the child or the offender, or both;
“(c) Indecent liberties with a child is a severity level 5, person felony.”
At the time appellant sought conversion to a guidelines sentence, aggravated indecent liberties was defined by K.S.A. 1993 Supp. 21-3504 as follows:
“(a) Aggravated indecent liberties with a child is:
“(2) engaging in any of the following acts with a child who is 14 or more years of age but less than 16 years of age and who does not consent thereto:
“(A) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or satisfy the sexual desires of either the child or the offender, or both; or
“(3) engaging in any of the following acts with a child who is under 14 years of age:
“(A) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both.” (Emphasis added.)
At the time appellant sought conversion, the crime of indecent liberties with a child was a severity level 5 crime, whereas aggravated indecent liberties with a child was a severity level 3 crime. If defendant’s crime is classified as a severity level 5 crime, he is entitled to conversion; if it is classified as a severity level 3 crime, he is not.
The victims of appellant’s crimes were both under 14 years of age. At the time of the commission of these crimes, engaging in the prohibited acts with children under 14 years of age was defined as indecent liberties with a child. However, had appellant committed this crime on or after July 1, 1993, he would have been guilty of aggravated indecent liberties with a child due to the age of the victim.
The question is whether appellant’s eligibility for conversion to a guidelines sentence is to be determined by the name of the crime for which he was convicted or whether eligibility is to be determined by considering what crime appellant’s conduct would have constituted if it had been committed on or after July 1, 1993.
This issue is decided by our recent decision in State v. Colston, 20 Kan. App. 2d 107, 883 P.2d 1231 (1994). In Colston, the State was making the same argument as is made by the State in this case, and we held: “We agree with the State’s argument and conclude that the legislative intent of K.S.A. 1993 Supp. 21-4724(c)(1) is to look to the criminal acts committed prior to July 1, 1993, for which the defendant was convicted and then determine what crime those acts would constitute after July 1, 1993, and the appropriate severity level.” 20 Kan. App. 2d at 112.
In this case, appellant’s victims were both under 14 years of age. The criminal acts of defendant would constitute the crime of aggravated indecent liberties if committed on or after July 1, 1993. Aggravated indecent liberties is a severity level 3 crime, and defendant is ineligible for conversion.
Based upon the Colston decision, the trial court did not err in determining that, for conversion purposes, defendant’s crime was a severity level 3 crime.
Appellant next argues that allowing the DOC or the sentencing court to reclassify his conviction as aggravated indecent liberties with a child violates the constitutional prohibition against ex post facto laws.
We considered that issue in the Colston decision and held that the ex post facto provision of the United States Constitution was not violated under the circumstances shown. We adopt the Colston decision as controlling in the instant matter and conclude that, based on that decision, appellant’s ex post facto argument is without merit.
The final question is what information can be considered by the trial court in classifying the convictions for conversion.
In Colston, the court was not required to look any further than the facts pled in the information in order to determine that appellant’s conduct, if committed on or after July 1, 1993, would have constituted aggravated criminal sodomy.
In the instant matter, the information alleges only that appellant engaged in unlawful acts with a child under the age of 16 years. The exact age of the victim is not stated in either the information or the journal entry of conviction. Since the classification of appellant’s conduct as constituting aggravated indecent liberties depends on the child being less than 14 years of age, it could not be determined from the information or the journal entry that appellant’s conduct would have been aggravated indecent liberties if committed on or after July 1, 1993.
The question, then, is whether the trial court may look to information not contained in the pleadings or journal entry in determining what crime appellant’s conduct would have constituted on or after July 1, 1993. We conclude and hold that under the circumstances shown, the trial court did not err in using information available to it at the time of sentencing.
We have examined the record in this case and we find that in case No. 87CR68, the fact that the victim was less than 14 years of age was readily ascertainable. On March 27, 1987, appellant signed and filed an “application for appointed defense services.” In that application, which appellant personally signed under oath, he listed lire victim C.B. as one of his dependents. He stated that C.B. was eight years of age and was his stepdaughter. This information was available to the trial court from the very inception of the action and clearly shows C.B. to have been under 14 years of age at the time of the crime.
In case No. 88CR126, the presentence investigation report, which was available to the trial court at the time of sentencing, states the victim’s age to have been 11 years of age.
There is ample information in the court file in both cases to determine the age of the victim. Further, our review of the record indicates that appellant has neither denied nor contested the fact that the victims of his crimes were under 14 years of age. Indeed, in the record of the hearing on the 60-1507 motion, counsel for the State asserts in open court, “When you look back to this case, you will find that the ages of the children that were molested by Mr. Baker were four and six years old.” This comment was not disputed by appellant’s attorney, and the issue of the age of the victims was never raised. The question of the victims’ ages in this case was never an issue and was never disputed, and the evidence is uncontradicted that in both cases the victims were less than 14 years of age.
Appellant argues that he did not plead to facts that alleged the victim was under 14 years of age. While we agree with this statement, we believe it to be irrelevant. Appellant pled guilty to a charge that his victims were under 16 years of age. The trial court’s decision was not inconsistent with the information. To find that a victim is under 14 years of age is simply not inconsistent with an allegation that the victim was under 16 years of age.
We hold that for the purposes of determining the severity level of a conviction entered prior to July 1, 1993, the trial court may use any information in the court file which was available to the court at the time of sentencing without regard to whether the information was set forth or pleaded in the information where: (1) the defendant does not dispute the accuracy of the information relied upon; or (2) the defendant does not raise an issue concerning the fact which is determined from such information.
We realize that our decision may be contrary to decisions of other panels of this court. We leave the question of which version is correct to our Supreme Court.
We hold that the trial court did not err in determining that appellant’s severity level was a severity level 3 for conversion purposes.
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Lewis, J.:
The parties to this action are long-time adversaries and competing entrepreneurs in the gun and knife show business. Patricia K. Gragg sued Joseph A. Rhoney, seeking a temporary restraining order and damages allegedly caused by Rhoney s infringement on Gragg’s registered trade or service marks. She also alleged that Rhoney was guilty of the common-law tort of unfair competition by infringing on her mark as recognized under the common law. The trial court, at Gragg’s request, issued a temporary restraining order restraining Rhoney from infringing on Gragg’s marks. Rhoney responded by denying Gragg’s allegations and took the offensive by asserting counterclaims against Gragg. Rhoney alleged that Gragg obtained registration of her marks in a fraudulent manner and damaged Rhoney by using the improperly issued marks to obtain a temporary restraining order. Rhoney also claims that Gragg did not bring this action in good faith and that her cause was frivolous. Rhoney sought to recover damages from Gragg caused by her fraudulent conduct, unfair competition, and the maintenance of a lawsuit in bad faith. Rhoney also sought to recover his costs and attorney fees under K.S.A. 60-2007.
In general, the trial court ruled in favor of Rhoney. It granted Rhoney’s motion for summary judgment to the extent of holding that the service marks in question should not have been registered and canceled the registration of those marks. The court denied the balance of the relief sought on summary judgment and proceeded to trial on the remaining issues.
After trial, the court generally found against Gragg and granted her no relief. The trial court not only ordered the cancellation of the service marks in question, but concluded that these marks had not acquired a secondary meaning and that Gragg had no unfair competition action against Rhoney. The temporary restraining order issued earlier in the litigation was dissolved. Gragg does not appeal from adverse rulings by the trial court.
The trial court also held against Rhoney on his counterclaims and awarded no damages. The court concluded that Rhoney had failed to satisfy his burden of proof in proving his counterclaims and damages.
Rhoney appeals from the adverse rulings of the trial court.
FACTS
Both Gragg and Rhoney are promoters and organizers of gun and knife shows. Gragg has been in the business since the mid-1970’s and puts on shows in Topeka under the name “Topeka Gun Show.” Rhoney has put on gun shows in Topeka under the name “Topeka Gun & Knife Show.” The parties have apparently been competitors at various locations throughout the state of Kansas and throughout the Midwest.
In late 1989, Gragg began to arrange for a show to be held in Hutchinson at the state fairgrounds. She proposed to advertise this show as the “Hutchinson Gun Show.” Gragg signed a contract for such a show, and the show was scheduled for April 21-22, 1990.
Rhoney was also in the Hutchinson picture. He approached the authorities about putting on a show on the weekend of March 23-25, 1990. He was initially told that those dates were not available because they were within 30 days of Gragg’s proposed show. Rhoney, not being one to take “no” for an answer, then contacted an attorney and, after some negotiations, the authorities booked his gun show for the state fairgrounds on the dates of March 23-25.
As might be expected, Gragg was not pleased when she discovered that Rhoney’s show was going to be held a month in advance of her show. She first attempted to schedule a “military show” to be held on the same dates of Rhoney’s show and also to be held on the state fairgrounds. That request was denied.
Gragg then resorted to the courts for satisfaction. She filed the instant action, seeking to enjoin Rhoney from using the name “Hutchinson Gun Show” or “Topeka Gun Show.” She also sought to recover damages from Rhoney. After a trial, this matter was resolved as set forth earlier in this opinion, and Rhoney has appealed.
THE MOTION FOR SUMMARY TUDGMENT
Rhoney filed a motion for summary judgment which was at least partially granted by the trial court. Rhoney argues on appeal that the trial court erred in not granting his motion in its entirety.
“Summary judgment is proper where the only question or questions presented are questions of law.” Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993). It is appropriate only when the pleadings, depositions, answers to interrogatories, and admissions, 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 be reasonably drawn from the evidence in favor of the non-movant. On appeal, this court applies the same rule, and where reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994).
One of the issues on which Rhoney requested summary judgment was based on his allegations that the marks were not properly registered. The trial court relied on our opinion in Harp v. Appliance Mart, Inc., 16 Kan. App. 2d 696, 827 P.2d 1209 (1992), in reaching its decision. It concluded that the marks “Hutchinson Gun Show” and “Topeka Gun Show” were merely geographically descriptive and were not entitled to protection under our opinion in Harp. It granted Rhoney s summary judgment motion in this regard and ordered the Secretary of State to cancel the registration of the marks in question. The trial court reserved for trial the issue of whether the marks had acquired a secondary meaning which would support a common-law action for unfair competition.
Despite this partial victory, Rhoney argues the trial court erred in not granting summary judgment on his counterclaim for fraud. We disagree.
It appears to us that the undisputed facts do not support a conclusion that Gragg fraudulently secured registration of her marks.
The existence of fraud is normally a question of fact and, thus, not appropriate for summary judgment. See generally Waxse v. Reserve Life Ins. Co., 248 Kan. 582, Syl. ¶ 1, 809 P.2d 533 (1991). “Actionable fraud includes an untrue statement of fact, known to be untrue by the party making it, made with the intent to deceive or recklessly made with disregard for the truth, where another party justifiably relies on the statement and acts to his injury and damage.” Nordstrom v. Miller, 227 Kan. 59, 65, 605 P.2d 545 (1980). Fraud is never presumed and must be shown by a preponderance of evidence of a clear, convincing, and satisfactory nature. Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. 70, 78, 596 P.2d 816 (1979); Fox v. Wilson, 211 Kan. 563, Syl. ¶ 2, 507 P.2d 252 (1973).
The rule that the existence of fraud is generally not appropriate for summary judgment applies in the instant matter. We agree with the trial court that this issue was not ripe for summary judgment. Since the fraud issue was later tried to the court, any extended discussion of whether summary judgment was appropriate is not indicated. We have reviewed the record as it existed when the motion for summary judgment was cited, and we hold that the trial court did not err in denying summary judgment on this issue. We will later analyze the trial court’s decision on the merits.
REGISTRATION OF TRADEMARKS
At this stage, we do not consider this to be a “trademark” case in the sense of Harp v. Appliance Mart, Inc. It is basically an action which involves the question of whether fraud and/or bad faith was proven. However, given the framework in which the issues arise, we must examine the statutory enactments concerning the registration of trademarks in reaching our decision.
Rhoney alleges that Gragg was guilty of fraud in seeking and securing the registration of the marks “Topeka Gun Show” and “Hutchinson Gun Show.” The allegations of fraud bring into play the provisions of two statutory enactments. K.S.A. 81-118(3)(d) provides in part that the Secretary of State shall cancel any mark which a court of competent jurisdiction has found was obtained by fraud. K.S.A. 81-120 reads as follows:
“Any person who shall . . . procure the filing or registration of any mark in the office of the secretary of state under the provisions hereof, by knowingly making any false or fraudulent representation or declaration, verbally or in writing, or by any other fraudulent means, shall be liable to patj all damages sustained in consequence of such filing or registration, to be recovered by or on behalf of the party injured thereby in any court of competent jurisdiction.” (Emphasis added.)
Although the trial court did order the marks canceled, its order was based on the fact that the marks were merely geographically descriptive in nature. This finding does not carry with it any statutory mandate for an award of damages. As a result, although the marks were canceled, Rhoney seeks a finding of fraudulent procurement of the registration in order to invoke the statutory sanctions of K.S.A. 81-120.
The claim of fraudulent procurement of registration is two-fold. First, Rhoney claims that Gragg fraudulently filed an application for registration which stated that the mark had been used in commerce when it had not. Second, he claims that Gragg falsely represented that the marks had been federally registered and copyrighted when they had not.
We deal here with an allegation of fraud. The burden of proof upon the party asserting the fraud is heavy. Fraud must be proven by a preponderance of evidence of a clear and convincing nature. The comments made earlier in this opinion with regard to the proof of fraud are equally applicable at this juncture and need not be repeated.
In view of this heavy burden of proof, the trial court, after hearing the evidence, made the following findings:
“6. The defendant failed to sustain the burden of proving that the plaintiff knowingly made a false or fraudulent representation or declaration in the course of procuring the registration of her service-marks, as provided by K.S.A. 81-120.
“7. The defendant has failed to sustain the burden of proving that he sustained damages in consequence of any false registration by plaintiff, as provided by K.S.A. 81-120.”
These findings are essentially negative findings and increase the burden on appeal:
“ ‘The effect of a negative finding by a trial court is that the party upon whom the burden of proof is cast did not sustain the requisite burden. Absent arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice the finding of the trial judge cannot be disturbed. An appellate court cannot nullify a trial judge’s disbelief of evidence nor can it determine the persuasiveness of evidence which the trial judge may have believed.’ [Citation omitted.]” Mohr v. State Bank of Stanley, 244 Kan. 555, 567-68, 770 P.2d 466 (1989).
The registration of service marks in this state is provided for in chapter 81 of the Kansas Statutes Annotated.
K.S.A. 81-lll(b) and (c) provide as follows:
“(b) The term ‘service-mark’ means anything in the sale or advertising of services to identify the services of one person and distinguish them from the services of others and includes without limitation the marks, names, symbols, titles, designations, slogans, character names, and distinctive features of radio or other advertising used in commerce.
“(c) The term ‘mark’ includes any trademark or service-mark, whether or not registered, filed or recorded under any law of this state, or of any other state, or of the United States of America.”
K.S.A. 81-113(a) provides in relevant part: “Subject to the limitations set forth in this act, any person who adopts and uses a mark in this state may file in the office of the secretary of state, on a form to be furnished by the secretary of state, an application for registration of such mark.”
K.S.A. 81-113(a)(3) goes on to provide that the application for registration must set out “the date when the mark was first used anywhere and the date when it was first used in this state by the applicant.” K.S.A. 81-lll(i) defines when a mark is “used” in the sale of services: “For the purposes of this act, a service-mark shall be deemed to be ‘used’ in this state when it is used or displayed in the sale or advertising of services and the services are rendered in this state.” (Emphasis added.)
There are no Kansas decisions interpreting these statutes or construing when a mark may be deemed “used.” The precise definition of the term has not been stated.
The question of when a mark is first “used” requires that we interpret the relevant statutes. This is a question of law, and our scope of review is unlimited. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992); Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988). governs if that intent can be ascertained/ ” City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). “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).
“ ‘It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature
Under the statutory scheme, the act applies to the sale of “goods” or “services.” K.S.A. 81-111(h) deals with when a mark is “used” in connection with the sale of “goods.” K.S.A. 81-111(i) defines that term as applied to the sale of services. K.S.A. 81-119 classifies and defines “goods” and “services” as they are used in the act.
In this action, the service marks in question pertain to a gun show to be held in Hutchinson. These shows were packaged to various dealers and sellers as vehicles through which they could show and sell their goods. The role of Gragg was not to sell goods but to provide advertising, space, and the appropriate location for dealers and sellers. We conclude that Gragg was advertising and selling “services” through the use of the marks in question. The sale of “goods” was not the aim of Gragg; the sale of her promoted gun show and its resulting services to dealers and sellers was.
K.S.A. 81-lll(i) is clear and unambiguous. The use of a mark in advertising alone is not a “use” of that mark within the meaning of the statute. In order to be “used” under our statutory scheme, the mark must be used or displayed in advertising of the services and also must be used in connection with the rendering of those services.
In this instance, Gragg’s application for registration indicated the mark was first used prior to January 15, 1990. The record indicates that it was probably used in advertising prior to or on that date. However, Gragg’s gun show was not held, nor were the services rendered in this state, until April 1990. Gragg’s statement that the mark was “used” on January 15, 1990, was incorrect. We hasten to add that this does not necessarily mean that the statement was fraudulent.
Gragg argues that the mark was “used” when first published for advertising. This argument would render meaningless the stat utory requirement that services must not only be advertised but must be rendered in this state before a service mark has been “used” under the statute. There is a presumption that the legislature understands the meaning of the words it uses and that it does not intend to enact meaningless legislation. Bank of Kansas v. Davison, 253 Kan. 780, 788, 861 P.2d 806 (1993); Todd v. Kelly, 251 Kan. at 515. We hold that Gragg’s service marks had not been “used” within the meaning of the statute at the time the application for registration was filed.
The second claim of fraud by Rhoney deals with certain marks used on the application. Copies of several advertisements were attached to Gragg’s application for registration. The flyer on the Hutchinson Gun Show advertises the mark and contains the symbol © immediately under the word “Hutchinson.” This would indicate to an observer of the advertisement that the mark had been copyrighted. The flyer announcing the Topeka Gun Show contains the symbol ®. This would indicate that the mark had been federally registered. The record does indicate that Gragg submitted copies of flyers which indicated she had obtained a federal copyright and a federal trademark. The fact is, the marks had neither been copyrighted nor federally registered.
Gragg does not deny that the flyers attached to the application contained the insignias. However, Gragg testified that she did not purposely put the marks on the flyers with the intent to deceive or mislead the Secretary of State. Gragg testified at trial that she did not put the symbols © and ® on the flyers and it was her belief that the advertising agency that prepared the flyers inserted them on the advertisements. Rhoney did not present evidence to contradict this testimony of Gragg.
Rhoney cites various pages of Gragg’s deposition to support his motion for summary judgment, but those depositions are not part of the record on appeal. It is Rhoney’s burden to designate a record sufficient to support his claims on appeal. See Eisenhut v. Steadman, 13 Kan. App. 2d 220, 223, 767 P.2d 293 (1989). There is no evidence in this record to support Rhoney’s allegation that Gragg knew the symbols were on the flyer or that she intended to defraud or mislead the Secretary of State’s office by the use of the symbols in question.
When the dust settles, we have a situation in which an appli-' cation for registration was filed which contains an incorrect statement on the date the service mark was first “used” and apparently implies that the marks were federally registered and copyrighted. These statements were .not accurate and may have misled the office of the Secretary of State.
The question we must resolve is whether the trial court erred in concluding that despite these incorrect statements in the application, Rhoney did not prove that Gragg was guilty of fraud or that he was damaged by her fraud. These findings were negative findings, and we have earlier outlined our scope of review of such findings. In view of our limited scope of review on these findings, we must affirm the decision of the trial court.
We have defined, in this opinion, when a mark is first “used” in this state. Gragg stated in her application that her marks had first been used prior to January 15, 1990. This statement was an incorrect interpretation of the Kansas statutory definition. However, there is a vast difference between an incorrect interpretation of the law and a knowingly false and fraudulent statement of fact. As we indicated earlier, in order to be fraudulent, an untrue statement of fact must be known to have been untrue by the party making it and must have been made with the intent to deceive or recklessly made with disregard for the truth. The state of this record does not mandate a finding that Gragg was guilty of fraudulent conduct. The trial court apparently concluded that Gragg’s statements of fact regarding “use” in the application were based on a good faith but incorrect interpretation of the law. Our interpretation of the statute is a matter of first impression in this state. Under the circumstances, the statements by Gragg in her application are difficult to brand as fraudulent. The issue of whether these statements were fraudulent or merely incorrect was a purely subjective question concerning Gragg’s state of mind and intent. Those were questions for the trial court to determine. The trial court had an opportunity to observe the demeanor of the witnesses and is in a much better position to determine a subjective issue of this nature than is this court on appeal. The trial court was not convinced by Rhoney’s evidence that Gragg was guilty of fraudulent conduct. We are not in a position to substitute our judgment for that of the trial court.
As to the apparent representation that the marks were federally registered and copyrighted, we make much the same conclusion. There is no question but that the application did contain an indication that the marks had been federally registered and copyrighted. However, there is no evidence that these symbols were used with an intent to deceive. Gragg testified that she did not put these symbols on the flyers and that she was not attempting to deceive the Secretary of State. This evidence is not seriously contradicted and, if believed by the trial court, fully supports its finding that there was no fraudulent conduct.
Rhoney cites testimony from the Deputy Secretary of State to support his argument that the registration of the marks would not have been granted but for Gragg’s fraud. We do not read the testimony of Sherman Parks, Jr., in the same light as does Rhoney. There is nothing in his testimony to indicate that the Secretary of State’s office relied on the existence of a federal copyright or a federal registration. As we have pointed out earlier, a justifiable reliance on a fraudulent statement is necessary to sustain the burden of proof of fraud.
Rhoney argues that the trial court erred by not finding that he was damaged by Gragg’s fraud. This argument is dependent upon a finding that Gragg committed fraud. Since we have concluded that the trial court did not err in concluding that Rhoney did not sustain his burden of proof on the issue of fraud, the question of damages is largely irrelevant.
In the final analysis, the trial court concluded that Rhoney had not sustained his burden of proof on either the issue of fraud or the issue of damages. Rhoney does not claim that the trial court’s decision is the result of bias, passion, or prejudice or that the trial court arbitrarily ignored undisputed evidence. Rhoney merely argues that the trial court was incorrect. As we have pointed out earlier, our standard of review of the court’s negative finding is such that it requires us to affirm the trial court.
FRIVOLOUS ACTION
Rhoney argues that Gragg maintained this action in bad faith and that it was frivolous. As a result, he asked the trial court to award him costs and attorney fees pursuant to K.S.A. 60-2007(b). Rhoney argues that the trial court’s failure to do so is reversible error.
Our Supreme Court in the recent decision of Giblin v. Giblin, 253 Kan. 240, Syl. ¶¶ 1, 6, 854 P.2d 816 (1993), determined the law applicable to this issue:
"Two separate requirements must be met before attorneys fees and expenses can be assessed pursuant to K.S.A. 60-2007(b): (1) The claim asserted was without reasonable basis in fact; and (2) the claim was not asserted in good faith.”
“The party who asserts a pleading has no basis in fact and is not asserted in good faith has the burden of proving that assertion."
In this action, the trial court made the following finding: “5. The Court is not persuaded that the plaintiff lacked good faith in filing and maintaining the instant action, as provided by K.S.A. 60-2007.”
This is a negative finding, and as we have previously stated, we will not overturn such a finding absent a showing of arbitrary disregard of undisputed evidence or proof of bias, passion, or prejudice. In addition, the ultimate decision on whether to award costs and attorney fees pursuant to K.S.A. 60-2007 is left to the sound discretion of the trial court. Jarvis v. Drake, 250 Kan. 645, 653, 830 P.2d 23 (1992).
We find nothing in the record which indicates that the action was not filed and maintained in good faith. We note first of all that one of the causes of action asserted by the plaintiff was a common-law cause of action for unfair competition. Our examination of the record indicates Gragg presented testimony supportive of this claim. The mere fact that the trial court concluded Gragg’s marks had not acquired a secondary meaning does not mean that the action was maintained in bad faith.
We have earlier pointed out that this decision is a decision of first impression insofar as use of a service mark is concerned. We are not prepared to hold an action based upon one possible interpretation of the statute is frivolous when that interpretation remains an open question.
Rhoney had the burden of proof on this claim, and the trial court concluded that he did not sustain that burden of proof. We find nothing in the record which compels us to reverse that negative finding.
Even if we were to conclude that the trial court erred in failing to find the action was frivolous or maintained in bad faith, it would not end the matter. As wé pointed out earlier, the decision of whether to assess costs and attorney fees is vested in the sound discretion of the trial court. “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). We are unable to conclude on this record that no reasonable person would find that Gragg did not have a good faith belief that her mark was legally registered. We find no abuse of discretion by the trial court in denying costs and attorney fees under 60-2007.
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Green, J.:
Mida S. McMullen appeals her convictions on three counts of aggravated criminal sodomy, two counts of indecent liberties with a child, and two counts of aggravated incest. She contends (1) the trial court erred in failing to dismiss certain charges; (2) the trial court abused its discretion in denying her motion for mistrial; (3) the evidence was insufficient to convict her of certain charges; and (4) the trial court abused its discretion in denying her motion for new trial. We disagree and affirm the judgment of the trial court.
In the fall of 1992, McMullen’s three children, N.M., C.M., and A.M., were removed from the home by the Department of Social and Rehabilitation Services (SRS) based on allegations that McMullen had neglected them. Shortly thereafter, the children stated that McMullen and others had sexually abused them. As a result, the State charged McMullen with three counts of aiding and abetting aggravated sodomy, two counts of aiding and abetting indecent liberties with a child, and two counts of aggravated incest. The State alleged that N.M. was the victim in ¿1 seven counts.
At trial, N.M. testified that he was first sexually abused at age seven by a man named Mike, who was a friend of his mother. N.M. also testified that the summer before his fifth grade he overheard his mother tell Bobby Yoder, “you can do whatever you want with [N.M.].” N.M. further testified that Yoder came into his basement bedroom that same evening and forcefully removed N.M.’s clothes and touched his penis. N.M. testified that Yoder inserted his penis into N.M.’s anus as well as into his mouth. N.M. further testified that Yoder came into his bedroom on several different occasions and sexually assaulted him in the same manner each time. N.M. also testified about several incidents where his mother forcefully removed his clothes and either touched his penis or forced him to touch her private parts.
A.M. testified that the summer before her third grade, she saw Yoder put his penis into N.M.’s anus. In addition, several mental health professionals testified that both A.M. and N.M. had behavior and emotional problems typical of those of children who had suffered a severe trauma, such as sexual abuse. Although McMullen denied the charges, the jury convicted her of three counts of aiding and abetting aggravated sodomy, two counts of aiding and abetting indecent liberties, and two counts of aggravated incest.
Citing State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992), McMullen argues the trial court erred in not dismissing the charges of aggravated sodomy and indecent liberties with a child because the victim is her son. Although she was charged with and convicted of aiding and abetting another person in committing these crimes, she contends that the convictions should have been either dismissed or amended to aggravated incest.
In Williams, our Supreme Court stated that when “a defendant is related to the victim as set forth in K.S.A. 21-3603 (1), the State may charge the defendant with aggravated incest for engaging in the acts prohibited therein but not with indecent liberties with a child.” 250 Kan. at 737. A similar limitation would also apply to aggravated criminal sodomy. See K.S.A. 21-3506 and K.S.A. 21-3602. Conversely, K.S.A. 1994 Supp. 21-3205(1) states that a person is “criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.”
Consequently, the issue is whether a person can be convicted as an aider or abettor of a crime that he or she may not be convicted of as a principal. As this issue involves a question of law, this court’s standard of review is unlimited. State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993).
McMullen argues that when a person falls within the class of persons designated under the incest statute, such as the child’s mother, the State must charge the person with incest rather than with indecent liberties with a child. She further argues that because she is N.M.’s mother, the State may charge her only with aggravated incest or aiding or abetting aggravated incest. Consequently, she argues that she may not be convicted of aiding or abetting aggravated sodomy or indecent liberties with a child. This argument is flawed.
McMullen correctly observes that a person who intentionally aids or abets another in the commission of a crime may be charged as a principal for that crime. See K.S.A. 1994 Supp. 21-3205; State v. Smolin, 221 Kan. 149, 152, 557 P.2d 1241 (1976), and cases cited therein. Alternatively, a person charged as a principal to a crime may be convicted of that crime even if the evidence adduced at trial shows that the person was only an accessory. State v. Curtis, 217 Kan. 717, 723, 538 P.2d 1383 (1975). But it does not necessarily follow that because McMullen is N.M.’s mother, this prevents the State from charging her as an aider or abettor of aggravated sodomy and of indecent liberties with a child. For example, persons can be found guilty of aiding or abetting perjury even though they did not swear upon any oath. See State v. Craig, 215 Kan. 381, 385-86, 524 P.2d 679 (1974).
Finally, in State v, Elliott, 61 Kan. 518, 59 P. 1047 (1900), our Supreme Court affirmed defendant’s conviction for the fraudulent destruction of mortgaged property, although it was legally impossible for him to commit the offense himself. The statute specifically prohibited any mortgagor of property from taking action with the intent to defraud the mortgagee. Although the defendant was not the mortgagor of the property, our Supreme Court stated that the defendant could still be found guilty as an accessory.
Consequently, a person may be convicted of aiding or abetting the commission of a crime even though the person may not be convicted as a principal of that crime. See Craig, 215 Kan. at 386 and Elliott, 61 Kan. at 523. Accordingly, McMullen may be convicted as an aider or abettor of aggravated sodomy or indecent liberties with a child.
McMullen next argues the trial court erred in failing to declare a mistrial after the prosecutor asked her about her previous felony theft conviction. She contends evidence of her previous conviction is inadmissible under to K.S.A. 60-421, and its erroneous admission cannot be deemed harmless.
K.S.A. 22-3423(l)(c) permits a trial court to order a mistrial at any time because prejudicial conduct, in or outside, the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution. In discussing the appropriate standard of review for this issue, our Supreme Court stated:
“The decision whether to grant a mistrial rests within the sound discretion of the trial court and drat decision will not be set aside on appeal unless an abuse of discretion is clearly shown. Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. In showing that a trial court abused its discretion in failing to grant a mistrial, a defendant has the burden of proving he was substantially prejudiced by the trial court’s decision.” State v. Hammon, 245 Kan. 450, 455-56, 781 P.2d 1063 (1989).
In denying her motion for mistrial, the trial court found the State’s question was improper, but the error did not warrant a mistrial. Moreover, at defense counsel’s request, the trial court not only admonished the jury to disregard the State’s question and McMullen’s answer about her criminal history, but also told the jury not to consider her answer in its deliberation.
In Kansas, our appellate courts have “adopted the general rule that an admonition to the jury normally cures the prejudice from an improper admission of evidence.” State v. Chandler, 252 Kan. 797, 801, 850 P.2d 803 (1993). It is only in the extreme case where the damaging effects of an improper admission of evidence cannot be removed by an admonition, should the trial court declare a mistrial. 252 Kan. 801. See State v. Lewis, 238 Kan. 94, 98, 708 P.2d 196 (1985) (mistrial was declared when the prosecutor failed to disclose the changed testimony of an expert witness, which seriously undermined defendant’s defense).
McMullen argues this question was improper and had a prejudicial effect because it effectively smeared her credibility. She contends her credibility was important because the jury had to determine who to believe, her or N.M. The case relied upon by McMullen, State v. Macomber, 241 Kan. 154, 734 P.2d 1148 (1987), does not support her argument of prejudice. In Macomber, our Supreme Court reversed a defendant’s conviction because the trial court had erred in admitting evidence of his previous criminal convictions over his objections. 241 Kan. at 158.
Here, unlike Macomber, the trial court acknowledged the evidence of her criminal history was improperly admitted, but removed any possibility of its prejudicial effect by admonishing the jury to disregard the question and answer. Accordingly, because McMullen has failed to show any prejudice from the improper admission of her previous conviction, the trial court did not abuse its discretion in denying her motion for a mistrial.
McMullen next argues the evidence was insufficient to prove the aggravated incest and the indecent liberties counts. She ties this argument to a claim that the charges were multiplicitous. She contends that because N.M. testified that he was sexually abused by her in the living room, such evidence was insufficient to support two separate convictions of aggravated incest. She also argues that because N.M. testified the lewd touching by Yoder occurred at the same times and places he was sodomized by Yoder, the evidence was insufficient to show the two indecent liberties counts were separate and distinct incidents from the aggravated criminal sodomy counts. These various points will be considered together.
The standard of review when the sufficiency of the evidence is challenged is whether, after review of all the evidence viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Bailey, 251 Kan. 156, 163, 834 P.2d 342 (1992).
In State v. Walker, 252 Kan. 117, 139, 843 P.2d 203 (1992), our Supreme Court explained when multiplicity exists:
“ ‘Multiplicity exists when the State uses a single wrongful act as the basis for multiple charges. . . . Charges are . . . not multiplicitous when the offenses occur at different times and in different places.
“ ‘A test for determining whether a continuous transaction results in the commission of but a single offense is whether separate and distinct prohibited acts, made punishable by law, have been committed. A single motive for a series of acts does not necessarily result in a single crime.
“ ‘Multiplicity does not exist if an act of violence is intermittent or separate and wholly unrelated to the other acts of violence.’ ”
As to the two counts of aggravated incest, N.M. testified about two separate incidents between his mother and him. In the first incident, N.M. was lying on the sofa in the living room watching television when McMullen came in and sat on his legs. After removing her blouse and exposing her breasts, McMullen forcefully removed his clothes. McMullen then forced him to suck her breasts (Count VIII). When asked “did [McMullen] touch you in any way,” N.M. replied, “Uh-huh ... my penis” (Count VII).
In addition, N.M. described another incident where McMullen called him into her bedroom. Upon entering the room, he saw McMullen, another woman, A.M., and C.M. lying on the bed. Once in the bedroom, McMullen and the other woman grabbed N.M. and forcefully removed his clothes. N.M. then testified that McMullen touched his penis with her mouth and with her hands. Consequently, a rational factfinder could have found beyond a reasonable doubt that McMullen had committed aggravated incest against N.M. on at least two separate occasions.
McMullen next argues the indecent liberties counts were multiplicitous with the aggravated sodomy counts. But these charges are not multiplicitous because they are separate and distinct from each other and do not require the same proof.
N.M. testified that after he overheard McMullen tell Yoder, “[Y]ou can do whatever you want with him,” Yoder came into his bedroom and ripped off N.M.’s clothes and “started touching [his] penis.” When asked what Yoder did after touching his penis, N.M. replied, “[H]e put his penis into my butt” (Count I). Further, when asked, “[D]id [Yoder] do anything else with his penis . '. . that night?” N.M. replied, “[H]e forced me to put it in my mouth” (Count II). Consequently, a rational factfinder could conclude that Yoder committed two separate and distinct acts of aggravated sodomy: anal and oral.
In addition, N.M. testified about another incident when he was pulled into McMullen’s bedroom. McMullen watched Yoder sodomize N.M. by inserting his penis into N.M.’s anus (Count III), fondle N.M.’s penis (Count IV), and place N.M.’s penis in Yoder’s mouth (Count V). Consequently, a rational factfinder could believe that Yoder committed his third act of aggravated sodomy. In addition, a rational factfinder could believe that Yoder also lewdly fondled N.M.’s penis and lewdly placed N.M.’s penis in his mouth. Because the multiple acts of aggravated sodomy, aggravated incest, and indecent liberties with a child were separate and distinct and did not require the same proof, the counts were not multiplicitous. See State v. Zamora, 247 Kan. 684, 694, 803 P.2d 568 (1990).
McMullen finally argues the trial court erred in denying her motion for new trial based upon juror misconduct. She argues one juror, D.O., failed to disclose her disgust for homosexuals during voir dire and this denied her a fair trial.
In explaining the standard of review in a jury misconduct case, our court declared:
“ ‘Misconduct of jurors per se does not necessitate a new trial, but misconduct which results in prejudice to a litigant and impairs his right to a fair and impartial trial requires a new trial. [Citations omitted.] It is for the trial court to determine in the first instance whether misconduct on the part of the jury has resulted in prejudice to a litigant, and its judgment thereon will not be overturned unless abuse of discretion is manifest.’ ” State v. McGraw, 19 Kan. App. 2d 1001, 1013, 879 P.2d 1147 (1994).
Here, in denying the motion for new trial, the trial court stated:
“The defense has wholly failed to show that any member of the jury was guilty of any misconduct in this case. The statement of one of the jurors that she was disgusted when she found out Mr. Yoder was a homosexual took place more than one year prior to trial and does not make or prove any misconduct by such a juror at the time of trial. If you carefully review the questions and answers that were given on voir dire, you will not find any question or answer that this juror’s statement a year before would prove contradictive of. Furthermore, the defense has failed to show that even if this juror had feelings contrary to the homosexual lifestyle, such feelings prevented her from reaching a fair and impartial verdict.”
A review of the voir dire transcript shows that each potential juror was asked if they were friends of or had any problems with any of the potential witnesses, but D.O. did not disclose any problem. Moreover, defense counsel asked each potential juror if he or she had any prejudice towards homosexuals, and D.O. did not disclose any problem.
On appeal, McMullen alleges D.O.’s failure to disclose she knew Yoder and her personal disgust for homosexuals constitute juror misconduct, citing State v. Turley, 17 Kan. App. 2d 484, 487, 840 P.2d 529, rev. denied 252 Kan. 1094 (1992). In Turley, we held a juror’s failure to disclose he knew the defendant and one witness was arguably misconduct; however, the defendant failed to show that he was prejudiced by this misconduct.
Similarly, D.O.’s failure to disclose she knew Yoder and that she was disgusted with homosexuals could arguably be considered juror misconduct. But McMullen has offered no evidence, other than general allegations, that D.O.’s alleged misconduct prevented her from reaching a fair and impartial verdict in this case. Thus, the trial court did not abuse its discretion in finding McMullen had failed to show substantial prejudice to her rights and in denying her motion for new trial.
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Brazil, J.:
Kevin Crowder appeals his conviction, after a jury trial, of cocaine possession pursuant to K.S.A. 65-4127a, a class C felony. He argues that the trial court erred by failing to suppress evidence obtained during an illegal search and seizure of his person. We affirm.
While on a routine patrol in a high crime area in Wichita in the late evening hours, police officers Bret Giffin and Brent Me-lander pulled their marked car into a motel parking lot. Numerous arrests had been made there in the past, including an arrest involving drugs earlier that evening in Room 5.
The officers observed Crowder knock on the door to Room 6. Crowder spotted the police car, turned back to the door, and knocked again. Crowder then turned and walked toward the police car. Officer Giffin testified that Crowder approached the driver s side of the car, Giffin rolled down the window, and the two began talking. Officer Giffin asked Crowder what he was doing, and Crowder replied that he was looking for a friend named David. Officer Giffin asked Crowder for his name, and he replied that his name was also David. Officer Giffin testified that Crowder hesitated before answering each question.
Officer Giffin got out of the car and asked Crowder if he could pat him down for weapons. Crowder complied, and no weapons were found. Officer Giffin again asked Crowder for his name, and Crowder said it was Bryan Martin and that his date of birth was December 24, 1964. Officer Giffin went to the rear of the car to radio in the information for verification through police records.
While Officer Giffin and Crowder were talking, Officer Me-lander got out of the car and walked to Room 6 to check for drug paraphernalia that Crowder may have dropped on the ground. Finding none, he returned to the car where Officer Giffin and Crowder were talking. Officer Melander testified that as Crowder spoke, he noticed that Crowder sounded as if he had something in his mouth. Officer Melander testified that Crowder s left cheek was pushed out and that Crowder was trying not to open his mouth very wide when he spoke.
Officer Melander asked Crowder to open his mouth, and Crowder complied. Using his flashlight, Officer Melander saw a small plastic baggie approximately one-half inch long filled with small white rocks inside Crowder’s left cheek.
Crowder was charged with possession of cocaine pursuant to K.S.A. 65-4127a. His motion to suppress the cocaine as fruit of an illegal search was denied. At trial, the court adopted the ruling made at the hearing and overruled Crowder’s objection to introduction of the baggie of cocaine as fruit of an illegal search. Crowder was convicted after a jury trial and sentenced to 3 to 10 years. His motions for new trial and judgment of acquittal were denied.
The trial court’s denial of a motion to suppress evidence will be upheld on review if it is supported by substantial competent evidence. State v. Garcia, 250 Kan. 310, 318, 827 P.2d 727 (1992).
The trial court denied the motion to suppress at the hearing, holding:
“It would appear to me there is no real detention here; that this is contact that was initiated by the defendant and everything that took place was consensual up to the point that he had to be subdued. But, by that point the officer had already observed evidence that indicated to him that it was illegal drugs in possession of defendant; and he certainly was entitled to the actions that he committed at that point.”
There are three types of police-citizen encounters: arrests, investigatory stops, and voluntary encounters. Voluntary encounters are not considered seizures and are not covered by the Fourth Amendment. U. S. v. Ward, 961 F.2d 1526, 1529 (10th Cir. 1992). The trial court considered the contact between Crowder and the police officers a voluntary encounter and declined to apply Fourth Amendment analysis.
Crowder argues that his initial encounter with the police officers was not voluntary and must be judged by Fourth Amendment standards. He first relies on the testimony of Officer Giffin concerning whether Giffin or Crowder initiated the conversation. At the preliminary hearing, Officer Giffin testified that Crowder approached the driver’s side of the car and Officer Giffin rolled down the window and asked Crowder “what was up.” At the suppression hearing, Officer Giffin testified that Crowder initiated the conversation. At trial, Officer Giffin testified that he did not remember who spoke first, but that his police report stated that he rolled down the window and asked Crowder what he was doing.
These inconsistencies have little bearing on the voluntariness issue. In all three instances, Officer Giffin testified that Crowder walked directly up to the car. He testified that it was “apparent that [Crowder] wanted something or wanted to talk to me about something.” The officers remained in the car while speaking to Crowder. Officer Giffin testified that Crowder could have completely avoided walking past the car by following the sidewalk from the motel room to the street, but that since he chose to walk through the parking lot, he would have necessarily come close to the car. This type of contact does not constitute a seizure.
Crowder then contends that there is no evidence that he consented to the pat-down search. While a pat-down search clearly implicates a seizure, the Fourth Amendment right protecting individuals from unreasonable search and seizure may be waived by voluntary consent. State v. Miles, 206 Kan. 748, 751, 481 P.2d 1020, cert. denied 404 U.S. 956 (1971). To establish consent, it must be clear that the search was permitted or invited by the individual whose rights are in question without duress or coercion. “ ‘The question of whether consent has been given is a question of fact for the trial court to determine . . . subject to appellate review within the “clearly erroneous rule.” ’ ” 206 Kan. at 751.
Crowder relies on Officer Giffin s testimony that he “decided to step out and do a quick pat down for weapons” and that Crowder “complied with my orders to pat him down.” However, Crowder testified at trial that “[t]hey asked me to put my hands on top of the car. So I put my hands on top of the car and let them pat me down.” Officer Giffin testified at the suppression hearing and at trial that he asked Crowder if he could pat him down for weapons. At the suppression hearing, he specifically stated that Crowder agreed. The trial court’s conclusion that Crowder consented to the pat-down search is not clearly erroneous.
Finally, Crowder argues that he was involuntarily “seized” while Officer Giffin ran a records check on the new name and date of birth given to him by Crowder. The test for whether a seizure has occurred turns on whether a reasonable person under the totality of the circumstances would believe, based on the officer s conduct that he was free to go. Florida v. Bostick, 501 U.S. 429, 115 L. Ed. 2d 389, 400, 111 S. Ct. 2382 (1991).
Crowder contends that he did not believe he could end the contact with the officers because there were two of them, armed and in uniform, and neither informed him that he was free to leave. Crowder cites U.S. v. Ward, 961 F.2d at 1529, and U.S. v. Bloom, 975 F.2d 1447 (10th Cir. 1992), for the proposition that these factors establish the coerciveness of the encounter. While some of these factors are present in Ward and Bloom, the court in both cases relied heavily on the fact that the “seizures” took place in a private compartment on a railroad car and that the officers asked “ 'focused, potentially incriminating questions.’ ” 975 F.2d at 1454.
Neither of these factors is present here. While it is true that there were two officers with Crowder, the contact occurred in a public place and the officer’s request for Crowder’s name was neither coercive nor incriminating. See U. S. v. Locklin, 943 F.2d 838 (8th Cir. 1991).
There was no evidence that Officer Giffin ordered Crowder to remain standing by the car. Officers Giffin and Melander testified that Crowder was free to go at that point. Officer Giffin also stated that usual procedure dictated that persons subject to such a records check are always free to go but that the officers continue to watch them. Officer Melander testified that they were in the parking lot to check the motel, but at that point, “we didn’t have anything to talk with Mr. Crowder about.”
Crowder correctly argues that the officers’ unspoken belief that Crowder was free to go does not preclude the existence of a seizure. Likewise, an individual’s view of the situation colored by his or her fear of being caught engaging in criminal activity cannot be grafted onto an otherwise innocent encounter to convert it into a seizure. United States v. Brunson, 549 F.2d 348, 358 (5th Cir.), cert. denied 434 U.S. 842, reh. denied 434 U.S. 961 (1977).
Even if Crowder was unreasonably seized at this point, his consent to the search of his mouth operates to remove the taint of the illegal nature of the seizure if it was voluntarily given under the totality of the circumstances. State v. Henry, 14 Kan. App. 2d 416, 419-20, 792 P.2d 358, rev. denied 247 Kan. 706 (1990). This analysis requires consideration of the proximity in time of the Fourth Amendment violation and the consent, intervening circumstances, and particularly the “purpose and flagrancy” of the officers’ misconduct. U.S. v. Mendoza-Salgado, 964 F.2d 993, 1011 (10th Cir. 1992). Crowder argues that the consent was not voluntary.
The trial court stated in its decision on the motion to suppress that “everything that took place was consensual up to the point that [Crowder] had to be subdued.” If the trial court does not specifically apply the taint analysis to the consent, the appellate court may do so upon a sufficient record on appeal. 964 F.2d at 1011.
Officer Melander testified that he asked Crowder if he would open his mouth, and Crowder complied. Crowder himself testified at trial that “[Officer Melander] asked me to open my mouth, so I opened my mouth for him.” There is nothing in the record to suggest that Officer Melander used coercion or duress to obtain Crowder’s consent to search his mouth.
While very little time passed between the records check and Crowder’s consent to the search of his mouth, and neither officer informed Crowder that he was free to refuse consent to the search, the dispositive factor in this case is that Crowder initiated the contact with the police officers. There is no evidence of the officers’ flagrant disregard of Crowder’s Fourth Amendment rights or improper purpose behind their actions. Considering the totality of the circumstances, Crowder’s consent was voluntary.
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Prager, C.J.
Retired: Anthony John Trcka appeals his conviction of vehicular homicide, in violation of K.S.A. 21-3405, by the district judge sitting without a jury. The defendant maintains there was insufficient evidence for the judge to find that his driving was a material deviation from the standard of care which a reasonable person would observe under the same circumstances, which is required by the statute to prove vehicular homicide. He further maintains that the contributory negligence of the other driver was the proximate cause of the accident.
At the trial, there was substantial competent evidence pre- • sented to establish the following factual circumstances.
On September 3, 1992, Sheri Moore and Mike Buck, two employees of SEKAN Asphalt, were removing construction signs from the shoulder of a completed highway project just west of the intersection of Old Kansas City Road and K-68 Highway in Miami County. Moore drove a pickup truck while Buck removed the signs. Buck would ride on the tailgate of the pickup, and as Moore pulled up to a sign, he would get out of the pickup and throw a sandbag and the sign into the bed, after which they would continue approximately 500 feet to the next sign. Buck estimated that they attained a speed of between 20 and 30 miles per hour between the signs.
According to Buck, the crew was instructed to stay off the dirt shoulders of the road, as they had been recently graded and were soft. Instead, the crew was instructed to stop in the road and pick up the signs. He testified that the half-ton pickup Moore was driving had a large orange sign with black lettering mounted on the back reading “Pilot Car Follow Me.” The truck was also equipped with an amber flashing light mounted on top of the sign. Buck stated both the amber light and the hazard lights on the truck were on at the time of the accident.
Immediately west of Old Kansas City Road on K-68, there was a rectangular sign warning drivers of road construction. Another sign just west of the first sign warned drivers of road construction and a soft shoulder for the next 13 miles. Approximately one-twentieth of a mile from Old Kansas City Road on K-68, there was a 45 miles per hour speed limit sign.
Buck testified that he had just removed signs displaying the words “Construction Ahead” and “Be Prepared to Stop,” when he noticed a semitrailer truck coming down K-68 from the direction of Old Kansas City Road. The driver of the truck was appellant Anthony John Trcka.
At the time Buck first noticed the truck, Buck and Moore were about 500 feet from it. They then proceeded approximately 500 feet to the next sign, which read “Do Not Pass.” Buck noticed that the truck was still coming towards them and had not decelerated. At a distance of about 100 yards, he motioned for the truck to go around them. At this point, Moore had stopped the pickup at the sign and Buck continued frantically motioning to the truck to go around.
When the truck showed no signs of slowing, Buck banged on the side of the pickup to indicate that Moore should drive onward. He then leaped from the pickup bed. He stated the driver of the truck did not apply the brakes or attempt to swerve before hitting the pickup.
The impact of the collision sent both the truck and the pickup off the road and over an embankment. Both then caught fire and the pickup was engulfed in flames. Buck and Trcka attempted to pull. Moore out of the truck, but were unsuccessful.
Trcka later told Kansas Highway Patrol Trooper Charles Krape that he was unsure of his speed at the time of the accident. When Krape asked if it was 50, 55, or 60 miles per hour, Trcka told him he thought he was going 50-55 miles per hour. Trcka told Krape that he had been traveling west on K-68 Highway, looked off to the left, and then came upon the pickup truck.
Trcka was charged with vehicular homicide. At the trial, the State introduced a videotape reenactment to show that vehicles at the point of impact are continually visible to vehicles travelling from Old Kansas City Road westward. On his behalf, Trcka called Charles Kellogg, a Miami County resident. Kellogg testified that he had seen the SEKAN pickup truck earlier in the day and that he did not recall seeing the flashing amber light operating.
At the conclusion of the evidence, the court found Trcka guilty as charged.
Sufficiency of the Evidence to Prove Vehicular Homicide
K.S.A. 21-3405(1) provides:
“Vehicular homicide is the killing of a human being by the operation of an automobile, airplane, motor boat or other motor vehicle in a manner which creates an unreasonable risk of injuiy to the person or property of another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances.” (Emphasis added.)
Trcka argues the evidence was not sufficient to establish that his conduct constituted a material deviation from a reasonable standard of care. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, viewing all of the evidence in the light most favorable to the prose cution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Timley, 255 Kan. 286, Syl. ¶ 13, 875 P.2d 242 (1994).
In State v. Randol, 226 Kan. 347, 597 P.2d 672 (1979), the Supreme Court discussed in depth the meaning of the words “material deviation from the standard of care which a reasonable person would observe under the same circumstances” required for a conviction of vehicular homicide under 21-3405 and held that the statute requires conduct amounting to something more than ordinary or simple negligence yet something less than gross and wanton negligence. The court then upheld the constitutionality of the statute, which the defendant argued was unconstitutional as being vague and indefinite.
Justice Holmes discussed the meaning of the term “material deviation,” stating as follows:
“Material is a relative term which must be gauged by all the circumstances surrounding the transaction or event to which it refers. It imports a considerable amount in opposition to that which is inconsequential or small. It is serious as opposed to trivial or minimal. It is extraordinary as opposed to ordinary. It is major as opposed to minor. In short, when applied to the statute in question it is more tiran the everyday minimal departures from the ordinary standard of care required by our vehicle and traffic statutes and ordinances yet something less than die reckless disregard and complete indifference and unconcern which are inherent in the more serious offenses involving gross or wanton conduct. . . .
“Each case must be considered upon its own set of facts and circumstances and each judge and jury must determine whether tíre alleged conduct constitutes such a deviation from the norm as to fall within the proscribed conduct.” 226 Kan. at 354.
In considering the evidence in this case, the trial judge quoted in die record the language in the Randol opinion stated above. The judge then applied the law to the facts of the case, summarizing some of the evidence which led to his decision. He mentioned the emergency four-way flashing light signals on the pickup, the large orange sign visible from the rear reading “Pilot Car Follow Me” in bold black letters, the amber flashing light attached to the top of the sign which was visible from the rear, Buck seated on the tailgate signaling to Trcka as he approached with undiminished speed, the fact the truck never slowed its speed until the collision occurred, and the fact the pickup was stopped on the highway so signs could be picked up. The trial court also noted that when Trcka entered the construction area, he passed several signs warning drivers of the road construction, of the speed limit of 45 miles per hour, and to pass with care.
The evidence supports the conclusion that Trcka was travelling 50 to 55 miles per hour in a 45 miles per hour zone and that he did not see the clearly marked pickup until the impact, although the pickup was in full view from a distance of 1,320 feet, or one quarter of a mile.
We agree with the State that for a professional driver to be oblivious to his surroundings while propelling a semitrailer truck down a highway at 50 to 55 miles per hour is closer to reckless and wanton conduct than to simple negligence. Viewing all of the evidence in the light most favorable to the prosecution, we hold that a rational factfinder could have found that Trcka’s conduct constituted a “material deviation” from the standard of care which a reasonable person would observe under the same circumstances.
The Victim’s Alleged Negligence as an Intervening Cause
Trcka next maintains that the district court erred in not finding that Moore was guilty of contributory negligence which was the superseding cause of the accident rather than Trcka’s negligence. We hold this point to be without merit. Contributory negligence is not a defense to a prosecution for vehicular homicide. State v. Gordon, 219 Kan. 643, 653, 549 P.2d 886 (1976). However, it is a circumstance to be considered in order to determine whether Trcka’s conduct was the proximate cause of Moore’s death. See 219 Kan. at 653. Proximate cause is one of the elements which must be proved in order to convict a defendant of vehicular homicide. K.S.A. 21-3405(2).
Examining the evidence in the light most favorable to the State, a rational factfinder could have concluded beyond a reasonable doubt that Trcka’s conduct was the proximate cause of Moore’s death. Although Moore did make frequent stops in the middle of the highway, she did so in a marked construction zone, and the pickup had both a flashing light and its hazard lights in operation at the time of the accident, as well as a worker signaling in the back of the truck. Based on these circumstances, the district court did not err in rejecting Trcka’s contention that Moore’s conduct was the proximate cause of the accident and her death.
The judgment of the district court is affirmed. | [
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Lewis, J.:
Defendant is serving a series of sentences imposed in 1981, 1988, and 1993. His aggregated sentence is 5 to 18 years. The trial court concluded that defendant was not eligible for retroactive application of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 1994 Supp. 21-4701 et seq. This appeal is from that determination.
The record in this case shows the following felony convictions in defendant’s criminal history: (1) In 1978, defendant was convicted of attempted aggravated sodomy in case No. CR 77738, a conviction which under the KSGA would be a level 4 person felony. (2) In 1981, defendant was convicted of burglary in case No. 80CR1902 and sentenced to a term of 3 to 10 years. He was paroled from that sentence but convicted of other crimes while on parole, and his parole was revoked. (3) On Januaiy 21, 1988, defendant was convicted of attempted aggravated assault in case No. 87CR855. He was sentenced on February 18, 1988, to a term of one to three years. (4) On Januaiy 21, 1988, defendant was convicted of attempted aggravated assault and unlawful use of weapons in case No. 87CR926. On February 18, 1988, defendant was sentenced to a term of one to three years on each conviction. This sentence was ordered to run concurrent to the sentence imposed in 87CR855. (5) In 1993, defendant was convicted of felony theft in case No. 93CR468. In July 1993, he was sentenced to a term of one to five years. This sentence was ordered to run consecutive to the sentences imposed in 87CR855 and 87CR926. At the time this matter was heard, defendant was serving all of his sentences, except the one imposed in 1978.
This appeal involves the decision of the trial court in 87CR855 that defendant was not eligible for retroactive application of the KSGA.
On August 30, 1993, defendant filed a motion asking that his sentence in 87CR855 be given retroactive application under the KSGA. The trial court heard and denied this motion on March 24, 1994.
The Kansas Department of Corrections (DOC) issued a sentencing guidelines report on October 13, 1993, 44 days after defendant filed the motion to convert his sentence. In the guidelines report, the DOC determined that defendant was not eligible for retroactive application of the KSGA because his criminal history showed two prior person felonies.
JURISDICTION
The first issue we consider is one of jurisdiction. As pointed out above, defendant filed the motion to convert the sentence in 87CR855 44 days before the DOC filed its guidelines report.
The State argues that the trial court had no jurisdiction to consider the motion to convert filed 44 days prematurely. It follows that if the trial court had no jurisdiction, this court has no jurisdiction.
K.S.A. 1994 Supp. 21-4724(d)(l) clearly contemplates that the motion to convert a sentence under the KSGA be filed within 30 days after the DOC has issued its guidelines report:
“Within 30 days of the issuance of [the DOC guidelines] 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 the [KSGA] to be held in the jurisdiction where the original criminal case was filed. The secretary of corrections shall be provided written notice of any request for a hearing. If a request for a hearing is not filed within 30 days of the issuance of the report, the department shall convert the person’s sentence to one provided for under the sentencing guidelines and provide notification of that action to the person, the prosecution officer, and the court in the jurisdiction where the original criminal case was held.”
Although there is no specific statutory right to appeal the denial of a motion to convert a sentence under the KSGA, our Supreme Court has held that such appeals are implicitly authorized by K.S.A. 1994 Supp. 21-4724(b)(l). State v. Gonzales, 255 Kan. 243, Syl. ¶ 1, 874 P.2d 612 (1994). The State’s argument that there is no statutory right to appeal in this case is without merit.
The question raised on appeal is whether the premature filing of a motion to convert deprives the trial court of jurisdiction to decide that motion.
Although it is an intriguing question, we need not reach that issue. The appearance docket in this case bears the following notation from the date of November 12, 1993: “Judges notes: Knight-Lund. Def counsel moved for sentence conversion. Court took motion under advisement. Set for 2/11 at 9:30.” This note leads us to conclude that, at the veiy least, an oral motion to convert was made by defendant’s attorney on November 12, 1993. This date was 25 days after the DOC report was filed.
The record also shows that on January 31, 1994, the defendant filed a memorandum in support of motion for modification of sentence. This document reaffirms the written motion filed in August 1993 and was also filed after the DOC report.
We conclude that based on the record in this particular action, the procedural requirements of K.S.A. 27-4724(d)(l) were satisfied. It is true the written motion to convert sentence was prematurely filed. However, this motion was at least orally reaffirmed within 30 days of the filing of the DOC report and was reaffirmed in writing in January 1994 with the filing of the memorandum described above. We believe that this satisfies the procedural requirements and that the trial court did have jurisdiction to decide the motion.
THE MERITS
The trial court denied defendant’s motion to convert on the ground that his criminal history was category B. It did so by concluding that a previous decision on defendant’s criminal history in another case was res judicata.
The res judicata holding was based on a decision made in 93CR468. In that case, the trial court was computing what defendant’s sentence would be under the KSGA. During this hearing, the trial court found: “The defendant’s criminal history category is B because the defendant was convicted of attempted aggravated criminal sodomy (1978), burglary (1981), battery on a law enforcement officer (1983), and attempted aggravated assault, unlawful use of weapons and burglary (1987).” The court’s findings and decision in 93CR468 were never appealed. The decision was entered on November 15, 1993, and die time for appeal is long past; the decision is therefore binding on the parties to 93CR468.
The parties have not chosen to make an issue of res judicata on this appeal. It is not briefed by either party. For that reason, we do not reach that issue.
However, we conclude there are other independent grounds on which we may affirm the trial court’s decision. The record clearly shows that defendant’s criminal history includes two prior person felonies and that he is not entitled to conversion on that basis. The trial court was correct in denying the motion, and that is of more importance than its reasons.
Defendant appears to argue that under the KSGA, it is error to use convictions which a defendant is actively serving in computing criminal history. Defendant is apparently actively serving sentences entered in 1980,1988, and 1993, and appears to suggest that none of those sentences can be used in compiling his criminal history. We disagree. There is nothing in the KSGA which prohibits use of an active conviction in compiling a defendant’s criminal history. The only requirement is that the conviction be a “prior” conviction within the meaning of the act.
“Prior convictions of the present crime, regardless of number, shall not be included in the criminal history score when they are elements or enhance the severity level of the present crime of conviction. All other previous convictions shall be included in the criminal history score.” (Emphasis added.) K.S.A. 1993 Supp. 21-4712. This statute was repealed by the legislature in 1994, but essentially the same language remains in K.S.A. 1994 Supp. 21-4710(d)(ll).
What constitutes a prior conviction was precisely defined in K.S.A. 1994 Supp. 21-4710(a), which reads in relevant part: “A prior conviction is any conviction which occurred prior to sentencing in the current case regardless of whether the offense that led to the prior conviction occurred before or after the current offense or the conviction in the current case.” (Emphasis added.)
We note that similar language can be found in the 1994 Kansas Sentencing Guidelines Desk Reference Manual, p. 14: “A prior conviction is any conviction which occurred prior to imposition of sentence in the current case regardless of whether the crime that was the subject of the prior conviction was committed before or after the commission of the current crime of conviction.”
The parties, in their briefs, have spent an inordinate amount of time debating the issue of whether criminal history is determined on the date of conviction or the date on which sentences are being considered for conversion. Our conclusion is that neither party has focused on the correct date.
The statute provides very clearly that a prior conviction is any conviction which occurs prior to sentencing in the current case. In the present context, this simply means that any of the defen dant’s convictions which occurred prior to February 18, 1988, are prior convictions for the purposes of criminal history compilation.
In this case, on the date defendant was sentenced in 87CR855, his criminal history included two prior person felonies: (1) attempted aggravated sodomy in CR 77738 and (2) attempted aggravated assault in 87CR926. Certified copies of the journal entries in these two cases are in the record on appeal, and the convictions appear on the face of the DOC guidelines report. They are both person felony convictions, and defendant does not contest that classification. Both of these convictions occurred prior to defendant’s sentence in 87CR855, and both are prior convictions for criminal history purposes.
Defendant questions only his conviction for burglary in 80CR1902. Since there are two uncontested person felonies in addition to the burglary, any question as to the burglary conviction becomes moot on the issue of whether defendant was entitled to retroactive application of the KSGA. The two uncontested person felonies make defendant ineligible for retroactive application of the KSGA. See K.S.A. 1994 Supp. 21-4709; K.S.A. 1994 Supp. 21-4724. The trial court was correct in denying defendant’s motion. We affirm that decision but do so on different grounds than those announced by the trial court.
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LEWIS, J.:
The defendant was charged with eight counts of theft. Theft is a class E felony and, upon conviction of theft, a defendant is subject to a minimum sentence of one year and a maximum sentence of two to five years. Defendant pled guilty to each of the eight counts of theft and was sentenced to eight concurrent terms of one to five years on each count. Defendant was placed on five- years’ probation and ordered to make restitution to the City of Leavenworth in the amount of $152,681.50.
In 1990, the terms of probation were modified, and defendant was ordered to make payments of $250 per month on the restitution ordered. In November 1993, the State filed a motion to revoke defendant’s probation. At that time, defendant still owed restitution of $137,700. The trial court did not revoke defendant’s probation but, on December 10, 1993, extended the term of probation for an additional five years. Defendant appeals from the order extending the term of his probation.
Defendant was originally placed on five years’ probation on December 12, 1988. Prior to the expiration of the original .five-year term, the period of probation was extended for an additional five years. The question on appeal is whether the trial court had the authority to extend the length of defendant’s probation.
At the time defendant’s probation was extended, he still owed substantial restitution, and probation was extended to ensure that restitution would continue to be paid.
This is a case of first impression in Kansas and requires that we interpret the applicable provisions of K.S.A. 21-4611. That statute was amended in 1992 and 1993, but those amendments do not apply, and we interpret the statute as it read prior to that time.
The version of the statute pertinent to this appeal reads in part as follows:
“(1) The period of suspension of sentence, probation or assignment to community corrections fixed by the court shall not exceed five years in felony cases or two years in misdemeanor cases, subject to renewal and extension for additional fixed periods not exceeding five years in felony cases, nor two years in misdemeanor cases. In no event shall the total period of probation, suspension of sentence or assignment to community corrections for a felony exceed the greatest maximum terin provided by law for the crime . . . .” (Emphasis added.)
The trial court, in extending defendant’s probation, said:
“[K.S.A. 21-J4611 provides probation can be extended, if necessary, for the greatest amount, term provided by law, and the greatest maximum term provided by law in this case would have been eight to forty, and I am going to extend Mr. Shaffer’s probation for another five years under the same terms and conditions, so we can get more restitution paid.”
It is obvious that defendant’s probation was extended to ensure that he would either pay back the money he owed to the City of Leavenworth or serve his prison term if he failed to do so. This, in our judgment, is an appropriate reason to extend probation. We must, however, determine if the trial court had the authority to extend defendant’s probation.
The decision is one of statutory interpretation and is a question of law. See State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). As a result, we are not bound by the decision of the trial court. See Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). It is a familiar requirement that “[w]hen 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).
As might be expected, the parties to this appeal hold radically different views as to what the statute provides. Defendant argues that the statute limits the term of probation to the maximum sentence actually imposed by the trial court. In this case, the maximum sentence imposed was five years, and under defendant’s interpretation, the overall period of probation could not exceed the maximum sentence imposed, or five years.
The State argues that the sentence imposed by the court is irrelevant to the overall question of how long probation may continue. It posits that probation may be extended to the maximum statutory term provided for the crimes charged. In this case, the maximum term for which defendant could have been sentenced for his eight convictions would have been eight consecutive terms of one to five years each, for a total effective sentence of 8 to 40 years. Thus, the total period of probation could extend to 40 years, and the extension imposed by the trial court is valid.
We agree with the State. The statute provides that the total period of probation for a felony shall not “exceed the greatest maximum term provided by law for the crime.” (Emphasis added.) There is no suggestion that the term to which a defendant is sentenced has any relevance whatsoever to the maximum period of probation. If the legislature had intended to limit the overall term of probation to the “maximum term for which defendant was sentenced,” it could have easily so stated. Defendant’s argument is without merit.
The statute seems to us to be plain and unambiguous. It describes the limitation of the total period of probation as the “maximum term provided by law for the crime.” It is the legislature which sets the “maximum term” for the crime by fixing the statutory sentencing range. The greatest maximum term provided by law for the crime is determined by examining the statute and finding the maximum sentence which may be imposed upon conviction of that particular crime. We hold that the “greatest maximum term provided by law for the crime” means the maximum term to which a defendant can be sentenced upon conviction for a particular crime or series of crimes. In this case, the maximum term for which defendant could be sentenced for the crime of theft was two to five years. Thus, the greatest maximum term for theft is five years. The term to which defendant was actually sentenced is basically irrelevant to the determination of the maximum period probation may be extended.
This is a case in which defendant was charged with multiple counts of theft. It is also a case in which defendant pled guilty to eight counts of theft and was sentenced on eight counts of theft. While we have identified the “greatest maximum term provided by law,” we have not resolved all of the issues on this appeal. In this case, each separate conviction for the crime of theft carried with it a maximum term of five years. What was the maximum term of probation? Was it the maximum term for one count of theft, or is it permissible to aggregate all eight counts and conclude that the maximum term is 40 years?
Defendant argues that the statute applies to the information as a whole. The crime charged was theft, and the maximum term for theft was five years. Defendant argues that five years is, therefore, the greatest overall period of probation which could be imposed.
The State argues that the “greatest maximum term” can only be determined by aggregating each count in the information. There were eight counts; each count carried a maximum term of five years, and, in the aggregate, the greatest maximum term was 40 years.
Each party has cited our decision in State v. Grimsley, 15 Kan. App. 2d 441, 808 P.2d 1387 (1991), to support its position. We conclude that Grimsley is not applicable. That case did not involve multiple counts. The defendant in Grimsley was convicted of one charge, which carried a maximum sentence of five years. The defendant also received a sentence of five years. In Grimsley, the maximum sentence imposed and the greatest maximum term provided by law were identical — five years. We held that under those facts, the period of probation could not exceed five years. Grimsley does not assist us in deciding the current issues presented.
There are decisions from other jurisdictions on the issue. We conclude that they are of little assistance. There are state and federal decisions which have held that under their particular statutes, the total period of probation on a multi-count indictment could not exceed five years. See United States v. Albano, 698 F.2d 144, 146 (2d Cir. 1983); State v. Oliver, 302 Md. 592, 597, 490 A.2d 242 (1985).
These decisions did not deal with statutes which are worded in the fashion of 21-4611. In addition, they appear to be based on considerations with which we disagree.
The Tenth Circuit Court of Appeals, in Fox v. United States, 354 F.2d 752, 754 (10th Cir. 1965), expressed concern that the aggregation of several counts in an indictment might result in a young person being placed on probation for life. The court, accordingly, construed the federal statute as not permitting probation to exceed five years. We do not share that concern, nor do we agree with the rationale of the Tenth Circuit. The length of probation in Kansas is a matter addressed, initially, to the discretion of the trial court. We have confidence in the trial courts of this state and trust that they would neither impose nor extend a period of probation without good cause to do so. If an individual has committed multiple crimes and wishes to avoid long-term in carceration, then perhaps a long term of probation is appropriate. We believe that under the system in place in Kansas, if a young person is placed on probation for the remainder of his or her life, that probation will have been richly earned. If it has not, it can be set aside as an abuse of discretion.
The language employed by 21-4611 limits the initial period of probation to not more than five years by providing “the period of . . . probation . . . fixed by the court shall not exceed five years in felony cases.” Thus, the initial period of probation is limited to five years regardless of the greatest maximum sentence. However, the statute goes on to provide that this initial five-year period of probation is “subject to renewal and extension for additional fixed periods not exceeding five years in felony cases.” This language obviously indicates that the five-year period of probation will and can be renewed by the court for an additional five-year period. Under the scheme set forth in 21-4611, a defendant must be brought back before the trial court every five years if his or her probation is to be extended. This provides for a periodic review and reevaluation of the situation and should ensure that probation will be extended only if the facts and circumstances warrant it. We leave to the trial court the discretion to determine whether the circumstances warrant an extension of the initial period of probation. We believe that our statutory formula will guard against excessively long and unfair terms of probation.
We hold that under the plain and unambiguous terms of K.S.A. 21-4611, the total period of probation is to be determined by adding the total maximum tenn provided by law for each of the several counts for which a defendant is convicted. The argument by defendant in this case that a multiple-count information cannot be aggregated in determining the longest period of probation would lead us to illogical and improbable results. For instance, if a defendant were sentenced to four consecutive terms of one to two years each, the maximum term of probation, under defendant’s argument, would be two years. The net effect of this construction is that such a defendant would likely not be released on probation because to do so would essentially nullify the con secutive sentences. This is neither a logical nor a desirable result. Our statute requires us to consider the maximum term provided by law for each count on which a defendant is convicted in order to determine the maximum period of probation. This allows a court to deal with multi-count offenders by keeping them on probation for a length of time which is consistent , with the crimes committed and which takes into consideration the maximum term provided by law for each conviction. The approach advocated by defendant would mean that an offender convicted of multiple counts of theft could not be treated differently than an offender convicted of only one count of theft. Such an approach is not consistent with our system of justice.
We hold as follows: (1) The greatest maximum term provided by law is the maximum length of time to which a defendant may be sentenced upon conviction of the crime in question. (2) When a defendant is convicted of multiple counts of crime, the maximum terms for each separate crime for which defendant is convicted are to be added together to determine the maximum period for which probation may be extended. (3) In any event, the initial period of probation for a felony cannot exceed five years. This term of probation may, upon proper notice and application, be extended by the trial court for additional periods of five years each up to the maximum term for which probation may be extended.
The trial court did not err in extending defendant’s probation for an additional five years.
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Per Curiam:
The court adheres to the conclusions reached ■on the former hearing (Murphy v. Edgar, 83 Kan. 627) and the judgment is therefore reaffirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This is the second appeal of this case to" this court. In the former decision (Collier v. Monger, 75 Kan. 550) a general statement of the facts and issues will be found. The action was therein remanded, for a new trial, which was had, and from the judgment, rendered this appeal is taken.
On the retrial the defendant offered evidence to establish the fact, and the jury found, that it was “the general custom in the Kansas' oil field, where a contractor agreed to drill a well in a good and workmanlike manner, that upon being furnished the casing, tubing and packer it was his duty to set such casing, tubing and packer so as to keep out the salt water from, gas-bearing sand.”
The court instructed the jury, in effect, that if they found that this was the recognized custom the custom, was to be read into the contract and was embraced in the following provision: “The said second party agrees, to do the drilling in good, workmanlike manner or no pay.” The evidence showed that the drilling was-finished and the well brought in October 12, 1904; that, 'the appellee made demand for his pay immediately, and, not being paid, he brought the action November 8, 1904; that the appellant did not furnish the casing until December 27, 1904, and the appellee immediately placed it in the well.
On these facts the court gave an instruction which reads:
“ (7) If you find and believe from the fair weight of' the evidence herein that plaintiff, Charles P. Collier, drilled a well on the lands as directed by defendant, and to a depth of 765 feet; and that such drilling was done in a good and workmanlike manner, as you may find that phrase to mean, from the evidence herein, and that at that depth a good flow or quantity of gas was. struck; that plaintiff finished- the drilling of such well on the 12th day of October, 1904, and you further find and believe from the evidence that it was the duty of defendant to furnish all casing, • packer, tubing and other material on the ground,' and that said defendant failed and refused to furnish the needed material and appliances within a reasonable time after plaintiff had •completed the drilling of the well, then you are instructed that defendant could not defeat plaintiff’s right to recover, by his own negligence, and your verdict should be for the plaintiff.”
It is contended that the court in giving this instruction enlarged the issues made, by the pleadings, which is technically, but not substantially, true. To sustain the appellant’s contention on this point would enable him to defeat the appellee’s cause of action by his own failure to comply with the custom which he relied upon as a defense. Both the statute and the custom require him to furnish the casing and material, and the instruction only holds him to the performance of that •duty within a reasonable time; and, in finding for the plaintiff, the jury necessarily found that he did not furnish the casing and material in a reasonable time. The custom was pleaded as a defense, and was proven to the satisfaction of the jury. It required the appellant to furnish the tubing and material antecedent to the' installing of the same by the appellee, and it could not avail the appellant as a defense unless it appeared that he had in due time performed the antecedent requirement.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The appellants are real-estate agents. Blake, who resides in the state of Washington, owned a farm in McPherson county, and wrote them on May 20, 1907, that he was thinking of selling it and asked for terms of sale and their opinion as to its value. They replied advising him to offer the farm for about $7000, and said their commission would be two and a half per cent. Blake afterward wrote them several letters, in one of which he stated that if they could sell the farm for $7250 cash, without any of that year’s, rent, they might do so, provided it was sold on or before July 8, and that he would pay two and a half per cent commission, or would pay $200 commission provided it sold for $7500. In this letter, which was the last one he wrote them, he stated that his wife would call at their office July 8 and would be authorized to transact any business in regard to the farm; that she would either sell or lease it. On July 8 Mrs. Blake arrived at their office and talked over the correspondence had with her husband, and told the appellants that if they succeeded in selling the farm she would pay $200 commission, but reserved the right to sell it herself. Between that time and July 20 she was in their office several times and talked with them about a sale. Meanwhile the appellants were in correspondence with G. W. Hull, of Yalley Falls, Kan., to whom they had written about the farm, telling him it was the cheapest farm in the county and for him to telegraph when he would come to look at it. On July 22 he wired that he would be there on the next day. On July 24 the appellants took him out to the farm and showed it to him, offering it at the price of $7500. He tried to buy for less, but they told him they were not authorized to sell for any less, that the owner lived in Washington and that they were agents of the owner. After they returned to town they sold him the farm for $7500 and he paid $500 cash to bind the bargain. ' Immediately afterward they telephoned Mrs. Blake at Inman, where she had informed them she would be, and asked her if she had found a buyer for the land. She replied that she had not, and asked if they had. Bremyer, who was talking for the firm, said they had not, but that he had some business at Inman and would call and see her the next day and talk to her about it. The next day they met at Inman and Bremyer told her that he had not made a sale, that it had been growing warmer and drier as summer advanced, that it would be hard to make a sale the way crops were looking, that the grass was drying up and it looked bad for the corn unless there was rain soon, but he added that “we sometimes have bought land and we have decided to take the farm ourselves if you will consent to take $7000 for it.” After some hesitation Mrs. Blake agreed to sell at that price; he gave her a check for $500 and a contract was signed to deliver the deed August 1. After the conveyance had been made the appellee discovered the fraud practiced upon him and brought this action to recover $500.
The foregoing is the substance of the evidence on the part of the appellee. The* appellants claimed in their answer that their agency terminated July 8 by the express terms of the letter from Blake, in which his offer authorizing them to sell was conditioned upon a sale being effected on or before July 8. They testified that after July 8 they considered they were no longer agents, and they offered evidence to prove that they made no contract to sell to Hull until after they had purchased the farm from Mrs. Blake. The jury .found generally for the appellee. The court rendered judgment in his favor, which the appellants seek to reverse.
The principal error alleged is that Hull was permitted to testify that Bremyer, one of the appellants, told him that they were agents of the appellee. His testimony was, “Why, they just simply said they were the agents of Doctor Blake to sell the farm for $7500, and that they had no authority to sell it for less.” It is argued, first, that the witness was permitted to testify to a conclusion because he did not give the conversation. The abstract shows that this testimony was received over the appellants’ objections, but what the objections were is not shown. We fail to see where the witness testified to a conclusion; he stated what the appellants said. The main contention" respecting the testimony is that it was an attempt to prove agency by the declarations of one who assumed to’ act in that capacity. The principle of which the appellants seek to avail themselves has no application here. The doctrine that agency can not be established by the declarations of one who assumes to act as agent is for the protection of the person whom it is sought to bind as principal. The doctrine is a part of the rule respecting hearsay evidence. As to the one who is sought to be charged as principal the declarations of the alleged agent are hearsay. If the evidence had been offered for the purpose of binding Blake as principal the doctrine would apply, but the evidence was offered for no such purpose. On the contrary, it was offered solely as an admission of the appellants. It is as competent to prove the admission by one that he is the agent of another, where that is the fact sought to be established against him, as it is to prove any other admission against his interest. The appellants were sued as agents; they denied agency; it was therefore competent as against themselves to prove that they had admitted that they were agents. (Fisher v. Krutz and Campbell, 9 Kan. 501; 31 Cyc. 1656.)
The supposed variance in the proof and the petition is easily explained by the fact that the appellee had kept no copies of his letters, and his attorneys, who resided at McPherson, had not seen the original correspondence at the time the petition was drawn. Moreover, there was evidence offered by the appellee which tended to show that after July 8 and up to the time of the sale the appellants in their several talks with Mrs. Blake undertook to sell the farm as agents. The last letter written by the appellee informed the appellants that Mrs. Blake would call at' the office and would have full authority to act in the matter. She came at the time stated with authority to bind her husband by any arrangements she made. After that what was said in the letters about the date when the sale should be made was of no importance. Therefore instruction No. 1 requested by the appellants was properly refused. We are not able to find error in the refusal of the other instructions asked. The court fairly instructed the jury on the issues, and, although complaint is made of the instructions given, the only exception was a general one to all the instructions, and this, under the old code, was of no avail unless the entire charge proceeded upon an erroneous theory. (Isnard v. Edgar, 81 Kan. 765; Bard v. Elston, 31 Kan. 274.) There was a conflict in the testimony upon the question whether the appellants agreed with Mrs. Blake to undertake the sale of the land as agents, but the jury determined this issue against the appellants. If they were agents to sell they could not without violating the trust reposed in them purchase the land in their own name and thus profit at the expense of their principal after having as agents procured a sale at a better price.
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The opinion of the court was delivered by
Burch, J.:
On August 12, 1903, O. L. Jones executed a chattel mortgage to the appellant covering certain thrashing machinery. The mortgage was given to secure the purchase price of the machinery and was recorded in Kingman county on December 5, 1903. On August 18, 1903, Jones executed and delivered to the appellee two promissory notes, for $300 each, due respectively October. 1, 1903, and October 1, 1904. In January, 1905, the appellee- brought suit upon these notes and attached some of the machinery referred to. Judgment was rendered in his favor, and the attached property was sold to him under regular proceedings for the enforcement of the attachment lien. Afterward the appellant, claiming under its chattel mortgage, brought an action of replevin for the property so sold, and, having been defeated, appeals.
Two principal questions of fact were involved: Was. Jones a resident of Kansas, and was the situs of the property, for the purpose of fixing the place where the chattel mortgage should have been recorded, in King-man county or in Reno county? Both questions were determined adversely to the appellant. The evidence bearing upon them has been examined here far enough to make it certain that the conclusions reached can not be disturbed without violating well-settled and well-known rules.
One principal question of law is presented. At the time the attachment suit was commenced the appellee knew of the existence of the chattel mortgage, and it is claimed that this knowledge validated the unrecorded mortgage as to him. The statute does not so read. It provides as follows:
“Every mortgage or conveyance intended to operate as a mortgage of personal property, which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage or a true copy thereof shall be forthwith deposited in the office of the register of deeds in the county where the property shall then be situated, or, if the mortgagor be a resident of this state, then of the county of which he shall at the time be a resident.” (Gen. Stat. 1868, ch. 68, § 9, Gen. Stat. 1909, § 5224.)
The language of this statute is'wholly free from ambiguity. As against a creditor who acquires a specific lien by the levy of an attachment or execution the chattel mortgagee must either take possession of the property or record his mortgage. Otherwise the mortgage is “absolutely void” as to such creditor.
It is argued that the purpose of requiring a chattel mortgage to be filed for record is to give notice of its existence and terms, and that actual knowledge is better than the constructive notice furnished by the record. The legislature appears to have considered this matter and to have made a discrimination in favor of creditors. A subsequent purchaser or mortgagee must acquire the property or lien “in good faith,” which includes want ■of notice. But no condition of that kind is attached to the right of creditors. Had any such limitation been intended the statute would have been framed accordingly.
In the case of National Bank v. Tufts, 53 Kan. 710, the court interpreted the language of the act relating to the recording of title notes, which differs materially from the language of the chattel-mortgage statute, and held that actual notice is as effectual as filing for record. In the opinion it was said:
“We have a similar statute concerning chattel mortgages. (Gen. Stat. 1889, § 3903.) This court has held in several cases that actual notice is as effectual as constructive notice by record against subsequent pur chasers, and that a creditor stands in no better position. (Cameron, Hull & Co. v. Marvin, 26 Kan. 612; Corbin v.. Kincaid, 33 Kan. 649; Neerman v. Caldwell, 50 Kan. 61.)” (p. 712.)
In none of the cases cited was it decided that creditors stand in no better position under the chattel-mortgage statute than subsequent purchasers, or than subsequent mortgagees.
In Cameron, Hull & Co. v. Marvin, 26 Kan. 612, chattel mortgages were not recorded at all, and possession was not immediately taken under them. The question was whether they were void as to creditors attaching after possession had been taken by the mortgagee. In Corbin v. Kincaid, 33 Kan. 649, property covered by a chattel mortgage was converted while the mortgage was on record and in full force.' The question was whether the mortgagee could replevin the property, after a year from the filing of the mortgage, without filing a renewal affidavit. In Neerman v. Caldwell, 50 Kan. 61, the contest was between two chattel mortgagees. In no other case decided by this court has it been authoritatively held that, under the chattel-mortgage statute, a creditor with notice stands upon the same footing as a subsequent purchaser or mortgagee with notice, and the concluding portion of the statement quoted from National Bank v. Tufts, 53 Kan. 710, 712, is erroneous.
It seems that the precise matter in controversy has not been determined in an action between an attaching or execution creditor with notice of an unrecorded mortgage and the mortgagee not in possession. The decisions generally, however, recognize no qualification of the right of a creditor to priority when the mortgage has not been filed or possession taken under it.
“If a creditor of the mortgagor of a chattel levies upon the property embraced in the mortgage, not accompanied by delivery and possession, before the mortgage is deposited in the office of the register of deeds in the manner prescribed by the statute, the attachment is a prior lien to the chattel mortgage.” (Ramsey v. Glenn, 33 Kan. 271, syl. ¶ 3.)
“Where a chattel mortgage is not deposited in the office of the register of deeds as prescribed by the statute until after a judgment creditor of the mortgagor levies upon the property described therein, and the mortgagee has no possession of the property mortgaged, the chattel mortgage is void as against the creditor obtaining a lien by his execution and levy.” (Jewell v. Simpson, 38 Kan. 362, syl. ¶ 1.)
“A chattel mortgage not deposited in the office of the register of deeds is absolutely void as against an attaching creditor of the mortgagor, where the mortgagee is not in actual possession of the property mortgaged at the time of the levy of the attaching creditor.” (Implement Co. v. Parlin & Orendorff Co., 51 Kan. 566, syl. ¶ 3.)
“A chattel mortgage becomes valid as against the creditors of the mortgagor only when the mortgagee takes the actual possession of the mortgaged property, or when the mortgage or a copy thereof is deposited with the register of deeds.
“A chattel mortgage deposited with the register of deeds remains valid as against creditors of the mortgagor for only one year, unless within thirty days prior to the termination of the year a renewal affidavit is filed with the register of deeds, or unless the mortgagee has taken the actual possession of the mortgaged property.” (Swiggett v. Dodson, 38 Kan. 702, syl. ¶¶ 2, 3.)
■ The case last cited is instructive. One of the questions was whether actual notice to a creditor would take the place of the renewal affidavit required by the statute then in force providing that a chattel mortgage duly filed was “void as against the creditors of the person making the same, or against subsequent purchasers -or mortgagees in good faith, after the expiration of one year after the filing thereof” (Gen. Stat. 1868, ch. 68, § 11; see Gen. Stat. 1909, § 5226), unless a renewal affidavit was filed. The opinion reads:
“But is not the mortgage void, even if all the parties, Including the defendants and the Barbee Brothers, and all their representatives, agents and attorneys, had notice of the existence of the mortgage, and of all the rights which the plaintiff claims to have had under it? Sections 9 and 11 of the act relating to mortgages provide among other things as follows: (Quoting them.) . . . Of course a subsequent purchaser or mortgagee can not, ‘in good faith,’ be such so as to defeat or avoid a prior chattel mortgage, unless he. becomes such without^ notice of the. existence of such mortgage, and hence a subsequent purchaser or mortgagee is bound by any knowledge which he may have concerning a prior chattel mortgage. (Ament v. Greer, 37 Kan. 648.) Whether this would also be true with respect to creditors who might become such with knowledge of the existence of a prior chattel mortgage it is unnecessary now to decide, yet the great weight of authority under statutes similar to ours would seem to be the other way. And certainly in all cases where the mortgagor is in the possession of the mortgaged property, and where the mortgagee has failed to file his mortgage or a renewal affidavit with the register of deeds, and where creditors have become such without any knowledge of the existence of a prior valid chattel mortgage, the authorities are almost, if not entirely, unanimous in declaring, under statutes similar to ours, that the mortgage is wholly and entirely void; and this although before such creditors have attempted to enforce their claims, or before they have attempted by execution or attachment levy to obtain any specific lien upon the mortgaged property, such creditors have received full and complete knowledge of the mortgage and of the mortgagor’s claims, and that the mortgage has not yet been satisfied or discharged. (Citing many authorities.) The foregoing authorities merely proclaim the doctrine that the statutes with reference to the subject now under consideration mean what they say. Our statute says that the mortgage ‘shall be absolutely void as_ against the creditors of the mortgagor,’ or ‘shall be void as against the creditors of the person making the same,’ unless the statute is complied with, and we think this statute means what it says.” (38 Kan. 711-713.)
This reasoning is sound, and has been accepted by the bench and bar of the state as conclusive to the extent to which it purports to go. The right of a creditor is not recognized until he acquires some specific claim upon the property. (Youngberg v. Walsh, 72 Kan. 220, and cases cited' at page 227.) Since it is then immaterial that he may have notice it is clearly immaterial that he had such notice when his debt was created.
An offer was made to show that after the attachment proceedings were instituted an attorney for the appellee wrote to the appellant that the attachment was subject to the mortgage and that the appellee himself subsequently agreed to release and return the attached property. There is not even a suggestion in the abstract that there was any kind of consideration for the so-called agreement, or that the appellee either did or omitted to do anything to his prejudice because of the matters referred to in the offer. Consequently prejudicial error in rejecting the offer is not made to appear.
Nothing else discussed in the briefs requires comment, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The Ellsworth Mill & Elevator Company sued the Union Pacific Railroad Company before a justice of the peace for $20. The defendant made no appearance. The plaintiff asked and obtained a jury, upon whose verdict a judgment was rendered against the defendant. The defendant tendered an appeal bond but the justice refused to act upon it, on the ground that the case was not appealable. The plaintiff attempted to enforce the judgment but the defendant procured a permanent injunction, against it. This appeal is brought to determine whether the judgment of the justice was rightfully enjoined. The statutes involved read:
“In all civil actions, after an appearance of the defendant and before the justice shall proceed to inquire into the merits of the cause, either party may demand a jury to try the action, which jury shall be composed of six good and lawful men, having the qualifications of jurors in the district court, unless the parties shall agree on a less number.” (Jus. Civ. Code, § 95.)
“An appeal may be taken from the final judgment of a justice of the peace in any case except ... in jury trials where neither party claims in his bill of particulars a sum exceeding twenty dollars.” (Jus. Civ. Code, § 132.)
The question is whether the clause, “after an appearance of the defendant” (§95), is a limitation on the right to demand a jury or a mere direction as to the order of procedure. In this connection it is important to observe that the section of the statute first quoted is that by which the right to a trial by jury in a justice court is conferred. The other sections on the subject merely relate to procedure. We think, since the right to a jury originates in the provision that either party may demand it “after an appearance of the defendant,” the fair inference is that unless the defendant does appear no jury is to be called.
Juries were not a part of the machinery of justices courts at the common law (Thomp. & Mer. Juries, § 10); nor originally (save in special proceedings) under the Ohio statute, from which our law is derived*. In 1840 an act was passed by the Ohio legislature the object of which, as expressed in its title, was “to allow juries before justices of the peace.” (38 Laws Ohio, p. 27.) A part of the first section read:
“In every civil action, hereafter to be brought before a justice of the peace, excepting such as are now tried by a jury, it shall be lawful for either of the parties thereto, or the agent of either of them, after an appearance by defendant, and before the court shall proceed to inquire into the merits of the cause, to demand of said court, that such action be tried by a jury; provided, that no such demand shall be made, unless the defendant shall dispute the plaintiff’s claim or the plaintiff shall dispute the defendant’s defense.”
This language showed clearly a purpose that no jury should be called unless the defendant not only appeared, but- made an actual contest. It was replaced in the course of a revision in 1853 by a section substantially' the same as that of our justices’ code, already quoted. (51 Laws Ohio, p. 195.) At page 101 of the eighteenth edition of Swan’s Treatise on the laws of Ohio, relating to justices of the peace, it is said, citing this section: “No jury can be demanded if the defendant does not appear.”
New Jersey has substantially the same statute, its exact language being:
“In every action it shall and may be lawful for either of the parties, after the defendant has appeared or put in his plea to such action, and before the said justice has proceeded to inquire into the merits of the cause, to demand a trial by jury, which the said justice is hereby required to grant.” (2 Gen. Stat. of N. J. p. 1871, § 33.)
Under this section it has been held that no venire for ■a jury should be awarded where the defendant does not appear. (Keen v. Scull, [N. J. 1809] Penning. 409; Wills v. M’Dole, 5 N. J. Law, 501.) In the case last cited it was said:
“The defendant did not at any time appear before the justice; but the plaintiff requested and the justice issued a venire, which was regularly served and the jury appeared on the day set for the trial. The issuing of this venire was certainly irregular, and had the cause been tried by it, would have been proper ground for reversal. But the justice seems to have been aware that he had committed a blunder, and as the defendant did not appear on the day of trial he conducted the cause as if no venire had been granted.” (p. 501.)
It is true that in justices courts there is no judgment by default, although certain allegations are taken as true unless denied under oath. The plaintiff therefore is required to prove his case, even where no resistance is made. If the right to a jury trial were inherent there would be good ground for the contention that notwithstanding the absence of the defendant the plaintiff should be allowed to submit his evidence to a jury rather than to the justice, although as a practical matter the character of the tribunal is not very important where no one is objecting to a judgment. But as the right to a jury originates in the statute authorizing either party to demand one after an appearance by the defendant, such an appearance must be deemed a prerequisite to the exercise of the right.
In the present instance the plaintiff in the action before the justice of the peace could not, by demanding a jury, to which it was not entitled, deprive the defendant of the right to appeal from the judgment. The tender of a sufficient bond perfected the appeal in legal contemplation, and vacated the judgment, the enforcement of which was therefore properly enjoined.
It may be suggested that if the plaintiff can obtain a jury trial only by demanding it after the defendant has appeared, and before the trial has begun, the defendant can deprive him of the right entirely by waiting until the trial has begun and then appearing and contesting the claim. Doubtless in such a case the plaintiff would have the right to have the trial begun anew, and to have a jury called if he should so desire.
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The opinion of the court was delivered by
Johnston, C. J.:
Rose Morrow brought this action against P. D. Bonebrake to recover the sum of $420, which she had paid to him as the purchase price of a diamond, and obtained a judgment, from which he appeals. It appears that Rose Morrow, the appellee, wished to purchase a diamond as a present for her husband, and with that purpose in mind she had looked at one for sale by Armel Brothers, who were competitors of appellant, but had not yet made up her mind to purchase it. Bonebrake, learning that appellee was in the market for a diamond, proceeded to show her those he had in stock, none of which suited her. She told him of the stone at Armel Brothers, and he agreed to procure and sell her one equal in quality and one-fourth carat heavier for the same money asked by Armel Brothers for their diamond, it weighing one and three-fourths carats and being a pure white stone, perfectly cut, without flaw, and priced at $400. This arrangement seemed desirable to appellee, and the stone was procured, and after being examined by her she purchased and paid for it. Subsequently, upon making a comparison with the Armel stone, she found that the diamond purchased from Bonebrake was inferior in quality, whereupon she immediately returned it and demanded a return of the purchase price, which was refused.
With a general verdict in favor of appellee the jury-returned answers to a number of special questions submitted at the instance of appellant, and he insists that his motion for judgment on the special findings should have been allowed. In her petition appellee alleged that appellant offered to procure and sell her a diamond which should in all respects be equal to and one carat heavier than the one that had been offered to her by Armel Brothers. It was alleged also that the diamond sold to her was of inferior cut, color and quality to that named as a standard; that she did not know the quality, cut and grade of diamonds by inspection, a fact which appellant knew, and that she purchased the stone relying upon his representations and agreement. In answer to a question framed by appellant the jury found that the diamond sold was perfectly cut, was free from flaws and weighed considerably more than the Armel stone. The jury were not asked to make special findings as to whether appellant represented and agreed that the diamond was to be equal in color and quality to the Armel diamond, and if so whether appellee bought it on the faith of such representations and agreement. Appellant contends that the findings which were made show that appellee did not rely on the representations of appellant or his guaranty that the diamond was as white as the Armel diamond. This claim is based on the findings to the effect that appellee examined and compared the diamond with the Armel stone before making the purchase; that this was done to determine whether or not she desired to purchase, and also that she would not have bought the diamond without making the examination. Other findings were to the effect that appellant had not seen the Armel diamond at the time he made the sale to appellee and that he had no personal knowledge of the quality of the diamond. It does not appear that appellee knew that appellant had no personal knowledge of the quality of the Armel diamond. Another finding, which appellee claims leads to the same result, was one stating that appellee, upon making the examination.of the diamond, declared that it appeared to be yellow.
Manifestly the special findings do not cover all the facts alleged and proven in the case. The general vérdict for appellee imports .a finding in her favor upon every material allegation in her petition and every issue in the case not inconsistent with the special findings. “When the special finding of facts is consistent [inconsistent] with the general verdict, the former controls the latter” (Civ. Code, § 294), but where a question of consistency arises nothing is presumed in aid of special findings, while every reasonable presumption is indulged in favor of the general verdict. The special finding that appellee inspected the diamond does not necessarily determine that she relied on her own inspection arid judgment. She stated, that she did not have the expert, knowledge necessary to determine the quality of diamonds and that she did rely on the representations and guaranty of appellant. Notwithstanding her own inspection she was at liberty to accept and rely on appellant’s representations, and if he induced her to buy the diamond the fact that she could “by a more thorough inspection and a searching inquiry have learned the falsity of the representations made by the seller” (Circle v. Potter, 83 Kan. 364, syl. ¶ 2) will not prevent a rescission and a recovery. (Speed v. Hollingsworth, 54 Kan 436.) She spent considerable time investigating the diamond,- but whether she finally acted on her own judgment or upon his representations was a question for the determination of the jury.
■ “Independent examination or investigation does not show conclusively that the party acted on his own knowledge or judgment, and not on a false representation made to him; and he is entitled to relief or redress if the circumstances and the nature of the subject matter were such that he could not learn the truth, or if it appears that without fault on his part he did not learn the truth, and that, notwithstanding his examination or investigation, he relied upon the representations as ia material inducement.” (14 A. & E. Encycl. óf L. 112.)
It might have been, as the jury found, that she would not have purchased the diamond without examining it and still be true that she would not have bought it without the representations and assurance of appellant. It is immaterial that other considerations contributed to induce her to buy the diamond if the representations of appellant were material inducements to the purchase and were relied on by the appellant. (14 A. & E. Encycl. of L. 112.) According to the testimony the diamond was not as represented. Color, it seems, is an important characteristic of a diamond, and it was not as white as he guaranteed it to be. The jury were unable to say that it was of less value than the Armel diamond, but they did say, upon testimony that must be deemed sufficient, that it was not of the color and quality represented and that she did rely on his representations. He was a jeweler and an expert, and she lacked the special skill to properly judge a diamond and informed him at the time that she would rely on his statements and assurance. When she expressed a desire to have the stone compared with the Armel diamond he stated that he did not want that done; that he would guarantee that it was equal to that one and that it was a perfectly white stone. The fact that he had not seen the Armel diamond and did not have personal knowledge of its quality and color when the representations were made does not relieve him from liability. If he made a positive, statement which he did not know to be true, intending to influence the purchaser and induce a sale, and the representations were relied on and a sale thereby effected, his action is fraudulent and he is as answerable to the purchaser as if he made the representations knowing them to be false. (Wickham v. Grant, 28 Kan. 517; Bullitt v. Farrar, 42 Minn. 8.) The general verdict finding in favor of appellee is deemed to include everything, not expressly negatived by the special findings, necessary to sustain the general findings; and, besides, the special findings plainly imply that the representations were made, were untrue, and were relied upon by appellee. While the appellant did not print any of the testimony in his abstract, that printed in the counter abstract shows that there was a sufficient basis for the elements and issues embraced in the general verdict and which are not covered or contradicted by the special findings returned.
• The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The plaintiff, as administratrix' of the estate of her deceased husband, George Stratton, brought this action for judgment on. several promis sory notes executed by the defendant to the husband in his lifetime. The defendant answered (1) by a general denial; (2) by alleging partial payments not credited; (3) by setting up as a counter claim a promissory note executed by Stratton to him; (4) that in the year 1900 he bought a certain tract of land for $1100; that Stratton loaned him the .entire purchase price thereof, and by mutual agreement a deed to the land was made by the seller direct to Stratton, to secure the payment of the $1100; that defendant entered into the possession of the land, and continued therein until the land was again sold; that on November 24, 1902, he paid to Stratton all the interest on the $1100 to that date; that on January 20, 1906, defendant sold the land for $3000, and Stratton and wife executed to the purchaser a deed therefor, and Stratton received the full $3000, but never accounted to the defendant therefor; and that thereby Stratton became indebted to him in that sum. The reply was a general denial.
The trial was to the court, and the adverse claims of the parties were determined to the apparent satisfaction of each, except as to the fourth defense. Relating to this defense the court made the following findings of fact:
“(8) Prior to June 23, 1900, one Thomas Rogers was the owner of the following-described real estate situated in Ottawa county, state of Kansas, to wit, the southeast quarter of section thirty-five (S. E. *4 S. 35), in township eleven (T. 11) south, of range four (R. 4) west of the 6th P. M., and had the same listed with H. F. Jackman, a real-estate agent in Minneapolis, Kan., for sale. Said Jackman approached the defendant, Charles B. Rotroek, who was a tenant on said land, and tried to sell the same to him. Rotroek stated, in substance, that he could not buy the land without assistance, but would see George Stratton and perhaps he would help him buy it. Afterward Stratton and Rotroek went to Jackman’s office and talked with Jack-man about Rotroek buying this land, and it was proposed that Stratton should furnish the money to enable Rotroek to buy it and should take a mortgage back from Rotrock for the money so advanced. Jackman suggested to Stratton that it would be better for him to have the deed made out in his own name, since he was advancing the money, than to take a mortgage. Stratton and Rotrock went out of the office and afterward returned, and Stratton told Jackman to have the deed made out to him (Stratton). Stratton paid four hundred dollars in cash and gave a note, secured by a mortgage on this land, for $700 to Rogers, and in September of the same year paid the mortgage.
“(9) There were no buildings upon the land, but the defendant, Charles B. Rotrock, farmed the land and broke out a part that had never been plowed and gathered the crops therefrom, and did not deliver any of the .grain grown thereon to Stratton, and has continued in the possession, of the land until it was sold at the time referred to in the next succeeding finding.
“ (10) Rotrock listed the land referred to in the preceding finding for sale in 1903, with Babcock & Steele, who were real-estate agents in Minneapolis, Kan. He afterward, on two or three occasions, ordered them to change the price at which the land was listed. They found a purchaser for the land, and in looking over the records, discovered that, on the face of the records, the title appeared to be in George Stratton. They went to Stratton about it, and Stratton said that Rotrock did not have any right to list the land that was his, and in explanation said that Rotrock had found the land but did not have the money to pay for it, and that he (Stratton) advanced the money and that Rotrock was to pay him as he could, but that he had never paid him a dollar, and Stratton said he did not consider that Rotrock had any interest in the land. . That Babcock & Steele then asked Stratton to list the land with them for sale, and he did so, and they sold the land for $3000, and, after deducting $100 for commission, paid the other $2900 over to Stratton.
. “ (11) After the land was sold, as stated in the preceding finding, Babcock & Steele notified Rotrock that the land was sold, and, although he lives near and they saw him frequently, he never said anything to them about the money and he never made any demand on Stratton for it. The sale was made in January, 1906, but the last payment was not made until April, 1906.
“(12) George Stratton died in June, 1906, at Minneapolis, Kan. He had been sick for several months, and Rotrock called to see him once, but was unable to see him at that time.”
The court also made the following conclusions of law relating to the fourth defense:
“That the understanding between Rotrock and Stratton by which the purchase price for this land in section 35, described in the defendant’s answer, did not make such deed a mortgage, but, at most, only constituted Stratton as a trustee of an express trust, and, not being in writing, was not' enforceable.”
But one question is presented in this case, viz.: Was the deed of the land originally given to Stratton intended to be an. absolute conveyance to Stratton, or was it intended as a mortgage to secure the payment to him of the purchase price ($1100), which Rotrock had agreed to pay the grantor, Rogers? The question as to the real character of the instrument usually arises between the grantor and grantee in a contract purporting to be an absolute conveyance. In this case, however, had the defendant fully performed the conditions during the life of Stratton, it would have required a deed from Stratton and wife, or a decree in chancery, to invest Rotrock with title that could be made of record. The case of Hubbard v. Cheney, 76 Kan. 222, sustains the principle in this case. Cheney purchased a tract of land, and he and his wife were named as grantees in the deed. The consideration paid for the land was $1600, of which Cheney borrowed $300 from his wife, it being agreed between them that the deed was to be her security for the repayment of the loan. He in time paid the debt to his wife. The first paragraph of the. syllabus, holding the deed in fact a mortgage as to the wife, reads:
“A deed purporting to convey land to a husband and wife jointly, where the wife is named as a grantee to secure payment of a sum of money which she 'loans to her husband to make up the purchase price of the land, is, as to the wife, no more than a mortgage; and when the loan is paid her interest terminates and his title becomes clear and complete, and the fact that the deed was intended to operate as a mortgage may be shown by parol evidence.”
(See, also, Le Comte v. Pennock, 61 Kan. 330; Abrams v. Abrams, 74 Kan. 888; 27 Cyc. 979.)
• In the Hubbard case, as in this, the deed, as between the grantor and grantees, was in fact an absolute conveyance, but as to one grantee was intended as, and was in fact, only a mortgage to secure a debt to the other grantee. In the opinion it was said:
“Equity, looking back of forms to the substance of things, regards the transaction as the parties themselves regarded it, namely, the giving and taking of security for borrowed money.” (76 Kan. 225.)
On this principle we think the deed, as between the grantee, Stratton, and Rotrock, should be held a mortgage, on the facts found by the court. The deed having been originally intended and accepted as security for a debt, neither the failure of Rotrock to pay the debt nor any act or intent of Stratton could convert it into an absolute conveyance, in the absence of a subsequent superseding contract. It was said in Le Comte v. Pennock, 61 Kan. 330:
“An instrument in form an absolute conveyance of real estate, given to secure the payment of a debt, is no more than an equitable mortgage, and nothing but a new agreement can convert it into a deed or transfer of title.” (Syl. ¶1.)
(See, also, Winsor v. Winsor, 78 Kan. 885.)
The land was sold by consent' of Stratton and 'Rot-rock, Stratton making the deed of conveyance. It remains only to determine the amount of the debt to Stratton at that time.
The judgment is reversed and the case is remanded, with instructions to determine the amount of the indebtedness from Rotrock to Stratton at the time of the sále of the land and deduct such sum from the $2900 received by Stratton therefor, allowing interest at seven per cent on both such balances, and on the amount heretofore found in favor of the plaintiff, offset the respective claims, and give judgment accordingly. | [
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The opinion of the court was delivered by
Benson, J.:
This is a creditors’ suit to subject the equity of Edwards and wife in a tract of land to the payment of a judgment, and is presented here for a second review. (Yost v. Bank, 66 Kan. 605.)
On the 24th day of March, 1899, the Edwardses conveyed the land to Yost, who, at the same time, agreed to reconvey it to Edwards upon the payment of $750, and all hotes due to Yost, with interest thereon, if such payment should be made within two years. A copy of the agreement is contained in the former report of the case.
After.entering the mandate of this court reversing the former judgment for the plaintiff, the district court allowed an amended petition to be filed, to which defendant Yost filed an answer. The second trial was in March, 1908, and afterward findings were made and judgment entered for the plaintiff, giving defendant Yost a first lien upon the land for an amount found to be due to him from Edwards, and giving to the plaintiff a second lien for the amount of its judgment, and ordering a sale to satisfy these liens. • Yost appeals.
The first contention of the appellant is that the court should have entered judgment for the defendants on the mandate. There was no order to enter judgment, but the case was remanded with directions to proceed further in accordance with the opinion. The district court and the parties at that time evidently understood the opinion to authorize a new trial, and this was the correct view. (Cahn v. Tootle, 58 Kan. 260; McDonald v. Swisher, 60 Kan. 610.) Besides, no motion for judgment was made, nor was any objection taken to the filing of an amended petition, but a new answer was filed, and after several continuances the case was tried without raising the question. It is now too late to do so.
It is also urged that the law of the case was settled in the former opinion holding that the instrument in question was not a mortgage, and that no subsequent proceedings in the district court could enlarge the controversy to include any other question. The question presented to this court at the former hearing was thus stated in the opinion:
“Was the transaction between plaintiff in error and Edwards, as evidenced by the warranty deed, and bond for deed, a mortgage or a conditional sale?” (66 Kan. 607.)
The question was thus answered:
• “From an examination of the evidence found in the record, and a consideration of the legal effect of the contract between Edwards and plaintiff in error, we are persuaded that the evident intention of the parties to the transaction at the time it occurred was that the deed-should operate as a conveyance, and that no enforceable debt from Edwards to plaintiff in error should or did remain.” (p. 608.)
It was also said in the opinion:
“It is a settled rule of law that the intent of the parties to a deed, absolute in form, at the time it is executed and delivered, must govern, and that the rights of the parties must be mutual.” (p. 608.)
The case was decided at the former hearing upon the evidence contained in the record then presented. It must now be decided upon the abstracts in this appeal. The district court heard new evidence upon the amended pleadings, and in doing so did not violate the. mandate of this court or transgress the rules of good practice. (Conroy v. Perry, 26 Kan. 472; Duffitt & Ramsey v. Crozier, Judge, 30 Kan. 150; The State v. Scott County, 61 Kan. 390.)
In Cahn v. Tootle, 58 Kan. 260, in considering the effect of an opinion delivered upon a former review of that case, it was said:
“The decision of this court became the law of the ease upon the state of facts disclosed in the record brought here, and the result was to set aside the judgment which had been previously entered. When the case was remanded to the district court for further proceedings the parties litigant were restored to the same conditions in which they were before the trial was had or judgment rendered.” (p. 262.)
It is further contended that the court destroyed the legal effect of the deed upon insufficient evidence. In reviewing a similar case this court said:
“Evidence of the situation of the parties, the circumstances surrounding the transaction, and of inde pendent parol agreements not conflicting with the terms of the written instruments, was competent, and we do not see that any other material' testimony was received.” (McNamara v. Culver, 22 Kan. 661, 670.)
At the date of the deed and contract Edwards was indebted to Yost in the sum of about $545, upon notes held and retained by the appellant. A judgment for $750 was then a lien upon the land, to which the deed was made subject, and which the grantee assumed. In a few days afterward the appellant took an assignment of this judgment, but satisfaction was not entered. In June, 1900, the appellant entered into an agreement to sell the land to the Karlins (who were made defendants when the amended petition"was filed), receiving a payment in September, 1900, which he credited on the Edwards notes, although he testified that all these notes had been satisfied by the conveyance; another payment was also indorsed on these notes about the same time, and they were not surrendered or canceled. In an answer in this case, filed in March, 1901, less than one year after the deed and agreement were made, the appellant pleaded the judgment which had been assigned to him, alleging that he had acquired it by purchase. He also pleaded the several promissory notes made by Edwards, claiming the amount unpaid thereon to be still due, and alleged that he had paid taxes on the property, and prayed that the sum of all these items should be adjudged a first lien upon the land in his favor. This pleading was verified by the appellant, and is competent evidence tending to support the appellee’s claim. While the amended answer upon which the action was finally tried pleaded an absolute title, and denied that the Edwardses had any equity in the land, the first answer was still competent evidence. (Arkansas City v. Payne, 80 Kan. 353; Every v. Rains, post.) This answer was not contained in the case-made at the former hearing, nor brought into the record in this court in any way. Without reviewing the evidence further, it is sufficient to say that it sustains the finding that the deed was intended as a mortgage, and should have that effect only.
The appellee’s judgment, upon which this action is founded, was against Edwards and wife. In January, 1902, Mrs. Edwards paid $200, which was credited on the judgment, and she was released. It is now contended that this “released the liability of Yost for one-half of that judgment,” i. e., the judgment upon which this suit was brought. But it is not claimed' that the appellant is liable upon that judgment. • No lien is claimed upon his property, but only upon the property of the Edwardses, which is their equity in the land after satisfying the appellant’s claims in full, hence he is not injured by the release of Mrs. Edwards.
Finally, it is argued that the lien of the appellee is lost because an execution was not issued upon its judgment for more than five years. This action to enforce the lien of that judgment was commenced in less than one year after it was rendered, and has been pending ever since. An execution to preserve the vitality of the lien was not necessary. (Treat v. Wilson, 65 Kan. 729.)
No error appears and the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Eliza Williams brought an action, of ejectment, claiming ownership and right of possession of an undivided one-half of several tracts of real, estate and alleging that the four defendants named, each own an undivided one-eighth interest in the land.. She also asked for $12,500, one-half the value of the rents and profits of the lands that had accrued within the past three years.
The defendants answered denying that the plaintiff had any interest in the lands and alleging, that they were the owners in fee simple of all the lands claimed.. They also alleged that Edwin R. Brown, whom the plaintiff claimed was her husband, was married to Sarah Howard in 1832, and that the only children of that marriage were Mary Brown and Melissa Brown; that the latter subsequently married and became Mrs. Taliaferro; that Edwin R. Brown acquired the real estate in Kansas, and that in 1874 his wife died; that he did not thereafter marry, and that in 1883 he died testate. He gave specific pieces of property to his daughter Melissa and her children, and the residue of the estate was given to Mary Brown, who was named as executrix. The will contained a clause that referred to the plaintiff as follows:
“Remembering the kind and faithful services of' Amanda Henley and Eliza Williams, long servants in my family, I enjoin upon my said daughters in turn that they see that said women are well provided for in their declining years.”
It was further alleged that under the provisions of that will Mary Brown took possession of her portion of' the estate, including that in question, and occupied it until 1909, when she died unmarried; that prior to her death she made a will disposing of the lands in question to the children and grandchildren of her deceased sister; that Mary Brown had improved and occupied the lands for more than twenty years, and during that time the plaintiff claimed no interest or title in them, although she occupied a small part of the lands as a tenant of Mary Brown. It was also alleged that the plaintiff had full knowledge of the disposition of the lands under the Edwin R. Brown will, and acquiesced in it and was estopped and barred to make any claim at this time; that Mary Brown had, in accordance with the injunction in her father’s will, given the plaintiff clothing, provisions and money, and that it was so accepted by the plaintiff. By way of cross-petition it was alleged that the plaintiff was claiming an interest in the lands without right, thüs creating a cloud thereon, and that one William C. Rigg, acting in collusion with the plaintiff, was also setting up some claim of interest, and that he was a necessary party. The prayer was that he be made a party and required to answer, that the defendants be adjudged to be the owners of the land, and that the plaintiff and Rigg be barred and enjoined from setting up any claim or interest in it.
The day after the filing of the answer and cross-petition another application was made to make Rigg a party, and for an order for publication service, and, this being granted, a cross-petition was filed containing averments similar to those in the cross-petition which formed a part of the answer previously filed. A few days later a motion was made to strike out the cross-petitions, and an order was made which on its face struck them out absolutely, but at a later date the court corrected it to correspond with the facts by making the order to strike out apply to William C. Rigg only. After the order striking out the ■ cross- petition was made, the plaintiff filed a reply, consisting of a general and some special denials — averments that she had occupied the premises as a cotenant of Mary Brown, and with her consent, and that no action for a division of the land was brought because of a promise by her that she would see that the plaintiff’s rights in the property were secured to her; that Mary Brown well knew the relationship that existed between the plaintiff and her father, and had never denied the plaintiff’s title to the property or her right to possession as a cotenant of Mary Brown.
Shortly afterward the parties proceeded to trial, and after some testimony was offered in behalf of the plaintiff, and an adverse ruling, the plaintiff dismissed her action without prejudice and the parties proceeded to trial on the cross-petition of the defendants. After testimony had been introduced in support of defendants’ contention the plaintiff proceeded to testify in her own behalf, and when she was asked as to a conversation between her and Edwin R. Brown, in which they agreed to live together as man and wife, and of their cohabitation and the carrying out - of the agreement, an objection was made that she was incompetent to testify to transactions with the deceased Brown, and also that the testimony was not within the issues of the case. The proposed testimony was excluded, and subsequently judgment was given for the defendants.
The principal question involved in this appeal of the plaintiff’s arises on the exclusion of her testimony. Were the communications and transactions between her and Edwin R. Brown, when he was living, within the prohibition of section' 320 of the civil code? It reads:
“No party shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person, when the adverse party is the executor, administrator, heir at law, next of kin, surviving partner or assignee of such deceased person, where they have acquired title to the cause of action immediately from such deceased person,” etc.
It will be observed that the disqualification arises only when the adverse party is an executor, administrator, heir at law, next of kin, surviving partner or assignee of such deceased person who has acquired title to the cause of action immediately from the deceased person. The defendants were not executors, administrators, surviving partners or assignees of Edwin R. Brown, deceased. It is claimed they were his heirs or next of kin, but if for some purposes these grandchildren and great-grandchildren of -his might be so regarded they are not within any of the classes mentioned in the statute. They are not heirs at law or next of kin who have acquired title to the cause of action immediately from him.
The word “immediately” is defined by Webster’s New International Dictionary as “without intermediary; in direct connection or relation; in a way to concern or affect directly or closely; without intervention of any person or thing; proximately; directly; closely.” Now, the title to the cause of action involved here was not acquired immediately or directly by the defendants from Edwin R. Brown, but was derived from or through Mary Brown. It is argued that there is as much reason why the plaintiff should be prohibited from testifying, the same danger of false testimony, as if the adverse party had acquired the lands in dispute directly from Edwin R. Brown. But a party offering himself as a witness is not to be rejected unless the adverse party comes clearly within one of the classes enumerated in the code. Competency is the rule, and disqualification is the exception. Neither interest in the result of the litigation nor incompetency operates to disqualify a party except upon the specific conditions named in the statute. The court is not inclined to extend this exception by interpretation. (Bryan v. Palmer, 88 Kan. 298; Hess v. Hartwig, 83 Kan. 592.) On the contrary, it has been said that “the present judicial tendency is undoubtedly to give a liberal construction to statutes removing disqualifications to testify, and a strict construction to those imposing them — to endeavor to protect the rights of parties by requiring evidence from a doubtful source to be given only such' weight as the circumstances may seem to justify, rather than by excluding it altogether.” (Clifton v. Meuser, 79 Kan. 655, 658.) But it is not necessary to apply a strict rule of interpretation to this statutory restriction. Giving the language of the provision its natural and ordinary meaning, it is clear that the defendants can not be regarded as having acquired title to the cause of action immediately from Edwin R. Brown. (Reville v. Dubach, 60 Kan. 572; Knights of Pythias v. Ferrell, 83 Kan. 491.)
The contention that the plaintiff had not joined issue on the cross-petition of the defendants can not be sustained. While the plaintiff did not file an independent answer to the separate cross-petition, she did file a reply broad enough in its terms to meet the allegations, of the cross-petition pleaded in the answer, as well as-the separate reply filed a day or two later. Testimony was offered by the defendants and both parties proceeded with the trial as if the case was at issue, and it would be a harsh and technical ruling to hold that the-testimony should be excluded because issue had not: been joined. Nor can it be held that the ruling did', not affect the substantial rights of the plaintiff. It deprived her of the opportunity to show what were her relations with the deceased, and unless she is permitted to show a marriage relation with Brown she has no standing to claim title or interest in the property involved. This ruling at the threshold of the trial of her side of the case practically concluded her and made her testimony on other branches of the case valueless.
While some of the claims made in her behalf are abnormal and strange, her rights ought not to be finally determined until competent witnesses produced by her are heard and her testimony tending to establish her claim has been received and weighed. The judgment is reversed and the cause 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 damages for personal injuries sustained by appellant while driving mules in the mine of appellee. He was an ex perienced miner and mule driver, although he had only, been employed a short time in that mine. His work was to take empty cars into the entry and to distribute or place them in the rooms opening into the entry, and then to return with the loaded cars picked up from the various rooms. These cars are coupled together by means of links and hooks. The motive power to move the cars hooked together is a pair of mules, driven tandem fashion, and guided,by verbal orders. The entries are of various widths, most of them ranging from five to eight feet. The width of the entry where the accident ocurred was about four feet and ten inches, and was narrower at that point by reason of the existence of what is called a horseback. It was near the door of a room from which a car was taken, and just after appellant had coupled the car to the string of cars to which the mules were hitched the mules started suddenly, without the word of command, and as one of appellant’s legs was outside the car it was caught between the rear car and the wall and was injured. The space between the car and the wall was not wide enough for him to stand or walk. He said that the ordinary way to avoid being caught in such a place is to go between or climb over the cars. The negligence alleged is that appellee did not furnish appellant a reasonably safe place to work and proper appliances with which to work, and the court, upon evidence showing the foregoing facts, sustained a demurrer to the evidence and gave judgment for appellee.
The negligence mainly relied upon was that the entry was too narrow. It does not appear that there is a regulation width of entries in mines, and the fact that the entries in this mine are of varying widths was an obvious fact and must have been known to the plaintiff. He had traveled through the entry when he went after the loads, and thus had an opportunity to observe the horseback and the narrow places in the entry. He had a lamp on his hat, which enabled him to see a distance of ten feet. It does not. appear that there was any negligence in not informing appellant that there were narrow places in the entry. In fact he had been engaged in coal mining for about twenty years, and had been driving mules in mines for about fifteen years of that time. There was. no testimony to show the character of the horseback or whether it was practicable to remove it or to make the entry wider at that place. Since there is no-standard width for entries, and as appellant must have known of the varying widths in this mine, it can. not be held that the appellee was culpably negligent toward plaintiff because the entry happened to be-narrow where he was hurt. Doubtless there would be-less risk of injury to employees if the entries were six or eight feet wide, but it may not be practicable to-make them wider than they were made at certain places, and the fact that the entries did differ in width admonished employees to look out for such places and', their own safety in them. There is no evidence tending to show that there was negligence in selecting or using the mules which appellant was driving, and the unfortunate accident appears to have been due to the unexpected starting of the mules before appellant reached a place of safety.
If there was any substantial evidence of negligence, toward appellant the demurrer should have been overruled, but it can not be held that the fact that appellee, had an entry which was narrow where it passed through the horseback was negligence toward appellant. A recovery based on the evidence relied on could not be upheld.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The question involved in this controversy is whether the electors of the city of Fredonia are entitled to a referendum of an ordinance passed by the mayor and council of the city and amending and modifying a gas franchise previously granted. On September 20, 1901, the mayor and council passed an ordinance giving L. S. Skelton and B. E. LaDow the right to construct, maintain and operate a gas plant in the city for a period of twenty-one years. The ordinance provided that the consumers should have the option to take gas either at meter or flat rates, and a schedule was set out therein fixing the rates applicable under each plan. It also provided that the city should enact ordinances, rules and regulations that would secure the grantees all the rights, privileges and benefits granted by the ordinance. Some time after the franchise was granted the rights of the grantees were assigned and transferred to the Fredonia Gas Company, and the plant was constructed and operated without change until the latter part of the year 1910, when the company complained that the consumers had become wasteful and extravagant in the use of gas to the extent that its business was .being conducted at a loss, and, upon its application, the mayor and council passed an amendatory ordinance requiring all consumers to use gas at the meter rates and providing that each consumer should be required to deposit $3.50 as an advance payment, as security for the payment of gas to be taken, which amount was to be returned to the consumer when he ceased to take gas, if he was not indebted to the company for gas previously consumed. Within a few days more than thirty per cent of the electors petitioned the mayor and council to submit to the electors for their approval or rejection the proposed ordinance, which modified the conditions of the original franchise; but a majority of the members were opposed to this step, and the petition was denied. On the motion of the attorney-general an alternative writ was allowed by this court, commanding the mayor and council to call an election and submit the ordinance to the electors for their approval or rejection or to show cause why it was not done. They responded by a motion to quash the alternative writ, and insisted that under the law they were not required to submit, and would not be warranted in referring, the proposition to the electors.
The decision depends upon the application of a recent statute, and, if it does not control, 'the ordinance as passed is effectual without an approving vote of the electors. Section 1 of chapter 93 of the Laws of 1909 provides that the mayor .and council of a city of the second or third class may grant a twenty-year franchise to persons, companies or corporations to construct and operate plants to supply the inhabitants of the city with water, light', heat and power, “and . . . to contract for and fix maximum rates to the city and its inhabitants, reserving the right to make reasonable changes therein from time to time.” It also provides that before any grant, franchise or contract, or renewal, shall be binding it shall be published for twenty days in the official newspaper of the city, and it further provides:
“That if thirty per cent of the qualified electors of any such city, based on the total vote cast for secretary of state at the last general election, shall, on or before thirty days from the first publication of such proposed contract or franchise, petition the mayor and city council to submit to the electors of such city for their approval or rejection such proposed grant, contract or franchise, it shall be the duty of such mayor and council to forthwith submit to the qualified electors of such city such proposed grant, contract or franchise, extension or renewal thereof, for their approval or rejection; provided, that when such petition is filed with the city clerk no signer thereon shall be permitted to withdraw his name therefrom. Fifteen days’ notice of such election shall be given by publication in the official newspaper of such city, and such election shall be conducted in all respects as now provided by law for bond elections in such cities. And in case a majority of the electors of such city voting at such election shall vote in favor of the approval of such grant, contract or franchise, such grant, contract or franchise shall be of full force and effect and thereafter be binding upon such city; but if a majority of the electors voting at such election shall vote against the approval of such grant, contract or franchise, then the same shall become null and void. (Laws 1909, ch. 93, § 1, Gen. Stat. 1909, § 749.)
In behalf of the state it is contended that the proposed ordinance makes a substantial change in the franchise granted, and is a contract of as much im portance to the inhabitants of the city as the original one made between the city and the company. It is alleged in the alternative writ that it takes away from the consumers the option to purchase gas at flat rates; that, under the flat rate, gas only cost the consumers about twelve and one-half cents per thousand cubic feet, whereas, under the meter rate, they will be required to pay eighteen cents per thousand for a period of two years, and twenty-two and one-half cents per thousand thereafter; that additional penalties are imposed, an advance payment is required, and other changes of conditions made. It is contended that this ordinance is, in effect, a new grant, or contract, and that the act contemplates that every contract between the city and the gas company relating to the supply of gas to the people is subject to approval or rejection, if the requisite number of electors ask for it. It is argued that the act makes no distinction between contracts made when the franchise is first granted or when it is about to expire and intervening ones. All that reach the dignity of a contract, whenever made, must be referred upon proper application. It is further contended that the price to be charged and paid for gas is the most important feature of the contract to both parties — more even than the right to the use of the streets or the duration of the franchise.
For the defendants, the contention is made that the referendum provision only applies to the franchise granted and contract made in the first instance or to some renewal or extension of the franchise. These general grants, it is urged, are made for twenty years or some specific period less than twenty years, and they are subject to approval or rejection by the electors. An extension or renewal of such general franchise likewise comes under the referendum provision of the statute, but, whether it be in the original grant or in the extension or renewal of it, there is the specific res ervation in behalf of the people that reasonable changes may be made in the rates from time to time. The schedule of rates prescribed in any franchise is not to be taken as binding on the parties for the whole life of the franchise^but is rather subject to change or amendment by the mayor and council whenever, under existing conditions and circumstances, it may be reasonably required. The original ordinance itself provided that the mayor and council had the power, and it was made their duty, to enact all needful rules and regulations to protect the company in its rights under the franchise, and it is argued that the waste of gas under the flat rate justified a regulation to stop that waste, and that the ordinance passed is a proper exercise of the power conferred.
The court holds with the contention of the defendants that it was not the intention of the legislature that a mere change of rates, made under the reserved power intrusted to the mayor and council, which may be frequently exercised, and in many cases where only slight modifications will be made, should be submitted to the electors of the city for their approval or rejection. The purpose was to refer to the electors the general grant which prescribed the duration of the franchise and the conditions under which the streets and public grounds may be used, and other conditions ’ regulating the duties and obligations of the respective parties during the life of the franchise or any renewal or extension of such franchise. The city, however, is not concluded in the matter of rates by that grant, but the power to change these rates from time to time, as circumstances may justify, is reserved to the mayor and council alone.
The writer is unable to agree with this interpretation of the statute, and is of the opinion that the act of the legislature contemplated that upon proper petition any “grant, franchise or contract” between the city and the company supplying gas is to be submitted to the electors for approval or rejection. No distinction is made between a contract and a franchise or a grant, and no contractual feature of the grant of a franchise to supply gas to the inhabitants of the city is of greater consequence to the city or the company than the one fixing the price which the consumer must pay for gas.
The decision of the court is that, a change of rates is not a regulation or a matter for the approval or rejection of the electors, and that as the ordinance in question only relates to the making of rates the peremptory writ is denied.
Johnston, C. J., dissents, stating his reasons in the opinion. | [
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The opinion of the court was delivered by
Smith, J.:
The proceedings of the plaintiff in bringing this case to this court are very irregular, and the defendant contends that the appeal should be dismissed. Section 569 of the code, however, provides that when a notice of appeal is filed and served as therein provided the appeal shall be deemed perfected. Section 574 of the code is as follows:
“Either party to any case tried in a court of record having an official stenographer may direct such stenographer to transcribe and certify to the correctness of all of the stenographer’s notes of the testimony and proceedings in the case or any such part as such party may designate, and such transcript shall be made, certified and filed with the clerk of such court on payment to such stenographer by the party ■ ordering the same of the costs of such transcript, and such transcript shall thereupon become a part of the record in the cause, subject to amendment and correction by the trial court or judge.”
Section 576 of the code provides for an abstract of pleadings, records, etc., on appeal, and has this provision :
“In case of a challenge of the correctness of any part of an abstract, the court or any justice thereof may direct that all or any designated part of the original files, transcript of evidence, or other papers in the case, or copies of journal entries, or of other records of the said court, be forwarded by the clerk having the custody thereof to the clerk of the supreme court, and the costs incident to the determination of any question as to the correctness of any abstract shall be taxed against the party in the wrong by order of the supreme court.”
Section 574 does not expressly require that a party taking an appeal from a court of record to this court shall procure a transcript of the stenographer’s notes of the testimony to be certified and filed with the clerk of the court, but it seems to be the clear implication that the appellant should, at least, cause so much of the stenographer’s notes of the evidence and proceedings to be transcribed, certified and filed as may be pertinent to his appeal; otherwise, as there is no other provision for making it, there can be no such record in existence, and an order from this court or any judge thereof to certify up a transcript of the evidence would be futile. In this case it appears from the agreed statement of facts and admissions on the argument that no transcript of the evidence and proceedings in the district court were filed with the clerk thereof, and that there is technically no record of such proceedings. It appears, however, that the appellant procured another stenographer to transcribe the evidence, and each party has filed an abstract based thereon. While the proceedings are irregular we will not dismiss the case.
In May, 1904, the appellants were the owners of 394 acres of land in Allen county, on which they executed', a lease to the Sunflower & Shamrock Oil and Gas Company, a corporation, by which it was authorized “to* lay, maintain and remove such pipes and pipe lines, and to erect, construct, maintain and remove all buildings, tanks, structures and machinery that may be-necessary for the production and transportation of oil. and gas and other minerals or water.” The corporation: proceeded to bore several wells upon the property, in: which it found some gas and some oil. The company became indebted to a number of individuals, to whom: it gave notés, and the notes came into the hands of one E. G. Drake, who brought suit against the company and recovered a judgment, in January, 1907, for $4-203.98, with interest and costs. Soon thereafter Drake-caused execution to be issued on the judgment and levied upon the oil-and-gas lease, the pipes, pipe line,, casing, engines, boilers, shafting, pulleys, derrick, power house and all other fixtures and machinery of the company located on the land. All of the property levied on was sold at sheriff’s sale to Drake for $1325. While the judgment was obtained by Drake, the money seems to have been advanced, in part, by Ewing ancT Hepperlen and others interested in the corporation, but principally by the three named. Appellant G. W.. Baker was president of the company, and appellee* William Readicker was a director of the company.
Sometime after the sale of the property Baker went* to Nebraska, where the others named resided, except: Readicker, who lived in Kansas, and made a tentative agreement to form a partnership with Drake, Ewing and Hepperlen, and a tentative agreement for a new lease from himself and wife .to the copartnership., After Baker’s return to Kansas the Nebraska members* of the contemplated partnership forwarded to him a-proposed lease for him to execute. Instead of executing it he inserted some additional provisions and conditions and returned it to Nebraska for the considera tion of the others. This proposed lease came into the hands of Drake, who refused to sign it, but has ever ■since retained it.
After his return from Nebraska, Baker took charge of the property and gathered up and took care of the piping, wells, etc., and continued to do so until the appellees appeared with a bill of sale of all of the property sold at the sheriff’s sale, executed by Drake to “them. They took charge of the property and commenced to withdraw the casing from the wells, when Baker and wife brought this action and procured a temporary injunction to prevent the further progress •of that work. Among other things, it was alleged in the petition that the wells from which the easing had been removed were not properly plugged, and that ■great injury would result by reason thereof to the oil- and gas-bearing sands of the entire district. On the “trial of the case the court rendered judgment against the plaintiffs and for the defendants, dividing the costs, and vacated the temporary injunction, but decided that the wells had not been'properly plugged in accordance with the laws of the state, and that, before dismantling any other wells, the defendants should comply with •such laws.
The principal questions involved in this appeal seem to be whether a partnership was formed and a lease from the Bakers to the Nebraska parties was made, as contended for by the appellants. The evidence is conflicting as to the making of the contract of partnership, one party asserting that it was in writing and the other that it was verbal, and both parties seem to imply that the organizing of the partnership was contingent upon the making of the lease. The appellants contend that as they made and signed a lease on their part and forwarded it to Drake, who retained it, it constituted an acceptance and that the lease became operative.
We think the court was justified in finding that the retention by Drake of the proposed lease, sent' by Baker to him, through Ewing, did not constitute an. acceptance of the lease. Baker testified that Ewing was elected secretary of the proposed partnership and authorized to correspond with him, that he was to write the other members of the partnership, and, in short, to carry on any negotiations through Ewing. Drake, however, denied all this, denied that Ewing was made secretary or that any such proposition was discussed. He said that he prepared a lease for Baker to sign, and that unless Baker signed that lease he (Drake) had nothing to act on, and he did not recognize anybody; that Baker did not sign that lease; that Ewing brought him another lease (the one appellants claim he accepted) and that he immediately declined to execute it; and that, while he declined to attach that copy to his deposition, he offered to permit a copy to be made, and it appears that a copy thereof was attached to his deposition. According to Baker’s testimony, the authorities cited would probably apply, and the facts would constitute an acceptance of the lease by Drake; but according to Drake’s testimony such would not be the 'case. It is for the trial court and not this court tb weigh the evidence and pass upon the credibility of witnesses.
The appellants complain that, while the court found that the appellees in dismantling the wells were not complying with the laws of the state in the matter of plugging them, the temporary injunction should, at least, have been continued so as to prevent a further violation of the law. The judgment rendered by the court does, in effect, find that the appellees must comply with the law before proceeding to dismantle other wells, although the temporary injunction is dissolved. We think the court might well have continued the injunction to this extent, but it is a matter largely within the discretion of the trial court and we can not say that such discretion was abused.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
This is an appeal from an order vacating a judgment on the ground of irregularity in obtaining it. (Civ. Code, § 596, subdiv. 3.) The irregularity alleged in 'the motion was that the judgment was rendered by default upon service by publication only, and- that the notice thereof had not been published for the time prescribed by the code.
On the hearing of the motion the appellant, the plaintiff in the action, was allowed to and did show, by amended proof, that the notice had in fact been published as the law required, although it appeared from the original affidavit of publication, filed when the judgment was entered, that the notice.had not been published for the requisite time. ' After the amended proof had been filed the court vacated the judgment, and ordered that the appellees (grantees of defendant Hardie, who had succeeded to his rights in the land) should be allowed to plead in the action. These are the orders appealed from.
When proof was filed showing that proper publication had been made the apparent irregularity vanished. There was in fact no irregularity in the service, although it so appeared from the proof on file, until additional proof was made.
“Where a defendant has not been regularly served by summons, or publication of notice, the record can not be amended after judgment so as to bring him into court and sustain the judgment. But where a defendant has been regularly served, and there is simply a defect in the return of the officer, or the proof ■of publication, that defect can be cured by amendment, so as to conform to the facts.” (Foreman v. Carter, 9 Kan. 674, syl. ¶ 4.)
When the judgment was attacked on the ground stated, the court, in the furtherance of justice, properly allowed the fact of due publication to be shown, but when this was done the motion to vacate the judgment ought to have been denied. (Pierce v. Butters, 21 Kan. 124; Lipscomb v. Bank, 66 Kan. 243.) In Pierce v. Butters, supra, the district court allowed an amended affidavit of publication to be filed after proceedings in error had been prosecuted to this court. The judgment was affirmed notwithstanding the fact that the original affidavit was defective and showed an insufficient publication, Which was one of the errors complained of. The opinion sustains the appellant’s contention in this cáse.
The orders appealed from are reversed, with directions to the district court to deny the motion to vacate the judgment. | [
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The opinion of the court was delivered by
Mason, J.:
This case involves the construction of the following clauses in the will of John Cummins:
“To my son Daniel Cummins, I will and devise the 40 acres of land situate in Leavenworth county, Kansas, and described as follows:
“The south i/2 of the N. E. % of the N. E. % of section 25, township 10, range 22, containing 40 acres more or less. _ -
_ “To my son Dennis Cummins, I will and devise the 40 acres of land situate in Leavenworth county, Kansas, and described as follows:'
“The north l/2 of the N. E. % of the N. E. % of section 25, township 10, range 22, containing 40 acres more or less.”
It will be observed that while the testator spoke of devising forty acres of land to each of the sons named, in each instance the tract specifically described contains but twenty acres. These sons brought an action to have the will construed, claiming that as their father had owned the north half of the northeast quarter of the section named, and no other land in Leavenworth county, his intention clearly was to give to each of them one-half of this eighty acres. A part of the defendants maintained that only the forty acres specifically described was actually devised and that the other forty acres descended to the heirs of John Cummins, the will having contained no residuary clause. The court adopted the latter view and the plaintiffs appeal.
Notwithstanding the inconsistency noted the real purpose of the testator should be carried out, if it can be arrived at with certainty from the language he has used. The case is merely one of repugnant calls, and the rule of reason and authority is to follow the call in which there is least likelihood of a mistake having occurred, and which was likely to have engaged the closest attention of the testator. Here it is appar ent that the principal idea in the mind of the maker of. the will was to give to each of these two sons forty-acres of land. The case is entirely different from that, arising where a statement of the acreage is attached, incidentally to a description. Here the testator starts out by stating his purpose to give to each forty acres. There was little opportunity for mistake in formulating an expression of this desire, or in communicating it, or in apprehending it. But in reciting the surveyor’s numbers and subdivisions even one who is accustomed to their use may readily fall into error.
It is true that ordinarily the statement of the area, is the least important part of a description of a tract of land — the last to be resorted to where there is ambiguity or obscurity. But that is because ordinarily the matter of acreage is least prominent in the minds of the persons concerned, and is that concerning which a mistake may most readily be made. Where the peculiar-circumstances reverse these conditions the ordinary rule of interpretation is reversed.
“Where the intention is clearly expressed that a specified quantity of land is to be conveyed, the designation of quantity has undoubtedly a controlling effect in determining the boundaries of the land.” (129 Am. St. Rep. 1011, note.)
The following language, although used by Mr. Chief Justice Cooley with respect to a deed, is equally applicable to a will:
“In general, fixed lines and monuments are allowed to control quantity, for the reason that these, being-known and open to the observation of the senses, are more likely to have been noted by the parties in the course of their negotiations, and fixed upon in their minds as the important particulars in their conveyance, than the quantity, which may or may not have been accurately determined, and often is not specially made prominent.
“But cases sometimes arise in which in the deed itself it is made apparent that quantity was more prominent in the minds of the parties than any other single particular which is given; and in such a case the purpose in construction, and the general rule that the particulars shall be allowed to control in respect to which there is least probability of error, would both be disregarded if quantity were to be subordinated in construction to something else.” (Moran v. Lezotte, 54 Mich. 83, 88.)
We think'the will of John Cummins clearly and beyond all substantial doubt expressed 'his intention to devise forty acres to each of his sons, Daniel and Dennis. Therefore so much of the formal description as is inconsistent with this purpose must be rejected. (6 L. R. A., n. s., 967, note; 4 Wig. Ev. §§ 2476, 2477; Zirkle v. Leonard, 61 Kan. 636.) The half of a quarter of a quarter section can not contain forty acres; therefore one part or other of the phrase “of the N. E. 1/4 of the N. E. 1/4” must be wrong. The manifest error can be eliminated by disregarding the entire phrase, and the purpose of the testator may be carried out if •there still remains enough of the description to show what land he had in mind.
“Where the will itself shows that there has been a mistake in specifically describing land which is also designated by a general description, the will may be made to operate upon the land intended to be specifically described, but which, by mistake, is incorrectly described in the specific description which follows the general.” (Pocock et al. v. Redinger, 108 Ind. 573, 575.)
The fact that the will assigns to one of the two sons forty acres designated as the south half of a tract erroneously described, and to the other the north half of a tract indicated by the same erroneous description, makes the intention clear that each was to have the half of an eighty-acre tract in Leavenworth county. In the absence of anything to suggest the contrary the testator must be understood as asserting that he is the owner of a tract which he undertakes to devise, although he does not in terms refer to it as his land, or employ any equivalent expression. This is the rule in this jurisdiction as to deeds and contracts (Hampe v. Sage, 82 Kan. 728, 732), and the reasons for it are as cogent in the case of a will. Some courts, including the supreme court of Illinois, refuse to apply it where the will contains merely a complete, accurate and unambiguous description of a tract not owned by the testator. (See Lomax v. Lomax, 218 Ill. 629, and note thereto in 6 L. R. A., n. s., 942-977.) But in Illinois, as elsewhere, where the will contains anything connecting the devise with a tract owned by the testator, resort is had to the presumption that he must have intended to dispose of his own property, not that of some one else. (Collins v. Capps, 235 Ill. 560.) In the case just cited the will described the west half of a certain quarter section. The testator owned the north half of the quarter. The word “west” was rejected, the devise being construed as though it read “the half” of the quarter. As so construed it was held to pass that half of which the testator was shown to be the owner. Here the two devises taken together, although describing only forty acres, distinctly show a purpose to dispose of eighty. When it was established by parol evidence that John Cummins owned the north half of the northeast quarter of the section named, and no other land in Leavenworth county, all difficulty in the interpretation of the will disappeared, his purpose to dispose of the whole tract being too clear for controversy. The appellees contend that this view is violative of the ancient rule that parol evidence is admissible to explain only latent — not patent — ambiguities. This rule has been criticized as an “unprofitable subtlety,” which has “unnecessarily confused the subject with artificial distinctions” (4 Wig. Ev. § 2472) ; in any event it is no stronger than the reasons for it. But here it is not violated. The ambiguity in the will can be eliminated, as already shown, by a consideration of matters appearing upon the face of the instrument, leaving a description which, although not absolutely certain in itself, points out how the property devised can be ascertained. It then remains only to apply the description, in the light of the conditions existing when, the will was written, and parol evidence is always admissible, for that purpose. (6 L. R A., n. s., 955-958, note.)
“The purpose of the construction of a will is to determine the intention of the testator. That intention must be found in the words of the will itself, as applied to the subjects and objects of the testator’s, bounty. Parol evidence, though not admissible to change the language of the will, may be received when necessary to identify such subjects and objects. A court of equity can not correct a mistake in a will by reforming the instrument, but all the circumstances surrounding the testator and the state and description of his property may be shown, for the purpose of applying the language used to the conditions existing. However many errors there may be in a description .either of a devisee or the subject of a devise, the devise will not be avoided if enough remains, after rejecting-the errors, to show with certainty what was intended, when considered from the position of the testator.” (Collins v. Capps, 235 Ill. 560, 562.)
The view, we adopt is strengthened by the presumption against partial intestacy (30 A. & E. Encycl. of L.. 668), and perhaps also by the provisions made for each of the testator’s children, but we regard the considerations already stated as determinative of the case.
The judgment is reversed and the cause is remanded, with directions to enter judgment in accordance herewith. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff is an attorney at law. The defendants are, respectively, the superintendent of the state hospital for the insane, at Topeka, and the members of the state board of control. The plaintiff alleges in his petition that in the regular practice of law he has received word from certain inmates of the hospital, who are confined there as insane patients, that they desire the plaintiff to' secure their discharge, on the ground that they are not insane; that the defendants refuse to allow the plaintiff to see and talk with such inmates and to inspect the hospital records relating to their confinement; and that, therefore, the plaintiff’s rights are violated, and particularly his rights under section 8481 of the General Statutes of 1909 (Laws 1901, ch. 353, § 69), which provides that every patient admitted to a public hospital for the insane shall have all reasonable opportunities for communicating with his or her friends. The prayer of the petitioner is that an alternative writ of mandamus issue requiring the defendants to allow the plaintiff the right he claims to possess.
The plaintiff has no legal right to see and talk with the patients in the hospital to whom he has been denied access. He does not pretend that he ever knew or saw or heard of them before, and he has no interest in them except as an attorney. The hospital is main tained for the benefit of persons afflicted with brain sickness rendering them incapable of caring for themselves. To open the doors of the institution to the idle and curious or to busybodies and persons with mercenary designs would be to destroy discipline among the inmates and to retard their restoration to mental health. Therefore the legislature limits the right of communication with them to friends. The friends contemplated by the statute are relatives and former associates and acquaintances who, from sentiments of affection, esteem or kindly regard, are interested in them and in their welfare. Attorneys who seek to invade the hospital in a merely professional capaqity for the purpose of promoting business are not recognized.
If an inmate of the hospital have no friends in fact of the character described the state of Kansas stands toward him in that relation. The welfare of the patient, who, because of his disability, is unable to make use of his normal liberties, is the'matter of primary consideration in every case of detention at the hospital, and it is a subject of the deepest concern to all the authorities that no one who is fit to be discharged shall be detained. Private communication between patients and the board of control is secured by law. Ample provision is made for discharge and for parol when, in the judgment of the board or of the superintendent of the hospital, such course is proper, and for establishing the fact of sanity or restoration to reason in an orderly way, even in opposition to the judgment of those officials. It will not be assumed that power which is exercised with the kindest intention and for the most benevolent purposes is being abused, and small room should be allowed for the intervention of individuals to whom patients may smuggle communications stating that they are of sound mind and want to be released, and who are, therefore, intruders and disturbers.
The writ of mandamus is denied. | [
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Elliott, J.:
Starr and Andrew McDonnell appeal the trial court’s granting of The Music Stand’s motion for summary judgment as to all of their tort claims against The Music Stand.
We affirm in part, reverse in part, and remand.
This case is somewhat disjointed factually. The Music Stand leases and sells musical instruments and contracted with Malcolm Goods to collect its past due accounts and to repossess instruments. Starr McDonnell’s former husband rented a saxophone from The Music Stand for their son, Andrew. This account was among those given to Goods for collection.
Goods contacted Starr by phone, claiming to be with the sheriff’s department, requested payment, and threatened to put her ex-husband in jail. Goods phoned Starr three times in one day and demanded the name of Andrew’s school. Goods then went to Andrew’s school, telling the band teacher he was with the sheriff’s office and that he was there to repossess the saxophone. Goods also threatened to throw the teacher in jail.
Starr and Andrew sued Goods and The Music Stand, each claiming separately that Goods committed the tort of outrage and violated the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq. (1988). They also claimed separately that The Music Stand negligently hired Goods, negligently supervised Goods, negligently retained Goods, committed the torts of outrage and intentional infliction of emotional distress, and violated the Fair Debt Collection Practices Act. The Music Stand counterclaimed against Starr for the unpaid rent on the horn.
The Music Stand moved for summary judgment on all claims against it, which the trial court granted. At the hearing on The Music Stand’s motion, plaintiffs conceded they had no basis for their claim that The Music Stand had violated the Fair Debt Collection Practices Act.
One week later, the remaining claims against Goods and the counterclaim by The Music Stand against Starr were tried to the court. Neither Goods nor The Music Stand appeared at this trial.
The trial court entered a default judgment in favor of Starr and Andrew against Goods and entered a default judgment on the counterclaim in favor of Starr against The Music Stand.
This appeal follows.
Plaintiffs’ first argument may be summarized thus: In granting The Music Stand summary judgment, the trial court found Goods’ conduct was not outrageous. Then, a week later, the trial court entered judgment against Goods, finding his conduct was outrageous. They argue, therefore, the trial court in effect revised the earlier judgment in favor of The Music Stand. But, as The Music Stand points out, nothing in the record indicates the trial court intended to revise its earlier judgment.
A review of plaintiffs’ claims may prove helpful at this point. Plaintiffs alleged in their amended petition that Goods committed the torts of outrage and intentional infliction of emotional distress. They further alleged The Music Stand committed the torts of outrage and intentional infliction of emotional distress. The allegations against The Music Stand were that it committed these acts separately and independently of Goods’ actions.
Plaintiffs, however, further alleged that “at all times Malcolm E. Goods was acting as the agent of and in the pursuit of the interests of The Music Stand, Inc.” Then, they incorporated this allegation into their counts against The Music Stand, thereby impliedly alleging The Music Stand was vicariously liable for the counts alleged against Goods.
In its journal entry granting The Music Stand summary judgment, the trial court stated:
“The substance of the defendant Music Stand’s motion for summary judgment centers upon the issues of whether or not the conduct of the defendant Goods was such as would support a cause of action on behalf of the plaintiffs for the tort of outrage and intentional infliction of emotional distress. In the event this court should find that' such conduct by defendant Goods does support a claim for the tort of outrage an additional issue arises as to whether or not that tortious conduct by the defendant Goods may be imputed to the separate defendant Music Stand, Inc.”
After reviewing the facts of the case, the trial court then ruled:
“When viewed in a light most favorable to the plaintiffs herein, the allegations of fact supportive of this legal theory [do] not constitute conduct so outrageous in character, so extreme in degree as to go beyond the bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society. Accordingly, the defendant Music Stand’s Motion for Summary Judgment dismissing the plaintiff’s cause of action for outrage and intentional infliction of emotional distress is sustained.”
Unfortunately, the trial court did not specifically indicate whose conduct was not outrageous — Goods’ or The Music Stand’s. But from the trial court’s introductory remarks, it appears to us the trial court must have found that Goods’ conduct was not outrageous.
A couple of problems arise from the trial court’s apparent finding that Goods’ conduct was not outrageous. First, if the trial court found Goods’ conduct not outrageous when it granted The Music Stand summary judgment, its finding a week later that Goods’ conduct was outrageous is inconsistent.
Regardless of the trial court’s intent, the two judgments are inconsistent and, therefore, cannot stand. See State v. Meyer, 17 Kan. App. 2d 59, Syl. ¶ 4, 832 P.2d 357 (1992). While the present case is a civil bench trial, we conclude the rationale of Meyer is equally applicable:
“The rationale for permitting inconsistent jury verdicts is simply not applicable to a bench trial under these circumstances. There can be no argument that the inconsistency is the result of compromise or any effort to achieve unanimity [among jurors] with a bench trial. A trial court is bound by fundamental principles of logic and has a duty to explain its decisions. Our system simply has more tolerance of inconsistencies where a jury is concerned. A trial court is duty bound to apply the law in a nonarbitrary or capricious manner. A rule which would permit judgments which cannot be defended upon a logical basis would not enhance respect for the law, the courts, or the process. For an appellate court to uphold such a judgment, which on its face is illogical or arbitrary, would likely undermine respect for the courts.” 17 Kan. App. 2d at 70.
Extending Meyer to civil bench trials is also consistent with Kansas’ policy on inconsistent verdicts in civil jury trials where the juiy is asked to render special verdicts. Special verdicts must be consistent with one another and cannot be conflicting. See Donnini v. Ouano, 15 Kan. App. 2d 517, 525, 810 P.2d 1163 (1991).
While the trial court’s inconsistent findings as to whether Goods’ conduct was outrageous are impermissible, a question remains as to the appropriate remedy. The later judgment that Goods’ conduct was outrageous is not before us: Goods is not a party to this appeal and, therefore, does not challenge that judgment against him; plaintiffs do not challenge that later judgment. Accordingly, the question of Goods’ conduct as found by the trial court in the later judgment is simply not before us.
The only issue before us on the claims of outrage against The Music Stand is the trial court’s ruling on the earlier summary judgment motion. And because we cannot let the inconsistent judgments remain intact, the summary judgment ruling that Goods’ conduct was not outrageous must be reversed.
The second problem regarding the trial court’s summary judgment ruling is that it simply never determined whether The Music Stand’s independent conduct was or was not outrageous. In this regard, the parties’ arguments as to whether The Music Stand’s independent conduct was outrageous are irrelevant because the trial court has yet to determine that issue. The issue must therefore be remanded for further proceedings.
Other issues raised by plaintiffs deal with whether Goods was an independent contractor or an agent of The Music Stand. The trial court found Goods was an independent contractor, relying on Falls v. Scott, 249 Kan. 54, Syl. ¶ 7, 815 P.2d 1104 (1991).
Although the right of control test is the most important single consideration in determining the relationship, it is not exclusive— other relevant factors are also to be considered. Jones v. City of Dodge City, 194 Kan. 777, 781, 402 P.2d 108 (1965). Factors tending to show an independent contractor relationship include whether there is an agreement for a definite period of time; whether the employer has power to terminate die employment at any time; and the manner of payment — payment by the hour or the day is more indicative of an agency relationship, while payment by the job is more indicative of an independent contractor relationship. 194 Kan. at 781.
The undisputed facts are that Goods and The Music Stand entered into an “agent contract,” which always referred to Goods as an agent. The contract provided that Goods would be paid $25 for every instrument repossessed and 30% of all cash or checks collected. It also provided that Goods would be paid $7.50 for every account turned over to Goods which proved not to be past due. The contract was effective for one year, but either party could cancel the contract on 30 days’ notice. Outside the contract, Goods was instructed The Music Stand preferred cash to repossessed instruments.
While the contract used the term “agent,” The Music Stand did not have any right to control how Goods would make the collection; nothing in the contract indicates Goods was to follow any certain procedures when collecting accounts for The Music Stand.
Further, Goods was to be paid by the job, not by the hour or day. The Music Stand could terminate die contract before the end of the stated period, but this power was equally conferred on Goods. And since the contract required a 30-day notice, termination at will was not permitted.
Plaintiffs argue that because Goods was told The Music Stand preferred cash, this indicates control over Goods’ collection methods. This instruction merely goes to the results of Goods’ work, not to the method, of collection. An employer is allowed to control the results of an independent contractor’s work.
Finally, plaintiffs argue that Goods’ failure to return The Music Stand’s files to it after repeated requests is somehow a relevant factor to consider. Frankly, Goods’ failure to return files on request demonstrates a distinct lack of control over Goods.
Under the undisputed facts and the guidelines of Falls and Jones, we hold the evidence was susceptible to only one conclusion: Goods was an independent contractor, and the trial court properly so held. See 15A Am. Jur. 2d, Collection and Credit Agencies § 2 (absent special circumstances, a collection agency is an independent contractor).
Plaintiffs finally argue the trial court erred in entering summary judgment on their claims that The Music Stand negligently hired, supervised, and retained Goods. Here, plaintiffs argue The Music Stand should have investigated Goods’ background in making collections; it should have instructed or educated Goods in proper collection practices; and The Music Stand knew Goods’ collection practices were illegal and, therefore, should have fired him.
Kansas does recognize the tort of negligently hiring or retaining an employee in the master-servant/agent context. See Plains Resources, Inc. v. Gable, 235 Kan. 580, 682 P.2d 653 (1984). But whether that cause of action will lie with respect to the hiring of an independent contractor in this state appears to be a question of first impression.
However, we did touch on the question in Dillard v. Strecker, 18 Kan. App. 2d 899, Syl. ¶¶ 1, 3, 861 P.2d 1372 (1993), aff’d 255 Kan. 704, 877 P.2d 371 (1994), where we held that when an employer breaches a duty owed, that employer is liable only for injuries to third parties, not for injuries to an independent contractor’s employees.
In Dillard, we noted that § 409 of the Restatement (Second) of Torts (1965) provides a general rule that a landowner is not liable for injuries caused by the negligence of an independent contractor, with three exceptions. One of those exceptions is where the employer is negligent in selecting, instructing, or supervising the contractor. 18 Kan. App. 2d at 902-03.
In Dillard, we also discussed Ray v. Schneider, 16 Conn. App. 660, 548 A.2d 461 (1988), which held that the liability of an employer for negligently hiring an independent contractor only extended to innocent third persons. 18 Kan. App. 2d at 905-06.
Many other jurisdictions recognize this cause of action. See generally, Annot., 78 A.L.R.3d 910. Finally, in Dillard, we noted the cause of action is recognized by the Restatement (Second) of Torts § 411 (1965), which provides:
“An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor
(a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or
(b) to perform any duty which the employer owes to third persons.”
We adopt the rule stated in Restatement (Second) of Torts § 411 as the law of Kansas. We now must decide whether the trial court properly granted The Music Stand’s summary judgment motion on the claims of negligent hiring, etc. Frankly, the trial court did not address the issue. Rather, it stated:
“The final cause of action is the plaintiffs’ claims that Music Stand is liable for its negligence in the hiring, supervising, and retention of Goods. A determination as to whether or not such a cause of action lies against the defendant Music Stand under the factual situation in the instant case may be made as a matter of law and turns upon this court’s determination of the legal relationship between Music Stand and Goods.”
The trial court, finding Goods was an independent contractor, then found this claim against The Music Stand must fail.
Under the Restatement, the claim that The Music Stand negligently hired, supervised, and retained Goods must, nonetheless, fail because plaintiffs neither pled nor proved any physical harm from Goods’ conduct. Interestingly, illustration 1 under Comment a of § 411 of the Restatement describes a store that sells musical instruments and contracts with a collection agency to collect past due accounts. The Restatement indicates the store is liable for the physical injury the collection agency’s employee causes when the employee unjustifiably knocks down and seriously injures the debtor.
Because plaintiffs neither pled nor proved any physical harm from Goods’ conduct, we affirm the trial court’s grant of summary judgment on this claim, under the “right for any reason” rule. See Bank of Kansas v. Davison, 253 Kan. 780, 792, 861 P.2d 806 (1993).
We emphasize that at the summary judgment hearing, plaintiffs conceded they had no basis for their claim against The Music Stand for a violation of the Fair Debt Collection Practices Act.
In summary, we hold the trial court entered improper inconsistent judgments when it first found Goods’ conduct was not outrageous and then later found that it was. And the trial court simply did not consider the question of whether The Music Stand’s independent conduct was or was not outrageous.
The trial court properly found that Goods was an independent contractor and properly applied the Restatement (Second) of Torts § 411 in ruling plaintiffs’ negligence claim must fail because plaintiffs neither pled nor proved any physical harm resulting from Goods’ conduct.
Affirmed in part, reversed in part, and remanded for further proceedings. | [
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Smith, J.:
This misdemeanor criminal action arises from a traffic citation charging defendant, Michael Rice, with running a stop sign. Defendant appeals the trial court’s ruling denying his motion for judgment of acquittal, the trial court’s refusal to grant him a jury trial, and the trial court’s refusal to take judicial notice of a municipal ordinance. We affirm.
While driving north on Faulkner Street in Wichita, defendant failed to stop at an intersection marked by a stop sign and collided with a vehicle passing through the intersection on Franklin Street. Defendant conceded that he did not stop but contended he could not stop before entering the intersection because foliage blocked his view of the sign until he was too close to the intersection to stop.
Defendant was tried and convicted in municipal court of running a stop sign. He appealed to the trial court and requested a jury trial. After the case was placed on the jury trial court docket, the City moved for its removal from the docket, arguing that defendant was not entitled to a jury trial on a traffic offense. The court denied the motion, but the City renewed the motion on the day of trial some months after the original decision when the case was assigned to a different judge. This time, the trial judge granted the City’s motion, and defendant’s appeal of his municipal court conviction was tried to the court.
There was conflicting evidence on whether the sign was visible to northbound drivers. The driver of one of the other cars involved in the accident was familiar with the area, and she returned to the intersection before a city work crew trimmed the foliage around the sign. She testified that although the sign was partially covered by foliage, it was “very visible.” She estimated that the top third of the sign was obscured by foliage, but that the red was visible behind the leaves. The bottom two-thirds of the sign, including the word “stop,” however, was not blocked.
The police officer who investigated the accident testified that the sign was 15 feet south of the intersection and was visible from 40 feet away, a total of 55 feet from the intersection. She testified that from further back, trees partially blocked the sign from the view of northbound drivers. She testified that the streets were wet and defendant told her he was going 25 miles per hour.
Defendant presented evidence that foliage obscured the sign from the view of northbound drivers. The resident living in the fourth house south of the intersection on the west side of the street testified that foliage blocked the view of the sign from the south and that she had observed many northbound cars go through the intersection without stopping. She had advised the City of the problem not long before the accident, and the morning after the accident a work crew trimmed the foliage. From her side of the street, 200 feet from the intersection, she could only see the white rim at the bottom of the sign and a small amount of the red. She had not, however, driven through the intersection around the time of the accident. Consequently, she could not say how much of the sign was obscured from the view of drivers.
Defendant testified that the sign was completely obscured until he was 40 to 45 feet from it. An engineer called as an expert by defendant testified that it would have taken 66 feet to stop after seeing the sign at 25 miles per hour and 88 feet at 30 miles per hour. Defendant argued that he could not be convicted of running a stop sign that could not be seen until it was too late to stop before the intersection. The trial court found the sign was not obscured from view and found defendant guilty.
Defendant first contends there was insufficient evidence to sustain his conviction. He argues that under the Code of the City of Wichita, a driver cannot be convicted of running a stop sign that is obscured from view until it is too late to stop before an intersection and that uncontroverted evidence established the sign was not visible from far enough away to permit him to stop before the intersection.
Section 11.20.020 of the Code of the City of Wichita provides that “all traffic control signs, signals and devices shall conform to the ‘Manual on Uniform Traffic Control Devices/ ” and that de vices conforming to the manual “shall be official traffic-control devices.” The manual provides that an effective traffic control device should command attention, give adequate time for proper response, be kept in proper position, and be clean and legible. The manual also provides that care should be taken that weeds, trees, and shrubbery do not obscure the face of the sign. Section 11.20.030 of the City Code provides that no provisions of the traffic control ordinance “for which official traffic-control devices are required shall be enforced against an alleged violator if at the time and place of the alleged violation an official device is not in proper position and sufficiently legible to be seen by an ordinarily observant person.”
Defendant’s argument might have merit if the evidence that the sign was not visible from far enough away to permit northbound drivers to stop was in fact uncontroverted. However, the testimony of the driver of the car struck by defendant conflicts with defendant’s evidence. The other driver had an opportunity to see the sign before the foliage around the sign was trimmed. She testified that although the sign was partially covered by foliage, it was “very visible from the south.” She estimated that the top third of the sign was obscured by foliage, but stated that the red was visible behind the leaves and the bottom two-thirds of the sign was not blocked.
When a defendant challenges the sufficiency of the evidence, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Timley, 255 Kan. 286, 307-08, 875 P.2d 242 (1994). The court cannot pass on the credibility of witnesses or weigh conflicting evidence. State v. Van Winkle, 254 Kan. 214, 225, 864 P.2d 729 (1993), cert. denied U.S__, 114 S. Ct. 2168 (1994). Although the other driver was not a disinterested witness and although her testimony was controverted by other witnesses, it was sufficient to support the conviction.
Defendant next contends he was entitled to a jury trial under K.S.A. 1993 Supp. 22-3609(4), which provides that the hearing on an appeal to the district court from a municipal court conviction “shall be to the court unless a juiy trial is requested.” The City argues defendant was not entitled to a jury trial because K.S.A. 1993 Supp. 22-3404(5) provides that the trial of “traffic infraction cases shall be to the court.”
Whether the enactment of K.S.A. 1993 Supp. 22-3404(5) eliminated jury trials in appeals of municipal ordinance traffic infractions is an issue of first impression. In the one case citing the statute, State v. Chapman, 15 Kan. App. 2d 643, 814 P.2d 449 (1991), we held only that it did not apply retroactively to an infraction charged before the statute took effect. The issue is one of statutory construction, which is a question of law on which an appellate court is not bound by the decision of the trial court. State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
The two statutes at issue here address the same subject matter — the method of trial of traffic infraction cases in a district court. K.S.A. 1993 Supp. 22-3404(5) expressly refers to traffic infraction cases. K.S.A. 1993 Supp. 22-3609(4) refers to appeals of convictions of violations of municipal ordinances, which include appeals of municipal ordinance traffic infractions.
Defendant also argues that the two statutes conflict and that K.S.A. 1993 Supp. 22-3609(4) is the more specific statute and therefore must control. See State v. Williams, 250 Kan. 730, 733, 829 P.2d 892 (1992). The City argues that K.S.A. 1993 Supp. 22-3404(5) is the more specific statute. We find K.S.A. 1993 Supp. 22-3404(5), which specifically addresses the method of trial of traffic infraction cases, is more specific than K.S.A. 1993 Supp. 22-3609(4), which addresses the method of trial of appeals of all types of cases from municipal court. Defendant argues that by enacting K.S.A. 1993 Supp. 22-3404(5) in 1990 without amending the language of K.S.A. 1993 Supp. 22-3609(4), the legislature disclosed an intent to preserve the right to a jury trial in appeals from municipal court, including appeals in traffic infraction cases. He cites Early Detection Center, Inc. v. Wilson, 248 Kan. 869, 874, 811 P.2d 860 (1991), in support of this argument.
When K.S.A. 1993 Supp. 22-3404(5) was enacted, the legislature did leave unchanged the language of K.S.A. 1993 Supp. 22-3609(4), which provided that hearing on the appeal shall be to the court unless a jury trial is requested. However, the legislature also left unchanged the similar opening language of K.S.A. 1993 Supp. 22-3404(1) providing that trial of misdemeanor and traffic infraction cases shall be to the court unless a jury trial is requested. Leaving that language of K.S.A. 1993 Supp. 22-3404(1) unchanged did not disclose an intent to preserve jury trials in traffic infraction cases; otherwise, K.S.A. 1993 Supp. 22-3404(5) would be of no effect. Similarly, leaving unchanged the similar language of K.S.A. 1993 Supp. 22-3609(4) did not disclose an intent to preserve jury trials in appeals of traffic infraction cases to district court. If K.S.A. 1993 Supp. 22-3404(5) conflicted with K.S.A. 1993 Supp. 22-3609(4), it would also conflict with K.S.A. 1993 Supp. 22-3404(1).
The two statutes are not in conflict. K.S.A. 1993 Supp. 22-3609(4) does not expressly grant the right to a jury trial. It merely establishes the procedure for requesting a jury trial. K.S.A. 1993 Supp. 22-3404(5) expressly requires trials to the court in traffic infraction cases. An appeal of a traffic infraction case from municipal court to district court is still a traffic infraction case, which, under K.S.A. 1993 Supp. 22-3404(5), must be tried to the court.
Further, the construction of the statutes urged by defendant would reach irrational results, contrary to the general rule of construction that statutes addressing the same subject matter must be read together in an attempt to reconcile their differences and reach sensible and rational results. See Martindale v. Tenny, 250 Kan. 621, 631-32, 829 P.2d 561 (1992). Under defendant’s construction, a person charged with a traffic infraction in municipal court would be entitled to a trial to the court in municipal court followed by a jury trial in district court, while a person charged with the same conduct in district court would be entitled to only a trial to the court. There is no reason to provide such different procedures for persons charged with the same conduct, and it would be unreasonable to conclude that the legislature intended the prohibition of jury trials for traffic infractions in K.S.A. 1993 Supp. 22-3404(4) to have that effect. Thus, defendant was not entitled to a jury trial.
Defendant next contends the law of die case doctrine bars die trial court from reversing the earlier decision of another trial judge in this case on this issue. Ordinarily, under the law of die case doctrine, once an issue is decided by the court, it should not be relitigated or reconsidered unless it is clearly erroneous or would cause manifest injustice. Steele v. Guardianship & Conservatorship of Crist, 251 Kan. 712, 721, 840 P.2d 1107 (1992).
However, a court retains the inherent power to review its own proceedings to correct errors or prevent injustices until a final judgment is entered. Connell v. State Highway Commission, 192 Kan. 371, 376, 388 P.2d 637 (1964); Weber v. Wilson, 187 Kan. 214, 215, 356 P.2d 659 (1960). The court retains that power even when the same issue is presented to a different judge of the same court in the same case. Although factual issues may be particularly unsuitable for reconsideration, legal issues are more suitable. See 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4478 (1981).
As discussed above, the first ruling on whether defendant had a right to a jury trial was erroneous, and the trial court did not err in reversing the ruling of another judge on an issue of law.
Defendant lastly contends the trial court erred in refusing to take judicial notice of the city ordinances and the Manual on Uniform Traffic Control Devices. He concedes that this was not reversible error and that he was permitted to present evidence on the ordinances and manual. As we conclude defendant was not entitled to a jury trial, it is unnecessary to reach this issue.
However, the trial court should have taken judicial notice of the ordinances and the manual. K.S.A. 60-409(b)(l) provides that a court may take judicial notice of ordinances. K.S.A. 60-409(c) provides that a court shall take judicial notice of matters specified in subsection (b) “if a party requests it and (1) furnishes the judge sufficient information to enable him or her properly to comply with the request and (2) has given each adverse party such notice as the judge may require to enable the adverse party to prepare to meet the request.”
Defendant gave notice of his request for judicial notice, and the City has not contended that the notice was insufficient. Ar guably, defendant may not have provided a sufficient foundation for judicial notice because he presented no affidavit or testimony stating the copies of the ordinances and the manual provisions attached to his motion were authentic and genuine. See Gannaway v. Missouri-Kansas-Texas Rld. Co., 2 Kan. App. 2d 81, 82, 575 P.2d 566 (1978). However, there has been no contention that the copies were not authentic and genuine, and the subject matter was obviously in the possession of the City. The City conceded to the trial court that defendant has probably complied with the provisions of 60-409, entitling the court to take judicial notice of the City’s ordinance and, thus, the Manual on Uniform Traffic Control Devices. However, in view of the proper concession of defendant, the failure does not require reversal.
Affirmed. | [
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|
Brazil, J.:
Phillip Brian Houdyshell and his brother Floyd F. Houdyshell appeal from the district court’s findings regarding the offense severity levels for their crimes under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 1993 Supp. 21-4701 et seq. Floyd also appeals from his jury conviction for aggravated battery. We affirm in part, reverse in part, and remand.
The parties were ordered to show cause why this appeal should not be limited to the district court’s order on the KSGA sentence it would have imposed. This court noted that it appeared the notice of appeal in this case was not filed within the statutory time limits which would allow the Houdyshells to raise conviction issues. The documents on file indicated sentence was pronounced on July 14, 1993, and a motion to modify was not filed within 120 days. Therefore, the notice of appeal filed February 24, 1994, was beyond the 130-day limitation of K.S.A. 1993 Supp. 22-3608(a) and K.S.A. 1993 Supp. 21-4603(d)(l).
The Houdyshells responded in part by noting that they had filed motions to modify on July 21, 1993, which would extend their time for filing a notice of appeal. These motions were not included at the time of docketing but subsequently have been filed with the Clerk of the Appellate Courts.
State v. Ji, 255 Kan. 101, 108-10, 872 P.2d 748 (1994), held that when the defense files a timely motion to modify, the time for filing a notice of appeal is extended for 10 business days after the district court files its journal entry ruling on the motion to modify.
Once the first motions to modify are considered, this appeal is timely for conviction issues. The Houdyshells were sentenced on July 14, 1993. The defense filed motions to modify on July 21, 1993 — 7 days into the 120-day time limit. The district court denied these motions and filed a journal entry on February 14, 1994. A notice of appeal for both Houdyshells was filed on February 24, 1994, eight business days later. Therefore, under Ji, the notice of appeal is timely, and this court can consider conviction issues as well as KSGA issues.
The jury found both brothers guilty of aggravated battery.
Floyd argues a rational factfinder could not have found him guilty beyond a reasonable doubt even when the evidence is viewed in the light most favorable to the prosecution. He states there is no evidence that would support a conclusion that he was either directly involved in an aggravated battery or aided and abetted in an aggravated battery. The State asserts Floyd was clearly an aider and abettor to the crime and that this court should not retry the case or reweigh the evidence.
In reviewing the sufficiency of the' evidence, this court should look to all of the evidence in the light most favorable to the prosecution and determine whether “a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Graham, 247 Kan. 388, Syl. ¶ 5, 799 P.2d 1003 (1990). Further, this court should not review jury determinations on the credibility of a witness; credibility of a witness is an issue for the factfinder to determine. State v. Wade, 244 Kan. 136, 146, 766 P.2d 811 (1989).
K.S.A. 1993 Supp. 21-3205(1) provides that a person can be “criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.” Further,
“[m]ere association with the principals who actually commit the crime or mere presence in the vicinity of the crime are themselves insufficient to establish guilt as an aider and abettor; however, when a person knowingly associates himself with the unlawful venture and participates in a way which indicates he willfully is furthering the success of the venture, such evidence of guilt is sufficient to go to the jury.” State v. Dunn, 243 Kan. 414, 429, 758 P.2d 718 (1988).
Taken in the light most favorable to the prosecution, without re-evaluating the credibility of the witnesses, the evidence in this case showed that Floyd grabbed Truman Cross from behind. Phillip punched Cross. Although, there is no evidence Floyd punched Cross or held him while Phillip punched him, when viewed in the light most favorable to the prosecution, the evidence that Floyd grabbed Cross supports an inference that Floyd intentionally aided and abetted Phillip in punching Cross. The aggravated battery conviction is affirmed.
Phillip was sentenced to 5 to 20 years, and Floyd was sentenced to 4 to 12 years. At a subsequent hearing, the court calculated the appropriate offense severity level under KSGA to be a severity level 4 for each brother, thus denying them retroactive application of the KSGA.
K.S.A. 21-3414, the statute under which the Houdyshells were convicted, provides:
“Aggravated battery is the unlawful touching or application of force to the person of another with intent to injure that person or another and which either:
(a) Inflicts great bodily harm upon him; or
(b) Causes any disfigurement or dismemberment to or of his person; or
(c) Is done with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, dismemberment, or death can be inflicted.”
K.S.A. 1993 Supp. 21-3414 subdivides aggravated battery into four different offense severity levels. K.S.A. 1993 Supp. 21-3414(a) provides:
“Aggravated battery is:
(1)(A) Intentionally causing great bodily harm to another person or disfigurement of another person; or
(B) intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or
(C) intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or
(2)(A) recklessly causing great bodily harm to another person or disfigurement of another person; or
(B) recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.”
K.S.A. 1993 Supp. 21-3414(b) further specifies:
“Aggravated battery as described in subsection (a)(1)(A) is a severity level 4, person felony. Aggravated battery as described in subsections (a)(1)(B) and (a)(1)(C) is a severity level 7, person felony. Aggravated battery as described in subsection (a)(2)(A) is a severity level 5, person felony. Aggravated batteiy as described in subsection (a)(2)(B) is a severity level 8, person felony.”
The district court noted that in order to impose sentence under the KSGA, somehow it had to adduce what the county attorney would have charged under the new, modified statutes and of what crime the jury would have found the defendants guilty. The court stated it remembered these cases well and found that the evidence showed there “was an intentional causing of great bodily harm by these defendants to . . . the victim.” Therefore, the court calculated each brother’s offense severity level to be a 4.
The Houdyshells argue that the trial court erred in determining their offense severity scores because it, in effect, found that a jury would have convicted them of a more serious crime under the new statutes than the crime with which they were charged. They argue the jury was never required to decide whether they intended to inflict great bodily harm on Cross and therefore it was inappropriate for the district court to find they intended to inflict great bodily harm when determining their offense severity scores. The Houdyshells contend the only way to determine an appropriate offense severity level is to look at the language of the information or complaint upon which a defendant stood trial and determine what offense and offense severity level that crime would convert to under the KSGA.
The State argues that the courts should look to the evidence adduced at trial and keep in mind that defendants are presumed to intend the natural and probable consequences of their acts when determining an appropriate offense severity level. It contends K.S.A. 1993 Supp. 21-3414 was rewritten so a court could rank a defendant’s offense severity for aggravated battery based first upon the harm done and, second, upon the defendant’s intention. Because the offense severity level is based primarily upon the ultimate harm done to the victim, it was appropriate for the district court in this case to find the Houdyshells’ offense severity levels should be the highest available for aggravated batteiy.
Whether the district court erred in determining the Houdyshells’ offense severity levels involves an interpretation of the KSGA. Interpretation of a statute is a question of law. State v. Donlay, 253 Kan. 132, 853 P.2d 680 (1993). Therefore, this court’s review of this issue is unlimited, and this court is not bound by the determinations of the district court. Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
K.S.A. 1993 Supp. 21-4724(f) mandates that the district court shall calculate what the appropriate sentence would have been under the KSGA for an offender sentenced after July 1, 1993, for a pre-July 1, 1993, crime. The statute gives no guidance on how a district court should calculate an appropriate offense severity level under the new law. In most circumstances, this calculation should not be a problem because the court can look at the offense of conviction under the old law and simply look to the new statutes to determine what offense severity level that crime is under the new statute. The problem arises in cases where, as in the aggravated battery statute, the statute has been amended effective July 1, 1993, and has been subdivided into different offense severity levels depending on the circumstances of the crime. The district court must determine what offense severity level is appropriate for the crime of conviction.
The Houdyshells were each charged with unlawfully touching or applying force to Cross “with the intent to injure that person and which inflicted great bodily harm upon him or was done in a manner whereby great bodily harm, disfigurement, dismemberment, or death could be inflicted.”
Based on the language of the information, the Houdyshells’ crime should be considered aggravated battery under K.S.A. 1993 Supp. 21-3414(a)(l)(B) or (C), because the State did not charge the Houdyshells with intentionally causing great bodily harm. Therefore, they would have an offense severity level of 7.
The crime for which the Houdyshells were charged and convicted required the State to prove: (1) intent to injure and (2) great bodily harm was inflicted or could have been inflicted. The information filed against both Houdyshells and the instruction given by the trial court closely followed the language of the former aggravated battery statutes and included both elements.
The severity level 4 version of aggravated battery as calculated by the trial court contained an additional element not included in the former aggravated battery statute: intent to commit serious bodily harm. This additional element was neither alleged nor proven in the Houdyshell cases.
It was error for the trial court to relieve the State of its burden to prove this element of the crime when it calculated the offense severity level as 4 in both cases, thus denying the Houdyshells the right to conversion of sentence under the KSGA.
In any criminal case, the information, complaint, or indictment is “the jurisdictional instrument upon which the accused stands trial.” State v. Chatmon, 234 Kan. 197, 204-05, 671 P.2d 531 (1983). If the district court has no jurisdiction over the offense, it has no power to pronounce sentence for that offense. 234 Kan. at 205. If all essential elements of a crime are not charged in a complaint, or the crime is not a lesser included crime of the offense charged, the district court may not impose sentence for the crime not charged. Here, one of the essential elements of a severity level 4 aggravated battery, intent to do serious bodily harm, was not charged; therefore, the district court had no power to calculate the Houdyshells’ KSGA sentence as though they had been convicted of a severity level 4 aggravated battery.
Further, in In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970), the Supreme Court explicitly held that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975), applied the rule from Winship in a sentencing context. In that case, the State considered the crime of homicide one crime but subdivided it into two separate kinds of homicide, murder and manslaughter. Malice was an essential element of murder. The element of malice was implied unless the defendant could show by a preponderance of the evidence that he or she acted in the heat of passion. 421 U.S. at 686. The Court found that the safeguard of Winship, the .requirement of proof beyond a reasonable doubt of all elements of the offense including malice, was required because of the large difference in sentencing for the two forms of homicide. 421 U.S. at 698.
In this case as in Mullaney, a crime has been subdivided into separate types of the same crime with the more severe crime having an element not included in the lesser. Due process requires proof beyond a reasonable doubt of every element of the greater type of the crime before a court may sentence a defendant for that crime. Therefore, because the State neither alleged nor was required to prove to the jury intent to do serious bodily harm beyond a reasonable doubt, the district court erred in calculating the Houdyshells’ KSGA sentence as a severity level 4 aggravated battery offense.
Floyd Houdyshell’s conviction for aggravated battery is affirmed. The trial court’s findings regarding the offense severity levels of both defendants are reversed, and the case is remanded for further proceedings. | [
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Brazil, J.:
Dee Shannon Dillard appeals from the district court’s imposition of a sentence pursuant to the Kansas Sentencing Guidelines Act. We affirm but remand for clarification of sentence.
Dillard pled guilty to possession of stolen property. His criminal history classification of two plus misdemeanors placed him in a 9-H grid box. The district court sentenced him to 7 months’ imprisonment with 12 months’ post-release supervision. The duration is consistent with the grid box; no dispute is raised over the length of the sentence. The district court imposed imprisonment for a presumed nonimprisonment grid box crime because Dillard was on probation when he committed the crime. The court revoked Dillard’s probation and made the sentences consecutive, citing K.S.A. 1994 Supp. 22-3716(b) in support of its decision.
The record on appeal indicates that approximately four months later, Dillard filed a petition pursuant to K.S.A. 60-1507. He claimed that his probation had been unlawfully revoked and that he remained in the custody of the county sheriff instead of the Secretary of Corrections. He also contended that, counting good time credit, he was entitled to be released. The court, without commenting on Dillard’s claims, suspended the balance of his sentence and assigned him to 24 months of probation.
Dillard first argues the district court did not properly sentence him under the guidelines. He claims no justification was provided for the court’s decision to make his presumed nonimprisonment sentence an imprisonment sentence and to run the guidelines sentence consecutive to a previous misdemeanor sentence.
K.S.A. 1994 Supp. 22-3716(b) states in relevant part:
“When a new felony is committed while the offender is on probation or assignment to a community correctional service program, the new sentence shall be imposed pursuant to the consecutive sentencing requirements of K.S.A. 21-4608 and amendments thereto, and the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime does not constitute a departure.”
When called upon to interpret the guidelines, the Kansas Supreme Court has referred to the two primary rules of statutory interpretation: First, the courts must give effect to the plain and unambiguous language used within a statute to express the intent of the legislature. Second, the intent of the legislature controls. State v. Gonzales, 255 Kan. 243, 248-49, 874 P.2d 612 (1994).
K.S.A. 1994 Supp. 22-3716(b) provided that a sentence for a new felony must be consecutive when probation is revoked. Clearly, the use of the term new felony was intended to distinguish the present felony for which the sentence is being imposed with a prior felony. Further, the prior felony must refer to a felony conviction for which the offender was on probation or assignment to a community correctional sefvice program when the new felony was committed.
These conclusions are supported by the statement in K.S.A. 1994 Supp. 22-3716(b) that die consecutive sentence is mandated as described in K.S.A. 21-4608. K.S.A. 1994 Supp. 21-4608(b) and (c) each provided for persons convicted and sentenced for crimes committed while on probation. Subsection (b) related to persons who commit a crime while on probation for a misdemeanor and provides that the sentences for the new crime may be imposed to run concurrendy or consecutively. Subsection (c), however, related to a person on probation for a felony when the new crime is committed and provides that the person shall serve the sentence consecutively.
In this case, Dillard was on misdemeanor probation when he committed the possession of stolen property offense. Therefore, the mandatory consecutive sentence under K.S.A. 1994 Supp. 22-3716(b) was not applicable. Likewise, the provision in K.S.A. 1994 Supp. 22-3716(b), that imposition of imprisonment sentence for a presumed nonprison crime does not constitute a departure, is not applicable in Dillard’s case, and the court erred when it departed from the presumed nonprison sentence without providing substantial and compelling reasons. However, the error is moot because Dillard was granted probation and is not in custody.
Dillard also contends the trial court conditioned his release on 24 months of probation rather than 12 months’ post-release supervision. Probation is defined, in part, as “a procedure under which a defendant, found guilty of a crime upon verdict or plea, is released by the court after imposition of sentence, without imprisonment except as provided in felony cases, subject to conditions imposed by the court and subject to the supervision of the probation service ... or community corrections.” K.S.A. 1994 Supp. 21-4602(c).
The guidelines state: “If the sentencing judge imposes a non-prison sentence as a dispositional departure from the guidelines, the recommended duration shall be as provided in subsection (c) of K.S.A. 21-4611.” (Emphasis added.) K.S.A. 1994 Supp. 21-4719(d). K.S.A. 1994 Supp. 21-4611(c), in relevant part, dictates:
“For all crimes committed on or after July 1,1993, the recommended duration of probation in all felony cases is as follows:
“(1) For nondrug crimes:
(A) Thirty six months for crimes in crime severity levels 1 through 5; and
(B) 24 months for crimes in crime severity levels 6 through 10.”
Application of K.S.A. 1994 Supp. 21-4719(d) and K.S.A. 1994 Supp. 21-4611(c) allows for probation to be granted under the guidelines as a dispositional departure. The application of K.S.A. 1994 Supp. 21-4611(c) to a presumed nonimprisonment crime is not specifically indicated within the guidelines. The statutory language in K.S.A. 1994 Supp. 21-4719(d) applies when probation is a dispositional departure by a trial judge who does not wish to impose an imprisonment sentence. Probation is not a dispositional departure from a nonimprisonment sentence. K.S.A. 1994 Supp. 21-4610(b) indicates that conditions of probation may be applied equally to presumptive nonimprisonment sentences, i.e., the status is the same.
K.S.A. 1994 Supp. 21-4611(c) does apply to nonprison sanctions. K.S.A. 1994 Supp. 21-4611(c) indicates the provision applies to “all crimes committed on or after July 1, 1993,” and the recommended probation periods apply to “all felony cases.” (Emphasis added.) Our review indicates that probation under the guidelines is similar to probation under indeterminate sentencing.
K.S.A. 1994 Supp. 21-4704(a) and K.S.A. 1994 Supp. 21-4705(a) designate the printed nondrug and drug grid boxes as applicable to felony sentencing after July 1, 1993. A grid sentence and probation are separate and distinct. K.S.A. 1994 Supp. 21-4703(q) defines presumptive sentence as the sentence provided in a grid box for an offender properly classified in that grid box. K.S.A. 1994 Supp. 21-4703(o) states that “nonprison sanction” and “nonimprisonment” both mean probation or any other community based disposition. K.S.A. 1994 Supp. 21-4704(e)(3) applies to presumed nonimprisonment sentencing and directs the sentencing court to “pronounce the prison sentence as well as the duration of the nonprison sanction at the sentencing hearing.”
The appropriate procedure under the guidelines for sentencing an individual within a presumed nonimprisonment grid box is as follows:
1) The sentencing court shall pronounce the criminal sentence as indicated by the range listed in the applicable grid box or as provided under die rules for a departure. If a dis-positional departure is announced or operation of a statute (e.g., K.S.A. 1994 Supp. 21-4704[g]) invalidates the presumption of nonimprisonment, then the court is finished.
2) If the sentencing court does not announce a dispositional departure and the presumption of nonimprisonment is not rebutted by a statute, the court must then impose a non-prison sanction as directed by K.S.A. 1994 Supp. 21-4611(c).
The limitations on orders of probation are dictated by K.S.A. 1994 Supp. 21-4611(c)(3), which states:
“Except as provided in subsections (c)(4) and (c)(5), the total period in all cases shall not exceed 60 months, or the maximum period of the prison sentence that could be imposed whichever is longer. Nonprison sentences may be terminated by the court at any time.” (Emphasis added.)
In this case, the trial court’s order of 24 months’ probation was consistent with the directives and recommendation of K.S.A. 1994 Supp. 21-4611(c). However, a problem still exists because it is unclear whether Dillard was serving his previous misdemeanor sentence prior to receiving probation on his 9-H grid box conviction.
The trial court erred in ordering Dillard to imprisonment without providing any substantial and compelling reasons to substantiate its imposition of a dispositional departure. However, the error is moot. The court’s order of probation is affirmed, but the case is remanded for sentence clarification to determine what sentence was being served before the court suspended the 9-H grid box sentence and ordered probation.
Affirmed and remanded. | [
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|
Rulon, J.:
Defendant, Robert Starks, appeals the sentences he received as a result of his Alford plea to one count of kidnapping, K.S.A. 1993 Supp. 21-3420(c); two counts of aggravated batteiy, K.S.A. 1993 Supp. 21-3414(a)(l)(A); one count of aggravated assault, K.S.A. 1993 Supp. 21-3410(a); one count of aggravated assault of a law enforcement officer, K.S.A. 1993 Supp. 21-3411; and one count of criminal damage to property, K.S.A. 1993 Supp. 21-3720(a)(l). Unquestionably, the sentences imposed were in accordance with a plea agreement between defendant and the State. The record clearly shows that defendant and the State requested the sentencing court to impose the sentences and the court imposed the sentences as requested.
The critical issue in this case is one of this court’s jurisdiction to review a defendant’s sentence under the Kansas Sentencing Guidelines Act, K.S.A. 1993 Supp. 21-4701 et seq. Under the provisions of K.S.A. 1993 Supp. 21-4721(c), if the crime was committed on or after July 1, 1993, an appellate court shall not review a sentence if:
(1) The sentence is within the presumptive sentence for the crime; or
(2) the sentence is the result of an agreement between the State and the defendant which the sentencing court approves on the record.
However, K.S.A. 1993 Supp. 21-4721(e)(l) provides that in any appeal, the appellate court may review a claim that a sentence is the result of partiality, prejudice, oppression, or corrupt motive.
We understand all parties agree that the facts of defendant’s appeal fall within K.S.A. 1993 Supp. 21-4721(c). However, defendant argues that despite the language in subsection (c), subsection (e) provides an alternate avenue for appellate review of his sentence. Defendant argues the language of the statute is ambiguous and therefore should be interpreted in his favor.
This is an issue of first impression under the new sentencing guidelines and is solely a question of statutory interpretation and, consequently, a question of law. Therefore, this court’s scope of review is unlimited. State v. Williams, 18 Kan. App. 2d 424, 425, 856 P.2d 158 (1993). “ Tt is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained.’ ” City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993).
“ ‘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.’ ” State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994).
“ ‘[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.]” Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992).
“ ‘In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia. When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.’ [Citation omitted.]” (Emphasis omitted.) 251 Kan. at 516.
“ ‘There is a presumption that the legislature does not intend to enact useless or meaningless legislation.’ ” 251 Kan. at 515.
The language in K.S.A. 1993 Supp. 21-4721(c) and (e) is arguably contradictory. However, it is our duty, where possible, to construe the statute to give effect to both sections.
If this court were to adopt defendant’s suggested statutory construction of this act, such interpretation would effectively eviscerate K.S.A. 1993 Supp. 21-4721(c). Following defendant’s argument, a defendant who received a sentence within the presumptive range of the sentencing guidelines who had second thoughts about a sentence received as a result of a plea agreement could circumvent subsection (c) by claiming the imposed sentence was the result of partiality, prejudice, oppression, or corrupt motive. We do not believe defendant’s interpretation was the intent of the legislature.
Under the prior indeterminate sentencing scheme, our Supreme Court concluded that where (1) a defendant knowingly and voluntarily entered into a plea agreement which contained a specific sentencing request; (2) the defendant urged the court to impose the recommended sentence; and (3) the district court imposed the recommended sentence, the defendant was deemed to have waived any consideration of the sentencing factors contained in K.S.A. 21-4601 and K.S.A. 21-4606. State v. Crawford, 250 Kan. 174, Syl. ¶ 1, 824 P.2d 951 (1992). K.S.A. 1993 Supp. 21-4721(c)(2) is the codification of Crawford for sentencing guidelines purposes. The only difference between subsection (c)(2) and the Crawford ruling is that the statute requires the sentencing court to approve the plea agreement on the record.
We believe K.S.A. 1993 Supp. 21-4721(c)(l) was adopted by the legislature to foreclose the type of appeals which had previously been lodged under the former statutory scheme alleging that the sentencing court abused its discretion. Because the sentencing court’s discretion is to a large extent limited by the guidelines, if the court sentences a defendant to a term within the presumptive sentence range for the crime committed, such a sentence standing alone cannot be the result of partiality, prejudice, oppression, or corrupt motive.
The plain language of the statute indicates that an appellate court shall not review a sentence if such is within the presumptive range for the crime or it is the result of a plea agreement which has been approved by the court on the record. K.S.A. 1993 Supp. 21-4721(c). However, an appellate court may, at its discretion, review such a sentence if the defendant can show that the sentencing court erred in computing the criminal history, in ranking the crime severity level, or that the sentence was the result of partiality, prejudice, oppression, or corrupt motive by the sentencing court. K.S.A. 1993 Supp. 21-4721(e). The burden is upon the party claiming error to show the sentence was the result of partiality, prejudice, oppression, or corrupt motive. See State v. Heywood, 245 Kan. 615, 620-21, 783 P.2d 890 (1989) (defendant who asserts the court abused its discretion in sentencing bears the burden to show such abuse.) We are satisfied our interpretation here is in accord with the long-standing rule that a sentence within the statutory guidelines will generally not be disturbed on appeal. State v. Turner, 252 Kan. 666, 847 P.2d 1286 (1993).
Here, defendant’s sentences were the presumptive sentences for the crimes committed and were the result of a plea agreement between defendant and the State. Except for the fact that the sentencing court did not expressly approve the sentences bargained for, defendant’s situation falls within the provisions of K.S.A. 1993 Supp. 21-4721(c)(l) and (2). While the better practice would be for the sentencing court to state on the record that the court approved of the sentences provided for in the plea agreement, we are satisfied here that by imposing the sentences defendant requested, the sentencing court implicitly approved the bargained-for sentences.
Defendant’s primary argument is that, based on the circumstances surrounding the commission of the crimes, he did not deserve the sentences imposed. Such circumstances arguably are relevant for the sentencing court in deciding whether to impose the low, high, or mid-range sentence within the presumptive sentencing range or in deciding whether a departure sentence is appropriate. However, whenever a defendant is sentenced to a presumptive sentence and there is no claim of error in regard to crime severity level or criminal history, there is a strong legislative presumption that the sentence is not the result of partiality, prejudice, oppression, or corrupt motive. Defendant has failed to come forward with any evidence which would overcome that statutory presumption.
Appeal dismissed. | [
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|
Elliott, J.:
Jerrold Hinderliter (Jerrold) appeals the trial court’s grant of summary judgment in favor of Barbara Doughty, Marsha Polansky, and Anita White (appellees). The trial court ruled that Glenn Hinderliter’s (Glenn) intestate estate passed to appellees as well as to Jerrold.
We affirm.
The facts are essentially undisputed. Appellees are Glenn’s biological children. Glenn and appellees’ mother divorced. Their mother remarried and, with Glenn’s consent, appellees’ stepfather adopted them. Glenn also remarried, and Jerrold was bom to that marriage.
Glenn died intestate in 1991. The administrator filed a petition for final settlement, naming appellees and Jerrold as heirs. Jerrold argued appellees were no longer Glenn’s children or heirs due to their adoption. The trial court granted appellees’ motion for summary judgment.
Initially, an issue no one addresses should be mentioned. Do the adoption statutes in effect at the time appellees were adopted, or those in effect at the time of Glenn’s death, control? The majority of jurisdictions have held that the law in effect at the time of the intestate’s death controls. See Annot., 18 A.L.R.2d 960. We choose to follow the majority rule; therefore, we will consider the statutes in effect in 1991, the year of Glenn’s death, in deciding this case. See generally Meek v. Ames, 177 Kan. 565, 571, 280 P.2d 957 (1955); In re Estate of Fortney, 5 Kan. App. 2d 14, 17-20, 611 P.2d 599 (1980).
May adopted children inherit from their biological parents?
This case involves interpretation of both the adoption and the intestacy statutes. See 2 Am. Jur. 2d, Adoption § 200. The issue is, therefore, a question of law, and our review is plenary. See Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
The relevant intestacy statutes are K.S.A. 1991 Supp. 59-501 and K.S.A. 59-506. K.S.A. 1991 Supp. 59-501 provides that “children” includes biological children. K.S.A. 59-506 provides that if a decedent leaves children but no spouse, the estate passes to the children; or, if a decedent leaves a spouse and children, half of the estate passes to the children.
The relevant adoption statute is K.S.A. 1991 Supp. 59-2118(b), which provides:
“When adopted, a person shall be entitled to the same personal and property rights as a birth child of the adoptive parent. The adoptive parent shall be en- tided to exercise all the rights of a birth parent and be subject to all the liabilities of that relationship. Upon adoption, all die rights of birth parents to the adopted person, including their right to inherit from the person, shall cease, except the rights of a birth parent who is the spouse of the adopting parent.”
The adoption statute does not provide for the inheritance rights of adopted children from their biological parents. Case law on this issue is sparse and hoaiy with age (see In re Estate of Bernatzki, 204 Kan. 131, 133, 460 P.2d 527 [1969]; however, the statutes have remained essentially the same since a trilogy of cases was decided in 1919 and 1921. See K.S.A. 1991 Supp. 59-506 and K.S.A. 59-2118; G.S. 1915, 3841 and 6363. These cases, thus, remain controlling. The cases are: Bartram v. Holcomb, 109 Kan. 87, 198 Pac. 192 (1921); Baird v. Yates, 108 Kan. 721, 196 Pac. 1077 (1921); and Dreyer v. Schrick, 105 Kan. 495, 185 Pac. 30 (1919).
In Dreyer, the court held a child adopted by one set of parents, then subsequently adopted by another set of parents, may inherit from the first set of adoptive parents. 105 Kan. 475, Syl. ¶ 2. In Baird, the court held that absent a statute to the contrary, a biological parent may inherit from a child adopted by another. 108 Kan. 721, Syl. ¶ 2. And in Bartram, the court held a child adopted by a grandparent after the death of the child’s parent may inherit from the grandparent in a dual capacity: as both a child and as a grandchild. 109 Kan. 87, Syl.
Jerrold relies on more recent cases holding that termination of parental rights completely severs the rights between parent and child. See Wilson v. Kansas Gas & Electric Co., 12 Kan. App. 2d 336, 340, 744 P.2d 139 (1987); and In re Wheeler, 3 Kan. App. 2d 701, 702, 601 P.2d 15, rev. denied 227 Kan. 927 (1979).
Jerrold is incorrect in his arguments. The three older cases still control. The legislature has recently recognized the problem, and to cure the dichotomy, the legislature in effect overruled the later cases and codified the earlier cases. See L. 1993, ch. 195, Minutes of House Judiciary Committee, Feb. 1, 1993, comments of Representative Heinemann concerning “put[ting] into law what is generally case law.”
In support of the bill, the Judicial Council offered House Judiciary Attachment #4, which provided:
“A series of cases dating from approximately 1920 hold that, absent a statute to the contrary, a child inherits from both natural and adoptive parents. [Citations omitted.] K.S.A. 1991 Supp. 59-2118 addresses the effect of adoption on the respective rights of the child, birth parents and adoptive parents. The statute clearly terminates the right of birth parents to inherit from tire adopted child but does not preclude the adopted child from inheriting from the birth parents.
“More recent cases involving situations in which there has been a termination of parental rights indicate the termination of parental rights completely severs the parent-child relationship and ‘. . . there is a complete and final divestment of all legal rights, privileges, duties and obligations of the parent and child with respect to each other.’ [Citation omitted.] Accordingly, in a case where parental rights had been previously terminated, the biological children were held not to be heirs at law for purposes of the wrongful death statute. [Citation omitted.]
“Consequently, where a natural parent has consented to the adoption of his or her child, the child may inherit from both the natural and adoptive parents. Where parental rights have been terminated and there has been no subsequent adoption, the child has neither natural or adoptive parents from which to inherit.” Judicial Council Testimony on 1993 H.B. 2101, Inheritance Rights of Children, Feb. 1, 1993.
L. 1993, ch. 195 amended K.S.A. 38-1583 (termination of parental rights), K.S.A. 59-2118 (effect of adoption), K.S.A. 59-2124 (relinquishment of child to an agency), and K.S.A. 59-2136 (relinquishment and adoption to terminate parental rights). The bill inserts an express provision in each statute providing that children may inherit from their biological parents regardless of termination, relinquishment, or adoption.
Although these amendments were not effective until July 1, 1993, it is apparent to us the legislature believed “the law” in Kansas in 1991, when Glenn died, allowed adopted children to inherit from their biological parents, while children whose parents had their parental rights terminated could not. Thus, we hold that in 1991, appellees had the right to inherit from Glenn’s estate in the same manner as Jerrold — as biological children of Glenn.
Jerrold also argues that res judicata, collateral estoppel, and equitable estoppel bar appellees’ claim to Glenn’s estate. We disagree.
Res judicata encompasses both issue preclusion and claim preclusion. Issue preclusion (collateral estoppel) precludes relitigation of issues previously determined. Claim preclusion precludes relitigation of a claim that has been finally adjudicated in a court of competent jurisdiction. Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 690, 751 P.2d 122 (1988).
Neither doctrine applies to the present case. For the requirements of collateral estoppel, see In re Estate of Beason, 248 Kan. 803, 813, 811 P.2d 848 (1991). While the record in the present case does not contain a copy of appellees’ adoption decree, no one claims it contains any indication that the issue of appellees’ right to inherit from Glenn was there determined. Since that issue has not been previously litigated, issue preclusion (collateral estoppel) does not apply.
Nor does claim preclusion apply. See Jackson Trak, 242 Kan. at 690. In the present case, there is no identity in the things sued for between appellees’ adoption and the present claim of inheritance rights. Further, there is no identity of parties.
To support his claim of equitable estoppel, Jerrold argues appellees acquiesced in or consented to their adoption, but cites to nothing in the record to support that contention. And even if appellees did consent to their adoption, that is not the same as their voluntary consent to give up any rights they might have to inherit from Glenn. Thus, an essential element of equitable estoppel is lacking. See Tucker v. Hugoton Energy Corp., 253 Kan. 373, 382-83, 855 P.2d 929 (1993).
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Brazil, J.:
In 1992, pursuant to a plea agreement, Gerald Colston pled no contest to two counts of aggravated incest with a child. He was originally sentenced to two to five years of imprisonment on each count. The sentences were to run consecutively for a controlling term of imprisonment of 4 to 10 years. His sentences were subsequently modified to run concurrently for a controlling term of two to five years of imprisonment.
Pursuant to K.S.A. 1993 Supp. 21-4724, the Department of Corrections (DOC) issued a report indicating that Colston’s crimes were, for conversion eligibility purposes, severity level 5 offenses and that Colston was eligible for conversion. The State filed an objection to the DOC report, claiming Colston’s crimes should be classified as severity level 2. The district court denied the State’s motion, ruling that classification of Colston’s convictions as level 2 offenses would be an impermissible enhancement of sentence. The State has appealed.
Colston’s offenses took place between January 1, 1990, and February 12, 1991. He pled no contest to two counts of aggravated incest, K.S.A. 21-3603, in August of 1992. At the time of Colston’s offenses, K.S.A. 21-3603 read in relevant part:
“(1) Aggravated incest is marriage to or engaging in any prohibited act enumerated in subsection (2) with a person who is under 18 years of age and who is known to the offender to be related to the offender as any of the following biological, step or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece.
“(2) The following are prohibited acts under subsection (1):
(a) Sexual intercourse, sodomy or any unlawful sex act, as defined by K.S.A. 21-3501 and amendments thereto; or
“(3) Aggravated incest is a class D felony.”
Pursuant to K.S.A. 1993 Supp. 21-3603, aggravated incest is now defined in relevant part as:
“(a) Aggravated incest is: (1) Marriage to a person who is under 18 years of age and who is known to the offender to be related to the offender as any of the following biological, step or adoptive relatives: Child ... or
(2) engaging in: (A) Otherwise lawful sexual intercourse or sodomy as defined by K.S.A. 21-3501 and amendments thereto; or (B) any lewd fondling, as described in subsection (a)(1) of K.S.A. 21-3503 and amendments thereto, with a person who is 16 or more years of age but under 18 years of age and who is known to the offender to be related to the offender as any of the following biological, step or adoptive relatives: Child ....
“(b) Aggravated incest as described in subsection (a)(2)(A) is a severity level 5, person felony. Aggravated incest as described in subsections (a)(1) and (a)(2)(B) is a severity level 7, person felony.”
The State argues that Colston was convicted of engaging in an unlawful sexual act, oral copulation, with a person Colston knew to be his child and who was seven or eight years old. Pursuant to the 1993 version of K.S.A. 21-3603, Colston could not be'convicted of aggravated incest, because aggravated incest only applies to unlawful acts with persons over 16 but under 18 years of age. Therefore, he would be guilty of aggravated criminal sodomy, K.S.A. 1993 Supp. 21-3506. K.S.A. 1993 Supp. 21-3506 reads in relevant part:
“(a) Aggravated criminal sodomy is:
(1) Sodomy with a child who is under 14 years of age;
(2) causing a child under 14 years of age to engage in sodomy with any person or an animal; . . .
“(c) Aggravated criminal sodomy is a severity level 2, person felony.”
K.S.A. 1993 Supp. 21-3501(2) defines sodomy as “oral contact or oral penetration of the female genitalia or oral contact of the male genitalia.”
The State argues that the DOC should have determined the severity level of Colston’s crime as if the crime were committed on or after July 1, 1993, as the first step in determining if he was eligible for conversion. Because Colston could not have been convicted of aggravated incest for the instant crime because the victim was less than 16 years of age, the DOC should have determined which post-guidelines criminal statute fit Colston’s act. Therefore, the State argues that the DOC should have looked to the charging instrument, plea transcript, trial transcript, or other documentation to determine what crime Colston could have been convicted of after July 1, 1993.
Colston counters that the trial court has the discretion to deny the State’s challenge and, therefore, this issue is subject to the abuse of discretion standard. Further, Colston argues that reclassifying his crime as aggravated criminal sodomy would violate the prohibition against ex post facto laws. He claims that the effect of the State’s request would be to impose a more severe punishment on him by denying him the retroactive application of the guidelines.
Contrary to Colston’s argument, this is a question of statutory interpretation and thus a question of law. A trial court’s interpretation of a statute is 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). “ It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained.’ ” City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993) (quoting West v. Collins, 251 Kan. 657, Syl. ¶ 3, 840 P.2d 435 [1992]).
“ '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.’ ” State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994) (quoting Brown v. Keill, 224 Kan. 195, Syl. ¶ 3, 580 P.2d 867 [1978]).
“ ‘[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.]” Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992).
“ ‘In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia. When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.’ [Citation omitted.]” (Emphasis omitted.) Todd o. Kelly, 251 Kan. at 516.
K.S.A. 1993 Supp. 21~4724(c)(l) provides in part: “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.” (Emphasis added.)
Colston argues that he was convicted of two counts of the crime of aggravated incest and that after July 1, 1993, the crime of aggravated incest is a severity level 5 felony.
The State contends that the clear intent of the legislature was that the DOC should look to the criminal acts involved rather than the title or name of the offense to determine the crime involved and whether the inmate should be eligible for conversion.
In the instant case, the amended information reads in relevant part:
“Between January 1, 1990, and February 12, 1991, one Gerald Colston did unlawfully, willfully and feloniously engage in an unlawful sexual act, to-wit: Aggravated Criminal Sodomy, to-wit: oral copulation, in violation of K.S.A. 21-3506(b), with a person he knew to be his child, to-wit: [R.B.] (DOB: 10-9-83), who is under 18 years of age, in violation of K.S.A. 21-3603. (Aggravated Incest, ‘D’ Felony).
“COUNT II
“At the County of Wyandotte, State of Kansas, for a further, different and second count herein; Information reads that between January 1, 1990, and February 12, 1991, one Gerald Colston did unlawfully, willfully and feloniously engage in an unlawful sexual act, to wit: Aggravated Criminal Sodomy, to-wit: oral copulation, in violation of K.S.A. 21-3506(b), with a person he knew to be his child, to-wit: [R.B.] (DOB: 10-9-83), who is under 18 years of age, in violation of K.S.A. 21-3603. (Aggravated Incest, ‘D’ Felony).”
Colston pled nolo contendere to both counts. Therefore, if the court or the DOC is to look to the acts alleged in the charging document as well as the journal entry of conviction to classify the crime as if committed after July 1, 1993, Colston’s conviction fits the aggravated criminal sodomy statute.
In 1993, many of the sex crimes were re-codified and subdivided into different offense severity levels depending on the circumstances of the crime. Aggravated incest was one of the statutes re-codified.
The Kansas Attorney General and the Director of the Kansas Sentencing Commission apparently agree with the State in this case. In a memorandum opinion to county and district attorneys from the Attorney General and the Director of the Sentencing Commission dated July 2, 1993, they recognized the need to identify the - criminal activity involved when classifying crimes under the Kansas Sentencing Guidelines Act (KSGA). They stated:
“The fact that many crimes have been redefined and subclassified under the new law will mean that you need to take a careful look at the manner in which the criminal activity for which the inmate has been convicted is now to be treated in terms of the statute violated and the crime severity level. Other sex offenses [in addition to indecent liberties, aggravated indecent liberties and rape previously mentioned in this memorandum], aggravated battery, and certain drug offenses are included among those crimes whose definition has changed and which are therefore deserving of careful attention as far as the proper severity level classification is concerned.”
We agree with the State’s argument and conclude that the legislative intent of K.S.A. 1993 Supp. 21-4724(c)(l) is to look to the criminal acts committed prior to July 1, 1993, for which the defendant was convicted and then determine what crime those acts would constitute after July 1, 1993, and the appropriate severity level.
In this case, Colston pled nolo contendere, was found guilly, and was convicted of acts described in the amended information which, at the time of his plea, constituted the elements of aggravated incest contrary to K.S.A. 21-3603, but which acts constitute the elements of aggravated criminal sodomy after July 1, 1993, contrary to K.S.A. 1993 Supp. 21-3506.
Colston argues that allowing the DOC or the sentencing court to reclassify his conviction as aggravated criminal sodomy would violate the constitutional prohibition against ex post facto laws.
“The United States Constitution prohibits the legislative enactment of any ex post facto law. U.S. Const., art. I, § 10. Two critical elements must be present for a criminal or penal law to be ex post facto: It must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. A criminal law disadvantages the offender if it punishes an act not punishable when committed, imposes additional punishment to that then prescribed, aggravates tire crime, or alters the legal rules of evidence.” Lamb v. Kansas Parole Board, 15 Kan. App. 2d 606, Syl. ¶ 8, 812 P.2d 761 (1991).
It is clear that the KSGA operates retrospectively. The critical issue in this case is whether the reclassification of Colstons offense pursuant to the guidelines would disadvantage him.
Obviously, Colston’s act was punishable at the time committed. Also, reclassification of his crime does not impose additional punishment to that then prescribed. The guidelines specifically prohibit an enhancement of an offender’s sentence through application of the guidelines. K.S.A. 1993 Supp. 21-4724(e). Next, neither party claims that allowing the DOC or the sentencing court to convert Colston’s conviction, based on facts in the information, alters the legal rules of evidence. The only argument is that allowing a conviction of aggravated incest to be converted to aggravated criminal sodomy impermissibly aggravates the crime.
As a general rule, the criminal statutes and penalties in effect at the time of the commission of the offense control. State v. Mayberry, 248 Kan. 369, Syl. ¶ 15, 807 P.2d 86 (1991). The sentencing guidelines provide for limited retroactive application of guidelines sentences for certain classes of felons. Chiles v. State, 254 Kan. 888, 869 P.2d 707 (1994).
Colston’s controlling sentence is two to five years. If converted to a guidelines sentence at severity level 5, his sentence would be 32 months. Counting his good time credits accrued as of the date of die DOC report, Colston would have been eligible for parole in July of 1994. If his conviction is converted to aggravated criminal sodomy, a severity level 2 crime, his guidelines sentence would be 73 months. K.S.A. 1993 Supp. 21-4704. However, if deemed a severity level 2 crime, Colston is not be eligible to have his sentence converted to a guidelines sentence. K.S.A. 1993 Supp. 21-4724(c)(l).
The main flaw in Colston s argument is that he intimates that anything which denies him a shorter sentence necessarily aggravates the crime of his conviction and is, therefore, detrimental. In reality, the effect of conversion of his conviction, for retro-activity purposes, is to leave him in exactly the same position, neither better nor worse, than he was prior to the adoption of the guidelines. While he may not be eligible for a shorter sentence, neither is he required to serve one day longer than originally sentenced.
Colston cites two federal cases, U.S. v. Mondaine, 956 F.2d 939 (10th Cir. 1992), and U.S. v. Underwood, 938 F.2d 1086 (10th Cir. 1991), as support for his argument. However, neither of those cases are applicable because both address the situation where, at sentencing, the court failed to apply the substantive guidelines provisions that were in effect at the time the defendants committed their crimes. In both cases the 10th Circuit ruled that although the district courts are normally to apply the sentencing guidelines in effect at the time of sentencing rather than the guidelines in effect on the date of the offense, the ex post facto clause prohibits a retroactive application of a change in the guidelines if the change disadvantages the defendant. 956 F.2d at 942; 938 F.2d at 1090. Because Colston s crime was committed prior to the adoption of the KSGA and the revision of K.S.A. 21-3603 and because his crime is being converted for retroactive eligibility purposes only, there is no question that he is not being sentenced under a later, more severe version of a criminal law.
Although not raised by either party, we note that there is authority holding that by entering a plea of nolo contendere, Colston admitted all of the well-pleaded facts of the information for the purposes of the case. See Lott v. United States, 367 U.S. 421, 426, 6 L. Ed. 2d 940, 81 S. Ct. 1563 (1961); Lill v. State, 4 Kan. App. 2d 40, 42, 602 P.2d 129 (1979). Therefore, Colston admitted to each of the well-pleaded facts contained in both counts of the information. It is logical to allow the DOC and the sentencing court to use these admissions to determine what crime Colston would have been guilty of after July 1, 1993, for the limited purpose of determining whether he is eligible for retroactive application of the guidelines. This is especially true when the legislature has subdivided the crime of conviction into several levels of crimes. This would carry out the legislative intent to keep more serious offenders incarcerated and allow early release of certain less serious offenders. Whether the crime is considered more or less serious is determined by the severity level contained in the revised criminal code.
K.S.A. 22-3209 reads in relevant part:
“(2) A plea of nolo contendere is a formal declaration that the defendant does not contest the charge. When a plea of nolo contendere is accepted by the court, a finding of guilty may be adjudged thereon. The plea cannot be used against the defendant as an admission in any other action based on the same act.”
Using the nolo contendere plea for a guidelines retroactivity determination does not violate the statutory prohibition against use of the plea in other actions. Pursuant to K.S.A. 1993 Supp. 21-4724, the DOC reports, and any motions stating objections thereto, are to be submitted to the sentencing court in the original jurisdiction where the criminal case was filed. Because this retroactivity determination is in essence a continuation of the original case, there is no violation against the rule that a nolo contendere plea may not be used in any other action. Therefore, it was proper for the DOC and sentencing court to look to the well-pleaded facts of the information and to the journal entries to determine Colston’s post-guidelines crime of conviction.
The district court judge in this case denied the State’s motion, objecting to Colston’s severity rating because it would have been an enhancement of Colston’s sentence. K.S.A. 1993 Supp. 21-4724(e) reads, “If a sentence is converted as provided by this section, then all the rights and privileges accorded by the Kansas sentencing guidelines act shall be applicable. A person’s sentence shall not be increased in length through a conversion to one under sentencing guidelines.” (Emphasis added.) However, if Colston’s crime of conviction is, for guidelines purposes only, converted to a severity level 2 crime, he would not be eligible for conversion and his sentence could not be increased. Therefore, converting Colston s conviction would not result in an increased sentence. Only if Colston was eligible for conversion and the guidelines sentence was greater than his original sentence would K.S.A. 1993 Supp. 21-4724(e) come into play.
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|
Larson, J.:
Kansans for Fair Taxation, Inc., and fhe individual plaintiffs, herein called taxpayers, sued the Shawnee County Commission (Commission) seeking injunctive and declaratory relief. The trial court held it lacked subject matter jurisdiction absent the exhaustion of administrative remedies and dismissed the suit. Taxpayers appeal.
The petition stated that on or about March 15, 1993, the Shawnee County Appraiser’s office sent valuation notices to approximately 3,500 owners of Shawnee County property informing them that die valuations of their properties were to be increased. The Shawnee County Appraiser shortly thereafter decided these notices were improper since his office had not complied with the requirements of K.S.A. 1993 Supp. 79-1460, and he directed his staff to return the valuations to the lower 1992 levels.
Unfortunately, the computer system used by the appraiser s office automatically locked in the higher 1993 valuations and lacked any mechanism to return the valuations to their previous levels. Instead, the computer system treated the attempt to change valuations as if those properties had become subject to a tax appeal or protest. The computer then generated a record of hearing which reflects the change in the value came about as a result of the hearing. Thus, the computer generated hearing records regardless of whether the taxpayer had, in fact, had a hearing and sent notices to all affected taxpayers.
By the end of August and beginning of September 1993, the county’s computer had generated conflicting and inaccurate notices. Some taxpayers were notified that hearing deadlines were not met and their valuations were increased to the 1993 levels. Other taxpayers were notified that hearing deadlines had been satisfied and the valuation of their property was lowered to the 1992 levels. There was no relationship between the notice generated and whether any hearing had, in fact, taken place.
At the regular meeting of the Commission held during the week of September 12, 1993, in an attempt to resolve all the conflicts, the Commission voted two-to-one to increase the valuations of all of the affected properties to the 1993 levels initially proposed by the appraiser but later deemed invalid. Taxpayers hypothesized the Commission relied on the erroneously generated computer records regarding hearings and deadlines but do not claim that this explanation is, in fact, what happened.
Taxpayers filed suit requesting a declaratory judgment that the act of the Commission was illegal. They asked for an order enjoining the Commission from taking steps to enforce increases of property valuations without fully complying with the provisions of K.S.A. 1993 Supp. 79-1460, an order requiring the Commission to return the valuations of real property to the levels prior to the September Commission vote, and additional relief including attorney fees and expenses.
Our scope of review in cases where the trial court has granted a motion to dismiss is extremely liberal and was well summarized in Noel v. Pizza Hut, Inc., 15 Kan. App. 2d 225, 231, 805 P.2d 1244, rev. denied 248 Kan. 996 (1991):
“In essence, we are required to assume that the facts alleged by the plaintiffs are true, and we are required to make any reasonable inferences to be drawn from those facts. In addition, it is our duty to determine whether those pleaded facts and inferences state a claim, not only on the theory which may be espoused by the plaintiffs, but on any possible theory we can divine.”
The Kansas Supreme Court in Bruggeman v. Schimke, 239 Kan. 245, 247, 718 P.2d 635 (1986), had earlier adopted as the required scope of review for appeals from the granting of a motion to dismiss the language of Knight v. Neodesha Police Dept., 5 Kan. App. 2d 472, 620 P.2d 837 (1980):
“ “When a motion to dismiss under K.S.A. 60-212(fc)(6) raises an issue concerning the legal sufficiency of a claim, the question must be decided from the well-pleaded facts of plaintiff’s petition. The motion in such case may be treated as the modem equivalent of a demurrer.’ Syl. ¶ 1.
“ ‘Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff’s favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.’ Syl. ¶ 2.
“ ‘In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff’s description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened, or if these allegations are contradicted by the description itself.’ Syl. ¶ 3.”
See Blevins v. Board of Douglas County Comm'rs, 251 Kan. 374, 381, 834 P.2d 1344 (1992).
Applying the scope of review set forth above, we have unlimited review to consider the question of law of whether taxpayers’ cases should be dismissed for lack of jurisdiction. Zion Lutheran Church v. Kansas Comm’n on Civil Rights, 16 Kan. App. 2d 237, 239, 821 P.2d 334 (1991), aff’d 251 Kan. 206, 830 P.2d 536 (1992). The liberal nature of our scope of review is based upon pleading rules which do not require the plaintiff to identify the theory of recovery and do not bind the plaintiff to theories that are pled. See generally Oller v. Kincheloe’s, Inc., 235 Kan. 440, 446-49, 681 P.2d 630 (1984).
Taxpayers’ principal allegation is that the Commission impermissibly increased appraised valuations without complying with the inspection and recording requirement of K.S.A. 1993 Supp. 79-1460, which in relevant part reads as follows:
“[F]or tax year 1993, and each year thereafter, the valuation for all real property shall not be increased unless: (a) A specified review thereof is conducted, including an individual physical inspection of such property by the county or district appraiser or such appraiser’s designee provided that no such inspection shall be required to change the valuation of land devoted to agricultural use; (b) a record of such inspection is maintained, including documentation for such increase, and such record is available to tire affected taxpayer; and (c) for the taxable year next following the taxable year that the valuation for real property has been reduced due to a final determination made pursuant to tire valuation appeals process, documented substantial and compelling reasons exist therefor and are provided by the county appraiser.”
Taxpayers contend the trial court has jurisdiction over the allegations of their petition by virtue of die provisions of K.S.A. 60-907, which deals with “[i]llegal acts of public officers” and provides in part: “(a) Illegal tax, charge or assessment. Injunctive relief may be granted to enjoin the illegal levy of any tax, charge or assessment, the collection thereof, or any proceeding to enforce the same.”
Giving taxpayers’ pleading a liberal construction as we are required, their petition contends the Commission has attempted to proceed without statutory authority or any semblance of compliance with the inspection and reporting requirements of K.S.A. 1993 Supp. 79-1460, making this the type of illegal levy of a tax or assessment for which the legislature provides injunctive relief under K.S.A. 60-907.
K.S.A. 79-1411a states:
“[T]he county is hereby declared to be the governmental unit charged with the primary responsibility for the administration of all laws relating to the assessment, review, equalization, extension and collection of real and personal property taxes, except as hereinafter provided.”
Some color of authority for the Commission’s actions might have existed prior to 1992, when K.S.A. 79-1602 granted county commissions the power to review appraisal rolls and increase valuations of specific parcels. However, that statute was repealed by the 1992 Kansas Legislature. L. 1992, ch. 282, § 21. It is now the county or district appraiser who has the duty to appraise all tangible property, K.S.A. 1993 Supp. 79-1411b, and prepare and certify the appraisal roll, K.S.A. 79-14Í2a.
Although there is some authority granted for correction of irregularity in the appraisal and assessment process (see K.S.A. 79-1701[h]; K.S.A. 79-1701a), we find no statutory authority to unilaterally increase the valuations as the Commission did by its September 1993 order.
The Commission was not acting under authority to hear an appeal (see K.S.A. 1993 Supp. 79-1448; K.S.A. 1993 Supp. 79-1606), it was not acting as a hearing panel (K.S.A. 1993 Supp. 79-1611), and it had no authority to consider valuations after July 1 without specifically being directed to so by the Director of Property Valuation under K.S.A. 1993 Supp. 79-1404; K.S.A. 1993 Supp. 79-1606(d). The Commission has not presented us with any statutory provision justifying its authority to unilaterally raise the valuations. It is clear to us that taxpayers have alleged sufficient facts to show the Commission was proceeding without authority and contrary to the Kansas statutes.
The Commission centered its motion for dismissal on the doctrine of failure to exhaust administrative remedies as discussed by the recent Supreme Court decision of J. Enterprises, Inc. v. Board of Harvey County Comm’rs, 253 Kan. 552, 857 P.2d 666 (1993). The Commission’s contentions would require us to espouse a rule that because taxes could be paid under protest and administrative procedures then exist, the earlier illegality or lack of statutory authority is immaterial and the relief available under K.S.A. 60-907 is not allowed.
Historically, it has been held that when a board increased an assessment without giving the statutorily required notice, the body acted without authority and could be enjoined. Commissioners of Leavenworth v. Lang, 8 Kan. 284, Syl. ¶ 1 (1871). Some 20 years later a similar issue arose. Shawnee County determined that certain taxpayers’ property was undervalued and summarily ordered the county clerk to charge additional taxes. Existing statutes required notice before changes could be made. The Supreme Court found the tax was void and the court was not without power to grant an injunction even without an appeal from the taxing authority’s final decision. City Rly. Co. v. Roberts, 45 Kan. 360, 25 Pac. 854 (1891); Water Supply v. Roberts, 45 Kan. 363, 25 Pac. 855 (1891).
This same basic holding was adopted in Mobil Oil Corporation v. Reynolds, 202 Kan. 179, 181, 446 P.2d 715 (1968), where the Supreme Court held that jurisdiction existed to grant injunctive relief under K.S.A. 60-907. It was alleged the Director of Property Valuation’s order to the county clerk
“is contrary to and not in compliance with K.S.A. 79-1404 in six particulars which are fully set out in the petition. It is further alleged in detail that the statute does not authorize an added tax; there cannot be an increase in the assessed valuation of taxable property without a corresponding increase in the county’s tax levy; there cannot be an increase in the assessed valuation of taxable property in one year and the increase applied to reduction of tax levies in the county in a subsequent year, and the Director of Property Valuation has pretended to usurp and assume power and authority not granted to him by statute.”
In Sherwood Const. Co. v. Board of County Commrs., 167 Kan. 421, 207 P.2d 409 (1949), an injunction was granted against the county commission under the precursor to K.S.A. 60-907. There, the plaintiff alleged that the commission had assessed taxes on property outside the county and beyond its statutory jurisdiction. Although the county commission argued that the plaintiff must first exhaust its administrative remedies, the Supreme Court found the tax involved was illegal and not merely an erroneous asséssment or levy. 167 Kan. 421, Syl. ¶ 2.
Although appellees rely extensively on J. Enterprises, 253 Kan. 552, for the proposition that all available administrative remedies must be exhausted, our reading distinguishes it from our case, both factually and legally.
In J. Enterprises, a taxpayer brought suit to enjoin the taxing authority from collecting taxes on certain personal property which was being leased, claiming that it was exempt inventory, thereby entitling it to an injunction to prevent the illegal taxation under K.S.A. 60-907.
The Supreme Court raised the issue of jurisdiction based on the distinction raised in Mobil Oil that a court has jurisdiction to enjoin “an order of assessment illegally brought about,” but cannot enjoin “an assessment based on the discretion of the assessing authorities.” 202 Kan. at 182. The decision in J. Enterprises was based on the principle that while the court can review judicial concerns without exhaustion, matters of administrative concern require exhaustion of administrative remedies in order for the court to have jurisdiction. 253 Kan. at 556-57.
The J. Enterprises court did not claim that exhaustion was required in all cases and recognized the line of cases we have cited above that allows an injunction for actions outside the authority of the agency or contrary to law, as well as another line of cases allowing review of administrative-type decisions where they were alleged to be so arbitrary, capricious, or oppressive so as to amount to fraud. 253 Kan. at 560.
The controlling analysis of Justice Davis’ opinion in J. Enterprises is the application of the contrast between what are “administrative” and “judicial” concerns in the interpretation of statutes. 253 Kan. at 556-59. It is a judicial concern when an “action of an administrative official or board [is] taken without authority.” Mobil Oil Corporation v. McHenry, 200 Kan. 212, 234, 436 P.2d 982 (1968). The central holding of J. Enterprises is that a court will not have jurisdiction under K.S.A. 60-907 “where the county taxing authority acts in good faith and its action is taken in accordance with law but may involve an erroneous application of the law.” 253 Kan. at 559-60.
In contrast, J. Enterprises notes that courts can have jurisdiction where the county’s action is without statutory authority, contrary to statute, or, without jurisdiction, or an action of administrative character that is fraudulent, corrupt, or so oppressive, arbitrary, or capricious as to amount to fraud. 253 Kan. at 559-60. In our case, our required scope of review compels a finding that the Commission acted without statutory authority in the Sep tember 1993 order and earlier, and without complying with the express requirements of K.S.A. 1993 Supp. 79-1460. This matter may be considered without requiring that the taxes be paid under protest and subsequent administrative requirements be exhausted.
This is not a case where the expertise of the administrative agency needs to be considered. The agency is not charged with enforcing any statute limiting jurisdiction, and we would not be aided by any interpretation given by the Board of Tax Appeals. The question is not an issue such as what is meant by “inventory” but concerns whether the Commission had the jurisdiction to perform the challenged act. The statute that the Commission is alleged to have ignored does not direct it how to do its function but restricts its power to do the function at all. “[W]here state and local taxing officials do not perform their duties in accordance with the law, the issue presented to the court is not the exercise of their administrative judgment, but the legality of their acts.” Garvey Grain, Inc. v. McDonald, 203 Kan. 1, 13, 453 P.2d 59 (1969).
Additionally, taxpayers have specifically alleged facts showing the Commission’s actions were without statutory authority and contrary to the statute. These are instances which the J. Enterprises court recognized did not require the exhaustion of administrative remedies. It is fundamental that courts have the power to consider the question of whether an agency acts without statutory authority.
The rule which we should apply is well stated in Whitehead v. City of Fredonia, 235 Kan. 321, Syl. ¶ 1, 680 P.2d 286 (1984):
“The power of the courts under K.S.A. 60-907(a) to grant relief in matters of taxes and assessments imposed by the governing body of a municipality is confined to those situations where the action taken by the governing body is without authority, or permeated with fraud, corruption or conduct so oppressive, arbitrary or capricious as to amount to fraud.”
We are concerned here with the Commission’s power to act. Taxpayers alleged facts showing the Commission did not abide by the statute which imposed conditions on its power and that it acted beyond the scope of its statutory authority. Such attempts are without power and are void. Olathe Community Hospital v. Kansas Corporation Comm’n, 232 Kan. 161, Syl. ¶ 4, 652 P.2d 726 (1982). An agency has no authority or jurisdiction beyond that conferred by authorizing statutes. Pork Motel, Corp. v. Kansas Dept. of Health and Environment, 234 Kan. 374, Syl. ¶ 1, 673 P.2d 1126 (1983).
The well-established rule we rely on is expressed in Harshberger v. Board of County Commissioners, 201 Kan. 592, 594-95, 442 P.2d 5 (1968): “The courts have no difficulty with their power and authority where taxing bodies are attempting to proceed without statutory authority or contrary to statute.” It is true as a general proposition that the correction of error in valuation is an administrative, not a judicial, function. However, this is not a simple correction-of-error-in-valuation case. The issues involved deal with application of the statutes governing taxation and actions taken when no specific statutory power existed.
The Commission was faced with a dilemma and attempted to remedy the mischief caused by its improperly functioning computer system. Unfortunately, the legislature imposed on taxing bodies a specific restriction on their power to adjust property valuations, K.S.A. 1993 Supp. 79-1460, and repealed the county commissions’ power to adjust valuations, L. 1992, ch. 282, § 21. The argument here is not that the Commission acted according to its good faith interpretation of what the statutes required, but that the Commission acted contrary to and without statutory authority.
Under K.S.A. 60-907, a taxpayer is entided to seek injunctive relief from a board or body “doing any act not authorized by law that may result in the creation of an additional levy of a tax, charge or assessment.” DeForest v. Herbert, 204 Kan. 516, 520, 464 P.2d 265 (1970).
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Bukaty, J.:
Plaintiff, Douglas M. Sumner d/b/a Phoenix Computer Services, appeals the trial court’s dismissal with prejudice of this action. The sole issue presented is whether the trial court erred in dismissing the action pursuant to K.S.A. 60-241(a)(l). Sumner contends the “two dismissal rule” contained in that statute is not applicable to the facts here. We agree and accordingly reverse the trial court’s dismissal.
The facts essential to the issue on appeal are not disputed. Plaintiff filed this action on January 19, 1993, for the recovery of money and replevin of certain computer software. Defendant filed an answer and counterclaim in March 1993. He denied owing the amount plaintiff claimed and requested judgment for money he claimed plaintiff owed him for legal services. On the first day of trial, defendant moved to dismiss based upon the two dismissal rule found in K.S.A. 60-241(a)(l). The trial court granted the motion. It found that the case had been filed twice before and dismissed and that the second dismissal operated as an adjudication on the merits which barred the present action under the principles of res judicata.
There is no dispute that the present action is the third suit filed by plaintiff against defendant involving the same claims. The district court entered an order dismissing the first suit in December 1991 at plaintiff’s request after defendant had filed and served an answer and third-party petition. It dismissed the second suit in December 1992 without prejudice upon joint motion of the parties.
Resolution of this appeal involves the application and interpretation of K.S.A. 60-241(a)(l). “Interpretation of a statute is a question of law.” State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). “When determining a question of law, this court is not bound by the decision of the district court.” Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
In discerning the meaning or applicability of a statute, a fundamental rule of statutory construction, to which all other rules are subordinate, is that the intent of the legislature governs if that intent can be ascertained. City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). Moreover, “[w]hen a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992).
K.S.A. 60-241(a)(l) states:
“Subject to the provisions of subsection (e) of K.S.A. 60-223 and of any statute of the state, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Where the dismissal is by stipulation the clerk of the court shall enter an order of dismissal as a matter of course. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.”
By its clear terms, K.S.A. 60-241(a)(l) applies only to voluntary dismissals entered without an order of the court. It provides that such can occur in two ways. A plaintiff may file a notice of dismissal if defendant has not served an answer or summary judgment motion upon plaintiff, or a party may file a stipulation of dismissal signed by all parties who have appeared in the action. The last sentence of this statutory section specifies when such a dismissal under this section operates as an adjudication upon the merits. It only applies to a notice of dismissal as opposed to a stipulation for dismissal. Here, the journal entry of dismissal entered in the second case clearly reflects that the dismissal was by court order upon joint motion of the parties.
Although no Kansas case has dealt directly with the applicability of the two dismissal rule, K.S.A. 60-241(a)(l) is identical to Fed. R. Civ. Proc. 41(a), and federal case authority concerning the operation of this section is uniquely persuasive. State v. Johnson, 19 Kan. App. 2d 315, 318, 868 P.2d 555 (1994).
Federal cases interpreting Rule 41(a) have limited application of the two dismissal rule to situations where the plaintiff has voluntarily, by notice of dismissal, dismissed an action for the second time. See Lake at Las Vegas Investors v. Pacific Malibu Dev., 933 F.2d 724 (9th Cir. 1991) (plaintiff had previously voluntarily dismissed, by notice of dismissal, two actions against defendant); Sutton Place Dev. Co. v. Abacus Mortg. Inv. Co., 826 F.2d 637, 640 (7th Cir. 1987) (two dismissal rule inapplicable where second dismissal was by court order).
Finally, other jurisdictions which have a similar two dismissal rule limit its application to notice of dismissal. See New Jersey v. Strazzella, 331 Md. 270, 281, 627 A.2d 1055 (1993) (lawsuit not barred where prior dismissals were by order of the court); Hershiser v. BOS Corp., 69 Ohio App. 3d 186, 189, 590 N.E.2d 323 (1990) (dismissal by stipulation did not invoice two dismissal rule); City of Raleigh v. College Campus Apartments, Inc., 94 N.C. App. 280, 282-83, 380 S.E.2d 163 (1989), aff’d 326 N.C. 360, 388 S.E.2d 768 (1990) (second voluntary dismissal operated as an adjudication on the merits where both of plaintiff’s dismissals were obtained by plaintiff filing notice of dismissal and were not by stipulation or order of the court).
In light of our decision, we need not discuss the circumstances of the dismissal of the first case, nor must we address the issue of whether the two dismissal rule is a jurisdictional matter or an affirmative defense of res judicata which is waived if not timely raised.
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The opinion of the court was delivered by
Benson, J.:
The indebtedness to the plaintiff secured by the mortgage became due in April, 1892. In May of that year the mortgagor made the last payment, and abandoned the land in that year. The land thereafter remained vacant and unoccupied until the year 1897, when one Wallace, without right or claim of title, entered into its possession. He inclosed it with other land, sank a well and erected a windmill upon it, and used it for grazing purposes and as a watering place for stock.
The plaintiff is a nonresident of Kansas, residing in Pennsylvania at the time he took the mortgage, and ever since. After payments upon the mortgage ceased he obtained an assignment of a tax-sale certificate upon the land, and thereupon a tax deed in regular form was issued to him, for the delinquent taxes of 1892 and 1893, dated September 14, 1896. Afterward, and at the proper dates, he paid the taxes for the years 1894 to 1906, inclusive. He knew that the land was used for grazing purposes by people in the vicinity, after its abandonment by the mortgagor, to which he made no objection, and he made no objection to the use and improvements made by Mr. Wallace after learning the facts. '
At sometime before February 23, 1906, defendant John F. Masch wrote to the plaintiff in regard to this land, and on that date wrote, another letter to him, saying that, if a deal referred to should go through, ■“I can give you $800 for your land, for perfect title.” On March 5, 1906, Masch again wrote to the plaintiff as follows:
“Mr. M. H. Buehler, Pittsburg, Pa.:
“Dear Sir: Your favor of 3-2 at hand. In reply I will say that I can not raise my 'offer of February 23 on your land — S. W. 4 27-19-33 Scott Co., Kan.
“If above land has cost you $1600 my advice would he to hold land and see if this country develops so you will get your money back, what you have invested in your land. ... In case you desire information what we are doing you can write me and I will give you all information I can.”
In March, 1907, defendant John F. Masch procured a quitclaim deed to the land from the mortgagors, who were the owners at the time the mortgage was made. He then told Wallace that he had bought the land, and took immediate possession. Wallace made no objection, and removed his property from the land. It appears that Wallace knew of the plaintiff’s claim to the land, and testified that he used it as the land of the plaintiff, but paid no rent.
It is contended by the plaintiff that the appellees are not protected from foreclosure by the bar of the statute of limitations, because of the intervening tax title, which, being good upon its face, could not be set side for irregularities, it having been of record more than five years. The precise claim appears to be that the tax title, being perfect, superseded the original title, therefore Masch took nothing by his deed from Teetor, and the statutory bar is not available as a defense against the mortgage. • On the other hand, the appellees contend that the tax deed is unavailing for' affirmative relief because actual possession was never taken under it, and .that for the same reason the plaintiff car have no rights as a mortgagee in possession.
In the view taken by this court it is not necessary to determine the effect of the statute of limitations upon the claim for foreclosure. If the plaintiff is in a situation to avail himself of the tax title to obtain possession, he should , recover independent of any right he may have as a mortgagee. Among the findings of fact were the following:
“That plaintiff did not take actual possession of the land in question, if at all, either in person or by tenant, until about June, 1906.
“That about June, 1906, plaintiff discovered that Wallace was in possession of the land as hereinbefore found, and that thereafter Wallace remained in possession with the knowledge and consent of plaintiff until about April, 1907, when he surrendered possession to defendant J. F. Masch.”
As the plaintiff’s tax deed was issued in September, 1896, and Wallace entered into the occupation of the premises in the following year, there was a. period when it was not actually occupied by anyone, but, being vacant, was in the constructive possession of the holder of the tax deed.
“A tax deed of vacant land,' good upon its face, and duly recorded, invests the tax-title holder with constructive possession of the land; and such constructive possession, when uninterrupted by the actual possession of the adverse claimant, perfects the tax deed at the expiration of the statutory period as against affirmative assaults upon it for defects in the proceedings upon which it is based.” (Stump v. Burnett 67 Kan. 589, 594.)
Constructive possession, however, is not sufficient to afford grounds for affirmative relief to the holder of a tax deed. (Stump v. Burnett, supra, syl. ¶ 1.)
Following this constructive possession of the plaintiff was the actual occupation by Wallace, but this was not in hostility to the tax title. He held in subordination to the plaintiff’s rights, without any claim of title or interest in himself. The plaintiff, when he became aware of Wallace’s occupation and use, consented thereto; and Wallace continued to use the land as the property of the plaintiff. The minds of the plaintiff and of Wallace were in accord, the plaintiff claiming the title but consenting to the occupation by Wallace, who used the premises with knowledge of, and acquiescence in, the plaintiff’s claim of title. This possession of Wallace was not adverse, but on the contrary was, in legal effect, the .possession of the plaintiff.
“Whenever such a relation, or trust, or privity of estate exists between the actual occupant of the land and another that, in respect to the possession, there is between them an identity or subordination of interests, then the possession of one — the occupant — becomes, as in the case of cotenancy, the possession of the other, through the principle of agency or trust.” (Sedg. & Wait, Trial Tit. to Land, 2d ed., p. 603.)
Occupancy by one in subordination to the title of another, with that other’s assent, express or implied, creates a tenancy. (1 Wood, Land. & Ten., 2d ed., § 1.) It must be held, therefore, that the plaintiff, having before that time been in constructive possession of the land, was in actual possession from June, 1906, until April, 1907, when he was dispossessed by the appellees. The plaintiff’s possession was rightful; the tax. deed under which he claimed was valid upon its face, and had been of record for more than five years. If the appellees had sued for possession they would have been met by the defense that such a deed is unassailable, the taxes not having been paid or the land redeemed. (Laws 1876, ch. 34, § 141, Gen. Stat. 1909, § 9483.)
It remains to be considered whether the possession, obtained as it was, gave the appellees a right to assail the deed for latent defects. The appellees knew that the plaintiff claimed to own the land, and in writing to him Mr. Masch referred to it as “your land,” and offered to buy it. Not satisfied with the price, he advised the plaintiff to hold it, and then bought in an outstanding adverse title, which would have been defeated by the tax deed if possession under it had not been disturbed. It was said in Nicholson v. Hale, 73 Kan. 599 (followed in Millikin v. Lockwood, 80 Kan. 600):
“An exception to the rule that a statute of limitations can only be used as a shield of defense and not as a weapon of attack is recognized where the person claiming under the statute has been wrongfully dispossessed after the prescribed period has run.” (p. 602.)
Again, it was said in the same opinion:
“We think that when a tax deed, valid on its face, has been of record for five years, and the tax-title holder is in possession, claiming by virtue of the tax deed, and one claiming adversely wrongfully dispossesses him by force, fraud, or stealth, the holder of the tax title may maintain ejectment to regain what was wrongfully taken from him. ... To hold otherwise would encourage reprisals and scrambling for possession, which the law discountenances.” (p. 603.)
Holding the possession, as Wallace did, from June, 1906, if not before, in subordination to the title of the plaintiff, and with his assent, Wallace had no right to surrender it to the appellees, and by yielding he conferred no right upon them. Possession so obtained by the appellees was wrongful, and falls within the principles declared in Nicholson v. Hale, supra; and the plaintiff could therefore maintain ejectment. (See, also, Stouffer v. Harlan, post.)
The district court concluded as matter of law “that plaintiff did not have such possession of the land in question under his tax deed as to enable him to use it as a basis for this action without exposing it to attack for its inherent defects.” Following -this conclusion, the court held the deed invalid because of infirmities shown by extrinsic evidence, but not appearing upon its face. The conclusion was erroneous, and the judgment can not be upheld. It is therefore reversed and the cause remanded, with directions to render judgment for the plaintiff for possession. | [
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The opinion of the court was delivered by
Price, J.:
This was an action brought by a son to dissolve a farming partnership existing between him and his father, and for an accounting, and is another chapter in litigation between these parties (Rupp v. Rupp, 170 Kan. 651, 228 P. 2d 692).
Plaintiff son was the youngest of thirteen children and had stayed at home and worked on the 160-acre farm owned by his father and mother. His evidence, which followed substantially the allegations of his petition, established that in the latter part of 1943 he and his father entered into an oral agreement for the operation of the farm on a partnership basis; that he continued to work in the planting and harvesting of crops, raising of livestock, and in general to fulfill all obligations under the oral agreement. In August, 1944, he was inducted into the military service, and his testimony was to the effect that shortly before he left home he and his father orally agreed that during his absence the farming operations would continue on the partnership basis. During the period of his army service he made out and caused to be sent home an allotment to his parents, and he also earned certain sums on the side while in the service. Evidence* was introduced concerning the application of these funds to the partnership venture. The son was in the military service for twenty-two months, after which he returned home and resumed work on the farm. This arrangement continued until August, 1949, at which time trouble and difficulties arose between him and his father, following which this action was commenced.
Defendant father’s answer and evidence admitted a partnership arrangement and agreement between the parties, but was to the effect the partnership was not formed or agreed upon until 1946, after the son’s return from the military service; and also there was a sharp conflict in the evidence concerning who had sold certain products and livestock raised on the farm, and with reference to the disposition of the proceeds thereof.
After hearing all of the evidence the trial court made fourteen conclusions of fact and four conclusions of law, and entered judgment in favor of plaintiff son in the amount of $1,620.56, with interest, and for costs.
Defendant’s motion for a new trial being overruled he has appealed, assigning as error the rulings of the court in overruling his demurrer to plaintiff’s evidence, in the admission of evidence, in the rejection of evidence, in refusing to make each of the conclusions of fact and of law requested by defendant, in making each of the conclusions of fact and of law that it did, in rendering judgment, and in overruling the motion for a new trial.
This is essentially a fact case arising out of a family dispute between father and son over their farming operations covering a period of some six years. Defendant in effect asks this court to retry his lawsuit. We cannot do so. It was exclusively the function of the trial court to weigh the evidence and determine the facts. It has performed that function, and our examination of the record establishes that the facts as found by the lower court are supported by substantial, competent evidence, and such being the case will not, under the familiar rule of appellate procedure, be disturbed by this court. (Rupp v. Rupp, supra, p. 653.)
Concerning the various legal propositions advanced by appellant in this court we have examined each and every one and find them to be without substantial merit. Their nature is such that no useful purpose would be served by enumerating and elaborating on them in this opinion. In this connection we adhere to the well-established rule that a presumption of validity attaches to a judgment of a district court until the contrary is shown, and that before this court will set aside a judgment it must affirmatively appear there has been an error which affects the substantial rights of the parties. (Jones v. Crowell, 167 Kan. 415, 419, 207 P. 2d 435; and State, ex rel., v. Rural High School District No. 3, 169 Kan. 671, 220 P. 2d 164.)
Nothing in this record or in the briefs submitted has made it affirmatively to appear the judgment of the lower court is erroneous and therefore it is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is an appeal from an order sustaining a demurrer to an amended petition, as amended (hereinafter referred to as the petition), in an action to recover actual damages in the.amount of $50,000 and punitive damages in a like amount from defendant labor union and certain of its individual members on account of the alleged wrongful and malicious acts on the part of defendants in ousting plaintiff from membership in the union, and for a mandatory injunction directing defendants to reinstate plaintiff as a member with all attendant rights and privileges.
Another phase of this litigation was before this court in Porth v. Local Union 201, 166 Kan. 166, 199 P. 2d 788.
The petition, including exhibits attached thereto, covers some 45 pages of the abstract, but, in view of our disposition of the case, its allegations will not be summarized in detail.
Briefly stated, it alleges that in 1941 plaintiff became a member of Local Union 201 of the United Brotherhood of Carpenters and Joiners (hereinafter referred to as the Local), an unincorporated labor union exercising jurisdiction in Wichita and surrounding territory; that the Local is affiliated with the International organization of the same name; that in 1943 plaintiff was elected the Business Agent and Financial Secretary of the Local, which office he held until December, 1947, and that shortly thereafter he was unlawfully and maliciously ousted from membership as the result of an alleged malicious and unlawful conspiracy entered into by defendants for the express purpose of discrediting him and damaging his reputation and standing among the members of the Local. Then follow lengthy and detailed allegations concerning plaintiff’s activities as a delegate to the national convention of the American Federation of Labor held in Chicago in October, 1946, with reference to certain controversial resolutions put before that body which gave rise to correspondence between the president of the United Brotherhood of Carpenters and Joiners of America and the Local, with the result that disciplinary action was taken by the Local against plaintiff, culminating in his ouster. The chronology of these various disciplinary steps is then set out in detail, together with allegations of alleged malicious and arbitrary actions on the part of defendant Local and certain of its individual members.
Defendants’ demurrer to the petition, on the ground that it did not state facts sufficient to constitute a cause of action, being sustained, plaintiff has appealed, and in this court he poses three questions:
“1. Does the petition state facts sufficient to establish the existence of a willful and malicious conspiracy among the defendants which resulted in the wrongful ouster of the plaintiff from membership in the union?
“2. Can liabihty be imposed against the defendant union in its entity as an unincorporated association even though the entire membership did not participate in the wrongful ouster?
“3. Does the petition allege sufficient facts to show that any effort of the plaintiff to obtain redress by remedies within the union would be futile and a' vain form?”
In support of the lower court’s ruling defendants argue fourteen separate and distinct points. In our opinion a discussion of only two of them is necessary in order to arrive at a correct disposition of this appeal, and they are:
T3. The constitution, laws and rules of a voluntary association, such as a trade union, constitute a contract between the union and its members, and a member is bound by and presumed to know such constitution, laws and rules.
14. Plaintiff has no cause of action unless and until he has exhausted the remedies of appeal available to him under the constitution and laws of the union.”
Included in plaintiff’s petition are excerpts from the constitution and laws of the Brotherhood pertaining to charges and trials, and appeals and grievances. They are:
“Charges and Trials
“A. Section 56. A member must be charged and tried within the jurisdiction of the Local Union or District Council where the offense was committed, where a District Council exists all charges shall be tried before that body. ,A copy of the verdict must be sent to the Local Union of which he is a member. Any Local Union may suspend a member by a three-fourths vote until charges can be preferred against him and he is regularly tried. A member must exhaust his resources allowed by the Constitution and Laws of the United Brotherhood before taking his case to the civil courts.”
“Appeals and Grievances
“A. Section 57. A member who has a grievance or who has an injustice done him in any way, or any Local Union, District, State or Provincial Council having any grievance, may appeal to the General President for redress, subject to a further appeal to the General Executive Board and a final appeal to the General Convention, except violations of Trade Rules; but in no case shall ah appeal act as a stay of proceedings, except as provided in the Constitution and Laws of the United Brotherhood.”
Plaintiff frankly concedes that he has not complied with the foregoing provision relative to appeals and grievances and thus did not exhaust his resources allowed by the constitution and laws of the Brotherhood before bringing this action, but attempts to avoid such provision by alleging that any further procedure by him within the organization would be futile and of no effect, and we quote from his petition:
"This plaintiff further states that the General President displayed his ani mosity and antagonism toward this plaintiff by refusing to accept any correspondence from this plaintiff in his official capacity as business agent and financial secretary of the Local after April 3, 1947, even though 'this plaintiff ' was acting as such under orders of this Court and by election of the Local. This plaintiff further states that he has no adequate or reasonable remedy by appeal to the General Convention for the reason that said convention only meets every four years and will not convene until the fall of 1950, and then out of this state and at a great distance from the City of Wichita. Plaintiff further states that the General President will be the presiding officer of the convention and would be in effect reviewing again his own decision. This plaintiff further alleges that in the light of the foregoing facts, this plaintiff was under no obligation whatsoever to appeal his ouster, but that this plaintiff did prepare his appeal and did within 30 days after his ouster, mail said appeal to the General President at his office in Indianapolis, Indiana, by registered mail. That a copy of said appeal was mailed to the defendant Local. That the Local did furnish the plaintiff with a copy of the trial proceedings, but that this plaintiff’s registered letter to the General President containing the appeal was returned to this plaintiff marked ‘refused.’ That more than six months later this plaintiff received a letter from the General President, stating that this plaintiff could appeal by following the above quoted laws, but this plaintiff alleges that he had done more than was required of him, under the circumstances, as herein stated, and any such further attempt to appeal would have been futile, and that this plaintiff has no adequate remedy for his wrongs, except by appeal to this Court.”
In this state, as elsewhere (7 C. J. S., Associations, § lib, p. 34), it is well-settled that the constitution and bylaws of a voluntary association, such as a trade union, constitute a contract between the association and its members, and the rights and duties of the members as between themselves and in their relation to the association in all matters affecting its internal government and management are measured by the terms of such constitution and bylaws. This point was under consideration in the recent case of Radio Station KFH Co. v. Musicians Ass’n, Local No. 297, 169 Kan. 596, 220 P. 2d 199, where it was held:
“Voluntary associations have the right to make their own regulations as to admission or expulsion of members, and one who becomes a member assents, by his membership, to the constitution and rules of procedure adopted by such an association. The constitution, rules and bylaws, knowingly assented to, become in effect a civil contract between the parties whereby their rights are fixed and measured. The constitution, rules and bylaws of a voluntary, unincorporated association constitute a ‘contract’ between the association and its members and the rights and duties of the members as between themselves and in their relation to the association in all matters affecting its internal government and the management of its affairs are measured by the terms of such constitution and bylaws.” (Citing cases.) (p. 602.)
The law is also well-settled in this state that where the constitution and bylaws of an association, such as the one under consideration, provide for an appeal within the organization from disciplinary action taken against one of its members, such member must exhaust his remedies so given before he can resort to the civil courts for redress. In support of this rule defendants cite numerous decisions from other jurisdictions, but we deem it necessary only to refer to what has been said by this court on the subject. In Wichita Council v. Security Benefit Ass’n, 138 Kan. 841, 28 P. 2d 976, it was stated:
“Appellant contends plaintiffs did not exhaust their right of appeal to the national council of the society. When the constitution and laws of a benefit society require an appeal within the society from the ruling of an inferior officer, committee or unit of the society, and such ruling and the procedure therefor have been had in conformity to valid provisions of such constitution and laws, the party aggrieved must exhaust his remedies within the society before resorting to the courts.” (Citing cases.) (p.853.)
See also Conroy v. Railroad Trainmen, 102 Kan. 757, 171 Pac. 1161.
With reference to plaintiff’s contention that any further action within the organization would have been futile and in vain, we think that his allegation — “that he had done more than was required of him, under the circumstances, . . .” — in the light of other allegations, amounts to no more than a mere naked and unwarranted assumption and conclusion. In fact, he specifically alleges that he received a letter from the General President advising him that he could appeal “by following the above quoted laws,” which in itself gives rise to an inference that his first attempt to appeal did not comply with the procedural requirements set forth.
As a member of this organization plaintiff had the right to appeal from any alleged grievance or injustice done him. It was mandatory that he exhaust those remedies within the organization before resorting to a civil court for redress. He did not do so. Courts will not interfere to take jurisdiction of cases involving the disciplining, expulsion or suspension of union members from their unions until those aggrieved have exhausted the remedy and right of appeal available to them within the union.
The ruling of the lower court in sustaining the demurrer to the petition was correct and its judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action to recover damages alleged to have been sustained by plaintiff when a bicycle upon which she was riding was struck by a bus driven by a driver for The Kansas City Public Service Company. Both the driver and the company were named defendants. After their motion to require the plaintiff to make her petition more definite and certain had been overruled defendants demurred to plaintiff’s petition on the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was overruled. Defendants have appealed. '
After describing the parties, the petition alleged that plaintiff was riding her bicycle south on the street about four to six feet east of the curbing on the west side of the street and defendants’ bus was being driven south on the same street in the rear of plaintiff; that as plaintiff went into an intersection there was a collision between the bus and the bicycle and plaintiff was injured. The negligence of defendants was dangerous speed, no control, failure to turn to right or left, frightening plaintiff by the size, noise and proximity of the bus, and failure of the driver to sound his horn, and attempting to pass plaintiff and her bicycle at an unsafe distance, considering all the circumstances. These allegations were stated in some nine different paragraphs but the above is a general summarization.
To this petition, defendants filed a motion asking that plaintiff be directed to make it more definite and certain in twenty-five or thirty different particulars. Just about every sentence of the petition was attacked. This motion was overruled. Following the ruling on this motion defendants’ demurrer to the petition was overruled — hence this appeal.
Defendants rely on the rule that where a petition is vague and indefinite and defendants’ motion to require it to be made definite and certain is overruled, the petition will be strictly construed. (See State Highway Comm. v. American Mut. Liability Ins. Co., 146 Kan. 187, 70 P. 2d 20.) Stated in another way, when the defendant asks for allegations as to matters upon which he has a right to be informed and the information is denied him, then the petition is demurrable. (See Anderson v. Denison Clay Co., 104 Kan. 766, 180 Pac. 797.)
Defendants argue that under the allegations of this petition plaintiff could claim that the collision happened by her falling into the side of the bus or going in front of it or getting hit after she got across in front of it.
There is no brief here on behalf of the plaintiff.
The situation described by the petition is one where the plaintiff was riding a bicycle down the street and in some manner or another there was a collision.
The defendants’ motion asked that the plaintiff be required to state many details. Some of these were matters of evidence and the plaintiff should not be required to plead them.
Running all through defendants’ motion, however, was a request that plaintiff be required to state “whether the bus followed the girl to the time of the collision in the same path in which she was traveling, or whether the girl turned to the left from her route of travel, either in front of the bus or against the side of the bus” and “to state what her position of danger was by stating whether or not the collision took place in the front end of the bus or on the side of the bus” and “to state whether the girl just before the collision turned to the left from the path she had been traveling either in front of the bus or into the side of the bus, because the petition is vague and indefinite in those respects.”
We hold that the defendants had a right to be informed as to the above details in order properly to prepare their defense. Under the amended petition as drawn the plaintiff could prove the collision happened in a number of ways.
The judgment of the trial court is reversed' with directions to sustain the motion of defendants to require the plaintiff to make her petition more definite and certain in the two particulars stated in this opinion and to permit plaintiff to file a second amended petition in accordance with the views expressed in this opinion. | [
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The opinion of the court was delivered by
Cunningham, J.:
Robert Parry was a passenger on the Santa Fe railway going from Purcell, I. T., to Denver, Colo. In making this journey he was required to change cars at Newton, Kan. As the train approached Newton, and a mile or two south of it, the conductor observed that Parry was ailing with something that looked to him like a fit. He noticed- that he “was straightened out and his limbs were stiff and jerking. He was frothing at the mouth, and his eyes looked glaring and starry, just like a man that had a fit.” When the train arrived at Newton, Parry seemed to be recovering, but had not entirely regained consciousness, and the conductor was unable to get any response when he tried to converse with him. The conductor called the depot-master, who, , with the assistance of the porter, removed Parry from the train, the depot-master being informed by the conductor of the condition of the passenger, and requested to take care of him and see that he was put upon the right train to take him to his destination, which train was to leave in about four hours. After the passenger was removed from the train, he was left "in the care of the depot-master, the porter going to his other duties. The depot-master tried to talk with him, but elicited nothing but groans, mutterings, and unintelligible replies. It seemed, however, that he desired to go his own way without any assistance, so that, after helping him on with his coat, he was allowed, after about five or ten minutes, to take his own course without further attention, the depot-master supposing that he had been drinking and desired to go where he could procure liquor. The next seen of him was about four hours after his removal from the train, at a point about five miles south of Newton, where, having laid down upon the railway-tracks, he was run over by a south-bound train and killed.
The negligence counted upon by the plaintiff, his widow, as a ground for recovery was that the company failed to exercise a proper degree of caution and care -in looking after Parry after he was removed from the train in an unconscious and irresponsible condition of mind and body. The jury returned a general verdict in favor of the defendant in error, and also answered special questions submitted to them. Among them were the following :
“7th. What was his appearance and condition, mentally and physically, on his arrival in Newton? Ans. Recovering from a convulsion, apparently unconscious.
“8th. Did J. W. Anderson, the depot-master at Newton, of the defendant, take charge of the deceased upon his arrival at Newton? A. He did.”
“10th. Does said Anderson possess the common and ordinary capabilities, judgment and prudence of men and persons generally ? A. We think so.
“11th. About how long did said Anderson keep charge of said deceased? A. Five to ten minutes.”
“15th. (When) said Anderson ceased tocare for the deceased, did Anderson believe that the deceased had sufficient strength and consciousness to take care of himself? A. He claimed so.
“ 16th. At the time Anderson ceased to care for the deceased, did he think or contemplate that deceased would wander away and afterwards get into a place of danger and lose his life? A. No.”
The railroad company demurred to the plaintiff’s evidence, which was overruled. It also moved for judgment in its favor upon the special findings: This was overruled, and judgment entered for plaintiff on the general verdict.
The railway company insists that the judgment against it was erroneous, first, because there was no evidence showing any culpable negligence on the part of any of its agents or servants ; second; if there was, that such negligence was not- the proximate cause of the injury. The principles to which we must look for a solution of these questions are neither novel nor intricate. Parry was a passenger not only while on the train but after his arrival at Newton. Through no fault of his,'he was in such a condition of mind and body as to be unable to care for himself by reason of the sudden sickness which had overtaken him. The duty of a carrier of passengers under such circumstances was announced in the syllabus in A. T. & S. F. Rld. Co. v. Weber, 33 Kan. 543, 6 Pac. 877, 52 Am. Rep. 543, in the following language :
“Where an unattended passenger, after entering upon a journey, becomes sick and unconscious or insane, it is the duty of the railroad company to remove him from the train, and leave him until he is in a fit condition to resume his journey, or until he shall obtain the necessary assistance to take care of him to the end of his journey. The duty of a railroad company to such a passenger does not end with his removal from the train, but it is bound to the exercise of reasonable and ordinary care in temporarily providing for his protection and comfort.”
The following language is found in the opinion :
“The duty of the railroad company, however, with respect to Weber, did not end with his removal from the train. He was uhconscious, and unable to take care of himself. The company could not leave him upon the platform helpless, exposed, and without care or attention. It was its duty to exercise reasonable care and diligence to make temporary provision for hié protection and comfort. As was said by the learned court who tried the cause : ‘ Of course the carrier is not required to keep hospitals or nurses for sick or insane passengers, but when a passenger is found by the carrier to be in such a helpless condition, it is the duty of the carrier to exercise the reasonable and necessary offices of humanity toward him until some suitable provision may be made.’ ” (Id. 554.)
Whether or not the depot-master discharged this duty to its required measure in this case was a question for the jury to determine. The jury did determine that he possessed the common and ordinary capabilities, judgment and prudence of men generally, anc that at the time he ceased ,to look after Parry h( thought that deceased had sufficient strength and consciousness to take care of himself, and did not con template that he would wander away into a place of danger. We think, however, that this hardly shows affirmatively that degree of care commensurate with the duty resting upon the company. It is not thus made to appear that reasonable and ordinary care in providing for the safety of the deceased was exercised ; whereas by the general verdict it does appear that such care was not exercised.
It is further contended that, even though the depot-master was negligent in his manner of treatment of the deceased, such negligence was not the proximate cause of the death; that no reasonably prúdent man would have foreseen that Parry would have wandered away for a distance of five miles, and have laid down or fallen upon the track in such a place and position that he would be run over by the train .and thus killed, and that the company therefore was not required to guard against so improbable a result. Negligence, to be the proximate cause of an injury, must be such that a person of ordinary caution and prudence would have foreseen that an injury would likely result therefrom; not that the specific injury would result, but an injury of some character.
‘“It is not necessary/ say the supreme court of Minnesota, -following the supreme judical court of Massachusetts, ‘that the injury, in the precise form in which it in fact resulted, should have been foreseen. It is enough that it now appears to have been a natural and probable consequence.’ In other words, it is not necessary to a defendant’s liability, after his negligence has been established, to show, in addition thereto, that the consequence of his negligence could have been foreseen by him ; it is sufficient that the injuries are the natural, though not the necessarv and inevitable, result of the negligent fault.” Thomp. Neg. § 59.)
It here appears that the place where the depot-master permitted Parry to go by himself was near a street-crossing over which tracks were laid, along which trains passed. It was a place of danger to one-not in the possession of his faculties ; a place where ' the depot-master might reasonably have apprehended that harm of some sort would come to Parry in his condition. So that, although he wandered for1 four hours and was run over five miles from this place, the act of the-depot-master in permitting him to go was no less'the proximate cause of his death than it would have been if it had occurred within a short distance and a few moments. At most, the question ■ whether the negligence of the depot-master was the proximate cause is one upon which the minds of different .parties might reasonably disagree; and such being the case, and the whole matter having been submitted to the jury under proper instructions, and. they having found that it was, we may not disregard these findings of fact. We are of the opinion that, upon both questions, there was sufficient evidence to go to the jury and to sustain the general finding in favor of tire defendant in error.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Thiele, J.:
This appeal arises from an order made in connection with the final settlement of a decedent’s estate construing the will of the testatrix and ordering distribution of the residue of the estate. For convenience the parties to the appeal, Ila Lavon Bonney, Frances Bump Parr, Grace Boyd Welshans and Margie I. Bauman, are hereafter referred to generally by their surnames.
The will of Mabel Furman Bump, which was duly admitted to probate, consisted of a series of unnumbered paragraphs in which she bequeathed articles of personal property and sums of money to certain named persons, the sums of money totaling $4,100. The will then provided:
“The property at #426 S. Main Street, is to be sold and after all cash bequests and bills are paid one half K of what is left is to go to my cousin, Grace Boyd Welshans of Los Angeles, Calif., and (&) one half to my cousin Margie I. Bauman of Los Angeles, Calif.
“If there is any other money left it is to be divided between Ila Lavon Bonney and my stepdaughter, Frances Bump Parr.”
The inventory filed listed the real estate valued at $4,000; the household goods and jewelry specifically devised valued at $2,656; certificates of stock in a savings and loan association valued at $3,000 and cash in bank of $750.
Although we are not concerned directly therewith, on July 20, 1948, one Mary K. Hall filed a claim against the estate for personal services rendered. At some undisclosed date she died and her claim was revived in the probate court on March 2, 1949. In the meantime and on December 23, 1948, Welshans and Bauman filed their petition in the probate court asking that the above quoted portions of the will be construed, and thereupon the probate court made its order setting the hearing for January 26, 1949, and that notice be given to Mrs. Hall, Bonney and Parr by mailing a copy of the order to them at their regular addresses or by mailing a copy to their attorneys, and that was done.
The journal entry bearing thereon discloses that on June 20, 1949, the claim of Mary K. Hall came on for hearing, Mrs. Hall’s estate appearing by attorney, the. administratrix (executrix) appearing personally and by her attorney and Bauman and Welshans appearing by their attorneys; that proof in support of the claim and in defense against it was received and the hearing was continued to July 27, 1949, on which date the motion to construe the will was also set for hearing; that on July 27, 1949, the claim again came on for hearing, the claimant administrator and his attorney being present and Bauman and Welshans being present by their attorneys; that claimant introduced further evidence to which Bauman and Welshans demurred and the matter was continued to August 5, 1949, “as to the claim of Mary K. Hall.” The court further found as to the motion to construe the will that the first paragraph as quoted above gave all property including cash from the sale of real estate one-half to Welshans and one-half to Bauman, but in its order following it adjudged and decreed that one-half of all property remaining on hand and particularly all cash derived from the sale of the real estate after the payment of all bequests, court costs and other expenses of administration, be divided equally between Welshans and Bauman.
On February 24, 1950, Ila Lavon Bonney, the executrix, filed her petition for final settlement in which she prayed for an order of the probate court finding who was entitled to the estate and directing distribution.
On March 21, 1950, Welshans and Bauman filed their motion for' an order nunc pro tunc to correct the order of August 5, 1949 (July 27,1949?) to show that they were entitled to all of the property remaining on hand instead of only one-half.
The petition for final settlement and the motion for an order nunc pro tunc were heard on May 2, 1950, at which time the probate court found that the petition to construe the will was filed December 23, 1948, and set for hearing January 26, 1949, and that all parties were notified; that thereafter the matter was orally continued to March 2, 1949, and on that date was continued indefinitely; that Parr was not notified of any hearing date other than January 26, 1949, and was not present on August 5, 1949, when the order was made to which the motion for an order nunc pro tunc was directed. The probate court further found that the order made August 5,1949, was irregular in that the court was under a mistaken impression as to what issues were presented and without being fully cognizant of the issues relative to the construction of the will, and that, having acted upon an erroneous understanding of the facts, found that the order of August 5, 1949, did not express the real purpose of the court and was erroneous and irregular, and—
“The Court after having the matter of the construction of said will fully presented upon the hearing of the motion for order nunc pro time, finds on its own motion that said paragraphs of said will should be construed as follows, to-wit: That all of the cash bequests, bills and expenses should be paid from the proceeds from the sale of the real property located at 426 S. Main Street, and if the cash bequests, bills and expenses, including court costs, executrix’s fees and attorney fees should exhaust said proceeds, then any other money should go to Ila Lavon Bonney and Frances Bump Parr.”
The probate court, after making allowances to the executrix for her services and allowances to attorneys, continued the hearing as to other matters and issues in the petition for a final settlement.
In due time Welshans and Bauman perfected their appeal to the district court. A separate appeal by .the executrix concerning her fees is noted but is not here involved.
In the district court it was stipulated that the probate court files in the estate of Mabel Furman Bump should be admitted as all of the evidence. That court, after considering those files and the briefs of the parties, affirmed and approved the judgment of the probate court excepting only the matter of attorney fees and rendered judgment accordingly.
From that judgment Welshans and Bauman perfected their appeal to this court.
Appellants contend that the district court, in affirming the orders and judgment of the probate court erred in two particulars: 1. In not holding that the probate court erred in attempting to construe the will at the time of final settlement on May 2,1950, after the time had elapsed in which the probate court retained control of its judgment, order and decree of August 5, 1949, and 2. In not holding that if the probate court possessed power to construe the will on May 2, 1950, its decision was erroneous and that its judgment affirming and approving the judgment of the probate court was erroneous.
I
The gist of appellants’ argument in support of their first contention of error is (1) that Bonney and Parr had notice of the hearing of appellants’ petition for construction of the will set for January 26, 1949, and that all parties except Parr were then present when the hearing was orally continued until March 2, 1949, on which latter date it was continued indefinitely; that under Herman v. Hawley, 118 Kan. 17, 233 Pac. 1031, a party properly brought into court is chargeable with notice of all subsequent steps down to and including the judgment, although he does not in fact appear and has no actual notice thereof, and that they had to take notice of everything subsequent to the notice originally given them, and (2) that under G. S. 1949, 59-2213, the probate court retained control of its order, judgment and decree for only thirty days, and that thereafter such order, judgment or decree could be vacated or modified only as provided by G. S. 1949, 60-3016, and that concededly, no effort was ever made to comply with the latter statute.
In our opinion the first part of the contention may not be sustained. There is no dispute that the petition of Welshans and Rauman was set for hearing on January 26, 1949, and that notice of such hearing was given; that on the day the hearing was set, it was orally continued to March 2, 1949, and when that day arrived the hearing was continued indefinitely. In the early case of Gray v. Ulrich, 8 Kan. 112, it was held:
“It is improper, aftez- a case has been continued, to set aside the continuance and dispose of the case in the absence of one party and on the application and in favor of the other.” (Syl. ¶ 2.)
There is no doubt that under the law ordinarily a continuance is not a matter of right, but may be on such conditions as the court may impose, a phase not presently before us. If a continuance is to a day certain, that day controls. Rut in the absence of an express stipulation a general order of continuance is treated as postponing the cause to the next term of the court. See 12 Am. Jur. 479, 17 C. J. S. 268. It is true that under our’ probate code terms are abolished . (G. S. 1949, 59-211). Giving that consideration, a continuance generally and not to a fixed day, could only mean that the matter to be heard could not be heard in the absence of a mutual agreement of all parties to be present, or of some notice served by one side on the other and of compulsive nature. Our probate code contains many provisions for the giving of notice to adverse parties and it is inherent therein that unless notice is expressly not to be had, that it must be had unless waived. The general rule that a party to an action, upon whom service of process has been had, must take notice of subsequent proceedings, is not applicable to such a situation as is presently under consideration. Where, as here, an Indefinite continuance was had, one party, without notice to or consent from the other, could not go into court in the absence of the other and obtain, in effect, a resetting of the proceeding, a trial thereon, and a judgment adverse and prejudicial to the rights of the nonappearing party. Such a judgment must be held to be void. Our conclusion renders it unnecessary that we treat the second subdivision of the appellants’ first contention of error, that we comment on the fact that their motion for an order nunc pro tunc discloses the order as made was not the judgment of the court, or that we discuss the general question whether parties interested in a testate estate may by proceedings for construction of a will anticipate, and by judgment rendered, preclude the probate court on the hearing of a petition for final settlement, from determining who are the heirs, legatees and devisees of the deceased testator, and assigning to them their interests in the estate. (See G. S. 1949, 59-2249.)
II
Did the probate and district courts err in construing the will? We think it unnecessary to make an extensive review of our decisions wherein rules for construction of a will have been discussed. Most of those decisions may be found in West’s Kansas Digest, Wills, §§ 435 to 491, and Hatcher’s Kansas Digest, Wills, §§97 to 114. Those rules are summarized in In re Estate of Porter, 164 Kan. 92, 187 P. 2d 520, where it was said:
“However, it must be kept in mind that in constructing a will, courts are required to (a) arrive at the intention of the testator from an examination of the whole instrument, if consistent with rules of law, giving every single provision thereof a practicable operative effect, (b) uphold it if possible, (c) construe it to avoid intestacy when possible, (d) give all importance to the intention of the testator and (e) determine the intention of the testator when clearly and unequivocally expressed, without resort to rules of judicial construction applicable to the interpretation of an instrument which is uncertain, indefinite and ambiguous in its terms. (In re Estate of Koellen, 162 Kan. 395, 176 P. 2d 544; In re Estate of Rinker, 158 Kan. 406, 147 P. 2d 740; Tomb v. Bardo, 153 Kan. 766, 114 P. 2d 320; Zabel v. Stewart, 153 Kan. 272, 109 P. 2d 177; Selzer v. Selzer, 146 Kan. 273, 69 P. 2d 708.)” (1. c. 100.)
And see also In re Estate of Ellertson, 157 Kan. 492, 496, 142 P. 2d 724, not cited in the case above, where other authorities ar© collected.
An examination of the entire will, only a portion of which is quoted above, discloses that while perhaps another scrivener would have used other language, it is clear that the testatrix intended to and did bequeath to five of her relatives and friends specific articles of personal property, to four others specific articles of personal property and designated sums of money and to three others designated sums of money, the money bequests' totaling $4,100. Following such dispositions was the language quoted earlier herein. We shall not set forth the arguments presented for and against the interpretation or construction placed on the will in the lower courts. Stated shortly, the parties are in agreement that the testatrix had power under G. S. 1949, 59-1405, to charge her real estate with the payment of her debts or other items — the principal point of difference is whether by the language used, the testatrix charged the proceeds of the sale of her real estate with the expenses of administration. The statute last mentioned provides for the order in which assets of an estate are to be applied to the payment of debts of the testator and the lawful demands against his estate, but provides that “when a will designates the property to be appropriated for the payment of debts or other items, it shall be applied to such purpose” and that unless the will provides otherwise, the property subject to the payment of debts and other items shall be taken in the following order: 1. Personal property not disposed of by will. 2. Real property not disposed of by will. 3. Personal property bequeathed to the residuary legatee, and so on as provided in the statute. It will not be labored that where the testator attempts to designate property chargeable with payment of “debts and other items” the property will be charged only with the debts and other items he may designate and with no others.
It is clear from the language of the will that the testatrix intended that her personal property was to be relieved from primary liability for “all cash bequests and bills” and that she intended that the real estate be sold and the proceeds charged therewith, and that if any of such proceeds remained it was to be divided one-half to Welshans and one-half to Bauman. It is equally clear that having relieved her other property from any liability for payment of “all cash bequests and bills,” she intended that whatever money was left thereof should go to Bonney and Parr.
It is not debatable but that the testatrix charged the proceeds of the sale of her described real estate with the payment of the money bequests. What was to be comprehended and included in “bills”? The word used was not used in any technical sense. Although the word “bill” is used as a noun referring to many different objects and things, as a reference to any standard dictionary will disclose, we are of the opinion that as used by the testatrix it had reference only to an account for goods sold, services rendered or work done and the charge therefor (see Webster’s New International Dictionary, Second Ed., Bill 7) and that the testatrix intended no more than the debts owing by her at her decease and the expenses of her last illness and funeral should be paid out of the proceeds of the described real estate and that she had no intention to charge those proceeds with the payment of the expenses and costs of administering her estate, including court costs and fees to the executrix for her services or for attorney fees.
Although some statements are made in the briefs as to the amount received for the real estate, the record as abstracted does not contain any showing as to the amount of moneys received from the sale of the real estate, any expenses of sale thereof properly chargeable thereto, any claims that may have been allowed, and which would be payable from such proceeds, nor as to any other money from other sources the executrix may have stood charged in the probate court, and we shall not comment thereon. We can only assume that the proceeds of the real estate were sufficient to pay the “cash bequests and bills” and leave some balance to be divided between Welshans and Bauman and that there is “other money” out of which to pay the costs of administration, including probate court costs and allowances to the executrix for her services and for attorney fees, any balance thereof to be paid to Bonney and Parr-Under the probate code if the “other money” is not sufficient for those purposes, the proceeds of the real estate would be applicable to such deficit as there might be. See the statute last mentioned.
The judgment of the district court affirming the judgment of the probate court construing the will is reversed, and the cause is remanded with instructions to the district court to set aside its judgment and to remand the cause to the probate court for further proceedings in accordance with this opinion. | [
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The opinion of the court was delivered by
Burch, J.:
Certain goods were in the possession of a commission merchant for sale on the owner’s account. A person without title or authority procured them to be consigned to him at Topeka, via the railroad of the plaintiff in error, at which place they were unloaded and placed in the railroad company’s warehouse. The interloping consignee then directed the goods to be shipped to a point beyond the state, paid the freight, and was given a bill of lading. Before the goods were reshipped an authorized agent and attorney of the owner discovered the goods, claimed them for his principal, and demanded possession of them from the carrier. The demand not having been complied with, the owner brought an action of replevin for his property, but obtained no order for its delivery to him. Three days later the carrier forwarded the goods in accordance with the shipping directions it had received and its bill of lading previously issued. The carrier was ignorant of who the true owner was, except as advised by the demanding a.gent, and was ignorant of that person’s authority, except as disclosed by his own representations. What were the right of the owner and the duty of the carrier under these circumstances ?
The position of the railroad company was one of great hazard and embarrassment. It was liable to be mulcted in damages if it wrongfully refused to carry and deliver the goods under its contract with the shipper, and it was without any adequate means or opportunity of knowing definitely who the true owner was. The law, however, must always aid the true owner in the recovery of his property, and he cannot be deprived of it by means of any contract re- ' lation between a wrong-doer and the carrier. When, therefore, the owner did appear and demand his goods he was entitled to their immediate delivery, and it was the duty of the possessor to make it. The solving principle to be applied to such a state of facts is expressed in the following texts, where the English and American cases are collated :•
“The real owner of goods in the hands of a carrier may, at any time before delivery to the consignee, demand possession of them, and.' the carrier is bound to respect this right without regard to how the goods are marked or to whom or by whom tfyey may have been consigned. The general rule that a carrier must deliver in accordance with the address on the shipment or with the terms of the bill of lading is subject to the exception that the true owner of the property may enforce his right to its possession as against the consignor, consignee or carrier whenever he sees fit to do so before delivery. His rights are paramount to the claims of all others.” (5 A. &E. Encycl. of L., 2d ed., 196.)
“The carrier is bound to respond to the demand of the real owner for possession of his goods, and in doing so he does not render himself liable to one who, .having fraudulently or otherwise unlawfully obtained possession of them, has delivered them to the carrier for transportation. And the real owner may maintain an action against the carrier for refusal to deliver goods to which he is entitled.” (6 Cyc. 471.)
“ It is no conversion by a common carrier or other bailee who has received property from one not rightfully entitled to possession, to deliver it in pursuance of the bailment, if this is done before notice of the rights of the real owner. After such notice he acts at his peril. A delivery to the party entitled to the possession will be a protection to him, and he may defend in the right of such party before delivery,” ( Cool. Torts, 2d ed., 534.) ~
The plaintiff in error cites in opposition to this rule the case of Kohn v. Railroad Company, 37 S. C. 1, 16 S. E. 376, 24 L. R. A. 100, 34 Am. St. Rep. 726, the syllabus of which reads :
“Where goods were received by a common carrier for transportation, and their possession then demanded by the agent of the shipper’s mortgagee, after condition broken, but the carrier declined to surrender the possession, and' after retaining them until next day then shipped the goods 'to their destination, the carrier is not liable to the mortgagee for a conversion of the goods.”
In a monographic note to the report of this case in 34 American State Reports, it is incidentally correctly appraised in the following statement of the law : ,
“There is no doubt, except in South Carolina, that the true owner of personal property may enforce his right to it as against the consignor or consignee, or the carrier, or other bailor or bailee, whenever he sees fit to do so, before its delivery to the consignee, as directed by the bailor. Hence, when the true owner demands the property of the carrier, and the latter has notice or knowledge of the title of the former, it is the duty of the carrier to deliver the property at once to such owner, and his refusal to do so renders him guilty of' a tort, and at once liable to such owner in an action for conversion.”
The district court properly took this view of the case upon the merits.
Before the trial plaintiff in error objected to the jurisdiction of the court, for lack of an allegation in the petition that its line of railroad ran into or through Shawnee county, basing its contention upon section 4480, General Statutes of 1901, and supporting it by the cases of K. C. Ft. S. & G. Rld. Co. v. Burge, 40 Kan. 734, 19 Pac. 791; St. L. & S. F. Rly. Co. v. Byron, 24 id. 350; Hadley v. C. B. U. P. Rld. Co., 22 id. 359. The statute cited provides :
“An action against a railroad company, or an owner of a line of mail stages or other coaches, for any injury to persons or property upon the road or line, or upon a liability as carrier, may be brought in any county, through or into which said road or line passes."
Plaintiff, however, made no claim for any such injury, and sought to enforce no liability against the railroad as a carrier, and the statute has no application. The cases relied on arose under the stock law , of 1874, which expressly provided that recovery should be had in the county where the injury occurred. The liability and the remedy being purely statutory, the pleadings were necessarily required to present thp precise cause of action created. No such rule applies to a suit in replevin, which is in no sense local, and may be prosecuted in the same forum as other transitory actions.
Jurisdiction was therefore properly assumed, and the judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal by an alleged tenant from a judgment denying recovery of the value of a two thirds interest in a growing wheat crop.
The defendant was the purchaser of the land at a sheriff’s sale in a partition action. The appeal is from an order striking portions of the amended petition and from a later order sustaining a demurrer thereto.
We do not deem it necessary to set forth the entire amended petition together with the various exhibits attached thereto describing previous probate and district court orders and judgments. The stricken portions of the amended petition will be considered later in connection with the treatment of contentions of the parties. A general summary of alleged facts, other than those stricken, will be helpful before considering the latter.
The instant action was filed in February, 1950, against appellee, the purchaser of the land, at a sheriff’s sale in a partition action. At the time of such sale there was a growing crop on this and on three other tracts of land sold at the same time. The partition action was between persons to whom the land in question had been assigned at the final settlement and distribution of a decedent’s estate by the probate court on November 22, 1947. Appellant, J. O. Jones, sometimes referred to' as Jim Jones, was one of four heirs and devisees mentioned in the will of their father, David Jones. This and other lands were devised to the four heirs, share and share alike.
The amended petition also alleged: Appellant had been a tenant on the land by virtue of a verbal lease with his father, who died October 4, 1946; that following the father’s death he remained on the land as a tenant under an oral arrangement then made with the administrator and with a sister and brother, devisees of the land; that he did not consult the other brother, Clink Hiram Jones, but the latter made no objections to his continuance as a tenant; -he prepared the land and sowed sixty-five acres of land to wheat in the fall of 1947, which resulted in the wheat crop in question.
The order of final settlement and distribution of decedent’s estate, as already stated, was made November 22, 1947. The wheat crop was then immature. That order recited the estate had been fully administered; all demands of creditors had been fully paid; no inheritance taxes were due; the administrator had filed his account showing his receipts and disbursements and his account had been examined and was approved.
The probate court order transferred and assigned the lands of the decedent to each of the four devisees, share and share alike, in accordance with the terms of decedent’s will. It also ordered that all funds in the hands of the administrator after payment of costs, taxes and bequests be paid to the four devisees, previously mentioned therein, or to their assigns or legal representatives. The order of final settlement and distribution further recited the time for filing of claims against the estate had expired.
Appellant did not allege he had asserted a claim in the probate court to a tenant’s share in the immature wheat crop. Such share in the crop was not assigned to him. No appeal from the final order of settlement and distribution was alleged. On May 26, 1948, the administrator filed receipt showing compliance with the former order of final settlement and distribution and obtained his final discharge.
Previously and in January, 1948, one of the four devisees, Clink Hiram Jones, instituted a partition action in the district court and made appellant a party defendant. Appellant did not assert a tenant’s share in the growing wheat crop in the partition action. The land was partitioned among the devisees in accordance with the final decree of settlement and distribution made by the probate court on November 22, 1947. Not being properly divisible in kind the land was ordered sold as provided by law. On March 22, 1948, an order of sale was issued to the sheriff directing him to advertise and sell the land. No reservation relative to appellant’s interest or claim to a tenant’s share in the growing wheat crop was contained in the judgment, order of sale, in the sheriff’s notice of sale or in the confirmation of sale. On April 27,1948, the land was sold to appellee, the sale was confirmed by the court, and on May 18, 1948, appellee obtained a regular sheriff’s deed containing no reservations or exceptions relative to the wheat crop. After the wheat crop matured appellee entered upon the premises and started to cut the wheat. Appellant notified appellee not to cut it; that he claimed a tenant’s two thirds share and intended to cut it within a few days and deliver one third thereof to appellee; appellant advised appellee the wheat belonged to him and he reminded appellee of the alleged terms of the sale, which terms will be mentioned presently, but appellee contended the wheat belonged to him and that he was going to cut it; appellee did so.
Appellee’s demurrer to the amended petition was based on the grounds (1.) it failed to state a cause of action for the relief sought; (2) the matters alleged in the amended petition were fully determined in the partition action; and (3) it constituted a collateral attack on the judgment in the partition action.
Appellant concedes the amended petition did not state a cause of action after portions thereof were stricken pursuant to appellee’s motion. He contends the stricken allegations supplied essential elements of plaintiff’s cause of action. He asserts the court erred in striking from the petition certain allegations relative to alleged terms of the partition sale. One of those allegations, in effect, was that the defendant, by his attorneys Relihan and Relihan, in the partition action, caused to be published two articles in a Smith county newspaper. The foregoing statement was stricken. A copy of the article itself, however, appears not to have been stricken. We are unable to perceive how the striking of the foregoing allegation constituted- error. From the record in the partition action presented to us it appears that law firm did not represent the instant defendant in the partition action, if he were actually a party thereto which is not made to appear, but that such firm represented the plaintiff, Clink Hiram Jones, in the partition action.
In any event the article published in effect stated that four farms formerly belonging to the late David Jones would be sold at sheriff’s sale and that possession thereof would be given upon confirmation of sale, “subject to rights of tenants to harvest wheat planted on lands. Landlord’s share of wheat to go to purchaser.” Another portion of the petition which was stricken stated, in effect, that T. D. Relihan, an attorney for the plaintiff in the partition action, made an announcement at the sale of the terms and conditions of the sale in substantially the same form as published in the newspaper article.
We pause to observe this was a judicial sale. It was a sale by the court and the stricken statements were not alleged to have been made by the sheriff, the agent of the court. As previously indicated the statement by the attorney and the newspaper articles were contrary to the judgment, order of sale, confirmation of sale and the sheriff’s deed. Assuming, however, such advertisements or oral statements may become competent evidence under some circumstances, did they in the light of other allegations in the amended petition, establish appellant’s cause of action?
It will be recalled four tracts of land were being sold at the same partition sale. Appellant does not claim to have been the tenant on any of the other three tracts of land. We are first obliged to inquire what the rights of this particular appellant were at the time of the partition sale. In support of the order sustaining the demurrer appellee first contends the petition did not disclose appellant had a tenant’s interest in the wheat crop for the reason the petition failed to disclose he had a valid lease on the land.
Appellant’s lease was based on an oral agreement with the administrator and with only two of the other three heirs which it is alleged was made following the decedent’s death on October 4, 1946. The crop here involved was not one planted in the fall of 1946 but was a crop planted in the fall of 1947 and harvested in the summer of 1948. No petition for permission to execute a lease was submitted to or approved by the probate court. The material part of G. S. 1949, 59-1409 provides:
“The executor or administrator may lease real estate in his possession for a term of not more than one year. He, together with the heirs and devisees having an interest therein, may lease such real estate for a term longer than one year, and they may execute an oil and gas or other mineral lease for such real estate.”
G. S. 1949, 59-2302 reads:
“A petition for the lease of the real estate of a decedent, or of a ward, for a term of three years or less, may be heard with or without notice. The court may direct the representative to execute the lease whenever it appears to be for the best interests of the estate or the persons interested in such real estate.”
2 Bartlett’s Probate Law and Practice, § 1234, states:
“A property lease for a term of three years or less may be made with court approval, with or without notice to interested persons. The court should use its sound discretion in determining whether notice of the hearing of the petition should be required. It should also be noted that only a property lease can be executed by the executor or administrator of a decedent’s estate, and that only for a term of one year or less, unless the lease is also executed by the heirs and devisees having an interest in the realty. However, the executor or administrator may join the heirs and devisees in executing a property lease for a longer term, or in executing an oil and gas or other mineral lease. When such a lease is executed by the executor or administrator and the heirs or devisees having an interest in the realty, it needs only court approval to the execution of the lease by the executor or administrator.”
We think the amended petition did not plead a valid lease. In so concluding we have not failed to consider other stricken portions of the petition which, in substance, alleged: Appellant continued to farm the land under the terms of the verbal lease originally made with the decedent; that the heir and devisee, Clink Hiram Jones, whom appellant did not consult about the lease, knew appellant was farming the land; the defendant (appellee) knew plaintiff had planted the wheat crop in question; plaintiff had received no pay for his labor and expense of preparing the land and sowing the seed.
It may be well to also note that although the petition alleged Clink Hiram Jones knew appellant was farming the land it did not allege he approved the terms of the verbal lease or that he had any knowledge of its terms.
If, however, by any process of reasoning we might overcome the invalidity of the lease we immediately encounter a second difficulty in an effort to sustain appellant’s claim. The petition contains no allegation appellant ever presented his claim to the probate court. No reason is alleged for not having done so. For all that appears in the petition he was entirely satisfied, for some reason, to accept his distributive share as being an equal undivided one-fourth interest in the land with the growing wheat crop thereon. That is the interest he received under the decree of final settlement and distribution of the probate court and appellant did not appeal from such decree. In Middendorf v. Kansas Power & Light Co., 166 Kan. 610, 203 P. 2d 156, this court discussed at length the effect of such a decree and held:
“A final settlement of an estate made by the probate court pursuant to the probate code is a final order binding upon all persons interested in the estate, and the order of final settlement, if not appealed from, becomes final and conclusive as against collateral attack.” (Syl. If 2.)
We encounter another difficulty in considering appellant’s claim. Following the final decree of settlement and distribution in the probate court one of the cotenants, Clink Hiram Jones, filed an action in the district court to partition the land. A partition action is particularly designed and suited to settle any and all rights of cotenants in and to the property involved. The district court in such a proceeding has full and complete power to adjudicate every legal and equitable right of the parties to the litigation. Appellant was a party to the partition action but failed to assert a tenant’s interest in the crop. He may have recognized that having asserted no claim to a tenant’s share in the probate court and having received no such interest in the decree of final settlement and distribution he was barred from asserting it in the district court. At any rate the fact remains he does not allege he asserted a right to the tenant’s share of the crop in the partition action and the judgment rendered therein did not protect the interest he now asserts. Nor does the petition allege he refused to accept the proceeds of the sale of the land together with the growing wheat crop which sale the district court ordered made in exact accord with appellant’s rights as determined in the final order of settlement and distribution by the probate court. He perfected no appeal from the judgment in the partition action and it likewise became a finality.
All the court proceedings and judgments thus far discussed which determined appellant’s interest in the land together with the growing wheat crop transpired prior to the alleged notice of the terms of the sale upon which appellant relies.
In this state it has been held a conveyance of land by voluntary deed or judicial sale, without reservations, carries all growing crops with the title to the land. The rule applies only, however, to crops which are immature and have not ceased to draw nutriment from the soil at the time of sale and is not applicable to crops that are ripe or ready to harvest. This general rule has been stated in decisions involving varied facts. Some of them are Garanflo v. Cooley, 33 Kan. 137, 5 Pac. 766; Goodwin v. Smith, 49 Kan. 351, 31 Pac. 153; National Bank v. Beegle, 52 Kan. 709, 35 Pac. 814; Brendle v. Hudson, 146 Kan. 924, 73 P. 2d 1013.
From what has been said herein it must not be inferred that evidence of a parol agreement concerning reservations about growing crops is never admissible. (Peterson, Administrator, v. Honaker, 114 Kan. 752, 220 Pac. 1025; Soeken v. Hartwig, 124 Kan. 618, 261 Pac. 590.) What we do conclude in the instant action is that evidence of statements such as those here relied on cannot perform the function of creating a new title in and to a tenant’s share in a growing wheat crop when such title, if it ever existed, was previously lost by the finality of judicial decree.
Appellant contends the administrator of decedent’s estate had not been finally discharged by the probate court at the time the partition action was instituted in the district court and, therefore, the latter court acquired no jurisdiction to partition the land, citing In re Estate of Williams, 160 Kan. 220, 160 P. 2d 260. We cannot agree. A careful examination of the Williams’ case will disclose that decision is not controlling in the instant case. Here there had been a complete and final order of settlement and distribution. The title to the land had become vested and was assigned to the parties according to the directions contained in the will of the testator. The administrator’s account had been approved. His fees and those of his attorneys had been allowed. It is not alleged the final decree was ever changed or altered in any particular or that an appeal therefrom was perfected. All that remained was the discharge of the administrator upon compliance with purely ministerial duties.
We think the court did not err in striking portions of the amended petition. We are also persuaded it did not err in thereafter sustaining the demurrer. The demurrer would have been good even though no allegations had been stricken previously. Only facts which constitute elements of a cause of action are properly considered in ruling on a demurrer to a petition.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Pollock, J.:
The legislature of the state, convened by the governor in extra session, in 1898 created the court of visitation, and by chapter 28 of the laws of' that session attempted to confer on that body the exercise of administrative, legislative and judicial powers, and jurisdiction over the railways of the state. By chapter 38, Laws of 1898, the same jurisdiction conferred on the court of visitation over railway companies was extended over the telegraph companies of the state. Section 1 of that act reads :
“That from and after the taking effect of this act the court of visitation shall have the same power, jurisdiction and control over all questions concerning the regulation of the telegraph service in this state, the reasonableness of charges herein fixed or to be fixed by any order of said court, and in all matters concerning the regulation, management or control of telegraph companies, as is conferred upon said court of visitation in reference to railroads or railway corporations in this state.”
Section 2 of the act fixes the rates to be charged for the transmission and delivery of messages :
“That no person, company or corporation owning or operating any telegraph line in this state shall demand, charge, or receive, directly or indirectly, a rate in excess of fifteen cents for the first ten words (exclusive of address and one signature), and one cent for each additional word, for transmitting any message between points within this state. And no such person, company or corporation shall demand, charge, or receive, for any distance between points within this state, more than one-third of one cent for each word for messages of over ten words received between the hours of six o’clock a. m. and six o’clock p. m., and one-sixth of one cent per word for messages received between the hours of six o’clock p. m. and six o’clock A. m. to be transmitted as special reports for newspapers.”
Section 7 makes provision for a forfeiture and its collection for the failure, neglect or refusal to receive, transmit, or deliver, without unnecessary delay, any message under the terms of the act:
“Any person, company or corporation engaged in the business of receiving and transmitting telegraphic -messages within the state refusing, failing or neglecting to receive (either from the person sending the same or any connecting line), transmit, and deliver, without unnecessary delay, any message offered for transmission, after the legal charges under this act for transmission and delivery have been paid or tendered, or refusing, failing or neglecting to transmit and deliver, without unnecessary delay, any message received for transmission and delivery, either from the person sending the same or any connecting line, shall forfeit and be liable to the person sending or trying to send such message and to the person to whom the same was sent or directed, in the sum of $100 each, as damages, to be recovered in a civil action by each of said parties in any court of competent jurisdiction, together with a reasonable attorney’s fee in each court into which said action may be taken, by appeal or otherwise. This section shall not in any manner affect the rights of such persons to recover actual damages for failure to send or deliver such message, in addition to the forfeiture herein provided for.”
Section 8 of the act makes .the violation of any of the provisions of the act criminal:
“Any person, company, or corporation, or any agent, servant or employee of any person, company, or corporation, violating any of the provisions of this act, shall.be deemed guilty of a misdemeanor, and upon conviction be punished by a fine of not less than fifty dollars nor more than five hundred dollars, and imprisonment in the county jail not less than thirty days nor more than one year.”
This action was brought by Edwin A. Austin against the Western-Union Telegraph Company to recover the statutory penalty, or forfeiture, of $100 and attorney’s fees, provided for by the teiuns of section 7 of the act for failure of the company to deliver, without unnecessary delay, a message sent by him to one Markley from Topeka to Lyndon, Kan.,.on the 8th day of November, 1899. At the trial there was judgment for plaintiff for the statutory forfeiture of $100 and attorney’s fees, as provided in the act. • The telegraph company brings error.
The question presented for our consideration and determination is the validity of that section of the act making provision for a forfeiture and its collection. This court, in the case of The State v. Johnson, 61 Kan. 803, 60 Pac. 1068, 49 L. R. A. 662, held chapter 28, Laws of 1898, unconstitutional and void, for the reason that it constituted an attempt on the .part of the legislature to confer on one body the power and jurisdiction to exercise administrative, legislative and judicial functions in violation of the fundamental principles of our government. Upon the authority of that case, and by the same process of reasoning there employed, it must be held that chapter 38, Laws of 1898, is unconstitutional and void in so far as it attempts to confer like jurisdiction and power over the telegraphs of the state. Thus far all agree. It is, however, contended that section 7 of that act may stand alone as a separate and independent enactment, unaffected by the declared unconstitutionality of chapter 28 which created, the court of visitation and defined its powers and jurisdiction in relation to railways, and the conceded invalidity of chapter 38, in so far as the like jurisdiction and power of that court was attempted to be extended over the telegraph lines and service of the state.
In considering the merits of this contention and the ability of section 7 to stand alone as an independent enactment, in what light must it be viewed ? What well recognized and established principles of the law must be applied ? This court in In re Hall, Petitioner, 38 Kan. 670, 17 Pac. 649, held:
“ Laws enacted by the same legislature about the same time and concerning the same subject-matter, being in pari: materia, are to be taken and considered together in order to determine the legislative purpose and arrive at the true result.”
Prior to 1898 there existed in this state a board of railroad commissioners. By chapter 29, Laws of 1898, the act creating that board and all acts in relation thereto were expressly repealed, and the court of visitation, a new creation, formerly unknown to the state, was created, and its power and jurisdiction over the railways of the state was therein defined. Chapter 38, passed at the same extra session of the legislature, and about the same time, extended like power, jurisdiction and control of that body over the telegraphs of the state, and by chapter 19, Laws of 1898, like power, jurisdiction and control as was given the court of visitation over railways and telegraphs was extended over the express companies of the state, all evincing one general scheme of legislation of which the new court of visitation, with complicated, strange and varied powers, was the central and paramount idea. Hence we arrive at the conclusion that the provisions of chapter 38 must be viewed in the same .light, and construed in the same manner and with like results as though that chapter formed, a part of the parent act, chapter 28.. Thus considered as one law, parts of which have been stricken down by the mandate of this court, how are the remaining provisions to be construed, and what presumptions in regard to the validity of the remaining provisions are to be indulged. ? In a note to Cooley’s Constitutional Limitations, 5th ed., 213, it is said:
“It must be obvious in any case where part of an act is set aside as unconstitutional, that it is unsafe to indulge in the same extreme presumptions in support of the remainder that are allowable in support of a complete act when some cause of invalidity is suggested to the whole of it. In the latter case, we know the legislature designed the whole act to have effect, and we should sustain it if possible ; in the former, we do not know that the legislature would have been willing that a part of the act should be sustained if the remainder were held void, and there is generally a presumption more or less strong to the contrary. While, therefore, in the one case the act should be sustained unless the invalidity is clear, in the other the whole should fall unless it is manifest the portion not opposed to the constitution can stand by itself, and that in the legislative intent it was not to be controlled or modified in its construction and effect by the part which was void.”
The same rule was stated by Bartholomew, C. J., in delivering the opinion in Martin v. Tyler, 4 N. Dak. 278, 298, 60 N. W. 392, 25 L. R. A. 838, as follows :
“It is our duty to sustain statutes in their entirety when possible, and to that we must indulge all reasonable presumptions in favor of their constitutionality. But, when a statute has been once emasculated, these presumptions no longer obtain in support of the remainder. It should then be manifestly clear that the remaining portion can stand by itself, and that the legislature did not intend that such portion should be controlled and modified in its construction and effect by the rejected part.” ( See, also, State v. Stewart, 52 Neb. 243, 71 N. W. 998 ; Skagit County v. Stiles, 10 Wash. 388, 39 Pac. 116.)
Therefore, the general rule that every reasonable presumption is to be indulged in favor of the consti tutionality of an'entire act, or a portion of an entire act, no part of which has been held void, does not here obtain, but it must be clear from a consideration of the entire act that the remaining provisions, one of which is now challenged, are not dependent upon those portions of the act heretofore declared void, but may stand as a valid, separate and independent enactment. This court, in C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., 28 Kan. 453, held :
“While it is undoubtedly true that a statute may be constitutional in one part and unconstitutional in another, yet this rule obtains only where the two parts are separate and independent; and where they are so related that the latter is á condition of, a compensation for or an inducement to the former, or where it is obvious that the legislature, having respect to opposing rights and interests, would not have enacted one but for the other, then the unconstitutionality of the latter avoids the entire statute.”
In the opinion, delivered by Justice Brewer, it was said:
“And now we remark in the first place, that while it is undoubtedly true that a statute may be constitutional in part and unconstitutional in part, yet as a general proposition it has its limitations. The mere fact that the one part standing alone would be within the scope of the legislative power, does not prove that it can be upheld when coupled with other matter. If such other matter conflicts with the constitution and must fall, then the constitutionality of the first depends upon the extent and closeness of its connection with the second. If the first be conditioned upon the second, or if it is apparent that the legislature would not have enacted the first, but for the second, that the latter was as it were an inducement to the former, and that only by virtue of a concurrence of the two would it be presumed that in the judgment of the lawmaking power the respective rights of antagonistic parties would be preserved, then with the fall of the second falls also the first. It is not enough to say that the legislature might have legally enacted the first alone. When it has coupled the two together the failure of the latter invalidates the former; and this for the reason that because of the mutuality of the two, the relation inter sese, the dependence of the one upon the other, the correspondence of blessing and burden* it must be presumed that the one was an inducement to or a condition of the other ; that the legislature would not have enacted one but for the other.”
In support of the argument made, there was cited and quoted from with approval Cooley on Constitutional Limitations, 179 ; the argument of Shaw, C. J., in Warren and others v. Mayor and Aldermen of Charlestown, etc., 2 Gray, 84 ; Slauson et al. v. City of Racine, 13 Wis. 398 ; Meshmeier v. The State, 11 Ind. 482 ; Lathrop v. Mills, 19 Cal. 513.
Viewed in the light of this authority and the many others elucidating the general rule here enunciated, can it be held that the provisions of the act now under consideration, providing for a forfeiture, may stand as a valid, separate and independent enactment? We think not. Nor do we think, as contended by counsel for defendant in error, that the parts of the law heretofore held unconstitutional and void may not be looked to in determining the validity of the remaining portions of the law. In Commonwealth v. Potts, 79 Pa. St. 164, it was held: “Although the proviso was not effectual because of its unconstitutionality, it could not be stricken out in interpreting the section.”
Coming now to the relation and dependence of that provision of the act here assailed, an examination of the act shows that section 2 of chapter 38 fixes a rate at which messages shall be transmitted and delivered within the state, but section 1 declares such rate to have been established temporarily, subject to regulation and change by the court of visitation and not as a permanent fixing of rates by the legislature. This is shown by section 1 of the act above quoted, wherein it is provided that the court of visitation shall have the same power, jurisdiction and control over the reasonableness of rates fixed in the act or thereafter to be fixed by the court as was conferred upon the court to fix rates for the railway companies of. the state, for when reference is made to that act it is found that the power of the court to fix rates for services performed by railroad companies is left entirely to the judgment of the court. . By an examination of the language employed in section 7, it will be seen that that section does not provide a penalty or forfeiture for failure, refusal or neglect of the defendant company to receive, transmit, and deliver, without unnecessary delay, messages over its lines, under contract with the sender generally, but for failure, neglect or refusal to receive, transmit,' and deliver, without unnecessary delay, all messages presented, after payment or tender of the charges fixed in the act. Manifestly, therefore, it was the intent of the legislature that the whole subject of telegraphic service, including the rates to be charged for services performed within the state, should be under the direct control of the court so created and subject to change at liberty by ruling of that court. To enforce compliance with, the rulings of that court section 7 was enacted. The validity of the act creating the court and extending its powers over the railroads of the state has been denied. Thus, the general scheme of legislation of which that court was the central figure having failed, it must be held that the section now under consideration, providing a penalty or forfeiture for non-compliance with the rulings of a body created by act of the legislature, but void for want of legal existence, is inoperative and void.
. Other questions are discussed by counsel. The decision made renders the consideration of them unnecessary. It follows that the judgment must be reversed, with directions to proceed further in accordance with this opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Parker, J.:
This case springs from litigation which had its inception in a divorce action and its incidents between the parties thereto.
For convenience the plaintiff, wife, who prevailed in that action will be referred to as appellant and the defendant, husband, as the appellee.
The appeal is from orders of the district Court in (1) sustaining the appellee’s motion to reduce child support payments, (2) in overruling appellant’s motion for a nunc pro tunc order and (3) in overruling her motion for allowance of attorneys’ fees to enable her to defend the proceeding instituted by the appellee.
On July 6, 1946, appellant and appellee, the parents of a son Robert, who was then of age, a daughter Margaret, sixteen years of age, and a son Harry, of the age of twelve years, entered into a separation agreement whereby they settled their property rights and agreed on án amount to be paid appellant, who was to have the custody of the minor children, for her support and that of such children. Among other things, and limited to issues involved on appeal, such contract provided:
“That party of tire first part shall pay to party of the second part for her support and maintenance and for the support, maintenance and education of the minor children of the parties, the sum of Two Hundred, Fifty Dollars ($250.00) per month, . . .
“Should party of the first part sever his employment with the military or civil service of the United States Government, the amount which he shall be obligated to pay the said party of the second part for support, maintenance and education of said children and herself shall be proportionately adjusted on the basis of the ratio of his total income at the time of such severance with the amount of his total income in private employment.
“As each of the children respectively arrive at the age of twenty-one years, marry or become self-supporting, whichever event occurs first, the amount which party of the first part shall be obligated to pay party of the second part under the terms hereof shall be reduced in an amount equal to one-fifth (1/5) of the amount which he shall be paying party of the second part at the time such event occurs.
“That die said Two Hundred, Fifty Dollars ($250.00), or adjusted portion thereof, as hereinabove provided, shall be paid to party of the second part so long as she shall live, or in the event the parties are divorced, then so long as party of the second part remains single and unmarried; that in the event of a divorce and the subsequent remarriage of party of the second part before the children become twenty-one years of age, self-supporting or married, party of the first part shall pay party of the second part for the support, maintenance and education of said children, Seventy-five Dollars ($75.00) per month for each child until each of said children becomes twenty-one years of age, self-supporting or marries, whichever occurs first.”
A few days after execution of such contract appellant commenced a suit against appellee in the district court of Wyandotte county for a divorce and thereafter on September 17, 1946, as a result of proceedings which are not in controversy, judgment was rendered against appellee by the district court granting appellant a divorce and awarding her the custody and control of the minor children. The decree of divorce states that the property settlement agreement entered into by the parties under date of July 6, 1946, was presented to and approved by the court. It also contains a summarization of the court’s construction of the important provisions of the contract. Included in this summarization is a statement to the effect that the payments required by its terms were to be paid by appellee to appellant for the support of the minor children and her own support in accordance with the agreement. In addition, with respect to matters important to issues here involved, the district court found and such decree reads:
“It Is Further Considered, Ordered, Adjudged and Decreed that plaintiff be and she is hereby given the care, custody and control of the minor children of the parties, namely, Margaret J. French and Harry P. French, Jr., and the defendant is given the right and privilege of visiting said children at reasonable times and said children may visit with him at reasonable times and intervals. That plaintiff be given all of the household goods, furniture and effects now in her possession, except the personal clothes and belongings of party of the first part, which he shall own and have when he shall desire to have the same. That the defendant shall pay the plaintiff for the support, maintenance and education of the minor children of the parties and for her own support the sum of Two Hundred, Fifty Dollars ($250.00) a month, which amount, or an adjusted amount, shall be paid, in accordance with the agreement of the parties entered into on July 6, 1946, until the children arrive at the age of twenty-one years, marry or become self-supporting, '•'hichever event occurs first, or the plaintiff remarries. ...”
Shortly after rendition of the foregoing judgment, due to a change in appellee’s employment status, the parties orally agreed to reduce the monthly payments required under terms of their original contract. The date of this second agreement and the amount of the payments to be made under its terms will be presently disclosed and hence need not be detailed.
Thereafter, on June 21, 1949, approximately three years after rendition of the judgment, the parties entered into a third contract, this time in writing, designated as a supplemental agreement, which, omitting formal portions thereof, reads:
“1. That the agreement heretofore entered into by and between them under date of July 6, 1946, be modified in this, to-wit:
“That because of the fact that the said party of the first part is no longer in the Military or Civil Service of the United States Government, and is no longer earning the amount which he was earning at the time he severed his employment with the United States Goverment, that the Two Hundred, Fifty ($250.00) Dollar monthly payments provided by paragraph four of said agreement shall be modified and changed in accordance with the' formula provided in the second paragraph of said paragraph four, by reducing and adjusting the payments from Two Hundred, Fifty ($250.00) Dollars a month to One Hundred, Fifty ($150.00) Dollars a month, commencing May 1, 1947.
“2. That the oral agreement entered into by and between the parties hereto on or about October 1, 1946, for a reduction of said payments for the period from October 1, 1946, to April 30, 1947, from Two Hundred, Fifty ($250.00) Dollars per month to Two Hundred ($200.00) Dollars per month is hereby ratified, confirmed, and approved, and the party of the second part hereby acknowledges that all sums due under the terms of the agreement of June 6, 1946, as modified by said oral agreement have been fully paid.
“3. That all other terms, provisions, and stipulations of said agreement shall remain in full force and effect.”
Pursuant to terms of the agreement just quoted appellee paid appellant monthly payments of $150 per month until July 1, 1949, when, apparently by an understanding between the parties, such payment was reduced one-fifth by the formula set out in the original agreement to $120, due to the fact that Margaret, the daughter, had become self-supporting. Subsequently, with some variation for claimed credits not here material, payments were made on that basis until about April 24, 1950, when appellee filed his motion to modify the divorce decree by reducing the amount of child support payments. In a summary way it can be said this motion ignored the clear and unambiguous provisions of the judgment and was predicated upon the premise the payments required by its terms were for support of the children only and that the sum of $120 per month, which we pause to note would be the amount due and payable under the provisions of the supplemental agreement after Margaret became self-supporting, was an excessive amount to be paid for the support of the minor Harry P. French which should be reduced to $75 per month.
Following the filing of the motion just mentioned the appellant filed a motion asking that appellee be required to pay her a reasonable sum as and for attorneys’ fees in order that she might employ counsel with which to contest his motion. She also filed a motion for a nunc pro tunc order correcting the original decree of judgment.
All motions heretofore mentioned were argued at one hearing before the judge of the district court who had tried and decided the original action. At the conclusion of such hearing appellant’s motions were overruled and appellee’s motion sustained. The journal entry reflecting this action discloses that in sustaining the appellee’s motion the district court held (1) that the original settlement agreement entered into between the parties was incorporated and merged in the judgment rendered in the divorce action and that by reason thereof such agreement was extinguished and of no further force and effect; (2) that the portion of its original judgment, heretofore quoted, providing “that the defendant shall pay the plaintiff for the support, maintenance and education of the minor children of the parties and for her own support the sum of $250 a month, which amount, or an adjusted amount, shall be paid in accordance with the agreement of the parties entered into on July-6, 1946, until the children arrive at the age of twenty-one years ... or the plaintiff remarries,” should be construed as an order made by it for the support of the two minor children of the parties and that the part thereof providing a portion of such sum should be paid to the appellant “for her support . . . until . . . or the plaintiff remarries,” should be disregarded and has no legal effect for the reason that to give it force and effect “constitutes permanent alimony in favor of the plaintiff and is therefore void for the reason no total sum thereof is provided.”; (3) that the supplemental agreement entered into between the parties was not to be construed as a contract whereby, notwithstanding the judgment, appellee had agreed to pay appellant the payments specified by its terms for her support and maintenance and for the support, maintenance and education of the minor children but as one whereby the appellant and appellee had agreed to reduce the payments required by its terms for the support of their children, and (4) that notwithstanding the supplemental agreement the appellee was only required to pay appellant the sum of $75, and that as support money for their remaining minor child, which amount, it is to be noted, was considerably less than appellee had agreed to pay her under the terms of the supplemental agreement.
We have serious doubt the trial court’s conclusions 1 and 2, to which we have just referred, are warranted by the record. Under our decisions (See, e. g., Petty v. Petty, 167 Kan. 510, 207 P. 2d 428, and cases there cited) a separation agreement, approved by the trial court as a part of its decree in a divorce action, is not to be regarded as merged in the judgment in the absence of clear and unequivocal language requiring that conclusion. Even then it is by no means certain it can be said or held that such agreement is extinguished to the extent its contractual provisions are no longer binding upon the parties. Under other decisions (See Hyde v. Hyde, 143 Kan. 660, 56 P. 2d 437; Petty v. Petty, 147 Kan. 342, 76 P. 2d 850; McKinney v. McKinney, 152 Kan. 372, 103 P. 2d 793; Perkins v. Perkins, 154 Kan. 73, 114 P. 2d 804, and cases there cited) we have held that a husband and wife may enter into a marriage settlement whereby they agree upon a division of property as between themselves and payment to be made by the husband to the wife for her maintenance and for the care and custody of their children and that when such an agreement is approved by the trial court the rights and liabilities of the parties thereto are governed by the terms of the contract, not by the statutory authority of the court in divorce cases. However, it is not necessary and we are not disposed to here labor or pass upon whether either of such two conclusions is erroneous. Assuming, but without deciding, that both are correct there is sound ground for holding the trial court’s action cannot be upheld.
We are convinced the trial court’s conclusion heretofore identified as (3) to the effect the supplemental agreement was to be construed as an agreement between the parties reducing the child support payments required by the terms of the judgment finds no support in the record. Indeed the contrary appears. Under the terms of that instrument when read in connection with paragraph four of the original contract, to which it expressly refers, what appellee contracted to do was to pay appellant for her support and maintenance and for the support, maintenance and education of the two minor children the sum of $150 per month ($120.00 on the date of the hearing due to the fact that in the meantime one of such children had become self-supporting). That, we pause to note, did not contravene but was in entire compliance with the then existing express conditions of the divorce decree providing that payments should be made to the wife in accordance with the agreement of July 6, 1946.
Thus it appears the primary question involved in this case is whether, in the face of an undisputed record disclosing that subsequent to the date of the divorce decree appellee had contracted with appellant to pay her for her own support and the support, maintenance and education of their minor children the amounts heretofore indicated, the trial court erred in holding that under and by virtue of its continuing jurisdiction over minors involved in a divorce action it could disregard that contract and enter a support order the legal effect of which if unappealed from would result in releasing the appellee from a portion of the obligation he had agreed to pay appellant under its terms.
We have little difficulty in concluding that, under our decisions, with facts and circumstances as heretofore related, the foregoing question must be answered in the affirmative on the authority of Dutcher v. Dutcher, 103 Kan. 645, 175 Pac. 975; Miller v. Morrison, 43 Kan. 446, 23 Pac. 612 and Walrath v. Walrath, 27 Kan. 395. These decisions definitely establish that in this jurisdiction an agreement such as is here involved is valid and binding between the parties. Therefore, since the record discloses appellee had agreed under and by virtue of the terms of the supplemental contract to pay appellant the sum of $150 (now $120.00) per month for her support and the support of their minor children, it follows that the trial court erred in making an order which, if permitted to stand, would result in absolving appellee from a portion of the obligation he had assumed and was obligated to pay under its terms.
Appellant contends the district court erred in denying her motion for a nunc pro tunc order. The function of a nunc pro tunc order is not to make an order now for then but to enter now for then an order previously made (See Bush v. Bush, 158 Kan. 760 150 P. 2d 168). We have examined the record and are by no means certain the trial court included the matters covered by this motion in its judgment. In such a situation we are unwilling to say the trial court committed error in denying the motion.
Another contention advanced by appellant is that it was error to deny her motion for allowance of attorneys’ fees in order that she might employ counsel. She was not entitled to an allowance of attorneys’ fees as a matter of right. We have held (See Hayn v. Hayn, 162 Kan. 189, 175 P. 2d 127) the refusal of a trial court to allow such fees will not be disturbed in the absence of facts disclosing abuse of discretion. Appellant adduced no evidence in support of this motion when it was heard and bases her claim of error on this point solely upon the fact her motion was verified. A verified motion does not supply the record with the facts required to warrant a finding of abuse of discretion on appellate review.
We have not overlooked appellee’s challenge of appellant’s right to be heard based on the ground she failed to file her abstract of record within forty days as required by our rules. The trouble with this claim is that appellee did not make this challenge until more than three months after appellant had filed her abstract. In fact such claim was not made in this court until the date on which he filed his brief. Under such conditions, even though we do not approve of a violation of our rules, we are not inclined to and do not deprive litigants of the right to be heard on appeal.
The order and judgment of the district court sustaining the appellee’s motion to modify the divorce decree is reversed with directions to set it aside and it is so ordered. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action brought on two accounts against the commissioners of Ford county to recover for printing done for said county. After the original petition had been filed the court allowed plaintiff' below to attach thereto two itemized and verified accounts, showing the amounts due him. There was no verified denial of these accounts by defendant in error, but the answer set out a contract in writing between Lucas and the county, wherein he agreed that if, in a contest to be had in court, it was decided that one Klaine, who asserted .the right to do the county printing, was declared to be the official county printer, he (Lucas) would charge nothing for the work done by him. It was further alleged that in such contest the 'newspaper owned by Klaine was held to be the official county paper and that Klaine was entitled to do the printing under a contract he had with the commissioners.
Plaintiff below filed a motion for judgment on the pleadings, on the ground that the verified accounts on which the action was based were admitted to be just and correct by a failure of the defendants to.make denial of their correctness under oath, and that no issue was raised by the unverified answer. The motion was overruled. While there are many' assignments of error, the brief of counsel for plaintiff in error confines the argument to the erroneous action of the court in overruling his motion for judgment.
In his re*ply brief counsel attempts to. present other questions and discusses other points of alleged error,. but we must look to his original brief to ascertain the grounds of his complaint. The office of a reply brief is to answer arguments advanced on the other side. They are not provided for in our rules but are allowed to be filed on application as a matter of favor only.
The failure of defendants below to take issue on the correctness of the account did not preclude them from showing that it was paid, or setting up any other defense which did not involve a denial of the reasonableness of the amounts charged or the correctness of the items. Here an express contract was pleaded in the answer, signed by plaintiff in error, in which it was stipulated that he was to charge nothing for the printing if it was determined in court that Klaine was entitled to do the work. . This, defense was not in denial of the correctness of the account on which Lucas sued, but partook of the nature of a defense by way of con fession and avoidance. (Johnston v. Johnson, 44 Kan. 666, 24 Pac. 1098 ; Coal Co. v. Brick Co., 52 id. 747, 35 Pac. 810.)
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for the partition of a described quarter section of land in Rooks county. The petition, filed August 6, 1949, alleged the postoffice addresses of plaintiffs and that the described land is owned in fee simple by certain named parties to the action as tenants in common in the proportions set opposite their names, listing the names of twenty-two persons and the fractional share owned by each of them; that the tenants in common are in possession of the property, and the same is subject to partition among them; that plaintiffs desire the property be partitioned among the tenants in common, if that can be done without mani fest injury to them, otherwise that the land be appraised and taken on election or sold, as provided by law; that the plaintiff, Zenas Z. Henrie, had been collecting rents from the land as agent for the owners and has on hand several hundred dollars and will pay all rents into court at the time of trial or as directed by the court.
It was further alleged that three of the parties named in the list of tenants in common had executed and delivered purported conveyances in the oil, gas and mineral rights. The dates of these instruments, the respective grantors and grantees, and the book and page where each of them is recorded, are set out. The grantees of these instruments were made parties defendant in the action. The parties to these instruments are spoken of in the record as defendant grantors and defendant grantees, and they are the only parties who made any defense in the action. It was alleged in the petition that each of those conveyances is void for indefiniteness and uncertainty and for the reason that they are in violation of the rule against perpetuities; that each of them was made without consideration and for the purpose of the grantors obtaining an unfair and inequitable advantage over other tenants in common, and that the grantees hold the interest, if any, conveyed in trust for the grantors; that if any interest was conveyed it was at a time when the parties were tenants in common with other parties to the action and would constitute an inequitable and unfair hardship or burden on the title of ownership of the property and should be cancelled; that if for any reason the court finds the grantees own any interest by virtue of the conveyances then, nevertheless, the whole of the property should be partitioned or sold and the rights adjudged as between such grantors and grantees. The prayer of the petition, among other things, asked the court to decree the purported conveyances of mineral interests to be null and void, and cancelling them of record, or decreeing that the grantees hold the interest conveyed, if any, in trust for the grantors, and that the same be disregarded so far as the tenants in common are concerned, and that the rights be adjudged as between grantors and grantees.
The defendant grantors moved that the plaintiffs be required to set out copies of the purported conveyances and to state more specifically the facts upon which allegations of their validity were made. This motion was sustained to the extent that it required the setting out of copies of the conveyances.
Plaintiffs filed an amended petition substantially the same as the original, but attaching thereto copies of the three mineral conveyances.
Thereafter the defendant grantors and the defendant grantees moved to strike from the amended petition the paragraphs in which it was alleged that each of the conveyances is void because of indefiniteness and uncertainty; and for the reason that they are in violation of the rule against perpetuities; that they were made without consideration and for the purpose of grantors obtaining an unfair and inequitable advantage of the other tenants in common, and the grantees hold their interest, if any, in trust for the grantors; that in any event if any interest was conveyed it was at a time when the parties were tenants in common with other parties to the action and would constitute an inequitable and unfair hardship or burden on the title and should be cancelled by the court; that if the court determines the grantees own any interest by virtue of the conveyances, nevertheless the whole of the property should be partitioned or sold and the rights adjudged as between the grantors and grantees. The reasons stated in the motion for having those paragraphs stricken were that they constitute conclusions of fact and of law, do not constitute a cause of action in favor of plaintiffs and against defendants, and that several causes of action are improperly joined.
On December 16,1949, this motion to strike came on for hearing. Whereupon plaintiffs requested permission to amend the petition instanter by filing a new amended petition. The court considered and sustained the motion to strike and granted plaintiffs’ request to be permitted to file an amended petition instanter and gave the contesting defendants twenty days within which to plead.
In the second amended petition plaintiffs alleged their post-office addresses, described the land in question, alleged it “is owned in fee simple by the following named parties to this action, as tenants in common, in the proportion or amounts set opposite their names, to-wit” (listing the names of twenty-two persons) and stating the fractional share each of them was alleged to own in the property. This fist does not include the names of the persons who are referred to as grantee defendants. It alleged the tenants in common were in possession of the property and that the same is subject to partition; that plaintiffs desire the property to be partitioned among the tenants in common, if the same can be done without manifest injury to them, otherwise to be appraised and taken on election or sold, as provided by law; that the plaintiff Zenas Z. Henrie has been col lecting the rents from the property as agent of the other owners and will make a report and pay the rents into court. No specific mention is made of the three mineral conveyances, nor is there any allegation that they are invalid for any reason. It is alleged:
“That the other parties to this action claim some interest in and to the above described property adverse to the title and ownership of said tenants in common, the exact nature of which is unknown to plaintiffs; that said claims are null and void, and without foundation in law or equity, and exist as a cloud upon the title and ownership of said tenants in common.”
The prayer was for judgment and a decree that the property is owned by the “above named tenants in common in the proportions or amounts set opposite their names above; that all other parties to this action be required to set up whatever claims they make to said property and that the same be decreed null and void; forever quieting the title to said tenants in common as against all other defendants herein, and all parties claiming under them, or either of them, forever barring and enjoining all other defendants herein and all persons claiming under them, or either of them, from claiming any right, title or interest in and to said property adverse to the title and ownership of said tenants in common”; decreeing the property to be subject to partition, etc., as is common in partition actions.
The grantor defendants filed an answer in which they admitted they were each the owner of an undivided interest in the real property described in the petition, “subject to certain mineral conveyances now of record as follows,” referring to each of the mineral deeds, copies of which were attached to the answer, being the same as were attached to the amended petition. The answer alleged that the grantees in the respective mineral deeds are tenants in common with each other and with the plaintiffs and other defendants, “insofar as the mineral interests in and to said real property decribed in plaintiffs’ petition is concerned. That two causes of action are pled in plaintiffs’ petition which do not affect all of the parties to this action and that there is a misjoinder of causes of action”; that the plaintiffs’ petition does not state a cause of action against them; that plaintiffs have not alleged any equitable grounds for partition of the mineral interests; that partition at this time would be unfair and unjust to answering defendants; that the real property is now leased for development, and a copy of the lease was attached to the answer and made a part of it by reference; that it would be to the best interests of all parties to have the property explored for oil and gas, and that for the purpose of protecting, the interests of all parties to prevent waste and to properly manage and control such property a receiver should be appointed by the court to manage, operate, lease and control the real property and divide the income among the parties entitled thereto. The prayer was that plaintiffs take nothing by their petition and that the court appoint a receiver for the purposes alleged in the answer.
The grantee defendants filed an answer in which they alleged that they are the owners of certain mineral interests in and to the real property under mineral conveyances now of record, alleging the mineral deeds and setting up copies thereof, and that by virtue of the mineral conveyances they are tenants in common with plaintiffs and other defendants insofar as mineral interests in or to the real estate are concerned; that they have no interest in the fee title to the surface of the real estate. They further alleged that plaintiffs have pleaded two causes of action in their petition which do not affect all the parties to this action; that there is a misjoinder of causes of action; that plaintiff’s petition does not state a cause of action against them; that plaintiffs have not alleged any equitable' grounds for partition of the mineral interests, and that such partition at this time would be unfair and unjust to them; that the real property is now leased for development, and a copy of the lease is attached; that it would be to the best interests of all parties to have the property explored for oil and gas and for the purpose of protecting the interests of all parties and to prevent waste, and to properly manage and control the property a receiver should be appointed for that purpose. The prayer was that plaintiffs take nothing under their petition and that the court appoint a receiver for the purposes alleged.
Plaintiffs filed a verified reply to each of these answers which contained a general denial of all allegations inconsistent with those of the petition and of allegations of new matter therein contained.
On February 13, 1950, when the case was called, the answering defendants joined in a motion, which was filed, in which they asked the court “for the entry of judgment in their favor for the reason that the petition and reply of plaintiffs raises no issue of fact for trial and fails to state any defense to answer and prayer for affirmative relief set forth in the answer of answering defendants in this, to-wit:
‘That there is a misjoinder of cause of action which does not affect all of the parties to this action.
‘Plaintiffs’ petition and reply do not state the cause of action against answering defendants.
‘Plaintiffs’ petition and reply do not allege equitable grounds for partition of mineral interests.
‘Answering defendants are entitled to the appointment of a receiver to manage and operate the subject matter of this suit.’ ”
This motion "was overruled. The trial proceeded, with the result that the court found who were the owners of the surface rights and their respective shares and decreed partition thereof; also found the owners of the mineral rights and their l'espective shares and refused partition thereof. The plaintiffs appealed from the refusal of the court to partition the mineral rights. The contesting defendants cross appealed from the order of the court overruling their motion for judgment.
Since it arose in the progress of the case we first give our attention to the cross appeal. With respect to that we think it clear that the petition of plaintiffs contained two or more causes of action which could not be joined under our statute (G. S. 1949, 60-601), which reads:
“The plaintiff may unite several causes of action in the same petition, whether they be such as have been heretofore denominated legal or equitable, or both. But tire causes of action so united must affect all tire parties to the action, except in actions to enforce mortgages or other liens.”
It is clear that the allegations of the petition by which plaintiffs sought to set aside the three mineral conveyances did not affect the parties to the action who were not grantors or grantees therein. Indeed, each of the conveyances affected only the parties thereto. That fact was specifically called to the attention of the court by the motion for judgment, and prior to that time had been pleaded by the answering defendants. We cite but a few of our many cases on this point: Harrod v. Farrar, 68 Kan. 153, 74 Pac. 624; New v. Smith, 68 Kan. 807, 74 Pac. 610; Griffith v. Griffith, 71 Kan. 547, 81 Pac. 178; Dunn v. Mortgage Co., 113 Kan. 169, 213 Pac. 655; Osborne v. Kington, 148 Kan. 314, 80 P. 2d 1063; Cole v. Thacker, 158 Kan. 242, 146 P. 2d 665; Bankers Investment Co. v. Central States Fire Ins. Co., 164 Kan. 682, 192 P. 2d 214, citing earlier cases.)
The result is that the judgment of the trial court must be reversed with directions to sustain the motion for judgment upon the ground that two or more causes of action were improperly joined.
It is so ordered. | [
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Per Curiam:
The facts in this case are substantially like those in Shrigley v. Black, 66 Kan. 213, 71 Pac. 301, except that the mortgage in the present case was executed after the enactment of the redemption law of 1893. That fact, however, does not affect the application of the statute or of the principles then announced, and, following the decision in that case, the judgment will be affirmed.
Pollock, J., not sitting, having been of counsel. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action by the state on the relation of the attorney general for a mandatory injunction requiring defendants to move a certain levee or dike and restore the land to its former elevation; and further, to enjoin defendants from repairing, improving or maintaining the levee. The appeal is from an order of the court sustaining defendants’ demurrer to plaintiff’s second amended petition.
Briefly summarized the petition alleges that the action is brought under and by virtue of the laws of the state of Kansas, and particularly G. S. 1949, 24-105; 24-126 (since amended by Chap. 261, Laws 1951); 82a-301 to 82a-305 inclusive; that the defendant Barnes is the owner of a described tract of land in the southwest quarter of section three, township twenty-eight south, range thirteen west of the 6th P. M.; that the Ninnescah river, a stream and watercourse within the state which is subject to floods and overflow, enters the described land from the west and flows easterly over and through the land; that within ten years prior to the filing of the petition Barnes’ predecessor in title, being then engaged in the sand and gravel pumping business, constructed a levee along and near the south bank of the Ninnescah on the land above described, extending from the roadbed of the highway along the west side of the section eastward for a distance of approximately 1,550 feet, which levee varies approximately 5.2 feet to 13.3 feet above the natural elevation of adjacent land, and also constructed a levee from the east end of the above described levee southward approximately 611 feet to and connected with the roadbed of Highway U. S. 54, an east and west highway on the south of the section; that each of the highways mentioned is an elevated roadway which, together with the levees, forms a ring dike or ring levee within the overflow area of the Ninnescah river; that the described levees, separately and in conjunction with the roadbeds of the highways, obstruct and repel flood waters and surface waters, which are the overflow of the stream, on the premises of adjacent upper landowners, to wit: Louise Smith and H. R. Morrison, trustees, Leda Morrison, LueJla Harkrader, Bessie Smith, Mildred Smith, and George Rockwell Smith; that the defendants Barnes and Fairview Lakes Corporation are threatening to repair and maintain the levees, which will obstruct, repel and change the surface and flood waters which are the overflow of the Ninnescah river upon the premises of the above named landowners, and over and upon lands owned by the city of Pratt known as Lemon Park, to the damage of the city, and that the location of the levees and adjacent area are shown by a plat attached to the petition.
It was further alleged that none of the defendants, either individually or collectively, has obtained from the chief engineer of the division of water resources of the Kansas State Board of Agriculture any approval of plans for any levees or other improvements or structures along or near the Ninnescah river in Pratt county, nor have they made application therefor; that the chief engineer of the division of water resources of the Kansas State Board of Agriculture has requested the attorney general to bring this action. The prayer was that the defendants, and each of them, be required to remove the levees from the real estate previously described, and that defendants be required to restore the land upon which the levees are located to the condition and elevation as they existed prior to the construction of the levees, and further that they be enjoined from repairing, enlarging or maintaining any levees, improvements or structures within the overflow area and flood plane of the Ninnescah river in Pratt county which would change the flood waters of the stream and discharge the same with increased force and volume of flow, to the damage of adjacent landowners, without first having obtained permission and approval of plans for the same from the chief engineer of the division of water resources.
The petition did not allege that the land involved in this case is within any drainage or levee district organized under the laws of this state, and it is conceded that it is not within any such drainage or levee district. It was not alleged in the petition that the chief engineer of the division of water resources of the State Board of Agriculture has prepared, or completed any general plan for the drainage or flood control along the Ninnescah river or its flood area.
Obviously the petition in this case discloses that plaintiff is not seeking an injunction because of alleged damages to any public property, as in State v. Nye, 85 Kan. 559, 117 Pac. 1014, where it was alleged that defendant had built a levee in such a way as to flood a highway; or in State, ex rel., v. Mills, 171 Kan. 397, 233 P. 2d 720, this day decided, where the relief sought arose in part from alleged damages to a highway. This action is brought for the benefit of named property owners alleged to have been damaged by the construction of the levee described in the petition. Such actions may be brought by the individual or party alleged to have been damaged. (See, Martin v. Lown, 111 Kan. 752, 208 Pac. 565; Jensen v. Buffalo Drainage Dist., 148 Kan. 712, 84 P. 2d 961; Horn v. Seeger, 167 Kan. 532, 207 P. 2d 953; Kraus v. Strong, 170 Kan. 459, 227 P. 2d 93.)
The demurrer in this case was upon three grounds: (1) That' the statutes relied upon by plaintiff as authority to maintain this action are unconstitutional as violative of Art. 2 of our Constitution; (2) if valid, the statutes have no application here; and (3) that the petition did not state facts sufficient to constitute a caúse of action.
The trial court sustained each of these grounds. Courts are reluctant to hold acts of the legislature invalid, and uniformly decline to do so when there is one or more other grounds upon which the decision can be based. We do note that G. S. 1949, 24-105, before the amendment thereto by Chapter 184, Laws of 1931, was held valid in Martin v. Lown, supra, and that 24-126 was held valid in State, ex rel., v. Stonehouse Drainage Dist., 152 Kan. 188, 102 P. 2d 1017, when attacked upon constitutional grounds. We note also that our last legistlature amended both of these sections by Chapter 261, Laws of 1951. A determination of the constitutionality of these sections is not necessary for a decision of this case, as will presently appear. We therefore disapprove of the ruling of the trial court on this question in order that such ruling may not be regarded as a precedent at some later time when the court is called upon to consider the validity of the statutes in a case where a determination of that question is necessary to a decision.
The court also sustained the demurrer upon the other two grounds. Without analyzing these separately or in detail we approve the ruling of the court upon these grounds for the reason that the state does not conduct litigation to enforce the rights of individual litigants. If so, it would be a party in every lawsuit. The statutes relied upon by plaintiff, insofar as they give the state on the relation of the attorney general or the county attorney the right to maintain an action, must be construed as authorizing actions only for the public and not for private interests. This has been determined in the case of State, ex rel., v. Mills, supra, this day decided.
The judgment of the trial court is affirmed. | [
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Per Curiam:
This is a proceeding in error brought to reverse a judgment given plaintiff below for the possession of property claimed by it under a chattel mortgage. The only serious questions presented are such as require for their determination the examination of the evidence. The case-made contains specific recitals that it includes all the evidence. But in two instances it has recitals of the admission of certain exhibits, designated as exhibits “F,” “Gr,” and “I,” followed by the expression, “in words and figures as follows, to wit,” and the exhibits are not given. These obvious omissions overcome the certificate that the evidence is all in the record, preclude an examination of the errors alleged, and require an affirmance of the case, especially as the most important error alleged is an instruction by the trial court that the undisputed evidence showed the filing of a certain mortgage, while it is claimed that the record contains no such evidence whatever. The “undisputed evidence” referred to may have been contained in these omitted exhibits. (Kansas City v. Parker, 65 Kan. 734, 70 Pac. 867; Railway Co. v. Williamson, 58 Kan. 814, 49 Pac. 157.) It is true that the record at another place than that referred to shows exhibits “F,” “Gr” and “I” of a certain deposition, but nowhere do we find anything to identify these as the omitted exhibits.
The proceeding in error is therefore dismissed. | [
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The opinion of the court was delivered by
Price, J.:
This ,is an appeal from an order sustaining a demurrer to an amended petition in an action to rescind a written contract under the terms of which plaintiffs purchased a part of defendant’s neon sign business for the sum of $25,000, and in turn defendant agreed to do- certain things in aiding and assisting plaintiffs in the operation and conduct of the business so purchased.
The written contract under date of July 2, 1947, a copy of which was attached to the petition, appears to be full, complete and unambiguous, and sets out the respective rights and obligations of the parties.
This action was commenced in April, 1949. Defendant moved to strike certain parts of the petition and to make other portions thereof more definite and certain in a number of particulars. This motion was sustained in part and overruled in part.
Plaintiffs then filed their amended petition. Defendant filed a motion to strike it from the files on account of its alleged non compliance with the order of the court previously made. This motion was overruled. Defendant then demurred to it on the grounds (1) that plaintiffs have no legal capacity to sue; (2) that several causes of action are improperly joined; (3) that there is a misjoinder of parties plaintiff; and (4) that it did not state facts sufficient to constitute a cause of action. This demurrer was sustained and plaintiffs have appealed from that ruling.
The amended petition, after a recital of formal matters, sets out the contract, and tiren alleges in detail facts showing performance by plaintiffs of all its terms and conditions. Then follow detailed allegations of numerous breaches on the part of defendant. The prayer is for a judgment declaring the contract to be rescinded, for a full accounting between the parties, for a judgment placing the parties in as nearly as possible their exact status at the time the contract was executed, and for such other and further relief, including a money judgment, if necessary, as may be equitable and just.
The trial court did not announce on which ground, or grounds, it sustained the demurrer.
Diligent counsel for both sides to this appeal have furnished us with able briefs in support of their respective positions. After a careful study of the allegations of the amended petition and the arguments advanced by counsel we are of the opinion the demurrer was erroneously sustained. In a case such as this no good purpose would be served, and nothing whatever would be added to the body of our law, by setting out in detail either the allegations of the amended petition or the contentions of counsel with respect to the demurrer. This is not a case where we are holding that a petition does not state a cause of action or is otherwise defective so as to be reached by demurrer. Here the issues have not been joined, and under the circumstances as shown by the allegations of the amended petition we think better practice dictates that we refrain from saying anything which might in any way prejudice the parties, either in the matter of further pleadings or on the trial of the action.
What the proof may establish, of course, is another thing, but, taking the allegations of the amended petition as true, we think it cannot be said the demurrer was good.
The judgment of the lower court is therefore reversed with directions to overrule the demurrer to the amended petition. | [
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The opinion of the court was delivered by
Smith, J.:
The first error assigned is that the court should have allowed the plaintiff in error a jury trial, which she demanded. There was no error in this refusal. (Rich v. Bowker, 25 Kan. 7 ; Hudson v. Hughan, 56 id. 152, 42 Pac. 701.)
The contention that the title to real estate was involved in the proceeding is without merit. See Park v. Busenbark, 59 Kan. 65, 51 Pac. 907 ; Tipton v. McCalla, 59 id. 719, 54 Pac. 1054; McClain v. Jones, 60 id. 639, 57 Pac. 500.
It appeared that the wife of the testator at first signed the will under his name. • Her signature was then erased, and she signed a consent to his disposition of the property lower down on the paper. As we understand the argument of counsel for plaintiff in error, they contend that the consent of the wife must precede the execution of the will by the testator. We do not think so. It is sufficient if it be given at any time during the life of the testator. (Sill v. Sill, 31 Kan. 248, 1 Pac. 556.)
There is no merit in the contention that there is a conflict between sections 7972 and 7973, General Statutes of 1901, relating to wills by married persons. See Noecker v. Noecker, 66 Kan. 347, 71 Pac. 815.
We have given attention to the other grounds of error presented in counsel’s brief, but find in them nothing substantial.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an original proceeding for a writ of habeas corpus.
On February 6,1946, in the district court of Montgomery County, Marvin F. Bates pleaded guilty to the offense of passing a worthless check for more than Twenty Dollars and was sentenced to the state penitentiary to serve a period of not less than one year nor more than five years. On November 1, 1947, Bates was paroled after having served one year and eight months of his sentence. On June 3. 1948, the state board of administration declared Bates delinquent and revoked his parole, the order of revocation showing that Bates still had one year, six months and eleven days to serve. An order issued for the arrest of Bates, who was then in prison in New Mexico. Before the order was served Bates became a prisoner in the State of Texas. Upon his release in Texas, Bates was returned to the Kansas state penitentiary on November 4, 1950.
On January 19, 1951, Bates commenced the present proceeding. The burden of his complaint is this — under the law he was required to serve four years and six months to complete his five year sentence; he served one year, eight months and twelve days prior to his parole and is entitled to five months and ten days good time earned in that period, or a total of two years, one month and twenty-two days, and when he was paroled he needed to serve only two years, four months and twelve days to complete his sentence and that time added to his served time would make the date of his discharge about March 12, 1950; that he is entitled to time served on parole until such date as he was lawfully declared delinquent and a parole violator, and that he was entitled to a discharge on or about March 12, 1950; that from the time of his parole on November 1, 1947, to the date of his return to the penitentiary on November 4, 1950, he had not violated any of the conditions of his parole, and that he was unlawfully returned to Kansas. He further alleged that the offenses for which he was imprisoned in New Mexico and Texas were alleged to have been committed prior to the date of his parole, and that he had been unlawfully returned to Kansas in that he had not been lawfully declared a delinquent and a warrant issued declaring him a parole violator; that he was unlawfully compelled to return to Kansas from Texas, and by reason of the above he was entitled to his immediate discharge. Bates’s motion for the writ of habeas corpus is verified and we treat it as his deposition.
The respondents’ answer, likewise verified, with exhibits attached, shows that by action of the state board of administration Bates’ parole was revoked on June 3, 1948, for violation of its terms; that Bates was returned to the penitentiary on November 4, 1950, and that the sentence imposed had not expired. The order revoking the parole and the order for the arrest of Bates as a parole violator each show that Bates had still to serve one year, six months and eleven days, and other exhibits show that the offenses for which Bates was convicted in New Mexico and Texas were committed while he was on parole. The record further shows that on November 1, 1950, Bates signed a waiver of extradition from Texas and voluntarily consented to accompany an officer of the State of Kansas as a prisoner from the State of Texas to the state penitentiary of Kansas for the purpose of answering the charge of parole violation.
Petitioner’s contention that the time elapsing after he was paroled on November 1, 1947, counted as a part of his sentence and that such time had fully expired on or about March 12, 1950, cannot be sustained. Under G. S. 1935, 62-1528, if any prisoner shall violate the conditions of his parole as fixed by the prison board he shall be declared a delinquent and shall thereafter be treated as an escaped prisoner owing service to the state and shall be liable, when arrested, to serve out the unexpired time of his maximum possible imprisonment and the time from the date of his declared delinquency to the date of his arrest shall not be counted as any portion or part of time served. It is not necessary that we repeat all of the events and times involved. Our examination of the record discloses that the board of administration, under date of June 3, 1948, declared the petitioner delinquent because of a conviction of an offense committed in the state of New Mexico, and that at that date he owed service to this state for one year, six months and eleven days, and an order for his arrest then issued. Under the statute mentioned he was not thereafter to be credited with any' time under his sentence. He was not apprehended and returned to the penitentiary until November 4, 1950.
It is clear from the above that petitioner is not entitled, as he contends, to credit for all time subsequent to his parole, but only to the time intervening between the parole and its revocation; that as of the date of revocation of parole he owed service to the State of Kansas for one year, six months and eleven days, to be served after he was apprehended and returned on November 4, 1950; that that time had not expired and on that ground he is not entitled to his release.
We need not discuss at any length whether the petitioner may question legality of the revocation of his parole on his asserted contention that he was declared delinquent on account of offenses committed prior to his- sentence in Kansas and parole therefrom. The record discloses his factual statement is not correct and that his imprisonment in New Mexico resulted from conviction of an offense charged to have been committed January 2, 1948, at which time he was on parole from his Kansas sentence.
Nor need we treat his contention he was unlawfully extradited from Texas. As has been stated above, Bates waived extradition and returned voluntarily.
The writ prayed for is denied. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action instituted under the declaratory judgment statute to obtain a judicial interpretation of ch. 375, L. 1949 (G. S. 1949, 72-3514) and to determine whether proper procedure was followed by defendants in attaching territory in Graham County to Lenora Rural High School Joint District No. 1. Judgment was rendered in favor of plaintiffs and defendants appeal.
Plaintiffs, excepting Veva M. Quint, county superintendent of Graham County, are owners of land included in the area in question, but that portion of their land on which they reside was not included in the application for attachment of territory. Defendants, except Iris R. Olson, county superintendent of Norton County, are the duly elected, qualified and acting members and officers of Lenora Rural High School Joint District No. 1. For convenience, appellees will be referred to as plaintiffs and appellants as defendants.
The cause was tried to the court below on the pleadings and stipulations of the parties and the trial court made findings of fact and conclusions of law. Pertinent ones may be briefly summarized as follows: Lenora Rural High School Joint District No. 1 is a joint district consisting of territory located in Norton and Graham counties. All the buildings of the high school joint district are located in the city of Lenora in Norton County. Lying in Graham County and adjacent to Lenora Rural High School Joint District No. 1 is an area of land not within the boundaries of any rural high school district. A majority of the electors in a part of this adjacent territory located in Graham County circulated and submitted three applications to the Lenora Rural High School Joint District No. 1 to be attached thereto. The board of education of said joint district, having had submitted to them the applications for attachment together with the enumeration of electors within the territory covered by each application showing that a majority of the electors therein had petitioned to be attached to Lenora Rural High School Joint District No. 1, passed resolutions approving the attachment of the territory to said joint district. The board of said joint district then submitted its findings to the county superintendent of Norton County, which findings were by the county superintendent of Norton County approved and her consent given to attach said land to Lenora Rural High School Joint District No. 1. An appeal was taken from the decisions of the board of education of Lenora Rural High School Joint District No. 1 and the county superintendent of Norton County to the State Superintendent of Public Instruction who, after a full hearing on the appeal, affirmed the attachment proceedings and requested the county superintendents of the two counties involved to make the necessary records to complete the attachment. Subsequent thereto the county superintendent of Norton County made demand upon the county superintendent of Graham County to certify the district boundary changes to the county clerk of Graham County in order that the attached territory be subjected to future tax levies of the Lenora Rural High School Joint District No. 1 of Norton and Graham counties.
The trial court found as a fact that the submitted applications filed with the joint school district board did not include all adjacent land in Graham County not within any rural high school district; that certain land was excluded from such applications when circulated so that certain electors opposed to the attachment of territory would not be counted as electors within the adjacent area ordered attached; that defendants had no right to include only a part of such adjacent land and exclude another part of the land; and for that reason the county superintendent of Norton County acted arbitrarily and capriciously in approving such applications. The trial court further found that the order of attachment was made without notice as required by G. S. 1935, 72-213 and 72-214.
The court concluded as a matter of law:
“1. Section 3 of Chapter 375 of the 1949 Session Laws [G. S. 1949, 72-3514] does not provide the procedure to be followed in attaching an area not in any rural high school district to an existing joint rural high school district.
“2. The altering of the boundaries of an existing joint rural high school district by attaching an area not in any high school district takes the joint approval, consent, and action of the County Superintendents of the Counties in which the school district lies as is provided for by G. S. 1935, 72-303, 72-304 and 72-305.
“3. In a procedure to attach territory not in any high school district to an existing joint rural high school, the manner of giving notice is prescribed by G. S. 1935, 72-213, 72-214, and failure to give notice as prescribed by said Statutes renders the proceeding null, void and of no effect.
“4. The procedure for attaching territory not in any high school district to an existing joint rural high school requires a hearing before the County Superintendents of the Counties in which the joint district is located.
“5. In an action involving the validity of the orders of a County Superin tendent in attaching an area not in any high school district to an easting joint rural high school district, a Court of equity may refuse to give cognizance to the acts of the said Superintendent where the said acts, as they were in this case, are so arbitrary and capricious and in bad faith as to be tantamount to fraud.
“6. The school laws of this State do not authorize a County Superintendent to alter the boundaries of a joint rural high school district by attaching a part of an adjacent territory not in any school district and leaving out isolated tracts here and there throughout its extent.”
On March 15, 1951, the court entered judgment in favor of plaintiffs in accordance with his findings of fact and conclusions of law. Defendants appeal from the judgment of the trial court and first contend that section 3, chapter 375, laws 1949 (G. S. 1949, 72-3514) provides the procedure to be followed in attaching territory not in any rural high school district to an existing joint rural high school district and that it is necessary to secure only the consent of the county superintendent in whose county the main building lies regardless of the location of the territory to be attached. Plaintiffs contend it is necessary to obtain also the consent of the county superintendent of the county in which the territory to be attached is located.
At the outset it may be stated that G. S. 1935, 72-3514 was amended by ch. 375, L. 1949, and as amended is now G. S. 1949, 72-3514 which reads as follows:
“Territory outside the limits of any rural high-school district, but adjacent thereto, may be attached to such high-school district for high school purposes, upon application being made to the rural high-school board by a majority of the electors of such adjacent territory, and upon the approval of said rural high-school board and the consent of the county superintendent of public instruction in whose county the main building lies: (Provided, That an appeal may be taken from the decision of the county superintendent to the state superintendent of public instruction whose decision will be final. A notice of such appeal shall be served upon the county superintendent within twenty days after the consent is formally given or refused, which notice shall be in writing, a copy of which shall be filed with the state superintendent within fifteen days after such service upon the county superintendent.) The county superintendent shall make a record of such attachment of territory and shall publish a notice of the same, and thereafter such attached territory shall be and compose a part of such rural high-school district for such rural high-school purposes only, and the taxable property of such adjacent territory shall be subject to taxation and shall bear its full proportion of all expenses incurred in maintaining said rural high school.”
We have italicized that part added by the 1949 amendment. The following language in the provision for appeal contained in the 1935 statute was deleted by the 1949 amendment: [appeal may be taken from the decision of the county superintendent to] “the board of county commissioners, if such property proposed to be attached is within one county, and”.
The mentioned statute prior to the amendment has been before this court on numerous occasions involving the formation of rural high school joint districts: (1) for forming a rural high school joint district by attaching land in one county to an existing high school district in another county; (2) for attaching territory to an existing rural high school joint district; and we have held the mentioned statute applicable to all rural high school districts and that where land was being added to a rural high school district regardless of its location, only the consent of the county superintendent of the county in which the school building was located was necessary. On the other hand, where land was being added to an existing rural high school joint district, the consent of the county superintendents of both counties involved was required. For a complete analysis of the statute and our decisions, see Lenora Rural High School v. McGuire, 161 Kan. 716, 171 P. 2d 291; Rural High School Joint Dist. v. Pope, 168 Kan. 45, 210 P. 2d 587. We feel that no further discussion of our authorities is necessary.
The statute having been so interpreted by this court on several occasions, it appears the legislature clearly intended in the mentioned statute to supplement existing legislation on the subject. It must be assumed that the legislature intended to supply some want, to fill some deficiency, to add something to make the existing legislation more complete. It will not be imputed to the legislature that it intended to go through the form, time and expense of legislating to accomplish nothing or to do that already fully and completely done. In determining the intent of the legislature, the court is not limited to a mere consideration of the words employed but should look to the existing conditions, the causes which impelled the enactment, and to the object sought to be obtained. (Brown v. Illinois Bankers Life Assur. Co., 144 Kan. 670, 674-5, 63 P. 2d 165). The legislature, as disclosed by the italicized portion of the quoted statute, could have had but one thing in mind and that was to include in said section all the rural high school districts including rural high school joint districts, in order that the same attachment procedure would apply. The addition of the words “in whose county the main building lies” signifies more than one county and contemplates a joint district.
It is our conclusion that the statute as amended is complete in and of itself and prescribes the procedure to be followed in attaching an area not in any high school district to an existing joint rural high school district and in so doing it is necessary to secure only the consent of the county superintendent of public instruction in whose county the main building lies, and that G. S. 1949, 72-303, 72-304, and 72-305 have no application to the formation of rural high school joint districts or adding territory thereto.
Plaintiffs next contend that the proceedings were void by reason of the failure of the county superintendent of Norton- County to give notice and hold a hearing as prescribed by G. S. 1949, 72-213 and 72-214, before giving her consent to the attachment of territory. Defendants contend that G. S. 1949, 72-3514 is a specific act complete within itself, and is not subject to the provisions of sections 72-213 and 72-214 relating to notice in the formation and alteration of boundaries of common school districts lying wholly within the boundaries of a single county. An examination of the statute and the proceedings had in the instant case to attach the territory in question to the rural high school joint district discloses that the proceedings were in accord with the statute in all respects. The territory in question was adjacent to a rural high school joint district; it was not within the territory of any rural high school district; a majority of the electors resident in the territory petitioned to be annexed to the joint district; the petition for annexation was presented to the proper board and to the county superintendent of Norton County and received favorable action. Appeal was taken to the state superintendent of public instruction where said proceedings and attachment were affirmed and notice given, all as contemplated by the statute in question. When such proceedings were initiated by a majority of the electors, only approval by the school board of the joint district and consent of the county superintendent of Norton County was required. Notice and hearing is not contemplated by the statute as amended. G. S. 1949, 72-213 and 72-214 have no application to the proceedings in the instant case.
Plaintiffs next contend that the county superintendent of Norton County arbitrarily and capriciously consented to the attachment application when said application included only a part of the adjacent territory not within any rural high school district and excluded other such adjacent territory. We are unable to follow plaintiffs’ contention. The statute reads that the application for attachment of territory shall be made to the rural high school board by a majority of the electors of such territory with the approval of the high school board and consent of the county superintendent. The county superintendent had nothing to do with circulation of the application or with the electors to be included therein. The legislature left this matter up to the electors. The electors determined what land was to be included in their application and the county superintendent of Norton County had no authority to change the application. Her duty as prescribed by the legislature was to approve or disapprove the application; she could neither add to nor subtract from the land included in the application. Plaintiffs did not argue, nor did the court find, that the electors acted arbitrarily or capriciously.
The statute provides that an appeal may be taken from the decision of the county superintendent to the state superintendent of public instruction, whose decision will be final. An appeal was taken in this case from the action of the board and the county superintendent to the state superintendent of public instruction, and the proceedings and attachment were affirmed. To hold that the question of the advisability of consenting or withholding consent to the annexation of certain territory to a joint rural high school district could be tried out in the courts after the state superintendent had passed upon it would be to render meaningless the language of the statute “whose decision will be final.” There is a reason why that should be the case. The state superintendent is better equipped to ascertain what is good for a particular school district than a court would be. (State, ex rel., v. Brooks, 160 Kan. 526, 531-2, 163 P. 2d 414.)
Inasmuch as the duty of the county superintendent of Norton County did not extend to the exclusion or inclusion of property set forth in the application for attachment, and her duty was only to approve or disapprove the application as submitted, she cannot be held to have acted arbitrarily or capriciously. Moreover, the decision of the state superintendent of public instruction in approving such annexation was final and conclusive.
Plaintiffs finally contend that the electors of territory not within any rural high school district but adjacent to a rural high school joint district cannot petition to have land brought into such district without including in their application all the adjacent land which is outside any high school district. We can find nothing in the statute to sustain this contention by plaintiffs. The statute does not use the word “all”; it says “territory outside the limits of any rural high school district but adjacent thereto may be attached . . .” The only requirement fixed is that the property sought to be attached be adjacent, without reference to any maximum or minimum territory within the area, and that it may be attached if a majority of the electors in said adjacent area sign the application for such attachment.
In view of what has been said, the judgment of the lower court is reversed and the cause remanded and the lower court is instructed to issue an order directing the county superintendents of Graham and Norton Counties to make the proper records for completion of the attachment proceedings.
Wedell, J., dissents.
Parker, J., not participating. | [
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The opinion of the court was delivered by
Parker, J:
Plaintiff brought this action against the defendant to recover damages sustained to his tractor and semitrailer, used in the operation of his business in transporting gasoline, and for the loss of the use thereof as the result of a collision between such vehicles and defendant’s automobile at the junction of two public highways. A verdict was returned in plaintiff’s favor for the sum of $200. On his motion for a new trial this verdict was set aside and a new trial was ordered, limited to the amount of damages plaintiff had sustained. The defendant appeals from that ruling.
About one o’clock a. m. on May 18, 1943, a tractor and semitrailer, hereinafter referred to as a gasoline transport truck, owned by the plaintiff and operated by his agent, and a Ford (Roadster) automobile, owned and operated by the defendant, collided at the junction of U. S. Highway 81 and a public highway running south out of Salina, referred to in plaintiff’s petition as the Ninth Street extension. The highway last described joins Highway 81 some distance south of Salina and traffic thereon approaching the junction of the two highways is required to stop before entering the intersection. Just prior to the hour above noted plaintiff’s gasoline transport was approaching the intersection from the south on Highway 81. ' Defendant, driving his own car, was approaching the intersection from the north on the Ninth Street extension. The two vehicles collided in the intersection. Thereafter plaintiff brought this action against defendant for $4,823.01 damages which he alleged he had sustained by reason of defendant’s negligence in entering the intersection. Defendant answered the petition by denying each and all of its allegations and by charging (1) that if plaintiff had sustained damage as a result of negligence, the plaintiff and his agent, then operating the gasoline transport, were guilty of negligence which contributed to and caused the collision and any damages sustained by the plaintiff as a result thereof and (2) that if the collision was not caused by the negligence of the plaintiff and his agent, who was then driving the gasoline transport in the course of his employment, or the negligence of the plaintiff and his agent did not contribute to such collision and resulting damages, then such collision and any resulting damage was an accident for which defendant was not liable. The plaintiff’s reply to this answer was a general denial.
With issues joined as above related the cause was submitted to a jury, upon evidence adduced by the parties and under instructions of the court, which returned a general verdict in favor of the plaintiff for the nominal sum heretofore indicated together with answers to special questions submitted by the trial court along with the general verdict. Thereafter, the plaintiff filed a motion for a new trial as to the amount of damages only and, in the event it was not sustained, his motion for , a new trial generally. Subsequently, and after argument by counsel for the parties, the trial court sustained the motion for a new trial as to the amount of damages, set aside the general verdict as to amount only, approved it in all other respects, and granted plaintiff a new trial limited to the single issue of the amount of damages sustained. Thereupon defendant perfected this appeal wherein he now claims the trial court if dissatisfied with the verdict should have granted a new trial generally and erred in granting a new trial limited to the issue of damages only.
The instant appeal is unusual in that it appears from the record there is little if any controversy regarding the fundamental' principles of law applicable to its decision. The parties concede that the statute G. S. 1949, 60-3004 authorizes the granting of a new trial on specific issues when the issues involved on the trial of the case are separable. They agree there are many decisions to be found in our reports wherein the issue of the amount of damage recoverable in an action has been held to be separable and warranted the trial court in granting a new trial on that issue alone, others holding the trial court did not err in refusing to grant a new trial on that issue only, and still others overruling the action of a trial court in sustaining a new trial on such issue and sending the case back for a new trial generally. They also admit that under our decisions (See e. g., Paul v. Western Distributing Co., 142 Kan. 816, 52 P. 2d 379; Brokmann v. Lawson, 117 Kan. 386, 388, 232 Pac. 601) action of a trial court in granting or in denying a new trial as to only one of the issues involved in the case rests in its judicial discretion and that its decision with respect thereto will not be disturbed by this court on appellate review unless, upon examination of the entire record, it concludes there has been an abuse of that discretion.
Appellant does not seriously contend the trial court would have erred if it had granted a new trial generally. Therefore, in view of the foregoing concessions it is clear the only question we are here called upon to decide is whether it erred in limiting the scope of the new trial as granted to the issue of damages only. That question, as we have heretofore indicated, cannot be resolved in favor of appellant unless our review of the entire record convinces us the trial court abused its discretion.
In their brief diligent counsel for the parties cite and rely on numerous decisions as supporting their respective positions. They have been read and given careful consideration. We have found them helpful in that they establish the general principles of law applicable to the determination of an issue such as is here involved but of little benefit as legal precedents because the facts on which they were decided, which we pause to note are always of primary importance in determining questions relating to abuse of discretion, are entirely different from those prevailing in the case at bar. For that reason it would serve no useful purpose to labor such decisions and we shall not do so.
Nor do we believe it would be of benefit to the bench and bar, or add anything to the body of our law, to detail the factual situation disclosed by a lengthy and somewhat confusing record. Briefly summarized that record, supplemented by our conclusions as to its force and effect, discloses: (1) The action is to recover damages resulting from a collision of two motor vehicles at an intersection of two public highways. (2) A spirited trial at which both parties introduced evidence which, if believed and given full faith and credit by the jury under a proper understanding of the issues involved, would have upheld either a verdict in favor of appellant for far more than the nominal sum returned by the jury or a verdict against the appellee on grounds of contributory negligence. (3) A verdict for only $200 which, if the jury had believed appellant’s negligence was the sole and proximate cause of the collision, was ridiculously small and wholly unwarranted because, as appellee alleges and appellant does not deny, the evidence established that as a result of the collision appellee had expended $1,759.93 for repairs on his tractor, $281.31 for a motor block for such tractor, $92.50 for replacement of tires, $730.51 for damages to his trailer and tank, $1,500 for loss of use of the tractor and trailer during the time required for the repairing of same, and $250 for other damages sustained, making a total of $4,688.24. (4) Answers by the jury to special interrogatories which, conceding they were not challenged in the court below, when carefully analyzed make it clearly appear the jury either did not understand the questions or was deliberately attempting to answer them in such a manner as to avoid conflict with the finding inherent in its general verdict that appellant’s negligence was the legal cause of the collision and that appellee was not guilty of any negligence contributing thereto. (5) Other facts which, when considered with those heretofore mentioned, lead to the over-all conclusion that under all the existing conditions and circumstances the amount of damages sustained by the appellant as a result of the collision are so closely related to and intimately connected with other questions in the case that to limit a new trial to that single issue would prove highly unjust to appellant and result in depriving him of the fair and impartial trial to which he is entitled under our statute.
When proper consideration is given to all the matters to which we have heretofore referred we are convinced the instant case is not one where the “issues are separable” within the meaning of that term as used in G. S. 1949, 60-3004, that the trial court erred in concluding they were, and that the entire verdict should have been set aside and a new trial granted as to all issues in the case. It necessarily follows the district court should be and it is hereby directed to set aside the verdict in its entirety and grant a new trial as to all issues.
Smith and Wertz, JJ., dissenting. | [
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Per Curiam:
This is a controversy between Becker, the administrator of an estate, and Baker, the owner of a claim against the estate, proved and classified as a fifth-class claim. The controversy arose over the distribution of the proceeds of cattle belonging to the estate, sold by the administrator and reported to the probate court. It was contended by tlie administrator in the probate court that the cattle were, at the time they were sold by him', encumbered by a chattel mortgage, and that the proceeds should be withdrawn from the general assets of the estate for the purpose of discharging the lien of the mortgage upon the cattle, the amount of the mortgage exceeding the amount received by the administrator for the cattle. The probate court refused so to order, but ordered payment made of the claims proved and classified against the estate in the order of their classification. The district coart, upon appeal, directed the proceeds of the cattle to be withdrawn from the general assets of the estate for the purpose of' discharging the mortgage on the cattle. To reverse this order the claimant brings error.
The manifest equity of the order of the district court is apparent. It is, however, contended that the chattel mortgage was not renewed within thirty days next preceding the expiration of one year from the time it was recorded, and hence it ceased to be a lien on the cattle. The record discloses that the mortgage was afterward renewed, and at the time claimant became a creditor of the estate was a valid mortgage.
Again, it is contended that the evidence was insufficient to establish the identity of the cattle sold with those covered by the mortgage. We have examined the record and find that the judgment is amply supported by testimony.
The order made by the district court is right and must be affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages for an alleged breach of an oral contract of employment. The appeal is from an order overruling defendants’ demurrer to plaintiff’s petition.
The petition alleged that plaintiff was a petroleum engineer; that defendants had engaged as partners in the program of exploration and development for the production of oil and gas; defendant Gaty had the active management of it; that from May, 1945, until June, 1949, the plaintiff was employed by the defendants as a consulting geologist and learned that the actual drilling of defendants’ wells was costing them an average of $12,000 per well, with cable tools; that prior to January, 1947, the defendant had drilled a number of wells in the Salter Pool; that about the 27th of January, 1947, plaintiff orally offered to Gaty that he would by using a rotary drilling rig drill their wells for $10,000 each; that after the conversation plaintiff made this proposition by means of a letter to Gaty, which was approved and accepted by defendants; that between January, 1947 and October, 1947, plaintiff drilled nine wells for defendants, for which he was paid at the contract rate; that about the month of May, 1948, plaintiff orally informed Gaty that the rotary drilling rig he had been using was no longer available to him and stated that he would acquire a new rotary drilling rig if in the near future he would have enough wells to drill for the defendants to justify the outlay.
The petition alleged that plaintiff and Gaty together took a plat of the Salter Pool and computed that the defendants would have approximately twenty-two wells to drill in that pool within the period of about a year and Gaty orally stated to the plaintiff that if he would purchase a new rotary drilling rig the defendants would let the plaintiff drill for them twenty wells in the Salter Pool under the terms of the letter agreement within a period of approximately one year from that time; that plaintiff purchased a new rotary drilling rig at a cost of approximately $100,000, which rig was delivered to him early in the month of August, 1948; that pursuant to the agreements already stated the plaintiff drilled five wells in the Salter Pool for the defendants, the fifth being completed on or about th 8th of February, 1949, and at that time the defendant orally stated to the plaintiff that he would not be permitted to drill any more wells for the defendants under the terms of the agreement; that since the 8th of February, 1949, defendants had continued to drill wells in the Salter Pool, employing drilling contractors other than the plaintiff, and had refused to permit the plaintiff to drill any more wells under the terms of the agreement. The petition alleged that this action constituted a breach of the letter agreement and supplementary oral agreement and had deprived plaintiff of an average profit of $2,000 each on fifteen wells, which the plaintiff was entitled under the agreements to drill for defendants, resulting in plaintiff’s damage in the amount of $30,000.
Judgment was asked in this amount.
The letter, to which reference was made, was attached to an exhibit.
To this petition the defendants filed a motion to strike and to make definite and certain. The motion to strike was directed at some inconsequential allegations. The court sustained certain parts of it. This order was complied with by plaintiff in his amended petition. The motion to strike is not necessary to be discussed in this opinion. The motion to make definite and certain was directed at some fifteen statements in the petition.
The defendants asked that plaintiff be ordered to make paragraph 5 more definite and certain by stating the exact date when defendant Gaty informed him orally that the defendants would have no more wells to be drilled until sometime in the year 1948. The court sustained this part of the motion and the plaintiff complied by stating that this was about October, 1947, and that he was unable to state the time more precisely. The defendants also asked that the plaintiff be ordered to make his petition more definite and certain by stating the approximate date when he and Gaty took the plat of the Salter Pool and computed that defendants would have approximately twenty-two wells to drill. The court sustained that part of the motion and the plaintiff complied by alleging that this took place about the middle of May, 1948, and he was unable to state the time more precisely. The defendants also asked that the plaintiff be required to state if he knew the number of wells drilled by defendants in the Salter Pool by contractors other than the plaintiff since the 8th day of February, 1949, and up to the time of the filing of the petition and the approximate distance and direction of such wells from wells drilled by plaintiff for the defendants in that pool. That part of the motion was sustained and the plaintiff complied by stating that subsequent to January, 1949, and prior to the filing of the action, the defendants had drilled two wells in the Salter Pool and gave their approximate location. The balance of the motion to make definite and certain was overruled. We have examined this motion and have concluded that those portions of the motion were properly overruled and did not call for any information, to which the defendants were entitled.
The defendants demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action.
The first ground was that the amended petition contained no allegation of an agreement by defendants whereby they were obligated to drill any particular number of wells in the Salter Pool.
The basis of this argument is first that the letter attached to the petition was merely a price quotation accepted by Gaty. They then refer to the language of the petition and argue that in it plaintiff did not state that defendants agreed to drill twenty wells during the time stated nor that defendants agreed to purchase services on twenty wells from plaintiff.
In consideration of this argument we must first examine the letter. In it plaintiff first refers to a conversation between the parties. It then states that plaintiff as a drilling contractor would drill a hole of a prescribed size and depth and would perform other incidental services; second that at a designated time he would remove the tools and perform other services; and third that he would be paid $10,000 for each well. This letter bears the approval and acceptance of Gaty.
As to this letter and the acceptance of it by defendants, the petition would be open to the construction that pursuant to it plaintiff was to drill all defendants’ wells in the Salter Pool. It was not this contract out of which his lawsuit grew, however. At that time, that is, in January, 1947, plaintiff did not apparently care how many wells defendants would have him drill since the rotary rig he was using was not his own and he had no money invested in it. At any rate, nine wells were drilled in the Salter Pool by plaintiff for defendants between January and October, 1947.
The contract out of which this action grew is alleged to have been consummated about May, 1948. The allegations of the amended petition as to this contract are as follows:
“About the month of May, 1948, the plaintiff orally informed the defendant Gaty that the rotary drilling rig which the plaintiff had been using would no longer be available to him and stated to said defendant that he would acquire a new rotary drilling rig if in the near future he would have enough wells to drill for the defendants to justify the outlay. The plaintiff and the defendant Gaty then (about the month of May, 1948, the plaintiff being unable to state the time more precisely) took a plat of the Salter Pool and together computed that the defendants would have approximately twenty-two wells to drill in that pool within the period of about a year; and the defendant Gaty orally stated to the plaintiff that if the plaintiff would purchase a new rotary drilling rig the defendants would let the plaintiff drill for them twenty wells in the Salter Pool, under the terms of the letter agreement aforesaid, within a period of approximately one year from that time. Thereupon the plaintiff purchased a new rotary drilling rig at a cost of approximately $100,000, which rig was delivered to him in Sedgwick County, Kansas, early in the month of August, 1948.”
The reasonable interpretation of the statement in the amended petition is that the defendants agreed that plaintiff should drill twenty wells for them in the Salter Pool under the terms of the letter agreement within a period of approximately a year.
Defendants argue that since the plaintiff successfully resisted theh motion to require him to make his petition more definite and certain the petition should be strictly construed against him. This is the rule only when the motion is improperly overruled. (See Walton v. Noel Co., 167 Kan. 274, 205 P. 2d 928.) Such was not the case here.
Defendants next argue that the contract pleaded was an oral one and shows on its face it was not to be performed within one year — hence violated the provisions of G. S. 1949, 33-106, and is not actionable. The statute quoted is what is known as the statute of frauds. It provides, in part:
“No action shall be brought . . . upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing. . . .”
The oral contract upon which this action was brought was to be performed within approximately a year. Since the contract was to drill twenty wells a reasonable conclusion is that the performance of it was to commence and could have been completed before one year had elapsed. The argument of defendants is that unless the contract was to be completely performed within one year, then it is not enforceable. The rule was stated in Cassity v. Cassity, 147 Kan. 411, 76 P. 2d 862, as follows:
“Unless an oral agreement discloses it cannot be performed within the space of one year, we cannot say the agreement violated the provisions of the statute.”
In Eastwood v. Eastwood, 167 Kan. 471, 207 P. 2d 393, we said:
“Should it be argued by defendant that this contract violated the statute of frauds because performance could take longer than a year, the answer is, it was one which would admit of performance within a year — hence was not within the statute. (See Heery v. Reed, 80 Kan. 380, 102 Pac. 846.) Unless an oral contract discloses it cannot be performed within the space of one year we cannot say it violates the provisions of the statute of frauds. (See A. T. & S. F. Rld. Co. v. English, 38 Kan. 110, 16 Pac. 82; Pierson v. Milling Co., 91 Kan. 775, 139 Pac. 394; and Stahl v. Stevenson, 102 Kan. 447, 171 Pac. 1164.)”
(See, also, Cannon v. Harris, 161 Kan. 225, 166 P. 2d 998; Bundy v. Liberty Life Ins. Co., 150 Kan. 658, 95 P. 2d 550; Richard v. Kilborn, 150 Kan. 579, 95 P. 2d 545; Stahl v. Stevenson, 102 Kan. 447, 171 Pac. 1164; Pierson v. Milling Co., 91 Kan. 775, 139 Pac. 394; Johnston v. Bowersock, 62 Kan. 148, 61 Pac. 740; Aiken v. Nogle, 47 Kan. 96, 27 Pac. 825; and Sutphen v. Sutphen, 30 Kan. 510, 2 Pac. 100.
It follows that the contract pleaded here did not violate the statute.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Smith, J. :
Appellants were convicted on two counts of an information charging illegal sales of intoxicating liquors, and on one count for maintaining a common nuisance under the prohibitory law. After a plea of not guilty the appellants challenged the array of jurors. The challenge was overruled.
Thirty days before the beginning of the term the judge of the district court made an order directing that twenty-four jurors be drawn to serve at the ensuing term, under sections 3813 and 3814, General Statutes of 1901. On the 7th day of January, the day after the court convened, another order was made, under the authority of section 3815, General Statutes of 1901, that twelve more jurors be drawn and summoned, for the reason that a sufficient number had not been theretofore drawn. The order was complied with. It is contended by appellants that after the first order, made in vacation, the power was exhausted, and thereafter the court must proceed under section 3816, General Statutes of 1901. We do not think so. The last section of the statute cited has application when in a particular case called for trial the jurors summoned, by reason of their interest or knowledge of the facts, or bias or prejudice in favor of or against any of the parties, are disqualified to sit, and additional jurors are needed to try the case.
After the commencement of the term the court became satisfied that the number-of jurors summoned was insufficient. It then proceeded, under section 3815, supra (and we think properly), to order more jurors to be drawn. The court in such cases uses its discretion under the law, to the end that business before it may proceed with expedition.
It will be noticed that under section 3813, supra, the judge cannot order the drawing of more than twenty-four additional jurors, and the order therefor must be filed with the county clerk at least thirty days before the commencement of the term of court at which they are required to attend. When the term of court is opened it may then become apparent (which was not before known) that the regular business for that term, as shown by the docket, requires the services of additional jurors. It is then that the power conferred by section 3815 may be exercised. We are inclined to place a liberal construction on statutes relating to the drawing and selection of jurors.
There was no error in refusing the demand of defendants for separate trials. A severance is discretionary in misdemeanor cases. (Gen. Stat. 1901, §5663.)
There was filed with the information the testimony of R. A. Dewitt, J. W. Leahy, and O. E. Reynolds, taken before the county attorney under the authority of section 2472, General Statutes of 1901, showing purchases by them of intoxicating liquors from the appellants at different times. In addition to the above, the names of Elmer Herr, J. O. Logsdon, and C. E. Condit, who did not testify before the county attorney, were indorsed on the information. All of the witnesses named testified in behalf of the state at the trial. When Elmer Herr, one of the last-named witnesses, was placed on the stand, counsel for defendants objected to the reception of his testimony for the reason that it was not in the mind of the county attorney when the information was filed. This the appellants offered to show by the county attorney himself, but the court rejected the offer. The county attorney then stated to the court that the testimony of the witness was not offered to prove a direct sale, but only to support the nuisance count of the information. The same objection, ruling and statement were made when the witnesses Logsdon and Condit were placed on the stand. At the close of the evidence the prosecution elected to rely on the testimony of Leahy, Reynolds and Dewitt to support the counts for illegal selling, and the court so instructed the jury. The testimony of Herr, Logsdon and Condit was properly admitted in support of the nuisance count. (The State v. Reno, 41 Kan. 674, 21 Pac. 803 ; The State v. Lewis, 63 id. 265, 65 Pac. 258.)
We have given attention to the claim of error based on the giving of instruction No. 13. While some of the language used was, perhaps, extravagant, yet the jury were told that the evidence necessary to convict must meet the legal requirements, and the rights of defendants be sacredly guarded. The instruction concluded :
“No innocent man should be convicted, punished, or disgraced, and the law does not expect such to be done, and the public must not be so unreasonable as to expect it.”
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action on a policy which insured a truck against damages from various causes, among them being for accidental collision with any object, including accidental upset. Judgment was for the plaintiff. Defendant appeals.
The petition alleged the issuance of the policy; that while the truck was loaded with cattle it upset and was damaged. The petition contained some allegations as to promises made by the agent of defendant, not in point here.
To this petition the defendant filed a motion that the plaintiff be required to make his petition more definite and certain by stating whether the contract of insurance was verbal or in writing and if in writing that he attach a copy of the policy to his petition by stating the number of cattle in the truck and whether they were wild or gentle, and by stating what part of the truck struck the ground, which side struck the ground and whether it fell on its side or bottom-side up. This motion was sustained generally.
The plaintiff then filed an amended petition to which he attached a copy of the policy and in which he alleged that the truck was loaded with nine head of cattle weighing nine hundred pounds each and were not regarded as wild; that the truck upset. The petition further alleged that the cattle began shifting from side to side and as a gust of wind struck the left side of the truck the cattle shifted to the right, upsetting the truck; that while the truck was overturning the weight of the cargo caused the truck box and stock rack to break loose from the truck and crash to the ground, throwing the cattle onto the ground on the right side of the truck and the sudden release of this weight caused the chassis to right itself and roll down the road.
The defendant moved to strike this petition because it did not comply with the order of the court. Before the court ruled, the plaintiff filed a second amended petition in which he alleged that as a strong gust of wind struck the left side of the truck the cattle shifted to tire right front corner of the box; all of the left front wheels and the inside right dual wheel left the ground, the left side tilted sharply upward and the right side tipped downward; while it was so upsetting the truck box and stock rack struck the ground on the right-hand front corner of the box on the right side of the truck; either the weight and strain of the box, rack and cargo in the overturning position or the impact with the ground or the combination of the circumstances tore the box and stock rack loose, demolishing the box and rack and throwing the cattle to the ground on the right side of the truck; that the accident happened so quickly plaintiff did not know and' could not state whether the truck box was torn loose before or after it struck the ground; that the bounce of the truck box striking the ground or the sudden release of the weight of the box and rack while the truck was in motion caused the chassis to right itself and roll down the road; plaintiff could not state whether the chassis struck the ground.
Defendant moved to strike this petition because it did not comply with the order of the court. This motion was overruled. Defendant then demurred to the petition because it failed to state facts sufficient to constitute a cause of action. This demurrer was overruled.
Defendant answered, admitting the issuance of the policy and that the truck was loaded with cattle on the day in question. The answer then alleged the truck box had six stringers running crosswise under the floor of the box; that approximately at two feet from each end of these stringers was a steel plate approximately six inches square; these plates were bolted to the stringers; the plaintiff caused the chassis to be equipped with a hoist and caused the steel plates on the stringers to be spot-welded to the frame and beams of the hoist; that the spot-welding was inadequate and the cattle overloaded the truck and in making the turns on the winding highway the stock rack broke loose at the points of welding and threw the truck box and rack and cattle to the right side of the truck and the box rack was badly damaged; that after the box and stock rack broke loose at the points of welding and left the chassis the chassis then settled back on the road and did not overturn or upset. The answer then alleged:
“The breaking loose of said stock rack and truck box from said chassis at the points of said welding and the falling thereof to the ground and the damage thereof are all risks, hazards and mechanical defects not insured against and covered by said policy aforesaid, and the defendant is not liable for any of the damages claimed and set forth in the plaintiff’s pleading.”
The answer prayed that the plaintiff take nothing. The reply was a general denial.
A man who was with the driver at the time testified about the turns in the road and the cattle shifting. Amongst other things he testified as follows:
“Right before the accident occurred it happened so fast you did not know exactly what to do. While the truck was in the motion of turning over Kenneth was sitting higher than I was as we were turning over. As the motion was there, there was a jolt and the truck box touched the ground and tore it loose and the impact when the truck hit the ground righted the truck but the box tore loose.”
Counsel for the defendant moved to strike the above as being contrary to the pleadings. This was overruled. On cross-examination this witness testified as follows:
“The cab did not lay flat on the ground. It was leaning not just a little. The box kept it from going over. The box went off before the chassis rolled down the road.
“Q. Yes. But what position was the cab in when the box went off the chassis? A. What degree I wouldn’t know for sure but I imagine it was about a 45 degree. It was in the act of turning over.”
The driver of the truck testified in part as follows:
“As they crossed the top of the hill the witness shoved into high and at the same time he says, ‘The wind got me from the left side and it threw the truck to the right and I tried to bring it back and straighten it up and then all of the cattle went to the left and I straightened to the left and there is a big canyon there that we thought we was going to go down so we tried to get out of that, then they all went to the right again and that is where we tipped over and the box hit the ground and tore loose and jarred us and threw us back on the wheels.
“Mr. Kite: We moved that ‘tipped over’ is in conflict and at variance with the pleadings.
“The Court: Overruled.
“Witness could not guide the truck just before the truck box came off.
“Q. Do you know whether or not any of the wheels were off the ground? A. The left rear wheels were off, the duals.
“The truck tipped quite a ways and witness was in middle of seat but still had his hands on the steering wheel. There was a jolt about the time the box came off and the truck came back on its wheels and rolled on a little and witness stopped it.”
At the close of this evidence the defendant demurred to it. This demurrer was overruled.
The defendant proceeded to introduce evidence as to the manner in which the truck was constructed and other details, with which we are not concerned.
Defendant requested certain instructions and the court instructed the jury, all of which will be noted presently in this opinion.
The jury found for the plaintiff in the amount of $472.26 and then answered special questions as follows:
“1. Do you find that at the time and place of the accident that the plaintiff’s truck was overloaded? Answer: No.
“2. Do you find that tire truck box was welded to the hoist of said truck in an inefficient and defective manner? Answer: No.
“3. Had the cattle shifted or lunged to the right or east side of said truck just an instant prior to said accident? Answer: Yes.
“4. At what speed was said truck traveling at the time of the accident? Answer: Approximately 20 M. P. H.
“5. Do you find that any or all of the above things, or any combination of same, caused the truck box to break loose from the chassis? If not all of them, then state which ones. Answer: Yes — Cattle shifting.
“6. Do you find that anything else caused the said truck box to break loose from the chassis, either by itself or in conjunction with any of the above causes? If so, state what. Answer: Upset.
“7. Do you find that the truck as one entire unit upset or overturned? A. Yes.
“8. Do you find that the truck as a whole lost its equilibrium from an upright position before the truck box broke loose from the chassis? A. Yes.”
The defendant filed a motion for a new trial on the ground the verdict was contrary to the evidence, misconduct of the jury, jury considered facts outside the record, misconduct of the plaintiff, accident or surprise, abuse of discretion of the court, erroneous rulings of the court, erroneous instructions, failure to give proper instructions, admission of improper evidence, refusal to admit competent testimony, misdirections to the jury, verdict contrary to law, failure of the evidence to support the verdict, verdict was given under passion and prejudice, newly discovered evidence, verdict was procured by the corruption of the plaintiff, error of the court in overruling the demurrer of the defendant to the second amended petition of the plaintiff and error of the court in overruling the demurrer of the defendant to the evidence of plaintiff.
The defendant also filed a motion to set aside the answers to special questions 1, 2, 6, 7 and 8 because they were contrary to the evidence.
On the hearing of the motion for a new trial the defendant introduced a member of the jury who testified that during the deliberation of the jury and before they reached a verdict he told the other jurors of an accident he had while hauling some cattle with a pickup. When counsel asked him to state just what he told the jury the objection of counsel for plaintiff was sustained. The trial court then suggested that counsel for defendant make an offer of proof. Counsel for defendant stated that on account of the reluctance of the witness he could not make a very full offer. After some colloquy the objection of plaintiff was sustained.
Subsequently defendant filed a motion for a rehearing of its motion to set aside answers to special questions and for a new trial on the ground of error in overruling the original motions, error in rendering judgment for the plaintiff and against the defendant, error in sustaining objections to the testimony of the defendant offered to show misconduct of the jury, error of the court in excluding such testimony, error of the court in refusing to allow the defendant to make a showing by the testimony of a witness of what such conduct consisted.
On the hearing of this motion counsel for the defendant pointed out certain testimony of two witnesses for plaintiff and requested the trial judge to make a finding as to whether he believed such testimony. The judge states that he would not make any such finding but did approve the verdict. The trial court then overruled all motions and gave judgment for the plaintiff in the amount of $472.26 with interest.
The specifications of error are as follows:
“1. The court erred in overruling the defendant’s Motion to Strike and Demurrer, filed April 25th, 1950.
“2. The Court erred in not including in its order, judgment and Journal Entry of March 22, 1950, and June 2nd, 1950, a judgment and holding that the language in the 6th paragraph of the Second Amended Petition to-wit, ‘Said accident happened so quickly that plaintiff does not know and cannot state whether the truck box was tom loose from the truck before or after it stmck the ground’, in effect means that the truck box was torn loose from the truck before it stmck the ground.
“3. The Court erred in overruling and not sustaining the demurrer of the defendant to the Second Amended Petition.
“4. The Court erred in admitting incompetent and irrelevant testimony.
“5. The Court erred in refusing to strike out incompetent and irrelevant testimony, and testimony contrary to the pleadings.
“6. The Court erred in that, after the plaintiff offered his evidence, in overruling the defendant’s renewal of its demurrer to the Second Amended Petition of the plaintiff.
“7. The Court erred in overruling the defendant’s demurrer to the evidence of the plaintiff.
“8. The Court erred in refusing to give proper instructions as submitted by defendant.
“9. The Court erred in not giving proper and sufficient instructions to the jury.
“10. The Court erred in giving improper, erroneous and insufficient instructions to the jury.
‘Tl. The Court erred in overruling the defendant’s amended motion for a new trial.
“12. The Court erred in overruling the defendant’s motion to set aside questions and answers.
“13. The Court erred in sustaining the verdict of the jury.
“14. The Court erred in sustaining a verdict and answers contrary to the uncontradicted evidence.
“15. The Court erred in refusing to hear testimony concerning misconduct of the jurors.
“16. The Court erred in sustaining plaintiff’s objection to the offered testimony of the juror, Gus Hilt, to show misconduct of the jurors.
“17. The Court erred in refusing to hear the offer of proof and testimony in support thereof, made through the juror, Gus Hilt.
“18. The Court erred in refusing to order and direct the witness, the juror, Gus Hilt, to make a full disclosure to the Court or counsel of defendant as to what he and other jurors said in the jury room to the other jurors about their accidents similar to tire one in this case.
“19. Error of the Court in sustaining objections of plaintiff to.such offer of proof.
“20. The Court erred in overruling the defendant’s motion for a hearing.
“21. The Court erred in refusing to make a definite and certain statement concerning what he believed the testimony showed, and especially the Court’s refusal to state whether or not he believed the uncontradicted testimony of plaintiff’s, witnesses that three wheels of the truck were on the ground at all times.”
The defendant states tbe questions involved to be:
“I. Did the Court err in overruling the motion to strike and demurrer to the second amended petition?
“2. Did the Court err in giving improper and insufficient instructions and in refusing to give proper and sufficient instructions to the jury?
“3. Did the Court err in admitting certain testimony and in refusing to hear certain testimony?
“4. Did the Court err in overruling the renewed general demurrer and the demurrer to the evidence?
“5. Was there an upset of the truck either legally or under the terms of the policy?
“6. Was the verdict of the jury contrary to the law and to the facts?
“7. Did the Court err in overruling the motion for a new trial and the motion for a rehearing?
“8. Did the Court err in refusing to hear the testimony of the juror, Gus Hilt?
“9. Did the Court err in refusing to make a positive statement as to what he believed from the uncontradicted testimony?”
Defendant argues his first three specifications together, that is, that the trial court erred in overruling his motion to strike and his demurrer to plaintiff's second amended petition, in not holding that the language in the sixth paragraph of tire second amended petition “that said accident happened so quickly that plaintiff does not know and cannot state whether the truck box was torn loose from the truck before or after it struck the ground” in effect means the truck box was torn loose from the truck before it hit the ground and in overruling the demurrer of the defendant to the second amended petition.
Defendant argues this question as though to “upset” as the term is used in the policy means that the truck bed and all had to come to rest on its side or upside down, as a unit, in order to come within the terms of the policy. We do not so read and construe the policy. Its terms are short and concise as follows:
“The coverage and limits of liability applied for by the insured are such coverage and limits of liability as set forth in this declaration, for which the insured has paid a cash premium, as indicated by the inserted amounts.
Then follows various items of coverage in brackets. Under 4 E the policy provides as follows:
“Accidental Collision with any object including Accidental Upset $10.00 deductible.”
A paragraph on the back of the policy provides:
“Against Direct Actual Loss or Damage to the body, machinery, equipment, and the extra parts of the motor vehicle described in said Declarations, excluding however, motor oil, gasoline and radiator solution, to an amount not exceeding the actual cash value of the motor vehicle or part at the time of the loss or damage if caused by:”
Also on the back are some eleven paragraphs of exclusions of liability, but nothing bearing on this situation.
The first petition stated that the truck was accidentally upset. It might be argued with some plausibility that defendant’s motion to make definite and certain should have been overruled. At any rate, it was not and plaintiff finally pleaded in his second petition every fact for which the defendant had asked. The trouble with defendant is, it contends that to constitute an upset the truck must come to rest on the side or bottom side up as a unit. That is not the law. (See Moore v. Western Assur. Co. of Toronto, 186 S. C. 260, 195 S. E. 558; Carl Ingalls, Inc. v. Hartford Fire Ins. Co., 137 Cal. App. 741, 31 P. 2d 414; Jack v. Standard Marine Ins. Co., Ltd., 33 Wash. 2d 265, 205 P. 2d 351; also Radella v. Ins. Co., 165 Pa. Super. 633, 70 A. 2d 407.
We will not hold an insured to the burden of proving with the nicety contended for by defendant just what degree or angle the truck was in at any particular time. To do so would result in defeating recovery under the plain and unambiguous terms of a policy.
Defendant next argues specifications 4 and 5 together. These have to do with the testimony of the driver of the truck and his companion. As heretofore noted in this opinion, these two witnesses testified as to the circumstances of the accident, about how the truck tilted when the weight of the cattle shifted and the bed and stock rack struck the ground; then the chassis righted itself and rolled on down the road. Defendant objected to this testimony and asked that it be stricken because it was contrary to the pleadings. It argues here that this was error. What has been said with reference to specifications 1, 2 and 3 applies equally to these two specifications, once we hold that it was not necessary for the entire truck to tip over and come to rest on its side before we would hold it was an upset within the meaning of the policy this evidence becomes competent.
Defendant next argues specifications of error 6, 7, 11, 12, 13 and 14. ' In these specifications the defendant argues again that the court erred in overruling its renewed demurrer to the second amended petition of the plaintiff, in overruling the defendant’s demurrer to the evidence of plaintiff, in overruling defendant’s amended motion for a new trial, in setting aside questions and answers and in sustaining a verdict and answers contrary to the evidence. The burden of defendant’s argument on these points is that the defendant’s two witnesses, that is, the driver of the truck and his companion, testified as to some skid marks on the pavement which they saw immediately after the accident and as to the condition of the truck where the hoist was spot-welded from the truck. Defendant argues that this evidence showed conclusively that the accident was caused from the mechanical defect in this welding and not one of the hazards in the policy. This question goes back to the question of whether the defendant is correct in his argument in specifications 1, 2 and 3. On account of the conclusion we have reached as to those specifications, it is not necessary to consider these. It makes but little difference as to the condition of the welding. There was substantial evidence that the truck upset within the meaning of this policy.
Defendant next argues specifications 8, 9 and 10. Those relate to the instruction of the jury and instructions requested. The in-instructions requested by defendant were all based on the theory which we have demonstrated to be wrong. The court instructed the jury very fairly and fully as to the law in the case and there was no error therein.
Defendant next argues specifications of error 10 to 19. These have to do with the alleged misconduct of the jury. The defendant offered testimony on one member of the jury. He testified he told the jury about an accident he had once- with a truck. The plaintiffs objection to other questions was sustained. The defendant for some reason did not care to make an offer of proof. We do not know from this record what the witness would have testified occurred in the jury room. We do not know whether the story he told would have influenced the jury for or against the defendant. Certainly no prejudice is shown by what is shown in the record.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J. :
On November 4, 1900, H. O. Vandevort was driving a team of horses attached to a vehicle along a public highway, and when he approached a point where two telephone poles had been thrown on the side of the highway near a hedge fence his horses became frightened so that they ran away, causing in jury to him. The leg of one of his horses was broken so that it became necessary to kill him. He brought an action against the Missouri & Kansas Telephone Company to recover for the injuries sustained, and alleged that there was negligence in leaving the poles at the place and in the form in which they were left; that they constituted an obstruction that was calculated to frighten horses. They were placed near an intersection of two roads, and the horses, turning from one road into the other in which the poles lay, came quite close to them. The end of one pole, it is said, rested on the end of the other, and it is contended that being so placed they presented an appearance which was likely to scare horses. The trial .resulted in a judgment in favor of Vandevort, and the telephone company complains of rulings upon testimony offered to establish its negligence.
The opinions of witnesses were offered and received .to show that the poles, as they were placed, were calculated to frighten horses. Two objections were urged against the admission of the testimony : (1) That it was not a subject justifying opinion evidence ; (2) if it had been, the inquiry should have been limited to such horses as are ordinarily gentle and roadworthy. The general rule is that opinion evidence may be received where it is the best that can be had, or where the situation, facts and events cannot be adequately reproduced or described to the jury ; but such evidence can never be given on the ultimate facts which it is the duty of the jury to determine. (K. P. Rly. Co. v. Peavey, 29 Kan. 169 ; Erb v. Popritz, 59 id. 264, 52 Pac. 871, 68 Am. St. Rep. 362.)
The question submitted to the witnesses — whether the poles were calculated to frighten horses — was the principal question which was submitted to the jury, and the jury were just as competent to give an opinion upon the ultimate fact as any of the experts. There was nothing complex or indescribable in the situation. It was easy to describe the poles, their position, and surroundings. They were ordinary poles from which the bark had been peeled, being about twenty feet long and about sixteen inches in diameter at the larger end and six inches at the smaller end. The location, condition, color and appearance of the poles, and all the circumstances surrounding or in any way connected with them, could have been described by the witnesses, and thus have left to the jury the determination of this ultimate fact which practically determined the case. It was not necessary,' therefore, to resort to opinion evidence, and the objections of counsel for the company should have been sustained.
If the opinions had been admissible, the witnesses were not properly limited. They were permitted to state that the poles as they were placed were calculated to frighten horses, while if the company was liable at all it would only be so if the poles were such as to frighten reasonably gentle and roadworthy horses. The question asked and opinions given were not so confined, but included a class and character of horses for the frightening of which the company could in no event be held responsible.
Objection was made to the reception of testimony of an opening statement made by counsel for the company on a former trial of the case. In the statement was the admission of a material fact as to the action of the telephone company in the premises. From a reading of the record the admission appears to have-been distinctly and formally made. In Lindley v. A. T. & S. F. Rld. Co., 47 Kan. 432, 28 Pac. 201, it was held that the court is warranted in acting on the ad mission of a party made in the opening statement of a case to the court and jury, and might make a final disposition of the case where such statement absolutely precluded a recovery by him. An incidental remark of counsel as to the facts which he expected to prove and which did not amount to a distinct and formal admission would ordinarily not be binding upon such party, nor relieve the other of the burden of proving the fact; but we cannot say that the admission in question falls within that class.
The fact that the admission was made on a former hearing did not of itself make it inadmissible. In C. B. U. P. Rld. Co. v. Shoup, 28 Kan. 394, it was expressly determined that an oral admission of a fact by an attorney during the trial of a case might be proved on a subsequent trial of the same cause, and if it appeared to have been intended as a general admission of the fact it would be as binding as if it were made on the subsequent trial. See, also, Oscanyan v. Arms Co., 103 U. S. 261, 26 L. Ed. 539.
None of the other questions discussed requires special attention, but for the error in the admission of testimony the judgment will be reversed and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Parker, J.:
This is an original proceeding in habeas corpus wherein the petitioner seeks a writ directing his release from confinement in the Kansas State Industrial Reformatory.
The events and proceedings resulting in petitioner’s conviction and sentence are not in dispute but should be briefly stated before reference is made to his petition and the single ground on which he relies as requiring his release from the institution in which he is now confined.
Petitioner was adjudged insane by the probate court of Shawnee county on the 27th day of February, 1947, and committed to the Veterans Administration Hospital at Topeka as an insane person. Thereafter the probate court appointed a guardian for his person and estate. August 2, 1948, he was discharged by the authorities at the hospital as restored. Subsequently, on August 5, 1948, the probate court entered an order declaring him sane and restoring him to all his rights as a citizen. However, no order was entered discharging his guardian at that time and the record discloses no order has ever been made discharging that fiduciary.
In April, 1950, petitioner was charged by information filed in the district court of Shawnee county, with the crime of robbery in the first degree. During the course of that proceeding the county attorney of Shawnee county filed a verified motion charging he was insane and asking for the appointment of a medical commission to determine his sanity. This motion was granted and a commission was appointed. On April 26, 1950, after that body had returned a report finding petitioner insane the district court of Shawnee county committed him to the Kansas State Asylum for the dangerous insane at Larned, Kansas, for safekeeping and treatment. July 26, 1950, petitioner and another inmate of the Asylum at Larned escaped from such institution, took an automobile from the grounds of the hospital, and fled ■ to Oklahoma where he was soon ap prehended and returned to the institution from which he had escaped.
October 25, 1950, petitioner was released from the Larned hospital and returned to the district court of Shawnee county where he entered a plea of guilty to the crime of robbery in the first degree as charged in the information theretofore filed against him and was paroled by the parole board of Shawnee county.
Thereafter, on November 14, 1950, complaint was filed against petitioner in the county court of Pawnee county charging him with larceny of the automobile taken by him at the time he escaped from the Larned hospital. A warrant was issued and he was arrested and brought back to Pawnee county to answer that charge. After a preliminary hearing at which he was bound over to the district court he was charged by information in that court with the commission of such crime. When the petitioner was arraigned in district court to answer the charge contained in the information Vincent G. Fleming, a reputable attorney of Larned, was appointed by the court to represent him and immediately filed a written request that he be examined by a medical commission for the purpose of determining his sanity. This request was granted and a commission was appointed. December 19, 1950, this commission returned its report, finding the petitioner sane, neither an idiot, nor an imbecile, nor an epileptic, and that as of said date he was able to comprehend his position and make his defense in district court. Thereafter and on January 2, 1951, Mr. Fleming filed and argued a motion to quash the information and to discharge petitioner on the ground he was not legally capable of committing the crime of larceny of an automobile on the date complained of in the information for the reason that three months prior to the commission of such alleged offense and three months thereafter he was an adjudged lunatic, committed to the care and safekeeping of the hospital for the dangerous insane at Larned where the automobile involved was taken from the hospital grounds by him in an attempt to escape. After consideration this motion was overruled by the district court and no appeal was taken from that action. The record as to what happened thereafter is not as complete as it might be. However, there is no dispute as to the facts which, gleaned from allegations of the petition and admissions of the parties in their briefs and on oral arguments can be stated as follows:
On January 22, 1951, petitioner accompanied by his attorney, Louis H. Eversole, a capable attorney of Topeka, who was also representing the petitioner’s mother and guardian, made their appearance in Larned and after some negotiations with the county attorney succeeded in inducing that official to file an amended information in which the crime charged against petitioner was reduced from larceny of an automobile, punishable upon conviction by confinement for not less than five to fifteen years, to grand larceny, the punishment for which upon conviction is not to exceed five years. Thereafter, and on the same date, petitioner and his attorney appeared before the district court and entered a plea of guilty to the charge contained in the amended information, whereupon the district court sentenced petitioner upon such plea of guilty to the Kansas State Industrial Reformatory at Hutchinson for a term not exceeding five years for commission of the offense of grand larceny as charged in the amended information. In due time he was delivered to such institution where he is now confined by the respondent superintendent under and by virtue of such judgment and sentence.
The allegations of the petition need not be detailed. It suffices to say such pleading sets forth facts in substance as above related and then charges:
“That because petitioner was an adjudged lunatic, involuntarily in the custody and under the control of the State Hospital for the Dangerous Insane for safekeeping and treatment on July 26, 1950, he was on said date incapable of formulating and executing an intent to take, steal and carry away an automobile with the intention of depriving the owner permanently thereof, and was therefore incapable of being guilty of such crime.”
Respondent has filed an answer admitting that he holds petitioner in custody under and by virtue of the aforesaid judgment and sentence of the district court of Pawnee county and denying such restraint is illegal.
Thus, it appears, as petitioner’s counsel frankly concedes in his brief and on oral argument, the only issue involved in this case is whether the judgment convicting petitioner of a larceny committed at a time when he was under adjudication of insanity and under commitment to the state hospital for the dangerous insane is valid and warrants the respondent in restraining him of his liberty until expiration of the sentence imposed by its terms. In approaching consideration of this issue it must be kept in mind the petitioner makes no claim that in the absence of his insanity on the date in question his present incarceration under the existing judgment and sentence would be wrongful or illegal and that stripped of all excess verbiage, since the record discloses no evidence whatsoever touching his capacity to distinguish between right and wrong on the date he took the automobile, the gist of all arguments advanced by him is to the effect that in and of itself the adjudication of his insanity existing on that date was a bar to and renders invalid the judgment and sentence under which he is now being confined.
In this state there can be no question but what insanity at the time of the commission of an offense is to be regarded as a defense in a criminal prosecution and may be asserted at any time during the trial. Indeed our statute so declares in clear and unequivocal language. See pertinent provisions of G. S. 1949, 62-1532, which read:
“Whenever during the trial of any person on an indictment or information, evidence is introduced to prove that he or she was insane, an idiot, or imbecile, or person of unsound mind, at the time of the commission of the offense, and such person shall be found to have been at the time of the commission of the" offense alleged in such indictment or information, insane, an idiot, an imbecile, or person of unsound mind, and he or she shall be acquitted on that ground, the jury shall so state in the verdict, and the court shall thereupon forthwith commit such person to the state hospital for the dangerous insane for safekeeping and treatment, and such person shall be received and cared for at said institution. . .
In construing the provisions of the foregoing statute and in determining the force and effect to which they are entitled we have recognized that the defense of mental unsoundness is a procedural matter which must be brought to the attention of the court at the time of trial (Cochran v. Simpson, 143 Kan. 273, 53 P. 2d 502). We have also held repeatedly that the question of the sanity of the accused at the time of the alleged commission of the offense is one to be determined by the jury upon the evidence introduced bearing upon such issue (State v. Eye, 161 Kan. 69, 166 P. 2d 572 and State v. McBride, 170 Kan. 377, 226 P. 2d 246) and that the test of liability for commission of the crime with which he stands charged is whether he was capable of distinguishing between right and wrong at the time and with respect to the act committed. (State v. Nixon, 32 Kan. 205, 4 Pac. 159; State v. Mowry, 37 Kan. 369, 15 Pac. 282; State v. Arnold, 79 Kan. 533, 100 Pac. 64; State v. White, 112 Kan. 83, 209 Pac. 660, and State v. McBride, supra.) The reasoning behind these decisions is sound in principle. Even an adjudged lunatic is criminally responsible for acts committed during a lucid interval (22 C. J. S., Criminal Law, 121, § 57).
The conclusion to be drawn from the statute and the foregoing decisions is clear and inescapable. It is that insanity, existing as of the date of the alleged commission of an offense is a defense in a criminal prosecution, touching the guilt or innocence of the defendant and affording grounds for his acquittal, which must be asserted, presented, and determined during the trial of the case.
From what has been heretofore related it becomes obvious that to grant petitioner the relief sought by him would require a decision by this court to the effect that by reason of insanity he was not guilty of the crime of grand larceny as found by the trial court under the judgment and sentence rendered by it on his plea of guilty. He is not entitled to a review of that question in a habeas corpus action. Under all our decisions the guilt or innocence of one accused or convicted of crime is not justiciable in a habeas corpus proceeding (Downs v. Hudspeth, 162 Kan. 575, 178 P. 2d 219; Smith v. Amrine, 156 Kan. 486, 134 P. 2d 400; Merideth v. Amrine, 155 Kan. 7, 122 P. 2d 759, certiorari denied, 316 U. S. 670, 62 Sup. Ct. 1047, 86 L. Ed. 1745; Crebs v. Amrine, 153 Kan. 736, 745, 113 P. 2d 1084, certiorari denied, 317 U. S. 699, 63 Sup. Ct. 441, 87 L. Ed. 559; In re Johnson, Petitioner, 117 Kan. 136, 230 Pac. 67).
The writ is denied. | [
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The opinion of the court was delivered by
Greene, J. :
This was an action by plaintiff in error to enforce the specific performance of an oral contract . to convey real estate. The essential allegations of the petition, after describing the land, the mutual agreement of the parties to purchase and sell, and the consideration to be paid, were in substance as follows: It was agreed that the land should be conveyed to the plaintiff at such time as she should pay the purchase-price ; that in lieu of interest on the purchase-price during the pendency of the contract the defendant, Wm. S. Bradbury, should have the right to cut and use all grass grown on certain lands of plaintiff, which' lands were marked out and put in possession of defendant ; that defendant had retained possession of said tract of land and cut and removed the grass therefrom in pursuance of such contract up to and including the year in which this action was commenced ; that plaintiff, relying upon the promises and agreement of the defendant to convey the premises to her upon fulfilling her part of the contract, with his knowledge and consent, took immediate and exclusive possession thereof j and, for the purpose of adapting the same to her own use, made lasting and permanent improvements and additions thereto exceeding in value the purchase-price ; that ever since such time she has been in the exclusive possession, with the knowledge and consent of the defendant; that subsequently to the making of the contract Wm. S. Bradbury and Nellie Bradbury were married, and were husband and wife at the time this action was commenced.; that on the 11th day of December, 1901, in pursuance of said contract, the plaintiff tendered to defendant $250, the purchase-price, and presented a deed already prepared, and demanded that he execute and deliver the deed to her for said premises, which was refused.
To this petition the defendants separately demurred. These demurrers were sustained and judgment rendered upon the pleadings for the defendants, from which judgment the plaintiff prosecutes error.
It is contended that the contract pleaded was not reciprocal, inasmuch as it was optional with plaintiff when she should complete her part of the contract by making payment; that therefore the defendant could not terminate the contract by tendering a deed and demanding payment. This contention cannot be sustained. The contract made it obligatory upon the plaintiff to perform its conditions within a reasonable time, and upon a full compliance therewith within a reasonable time she could compel the defendant to execute a deed. The same rights and privileges were equally open to the defendant.
Another sufficient answer to this contention is that the principle of mutuality has no application to the facts set out in the petition. It appears that the plaintiff had fully performed her part of the contract. There was nothing left for her to do. It is well settled that where a contract has been fully performed by one party, want of mutuality cannot be set up by the other as a defense to an action for specific performance. There is no room for the party in default to say that he could not enforce performance for want of mutuality. There is nothing left to be done by any one but himself. The want of mutuality has no application in an action for specific performance, wher$ it is shown that the party seeking relief has fully performed all of the conditions of the contract. (2 Beach, Cont. § 889; Newell’s Appeal, 100 Pa. St. 513 ; Bigler v. Baker, 40 Neb. 325, 88 N. W. 1026, 24 L. R. A. 255 ; Grove v. Hodges, 55 Pa. St. 504; Lindsey v. Warnock, 93 Ga. 619, 21 S. E. 127.)
It is contended that, as no time was fixed by the contract within which the plaintiff was compelled to tender the consideration, she was required to do so within a reasonable time, which in no event could extend beyond the period of the statute of limitations, and that plaintiff’s right of action for specific performance was barred by the statute of limitations. The petition shows that during the time the defendant was in the possessipn of certain lands belonging to the plaintiff, from which it was agreed that he might cut the grass annually in lieu of interest on the purchase-price ; that he cut the grass annually from the time of making the contract up to and including the year the plaintiff made her tender and demanded the deed. The statute of limitations will not begin to run on an executory contract in favor of a party so long as that party is accepting payment as part performance under, and in recognition of the existence and validity of, the contract. One may not accept annual payments as part consideration in performance of an executory contract and while so doing insist that the statute of limitations is running against the right o’f the party thus performing.
It is contended that because the contract was oral and for the sale of real estate it is not enforceable because of the statute of frauds, which requires all such contracts to be in writing and signed by the party to be bound. The petition alleges that immediately upon the making of the contract plaintiff entered into the actual and. exclusive possession of the property and held it until the beginning of this action, and by virtue of her possession and claim of ownership under the contract she made lasting and permanent improvements thereof, exceeding in value the purchase-price of the land, with the knowledge and consent of the defendant. The purpose of this statute is not to assist in the perpetration of frauds, but to prevent frauds. If the plaintiff, with the knowledge and consent of the defendant, went into possession of the land under her contract, making permanent improvements thereon of great value, under the belief that the land belonged to her, and was induced so to believe by defendant, equity will estop-him to plead the statute of frauds in avoidance of specific performance. To permit such defense would be to allow him to use the statute to defraud the plaintiff. If the defendant can avoid compliance with his contract and get possession of the land with its enhanced value by reason of the improvements, he would be getting something for nothing, and thus defraud the plaintiff. Courts of equity will not, when they can prevent it, allow a party to be benefited by his own fraud. Under the facts stated in the petition, the defendant is equitably estopped from pleading the statute to avoid performance of his contract. (Galbraith v. Galbraith, 5 Kan. 402 ; Edwards v. Fry, 9 id. 417; Newkirk v. Marshall, 35 id. 77, 10 Pac. 571; Greenlees v. Roche, 48 id. 503, 29 Pac. 590 ; Holcomb v. Dowell, 15 id. 378; Bogle v. Jarvis, 58 id. 76, 48 Pac. 558; Schwindt v. Schwindt, 61 id. 377, 59 Pac. 647 ; Gilmore v. Asbury, 64 id. 383, 67 Pac. 864.)
It is finally contended that the demurrer filed by Mrs. Bradbury was properly sustained because she was not a party to the contract, and nowise bound by its conditions. She was the wife of ¥m. S. Bradbury ; as such she had an interest in any real estate owned by him, and was a necessary party in an action for specific performance, in order that her interest might be adjudicated and determined. Her interest in this tract of land attached subsequently to the making of the contract by her husband, and must have been taken in recognition of that obligation and whatever encumbrance such contract placed upon the land.
The petition stated a cause of action. The judgment is reversed and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Parker, J.:
This is an action to recover money paid on an alleged invalid mortgage. The appeal is from an order dismissing the action without prejudice because of the plaintiff’s failure to make the petition more definite and certain in compliance with the trial court’s order.
Provisions of the petition essential to a disposition of the single appellate issue involved read as follows:
“1. That plaintiff is a resident of Topeka, Shawnee County, Kansas; that the defendant is a foreign corporation duly admitted for business in the State of Kansas, and at all times herein mentioned was operating an automobile finance business in Topeka, Kansas, at 209 West 6th Street in said city.
“2. That in the 'month of October, 1948, plaintiff was the legal owner of, and held certificate of title issued by the Kansas Motor Vehicle Department to, a 1938 Chevrolet town sedan, Engine No. 1357856, which title had been issued to the plaintiff in May, 1948; that in October, 1948, it came to plaintiff’s knowledge that the defendant was making inquiries of plaintiff’s friends and otherwise concerning plaintiff’s credit and ability to pay and at about the same time, the defendant’s agents and representatives came to the plaintiff and represented to plaintiff that the defendant had a valid chattel mortgage upon the above described automobile; that defendant made repeated calls upon the plaintiff and threatened plaintiff that unless plaintiff paid the balance represented to be due on said mortgage in the amount of $343.60, the defendant would seize said automobile under the terms of the said mortgage and apply the said automobile to the satisfaction of the said mortgage indebtedness.
“3. That because of the threats and coercive acts and words of the defendant and the defendant’s agents, and to prevent the seizure of the said automobile by the defendant, plaintiff did pay to the áefendant the sum of $343.60.
“4. Plaintiff further states that defendant gave plaintiff nothing in return for said money, and plaintiff later learned that defendant did not have a valid mortgage upon said automobile.”
Following the filing of the foregoing petition the defendant moved to make it more definite and certain in several particulars one of which was that the plaintiff be required to state “what date and from whom plaintiff obtained possession and paid the consideration for the automobile referred to.” Some of the grounds of the motion were overruled, others including the one to which we have just referred were sustained. Thereafter, plaintiff filed an amended petition in which he complied with all orders of the court except the one above quoted.
Subsequently defendant moved for an order dismissing the action. This motion was founded on the premise the plaintiff had disobeyed the order of the court and failed to comply therewith in the particulars heretofore noted. On the 29th day of September, 1950, this motion was called for hearing, was argued by the parties and the court found and made an order to the effect plaintiff had failed to comply with its order in that he had not alleged in his amended petition the person or persons to whom he had paid the consideration for the automobile referred to in his pleadings. As a part of this order it gave the plaintiff ten days in which to comply with its original order. Thereafter and on the 10th day of October, 1950, the court found the plaintiff had failed to comply with the order of September 29th and had elected to stand upon his amended petition. Thereupon it entered an order dismissing the action at plaintiff’s costs.
In his brief and on oral argument before this court the appellant contends that the person to whom he paid the consideration for the automobile is not of controlling significance in the action and that it is clear from his amended petition Larson Used Cars received the consideration which he paid for the automobile when he purchased it. Based on that premise, without citing any authorities to support his contention, he insists the trial court erred in dismissing the action. We do not agree.
At the time the legislature of this state enacted the code of civil procedure it saw fit to include within the code certain provisions dealing with the right of a trial court to dismiss an action without prejudice. The obvious purpose of one of such provisions was to authorize and permit trial courts to have and exercise control of the proceedings in actions over which they had jurisdiction. G. S. 1949, 60-3105, insofar as pertinent to the question now under consideration, reads:
“An action may be dismissed without prejudice to a future action:
“Fifth. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action.
“In all other cases, upon the trial of the action the decision must be upon the merits.”
There are, we believe, two good reason why appellant’s contention the trial court erred in dismissing the action under the condi tions and circumstances above related cannot be upheld. In the first place the statute expressly authorized the trial court to dismiss the instant action for appellant’s failure to comply with the order which it had made. In such a situation this court’s province on appellate review is limited to questions respecting whether the trial court abused sound judicial discretion in making the ruling on which it based its order of dismissal and unless the record on appeal makes it clearly appear that action was so wrong conformance therewith would have resulted in prejudice to his substantial rights we would not be justified in disturbing its action.
We fail to discern, and appellant fails to point out, any sound reason why the trial court’s order in the instant case with respect to the amended petition would have prejudiced his substantial rights. On the other hand appellee contends the matter which he refused and failed to set forth was one material to the issues and concerning which it was necessary it be informed in order to properly prepare its defense. In that situation and in view of the other circumstances to which we have referred we conclude the trial court did not err in dismissing the action.
The second reason justifying the conclusion just announced will be briefly stated. Roiled down the essence of appellant’s complaint in this case is that the trial court erred in sustaining the appellee’s motion to make his petition more definite and certain, and so far as the record discloses the purpose of his appeal is to obtain a review of that ruling. Under decisions so well established that they hardly require citation the rule in this jurisdiction is that a ruling on a motion to make a petition more definite and certain is not appealable (See West’s Kansas Digest, Appeal & Error, § 103; Hatcher’s Kansas Digest, Appeal & Error, § 18). We are not about to recede from what has been said and held in such decisions. Nor are we disposed to permit a plaintiff, in the absence of a clear showing his substantial rights have been prejudiced, to obtain appellate review of a motion to make his petition more definite and certain by the simple expedient of refusing to amend his pleading and then taking an appeal when his action has been dismissed because of disobedience to a trial court’s order.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Cunningham, J.:
This is an original action in quo warranto. The defendant was elected judge of the city court of Kansas City for the second district at the city election in April, 1901, for the term of two years, and .until his successor should be duly elected and qualified. The plaintiff was elected to the same office at the city election in April, 1903. The defendant, being an officer whose successor was to be elected in an odd-numbered year under the law as it existed at the time of his election, claims the right to hold over by virtue of the terms of that portion of the amendment to the constitution adopted at the general election in November, 1902, which reads as follows :
“All officers whose successors would, under the law as it existed at the time of their' election, be elected in an odd-numbered year shall hold office for an additional year and until their successors are qualified.”
The first inquiry is, Are there any limitations to be placed upon the words “all officers,” or do they apply to every officer known to the law, municipal and school, as well as county and township ? This amendment was submitted by the legislature and adopted by the people in pursuance of the plan of providing for general biennial elections. It takes the place of section 2, article 4, and .eliminates sections 3 and 4 of article 9, of the constitution. ■ By section 2, as it originally stood, general elections were to be held annually on the Tuesday succeeding the first Monday in November; township elections to be held as provided by law. At the time of the adoption ■ of this amendment the law provided that township elections should be held at the same time that general elections were. Section- 3 of article 9 provided for the length of term of county officers, limiting the same to two years, and section 4 limited the length of term of township officers to one year. The amendment adopted in 1902 covered all of these subjects in one section, and must be interpreted not only in the light of* its own language but with reference to the language of the original sections of which it takes the place. It provides :
“General elections and township elections shall be held biennially on the Tuesday succeeding the first Monday in November in the years bearing even numbers. All county and township officers shall hold their offices for a term of two years and until their successors are qualified.”
Then follows the portion above quoted. The only officers spoken of either in the original sections or in the new section are county and township officers» The effort was, by the adoption of the amendment, to arrange a plan by which elections for those officers should come biennially, and to fit such plan into the then existing order of things as to those officers. City and school officers and their elections were not under contemplation. They had not been the subject of constitutional regulation and no constitutional amendment was needed or desired relative thereto. Such elections and officers remain unaffected by the amendment. We are clearly of the opinion that the term “all officers” refers only to county and township officers, and that they are the only ones whose terms of office ■ are extended by the language of the adopted amendment.
Therefore, unless the office of the judge of the city court of Kansas City is either a county or township office, it is not affected by this amendment. There is no claim that it is a county office. That it is not á township office was decided by this court in Chesney v. McClintock, 61 Kan. 94, 58 Pac. 993. That was a case involving the law creating the city court of Topeka, which, in language, is identical with the act creating the city courts of Kansas City, so far as this point is concerned. It is true, the jurisdiction of the city court is the same as that of a justice of the peace., and its procedure is similar. Its judges, however, are elected at a city election by the voters of a limited area, less than a complete township. They receive a stated salary and not fees. They have a clerk, who is elected by the legal voters of the district.
Judgment will be entered for the plaintiff in accordance with the prayer of his petition.
All the Justices concurring. | [
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Per Curiam:
The questions presented for our consideration in this case involve little besides a consideration of the evidence and findings.- We are of the opinion that the special findings and general verdict have support in the evidence. Some criticism is made of the instructions, which we think fairly presented the material questions of the case to the jury.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was a proceeding by two heirs of a deceased to revive two judgments rendered in separate actions in favor of the deceased during his lifetime. The district court denied the motion to revive the .judgments pursuant to objections of another heir, Ludvik Zaloudek, a brother of the deceased, and Mary Zaloudek, who were the judgment debtors.
J. F. Zaloudek died September 4,1948. After more than one year had intervened and on September 12, 1949, another heir, Edward Zaloudek, a brother of the deceased, filed a petition in the probate court to obtain a descent decree. That petition insofar as here material, in substance, alleged:
No will of the deceased had been admitted to probate and no administration was had on decedent’s estate; decedent’s only heirs at law were the petitioner, Edward Zaloudek, Ludvik Zaloudek, both brothers of the decedent, and Frances Halstenrud, Helen Thielen and Rlanche Howard, all nieces of the decedent; the decedent was the owner of an undivided one half interest in lots in the city of Wilson, Ellsworth county, (describing them); the petitioner had an interest in that real estate, was entitled to have the descent thereof determined and he claimed full title thereto under a deed of conveyance; the real estate, subject to any prior lawful disposition thereof made, should be assigned to and be vested in the only heirs of the decedent, as follows: A one fourth interest in each of the two brothers and in Frances Halstenrud and a one eighth interest in each of the other two nieces; all other real estate owned by the decedent descended to and should be assigned to the persons previously named in the fractional interests indicated.
The probate court found: The decedent died intestate; no administration had been had on his estate in Kansas; the deed from the decedent to his brother, Edward, was filed for record after decedent’s death; any real estate owned by the decedent at his death was inherited by and descended to the heirs named in the fractional interests previously stated.
The instant motions for revivor of judgments were filed in the district court by two nieces, Helen Thielen and Blanche Howard in each of the cases in which the judgments had been rendered against decedent’s brother, Ludvik Zaloudek, and Mary Zaloudek. Although we are told no record was made of the hearing on the motions to revive, there seems to be no dispute that all the facts previously stated herein were before the district court when it ruled on the revivor motions. The motions to revive contained most if not all of them. The two movants sought to have the judgments revived to the extent of an undivided one eighth interest in each of them as heirs at law.
We are informed that after a denial of the motions to revive the judgments appellants instituted proceedings in the probate court to obtain administration on decedent’s estate. Those matters are not germane to the instant review. Moreover it appears an appeal, or appeals, from rulings in such subsequent proceedings are, or may be, perfected. We shall not pursue those matters now and, of course, express no views concerning them.
It appears Ludvik Zaloudek and Mary Zaloudek, the judgment debtors, were the only interested parties who were notified of the revivor proceedings. They objected to the revivor on the grounds the two heirs, Helen Thielen and Blanche Howard, were not proper parties to move for the revivor and had no legal capacity to conduct the proceedings. The district court sustained the motion. From that ruling the movants for revivor appeal.
Before determining whether the district court erred in denying the motions to revive the judgments we desire to revert for a moment to the petition filed in the probate court by Edward, one of the brothers of the decedent, to obtain a decree of descent under provisions of G. S. 1949, 59-2250; 59-2251. The claim Edward made therein to certain lots by virtue of a deed of conveyance had no place in a petition for a decree of descent. The function of such a decree is not to determine controverted issues of title to or ownership in property of a decedent’s estate. In Jardon v. Price, 163 Kan. 294, 181 P. 2d 469, we said:
“The statute granting jurisdiction and power to merely determine heirship does not include jurisdiction to pass on claims against a decedent’s estate or to determine an unrelated controversy which might affect the interest which would ordinarily pass to an heir under the law of intestate succession. (2 Bartlett’s Probate Law and Practice, §§ 1162, 1163, p. 430; Wright v. Wright, 99 Mich. 170, 58 N. W. 54.) A decree of descent does not create title but merely declares who has acquired the title of the decedent. In other words, the function of the statute is to declare only the title which accrues under the law of intestate succession. (2 Bartlett’s Probate Law and Practice, § 1163, pp. 430, 431.) (p. 299.)
To the same effect is also Wright v. Rogers, 167 Kan. 297, 301, 205 P. 2d 1010.
In the instant case the probate court, however, appears not to have determined the ownership or title in and to the lots claimed by Edward, decedent’s brother. The court found the deed to those lots was delivered after the decedent’s death and it determined only the fractional interests of the respective heirs to real estate owned by the decedent at the time of his death.
Appellants support their motion to revive the judgment on the theory the decree of descent rendered by the probate court vested each of them with an undivided one eighth interest in the judgments sought to be revived in the instant proceeding. The decree of descent did not vest in appellants such interests in the judgments. Whether the court, under the provisions of G. S. 1949, 59-2250; 59-2251, should have declared four of the heirs had a certain fractional interest in the judgments against the fifth heir, which judgments at that time were dormant, is not the question before us. The fact is the descent decree pertained only to the interest of the heirs in the real estate owned by the decedent at the time of his death. No appeal from that decree is before us.
Appellees contend it is plain the descent decree did not assign to four of the heirs any interest in the judgments of the decedent against the fifth heir and contend further that if the descent decree had made such assignment, a judgment could not be subdivided by part owners for the purpose of collection or revival; that a judgment must be revived in whole or not at all. Appellees make other contentions in support of the trial court’s ruling. They may well be involved in the proceedings to obtain administration on decedent’s ' estate. We shall not pursue those contentions presently.
Appellees contend an administrator was the proper party to revive the judgments. Appellants contend the heirs may do so under the provisions of G. S. 1949, 60-3220, which reads:
“If either or both parties die after judgment, and before satisfaction thereof, their representatives, real or personal, or both, as the case may require, may be made parties to the same, in the same manner as is prescribed for reviving actions before judgment; and such judgment may be rendered, and execution awarded, as might or ought to be given or awarded against the representatives, real or personal, or both, of such deceased party.”
G. S. 1949, 60-3212 provides:
“Upon the death of the plaintiff in an action, it may be revived in the names of his representatives, to whom his right has passed. When his right has passed to his personal representatives, the revivor shall be in their names; where it has passed to his heirs or devisees, who could support the action if brought anew, the revivor may be in their names.”
G. S. 1949, 60-3221 provides:
“If a judgment become dormant it may be revived in the same manner as is prescribed for reviving actions before judgment at any time within two years after it becomes dormant.”
These judgments had become dormant as a result of decedent’s death. If the decedent had died before the judgments were ren dered the actions would have survived but could have been maintained only in the name of his personal representative and not by his heirs. (Howe v. Mohl, 168 Kan. 445, 449, 214 P. 2d 298; Cory v. Troth, 170 Kan. 50, 53, 223 P. 2d 1008; Janzen v. Troth, 170 Kan. 152, 223 P. 2d 1011.)
We think under the undisputed facts of the record in the instant case a personal representative of the decedent was the proper party to revive the judgments. (Howe v. Mohl, supra.) No personal representative had been appointed and, of course, no such representative attempted to revive the judgments. How late such a representative might be appointed or whether there are now valid defenses to a revivor in his name are questions not presently before us.
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The opinion of the court was delivered by
Pollock, J.:
This is an action in the nature of ejectment brought by John Henry Barker and George W. Barker against J. L. Randall to recover a tract of land in Reno county. The facts are that'plaintiffs, non-residents of the state, in 1897 purchased the land at foreclosure sale and leased the premises to one Snedecor, who entered into possession as their tenant. The taxes for the year 1895 not having been paid, the land was sold. A corporation known as the Irrigation Land and Trust Company procured the tax deed. That corporation by quitclaim deed conveyed to one Charles E. Tidd, who, on March 17, 1900, commenced his action of ejectment against plaintiffs and others to recover possession. To this action, Snedecor, the tenant in possession, was not made a party. Service by publication was had on the Barkers. Default be ing made, judgment was entered in favor of Tidd as plaintiff. Five days thereafter, Tidd, by general deed of warranty, conveyed the land in question, with other lands aggregating over 1000 acres, to plaintiff in error, Randall, for a consideration of $4500, as expressed in the deed. The sum of $4000 of the purchase-price was evidenced by promissory notes secured by 'a mortgage on the premises conveyed. Plaintiffs in this action had no actual notice of the bringing or pendency of that action. This action was commenced on the 20th day of October, 1900. After a first trial in ejectment and the vacation of the judgment under the statute, plaintiffs first learned of the former action by Tidd and judgment in his favor. Upon application of plaintiffs in this action, and showing made, the former judgment was vacated. At the second trial in this action, before the court sitting without a jury, special findings of fact were made, and among others necessary to a correct understanding of the case were the following:
“12. That no writ of possession ever was issued or executed in said action of Tidd v. Beardsley et al.
“13. That on the 12th day of May, 1900, said Chas. E. Tidd made his warranty deed to said premises and other lands situated in Reno county, Kansas, aggregating ten hundred and twenty (1020) acres and two (2) lots in the city of Hutchinson, Kansas', to J. L. Randall, the defendant in this action, which said deed was duly recorded in this county on the 15th day of May, 1900. That the consideration from Randall to Tidd for all of said lands conveyed by said warranty deed was a mortgage for $4000 upon said lands, executed by said Randall and delivered to said Tidd. And the evidence does not show how the balance of consideration named in deed was paid. That at the time of the purchase of said land by said Randall, and until after the commencement of this action, the said Randall had no knowledge or notice of the said suit of Tidd v. Beardsley et al., or the judgment therein; he never heard of the same until after the commencement of this suit.
“14. That these plaintiffs had no knowledge or information concerning the said action of Tidd v. Beardsley et al., or of any of the proceedings herein had, until after the first trial in ejectment in this action, and until after the judgment rendered at such trial had been vacated, and this action had been continued to the next ensuing term of this court.”
Upon the facts as found by the court from the evidence, plaintiffs had judgment for the recovery of the property. Defendant brings error, contending that on the facts as found he is entitled to judgment. This contention is based upon the provision of section 77 of the code (Gen. Stat. 1901, §4511), which reads:
“A party against whom a judgment or order has been rendered, without other service than by publication in a newspaper, may, at any time within three years after the date of the judgment or order, have the same opened, and be let in to defend. Before the judgment or order shall be opened, the applicant shall give notice to the adverse, party of- his intention to make such an application, and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and make it appear to the satisfaction of the court, by «affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense ; but the title to any property, the subject of the judgment or order sought to be opened, which by it or in consequence of it shall have passed to a purchaser in good faith, shall not be affected by any proceedings under this section, nor shall they affect the title of any property sold before judgment under an attachment. The adverse party, on the hearing of an application to open a judgment or order, as provided by this section, shall be allowed to present counter-affidavits to show that during the pendency of the action the applicant had notice thereof in time to appear in court and make his defense.”
Against this contention it is urged that Randall is not entitled to the protection afforded by the above ■statutory provision for the following reasons : (1) He was not a purchaser in good faith, for a valuable •consideration, without notice of the rights of plaintiff ; (2) he did not purchase the property with knowledge of, or in reliance upon, the judgment in favor •of his grantor, Tidd, and against plaintiffs; (3) as the tenant of plaintiffs, Snedecor, in actual possession ¿>f the premises, was not made a party to the action, such judgment was not capable of enforcement by writ of possession and does not protect Randall; (4) he did not acquire title to the property by, or in ■consequence of, the judgment in ejectment in favor of Ms grantor, Tidd.
These contentions raise many intricate and inter•esting questions, all of which, in the view we have taken of this case, need not now be considered and determined. If, for any reason, the protecting hand of the statute is withheld from defendant, he cannot succeed in this case. It may well be doubted whether the purchase by defendant from Tidd, under the findings made by the trial court, was for a valuable consideration and without notice of plaintiffs’ rights, their tenant at the time being in the actual possession of the property. Also, it may be doubted whether in an action in the nature of ejectment an enforceable judgment can be entered unless the tenant in the actual possession of the premises is made a party to the action, in order that any judgment for the recovery of ■the property may be enforced against him by writ of possession. However, we do not feel called upon to decide the above contentions at this time, but prefer to determine the case upon other grounds.
The title acquired by Randall to the property in controversy was based upon the tax deed to the irrigation company. Upon the strength of this title Tidd procured the judgment in his favor in the ejectment action. Of the existence of such judgment defendant had neither notice nor knowledge at the time of his purchase. Hence, of necessity, he did not part with anything of value upon the validity of this judgment. The statute provides:
“But the title to any property, the subject of the judgment or order sought to be opened, which by it or in consequence of it shall have passed to a purchaser in good faith, shall not be affected by any proceedings under this section, nor shall they affect the title of any .property sold before judgment under an attachment.”
The object of this statute is to protect from the loss of the property, in the event of the vacation of the judgment under the statute, those who, in reliance upon a judgment as conclusive of the rights of the parties thereto, in good faith, for a valuable consideration, purchase the real estate, the subject-matter of the action. To become such purchaser and be entitled to the protection afforded, the purchaser must have knowledge of the judgment and part with his money in reliance thereon, and not purchase in ignorance of the judgment and in reliance upon the chain of title, independent of the judgment, as did the defendant in this case. In the opinion in Howard, Adm’r, v. Entreken, Adm’r, 24 Kan. 428, 430, it was said :
“We regard this section and §467 of the code, as only declarations of the previous cqmmon-law rule ; and, like that rule, they were adopted to protect third persons purchasing under the authority of a judgment or decree. They apply to strangers to the judgment, wba have purchased under the honest belief that the judgment is valid. If the judgment is afterwards reversed, or opened up, the defendant who has lost his property must look to the plaintiff for redress.”
When used for the protection of the innocent purchaser the above statute has a most beneficial and salutary effect, but a protection so conferred is one so liable to abuse, so often invoked to shield the wrongdoer, that we are not inclined to extend its operation or enlarge its scope beyond the clear terms of the act.
It follows that upon the findings made the judgment was right and must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
This was a proceeding to probate a will. The trial court ordered the will admitted. The opponents have appealed. We do not have the pleadings before us. From what is said in the briefs, however, we gather the opponents, being some of the heirs at law of the testator, claimed that the testator was subjected to undue influence and lacked testamentary capacity. The testator was a farmer and unmarried. His heirs at law were nieces and nephews and grand nieces and nephews. He died on March 16, 1948. His estate consisted in the main of an eighty-acre farm and a quarter section. The trial court tells the story about as well as can be in its findings and conclusions. They are as follows:
“FINDINGS OF FACT AND CONCLUSIONS OF LAW
“First. That William A. Hurd died at the age of 87, a resident of Reno County, Kansas, on March 16, 1948. That he was a bachelor and left surviving as his heirs at law certain nieces and nephews, a great-nephew and two great-great nephews.
“Second. That in his early years the deceased lived with his parents on a farm in McPherson County, Kansas; that when his father died he and his mother moved to Windom and lived there for some time, and then moved to a farm in Reno County near Nickerson, Kansas, and later they moved to a farm near Windom where they were living when his mother died. Later he moved back to the farm near Nickerson.
“Third. That there was a mortgage on the farm and during the years from 1937 to 1941 there were poor crops or none at all and he had a very hard time making the payments on the mortgage and paying tire taxes, but the mortgage was finally paid off and from 1941 on he had sufficient income to meet all of his needs.
“Fourth. That the eighty near Nickerson was rented to A. L. Risley, but there was a house and old barn there which were used by the deceased, and Mr. and Mrs. Risley made frequent trips to the farm and saw to it that he got along all right.
“Fifth. That in December, 1947, the deceased became ill and was taken by the Risleys to their home in Nickerson where he remained until the time of his death.
“Sixth. That Mr. Hurd was ill the latter part of December, 1946, and the first part of January, 1947, and his niece, Reatryce L. Frey, came from Oregon with her husband and found him improved, and after a short visit decided to take him to California for a trip. That the day before they left, at the request of Mr. Hurd they drove with him to Windom, Kansas, to see Mr. C. E. Lindell, and that while there the deceased had Mr. Lindell draw a will which he executed, and in which will he left all of his property to Reatryce L. Frey, and then went with the Freys to California. That he returned from California about five or six weeks later.
“Seventh. That in December, 1947, the deceased had Mr. Risley call Mr. Lindell and ask him to come to Nickerson to see him, which Mr. Lindell did, and at that time Mr. Hurd asked Mr. Lindell to pay his taxes for him which were then due, and Mr. Lindell did so.
“Eighth. That on the 21st day of January, 1948, Mr. Hurd again requested Mr. Risley to call Mr. Lindell and ask him to come to see him, which Mr. Lindell did, and came to the home of the Risleys where Mr. Hurd was then living, and that Mr. Lindell and Mr. Hurd there talked privately and Mr. Hurd requested that he draw a will leaving the eighty acres near Nickerson to Mrs. Risley and the rest of his estate to his nephew, Pearl McGuire. That Mr. Lindell then went to the drug store at Nickerson and borrowed a typewriter and ■drew the will offered for probate in this case, and then returned to the residence of the Risleys where the 'Will was executed which was witnessed by Mr. Lindell, Mr. Owston and Mr. Warnock in the home of the Risleys. That Mr. Owston and Mr. Warnock were neighbors and were called in for the particular purpose of witnessing the execution of this will.
“Ninth. That Mr. Hurd could not read or write to any extent and was barely able to sign his name, and that when he signed the will the signature was poor and he crossed it out and wrote it again. That Mr. Hurd never used a pen and even had trouble signing with a pencil.
“Tenth. That Mr. Hurd was a man of strong will and of strong likes and dislikes and very secretive concerning his business matters, but seemingly he had complete trust in Mr. Lindell and whenever possible had Mr. Lindell handle his business affairs that he could not handle himself.
“Eleventh. That from December, 1947, to March 16, 1948, the deceased was being treated for his physical conditions by Dr. H. L. Graber of Nickerson, a medical doctor, and that on or about January 21, 1948, the doctor considered the deceased to be well oriented and to be keen and alert and well aware of all that was going on around him, and that his mind was quite normal for a man of his age and that he was able to make his own decisions.
“Twelfth. That there is no evidence in this case to show that he was unable to know the extent of his property and of what it consisted or unable to know the natural objects of his bounty, and while he was old and his health was not of the best because of arteriosclerosis, yet he was in complete control of his mental faculties on January 21, 1948, at the time of the execution of this will.
“Thirteenth. That there is no evidence in this case to disclose the fact that there was any undue influence exerted upon the deceased by anyone at the time of the execution of this will, either by the Risleys or Mr. Lindell or by Pearl McGuire or anyone else.
“Conclusions of Law
“The Court concludes as a Matter of Law:
“First. That the will offered for probate in the Probate Court of Reno County, Kansas, is the last will and testament of William A. Hurd, and that such will was duly, properly and regularly executed.
“Second. That at the time of the execution of this will the deceased was not under the influence of any person or persons, and that at the time of its execution and immediately prior thereto there was no undue influence exerted upon the deceased in the matter of the provisions of the will.
“Third. That at the time of the execution of the will in question the deceased had sufficient mental capacity to execute a good and proper will.
“Fourth. That by reason of the above and foregoing tire will offered for probate is the last will and testament of William A. Hurd and should be admitted to probate and its terms executed according to law.”
The opponents’ árgument is in the main an attack on the findings of fact.
They first argue the trial court erred in ignoring the fact that evidence was lacking that the witnesses to the will attested it at the request of testator. This is not a correct statement of the record. The scrivener was a banker, an old friend of testator. He testified that he drew the will as instructed by testator; took it back out to testator’s farm; read it to him; and that testator and witnesses signed it in the presence of each other. One witness to the will said he came in the room and the scrivener, the testator, and the other witness was there, and the scrivener said "we were there for the purpose of witnessing a will for Mr. Hurd.” The scrivener said that Mr. Hurd signed the will in the presence of Lindell, Owston and Warnock and they all signed in the presence of each other.
If the trial court believed this testimony it was sufficient to establish that the will was properly executed. Especially is this true in the absence of any evidence to the contrary. Under this head opponents argue that the proponents of the will did not meet the burden of proving that the testator was acquainted with the provisions of his will when he was unable to read and write. The scrivener testified that the testator told him the disposition he wished to have made of the two farms; that he left the house and went to a drugstore and wrote the will and was back at the house within an hour and told testator he had drawn it the way he wanted it. There was not a scintilla of testimony to discredit this testimony of the scrivener and even if there were it is the duty of the trier of the facts to weigh evidence in the first instance. The scrivener testified—
“I talked with him about making the will when there was no one present but me and Mr. Hurd. He stated that he wanted the McPherson County farm to go to Pearl McGuire and the Reno County eighty acres to go to Mrs. Risley and the residence to Pearl McGuire. He stated that he didn’t want Mrs. Frey to have anything to do with his property. ... I went to the drug store, typed the will and returned it to the Risley home. Hurd signed the will at the dining room table in the Risley home, in the presence of Mr. Owston, Warnock and myself, and we witnessed the will. I did not know Mr. Owston or Mr. Warnock. We signed in the presence of Mr. Hurd and in the presence of each other.”
That was sufficient.
The opponents next argue that the court erred in finding there was no evidence of any undue influence exerted upon the deceased at the time of the execution of the will. The main point in this argument is that the testator was living at the home of one of the opponents who was taking care of him at the time and took care of him at his last illness. The opponents point out that this person wrote to one of the opponents and discouraged this niece about coming to see her uncle, the testator. There was no evidence that he did anything actually to keep her from coming and no evidence that she could not have seen her uncle if she had come. The record is devoid of any influence being exercised upon the testator to make a will other than the way he wished.
The objectors next argue the court erred in not holding that the proponents failed to overcome a presumption that testator intended revocation when he drew lines through his signature. It is difficult for us to deal with that argument adequately due to the fact that the will was not furnished by the opponents. The only testimony as to lines being drawn was the signature and the scrivener testified the old gentleman was a poor writer; that he had trouble signing his name the first time and the scrivener asked him to write it over. The trial court evidently believed this testimony. Moreover the court had the will so it could be examined. On this point the scrivener testified as follows:
“In explanation of why the testator signed his name twice Lindell stated Hurd could write his signature, but he didn’t read or write, except to sign his name and that he did such a bad job on the first signature, Lindell suggested he had better do it over because Lindell wanted it to look a little better so it would be clear who it was. Somebody might question it was his signature. The marks across Hurd’s name may have been because he was nervous. He always had difficulty signing his name and Lindell thought Hurd was standing up.”
This is a perfectly natural explanation of the argument about the signature and since the trial court believed it there is nothing further to be done.
The opponents next argue that the court erred in its proposed findings of fact as they are not within the evidence and the proposed conclusion of law based thereon, therefore, are erroneous. We have examined this record and find no evidence whatever that there was anything wrong about the manner in which this will was executed or that the testator was under undue influence.
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Larson, J.:
Laura L. Williams appeals the trial court’s revocation of her probation, contending she should have been discharged from probation pursuant to the provisions of K.S.A. 21-4611 and K.S.A. 22-3716.
On October 8, 1985, Williams pled guilty to one count of conspiracy to commit theft by deception for her involvement in a “gypsy bujo scam.” The minimum term of imprisonment for this crime was one year and the maximum term was five years.
On January 17, 1986, the trial court imposed a one- to five-year suspended sentence. Williams was placed on supervised probation for five years. The terms of her probation required that she “pay the amount of $7,500 forthwith and make monthly restitution payments of $1,500 to commence March 1, 1986 until Va of the total restitution amount has been paid” and that she shall “suffer no further arrests or convictions.”
In May of 1986, Williams was convicted and incarcerated in South Dakota for theft. In July 1986, the State moved to revoke Williams’ probation, alleging she had failed to pay court-ordered restitution. Williams was brought from South Dakota to Kansas for the revocation hearing held in October 1986, where she stipulated to a probation violation for her failure to pay restitution. The trial court ordered Williams to become current with her restitution payments, then placed her back on probation for a period of five years on the same terms and conditions as set forth in the original order of probation. Williams was transported back to South Dakota.
In April of 1987, a motion and show cause order were filed, alleging that Williams had again violated the terms of her probation by failing to pay restitution. The trial court ordered the motion to be reset upon Williams’ release from the South Dakota penitentiary. The record does not show that this motion was ever heard. When Williams was released from custody in South Dakota, she was not returned to Kansas.
On January 17, 1991, a motion, file stamped at 5:01 p.m., and an order to show cause, file stamped at 5:02 p.m., were filed, alleging Williams had violated the terms of her probation by failing to pay the court-ordered restitution. The order to show cause states in the upper right hand comer that it was “Issued 1-18-91.”
On October 22, 1991, the State filed an amended motion and an amended order to show cause, contending Williams had violated the terms of her probation by failing to remain a law-abiding citizen, as shown by a felony conviction in California of one count of grand theft of personal property. The Kansas probation officer’s statement affirms that Williams was in the custody of the California Department of Corrections.
Nothing further transpired of record until April 20, 1993, when Williams moved to be discharged from probation, contending the trial court did not have jurisdiction to revoke her probation pursuant to the provisions of K.S.A. 21-4611 and K.S.A. 22-3716.
K.S.A. 21-4611(1) states in pertinent part:
“The period of suspension of sentence [or] probation . . . fixed by the court shall not exceed five years in felony cases . . . , subject to renewal and extension for additional fixed periods not exceeding five years in felony cases .... In no event shall the total period of probation [or] suspension of sentence . . . for a felony exceed the greatest maximum, term provided by law for the crime.” (Emphasis added.)
K.S.A. 22-3716(1) provides in relevant part:
“At any time during probation [or] suspension of sentence . . . , the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of release ... or a notice to appear to answer to a charge of violation.”
Williams argued she completed the maximum term of her probation on January 17, 1991. She contended the trial court’s jurisdiction ended on that day and no authority existed to issue die show cause order on January 18, 1991. She claims the trial court could not order revocation beyond the expiration of the probation term and the amended motion and show cause order filed on October 22, 1991, were filed after the trial court’s jurisdiction had ended.
The trial court rejected Williams’ arguments, finding jurisdiction was proper because the motion to revoke probation and the show cause order were filed on the last day of her probationary period, even though the show cause order was not issued until the following day. The trial court determined the amended show cause order would simply relate back to the original show cause order that was timely filed.
On July 1, 1993, the trial court revoked Williams’ probation based upon the grounds alleged in the amended motion and amended show cause order that Williams had failed to remain a law-abiding citizen, as shown by her 1990 criminal conviction in California. The trial court found Williams’ probation could not be revoked based upon her failure to pay restitution as alleged in the original motion and original show cause order because she had been incarcerated and could not make the court-ordered restitution payments. The trial court imposed the original sentence of one to five years.
Williams appeals.
On appeal, Williams contends: (1) Revocation must occur during the probationary term; the maximum term of her probation was five years; the trial court’s jurisdiction ended on January 17, 1991; and the motion and show cause order that were filed after regular court hours could not extend the court’s jurisdiction, especially since the warrant was not issued until January 18, 1991; and (2) the amended motion and amended show cause order were not timely filed, and the trial court did not have jurisdiction to consider the new allegation of probation violation set forth in the amended motion and amended order.
The trial court’s determination that it had jurisdiction to revoke Williams’ probation is a conclusion of law over which this court’s review is unlimited. See Hutchinson Nat'l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
Original motion and order filed on January 17, 1991
There are three views as to a trial court’s power to revoke probation after the probation period has expired. In some states, the trial court has no power to revoke probation unless the revocation proceedings, including issuance of the revocation order, are completed prior to the expiration of the probation term. In other states, the trial court retains jurisdiction to revoke probation for a reasonable time after expiration of the probation term. In many states the trial court retains jurisdiction to revoke probation after the probation term has expired if the State instituted the revocation proceeding prior to the expiration of the probation term. 4 Wharton’s Criminal Procedure § 553, pp. 583-84 (13th ed. 1992). See Annot, Power of Court, After Expiration of Probation Term, To Revoke or Modify Probation for Violations Committed During the Probation Term, 13 A.L.R.4th 1240.
The majority view appears to be that the trial court has jurisdiction to revoke probation if proceedings are instituted prior to expiration of the probation term, even though the order revoking probation is issued after the probation term has expired. Annot., 13 A.L.R.4fh at 1253-57. See Barker v. State, 479 N.W.2d 275 (Iowa 1991); Wesbecher v. State, 863 S.W.2d 2 (Mo. App. 1993); Thompson v. State, 620 P.2d 422 (Okla. Crim. 1980); State v. Stuve, 111 Or. App. 197, 826 P.2d 24, rev. denied 313 Or. 300 (1992); Standley v. State, 517 S.W.2d 538 (Tex. Crim. 1975); State v. Kahl, 814 P.2d 1151 (Utah App. 1991); State v. Russell, 27 Wash. App. 309, 617 P.2d 467 (1980).
However, several states have held that an unreasonable delay by the State in the issuance and execution of a warrant for the arrest of a probationer whose whereabouts is either known or ascertainable with reasonable diligence may result in a State’s waiver of the violation. See People v. Diamond, 59 Mich. App. 581, 229 N.W.2d 857 (1975), appeal on remand 70 Mich. App. 512, 245 NW 2d 809 (1976); State v. Murray, 81 N.M. 445, 468 P.2d 416 (1970).
21 Am. Jur. 2d, Criminal Law § 578, p. 954, states the following rule: “Where a statute authorizes the court to revoke suspension of a sentence at any time during the period of probation, a petition filed within the period of probation may be acted upon properly at a later time.”
In Kansas, the trial court maintains continuing jurisdiction over a probationer during the time he or she is on probation. State v. Farmer, 16 Kan. App. 2d 419, 422, 824 P.2d 998 (1992). We have located no Kansas case which directly addressed the issue of whether jurisdiction to revoke probation remains when the probation term expires after institution of revocation proceedings but prior to the revocation order. In State v. Grimsley, 15 Kan. App. 2d 441, 444, 808 P.2d 1387 (1991), when ruling that a probationer could not agree to extend the maximum probationary term, Chief Judge Briscoe hinted at the answer to the foregoing question when, after examining Moody v. Edmondson, 176 Kan. 116, 269 P.2d 462 (1954), she stated: “Moody stands for the proposition that a court has no jurisdiction to revoke probation when the probationary period terminates prior to issuance of an arrest warrant or filing of a complaint seeking revocation of probation.”
Grimsley , therefore, supports the position that either the filing of the motion to revoke probation or the issuance of an arrest warrant prior to expiration of the probation term is all that is necessary to institute revocation proceedings.
In State v. Ludwig, 218 Or. 483, 344 P.2d 764 (1959), an order to show cause why probation should not be revoked was issued on the last day before the probation period expired. A bench warrant was issued but was not served on the defendant until 11 months later. The trial court held it still had jurisdiction over the defendant and imposed the original sentence. This decision was affirmed on appeal, with the Oregon Supreme Court stating:
“Probation is a statutory process and, under laws similar to ours, it seems to be the general rule that if the revocation procedure is started properly before the expiration of the term, the court retains jurisdiction, even though the final hearing and adjudication are after the end of the probation period.” 218 Or. at 492.
The Oregon court quoted from Phoenix v. State, 162 Neb. 669, 675, 77 N.W.2d 237 (1956):
“ ‘It will be noted that the statute does not contain the language “the court may revoke the probation at any time during the period of probation.” We believe a proper interpretation of the statute is that if a court is to revoke probation for a violation occurring within a probationary period, procedure to that end must have been instituted within the probationary period, as was done in the instant case, or within a reasonable time thereafter. Under such an interpretation, a violation occurring on the last day of probation could still properly result in the revocation of probation after the probationary term.’ ” 218 Or. at 491.
Likewise, K.S.A. 22-3716(1) does not state the trial court can only revoke probation during the term of probation. The statute, grants authority for the trial court to issue a warrant or notice to appear at any time during the probationary period. A reasonable construction of K.S.A. 22-3716(1) is that revocation may properly occur after the term of probation has expired if a warrant, petition, or show cause order has been filed prior to expiration of the probation term. See Todd v. Kelly, 251 Kan. 512, 520, 837 P.2d 381 (1992).
Williams’ claim that the motion and order were initially untimely because they were file stamped after 5:00 p.m. is without merit. The initial documents were timely filed before the probation period expired. The actual revocation need not take place within the term of probation, as long as it occurs within a reasonable time thereafter. We adopt the majority view that jurisdiction exists over the original motion and order that were filed before the probation period expired.
Amended motion and order filed on October 22, 1991
In states which have adopted the majority view, there is a split in authority as to whether a trial court has jurisdiction over an amended petition or motion to revoke probation that contains new or different allegations of probation violations and has been filed after the probation term has expired, even though the original petition or motion was filed within the probation period. See 13 A.L.R.4th at pp. 1279-82.
Amendment was allowed in the Texas cases of Banks v. State, 491 S.W.2d 417 (Tex. Crim. 1973) and Cabrera v. State, 494 S.W.2d 177 (Tex. Crim. 1973). Phoenix v. State, 162 Neb. 669, held an amendment which amplified the facts in the original petition was valid if made within a reasonable time after the expiration of the probation term. In State v. Hultman, 92 Wash. 2d 736, 600 P.2d 1291 (1979), amendment was allowed, but the court concluded that delay between the expiration of the probationary term on January 23 and the revocation hearing on April 12 was the maximum permissible delay of the revocation hearing without a more detailed explanation. Hultman is factually interesting because one day before the probation period expired, Hultman was arrested for slashing tires on a police patrol car and the amended petition added the allegation of malicious damage to a police vehicle. The trial court’s revocation of probation was upheld, with the Supreme Court of Washington stating:
“We find no compelling reason to deny the prosecutor the opportunity to amend the petition to allege a violation occurring so late in the period of probation that amendment could not reasonably be expected within the term. We emphasize that the test mandates no unnecessary delay from the filing of the orig inal revocation petition to the date of the revocation hearing.” 92 Wash. 2d at 744-45.
Amendments were not permitted in two Florida cases, Carpenter v. State, 355 So. 2d 492 (Fla. Dist. App. 1978), and Clark v. State, 402 So. 2d 43 (Fla. Dist. App. 1981). In Carpenter, the original request to terminate probation had been filed on the last day; and when the trial court found these allegations were not sufficient, it recommended the filing of an amended affidavit, which it found to be sufficient. This order was reversed on appeal, where it was held the filing of the original affidavit was sufficient to sustain jurisdiction to hold the original hearing, but when this resulted in a finding of not guilty, the trial court lost jurisdiction as to the defendant’s probationary status.
In Clark, the request for revocation was filed prior to the expiration of the probation period; two days after the period expired, an amended affidavit was filed alleging delivery of cocaine and heroin, while the original contained allegations only of possession of the controlled substances and a handgun. After probation was revoked based on two of the original and two of the amended charges, the Florida District Court of Appeal reversed, holding the trial court was divested of jurisdiction to hear the amended allegations:
“[W]e turn to the general rule which governs timely revocation of probation: once a term of probation has expired, a court lacks jurisdiction to entertain an application for revocation of probation based upon a violation which occurred during the probation period unless, during the term of probation, appropriate steps were taken to revoke or modify probation. [Citations omitted.]
“In the case at bar the state urges that the above rule should not preclude consideration of the new or amended charges because the ‘amended affidavit .. . was part of the process set in motion by the original affidavit . . . .’ Furthermore, the state suggests that the similarity between the original and the added charges lends credence to its ‘relation-back’ theory. We disagree. The Supreme Court in Carroll v. Cochran, 140 So. 2d 300 (Fla. 1962), upheld a revocation of probation even though an arrest warrant was not served until after the termination of probation. The court grounded its decision on the fact that ‘the processes of the trial court had been timely set in motion . . . because the warrant . . . was issued within the period of probation.’ Id., at 301. We apply a restrictive interpretation to the holding in Carroll and conclude that while it permits a revocation process, timely begun, to continue past the probationary term, it does not allow the filing of new, substantive charges after the date of termination of probation.” 402 So. 2d at 44.
In Standley v. State, 517 S.W.2d 538, the Court of Criminal Appeals of Texas stated in a footnote:
“The revocation motion having been filed and warrant issued for appellant’s arrest prior to expiration of the probation period, the hearing conducted after expiration of such period but shortly after arrest was proper under the circumstances. [Citations omitted.] In such cases, however, the right of the court to revoke is limited to those violations of probation alleged in the revocation motion filed prior to the expiration of the probationary period. [Citations omitted.]” 517 S.W.2d at 540 n.1.
If we were to follow Clark and Standley, we would be compelled to adopt a rule that no amendment to a revocation petition which raises a new violation of probation is allowed after the expiration of the probation term. From such a rule, it would follow that the trial court does not have jurisdiction to consider the additional violations. We are not inclined to adopt such a stringent rule which would allow a probationer to avoid the consequences of hidden and undetected actions of which law enforcement officers and probation officials did not become aware until after the probation period expires.
However, we are likewise unimpressed with the State’s argument that “K.S.A. 22-3716 sets no time limitations on pleading particular types of allegations, even if they are known to prosecuting authorities.”
We believe the better rule to be adopted in Kansas is one of reasonableness, which would allow amendments to requests for parole revocation where the initial motion was filed before the expiration of the probation term, provided the amended allegations were unknown or could not reasonably have been known when a timely filing is made, as long as there is no unnecessary delay before the filing of the amended allegations, and the actual revocation hearing is promptly held.
In this case, the trial court revoked Williams’ probation only on the ground alleged in the amended motion and amended show cause order filed after the expiration of Williams’ term of probation. The amended motion alleged Williams failed to remain a law-abiding citizen because of a felony conviction in California. Williams alleges the existence of the California conviction was known to the State when the January 17, 1991, allegations were made. This contention is not denied by the State. It argues its failure to initially allege the California conviction is of no legal consequence. We do not agree with the State’s argument.
Under the facts of this case, there is a clear violation of the reasonableness test of Hultman, 92 Wash. 2d 736. The October 22 amended motion was not filed for more than nine months after the timely motion. Further, and more importantly, nothing was done on the State’s request between October of 1991 and April of 1993 (an 18-month period), when Williams’ attorney attempted to obtain an order discharging her from probation and setting aside any hold sent to any other state. The probation was not ultimately revoked until July 1, 1993.
Hultman held a delay between the expiration date on January 23 and a revocation hearing on April 12 to be the maximum permissible delay without a reasonable explanation. We are not prepared to adopt any bright line rule of reasonableness or timeliness because the facts may vary from case to case, but we hold the State in this case is neither timely nor reasonable.
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Royse, J.:
This is a workers compensation case. Robert B. Evans, claimant, appeals from the district court’s decision reducing his award. He contends that the district court lacked jurisdiction to consider the matter, and alternatively, that the district court used an improper standard of review.
Evans met with personal injury by accident on October 14, 1983. He timely filed a claim for workers compensation benefits. After considerable delay, the administrative law judge (ALJ) issued his award on September 23, 1992. The ALJ determined Evans had suffered an 83% permanent partial general disability and awarded him $79,798.73 in workers compensation benefits. The record on appeal does not explain the extended delay in issuing the award.
Evans’ employer, the University of Kansas (University), timely filed an application for Director’s review. On October 12, 1993, the Director affirmed the ALJ’s award in all respects. The delay in issuing the Director’s order is likewise unexplained.
The University then sought judicial review of the Director’s order. The district court reduced Evans’ disability rating from 83% to 75%, but otherwise adopted the findings and conclusions of the ALJ. Evans appeals.
Evans’ first argument on appeal is that the petition filed by the University in the district court failed to meet the specificity requirements set forth in the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. K.S.A. 77-614(b) states in pertinent part: “A petition for judicial review shall set forth ... (6) the petitioner’s reasons for believing that relief should be granted; and (7) a request for relief, specifying the type and extent of relief requested.” Whether the University’s petition conforms to K.S.A. 77-614 is a question of law over which this court’s review is unlimited. See Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
Evans did not raise the specificity issue in the district court. The general rule is that a point not presented to the trial court will not be considered for the first time on appeal. Hephner v. Traders Ins. Co., 254 Kan. 226, 231, 864 P.2d 674 (1993). Evans, however, contends that the University’s failure to plead with specificity deprived the district court of jurisdiction. He relies on the rule that questions of subject matter jurisdiction may be raised at any time, even on the court’s own motion. See K.S.A. 60-212(h)(3); City of Overland Park v. Barron, 234 Kan. 522, 524, 672 P.2d 1100 (1983). When a court lacks subject matter jurisdiction of an action, its authority extends no further than to dismiss the action. Minter-Wilson Drilling Co. v. Randle, 234 Kan. 624, 628, 675 P.2d 365 (1984).
Evans cites one district court opinion in another case as authority for his premise that the specificity requirements of K.S.A. 77-614(b) are jurisdictional. That opinion, however, simply assumes that the requirements of 77-614(b) are jurisdictional. The parties cite no appellate cases which consider whether the failure to plead with specificity in a petition for judicial review, as required by 77-614(b), constitutes a jurisdictional defect. Article 5 of the 1981 version of the Model State Administrative Procedure Act, which forms the basis for the Act for Judicial Review, gives no indication that failure to comply with its specificity requirement deprives the court of jurisdiction. See Kohorst v. Iowa State Commerce Com’n, 348 N.W.2d 619, 621 (Iowa 1984) (affirming trial court order that plaintiff amend petition to set out with specificity the agency errors alleged).
While there are no Kansas cases directly on point, decisions which examine similar pleading requirements are instructive. In particular, our Supreme Court considered a petition for libel and slander in Rinsley v. Frydman, 221 Kan. 297, 559 P.2d 334 (1977). Although the petition was defective because it did not specifically allege the defamatory words, the court held that the specificity requirement requires a motion for a more definite statement under K.S.A. 60-212(e) to “give it substance and compel compliance.” 221 Kan. at 302. Later, this court held that a pleading that lacks the required specificity does not give the district court full discretionary power to dismiss the action:
“While a petition alleging libel and slander must set forth the alleged defamatory words, the names of the persons to whom they were published and the time and place of their publication, a petition which fails to do so may not be dismissed without the district court first ordering the plaintiff to plead more specific facts.” (Emphasis added.) Knight v. Neodesha Police Dept., 5 Kan. App. 2d 472, Syl. ¶ 11, 620 P.2d 837 (1980).
See Weaver v. Frazee, 219 Kan. 42, 50, 547 P.2d 1005 (1976); Schulze v. Coykendall, 218 Kan. 653, 656, 545 P.2d 392 (1976); Barner v. Lane, 126 Kan. 173, 176-77, 267 Pac. 1003 (1928); Stidham v. State Bank, 126 Kan. 336, 268 Pac. 106 (1928); Haag v. Cooley, 33 Kan. 387, 6 Pac. 585 (1885); Hokanson v. Lichtor, 5 Kan. App. 2d 802, 810, 626 P.2d 214 (1981); 61A Am. Jur. 2d, Pleading § 201, p. 198.
These cases indicate that the failure to plead with specificity has not been viewed as a jurisdictional defect. We decline to treat the specificity requirement under K.S.A. 77-614(b) as a jurisdictional rule. The procedures for obtaining a more definite statement can be used in an action for judicial review of agency actions. K.S.A. 60-201. See U.S.D. No. 215 v. L. R. Foy Constr. Co., 237 Kan. 1, 5, 697 P.2d 456 (1985); City of Lenexa v. A Maroon 1978 Chevrolet, 15 Kan. App. 2d 333, 336, 807 P.2d 694 (1991). A defendant who fails to raise the specificity requirement of K.S.A. 77-614(b) by requesting a more definite statement waives the plaintiff’s failure to plead with specificity.
In this case, Evans did not file a motion for more definite statement under K.S.A. 60-212(e). Instead, he filed an answer to the petition without even alleging a lack of specificity in the petition. Because Evans did not raise the issue of specificity in the district court, the issue of the University’s compliance with 77-614(b) is not properly before us.
Evans’ second argument on appeal is that the district court erred by applying the de novo standard of review. Evans contends the district court should have applied the standard set forth at K.S.A. 77-621(c)(8) to determine whether the agency action was “unreasonable, arbitrary or capricious.” Evans maintains that the statutory authority for de novo review, K.S.A. 1992 Supp. 44-556, was repealed effective October 1, 1993. L. 1993, ch. 286, § 58.
Resolution of this issue requires us to revisit the 1993 version of K.S.A. 44-556(c), which provides:
“If review is sought on any order entered under the v'orkers compensation act prior to October 1, 1993, such review shall be in accordance with die provisions of K.S.A. 44-551 and this section, and any other applicable procedural provisions of the workers compensation act, as all such provisions existed prior to amendment by this act on July 1, 1993.”
This court recently held that K.S.A. 44-556(c) “provides that review of orders issued prior to October 1, 1993, is to be conducted under the law as it was prior to July 1, 1993. It provides, by implication, that if the order was issued after October 1, 1993, the new procedure controls.” Hall v. Roadway Express, Inc., 19 Kan. App. 2d 935, 943, 878 P.2d 846 (1994).
Under the law as it was prior to July 1, 1993, all decisions and awards by an ALJ were subject to review by the Director. The party seeking Director s review was required to file a written request for review within 10 days after the ALJ’s action. The Director’s review was not a prerequisite to judicial review. K.S.A. 1992 Supp. 44-551(b). A party seeking judicial review of an agency action had 30 days to file a petition for judicial review in the district court. K.S.A. 77-613.
The July 1, 1993, amendments to the Workers Compensation Act eliminated review by the Director and judicial review in the district court. Kansas Workers Compensation Handbook § 14.09 (1994 Supp.). Decisions and awards by the ALJ are now subject to review by the Workers Compensation Board (Board). The party seeking review must file a written request for review by the Board within 10 days after the ALJ’s action. K.S.A. 44-551(b)(l). A written request for review by the board is a prerequisite for judicial review. Hall, 19 Kan. App. 2d at 942. A party seeking judicial review has 30 days from the date of the final order of the Board to file an appeal with the Court of Appeals. K.S.A. 44-556(a).
The Hall decision was cited favorably in the recent Kansas Supreme Court case, Rios v. Board of Public Utilities of Kansas City, 256 Kan. 184, 883 P.2d 1177 (1994). Rios concluded: “The manner in which judicial review is accomplished under the Workers Compensation Act is governed by the date the order appealed was entered and not by the date the injuries were suffered.” 256 Kan. 184, Syl. ¶ 3.
The wrinkle presented in this case is that there are two orders: the order of the ALJ, dated before October 1, 1993, and the order of the Director, dated after October 1, 1993. The question to be decided is which order should be used to determine the applicable procedure.
Interpretation of K.S.A. 44-556(c) is a question of law over which this court’s review is unlimited. See Gillespie v. Seymour, 250 Kan. at 129. In interpreting a statute, the court must give effect to the intent of the legislature, if that intent can be ascertained. West v. Collins, 251 Kan. 657, Syl. ¶ 3, 840 P.2d 435 (1992).
“ ‘[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.’ ” Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992) (quoting In re Marriage of Ross, 245 Kan. 591, 594, 783 P.2d 331 [1989]).
The statutes have not limited the term “order” in such a way as to resolve the issue presented here. Prior to July 1,1993, K.S.A. 44-549 (Ensley 1986) provided: “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 award, finding, decision or order of the director.” Effective July 1, 1993, K.S.A. 44-549(a) provides: “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.” In short, an “order” may refer to a ruling from an ALJ, the Director, or the Board.
Evans argues that the date of the Director’s decision should determine which appeal procedure applies. Under this view, the new statutory scheme would apply because the Director’s decision was issued on October 12, 1993. One fallacy with this approach is that K.S.A. 44-551 provides for Board review of ALJ decisions; there is no provision for the Board to review the Director’s decisions. In addition, the new statutory scheme contains no provision at all for district court review. Evans ignores this statutory change when he contends that the district court’s standard of review was changed by the 1993 amendments. Finally, the interpretation urged by Evans would mean that the University was deprived of any judicial review: To obtain review in the Court of Appeals under the new scheme, the University would have had to appeal within 10 days of the ALJ’s award to a board which did not then exist.
We hold that in order to harmonize the statutory provisions and preserve the integrity and availability of the review process, the “order” referred to in K.S.A. 44-556(c) means the order of the ALJ. This conclusion is consistent with Rios, when one recognizes that review by the Director or the Board, respectively, is part of the appeal process. Thus, the University properly filed for review of the Director’s decision in the district court, and the district court properly applied the de novo standard of review.
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White, J.:
Midwest Titan, Inc., (Midwest) the garnishee, appeals from a judgment entered in favor of the plaintiff, E & M Ready-Mix & Pre-Cast, Inc., (E & M). Midwest, a general contractor, was served with a garnishment order in which E & M claimed funds were owed by Midwest to John Sanders and Perry Sanders Plumbing & Heating, Inc., (Sanders). E & M held a judgment against Sanders in a separate and unrelated matter. Midwest, in its answer to E & M’s garnishment order, denied any liability to Sanders. The trial court awarded E & M a judgment against Midwest for the amount of E & M’s judgment against Sanders. We reverse the trial court’s decision.
Midwest was general contractor for the construction of a middle school in Emporia, Kansas. In June of 1992, Midwest entered into a subcontract with Sanders to perform mechanical work on the project. Pursuant to the subcontract, Sanders provided surety bonds issued by the Great American Insurance Company (Great American), guaranteeing the performance of the work and payment of all bills incurred by Sanders.
The subcontract provided that Sanders would be paid $484,175 for the mechanical work. Later, change orders increased the amount by $8,576. Midwest was to pay Sanders monthly progress payments based on the percentage of the total work completed and the cost of materials and equipment delivered, less a 10% “retainage.” Sanders was required to pay for materials, equipment, and labor. Upon default by Sanders, Midwest was entitled to pay any amounts owed by Sanders to its creditors or employees and deduct the cost from any amounts to be paid to Sanders. Upon persistent or repeated default by Sanders, Midwest was entitled to terminate the subcontract agreement and complete the work. If the unpaid balance of the subcontract price exceeded the expense of finishing the work, the excess would be paid to Sanders, but, if the expense exceeded the subcontract price, Sanders would pay Midwest the difference.
By April 29, 1993, Sanders was having difficulty meeting its obligations on the contract. The sum of $314,617 had been paid on the subcontract, and outstanding obligations to Sanders’ cred itors totalled $57,141, leaving a balance of $119,993 on the contract price. Midwest advised Great American’s agent of these figures on April 29 and warned that “Sanders continues to expend significant amounts of labor which may exceed the remaining Contract Balance.” Midwest requested and received consent from Great American to pay Sanders’ payroll.
Sanders owed over $50,000 in back taxes, interest, and penalties. On June 3, 1993, the Internal Revenue Service issued a notice of levy to Midwest, attaching receivables due or to become due to Sanders under the contract. On June 7, Midwest advised Great American’s agent that there was a greater likelihood of a shortfall on the project. The agent consented that Midwest should continue paying Sanders’ payroll.
By June 23, 1993, Midwest had paid $395,930 to or on behalf of Sanders. Sanders’ outstanding obligations incurred through June 4 totalled $126,947. The total of these amounts, $522,877, exceeded the subcontract price by $30,126. On June 28, in a letter drafted by Midwest’s counsel, Sanders declared itself in default. Sanders requested that Great American perform its obligations under its bonds. On the same day, Great American consented that Midwest should continue paying Sanders’ payroll, suppliers, and taxes from the subcontract funds. Afterward, Great American continued to consent to Midwest’s payment of Sanders’ payroll. As of August 30, 1993, Great American had not agreed to reimburse Midwest for payments made to Sanders’ creditors.
On March 23, 1993, E & M obtained a $7,362.24 judgment against Sanders on an unrelated matter in Missouri. The Missouri judgment was filed in Johnson County on June 4, 1993. On June 17, 1993, E & M filed a request for garnishment of wages owed to Sanders by Midwest. Midwest was served with the wage garnishment order and responded with a letter stating that it owed no wages to Sanders because Sanders was not an employee of Midwest. The letter also informed E & M that Sanders “does have subcontract agreements with Midwest Titan, Inc. at this time,” but that “[t]here are no amounts that are currently due and owing to Perry Sanders Plumbing & Heating, Inc.” After service of the garnishment order, Midwest paid some $16,000 of subcontract funds directly to Sanders. E & M did not file a reply to Midwest’s response to the wage garnishment order.
On August 10, 1993, E & M filed a request for garnishment of money or property other than wages due and owing to Sanders by Midwest. Midwest was served with the order of garnishment on August 13 and filed its answer on September 3, again stating that it did not hold any money due and owing to Sanders. Between August 13 and September 3, Midwest paid out on Sanders’ behalf approximately $8,000 of the remaining subcontract funds.
In its reply, E & M alleged that Midwest’s answer failed to disclose that it had been making payments directly to Sanders’ employees and suppliers and that Midwest held funds to be paid to Sanders.
On the day of the trial, Great American moved to intervene in the proceeding. Great American alleged that after Sanders’ default on the subcontract with Midwest, Great American commenced performing under its bond. Great American alleged that it was entitled to the remaining subcontract funds held by Midwest.
At trial, E & M and Midwest agreed that an evidentiary hearing was unnecessary and stipulated to the facts set out in the court file, contract documents, and correspondence. E & M argued that it was entitled to judgment because Midwest’s answers to the garnishment orders were false in that they failed to disclose the existence of Great American’s claim to the contract funds. Midwest argued that it held no money due and owing to Sanders because Sanders was in default and Great American was entitled to the remaining subcontract funds.
The trial court entered judgment in favor of E & M for $7,362.24 based on a finding that Midwest’s answer to the second garnishment order was inaccurate because it did not disclose the existence of Great American’s claim to the subcontract funds.
Midwest contends that the trial court erred in entering judgment against it for filing an insufficient answer to the second garnishment order. The trial court found, in part, that Midwest conceded that if its answers were inaccurate, judgment should be entered against it. We do not construe counsel’s statements at trial as making that concession. Midwest’s counsel argued that Midwest owed Sanders no money because Sanders had defaulted and the surety was entitled to any remaining contract funds. What counsel conceded was that if the court found Sanders was not in default, Midwest held funds due and owing to Sanders and Midwest “probably answered the garnishment wrong.” Counsel merely conceded that if Midwest lost on the merits, judgment should be entered against it.
The trial court relied on Railway Co. v. Bowman, 95 Kan. 5, 147 Pac. 813 (1915), and Lumber Co. v. Bank, 63 Kan. 768, 66 Pac. 1024 (1901).
In Lumber Co. v. Bank, the garnishee answered by simply denying all liability and did not disclose that it held the money sought for the benefit of a third-party claimant. The third party intervened, claiming the money. The court reversed a judgment in favor of the garnishee, stating:
“It is the duty of one summoned in garnishment, holding property in the name of the defendant debtor, but having notice of the claim of a third party to the same, to disclose, by its answer, the name and post-office address of such claimant, the fact that such claim is made, and the nature of such claim so far as known to the garnishee, in order that such claimant may be interpleaded and the garnishee be relieved from liability by delivery of the property to the officers of the court, as provided by statute.” 63 Kan. 768, Syl. ¶ 1.
The court held in Lumber Co. v. Bank that a garnishee who failed to disclose a third party’s claim in its answer could not escape liability to the plaintiff based on the third party’s claim, if revealed at trial that it was liable to the defendant. 63 Kan. at 771-72. The court followed Lumber Co. v. Bank in Railway Co. v. Bowman, stating that “good faith toward the court and neutrality between the litigants required [the garnishee] to set forth specifically his relation to the money in his hands.” 95 Kan. at 7. See Harwi v. Klippert, 67 Kan. 743, 74 Pac. 254 (1903).
In both cases, the court relied on the statutes then governing garnishment. Those statutes provided two ways to answer a garnishment order. They provided that “if the truth warrant,” the garnishee could file an affidavit of nonliability, simply stating that the garnishee owed nothing and had no property belonging to the defendant or in which the defendant had an interest. G.S. 1901, § 4638; G.S. 1915, § 7125. A garnishee who did not file an affidavit of nonliability was required to file a more detailed affidavit. The statutes provided that the garnishee could disclose the names and residences of any other persons claiming the money or property and the nature of their claims. The garnishee was required to disclose the amount of indebtedness to the defendant and all the facts and circumstances necessary to a complete understanding of the indebtedness. In addition, the statutes provided that a garnishee who was in doubt respecting liability could set forth the relevant facts and circumstances and submit the question to the court. G.S. 1901, § 4639; G.S. 1915, § 7126.
The garnishment statutes are considerably different now. K.S.A. 1993 Supp. 60-718(a) includes a form for answering orders of garnishment of money or property other than wages. An answer is deemed sufficient if it is “substantially” in the statutory form and contains “not less than that prescribed” in the form. Subsection (b) contains parallel provisions for answering orders for garnishment of wages.
The form for an answer to an order of garnishment of money or property other than wages requires a sworn statement from the garnishee that:
“(1) (Money or indebtedness due) I hold money or am indebted to the defendant, other than for earnings due and owing defendant, as of the date of this answer, in the following manner and amounts:__
“(2) (Personal property in possession) I have possession of personal property, goods, chattels, stocks, rights, credits, or effects of the defendant, as of the date of this answer, described and having an estimated value as follows:_ __” K.S.A. 1993 Supp. 60-718(a).
There is no longer an express provision requiring a more detailed affidavit or answer when liability is doubtful or disputed. See Washburn v. Andrew, 209 Kan. 436, 439, 496 P.2d 1367 (1972). There is also no requirement for disclosing the claims of third parties to the money or property sought. The form does require a sworn statement that the garnishee has not delivered any money or property other than earnings to the defendant since receiving the order and will hold the money or property pending further order of the court.
K.S.A. 1993 Supp. 60-718(c) provides that if a garnishee fails to answer an order of garnishment “within the time and manner herein specified,” the court may grant judgment against the garnishee. However, 60-718 has been interpreted liberally. In McCreery v. McCreery, 210 Kan. 99, 100, 499 P.2d 1118 (1972), the garnishee answered by crossing out the form language stating that the garnishee has delivered no money or property to the defendants since receiving the order and stating that the amount it owed was “None.” The answer was verified as required by the statute. In reversing a default judgment entered against the garnishee for failure to answer, the court stated:
“We can see justification for a judgment in favor of the plaintiff when the garnishee completely ignores the garnishment order .... We can see no justification for employing the harsh results of substituting one debtor for another after a garnishee has submitted himself to the jurisdiction of the court. In this situation, even though a garnishee fails to supply information of a material nature to the interests of the plaintiff, the plaintiff has remedies and the court has jurisdiction to enforce those remedies.” 210 Kan. at 102-03.
In addition, the court stated:
“[A]s long as a garnishee submits himself to the jurisdiction of the court the discovery provisions of the code give ample tools to the plaintiff to protect and enforce all rights intended to be provided to support his interests. Whenever a garnishee makes an appearance in an action no judgment should be entered against him without providing an opportunity to fully answer and present his defenses.” 210 Kan. at 104.
See Jones v. Main, 196 Kan. 91, 410 P.2d 303 (1966); Schwerdt v. Speedway Festivals, Inc., 7 Kan. App. 2d 40, 637 P.2d 477 (1981).
Under Lumber Co. v. Bank and Railway Co. v. Bowman, an insufficient answer of a garnishee did not entitle the plaintiff to judgment. In both cases, there was a trial on the merits. In Lumber Co. v. Bank, the court held that the garnishee could not raise a third party’s claim that was not disclosed by the answer but would be liable to the plaintiff “in the event the trial upon the issue joined should disclose any liability to defendant.” 63 Kan. at 771-72.
The trial court erred in entering judgment against Midwest based on the sufficiency of its answer. In denying that it owed any money to Sanders, Midwest disclosed all that the statutory form required. There is no requirement that the answer to a garnishment order disclose the existence of a third party’s claim or other basis for the denial of liability. The availability of discovery is sufficient to enable plaintiffs to learn the basis of a garnishee’s denial.
Midwest next contends that it was entitled to judgment on the merits because Sanders was in default on its contract with Midwest. E & M argues that the trial court ruled on the merits by making an implied finding that Midwest failed to sustain its burden of proof. E & M’s argument is not supported by the record. The trial court did not rule on the merits but expressly based its ruling on the insufficiency of Midwest’s answer.
The decision of the trial court is reversed, and the case is remanded for trial on the merits. | [
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Gernon, J.:
Kevin E. Gray appeals the trial court's dismissal of his K.S.A. 60-1501 petition in which he alleged a violation of his constitutional right to due process.
Gray is an inmate at the El Dorado Correctional Facility. Gray was placed in administrative segregation, and, 13 minutes later, an administrative segregation report (ASR) was filed, stating that Gray was placed in administrative segregation “pending the results of an investigation.” The ASR stated that Gray was placed in administrative segregation before he received a report as to the basis for his segregation in order to “prevent any disruptive behavior” and that a pre-segregation report hearing had been held. All of the above events occurred within a three-hour period.
Kansas law empowers the Department of Corrections (DOC) to promulgate regulations relating to those in the custody of the DOC. Among the regulations in effect at the time of Gray’s incarceration were regulations covering the physical control of inmates within institutions run by the DOC. Such physical control, termed segregation, is divided into two types: administrative and disciplinary.
Disciplinary segregation is used as punishment. K.A.R. 44-14-201; see K.S.A. 1994 Supp. 75-5252.
Administrative segregation is used where, in the view of the corrections officials, segregation is necessary for some reason other than punishment: for example, to prevent communication between prisoners; to prevent the intimidation of a prisoner who is a witness or an accuser; to prevent any further disruption or danger to any inmate; for prehearing detention on a disciplinary matter; to prevent the spread of disease; to separate those who are suicidal or have a history of physical or sexual attacks or mental problems; to separate a potentially dangerous cellmate; to prevent escape; or when an inmate engages in an activity which presents a disruption, creates a security risk, or is a danger to the inmate or others. K.A.R. 44-14-302.
In Gray’s case, the following facts were used to support his continuing segregation after a second ASR was filed two days after he was placed in administrative segregation:
“INMATE GRAY ON 1/6/93 AT APPROXIMATELY 0850 HRS. ENTERED INTO A GENERAL POPULATION CELLHOUSE TO WHICH HE WAS NOT ASSIGNED. THE INVESTIGATION OF THIS MATTER HAS NOT REVEALED THE REASON FOR THIS INMATE’S BEING IN THE UN ASSIGNED CELLHOUSE. DUE TO THESE FACTS INMATE GRAY POSES A THREAT TO THE SECURITY AND CONTROL OF THIS FACILITY.”
Gray remained in administrative segregation from January 6, 1993, until February 2, 1994. During that period of time, the Administrative Segregation Review Board (ASRB) reviewed Gray’s status and issued reports 21 times. The ASRB report shows that Gray appeared before the ASRB on January 7, 1993, and at all of the reviews from March 11 through November 12, 1993. Throughout this period of time, Gray’s status remained “other security risk” pursuant to K.A.R. 44-14-302(g).
Gray filed a habeas corpus petition after exhausting his administrative remedies. The district court appointed counsel and issued a show cause order in April 1994. The appellees filed a motion to dismiss pursuant to K.S.A. 60-212(b)(6).
At the show cause hearing, the district court found that “as to whether minimal due process requirements were adhered to, . . . this matter was investigated under pending investigation under sections ... (a) (c) (d) and (f), whereby the inmate can be placed into administrative segregation on an emergency finding”; that “within 48 hours thereto of the incident a pre-segregation hearing was held whereby reason for confinement was brought before the inmate”; and that “the correctional facility was in compliance thereto.” Finding that no evidentiaiy hearing was necessary, the district court granted the motion to dismiss. The journal entry merely states that the court found that all procedures were followed by the defendants and that Gray’s due process rights were not violated. Gray appeals.
Two questions are raised by Gray. The first concerns the initial placement of Gray in administrative segregation and whether he had a liberty interest which is protected by constitutional due process. The other question involves the dismissal of his petition without an evidentiary hearing.
Framed more specifically, the first question is whether an inmate has a liberty interest in remaining in the general prison population.
Gray takes issue with his initial placement in administrative segregation. Gray contends that he was placed in administrative seg regation without any meaningful pre-segregation hearing, without sufficient notice, and without sufficient cause under the existing regulations. Although Gray only incidentally mentions the constitutional issue, the due process issue is the gravamen of his argument and, therefore, must be addressed.
This court, in Swisher v. Hamilton, 12 Kan. App. 2d 183, 184-85, 740 P.2d 95, rev. denied 242 Kan. 905 (1987), stated:
“Proceedings on a petition for writ of habeas corpus filed pursuant to K.S.A. 60-1501 are not subject to the ordinary rules of civil procedure. According to K.S.A. 60-1505(a), ‘[t]he judge shall proceed in a summary way to hear and determine the cause.’ In addition, the summary dismissal of a habeas corpus petition has been affirmed in a number of cases. See Breier v. Raines, 221 Kan. 439, 559 P.2d 813 (1977); Highman v. Marquez, 5 Kan. App. 2d 158, 160, 613 P.2d 394 (1980). These cases reflect adherence to the principle that the maintenance and administration of penal institutions are executive functions and, before courts will interfere, the institutional treatment must be of such a nature as to clearly infringe upon constitutional rights, be of such character or consequence as to shock the general conscience, or be intolerable to fundamental fairness. Levier v. State, 209 Kan. 442, 451, 497 P.2d 265 (1972). Therefore, to avoid summary dismissal of a K.S.A. 60-1501 petition, allegations must be made of shocking and intolerable conduct or continuing mistreatment of a constitutional stature. See, e.g., Wright v. Raines, 1 Kan. App. 2d 494, 499-501, 571 P.2d 26, rev. denied 222 Kan. 749 (1977), cert. denied 435 U.S. 933 (1978) (challenge to hair length regulations where petitioner alleged to have legitimate belief in an established religion that prohibits cutting hair).”
This issue was considered by the United States Supreme Court in Hewitt v. Helms, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983). Helms had been placed in administrative segregation after a prison riot, pending an investigation into his role in the riot. Helms claimed that his confinement in administrative segregation violated his constitutional rights to due process. The United States Court of Appeals for the Third Circuit held that Pennsylvania state law had created a protected liberty interest requiring minimal due process. The United States Supreme Court reversed, agreeing that the liberty interest had been created but finding that the process received by Helms was sufficient to meet due process standards.
The Hewitt Court noted that liberty interests requiring protection under the Due Process Clause may arise from the Due Process Clause itself or from state laws. 459 U.S. at 466. “ ‘[A]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.’ ” 459 U.S. at 468 (quoting Montanye v. Haymes, 427 U.S. 236, 242, 49 L. Ed. 2d 466, 96 S. Ct. 2543 [1976]). Under this standard, the Court held that transferring an inmate to a more restrictive setting within the prison did not give rise to an interest independently protected by the Due Process Clause. 459 U.S. at 468.
However, the Court did find that the State had created a protected liberty interest. Because the state regulations had gone beyond simple procedural guidelines and used language of an “unmistakably mandatory character, requiring that certain procedures ‘shall,’ ‘will,’ or ‘must’ be employed . . . and that administrative segregation will not occur absent specified substantive predicates,” the state regulations had created a protected liberty interest in not being placed in administrative segregation arbitrarily. 459 U.S. at 471-72. The relevant Pennsylvania regulations required that after investigation, “ ‘[i]f no behavior violation has occurred, the inmate must be released.’ ” 459 U.S. at 470 n.6.
Having found a state-created liberty interest, the Court examined the question of whether the process afforded to Helms had satisfied the minimum requirements of the Due Process Clause. Such requirements, the Court found, were fact specific and flexible. The Court held that prison officials are “obligated to engage only in an informal, nonadversary review of the information supporting respondent’s administrative confinement, including whatever statement respondent wished to submit, within a reasonable time after confining him to administrative segregation.” 459 U.S. at 472. This informal, nonadversarial procedure is sufficient for both the decision that the inmate poses a security threat and the decision to place the inmate in administrative segregation. The inmate need only receive some notice of the charges against him or her and an opportunity to present his or her views to the prison official. 459 U.S. at 476.
The Hewitt Court stated as follows:
“Nonetheless, in this case the Commonwealth has gone beyond simple procedural guidelines. It has used language of an unmistakably mandatory character, requiring that certain procedures ‘shall,’ ‘will,’ or ‘must’ be employed, [citation omitted], and that administrative segregation will not occur absent specified substantive predicates — viz., ‘the need for control,’ or ‘the threat of a serious disturbance.’ Petitioners argue, with considerable force, that these terms must be read in light of the fact that the decision whether to confine an inmate to administrative segregation is largely predictive, and therefore that it is not likely that the State meant to create binding requirements. But on balance we are persuaded that the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest.” 459 U.S. at 471-72.
The Pennsylvania regulations which prompted the United States Supreme Court in Hewitt to find a liberty interest had been created by the state are remarkably similar to the Kansas regulations in their word patterns and in the use of “may” and “shall.” For example, in Pennsylvania, the regulation read:
“An inmate who has allegedly committed a Class I Misconduct may be placed in Close or Maximum Administrative Custody upon approval of the officer in charge of the institution, not routinely but based upon his assessment of the situation and the need for control pending application of procedures under § 95.103 of this title.” 37 Pa. Code § 95.104(b)(1) (1978). (Emphasis added.)
The regulation went on to state:
“An inmate may be temporarily confined to Close or Maximum Administrative Custody in an investigative status upon approval of the officer in charge of the institution where it has been determined that there is a threat of a serious disturbance, or a serious threat to the individual or others. The inmate shall be notified in writing as soon as possible that he is under investigation and that he will receive a hearing . . . .” 37 Pa. Code § 95.104(b)(3) (1978). (Emphasis added.)
The Kansas regulations state in part:
“Inmates may be confined in administrative segregation for any of the following reasons or under any of the following conditions ....
“(1) Inmates may be placed in administrative segregation pending the completion of an investigation to determine whether charges should be brought.” K.A.B.. 44-14-302. (Emphasis added.)
It is inherent in the nature of the management of penal institutions that the initial discipline or administrative segregation will be a discretionary function based upon the judgment of a correctional officer. Once that decision is made in Kansas, as in Pennsylvania under the provisions in effect at the time Hewitt was decided, a host of mandatory procedures instantly attach to the process which require notifications, written reports, and continued periodic hearings for as long as an individual is in administrative segregation.
Given the similarity in language and the holding in Hewitt, we are persuaded, as was the United States Supreme Court in Hewitt, that “the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates” demands our conclusion that Kansas has created a protected liberty interest.
It is necessary for us to recognize the holding in Jones v. Marquez, 526 F. Supp. 871 (D. Kan. 1981), in which the court stated Montanye v. Haymes, 427 U.S. 236, and Meachum v. Fano, 427 U.S. 215, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976), held that
“the process protections were not triggered by a prisoner’s transfer for either administrative or disciplinary reasons to another state prison where living conditions were substantially more restrictive, in the absence of a state law or practice conditioning such transfers upon die occurrence of specified events. The Court explained:
\ . . as long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.’ Montanye v. Haymes, supra, at 242, 96 S. Ct. at 2547.
“The Court also stated:
‘Confinement in any of the State’s institutions is within the normal limits or range of custody which the conviction has authorized the State to impose. That life in one prison is much more disagreeable than in another does not in itself signify that a Fourteenth Amendment liberty interest is implicated when a prisoner is transferred to the institution with the more severe rules.'
‘[T]o hold as we are urged to do that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts.’ Meachum v. Fano, supra, 427 U.S. at 225, 96 S. Ct. at 2538. (Emphasis original).
Thus, the Court held that the federal Constitution does not, of itself, make a state prisoner’s freedom from transfer to administrative segregation a protected liberty interest, but that such an interest may be created by state law. And when a protected liberty entitlement has been created by the State, the Due Process Clause insures that the right is not arbitrarily abrogated. Meachum v. Fano, supra; Wolff v. McDonell, supra; Bills v. Henderson, 631 F.2d 1287 (6th Cir. 1980).
“These state-created liberty interests may be derived from state statute, administrative rules or established practice. In the area of entitlements claimed by prison inmates, it has been held that liberty interests may be established by prison policy statements and regulations. Bills v. Henderson, supra; see also, Twyman v. Crisp, 584 F.2d 352 (10th Cir. 1978).” 526 F. Supp. at 874-75.
The regulations in place at the time of the Jones decision have been modified to respond to the holding in Hewitt and, in our view, now recognize a liberty interest in not being placed arbitrarily in administrative segregation by using mandatory language and providing procedures for review which, if exercised, provide sufficient due process. Kansas does not have, however, a regulation which limits the time for an investigation to end or a release requirement if no behavior violation is found.
In addition, the record reflects that Gray at times refused to appear when hearings were held and did not submit statements when given the opportunity to do so.
In this case, the facts show that Gray was afforded the minimal due process required by Hewitt. Gray received an ASR on January 6, shortly after his initial placement. This ASR noted that a presegregation hearing had been conducted. On January 7, Gray was present at an ASRB hearing reviewing his placement. On January 8, another ASR was issued which gave additional reasons for Gray’s administrative segregation placement.
Not only does the conduct of the prison officials here meet Hewitt’s minimal due process requirements, but, under the facts of this case, Gray’s petition does not allege conduct which overcomes the hurdle set by Swisher, 12 Kan. App. 2d 183. The conduct by prison officials here is not “of such a nature as to clearly infringe upon constitutional rights, . . . [or] of such character or consequence as to shock the general conscience, or . . . [appear] intolerable to fundamental fairness.” 12 Kan. App. 2d at 184.
Gray s petition fails to allege treatment in violation of Hewitt’s minimal due process requirements and fails to specifically allege the constitutional mistreatment required under Swisher. He received ongoing reviews, and all recommendations of the ASRB were reviewed by the warden. Under these facts, we find no error in dismissing Gray’s petition.
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Brazil, J.:
James Payne appeals from the dismissal of his petition for writ of habeas corpus. Payne challenged a Kansas Parole Board (KPB) decision which denied him parole. We affirm.
In 1975, Payne was convicted upon his guilty pleas of one count of first-degree murder, one count of Kidnapping, and one count of unlawful possession of a firearm. It is unclear from the record what sentence was imposed upon his convictions; however, Payne alleged in his petition that pursuant to K.S.A. 1993 Supp. 22-3717(b), he was required to serve 15 years before becoming eligible for parole. In 1988, Payne entered into an inmate program agreement with the Kansas Department of Corrections pursuant to K.S.A. 1993 Supp. 75-5210a. He successfully completed the program agreement prior to the KPB’s initial review of his case in 1990.
The KPB denied Payne’s applications for parole in 1990 and 1993. It will next review Payne’s case in 1996.
Payne first argues that K.S.A. 1993 Supp. 75-5210a is an ex post facto law as applied to him. That statute provides in part:
“(a) Within a reasonable time after a defendant is committed to the custody of the secretary of corrections, the secretary shall enter into a written agreement with the inmate specifying those educational, vocational, mental health or other programs which the secretary determines the inmate must satisfactorily complete in order to be prepared for release on parole or postrelease supervision. To the extent practicable, the agreement shall require the inmate to have made progress towards or to have successfully completed the equivalent of a secondary education before release on parole if the inmate has not previously completed such educational equivalent and is capable of doing so. The agreement shall be conditioned on the inmate’s satisfactory conduct, employment and attitude while incarcerated. If the secretary determines that the inmate’s conduct, employment, attitude or needs require modifications or additions to those programs which are set forth in the agreement, the secretary shall revise the requirements. The secretary shall agree that, when the inmate satisfactorily completes the programs required by the agreement, or any revision thereof, the secretary shall report that fact in writing to the Kansas parole board. If the inmate becomes eligible for parole or entitled to postrelease supervision before satisfactorily completing such programs, the secretary shall report in writing to the Kansas parole board the programs which are not completed.”
The Secretary of Corrections implements and monitors inmate program agreements. Program agreements become important when the KPB reviews an inmate’s case to determine if it should grant or deny parole. K.S.A. 1993 Supp. 22-3717(g) provides:
“(g) Subject to the provisions of this section, the Kansas parole board may release on parole those persons confined in institutions who are eligible for parole when: (1) The board believes that the inmate should be released for hospitalization, for deportation or to answer the warrant or other process of a court and is of the opinion that there is reasonable probability that the inmate can be released without detriment to the community or to the inmate; or (2) the secretary of corrections has reported to the board in writing that the inmate has satisfactorily completed the programs required by any agreement entered under K.S.A. 75-5210a and amendments thereto, or any revision of such agreement, and the board believes that the inmate is able and willing to fulfill the obligations of a law abiding citizen and is of the opinion that there is reasonable probability that the inmate can be released without detriment to the community or to the inmate.”
In other words, for inmates who are not eligible for parole under K.S.A. 1993 Supp. 22-3717(g)(l), successful completion of a program agreement is required before the KPB may grant parole.
The provisions of K.S.A. 1993 Supp 75-5210a, which direct the Secretary of Corrections to enter into program agreements with inmates, and K.S.A. 1993 Supp. 22-3717(g)(2), which condition the KPB’s ability to grant parole upon successful completion of a program agreement, were originally enacted in 1988. L. 1988, ch. 115, §§ 1, 6. Payne contends those provisions violate the United States Constitution’s ban on ex post facto laws found at U.S. Const., art. I, § 10 as they apply to him because the offense for which he was convicted occurred prior to 1988.
Payne’s appeal on this issue raises a question of statutory interpretation, which is a question of law. See Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). This court has unlimited review over questions of law.
For a criminal or penal law to be ex post facto it must be retrospective; that is, it must apply to events occurring prior to its enactment and it must disadvantage the offender affected by it. Lamb v. Kansas Parole Board, 15 Kan. App. 2d 606, 610, 812 P.2d 761 (1991). A statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively. State v. Sutherland, 248 Kan. 96, 106, 804 P.2d 970 (1991). An exception to this rule is that if the statutory change does not prejudicially affect the substantive rights of the parties and is merely procedural or remedial in nature, it applies retroactively. Thus, this issue becomes whether the statute is substantive criminal law which either defines a crime or involves the length or type of punishment. 248 Kan. at 106.
The language of K.S.A. 1993 Supp. 75-5210a directs the Secretary of Corrections to enter into program agreements only with newly committed inmates. In addition, because successful completion of a program agreement was not a prerequisite for parole prior to the 1988 enactments, these provisions impose new requirements for parole eligibility and, thus, cannot be considered merely procedural. For these reasons, K.S.A. 1993 Supp. 75-5210a and K.S.A. 1993 Supp. 22-3717(g)(2) do not apply retroactively and, therefore, do not violate die ban on ex post facto laws.
Despite the fact that K.S.A. 1993 Supp. 75-5210a does not apply retroactively, Payne entered into a program agreement with the Secretary of Corrections in 1988 in which he agreed to earn a G.E.D. and attend mental health and substance abuse counseling. Payne successfully completed the programs included in the agreement and now complains that he was coerced into entering the agreement based upon the Secretary’s representation that his parole eligibility would be adversely affected if he refused. While these allegations may be true, the remedy he requests, a new hearing before the KPB, is not warranted.
It is unclear what, if any, remedy would be appropriate to address the Secretary’s erroneous application of 75-5210a to Payne and other inmates whose crimes were committed prior to enactment of L. 1988, ch. 115, § 6. However, the KPB did not pass Payne for parole because of his performance under the program agreement. Additionally, the allegations in Payne’s petition do not indicate that he has suffered any adverse consequences as a result of earning his G.E.D. and receiving mental health and substance abuse counseling pursuant to the program agreement. For these reasons, it is not necessary to remand the matter to the KPB for a new parole hearing as requested in Payne’s petition.
Payne also argues that the KPB breached the program agreement because it failed to parole him even though he had successfully completed his program agreement. It should be noted that the Secretary of Corrections enters into and monitors program agreements, not the KPB. Therefore, there can be no claim that the KPB breached the program agreement.
Payne contends language contained in the initial program agreement constituted a promise that he would be paroled upon successful completion of the programs included in the agreement and that the agreement was breached when he was denied parole. Payne did not provide a copy of the original program agreement. However, he did provide a copy of an amended program agreement which contained the following acknowledgement.
“I acknowledge that I have been afforded an opportunity to enter into a program agreement. I understand that my parole release is, in part, contingent upon my satisfactory completion of the programs included in my program agreement. I understand that if I decline to enter into a program agreement or to participate in programs included in the program agreement, such action will likely have an adverse affect on my chance to be granted parole.”
Clearly, the excerpted provision of the agreement is incorrect in that it suggests Payne’s parole eligibility is contingent upon completion of the programs included in the agreement. Because K.S.A. 1993 Supp. 75-5210a and K.S.A. 1993 Supp. 22-3717(g)(2) do not apply retroactively, Payne’s parole eligibility was not contingent upon successful completion of the program agreement. However, the excerpted provision does not constitute a promise that Payne would be granted parole upon completion of the program agreement. It clearly states ‘T understand that my parole release is, in fart, contingent upon my satisfactory completion of the programs included in my program agreement.” (Emphasis added.)
In addition, the Secretary of Corrections has no authority to promise that an inmate will be granted parole. The KPB has sole authority to grant or deny parole and is vested with broad discretion in how it determines if an inmate will be paroled. K.S.A. 1993 Supp. 75-5210a(a) indicates the sole obligation of the Secretary of Corrections upon entering into a program agreement is to inform the KPB that an inmate has completed the programs included in the agreement.
Though Payne’s petition alleges that his program agreement contained language which incorrectly suggested his parole eligibility would depend in part upon completion of the agreement, this does not warrant remanding the matter for a new hearing before the KPB. The KPB did not pass Payne for parole because of his performance under the program agreement. Even if K.S.A. 1993 Supp. 22-3717(g)(2) applied to Payne, the KPB is not required to grant parole upon successful completion of a program agreement. K.S.A. 1993 Supp. 22-3717(g)(2), (k). Rather, the final determination is in the discretion of the KPB. The only instance in which the KPB must grant parole is in the limited circumstance where it has, in the past, denied parole “only because of a failure to satisfactorily complete” some or all of the programs included in a program agreement. K.S.A. 1993 Supp. 22-3717(k). In this situation, the KPB “shall grant parole upon the secretary’s certification that the inmate has successfully completed such programs.” K.S.A. 1993 Supp. 22-3717(k).
Finally, Payne argues that the KPB did not offer sufficient reasons for denying his parole. The trial court determined that the KPB articulated sufficient reasons to justify denying parole for Payne and dismissed the habeas corpus petition for failure to state a claim for which relief could be granted. Payne alleges that his petition did state a claim for which relief could be granted. He alleges that the provisions of K.S.A. 1993 Supp. 75-5210a and K.S.A. 1993 Supp. 22-3717 concerning program agreements create a liberty interest in being granted parole upon completion of a program agreement. Interestingly, this argument seems to contradict his initial argument that K.S.A. 1993 Supp. 22-3717 was an ex post facto law.
First, whether the provisions of K.S.A. 1993 Supp. 22-3717 and K.S.A. 1993 Supp. 75-5210a concerning inmate program agreements create a liberty interest is not relevant here because those provisions do not apply retroactively to Payne. Second, as discussed above, the only situation in which the KPB is required to grant parole under the current parole statutes is when it has denied parole on a prior occasion solely because of an inmate’s failure to complete a program agreement and is informed by the Secretary of Corrections that the inmate has subsequently completed the program agreement. K.S.A. 1993 Supp. 22-3717(k).
The KPB denied parole in 1990 (1) because it did not feel that Payne was ready and able to assume the obligations of a law-abiding citizen, (2) because of the serious nature of the crime for which he was convicted, and (3) because individuals had objected at the parole hearing. In 1993, the KPB offered similar reasons, including the serious and violent nature of the crime and individual objections. Payne was not denied parole because he failed to complete a program agreement.
A habeas corpus action is the appropriate procedure for reviewing decisions of the parole board. However, because parole is a privilege, a matter of grace exercised by the KPB, this court’s review of the denial of parole is limited to whether the KPB complied with applicable statutes and whether its action was arbitrary and capricious. Lamb v. Kansas Parole Board, 15 Kan. App. 2d 606, Syl. ¶ 3.
Payne does not deny that he received notice of the reasons why he was denied parole. The reasons given by the KPB for its denial of parole are consistent with those approved by the Supreme Court in Gilmore v. Kansas Parole Board, 243 Kan. 173, 756 P.2d 410, cert. denied 488 U.S. 930 (1988). The circumstances of the offense of the inmate and the comments of the victim, the victim’s family, and the public are specifically listed as factors which the KPB must consider at the parole hearing. K.S.A. 1993 Supp. 22-3717(h)(2). Here, the KPB offered specific reasons for denying parole and in so doing complied with K.S.A. 1993 Supp. 22-3717(k), which requires the KPB to state in detail specific reasons for not granting parole.
Where it appears beyond a doubt that a petitioner can prove no set of facts which would entitle the petitioner to relief, a trial court may summarily dismiss a habeas corpus petition for failure to state a claim for which relief could be granted. Shepherd v. Davies, 14 Kan. App. 2d 333, 335, 789 P.2d 1190 (1990). Payne s petition did not allege any facts upon which the trial court could grant Payne the relief requested. The trial court did not err in summarily dismissing the petition.
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Briscoe, C.J.:
George Thompson appeals the dismissal of his action against Founders Group International, Inc., (Founders) and Continental Replacement, Inc. of Tampa (Continental). Thompson filed his action against these two Florida-based corporations in the District Court of Johnson County, Kansas. He alleged a variety of claims, including breach of contract, fraudulent misrepresentation, and violation of the Kansas Consumer Protection Act. The monetary relief he requested was less than $50,000, and the claims alleged were based solely upon state law. The district court dismissed the action after concluding the forum-selection clause in the franchise agreement between Thompson and Continental required that “all actions relating to the contract must be filed in Florida.”
Thompson owns and operates a jewelry business in Overland Park, Kansas. Thompson entered into a franchise agreement with Continental whereby Continental was to provide Thompson with insurance company referrals for replacement of lost jewelry. Founders, acting on behalf of Continental, allegedly solicited Thompson regarding the Continental franchise. Founders allegedly represented to Thompson that purchase of the franchise would be a “no-lose” situation and that Thompson would have all of the State Farm Insurance referral business in the greater Kansas City area. When Continental and Founders failed to refer any significant jewelry replacement business to Thompson, he brought this action in the Johnson County District Court to recover the franchise fee of $21,900 and other compensatory damages, for rescission of the franchise agreement, and for other relief.
The sole issue on appeal is whether the district court erred in its interpretation of the forum-selection clause. The forum-selection clause at issue provides:
“The parties to this Agreement agree that jurisdiction and venue of any action brought pursuant to this Agreement, to enforce the terms thereof or otherwise with respect to the relationships between the parties created or extended pursuant hereto, shall properly he in the Circuit Court of the Thirteenth Judicial Circuit of the United States District Court for the Middle District of Florida, Tampa Division.”
The court found that the parties intended that the last phrase in the foregoing paragraph read: “Circuit Court of the Thirteenth Judicial Circuit or the United States District Court for the Middle District of Florida, Tampa Division.” It also found the paragraph required that an action could only be brought in one of those two forums. Thompson specifically argues the clause is not applicable to its action against either Founders or Continental, the clause is ambiguous, and the clause does not mandate that venue and jurisdiction are proper only in Florida.
Both Florida and Kansas courts have given effect to forum-selection clauses. See Manrique v. Fabbri, 493 So. 2d 437 (Fla. 1986); Vanier v. Ponsoldt, 251 Kan. 88, 833 P.2d 949 (1992). When interpreting a forum-selection clause, courts are construing a provision or provisions of a written contract to detennine what meaning was intended and conveyed by the language the parties used. 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).
1. Does the forum-selection clause apply to both defendants and to claims that are independent from the written contract?
The forum-selection clause states that it applies to “any action brought pursuant to this Agreement, to enforce the terms thereof or otherwise with respect to the relationships between the parties created or extended pursuant hereto.” Founders is not a party to the contract. The claims against Founders should not have been dismissed because they are not covered by the forum-selection provision contained in the contract between Thompson and Continental.
Continental argues the applicability of the clause to Founders should not be considered on appeal because the issue was not raised below, citing Akandas, Inc. v. Klippel, 250 Kan. 458, 472, 827 P.2d 37 (1992). The issue sought to be raised in Akandas was unique from the contract construction issues raised on appeal. In the present case, the issue of whether the forum-selection clause applies to Founders arises inherently when this court is asked to construe the agreement. Therefore, this court can determine whether the forum-selection clause is applicable to Founders.
Thompson also argues the case against Continental should not have been dismissed because the allegations in Thompson’s pe tition were not brought pursuant to the written contract or to enforce its terms. Thompson first alleges defendants breached a warranty that Thompson could recoup his investment on demand. This alleged warranty is not included in the written agreement. He also alleges defendants made fraudulent representations that induced him to enter into the agreement with Continental. By its nature, this allegation is independent from the written contract. The final count of Thompson’s petition was that defendants violated the Kansas Consumer Protection Act. Here, too, this allegation is brought pursuant to Kansas law and not pursuant to the agreement.
Although the argument that the clause has no applicability to claims that are independent from the’written contract has some appeal, the written contract is very broadly worded. It seeks to control all agreements between the parties and the forum-selection clause seeks to govern any action brought pursuant to the agreement to enforce not only the terms of the agreement but any action brought to address the relationships between the parties “created or extended” pursuant to the written agreement. Because the written agreement is the culmination of negotiations between Thompson and Continental, and Thompson’s allegations relate to those negotiations, the forum-selection clause is written broadly enough to encompass these claims.
II. Is the forum-selection clause ambiguousP
Thompson argues the language in the clause is ambiguous because it states that venue is proper in a court that does not exist: the Circuit Court of the Thirteenth Judicial Circuit of the United States District Court for the Middle District of Florida, Tampa Division. Thompson then argues even if such a federal court exists, it could not have jurisdiction because there is no federal question at issue and the action concerns less than $50,000. See 28 U.S.C. §§ 1331, 1332 (1988). Thompson argues the entire paragraph should be stricken because a written instrument is construed against the party who drafted it, in this case Continental. See Wood River Pipeline Co. v. Willbros Energy Services Co., 241 Kan. 580, 586, 738 P.2d 866 (1987).
“Ambiguity in a written instrument does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning.” Hall v. Mullen, 234 Kan. 1031, 1037, 678 P.2d 169 (1984). Although there is no Circuit Court of the Thirteenth Judicial Circuit of the United States District Court for the Middle District of Florida, Tampa Division, there is a Circuit Court of the Thirteenth Judicial Circuit of Florida, and there is a United States District Court for the Middle District of Florida, Tampa Division. The parties, at the very least, intended that suit was proper in either of those two forums. The district court’s interpretation of this phrase is logical. Usage of the word “of” rather than “or” was most probably the result of a typographical error.
III. Does the forum-selection clause mandate that suit be brought only in Florida?
The forum-selection clause states “any action brought pursuant to this Agreement . . . shall properly lie” in either of the two named Florida courts. Thompson argues this language is permissive as it simply states that an action brought in Florida would be proper. Thompson argues the clause does not prevent his bringing suit in Kansas.
The most recent Kansas case to interpret a forum-selection clause is Vanier, 251 Kan. 88. The forum-selection clause in Vanier was specific in that it stated: “At the option of Seller, jurisdiction and venue for any dispute arising under or in relation to this contract shall he only in the Seller’s state and county as set forth in paragraph I above [Saline County, Kansas].” 251 Kan. at 94. The court held that defendant William Ponsoldt had consented to jurisdiction in the District Court of Saline County, Kansas. In reaching this conclusion, the court reviewed the relevant case law pertaining to forum-selection clauses:
“The United States Supreme Court held a contractual forum-selection clause valid in The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 32 L. Ed. 2d 513, 92 S. Ct. 1907 (1972). In The Bremen, Zapata, a Houston-based American corporation, contracted with Unterweser, a German corporation, to tow Zapata’s ocean-going drilling rig from Louisiana to a point off Italy in the Adriatic Sea. The contract contained the following provision: ‘Any dispute arising must be treated before the London Court of Justice.’ When a severe storm damaged tire drilling rig, Zapata filed a suit in admiralty in the United States District Court in Florida. 407 U.S. at 2-4. The district court denied Unterweser’s motion to stay the Florida suit pending resolution of the controversy by the High Court of Justice in London. 407 U.S. at 6.
“Historically forum-selection clauses were found to be contrary to public policy and, therefore, unenforceable. 407 U.S. at 9. The United States Supreme Court, however, noted a trend toward accepting forum-selection clauses. The Court stated:
‘The threshold question is whether [the district court] should have exercised its jurisdiction to do more than give effect to the legitimate expectations of the parties, manifested in their freely negotiated agreement, by specifically enforcing the forum clause.
‘There are compelling reasons why a freely negotiated private international agreement, unaffected by fraud, undue influence, or overweening bargaining power, such as that involved here, should be given full effect.’ 407 U.S. at 12-13.
“The Court concluded the forum-selection clause should have been enforced unless Zapata could clearly show ‘enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.’ 407 U.S. at 15.
“The rule announced in The Bremen was applied in Carnival Cruise Lines v. Shute, 499 U.S. [585], 113 L. Ed. 2d 622, 111 S. Ct. 1522 (1991). There, the Court again addressed the enforceability of a forum-selection clause in a contract between a cruise line and its passengers. The clause appeared on the face of each ticket and stated in part: ‘ “It is agreed by and between the passenger and the Carrier that all disputes and matters whatsoever arising under, in connection with or incident to this Contract shall be litigated, if at all, in and before a Court located in the State of Florida, USA, to the exclusion of the Courts of any other states or country.” ’ 113 L. Ed. 2d at 628. Upon finding the passengers had been given notice of the forum-selection provision and that their accession to the forum-selection clause was not obtained by fraud or overreaching, the Court held the exercise of jurisdiction by the passengers’ state, Washington, was improper. 113 L. Ed. 2d at 633. The application of the rule in The Bremen has not been limited to admiralty cases. [Citations omitted.]
“In National Equip. Rental, Ltd. v. Taylor, 225 Kan. 58, 587 P.2d 870 (1978), the plaintiff, a New York resident, took a default judgment in New York against the defendant, a Kansas resident. When the plaintiff attempted to enforce the judgment in Kansas, the trial court dismissed the action upon finding there were ‘ “insufficient contacts with the Defendant for the New York court to acquire jurisdiction.” ’ 225 Kan. at 58. The lease agreement between the plaintiff and the defendant provided in part: ‘ “Lessee agrees that all actions or proceedings arising directly or indirectly from this lease shall be litigated only in courts having situs within the State of New York and the Lessee hereby consents to the jurisdiction of any local, state or federal court located within the State of New York.” ’ 225 Kan. at 60. On appeal, we found the transaction bore a reasonable relationship to New York and stated the ‘[pjarties had the right to agree that New York would be the forum for determining any disputes arising out of the contract.’ 225 Kan. at 61. Therefore, the trial court’s analysis of personal jurisdiction based upon sufficient contacts was erroneous. Ultimately, however, we found New York did not have personal jurisdiction over the defendant because he had not received proper notice.
“We find the forum-selection clause fair and reasonable. The forum selected is the home of one of the parties to the contract and, thus, has a reasonable relationship to the transaction. We hold Ponsoldt voluntarily consented to personal jurisdiction in Saline County, Kansas, by entering into the installment purchase and security agreement with Vanier.” 251 Kan. at 99-101.
In Milk N' More, Inc. v. Beavert, 963 F.2d 1342 (10th Cir. 1992), the Tenth Circuit Court of Appeals considered a clause similar to the clause at issue here. The clause construed in Milk W More stated that “venue shall be proper under this agreement in Johnson County, Kansas.” 963 F.2d at 1343. Milk ‘N’ More brought suit in Johnson County against Beavert for breach of contract. Beavert removed the case to federal district court, and the federal district court remanded it to Johnson County. Beavert appealed. The Tenth Circuit stated that waiver of one's statutory right to remove a case from state to federal court must be clear and unequivocal. Any ambiguity should be construed against the drafter, which in that case was Milk N' More. 963 F.2d at 1346.
“We are nevertheless persuaded that the [federal] district court here correctly construed and applied the clause. Such clauses are prirm facie valid and should be enforced unless enforcement is shown by the resisting party to be unreasonable under the circumstances. The Bremen, 407 U.S. at 10, 92 S. Ct. at 1913. Here the provision that Venue shall be proper under this agreement in Johnson County, Kansas’ seems reasonably clear and the wording strongly points to the state court of that county. The use of the word ‘shall’ generally indicates a mandatory intent unless a convincing argument to the contrary is made. [Citations omitted.]” 963 F.2d at 1346.
See Intermountain Systems, Inc. v. Edsall Constr. Co., 575 F. Supp. 1195, 1198 (D. Colo. 1983).
Continental cites Milk N' More in support of its argument that the clause at issue is mandatory and provides that venue and ju risdiction are proper only in Florida. It further argues that paragraph 19 of the agreement, which states that Florida law applies to the agreement, lends support to its position. Continental contends that unless the clause is interpreted in this manner, it is meaningless, citing Sterling Forest Associates, Ltd. v. Barnett-Range Corp., 840 F.2d 249 (4th Cir. 1988).
In Sterling Forest Associates, the court considered the following clause: “This Agreement shall be construed and enforced in accordance with the laws of the State of California and the parties agree that in any dispute jurisdiction and venue shall be in California.” 840 F.2d at 250. After reviewing The Bremen and its progeny, the court stated:
“The district judge concentrated on the word ‘be’ rather than the word ‘shall.’ He said that because the verb ‘to be’ frequently is used to express existence, the clause now in question means only that ‘jurisdiction and venue shall exist in California’ and ‘elsewhere as well.’ The problem with this interpretation is that it makes the forum selection clause meaningless and redundant. Because Barnett is a California corporation, federal jurisdiction and venue statutes provide as a matter of law that California is a proper state for suit. [Citations omitted.] It is a well established principle of contract construction that clauses which, as here, are knowingly incorporated into a contract should not be treated as meaningless, [Citations omitted.] The only meaningful reason for including the forum selection clause in the instant case was to make California jurisdiction and venue exclusive.” 840 F.2d at 251.
The court listed a number of cases with similar clauses that were determined to be mandatory and exclusive. 840 F.2d at 252.
In Karl Koch Erecting Co. v. NY Convention Ctr. Dev., 838 F.2d 656 (2d Cir. 1988), the court examined a clause that provided “ ‘[n]o action or proceeding shall be commenced [Koch] against [NYCCDC] except in the Supreme Court of the State of New York/ ” 838 F.2d at 659. Clearly, this language is very specific and the court so held: “This language expressly forbids Koch from commencing suit in a forum other than state court.” 838 F.2d at 659. The only real question was whether the clause prevented removal by Koch to federal court. The court stated: “Indeed, the parties’ inclusion of the forum-selection clause makes little sense unless it precludes removal by Koch.” 838 F.2d at 659. The court in Milk W More keyed on this language in reach ing its conclusion that the Milk N' More forum-selection clause was mandatory, although the Milk ‘N’ More clause contained less specific language than the Koch clause. 963 F.2d at 1346.
As Thompson notes, there are cases that recognize the distinction between mandatory and permissive forum-selection clauses. See Utah Pizza Service, Inc. v. Heigel, 784 F. Supp. 835 (D. Utah 1992), and cases cited therein. In Utah Pizza Service, the clause at issue provided: “The parties agree that in the event of litigation between them, Franchise Owner stipulates that the courts of the State of Michigan shall have personal jurisdiction over its person, that it shall submit to such personal jurisdiction, and that venue is proper in Michigan.” 784 F. Supp. at 837. The court stated that a mandatory clause contains clear language showing that jurisdiction is appropriate only in the designated forum. It found the foregoing language to be permissive because nothing in the clause indicated an intent to prohibit litigation elsewhere. If the parties had desired to prohibit all litigation outside of Michigan, they could have worded the clause to specifically reflect that desire. In response to an argument that the clause would be meaningless if found to be permissive, the court stated that was not true — it guaranteed the franchiser the right to sue all franchisees in Michigan. 784 F. Supp. at 839.
Similar rationales are found in Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75 (9th Cir. 1987), and Caldas & Sons, Inc. v. Willingham, 791 F. Supp. 614 (N.D. Miss. 1992), modified on other grounds 17 F.3d 123 (5th Cir. 1994). In Hunt Wesson Foods, the court considered the following: “The courts of California, County of Orange, shall have jurisdiction over the parties in any action at law relating to the subject matter or the interpretation of this contract.” 817 F.2d at 76. The court noted:
“A primary rule of interpretation is that ‘[t]he common or normal meaning of language will be given to the words of a contract unless circumstances show that in a particular case a special meaning should be attached to it.’ 4 S. Williston, A Treatise on the Law of Contracts § 618 (W. Jaeger 3d ed. 1961).” 817 F.2d at 77.
The court then held the plain meaning of the clause was that Orange County courts had jurisdiction, but not exclusive juris diction. “Although the word ‘shall’ is a mandatory term, here it mandates nothing more than that the Orange County courts have jurisdiction.” 817 F.2d at 77.
In Caldas & Sons, the clause read: “ ‘The laws and courts of Zurich are applicable.’ ” 791 F. Supp. at 617. After extensively reviewing relevant case law, the court stated the clause was so vague as to be ambiguous. Interpreting the clause against its drafter, the court found the clause to be permissive. The court then stated that if it had found the language to be unambiguous, the result would be the same. “Although jurisdiction is specified by the phrase . . . there is nothing mandatory in the language used to denote exclusive jurisdiction.” 791 F. Supp. at 620.
After reviewing all of the cases cited above, giving particular attention to the language of the forum-selection clauses found by courts to be mandatory rather than permissive (Vanier, 251 Kan. at 94 — “venue for any dispute arising under or in relation to this contract shall lie only in the Seller’s state and county”; The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 2-4, 32 L. Ed. 2d 513, 92 S. Ct. 1907 [1972] — “Any dispute arising must be treated before the London Court of Justice”; Carnival Cruise Lines v. Shute, 499 U.S. 585, 587-88, 113 L. Ed. 2d 622, 111 S. Ct. 1522 [1991 ] — “all disputes and matters whatsoever arising under, in connection with or incident to this Contract shall be litigated, if at all, in and before a Court located in the State of Florida, USA, to the exclusion of the Courts of any other states or country”; National Equip. Rental, Ltd. v. Taylor, 225 Kan. 58, 60, 587 P.2d 870 [1978] — “all actions or proceedings arising directly or indirectly from this lease shall be litigated only in the courts having situs within the State of New York”; Sterling Forest Associates, 840 F.2d at 250 — “the parties agree that in any dispute jurisdiction and venue shall be in California”; Karl Koch Erecting Co., 838 F.2d at 659 — “[n]o action or proceeding shall be commenced . . . except in the Supreme Court of the State of New York” [emphasis added]), we do not find the Milk N’ More rationale persuasive.
Again, the forum-selection clause at issue in Milk N' More stated that “venue shall be proper under this agreement in Johnson County, Kansas.” Although the court noted that any ambiguity should be construed against the drafter, Milk ‘N’ More, it appears to have done just the opposite. It ignored the words “proper under this agreement” and interpreted the clause to read “venue shall be proper in Johnson County, Kansas.” In addition, the clause lacks any clear language to the effect that jurisdiction is appropriate only in Johnson County, Kansas. Obviously, “shall” indicates a mandatory intent, but the word must be taken in context.
The rationales of Utah Pizza Service and Hunt Wesson Foods are more persuasive. In those cases, the courts interpreted the clauses by simply giving the relevant language its plain meaning. This primary rule of interpretation is also recognized and applied in Kansas. See Wood River Pipeline, 241 Kan. at 586. In Utah Pizza Service, 784 F. Supp. at 838, the court noted that numerous courts
“have held that forum selection clauses which give a court jurisdiction without clearly making that jurisdiction exclusive are permissive rather than mandatory. The mere granting of jurisdiction is insufficient to make a clause mandatory. Additional language giving exclusive jurisdiction to the forum is required. Clauses which merely grant jurisdiction to a designated forum do not prohibit litigation in other appropriate fora.”
When the language used in the present clause is given its plain meaning, the clause is permissive and does not prevent Thompson from bringing this action in Kansas.
This interpretation does not render the clause meaningless. As in Utah Pizza Service, the clause secures the franchiser’s right to sue the franchisees in the franchiser’s forum of choice. Such a guarantee may be necessary because Thompson is a Kansas citizen with only a few contacts with Florida. The contract is performed predominantly in Kansas as that is where Thompson’s business is located, although Thompson would be required to travel to Florida for seminars. Finally, the fact that Florida law applies to the contract is not alone persuasive. As Thompson notes, Kansas courts can apply Florida law if necessary.
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|
Pierron, J.:
Michael Bell appeals from his convictions of attempted criminal trespass and stalking. He challenges the trial court’s denial of his request for a jury trial. He contends that the trial court misinterpreted K.S.A. 1993 Supp. 22-3404 by holding his request for a jury trial was untimely.
The facts in this case are simple and undisputed. The defendant was charged with one count of attempted criminal trespass, in violation of K.S.A. 1993 Supp. 21-3301 and K.S.A. 1993 Supp. 21-3721(a)(l)(B), and one count of stalking, in violation of K.S.A. 1993 Supp. 21-3438. He was arraigned in Division III of the Douglas County District Court on December 13, 1993, and entered a plea of not guilty.
On February 22, 1994, the defendant’s case was transferred to Division I of the district court for trial setting. On March 11, 1994, the case was set for trial to commence on April 11, 1994. The defendant filed a written request for a jury trial on that same day, March 11, 1994.
The defendant’s motion for a jury trial was considered on March 31, 1994. The trial court denied the defendant’s request for a jury trial, concluding that the request was untimely. The court apparently found that the request for a jury trial should have been filed within seven days of February 22, 1994, the day the defendant was notified of the transfer to Division I.
On April 11, 1994, the defendant was tried by the court sitting without a jury. He was found guilty of one count of attempted criminal trespass and one count of stalking. Four days later, on April 15, 1994, the defendant filed a notice of appeal. He was subsequently sentenced to three months for the stalking and one month for fhe attempted criminal trespass. The sentences were to run consecutively. The defendant has apparently served the sentence.
Even if the issue is not raised by either party, “[w]hen the record discloses a lack of jurisdiction, it is the duty of the court to dismiss the appeal.” State v. Rios, 19 Kan. App. 2d 350, 351, 869 P.2d 755 (1994). Thus, it is necessary to address a potential obstacle to this court’s jurisdiction.
K.S.A. 22-3602 provides in part:
“Except as otherwise provided, an appeal to the appellate court having jurisdiction of the appeal may be taken by the defendant as a matter of right from any judgment against the defendant in the district court and upon appeal any decision of the district court or intermediate order made in the progress of the case may be reviewed.” (Emphasis added.)
“For purposes of K.S.A. 22-3602(a), ‘judgment’ requires both a conviction and a sentence.” Rios, 19 Kan. App. 2d at 352. In City of Topeka v. Martin, 3 Kan. App. 2d 105, 590 P.2d 106 (1979), this court held that it was without jurisdiction to consider an appeal filed before sentencing because “[a]n order finding a defendant guilty is not an appealable order.” This position was reaffirmed in State v. Wilson, 15 Kan. App. 2d 308, 310, 808 P.2d 434 (1991): “The judgment in a criminal case becomes effective, and the time period for appeal starts running, when the defendant’s sentence is pronounced from the bench.”
The defendant’s notice of appeal was filed on April 15, 1994. He was not sentenced until May 5, 1994. Therefore, his notice of appeal was premature. Absent an exception, this court would be without jurisdiction to consider defendant’s appeal.
In Rios, this court created an exception to the jurisdictional barrier caused by a premature notice of appeal. The court found that under certain circumstances, “interests of fundamental fairness dictate that [a defendant] should not be penalized for the mistakes of his attorney.” 19 Kan. App. 2d at 354.
To invoke the Rios exception, three things must be shown: “(1) the trial court furnishes a defendant with an attorney who fails to properly perfect the appeal; (2) the State fails to raise the jurisdiction issue; and (3) the State does not claim prejudice from the fact the appeal was filed too early.” 19 Kan. App. 2d 350, Syl. ¶ 7.
This case fits squarely within the exception announced in Rios. First, on December 13, 1993, the trial court appointed John Frydman to represent the defendant. Frydman was defense counsel when the premature notice of appeal was filed. Second, the State has not raised any questions regarding the jurisdiction of this court. Finally, the State does not claim prejudice from the pre mature notice of appeal. As noted in Rios, “ '[t]he appellee will not be prejudiced because the appellee will know of the intent to appeal prior to final judgment and would be in the same position as if a notice of appeal had been filed after the final judgment.’ ” 19 Kan. App. 2d at 354 (quoting Honeycutt v. City of Wichita, 251 Kan. 451, 462, 836 P.2d 1128 [1992]).
Under the exception created in Rios, this court finds it has jurisdiction to consider the defendant’s appeal.
The defendant raises but a single issue on appeal, contending that the trial court erred by denying his request for a jury trial. The proper procedure for requesting a jury trial in a case involving a misdemeanor is found in K.S.A. 1993 Supp. 22-3404, which provides in part:
“(1) The trial of misdemeanor and traffic offense cases shall be to the court unless a jury trial is requested in writing by the defendant not later than seven days after first notice of trial assignment is given to the defendant or such defendant’s counsel.” (Emphasis added.)
The defendant filed a written request for a jury trial on March 11, 1994. The trial court found that he received “first notice of trial assignment” on February 22, 1994, the day the case was transferred to Division I. According to the trial court’s interpretation, March 3, 1994, was the last day that a timely request could be made. Therefore, the defendant’s request for a jury trial on March 11, 1994, was untimely.
The defendant, on the other hand, argues that the trial court misinterpreted K.S.A. 1993 Supp. 22-3404(1) and contends that a correct interpretation would start the seven-day period running on March 11, 1994, the day the case was set for trial. Under the defendant’s interpretation, his written request for a jury trial would be timely and the trial court erred by denying that request.
The defendant does not allege he did not receive notice of the trial assignment. He only contends the trial court erroneously concluded that trial assignment occurred on February 22, 1994, rather than March 11, 1994.
The defendant’s appeal requires this court to decide the proper meaning of the phrase “first notice of trial assignment,” as it is used in 22-3404(1). This is the first time a Kansas appellate court has been called upon to interpret that portion of the statute.
It is worth noting that the legislature has chosen to use identical language in another section of Chapter 22 of the Kansas Statutes Annotated. In K.S.A. 1993 Supp. 22-3609(4), which establishes the procedure for requesting a jury trial of municipal court appeal cases, the legislature wrote:
“(4) The trial of municipal appeal cases shall be to the court unless a jury trial is requested in -writing by the defendant not later than seven days after first notice of trial assignment is given to the defendant or such defendant’s counsel.”
Like the identical language in 22-3404(1), the phrase “first notice of trial assignment,” as used in 22-3609(4), has not yet been the subject of appellate court interpretation.
“When construing a statute, a court should give words in common usage their natural and ordinary meaning.” Bank IV Wichita v. Plein, 250 Kan. 701, 705-06, 830 P.2d 29 (1992). By applying this rule of statutory construction to the term “trial assignment,” the meaning of that term is clear. The root of the word “assignment” is “assign,” which means “to appoint (one) to a post or duty.” Webster’s Third New International Dictionaiy 132 (1986). The word “trial,” as used in 22-3404(1), merely refers to the duty to which one is assigned. Thus, the term “trial assignment,” as used in 22-3404(1), means to appoint a judge to the duty of presiding over a case at trial. In other words, “trial assignment” is essentially the same thing as “assignment for trial.”
The defendant’s case was “transferred” for trial setting from Division III to Division I on February 22, 1994. Although the appearance docket sheet uses the word “transfer,” rather than “assignment,” the distinction is of no significance in this context. The procedure for assigning cases is provided for in the local rules of the District Court of Douglas County. According to Local Rule 1(E)(2), all arraignments and bond hearings in misdemeanor cases shall be in Division III. Thereafter, “those misdemeanor cases ... in which a trial is required, shall be assigned to the four divisions of court [in a manner that will equalize the case load among the Judges].” Douglas County District Court Local Rule 1(E)(2)(b). See also Douglas County District Court Local Rule 1(A). “After such assignment, all proceedings shall be held in the division to which the case has been assigned and before the Judge thereof.” Douglas County District Court Local Rule 1(a).
Consistent with the local rules, the defendant was arraigned in Division III. Thereafter, his case was assigned to Division I on February 22, 1994. The assignment on February 22, 1994, commenced the running of the seven-day period within which to request a jury trial. The defendant’s request was made on March 11, 1994, after the expiration of seven days after first notice of trial assignment. The trial court did not err in denying the defendant’s untimely request for a jury trial. See Scantlin v. Superior Homes, Inc., 6 Kan. App. 2d 144, 146, 627 P.2d 825 (1981).
According to the defendant, the phrase “first notice of trial assignment” is ambiguous and can give rise to three different meanings. He argues the court is faced with ambiguous language which could be variously interpreted as “first appearance before a judge,” “first notice of case assignment to a division of the district court,” or “first notice of trial setting.”
The defendant’s argument itself illustrates the distinction intended by the legislature. Of the three interpretations offered by the defendant, only “first notice of case assignment to a division of the district court” is consistent with the language used in 22-3404(1). Both terms, “first appearance” and “trial setting”, have “ ‘acquired a peculiar and appropriate meaning in law, [and] shall be construed according to their peculiar and appropriate meanings.’ ” Hudgens v. CNA/Continental Cas. Co., 252 Kan. 478, 483, 845 P.2d 694 (1993).
The term “trial setting” appears several times in the Kansas Statutes Annotated, and the context in which it is used makes clear that it connotes the scheduling of a matter for trial, i.e., the date and time. Particularly enlightening is K.S.A. 60-2702a, which codifies the Rules of the Supreme Court. Rules 131 (1993 Kan. Ct. R. Annot. 127) and 162 (1993 Kan. Ct. R. Annot. 142) establish requirements for notifying parties of trial settings and resolving conflicting trial settings. Rule 131 provides:
“Notice of Hearings and Trial Settings
“(a) If any party seeks the hearing of any motion on a required day of court and it is not a motion which may be heard ex parte, or if the judge sets a hearing on this day of court, notice of the hearing shall be given to all parties affected either by the party, or by the clerk at the direction of the judge, not less than seven (7) days prior to the date of hearing.
“(d) Nothing in this rule shall be construed to prevent the parties, acting through their respective counsel, from agreeing on a date for a hearing on a motion or trial of the action on its merits provided counsel first receives the approval of the date from the judge to whom the action is assigned.”
The term "trial setting” clearly refers to scheduling a date and time for a trial and cannot be interpreted to mean the same thing as “trial assignment.”
The term “first appearance” before a judge also has a definite meaning. The first or “initial appearance” is defined as “a court proceeding for a defendant charged with a felony, during which the judge advises the defendant of the charges against him and of his rights, decides upon bail and/or other conditions of release, and sets the date for a preliminary hearing.” Black’s Law Dictionary 97 (6th ed. 1990).
Although Kansas uses “first appearance” in misdemeanor cases as well as felony cases, the definition of the term is otherwise consistent with the definition given in Black’s Law Dictionary. See K.S.A. 1993 Supp. 21-2501(b) and K.S.A. 1993 Supp. 22-2802. If the legislature had intended that a jury request be made within seven days of the first appearance whether or not the judge at the first appearance would be the trial judge, it would have presumably used that language.
“ ‘It is presumed the legislature understood the meaning of the words it used and intended to use them; that the legislature used the words in their ordinary and common meaning; and that the legislature intended a different meaning when it used different language in the same connection in different parts of a statute.’ [Citation omitted.]” Bank of Kansas v. Davison, 253 Kan. 780, 788, 861 P.2d 806 (1993).
It is a well-known rule of statutory construction that “ ‘[o]ur criminal statutes are to be construed strictly against the State.’ ” State v. JC Sports Bar, Inc., 253 Kan. 815, 818, 861 P.2d 1334 (1993) (quoting State v. Sexton, 232 Kan. 539, 543, 657 P.2d 43 [1983]). However, the rule that criminal statutes are construed strictly against the State remains subordinate to the rule that the intent of the legislature will control if it can be ascertained. State v. Schlein, 253 Kan. 205, 215, 854 P.2d 296 (1993). “ Tt is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained.’ ” City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993) (quoting West v. Collins, 251 Kan. 657, Syl. ¶ 3, 840 P.2d 435 [1992]). See State v. Gonzales, 255 Kan. 243, 248-49, 874 P.2d 612 (1994).
Although sparse, the legislative history of 22-3404 lends considerable insight into the purpose and'intent of the legislature. It also demonstrates that the trial court’s interpretation of the term “first notice of assignment” is the proper interpretation for carrying out the intent of the legislature.
K.S.A. 22-3404(1) was amended in 1989. Prior to the 1989 amendment, all trials of misdemeanor cases were to the court, “unless a jury trial [was] requested in writing by the defendant not later than 48 hours prior to the trial.” The purpose of amending this section was to make the process “more efficient and . . . facilitate case flow management and reduce delay.” Minutes of the House Committee on the Judiciary, March 20, 1989.
In 1992, the legislature also amended K.S.A. 22-3609(4). Prior to the amendment, it allowed a defendant, in an appeal from a district court magistrate, to request a jury trial “in writing . . . not later than 48 hours prior to trial.” The 1992 amendment to 22-3609(4) changed the language of that section to the identical language used in the 1989 amendment to 22-3404(1). The legislative history of the 1992 amendment to 22-3609(4) firrfher illustrates the purpose of requiring a defendant in a misdemeanor case to request a jury trial “not later than seven days after first notice of trial assignment.”
According to the minutes of the Subcommittee on Criminal Law of the House Judiciary Committee, March 27, 1992, the amendment “would allow adequate preparation of cases and also reduce the number of continuances due to delayed requests for jury trials.” Apparently the defect in the prior procedure was that a case would be set for trial to the court, and then only 48 hours prior to trial the defendant would request a trial by juiy. The trial would then need to be rescheduled, causing considerable delay. See also Minutes of the Subcommittee on Criminal Law of the Senate Judiciary Committee, March 3, 1992 (“It has been the tactic of defense counsels to use this particular statute to delay the adjudication process in the District Courts.”).
The legislative history of 22-3404(1) indicates the trial court properly interpreted the term “trial assignment.” The defendant’s proposed interpretation, on the other hand, would entirely frustrate the purpose of the amendment. He argues he had seven days from March 11, 1994, the date of the “trial setting,” to request a jury trial. If the request for a jury trial is made after the case is set for trial, the court would again have to reschedule. Delay caused by rescheduling is the very evil that the legislature sought to eliminate. “[Rjemedial legislation should be liberally construed to effectuate the purpose for which it was enacted.” Smith v. Marshall, 225 Kan. 70, 75, 587 P.2d 320 (1978).
While we find the court was correct in its analysis of the “trial assignment” language, we see another facial error of constitutional proportions in the denial of a jury trial.
Under State v. Irving, 216 Kan. 588, 533 P. 2d 1225 (1975), and a recent Court of Appeals decision relying on Irving, State v. Jones, 19 Kan. App. 2d 982, 879 P. 2d 1141 (1994), a defendant charged with a misdemeanor or traffic offense, where the potential imprisonment exceeds six months, has a right to a jury trial, regardless of whether it is requested within seven days after notification of a trial assignment. In order to waive the right to a jury trial under these circumstances, the defendant must first be advised by the court of his or her right to a jury trial, and the defendant must personally waive that right in writing or in open court.
We are aware that trial judges at arraignment or other appropriate times will sometimes inform the defendant that a sentence of greater than six months will not be given if the defendant is found guilty of a misdemeanor. This removes the potential of a sentence greater than six months. The record before us does not reflect this was done. If the record is otherwise, it might affect this decision. However, based on the record before us, the defendant faced a potential sentence of six months on the stalking count and an additional month on the attempted criminal trespass count. Under these facts, even though the eventual sentence was less than six months, he was entitled to the protections of Irving. Since he did not receive them, we must reverse and remand for jury trial.
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Larson, J.:
Tad Garrison appeals the trial court’s ruling in favor of State Farm Mutual Automobile Insurance Company (State Farm) and Dairyland Insurance Company (Dairyland), holding insurance coverage did not exist for his gunshot wound.
Garrison was seriously injured when a shotgun discharged as Kurt Pfannenstiel removed the gun from Garrison’s car during a hunting trip. Garrison sued Pfannenstiel for negligence and Garrison’s automobile insurer, State Farm, for personal injury protection (PIP) benefits.
State Farm defended on the basis that the accident did not arise out of the ownership, use, or maintenance of a motor vehicle and counterclaimed for a declaration that the liability portion of Garrison’s policy did not afford coverage to Pfannenstiel for Garrison’s negligence claim against him. Dairyland, Pfannenstiel’s automobile insurance carrier, intervened to seek a ruling that no liability coverage existed under the policy it had issued.
The case was submitted on an agreed record consisting of the depositions of Garrison and Pfannenstiel plus copies of the respective insurance policies. After reviewing briefs and hearing arguments, the trial court ruled the accident did not arise out of the use of a vehicle and entered judgment in favor of both insurance carriers.
This unfortunate accident occurred in September 1992, when Garrison and Pfannenstiel went dove hunting in rural Ness County. Garrison drove his State Farm insured car during the entire hunting excursion.
The two men stopped on several occasions to shoot birds. Each time they entered and left the car they stowed their guns between the front seats along the console with the barrels pointing toward the floorboard.
After several stops they saw some birds and decided that Pfannenstiel would get out of the car and Garrison would then drive on to the far end of a line of trees and hunt there. Garrison slowed the car; as it approached or came to a stop and Pfannenstiel was getting out of the car, Pfannenstiel’s shotgun discharged, striking Garrison in the leg and causing a significant injury. Neither party knew what caused the shotgun to fire. Pfannenstiel did not remember if the shotgun came in contact with any part of the car as it fired, although part of Garrison’s injury was caused by the knob of a radio which the blast forced through his leg. Neither Garrison nor Pfannenstiel knows if the safety had been engaged before Pfannenstiel picked up the gun.
There are essentially three portions of the insurance policies which are in issue. As to Garrison’s PIP claim, State Farm contested coverage under the following provision:
“SECTION II — NO FAULT — COVERAGE P
“What We Pay
“We will pay in accordance with the No-Fault Act for bodily injury to an insured, caused by accident resulting from the ownership, maintenance or use of a motor vehicle.”
As to State Farm’s counterclaim that liability coverage did not apply to Garrison’s tort claim against Pfannenstiel, the following provisions are involved:
“SECTION I — LIABILITY—COVERAGE A
“We will:
“1. pay damages which an insured becomes legally liable to pay because of . . . bodily injury to others, and damage to or destruction of property . . . caused by accident resulting from the ownership, maintenance or use of your car; and
“2. defend any suit against an insured for such damages ....
“Who Is an Insured
“When we refer to ijour car . . . insured means:
“4. any other, person while using such a car if its use is within the scope of die express or implied consent of you or your spouse.”
The pertinent language of the Daiiyland policy provides:
“We promise to pay damages for bodily injury or property damage for which the law holds ijou responsible because of a car accident involving a car we insure.’
“[‘Car accident’ is defined as] ‘an unexpected and unintended event that causes injury or property damage and arises out of the ownership, maintenance, or use of a car or other motor vehicle.’ "
Garrison raises three issues: First, that he is entitled to PIP coverage; second, that liability coverage exists under both policies; and third, that the accident arose out of the ownership, maintenance, or use of a motor vehicle. He admits the first two questions are answered by the third, and we view the issue for our determination to be as follows:
Does the accidental discharge of a shotgun, the cause of which is unknown, occurring while a gun is being unloaded from a car during a hunting trip, arise out of or result from the ownership, use, and maintenance of an automobile so that the resulting injuries are covered by an automobile insurance policy?
The trial court’s decision construing the insurance policies was based on an agreed record without controversy except that the cause of the gun’s discharge remains unknown. The testimony did not vary on any significant fact except whether the car had reached a complete stop when Pfannenstiel got out, but that was not a material fact in the trial court’s decision.
Garrison assumes we review only a question of law and owe no deference to the trial court’s decision. We reject State Farm’s suggestion that the trial court made a factual finding that no coverage was available and that we are therefore limited to determining if substantial competent evidence supports that finding.
Where the facts are not controverted, we hold that “the construction and effect of a contract of insurance is a matter of law to be determined by the court.” Harris v. Richards, 254 Kan. 549, Syl. ¶ 1, 867 P.2d 325 (1994). “As a general rule, the interpretation or construction and meaning and legal effect of written instruments are matters of law exclusively for the court and not questions of fact.” Federal Land Bank of Wichita v. Krug, 253 Kan. 307, 311, 856 P.2d 111 (1993). The issue we consider does not hinge on any factual determination but rather on the interpretation of what the policy requires for an accident to arise out of the ownership, maintenance, or use of a motor vehicle. This is a legal question upon which our review is unlimited. See Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 243 Kan. 130, 133, 754 P.2d 803 (1988).
Our review is not merely of the insurance policy; must also consider the statute under which the insurance policy was issued. The Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq., requires the owner of every motor vehicle registered in Kansas to have liability insurance including “personal injury protection benefits to the named insured ... for loss sustained ... as a result of injury” including “bodily harm . . . resulting from an accident arising out of the ownership, maintenance or use of a motor vehicle.” K.S.A. 1994 Supp. 40-3104(a), K.S.A. 40-3107 (f), and K.S.A. 1994 Supp. 40-3103(i).
The KAIRA is to be construed liberally to achieve the legislature’s purpose “to provide a means of compensating persons promptly for accidental bodily injury arising out of the ownership, operation, maintenance or use of motor vehicles in lieu of liability damages to the extent provided herein.” K.S.A. 40-3102; Whitaker v. State Farm Mut. Auto Ins. Co., 13 Kan. App. 2d 279, 281, 768 P.2d 320 (1989); DiBassie v. American Standard Ins. Co. of Wisconsin, 8 Kan. App. 2d 515, 520, 661 P.2d 812 (1983).
Farm Bureau Mut. Ins. Co. v. Evans, 7 Kan. App. 2d 60, Syl. ¶ 2, 637 P.2d 491 (1981), succinctly stated what is required for an accident to arise out of the use of a vehicle:
“In determining coverage for bodily injury claimed to have arisen out of the ownership, maintenance or use of an insured vehicle, a court must consider whether the injury sustained was a natural and reasonable incident or consequence of the use of the vehicle involved for the purposes shown by the declarations of the policy although not foreseen or expected.”
In a Missouri gun discharge case, with similar issues to ours, the words “arising out of” and “use” were stated to be very broad, general, and comprehensive terms with “arising out of” ordinarily understood to mean “originating from,” “having its origin in,” “growing out of” or “flowing from.” Cameron Mut. Ins. Co. v. Ward, 599 S.W.2d 13, 15 (Mo. App. 1980). Although a criminal case, State v. Howard, 221 Kan. 51, 53, 557 P.2d 1280 (1976), defined “use” as a common verb: “[0]rdinarily it means to employ; to avail oneself; to utilize; to carry out a purpose or action by means of; to put into action or service, especially to attain an end (citing Webster’s New Collegiate Dictionary, 1975).” Evans further held that “[t]he general rule in other jurisdiction is that, ‘arising out of the use’ of a vehicle requires the finding of some causal connection or relation between the use of the vehicle and the injury.” 7 Kan. App. 2d at 62.
It is generally held that the use of a vehicle need not be the proximate cause of the injury, but rather it is sufficient if the use of the vehicle is a cause in a more liberal sense. 7 Kan. App. 2d at 63. The Ward case stated that “although it is not required that the ‘use’ of the automobile be the ‘direct and proximate’ cause of the injury in the strict legal sense of causation permeating general tort law, there must be some causal connection between an injury and the ‘use’ of an automobile in order for there to be coverage.” 599 S.W.2d at 15.
None of the Kansas cases considering if there is a sufficient causal connection or relationship between the use a vehicle and the injuiy for insurance coverage to exist are sufficiently close factually to resolve the issues raised by this appeal.
In Evans, our court found that an injury caused by a firecracker, which was thrown from the rear of a station wagon parked in a large open field during a party and which landed in a beer glass and exploded, was not an accident that arose from the use of a car. 7 Kan. App. 2d at 63.
Allied Mut. Ins. Co. v. Patrick, 16 Kan. App. 2d 26, 819 P.2d 1233 (1991), involved a sexual molestation in an automobile. The opinion suggests that an incident is not an accident just because it takes place in an automobile. In denying coverage, we held the automobile must in some manner be involved in the accident and the mere fact that an accident takes place in or near the automobile does not necessarily impose responsibility upon the insurer.
There was no coverage in a tragic “bump and rob” case when an injured passenger and the estate of a deceased driver sought PIP benefits and uninsured motorist coverage under an automobile policy. See Hamidian v. State Farm Fire & Cas. Co., 251 Kan. 254, 833 P.2d 1007 (1992). There, the Supreme Court held the death and injuries did not arise out of the ownership, operation, maintenance, or use of a motor vehicle. The court held the shootings, which occurred after the vehicle was bumped and while the parties were outside the car checking for damage, were intentional acts unrelated to the operation of the motor vehicle.
The Kansas case factually closest to ours is Whitaker v. State Farm Mut. Auto Ins. Co., 13 Kan. App. 2d 279, where PIP benefits were held to exist for an injury sustained while the injured person was unloading an ice chest from a parked insured van.
After coverage was found to exist by the trial court in Whitaker, State Farm’s appeal focused not on the use of the vehicle, but rather on a claimed distinction between policies insuring against “accidental results” and those insuring against “accidental means.” Judge, now Justice, Davis’ opinion held the attempted distinction is not recognized in Kansas but stated positively that we must construe the KAIRA liberally to accomplish the legislature’s declared purpose of compensating injured insureds. It is clear that the result reached would not be possible if Kansas required some physical intervention by the vehicle before the accident would be deemed to arise out of its use.
More instructive for our consideration are the numerous cases from other states which have considered factual situations involving the discharge of a firearm from within, while operating, while unloading, or while outside a motor vehicle. We will consider the numerous cases which are collected in an annotation entitled: Automobile Liability Insurance: What are accidents or injuries “arising out of ownership, maintenance, or use” of insured vehicle? 15 A.L.R.4fh 10, §§ 8, 9, 10, and 11.
A majority of the cases appear to have reasoned that the transportation of guns for hunting is an ordinary and customary use of an automobile. One aspect of the use of a vehicle for hauling firearms is the loading and unloading of the guns at the hunting site. The North Carolina Supreme Court said:
“Since the transportation and unloading of firearms are ordinary and customary uses of a motor vehicle, and the injury-causing accident here resulted from the unloading of the transported rifle, such injuries were a natural and reasonable incident or consequence of the use of the motor vehicle.” State Capital Ins. Co. v. Nationwide Mut. Ins. Co., 318 N.C. 534, 540, 350 S.E. 2d 66 (1986).
The Colorado Supreme Court explained:
“In the present case, the evidence is clear that the claimants’ injuries were causally related to the use of Weaver’s jeep. The accident occurred while Weaver was lifting the rifle out of the jeep’s gun rack preparatory to unloading the rifle and safely storing it for the journey home. Weaver’s actions were intimately related to his use of the vehicle as transportation for himself and his rifle from a mountain hunting area to his home in Canon City.” Kohl v. Union Ins. Co., 731 P.2d 134, 137 (Colo. 1986).
The Supreme Judicial Court of Maine explained that whether or not the policy expressly covers tihe loading or unloading of a vehicle, such activity is part of the use of a vehicle:
“The vehicle in the instant case was being used to transport the two men and their firearms for the purpose of hunting. The utilization of the vehicle for a hunting trip constitutes a proper ‘use’ of the vehicle within the meaning of the Commercial Union policy. Incidental to that use, it was necessary, reasonable and foreseeable that the weapons would be placed into and removed from the vehicle at some point during the course of the expedition. The ‘loading or un loading’ of a firearm into or from a vehicle is a reasonable and proper use of the vehicle in this context [even where the policy does not define ‘use’ to include loading and unloading]. Because the injury occurred during the ‘unloading’ of the gun from the vehicle, the requisite causal connection is present.” Union Mut. Fire Ins. v. Commercial Union Ins., 521 A.2d 308, 311 (Me. 1987).
See also Allstate Insurance. Co. v. Truck Ins. Exchange, 63 Wis. 2d 148, 216 N.W.2d 205 (1974) (injury arising from unloading gun from vehicle while hunting constituted use of a vehicle even where loading and unloading was not specifically defined as use in the policy).
In State Farm Mut. Auto. Ins. Co. v. Rice, 239 Va. 646, 391 S.E.2d 71 (1990), coverage was found for the accidental discharge of a rifle as it was being picked up from an automobile seat based on principles established in the earlier Virginia case of State Farm, Mutual v. Powell, 227 Va. 492, 500-01, 318 S.E.2d 393 (1984), where the court stated:
“[C]onsideration must be given to the intention of the parties to the insurance agreement in determining the scope of the coverage afforded. In addition, the ‘ownership, maintenance, or use’ provision should be construed in the light of the subject matter with which the parties are dealing; the terms of the policy should be given their natural and ordinary meaning. Even though ownership, maintenance, or use of the vehicle need not be the direct, proximate cause of the injury in the strict legal sense, nevertheless, there must be a causal relationship between the accident and employment of the insured motor vehicle as a vehicle. Furthermore, consideration must be given to what the insured person was doing when he was injured, as well as his purpose and intent, in determining whether that person was in such position in relation to the vehicle to be injured in its ‘use.’ ”
Other courts following the same reasoning as these cases include Payne v. Southern Guaranty Ins. Co., 159 Ga. App. 67, 68, 282 S.E.2d 711 (1981); Viani v. Aetna Insurance Co., 95 Idaho 22, 30-31, 501 P.2d 706 (1972), overruled on other grounds Sloviaczek v. Estate of Puckett, 98 Idaho 371, 565 P.2d 564 (1977); Travelers Insurance Co. v. Aetna Casualty & Sur. Co., 491 S.W.2d 363 (Tenn. 1973).
Missouri has adopted a line of reasoning in which it classifies automobile liability coverage/gun discharge cases into five factual categories. Although we question if this is consistent with our decision in Evans, the result we reach is supported by Cameron Mut. Ins. Co. v. Ward, 599 S.W.2d 13, 15-16 (Mo. App. 1980), which stated:
“A second category of cases may be fittingly described as involving the accidental discharge of guns during the process of loading them into or unloading them from vehicles. The following typify cases which fall into this category: Laviana v. Shelby Mutual Insurance Company, 224 F. Supp. 563 (D.Vt. 1963); Allstate Insurance Company v. Valdez, 190 F. Supp. 893 (E.D.Mich. 1961); Viani v. Aetna Insurance Company, 95 Idaho 22, 501 P.2d 706 (1972); Travelers Insurance Co. v. Aetna Casualty & Sur. Co., 491 S.W.2d 363 (Tenn. 1973); and Allstate Insurance Co. v. Truck Insurance Exchange, 63 Wis. 2d 148, 216 N.W.2d 205 (1974). Without exception, these cases hold that coverage exists under the insuring agreements of the respective automobile liability policies involved by reason of coverage extended to the process of loading and unloading vehicles.”
State Farm argues that the lack of evidence showing that the automobile physically caused the gun to discharge makes the trial court’s decision proper. Such a requirement is more akin to a proximate cause standard than the more liberal causation standard applied in this context. First, those cases allowing coverage for gun accidents arising while unloading a car during a hunting expedition do not require that the car physically cause the discharge. See Kohl, 731 P.2d at 135 (no physical connection between gun discharge and vehicle shown); Payne, 159 Ga. App. at 68 (no showing any active or passive condition of the vehicle contributed to the gun discharge); Union Mut. Fire Ins., 521 A.2d at 309 (gun discharged when grasped, no link to movement or condition of vehicle); State Capital Ins. Co., 318 N.C. at 536 (evidence showed only gun discharged when touched); Travelers Ins. Co., 491 S.W.2d at 364 (reason for discharge unknown); Rice, 239 Va. 647-48 (gun discharged when picked up).
Second, those cases that look to a physical link to the vehicle do so in the context where there is no other link to the use of the car. For example, where a gun is discharged inside the car while it is moving, it is the physical link between the car and the gun which provides the requisite minimal causation. See Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga. App. 562, 564, 236 S.E.2d 550 (1977). In our case, the minimal causal link need not be provided by the physical interaction of the car and the gun since it is provided by the foreseeable use of the vehicle for hunt ing. Third, even when a physical link is required circumstantial evidence of the involvement of the motion of the car is enough, and it is not necessary to prove why the gun fired. 142 Ga. App. at 564; see State Farm Mut. Ins. Co. v. Partridge, 10 Cal. 3d 94, 99, 109 Cal. Rptr. 811, 514 P.2d 123 (1973).
Despite its artful argument, most of the cases State Farm cited are consistent with allowing coverage in this case; The injuries in those cases did not arise from the foreseeable unloading or loading of firearms into a vehicle used to transport them for hunting purposes. Rather, several of the cases arise from the misuse or mishandling of a gun while in a vehicle — unrelated to any attempt to unload or load the vehicle and unrelated to any movement of the vehicle itself. Brenner v. Aetna Insurance Co., 8 Ariz. App. 272, 273-74, 445 P.2d 474 (1968) (playing with gun while riding in vehicle during hunting trip); Hartford Fire Ins. v. State Farm Mut. Auto. Ins., 264 Ark. 743, 744, 574 S.W.2d 265 (1978) (death caused by passenger playing with gun in parked vehicle); Azar v. Employers Casualty, 178 Colo. 58, 59, 495 P.2d 554 (1972) (preparing to shoot shotgun out of car window); State Farm Fire & Cas. Co. v. Stroup, 481 N.W.2d 853 , 854 (Minn. App. 1992) (dog caused gun on floor of moving vehicle to discharge); National Union Fire Ins. Co. v. Bruecks, 179 Neb. 642, 644, 139 N.W.2d 821 (1966) (carelessly attempting to unload gun in moving car after hunting); Jordan v. Lee, 76 Or. App. 472, 474, 709 P.2d 752 (1985) (child playing with gun inside vehicle); State Farm Ins. v. Centennial Ins., 14 Wash. App. 541, 543 P.2d 645 (1975) (passenger unloading weapon in moving car not reasonable consequence of using vehicle on hunting trip). Cf. Krause v. Citizens Ins. Co., 156 Mich. App. 438, 402 N.W.2d 37 (1986) (gun on top of vehicle not in the process of being unloaded from vehicle discharged; no coverage).
Other cases cited by State Farm deal with incidents of intentional shootings that had some passing relationship with a vehicle. See Fortune Ins. Co. v. Exilus, 608 So. 2d 139 (Fla. Dist. App. 1992); Morgan v. Prudential, 242 N.J. Super. 638, 577 A.2d 1300 (1990); Jones v. State Farm Mut. Auto. Ins. Co., 589 So. 2d 333 (Fla. Dist. App. 1991). The two Kansas cases we have previously cited, Hamidian v. State Farm, 251 Kan. 254, and Allied Mut. Ins. Co. v. Patrick, 16 Kan. App. 2d 26, may both be classified as intentional acts cases and are not determinative in the resolution of this appeal.
The cases which State Farm cites that provide the most persuasive support for its position are a series of Minnesota cases, State Farm Fire & Cas. Co. v. Strope, 481 N.W.2d 853 (Minn. App. 1992); Hanson v. Grinnell Mut. Reinsurance Co., 422 N.W.2d 288 (Minn. App. 1988); and Farmers Ins. Group v. Chapman, 416 N.W.2d 857 (Minn. App. 1987), which require the vehicle to be an “active accessory” to the accident. There is nothing in our Kansas precedent that indicates our Supreme Court would impose this “active accessory” requirement.
Additionally, the Minnesota cases can be distinguished factually. In Strobe, the gun discharge was caused by a dog, not by unloading or interaction with the vehicle. In Hanson, the vehicle was immobile and used only to store rather than transport the guns. The factual scenario in Chapman was an accidental misfire when the gun was outside the vehicle after being unloaded.
Most importantly, it is not entirely certain that Minnesota would deny coverage in the context before us even under its active accessory rule. In Hanson, the Minnesota Court of Appeals noted “[t]he Minnesota Supreme Court has suggested that a covered ‘use’ might exist where a vehicle is being used to transport or store guns during a hunting trip. See National Family Insurance Co. v. Boyer, 269 N.W. 2d 10, 13 (Minn. 1978).” Hanson, 422 N.W.2d at 290.
The only authority cited by Dairyland beyond that raised by State Farm is a quote from 12 Couch on Insurance 2d § 45.56 (rev. ed. 1981), which states: “There is a great deal of litigation arising out of the transportation of firearms in insured motor vehicles where the gun discharges injuring passengers or third parties. The better position is that such accidents are not covered under an automobile liability policy.” We remain unconvinced by this statement of policy and find it unsupported by the cited cases which were primarily gunshot cases dealing with stopped vehicles that were not being loaded or unloaded.
The agreed record is unclear as to whether Garrison’s vehicle had completely stopped, but we hold that it is not required in Kansas for the vehicle to physically contribute to the discharge of a gun. The requirement of a causal connection is satisfied by the use of the automobile for transporting the gun while hunting. Similarly, language noting that there is no coverage where the injury is caused by “an intervening cause not identifiable with normal . . . use of the insured vehicle,” Evans, 7 Kan. App. 2d at 63, has no application here since the discharge of the gun, whatever the cause, was identifiable with the normal use of the vehicle for hunting. As we have previously noted, the existence of coverage in Whitaker would also be totally inconsistent with a requirement in Kansas of some physical intervention by the vehicle before an accident would be deemed to arise out of its use.
In summary, we hold the injury sustained by Garrison was a natural and reasonable incident or consequence of the use of vehicle involved, although not foreseen or expected. The use of the Garrison car for hunting was a reasonable and foreseeable use of the vehicle. It provides the necessary causal link between the accident and vehicle use so that the accident is held to result from that use. It was not necessary to prove an additional causal link by demonstrating the vehicle physically contributed to the shotgun’s discharge.
State Farm argues that even if the accident did result from the use of the car, coverage should be excluded because Garrison did not give Pfannenstiel permission to have his loaded gun in the car with the safety off. This argument applies only to the liability coverage issues and does not relate to PIP coverage.
State Farm cites no persuasive authority for this contention. Additionally, the testimony clearly showed that Pfannenstiel was in the car as the result of Garrison’s invitation. Neither party was certain as to whether the safety on the gun was on or off. The only thing State Farm showed was an after-the-fact statement by Garrison that he would have requested Pfannenstiel to put the safety on had he known it was off.
Further, Garrison stated he did not know what precautions Pfannenstiel took before entering the car but he assumed the gun was loaded and made no specific safety request.
It would be contrary to the uncontroverted evidence to grant State Farm judgment on the ground Pfannenstiel was not “using such car . . . with the express or implied consent of you or your spouse.” The evidence clearly shows Garrison gave Pfannenstiel permission to be in the car and participate in the hunt without regard to the status of the safety on the shotgun.
One further issue warrants our consideration. Attorney fees are improper in this case because the issues raised in good faith are of first impression in Kansas. See K.S.A. 40-256; K.S.A. 40-3111(b); Whitaker v. State Farm Mut. Auto. Ins. Co., 13 Kan. App. 2d 279, 284-85, 768 P.2d 320 (1989).
Reversed and remanded to the trial court with instructions to enter judgment finding the accident arose out of the ownership, maintenance, and use of a motor vehicle along with the required findings of insurance coverage arising from such a judgment. | [
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Lewis, J.:
Zenda Grain & Supply Company (Zenda) sued Farmland Industries, Inc. (Farmland) and Double Circle Farm Supply Company (Double Circle) for breach of contract. The issues were submitted to a jury, which returned a verdict in favor of Zenda in the amount of $140,957.10. This verdict seems to have satisfied no one. Double Circle appeals, citing eight issues on which it believes the verdict should be reversed. Zenda cross-appeals, citing six issues in which it claims the trial court erred. Our obligation was to sort out what issues have merit and how they affect the verdict in this case. After doing so, we affirm in part, reverse in part, and remand for a new trial on the question of damages.
Zenda is a defunct farmers’ cooperative headquartered in Zenda, Kansas. In the period from 1982 to 1987, Zenda was placed in jeopardy by a succession of losses in operations. It lost money each year of this period. In the aggregate, these losses exceeded $400,000, and Zenda’s survival was threatened.
Either alone or prodded on by its bankers, Zenda sought outside help. Double Circle is a wholly owned subsidiary of Farmland. Double Circle had developed a contract management program designed to assist small cooperatives like Zenda in surviving the difficult conditions they faced in the 1980’s.
In 1986, Zenda was on the verge of collapsing. Zenda attempted to do something positive by contacting Double Circle.
In September 1986, Zenda and Double Circle signed their first management agreement. This agreement basically turned over management of the cooperative to Double Circle. Initially, the agreement was to run from October 1, 1986, to March 1, 1988, and on a month-to-month basis thereafter. In addition, either party could terminate the agreement at any time by giving 60 days’ notice. A new management agreement was entered into between the parties effective March 1, 1988, to March 1, 1989, and month to month thereafter. This second agreement remained in effect until terminated by Zenda in June 1989. Both management agreements were in writing.
During the time it managed Zenda, Double Circle provided the cooperative manager. Vincent Wilczek was the first such manager and continued in those duties until he was terminated by Double Circle in August 1988. Double Circle replaced Wilczek with Hubert Gudenkauf, who was later replaced by Dwayne Wilson. Wilson served as manager until he resigned in June 1989, just prior to the termination óf the management agreement by Zenda.
For a variety of reasons, Double Circle’s plans and policies were not successful at Zenda. Zenda made a profit on operations of $77,482.03 in fiscal year 1988 but otherwise continued to lose money.
One of Double Circle’s obvious failures was in grain sales. Wilczek sold grain but allowed the sale to remain “uncovered” on the grain market for an inordinate length of time. This act of mismanagement caused a further loss of money by Zenda and, in all probability, led to Wilczek’s being fired by Double Circle in the summer of 1988.
Zenda never saw another profitable year after fiscal year 1988. From the end of fiscal year 1988 to November 1989, Zenda suffered massive losses and ultimately was forced to liquidate by selling its assets to another cooperative.
At some point, Zenda decided to blame Double Circle for its losses and for its ultimate liquidation. It sued Double Circle and Farmland for breach of contract and mismanagement. The trial court refused to pierce the corporate veil insofar as Double Circle and Farmland were concerned, and Farmland was dismissed as a party and is no longer relevant to this lawsuit.
This case was finally tried to a jury, which returned the verdict noted above. It was very vigorously tried and contested by both sides. The record is enormous, at times confusing, and often bitter. This lawsuit has consumed much time and money and an inordinate amount of effort by both sides. The fact that after such a Herculean effort neither side is happy says volumes about why and how we have arrived at this point. We will cover additional facts where they are pertinent to the issues.
HOLD HARMLESS CLAUSE
The second written management agreement between the parties contains the following provision:
“The ASSOCIATION agrees to indemnify, protect and save MANAGER and DOUBLE CIRCLE harmless from and against any and all claims, actions, loss or damages, including reasonable attorney’s fees, arising in any way on account of this agreement or services performed thereunder in the operation of ASSOCIATION’S business.”
Double Circle contends that the “hold harmless” clause protects them from liability and that Zenda cannot maintain the action against it. The trial court disagreed with Double Circle and said:
“Accordingly, the Court concludes that Section Eight is overbroad and unspecific and does not show a clear unequivocal intention to waive the type of Double Circle conduct that Zenda complains of in its Petition herein. The Court preemptively rules that the Section Eight Hold Harmless Clause is not a defense to Plaintiff’s cause of action. Therefore, the Court will not instruct the Jury as to a hold harmless defense.”
Double Circle argues on appeal that the trial court erred in failing to enforce the hold harmless clause in its favor. We disagree.
Stripped to its bare essentials, Double Circle’s argument is that it is protected contractually from liability for any mismanagement or breach of contract. The type of clause which Double Circle asserts protects it from the consequences of its own negligence is not a favorite of the law and is rarely enforced to protect a party from its own negligent or other wrongful actions:
“While it is true that the policy of the law in general is to permit mentally competent parties to arrange their own contracts and fashion their own remedies where no fraud or overreaching is practiced and that contracts freely arrived at and fairly made are favorites of the law [citations omitted], effective disclaimer of liability for one’s own negligence, waiver of liability of the other party for the latter’s negligence, or indemnification of the other party for its negligence is subject to strict construction and explicit expression.” Elite Professionals, Inc. v. Carrier Corp., 16 Kan. App. 2d 625, 634, 827 P.2d 1195 (1992).
“Contracts for exemption from liability for negligence are not favored by the law and are strictly construed against the party relying on them.” Cason v. Geis Irrigation Co., 211 Kan. 406, Syl. ¶ 1, 507 P.2d 295 (1973). “Exculpation of liability for one’s own negligence is subject to strict construction and expression by clear and unequivocal language.” Elite Professionals, 16 Kan. App. 2d 625, Syl. ¶ 3.
One of the leading cases in this area is Butters v. Consolidated Transfer & Warehouse Co., Inc., 212 Kan. 284, 510 P.2d 1269 (1973). That case involved a hold harmless clause that read as follows:
“ ‘The Contractor agrees to hold the City harmless from any and all claims or liability for bodily injury, death and property damage to Contractor, his employees, agents, servants, and third parties, while engaged in the performance of this contract.
“ ‘The Contractor shall carry Workmen’s Compensation Insurance during the performance of this contract, all in accordance with the laws of the State of Missouri and further agrees to carry Employer’s liability and Public liability Insurance in the amount of $1,500,000.00 combined single limit for any one occurrence.’ ” 212 Kan. at 285.
The Supreme Court found that this clause was unenforceable:
“It is a general rule that a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms, or unless no other meaning can be ascribed thereto, and mere general broad and seemingly all-inclusive language in the indemnifying agreement is not sufficient to impose liability for the indemnitee’s own negligence.” 212 Kan. 284, Syl. ¶ 2.
The court went on to say that “[t]he indemnity or ‘hold harmless’ agreement does not show an intention to indemnify the indemnitee against loss resulting from its own negligent acts expressed in clear and unequivocal terms, or even necessarily indicate it.” (Emphasis added.) 212 Kan. at 291. We note the similarity between the clause in Butters and the one in the instant matter and attach significance to that similarity.
Double Circle relies on the decision in Bartlett v. Davis Corporation, 219 Kan. 148, Syl. ¶ 4, 547 P.2d 800 (1976). In that case, Davis owned the land on which a sand pit was located. It leased the sand pit to Heersche, who operated and exclusively controlled the area surrounding and including the sand pit. In the lease, Heersche agreed to “hold ‘Davis harmless’ from liability.” Two young boys drowned in the pit owned by Davis and controlled by Heersche. A judgment was rendered against those two jointly, and Davis sought indemnity from Heersche under the “hold harmless” clause. The Supreme Court enforced the clause in that case while recognizing the general rule against the enforceability of such a provision.
In our judgment, Bartlett is of little assistance to Double Circle. Bartlett is explained by the following language in the opinion: “Where the indemnitor has possession and control of the work of premises and the owner does not maintain independent operations of the premises, a contract of indemnity is generally construed to cover passive negligence of the owner.” (Emphasis added.) 219 Kan. at 158. Bartlett stands for the proposition that a party may protect itself from the results of its own passive negligence where it has no control over the operations or the premises on which the incident took place. In Bartlett, Davis had no way of protecting himself from the negligence of Heersche.
In this case, Double Circle seeks to be relieved of the consequences of its own active negligence and malfeasance. This is not a case controlled by Bartlett; it is a case controlled by Butters. In our judgment, a conclusion that the parties in this case intended to relieve Double Circle from responsibility for its own negligence or mismanagement would reduce the contract to a nullity. It would mean that Zenda agreed to pay for a service without any way of requiring that the service be performed in a professional and satisfactory manner. There is nothing in the hold harmless clause in this case which expresses in clear and unequivocal terms an intent to shield Double Circle from the responsibility for its own negligence and mismanagement. Under these circumstances, the rationale of Butters controls.
We are not suggesting that under no circumstances may a party contract away responsibility for its own negligence. It can be done and it has been done but only in clear and unequivocal terms. In Corral v. Rollins Protective Services Co., 240 Kan. 678, 680-81, 732 P.2d 1260 (1987), the hold harmless clause read as follows:
“ 'It is further agreed that Rollins is not an insurer of the Customer’s property and that all charges and fees herein provided for are based solely on the cost of installation, service of the System and scope of liability hereinafter set forth and are unrelated to the value of the Customer’s property or the property of others located on the Customer’s premises.
“ ‘The parties agree that if loss or damage should result from the failure of performance or operation or from defective performance or operation or from improper installation or servicing of the System, that Rollins’ liability, if any, for the loss or damage thus sustained shall be limited to a sum equal to ten (10%) per cent of one year’s service charge or $250.00, whichever sum is the greater, and that the provisions of this paragraph shall apply if loss or damage, irrespective of cause or origin, results, directly or indirectly to persons or property from performance or nonperformance of obligations imposed by this Agreement or from negligence, active or otherwise, of Rollins, its agents or employees.’ ” (Emphasis added.)
The Supreme Court enforced that clause as written. In Elite Professionals, Inc. v. Carrier Corp., 16 Kan. App. 2d at 635, we commented on the hold harmless clause in Corral:
“In Corral, as previously observed, within the parties’ agreement it was provided that “ *[t]he parties agree that if loss or damage should result from the failure of performance or operation ... of the [Rollins] system, that Rollins’ liability, if any, for the loss or damage thus sustained shall be limited . . . and that the provisions of this paragraph shall apply if loss or damage ... results . . . from negligence ... of Rollins, its agents or employees.’ ” (Emphasis added.) 240 Kan. at 680-81. That, in our view, is a clear and unequivocal expression of exemption from lability for negligence. It is a statement of exculpatory purpose beyond any peradventure of a doubt. No comparable clear and unequivocal language appears in the printed warranty and disclaimer here involved.”
We conclude that in order to protect itself from its own negligence, malfeasance, or mismanagement, an entity must employ language similar to the clause in Corral. Those drafting hold harmless clauses in the future should look to that language and follow it carefully. The type of language employed in the instant matter is not nearly as clear and unequivocal. We suspect the purpose of the clause was to shift some responsibility as to liability to third parties. The clause might be sufficient to accomplish that task. However, it does not relieve Double Circle from responsibility for its own acts of negligence and mismanagement in clear and unequivocal language. We hold that the trial court did not err in its ruling on the hold harmless clause in the instant matter.
IMPLIED WARRANTY OF WORKMANLIKE PERFORMANCE
For reasons which are not entirely clear, Zenda chose not to base its lawsuit on an express breach of contract. Rather than claiming that Double Circle had breached any express provision of the management agreement, Zenda chose to predicate liability on the basis of a breach of an implied warranty of workmanlike performance. No provision of the written management agreement between the parties required Double Circle to perform its management services in a workmanlike manner. The warranty allegedly breached is not in writing. Zenda relies on the breach of a warranty which it says was “implied” into the agreement by operation of law.
Double Circle argues that under the facts shown, no implied warranty of workmanlike performance can exist or be implied. It argues that the trial court erred in concluding that such a warranty existed. We do not agree.
The trial court, in holding that an implied warranty of workmanlike performance did exist in this case, said:
“The Court does not agree with Defendants’ position that Double Circle had very minimal obligations to oversee the Coop managers they hired and placed in the Coop pursuant to the Coop Management Agreement dated January 19, 1988. The Court believes that the Defendants had a duty to adequately supervise their employee, the Coop manager, and that they had a duty to provide management in an overall competent, honest and workmanlike manner. Coop managers placed at Zenda Coop pursuant to the Cooperative Management Agreement of January 19, 1988, were interviewed, hired, supervised and paid by the Defendant Double Circle. That manager was, in the Court’s opinion, an employee of Double Circle, not an employee of the Coop. To view Defendants’ obligation in any lesser light would result in the Coop receiving virtually nothing from the Defendants in return for payment of significant management fees. While Plaintiff has not seriously argued lack of consideration for the contract, if the Court were to adopt Defendants’ view as to their minimal obligations to perform under the contract, the Court believes a lack of consideration would be a viable issue in this case. It is the Court’s point of view that the Defendant Double Circle, took on significant duties and obligations of workmanlike performance under the contract. Whether they properly performed these duties is up to a Jury to decide. The Court will not, however, (by overly technical construction of the contract provisions) vitiate or nullify Double Circle’s obligation to competently, honestly and in a workmanlike manner perform the subject contract. The 'workmanlike performance duty may be an ‘implied duty’ under Kansas law, but the Court views it as a significant duty.
“The Plaintiff contracted with Defendant Double Circle to provide managerial services. Section Two of the Cooperative Management Agreement of January 19, 1988, grants Defendant Double Circle ‘sole authority and discretion to appoint and remove’ the Double Circle employee designated ‘Manager’ of the Coop. The Defendants cannot insulate and isolate themselves circularly and totally from the duty to provide management services in a competent, honest, workmanlike manner to Plaintiff. If the Double Circle employee (manager) was not competent, acted illegally, or contrary to Coop policy, Double Circle may have breached its contractual duties. (See also Section One and Section Nine regarding ‘management’ duties of Double Circle or provisions regarding ‘managers’.)” (Emphasis added.)
Although the trial court suggests that Double Circle may also have breached either section one or nine of the agreement, the liability of Double Circle went to the jury on the theory of a breach of an implied.warranty of workmanlike performance. The jury, however, was not instructed on the theory of express breach of contract.
Whether the trial court erred in implying a warranty of workmanlike performance is a question of law. <rWhen determining a question of law, this court is not bound by the decision of the district court.” Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). Our review of a conclusion of law is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
“Express warranties are those for which a party bargained; they go to the essence of the bargain, being a part of its basis, and are contractual, having been created during the bargaining process. Implied warranties arise by operation of law and not by agreement of the parties, their purpose being to protect a party from loss where the subject matter of the contract, though not violating an express promise, fails to conform to the normal commercial standard or meet the party’s known particular purpose.” Corral v. Rollins Protective Services Co., 240 Kan. 678, Syl. ¶ 6.
“[Tjhis court has been consistent in holding that where a person contracts to perform work or to render a service, without express warranty, the law will imply an undertaking or contract on his part to do the job in a workmanlike manner and to exercise reasonable care in doing the work. (Crabb v. Swindler, Administratrix, 184 Kan. 501, 337 P.2d 986.)
“Where negligence on the part of the contractor results in a breach of the implied warranty, the breach may be tortious in origin, but it also gives rise to a cause of action ex contractu. An action in tort may likewise be available to the contractee and he may proceed against the contractor either in tort or in contract; or he may proceed on both theories. (Nichols v. Nold, 174 Kan. 613, 258 P.2d 317, 38 A.L.R.2d 887.)” Gilley v. Farmer, 207 Kan. 536, 542, 485 P.2d 1284 (1971).
The implied warranty of workmanlike performance does not arise from a sale transaction, and resort to the Uniform Commercial Code is neither indicated nor helpful. See Corral v. Rollins Protective Services Co., 240 Kan. at 698. The warranty with which we now deal has nothing to do with the Uniform Commercial Code but is implied by operation of law. Although implied warranties are occasionally referred to as “promises,” they are not promises at all. An express warranty is a promise; an implied warranty is imposed upon the parties by operation of law and is only consensual in the most liberal use of that term. See, e.g., 17A Am. Jur. 2d, Contracts § 627, pp. 636-37.
The law in Kansas and, indeed, the general rule throughout the United States is that there is “implied in every contract for work or services a duty to perform it skillfully, carefully, diligently, and in a workmanlike manner.” 17A Am. Jur. 2d, Contracts § 627, p. 636; Crabb v. Swindler, Administratrix, 184 Kan. 501, 337 P.2d 986 (1959).
The agreement in this case is one for management services. There is no reason why it should not be implied that management services be performed skillfully, carefully, diligently, and in a workmanlike manner. Double Circle argues that the services performed under the management agreement cannot be held subject to implied warranties. It suggests that management services are akin to professional services provided by doctors and lawyers and, thus, are not subject to the implied warranty of workmanlike performance. It relies on Malone v. University of Kansas Medical Center, 220 Kan. 371, 552 P.2d 885 (1976), and Tamarac Dev. Co. v. Delamater, Freund & Assocs., 234 Kan. 618, 675 P.2d 361 (1984), to support its argument.
Although we find it difficult to reach any conclusion on the subject in reading Malone, the Supreme Court amplified the meaning of that opinion in Tamarac Dev. Co., 234 Kan. at 622;
“Based on our decision in Malone v. University of Kansas Medical Center, 220 Kan. 371, it can be said certain professionals, such as doctors and lawyers, are not subject to such an implied warranty. However, an architect and an engineer stand in much different posture as to insuring a given result than does a doctor or lawyer. The work performed by architects and engineers is an exact science; that performed by doctors and lawyers is not. A person who contracts with an architect or engineer for a building of a certain size and elevation has a right to expect an exact result. [Citation omitted.] The duty of the architect is so strong and inherent in the task, we hold it gives rise to an implied warranty of workmanlike performance.' An injured party under these circumstances may choose his remedy from express contract (if applicable), implied warranty or negligence.”
We disagree with Double Circle’s assertion that management services are akin to professional services and not subject to implied warranties of workmanlike performance. The breach of this warranty is basically tortious in nature and is shown by proof of negligence and mismanagement. We conclude that management skills may be expected to be performed skillfully and in a workmanlike manner. Kansas decisions have been rather liberal in finding that an implied warranty of workmanlike performance existed in various agreements calling for the performance of work or skill. In support of that statement, we cite the following decisions:
• Installation and service of fire and burglary alarm systems— Corral v. Rollins Protective Services Co,, 240 Kan. 678, Syl. ¶ 6.
• Engineering and architecture — Tamarac Dev. Co. v. Delamater, Freund & Assocs., 234 Kan. 618.
• Building contractors and subcontractors — Ware v. Christen-berry, 7 Kan. App. 2d 1, 637 P.2d 452 (1981).
• Insurance investigation and claims handling — Gilley v. Farmer, 207 Kan. 536.
• Plumbing contractor — Crabb v. Swindler, Administratrix, 184 Kan. 501.
We reject Double Circle’s argument that management services cannot be subjected to an implied warranty of workmanlike performance. We hold that a contract providing for management services is subject to an implied warranty of workmanlike performance and must be performed skillfully, carefully, diligently, and in a workmanlike manner. We affirm the holding of the trial court on this issue.
STATUTE OF LIMITATIONS
Perhaps the most substantial issue in this lawsuit is whether the action is subject to a statute of limitations of three or five years. Double Circle argues that the statute of limitations applicable to an action based on an implied warranty of workmanlike performance is the three-year statute under K.S.A. 60-512. Zenda argues that its action is based upon a written agreement and that the five-year period provided by K.S.A. 60-511 is applicable. The trial court agreed with Zenda and applied a five-year statute of limitations.
The parties’ relationship began on September 23, 1986, and was terminated on June 2, 1989. The instant lawsuit was filed on August 2, 1991. If the statute of limitations is a three-year statute, some of Zenda’s claims may well be barred.
K.S.A. 60-511 provides in relevant part: “The following actions shall be brought within five (5) years: (1) An action upon any agreement, contract or promise in writing.”
K.S.A. 60-512 provides a three-year statute of limitations and reads in part as follows: “The following actions shall be brought within three (3) years: (1) All actions upon contracts, obligations or liabilities expressed or implied but not in writing.”
The trial court applied the five-year statute of limitations on the theory that Zenda’s action was based upon a written agreement. The cornerstone of that decision is the trial court’s conclusion that “[t]he limiting words in K.S.A. 60-512 are the words ‘not in writing.’ If the basic contract giving rise to the breach of contract claim is in writing, then K.S.A. 60-512 does not apply.” However, the fact is that the implied warranty of workmanlike performance on which Zenda based its lawsuit cannot be found in the parties’ written agreements. The warranty of workmanlike performance was implied into the parties’ agreement by operation of law. It is a legal fiction that an implied warranty of workmanlike performance is an express provision of the written agreement in this case. It is not to be found in the writing to which these parties reduced their agreement. The trial court resolved this conundrum by citing language from other decisions which adopt the rule stated in Steele v. Latimer, 214 Kan. 329, 336, 521 P.2d 304 (1974), as follows:
“ ‘It is a general rule that contracting parties are presumed to contract in reference to the existing law; indeed, they are presumed to have in mind all the existing laws relating to the contract, or to the subject matter thereof. Thus, it is commonly said that all existing applicable or relevant and valid statutes, ordinances, regulations, and settled law of the land at the time a contract is made become a part of it and must be read into it just as if an express provision to that effect were inserted therein, except where the contract discloses a contrary intention.’ ”
This rule is also stated in Cairo Cooperative Exchange v. First Nat’l Bank of Cunningham, 228 Kan. 613, Syl. ¶ 2, 620 P.2d 805 (1980), modified 229 Kan. 184, 624 P.2d 420 (1981). Indeed, it is Cairo on which the trial court primarily relied in making its decision that the five-year statute of limitations was applicable.
As a general proposition, it seems to us that if the rationale utilized in Steele and quoted above is applied in the context of the statute of limitations, K.S.A. 60-511 becomes virtually meaningless. If the contents of every statute, ordinance, regulation, and court decision are implied into every contract, oral or written, then there is little reason to reduce the agreement to writing. Followed to its extremes, a one-paragraph written agreement which identifies the parties and the subject matter of the contract would then have implied into it all manner of covenants, warranties, etc., by operation of law. In addition, all of these absent, fictionalized provisions would be considered to be an express part of the agreement and could be sued upon to the same extent and under the same statute of limitations as if they were written down in the agreement between the parties. If that is the law, then any writing, no matter how brief, is subject to K.S.A. 60-511, and we know that this is not correct.
None of the cases relied upon by Zenda and the trial court involved the issue of the statute of limitations. Steele v. Latimer dealt with implying a warranty of habitability into an oral lease. It cannot be relied upon as an authority on a statute of limitations issue involving a document that was at least partially in writing. In Cairo, the question was whether there was an implied contract between the parties concerning the honoring of restrictive endorsements. Although Cairo adopts the sweeping statements of Steele v. Latimer, it does not do’ so in the context of the statute of limitations. Indeed, the issue of the statute of limitations was not involved in the Cairo decision. For those reasons, we do not consider either Steele or Cairo to be authoritative on the issue presently being considered.
What we are dealing with here is basically a fiction invented by the courts. There is no express agreement between these parties dealing with the obligation to perform work skillfully, carefully, diligently, and in a workmanlike manner. There is no such provision in the agreement. The implied warranty of workmanlike performance is imposed upon parties by operation of law. It is not consensual and has nothing whatsoever to do with the agreement which the parties reduced to writing. It arises because the parties have an agreement involving the performance of work or delivery of services. It would arise regardless of whether the basic agreement was entirely oral or entirely in writing, or a combination of the two. The fact is, although the courts indicate that an implied warranty of workmanlike performance is treated as if it were an express provision of the contract, it is not and never was.
We conclude that logically and by the authorities we have found, K.S.A. 60-512 applies to any cause of action based upon an implied warranty of workmanlike performance. The statute applies to “all contracts, obligations, or liabilities expressed or implied but not in writing.” Any implied warranty, by its very definition, is an implied obligation or liability which is not in writing. If it were in writing, we would not call it an implied warranty, we would call it an express warranty. If a warranty of workmanlike performance was promissory in nature and part of an oral agreement, it would be an express warranty. It is only when the parties have not included a specific warranty either in their written agree ment or as a term of their oral agreement that we imply its existence. To conclude that 60-512 cannot apply in this case because the parties reduced their agreement to writing simply ignores the fact that the written agreement between the parties does not contain an implied warranty of workmanlike performance and its existence is a purely legal fiction.
The trial court’s decision was contrary to some appellate decisions in this state. “The cause of action for breach of implied warranty has a three-year statute of limitations pursuant to K.S.A. 60-512.” Belger Cartage Serv., Inc. v. Holland Constr. Co., 224 Kan. 320, 332, 582 P2d 1111 (1978). “An action.sounding in contract for breach of an implied warranty is governed by K.S.A. 60-512 and the time, for purposes of the application of the statute of limitations, begins to run with the breach of the contract, regardless of whether the injured party is aware of the breach.” Ware v. Christenberry, 7 Kan. App. 2d 1, Syl. ¶ 1.
The trial court expresses a concern about the fact that the parties had a written agreement and that K.S.A. 60-512 cannot apply to a written agreement. That concern is negated by the fact that the cause of action in this case is not based on any express provision of the written agreement. The implied warranty of workmanlike performance arises because the parties had an agreement, and it is basically irrelevant whether that agreement was in writing or entirely oral.
In 51 Am. Jur. 2d, Limitations of Actions § 94, p. 670, it is stated: “Quasi contracts or liabilities imported into an agreement from some external source are not within a statute prescribing a period of limitations for actions ‘upon a contract in writing, or liability express or implied arising out of a written agreement.’ ”
In the final analysis, we believe this issue is controlled by Chilson v. Capital Bank of Miami, 10 Kan. App. 2d 111, 692 P.2d 406 (1984), aff’d 237 Kan. 442, 701 P.2d 903 (1985). In that case, a suit was filed by one bank to recover on an endorsement guaranteed by another bank. The endorsement was more than three years old, and the bank sought to rely on a written warranty from the letters P.E.G. stamped on the back of the check. We held that the five-year statute did not apply.
“The difficulty with Merchants’ argument is that in order for the P.E.G. stamp to have any meaning in light of the absence of an endorsement, reference must be made to the obligations implied at law by the U.C.C. The stamp does not say that prior and missing endorsements are guaranteed and plaintiff cites no authority from this state which would imply such a meaning to a P.E.G. stamp. To the contrary, plaintiff relies entirely on the provisions of the U.C.C. defining the warranties implied by law, to give force to the words stamped on the check as an independently enforceable contract. Such a writing is insufficient to establish all essential contract terms or qualify for application of a five-year statute of limitations." (Emphasis added.) 10 Kan. App. 2d at 113.
In the syllabus of Chilson, we said in part:
“A written agreement, contract or promise in writing which falls within the five-year statute of limitations, K.S.A. 60-511(1), must contain all its material terms in writing.” Syl. ¶ 1.
“A writing which is dependent upon statutorily implied warranties to state the promise allegedly breached fails to state all of the terms of the contract in writing.” Syl. ¶ 3.
“An action for breach of warranty which depends upon rights and obligations imposed by statute to state the terms of the warranty is not in the nature of an action on a writing even though the warranty may be partly stated in writing.” Syl. ¶ 4.
The settled law of this state is that a written agreement must contain all the material terms in writing to fall within the five-year statute of limitations. Miller v. William A. Smith Constructing Co., 226 Kan. 172, 174, 603 P.2d 602 (1979). Chilson merely extends this rule by holding that “[a] writing which is dependent upon statutorily implied warranties to state the promise allegedly breached fails to state all of the terms of the contract in writing.” 10 Kan. App. 2d 111, Syl. ¶ 3. Thus, such a contract does not contain all its material terms in writing and does not fall within the provisions of K.S.A. 60-511. The fact that the warranty in this case is implied by court-made law and not statutory law is a distinction without any relevance.
We adopt the philosophy expressed in Chilson. The promise allegedly breached in this case was one implied by law. The implied warranty of workmanlike performance was not a part of the written agreement between the parties except in a philosophical sense of the term. This cause of action was controlled by the three-year statute of limitations because it is based on an external source and not on an express provision of the written agreement.
Our conclusion obviously requires us to reverse the verdict on damages. It is not appropriate for us to determine from the cold record what items of damages survive our decision. On remand, the trial court should isolate, if possible, those portions of the jury’s award which are obviously within the three-year statute of limitations. As to the other damages awarded by the jury which are affected in whole or in part by our decision, we order a new trial on the question of damages; at that time the trial court will have to determine what, if any, portions of the remaining claims are time barred.
ESTOPPEL
Double Circle moved for summary judgment on the theory that Zenda had waived any breach of contract. The motion was denied. Double Circle contends this was error.
The basis for the estoppel argument is that Zenda continued to renew the agreement after it knew of breaches by Double Circle. Specifically, the management agreement between the parties expired by its own terms on March 1, 1989, and continued on a month-to-month basis thereafter until it was terminated by Zenda in June 1989. Double Circle points out that Zenda became aware of the Triple C Land Feeder Association and of the grain imbalance prior to July 1988 but continued with the agreement despite such knowledge. Double Circle argues that Zenda’s failure to terminate the agreement after it learned of these breaches results in Zenda being estopped to raise the issue in this action.
The trial court denied the motion for summary judgment, saying: “The Court concludes that with regard to the waiver’ defense alleged by Defendants there are sufficient controverted facts to merit denial of summary judgment. It will be necessary for a Jury to decide whether a waiver’ defense is applicable herein.”
Our standard of review on a motion for summary judgment is well known. See Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994). “When a 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.” Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990).
Double Circle basically argues that Zenda waived its right to recover by continuing the contract after it knew of breaches.
"Waiver in contract law implies that a party has voluntarily and intentionally renounced or given up a known right, or has caused or done some positive act or positive inaction which is inconsistent with the contractual right. [Citations omitted.] Once it has been established that a contractual right has been waived, a party possessing the contractual right is precluded from asserting it in a court of law. [Citation omitted.]” Iola State Bank v. Biggs, 233 Kan. 450, 458-59, 662 P.2d 563 (1983).
“Waiver is consensual in nature but the intention may be inferred from conduct and the knowledge may be actual or constructive.” City of Wamego v. L. R. Foy Constr. Co., 9 Kan. App. 2d 168, Syl. ¶ 3, 675 P.2d 912, rev. denied 234 Kan. 1076 (1984). “ ‘The intent to waive known rights is essential.’ ” Stratmann v. Stratmann, 6 Kan. App. 2d 403, 410, 628 P.2d 1080 (1981).
“A court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue necessitates a determination of the state of mind of one or both of the parties.” Ruebke v. Globe Communication Corp., 241 Kan. 595, 605, 738 P.2d 1246 (1987).
Guided by the authorities cited above, we conclude the trial court did not err in denying Double Circle’s motion for summary judgment. Although Double Circle states that “[i]t is uncontroverted that Zenda became aware of the Triple C Lamb Feeders situation and of the grain imbalances prior to July, 1988,” there is no citation to the record to support this assertion. Supreme Court Rule 6.02(d) (1994 Kan. Ct. R. Annot. 29) states that “[t]he facts stated [in appellant’s brief] shall be keyed to the record on appeal so as to make verification reasonably convenient. Any material statement made without such a reference may be presumed to be without support in the record.” (Emphasis added.) This rule has been applied precisely as it is written. McCaffree Financial Corp. v. Nunnick, 18 Kan. App. 2d 40, 48, 847 P.2d 1321 (1993). Accordingly, we conclude that the assertion by Double Circle is without support in the record. In addition, Zenda denies the allegation.
Our standard of review requires that we review the record in favor of Zenda and, in so doing, we conclude the trial court did not err in denying summary judgment on the basis stated. The issue was properly presented to the jury, and the jury, based on all the evidence, found that no such waiver existed. We affirm that finding.
ARTICLES OF INCORPORATION
Double Circle sought to show that Zenda retained control over the management of its business and could have fired the Double Circle manager had it chosen to do so. To this end, Double Circle sought to have admitted in evidence Zenda’s articles of incorporation, bylaws, and board policy. The trial judge excluded this evidence, ruling:
“I think it is going to serve to misdirect and confuse the jury’s deliberations with regard to whether or not the cooperative management agreement was breached. I think we can instruct them properly and then counsel have leeway to argue with regard to the documents and the exhibits. I believe that Defendant’s 501 has tire potential for confusing the jury, that it has minimal if any relevancy or materiality to the breach of contract question and that it confuses issues of nondelegability, which I’ve already ruled on right or wrong. Either I’m right or I’m wrong on that, but I’m really concerned that this document is— has the likelihood for confusing the jury and so I intend to reverse myself as to 501. I’m going to refuse admission of that at this time and I’m going to give the jury a cautionary instruction about that first thing this morning.”
Double Circle argues on appeal that the trial court’s ruling was reversible error. “An evidentiary ruling on relevancy ordinarily rests in the sound discretion of the trial court.” Herbstreith v. de Bakker, 249 Kan. 67, 83, 815 P.2d 102 (1991). “A trial judge has broad discretion to exclude relevant evidence where the judge finds its probative value is substantially outweighed by its prejudicial nature.” 249 Kan. at 84.
The issue was whether Double Circle breached the cooperative management agreement. Double Circle’s strategy at trial, insofar as the articles of incorporation, bylaws, and board policies were concerned, was directed at demonstrating the obligation of the board to set salary, hire, fire, and supervise managers. The trial court, however, ruled that the nondelegability doctrine was not a defense available to Double Circle. It concluded that the management agreement altered the relationship between Zenda and its manager. It further ruled that such an alteration of relationship was proper. We agree with those decisions of the trial court.
There was no issue concerning Zenda’s obligation to supervise and control its manager. In the absence of such an issue, the articles, bylaws, and board policies would only have confused and misled the juiy.
We hold that the trial court did not err by excluding the articles of incorporation, bylaws, and board policies from evidence.
LOST PROFITS
The jury awarded Zenda damages for loss of profits in 1989 in the amount of $78,130.54 and $11,919.18 for 1990. We cannot, at this time, predict the impact of our decision on the statute of limitations on the award for lost profits, and those awards must be reversed and remanded. However, it is the position of Double Circle that it was error to submit loss of profits to the jury at all because the evidence was too speculative. This issue will be important on remand and, for that reason, we will address it.
“Loss of profits resulting from a breach of contract may be recovered as damages when such profits are proved with reasonable certainty, and when they may reasonably be considered to have been within the contemplation of the parties.” Vickers v. Wichita State University, 213 Kan. 614, Syl. ¶ 1, 518 P.2d 512 (1974). “The fact damages cannot be calculated with absolute exactness will not render them so uncertain as to preclude an assessment.” 213 Kan. 614, Syl. ¶ 2. “Evidence necessary in establishing loss of future profits with reasonable certainty is dependent upon the facts and circumstances of the particular case.” 213 Kan. 614, Syl. ¶ 3.
Double Circle’s basic argument is that because Zenda lost money for each of the five years previous to the management agreement, the issue of loss of profits was too speculative to submit to the juiy.
“Evidence of past profitability is not the sole method of showing lost profits. In weighing the evidence presented, the court should view each case individually and pragmatically, and require the best proof available as to the amount of loss sustained.” Butler v. Westgate State Bank, 226 Kan. 581, Syl. ¶ 2, 602 P.2d 1276 (1979).
“As to evidentiaiy matters a court should approach each case in an individual and pragmatic manner, and require the claimant furnish the best available proof as to the amount of loss that the particular situation admits. [Citation omitted.] It is the responsibility of a district court to see that speculative and problematical evidence does not reach the jury. [Citation omitted.]” Vickers v. Wichita State University, 213 Kan. at 620.
The Supreme Court has indicated that “[tjhe purpose of awarding damages is to make the injured party whole.” Gillespie v. Seymour, 250 Kan. 123, Syl. ¶ 8, 823 P.2d 782 (1991). We have said that “[wjhere the cause and existence of damages are established with requisite certainty, recovery will not be denied because the damages are difficult to ascertain. In such cases, evidence which establishes the extent of damages ás a matter of just and reasonable inference is sufficient.” New Dimensions Products, Inc. v. Flambeau Corp., 17 Kan. App. 2d 852, Syl. ¶ 2, 844 P.2d 768 (1993).
These decisions indicate an emphasis on making an injured party whole and a rather liberal approach to what evidence is required to do so. We examine this case in the light of that express policy and our standard of review and conclude that the trial court did not err in permitting the jury to consider the question of loss of profits.
Double Circle argues that loss of profits was not within the contemplation of the parties. They point to the first management agreement between the parties, which provided that Double Circle agreed to pay Zenda 10 percent of any losses sustained by Zenda, limited to the amount of fees received under the agreement. This particular provision, however, was not in the 1988 management agreement.
Double Circle’s argument implies that the 10 percent provision in the first management agreement was a liquidated damages clause. We hold that it was not. The clause was entitled “Management Fees.” The clause provided that if Zenda made a profit beyond projections, Double Circle was entitled to a 10 percent bonus. Likewise, if Zenda lost money, Double Circle would ab sorb 10 percent of the loss, limited to its management fee. We do not construe this provision of the agreement as providing for liquidated damages. It also does not indicate that damages from loss of profits were not contemplated.
Zenda’s purpose in entering into the management agreement was to procure professional management services so that the cooperative might show a profit. It is certainly a stretch to conclude that the parties did not contemplate that the breach of this agreement would entail substantial losses such as those actually suffered by Zenda. We consider Double Circle’s argument on this issue to be without merit.
Double Circle then argues that there was no evidence establishing lost profits with reasonable certainty. Zenda sought lost profits for 1989 of $239,046 and $187,139 from 1990, and loss of future profits of $351,363. The jury made no award for loss of future profits and substantially lesser amounts for the years 1989 and 1990. Despite that .fact, juries are not obliged to enter awards which are crystal clear to the courts or to anyone else. The award must be within the evidence and not unduly speculative. We believe that based on the evidence, it was not error to submit the issue of lost profits to the jury. Zenda’s primary witness on this issue was Bob D. DeVault, who had prepared annual audits of the Zenda cooperative for a number of years. DeVault testified that he prepared a compilation of statistical information on some 153 cooperatives, 35 to 40 of which were in central Kansas. At one point, the following testimony was given:
“Q. So we can look at this exhibit and tell what the — If Zenda had made the average margins and applied that to the sales that they generated in a particular year, you could then come up with a — what they should have had as a gross profit; is that correct?
“A. That would be one way to determine it, yes.”
From the testimony of DeVault and from an examination of the exhibits which he prepared and which were marked and admitted, the jury had a reasonable basis on which to conclude what sort of profit Zenda could have made with competent management.
We conclude that the evidence was not so speculative that the trial court erred in submitting the issue of loss of profits to the jury. We further conclude the jury’s award as it relates to lost profits is supported by substantial competent evidence.
All of this is rather theoretical. The question of damages must be redetermined on remand. It is not possible for us to determine the exact evidence which may be used by the parties on a retrial of the issue of damages. Therefore, to the extent that our comments on this issue are helpful, we would consider our treatment of the problem to have been worthwhile.
USE OF A CALCULATOR
When sending the jury to deliberate, the trial court stated, “I will send in the exhibits and the instructions and I think they got you a calculator in case you need it.”
Double Circle objected to the trial court’s action of permitting the jury to have a calculator, stating:
“I think when you send in a verdict form with the evidence and a calculator you are making an inference to the jury that is improper. I am not aware of any case I’ve been involved in where calculators are sent in at the outset without any request for one by the jury. I object to that. I wasn’t aware that that would be done or I would have objected to it prior to going in.”
It is this type of objection which indicates the intensity with which this case was tried. Double Circle has not shown that it was prejudiced to any extent by the trial court’s action in providing a calculator to the jury. We believe that it was a matter within the discretion of the trial court and that the trial court did not abuse its discretion.
PBETUDGMENT INTEREST
The jury’s verdict in this case was itemized as to several claims which Zenda made against Double Circle. The trial court found that most of the claims were liquidated as of November 30, 1989, which was the date on which Zenda closed its books. The grain loss claims were determined to be liquidated as of September 29, 1988, and the Nicholas check on May 25, 1989. The claims for loss of profits were held to be unliquidated. The trial court awarded prejudgment interest on the following liquidated claims:
(1) Beeman note, judgment for $478.97, prejudgment interest at 12 percent.
(2) Beeman account receivable, judgment for $320.10, prejudgment interest at the 18 percent cooperative finance charge rate.
(3) Dick note, judgment for $1,826.26, prejudgment interest at 12 percent.
(4) Dick account receivable, judgment for $1,482.15, prejudgment interest at 18 percent finance charge rate.
(5) Nicholas check, judgment for $5,000, prejudgment interest at 10 percent statutory rate.
(6) Wilson claim, judgment for $1,288.90, prejudgment interest at 18 percent finance rate.
(7) Grain losses, $40,500, prejudgment interest at 10 percent statutory rate.
Double Circle attacks the award of prejudgment interest on the theory that all of the claims were unliquidated. Double Circle also attacks the rate as fixed by the trial court, arguing that in no event could the rate exceed the statutory interest rate of 10 percent.
We begin by noting that our decision on the statute of limitations may affect the amounts recoverable by Zenda on some of its claims. This is a problem left for the trial court to resolve. Our decision is only applicable to those claims or portions of claims still recoverable under the three-year statute of limitations.
“A claim becomes liquidated when both the amount due and the date on which it is due are fixed and certain, or when the same becomes definitely ascertainable by mathematical computation. Where an amount is due upon contract, either express or implied, and there is no uncertainty as to the amount which is due or the date on which it becomes due, the creditor is entitled to recover interest from the due date.” Plains Resources, Inc. v. Gable, 235 Kan. 580, Syl. ¶ 1, 682 P.2d 653 (1984).
Double Circle argues that the Beeman, Dick, Nicholas, and Wilson claims were unliquidated because the amounts due and owing varied from the petition to the pretrial order to the final amount of the judgment. It suggests that if Zenda did not know what was due on the claim at any particular time, the claim could not be liquidated. We do not agree. The amounts due on the notes and accounts receivable varied simply because, during the course of the lawsuit, Zenda was receiving payments and applying payments to the accounts. The amounts' due on these accounts and notes were always ascertainable by mathematical computation at any given time. The fact that the amount due and ascertainable varied from time to time due to collection efforts only makes the math somewhat more difficult; it does not render the claim itself unliquidated. The trial court did not err in holding the various accounts and notes due to Zenda were liquidated claims.
The grain losses present a different problem. These losses were caused when the Double Circle managers purchased grain and then left that grain purchase “open” on the grain market. A prudent grain operator will purchase grain for a certain amount and immediately resell it for a certain amount. The difference between what the grain was purchased for and what it sold for determines the profit or loss on that transaction. In this case, there were several transactions in which grain was purchased but not immediately sold, leaving those transactions open and resulting in an inability to determine a gain or loss on that transaction. We have no evidence in this record as to when the various grain purchases were “closed.” This evidence is, presumably, in the daily grain logs which were not admitted into evidence. We conclude that under these facts, the amount of the grain losses were not ascertainable until the date Zenda closed its books. As a result, the grain losses could not be liquidated and could not draw prejudgment interest any earlier than November 30, 1989.
The trial court concluded that the grain losses became liquidated on September 29, 1988, which is the date on which David Luppes made notes on the losses and advised the Board. Our reading of the record indicates that the losses calculated by Luppes were not much more than an educated guess. On this particular date, there is no indication that the sale in question had even been closed, and, without that evidence, the amount of the loss on that transaction is not ascertainable. We conclude that the trial court erred in holding that the grain losses became liquidated on September 29, 1988. They could not have been liquidated, based on the record on appeal, any earlier than the day Zenda closed its books.
On remand, the grain losses must be recomputed based on a three-year statute of limitations. At that time, the court must redetermine whether those losses are liquidated and, if so, on what date they became liquidated. This determination should take into consideration the factors cited in this opinion.
Finally, we consider the interest rate applied by the trial court. Double Circle argues that the interest rates of 12 percent and 18 percent applied by the trial court on the Beeman, Wilson, and Dick claims were erroneous. We agree.
K.S.A. 16-201 sets the amount of interest to be applied to a liquidated claim at 10 percent unless the parties agree to a different amount. Scott v. Strickland, 10 Kan. App. 2d 14, 24, 691 P.2d 45 (1984). “A person who is not a party to the contract cannot be bound by the interest rate stated in that agreement.” 10 Kan. App. 2d at 24.
Double Circle points out that it was not a party to any agreement between the Zenda cooperative and Wilson, Beeman, and Dick and, thus, cannot be bound by the interest rate agreed to by those parties. We agree. The correct prejudgment interest rate to be applied to these claims is the statutory rate of 10 percent and not the 12 and 18 percent rates applied by the trial court.
Double Circle also argues that an action for breach of an implied warranty of workmanlike performance sounds in both tort and contract and that prejudgment interest is inappropriate on a tort claim.
This argument conveniently overlooks the fact that Zenda had an option to proceed either in tort or in contract. It clearly proceeded in contract, and, in a contract action, prejudgment interest is appropriate.
THE CROSS-APPEAL
Breach of express contract
Zenda attempts to extricate itself from the effects from having proceeded on a theory of breach of an implied warranty of workmanlike performance. It does so by arguing on cross-appeal that Double Circle’s failure to keep the Zenda board informed, and its failure to execute board-approved plans and policies, consti tuted a breach of express contract. Zenda then argues that since its losses were due to a breach of express contract, the jury’s verdict should not be disturbed.
This is not a proper issue for appeal. Zenda is not appealing any decision by the trial court. It does not argue that the trial court erred in not instructing the jury on breach of express contract. It apparently seeks to protect its verdict on a “right for the wrong reason” argument.
This issue is totally without merit. The approved jury instructions did not submit the issue to the jury on a breach of express contract. The jury was instructed on the breach of an implied warranty of workmanlike performance. Zenda did not object to the instructions or to the jury form submitting the case to the jury on this theory.
This issue was not raised at the trial court level. Zenda cannot present a theory on appeal not presented to the trial court. Plummer Development, Inc. v. Prairie State Bank, 248 Kan. 664, Syl. ¶ 3, 809 P.2d 1216 (1991).
Exclusion of evidence
Zenda next argues that the trial court erred in excluding from evidence certain documents known as “Daily Grain Position Statements.”
The record shows that the trial court excluded these documents due to Zenda’s failure to comply with discovery requests. Documents were requested by Double Circle and were shown to have been within the exclusive control of Zenda. Despite this fact, the items were not produced until two days before trial. By that time, Double Circle had already deposed Zenda’s expert regarding the issue of grain speculation without the requested documents.
The trial court ruled that the documents were not admissible and stated:
“And, secondly, the grain position papers. There’s no way I am going to let those in based on what you just told me because I — I cannot believe that the discovery he instituted didn’t contemplate receiving copies of those papers and why they weren’t — if you had them in August and you sent them to him last Thursday, that’s beyond me. I don’t buy that they weren’t of any value to him until the FCC papers were obtained. It really isn’t your choice to determine what value they are to him. And since they were in tire sole control of the co-op, I think you at the very least didn’t comply with the — with a discovery request. And I don’t see any justification for allowing those in under this set of circumstances under the — the set of circumstances that you detailed to me. So — And—And we’re way out of bounds with regard to this witness going into comparisons of those at this date.”
We agree with the trial court. “Rulings on admissibility of evidence fall within the sound discretion of the trial court. Thus, one attacking evidentiary rulings must show abuse of discretion. An abuse of discretion exists only when no reasonable person would take the view adopted by the trial court.” Enlow v. Sears, Roebuck & Co., 249 Kan. 732, Syl. ¶ 9, 822 P.2d 617 (1991).
We find no abuse of discretion by the trial court in its ruling on the grain position papers. We cannot say that no reasonable person would exclude those items from evidence when they were produced only two days before trial in a case where extensive discovery had been undertaken on precisely the issue addressed by the excluded documents. The exclusion of these documents from evidence is a problem of Zenda’s own making, and we affirm the trial court’s ruling with regard to the admissibility of the grain position papers.
Feedlot policy and daily statements
The trial court also excluded from evidence a Zenda board policy regarding the sheep feedlot and daily account statements to Triple C.
These documents were excluded from evidence because of Zenda’s failure to produce them during discovery. We affirm the trial court’s decision on this issue for the same reasons stated in the discussion concerning the daily grain position statements.
Itemization of damages, including attorney fees and accounts receivable
Zenda argues that the trial court abused its discretion in limiting the rebuttal testimony of Michael Gillian. Zenda sought to elicit testimony on rebuttal regarding former manager Wilson reimbursing himself $110 in cash for travel expenses. The trial court excluded this testimony as improper rebuttal. The trial court also excluded exhibits showing Wilson had written a check for supplies that also included personal items.
“Rebuttal evidence can be introduced only after the parties have closed their case in chief and is limited to issues placed in conflict by the adverse party. It is clearly within the discretion of the trial court to determine whether rebuttal evidence is admissible, and the ruling of the court will not be grounds for reversal unless it appears the discretion has been abused to the prejudice of the complaining party.” Enlow v. Sears, Roebuck & Co., 249 Kan. 732, Syl. ¶ 11.
We find no abuse of discretion in the trial court’s rulings on rebuttal evidence. On the issue of whether Wilson reimbursed himself for travel, the record shows that Zenda did not inquire of this item in its case in chief. It was simply not proper rebuttal testimony. As to personal items purchased and charged to Wilson’s account, Double Circle admitted those items. The result is that the personal charges were not an issue and not proper rebuttal testimony.
Zenda next argues that the trial court erred by failing to include on the verdict form as itemized damages attorney fees incurred in the collection of the Thimesch account. Zenda’s problem is that it did not object to the verdict form submitted to the jury.
The failure to object to an issue submitted to the jury by way of special question prevents an appellant from raising the issue to an appellate court. Bick v. Peat Marwick & Main, 14 Kan. App. 2d 699, 703, 799 P.2d 94, rev. denied 247 Kan. 703 (1990).
Farmland Industries
Finally, Zenda argues that the trial court erred in not allowing the mention of Farmland Industries where necessary to prove written documents.
The trial court dismissed Farmland as a party defendant and instructed counsel not to mention Farmland any more than necessary. Zenda argues that keeping Farmland from being mentioned created chaos throughout the trial and was error.
Zenda cites an instance in which the trial court required a letter be redacted by replacing the mention of “Farmland” with “Double Circle.”
This is an item addressed to the sound discretion of the trial court, and we see no abuse of discretion. In addition, Zenda to tally fails to demonstrate how minimizing the reference to Farmland prejudiced it. It appears to us that the exclusion of any mention of Farmland was necessary to prevent prejudice from arising in the minds of the jurors and that this ruling was well within the discretion of the trial court.
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PlERRON, J.:
David Martinez was found guilty by a jury of attempted aggravated assault. In this direct appeal, defendant argues he was denied his right to a speedy trial. Defendant also contends he was denied due process because the jury was instructed on and he was found guilty of an offense that allegedly does not exist under Kansas law.
Larry and Lori Grubb were driving Sheree Hale to a store to collect boxes to be used by Sheree, as she was moving out of her apartment. Sheree saw defendant walking down the street. Defendant and Sheree had lived together until early May 1993. When she saw defendant, Sheree asked Larry to stop the car, and she asked defendant if he wanted to help get boxes. Before getting into the car, defendant pulled a sawed-off shotgun from his pants. He got into the car with the gun, despite requests that he not bring the gun into the car.
Lori asked Larry to take her and the children home because she did not want to be around the gun. Larry drove back to their home, directly across the street from Sheree’s apartment. Upon reaching the apartment, Sheree told defendant to get rid of the gun. Defendant got out of the car, entered Sheree’s apartment, and returned minutes later without the gun.
Sheree and defendant returned to her apartment and began to argue. While in the kitchen, Sheree asked defendant where he had put the gun. Defendant pulled the shotgun out of the clothes dryer and began swinging it around, but he did not point it at anyone. Sheree told defendant to get the gun out of her house. She then went to the front room to watch television and ignored the defendant.
At trial, Sheree testified the next thing she knew, she heard a “click” at the side of her head. She turned her head and saw the gun was inches away and pointed at her left temple. She immediately knocked the gun away with her arm.
Sheree testified she had not seen the gun from the time she left the kitchen and did not know defendant was next to her until she heard the click. Upon hearing the click, Sheree suspected the gun was not loaded. Sheree testified that when she saw the gun pointed at her, she was mad. She did not testify that she was in immediate apprehension of bodily harm.
After defendant left her apartment, Sheree went across the street to the Grubbs’ and called the police. Defendant was arrested on May 17, 1993, and charged with aggravated assault. He was arraigned on June 10, 1993, and the case was set for trial in August 1993. However, for reasons described below, defendant was not tried until January 5, 1994.
At the conclusion of all the evidence, the trial court held an instruction conference. Over defendant’s objection and at the request of the State, the trial court instructed the jury on attempted aggravated assault as a lesser included offense.
The juiy found defendant guilty of one count of attempted aggravated assault. On March 17, 1994, defendant was sentenced to one to two years, and his guidelines sentence was calculated to be eight months. The trial court granted defendant’s request for probation. Defendant appeals his conviction.
Defendant first argues his statutory right to a speedy trial was violated. The Sixth Amendment to the Constitution of the United States and § 10 of the Bill of Rights of the Kansas Constitution guarantee a criminal defendant the right to a speedy trial. In addition, the Kansas Legislature has imposed a statutory time limitation, K.S.A. 22-3402, within which an accused must be brought to trial. State v. Green, 252 Kan. 548, 550, 847 P.2d 1208 (1993). “The purpose of K.S.A. 22-3402 is to implement an accused’s constitutional right to a speedy trial.” State v. Green, 254 Kan. 669, 672, 867 P.2d 366 (1994).
K.S.A. 22-3402(1) provides:
“If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).”
“It is the State’s obligation to insure that an accused is provided a speedy trial.” Green, 254 Kan. at 672. The accused has no duty to bring himself to trial. State v. Warren, 224 Kan. 454, Syl. ¶ 2, 580 P.2d 1336 (1978). If the State fails to bring the accused to trial within the time limit fixed by K.S.A. 22-3402, the accused is entitled to be discharged. However, “[d]elays which are the result of the application or fault of the accused are not counted in computing die statutoiy speedy trial period.” Green, 252 Kan. at 550; see K.S.A. 22-3402(1).
Defendant was brought to trial 209 days after arraignment. Defendant, who was held in custody for the entire time prior to his trial, contends his right to a speedy trial, as set forth in K.S.A. 22-3402(1), was violated and the charges should have been dismissed.
The defendant’s case was first set for trial on August 16, 1993, well within the statutory 90-day period. The trial court continued the trial until September 13, 1993. The first continuance was based on K.S.A. 22-3402(3), which provides:
“(3) The time for trial may be extended beyond the limitations of subsections (1) and (2) of this section for any of the following reasons:
“(d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than thirty (30) days may be ordered upon this ground.”
Based on K.S.A. 22-3402(3)(d), the trial would have been timely on September 13, 1993, even though the 90-day period expired on September 8, 1993.
On September 2, 1993, 84 days after the arraignment, defendant requested a continuance because defense counsel was going on vacation. Defense counsel informed both the court and the State that he would be returning to the area on the evening of September 14, 1993. The trial court granted the continuance and ordered the case to be reset for trial as soon as possible.
Defendant acknowledges that delays which are the result of the application or fault of the accused are not counted in computing the statutory speedy trial period. However, defendant argues that the delay in rescheduling after his motion for continuance was unreasonable and charging the entire time to defendant would be manifestly unfair.
In State v. Dreher, 239 Kan. 259, 261, 717 P.2d 1053 (1986), the Kansas Supreme Court held that “any additional period of time assessed against a defendant due to the necessity of rescheduling a trial because of his fault should be limited to a reasonable time measured by the particular circumstances of the case.” See State v. Roman, 240 Kan. 611, 613, 731 P.2d 1281 (1987); State v. Bean, 236 Kan. 389, 393, 691 P.2d 30 (1984); State v. Sherman, 217 Kan. 326, 330, 536 P.2d 1373 (1975). The State is not relieved of its duty to provide the accused a speedy trial merely because the accused has requested a continuance.
From September 15, 1993, when defense counsel returned from vacation, until January 5, 1994, the day the trial was held, 112 days had passed. During this period, the State apparently made one attempt to set the trial for October 4, 1993. Unfortunately, the State could not secure the complaining witness’ presence in court on that particular day. There is no evidence the State made further efforts to satisfy its duty to bring defendant to trial within a reasonable time of the continuance.
The State’s lack of concern for the defendant’s right to a speedy trial is further illustrated by its reaction to defendant’s motion to dismiss. The motion was filed on November 19, 1993. When it was heard on December 3, 1993, the case had still not been scheduled for trial. Even after the trial court infonned the parties that the case should have been set for trial before that time, it took the State 33 days to bring the defendant to trial.
The State seeks to rely on K.S.A. 22-3402(3)(c), which provides that the time for trial may be extended if:
“(c) There is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding ninety (90) days.”
According to the State, since it was unsuccessful in securing the witness’ testimony for October 4, 1993, the delay should be classified as a continuance based on K.S.A. 22-4302(3)(c). The State cites no authority for treating the delay as a continuance when the trial court did not consider the issue or grant a continuance. Furthermore, the State’s own argument illustrates the difficulty in its position. If the State is given the benefit of a 90-day continuance, beginning October 4, 1993, those 90 days expired 3 days before defendant was actually tried.
Nonetheless, there may have been circumstances not reflected in the record that would make the delay in this case reasonable. Under normal circumstances, we would be inclined to remand this case to the district court for a determination on the reasonableness of the delay. In light of our holding on the next issue, however, such a remand is not necessary.
Defendant next argues his conviction for attempted aggravated assault must be reversed because no such crime existed in this state at the time in question. Wre agree.
In State v. Sexton, 232 Kan. 539, 542-43, 657 P.2d 43 (1983), the Kansas Supreme Court observed: “It has long been the rule in Kansas that all crimes are established by legislative act. There are no common law crimes in the state, and there can be no conviction except for such crimes as are defined by statute.” See State v. Young, 55 Kan. 349, 356, 40 Pac. 659 (1895).
“[I]t is an ultimate function of the courts to determine whether a statute or combination of statutes actually proscribes certain conduct as criminal.” 232 Kan. at 542. Thus, determining whether certain conduct is criminal is a question of statutory interpretation. “Interpretation of a statute is a question of law.” State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). See Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). On questions of law, our review is unlimited. This court is not bound by the determinations of the district court. Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
The statutory provisions relevant to a determination of whether the crime of attempted aggravated assault exists include K.S.A. 1992 Supp. 21-3301, K.S.A. 21-3408, and K.S.A. 21-3410. The relevant portions of K.S.A. 1992 Supp. 21-3301 provide:
“(a) An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.
“(b) It shall not be a defense to a charge of attempt that the circumstances under which the act was performed or the means employed or the act itself were such that the commission of the crime was not possible.”
A simple assault is defined in K.S.A. 21-3408 as follows:
“An assault is an intentional threat or attempt to do bodily harm to another coupled with apparent ability and resulting in immediate apprehension of bodily harm. No bodily contact is necessary.”
Finally, K.S.A. 21-3410(a) defines aggravated assault:
“Aggravated assault is:
(a) Unlawfully assaulting or striking at another with a deadly weapon; or
(b) Committing assault by threatening or menacing another while disguised in any manner designed to conceal identity; or
(c) Willfully and intentionally assaulting another with intent to commit any felony.”
The issue of whether there can be a distinct offense of an attempt to commit an assault has never been directly addressed by the appellate courts of this state.
In State v. Patchett, 229 Kan. 163, 621 P.2d 1011 (1981), the Kansas Supreme Court acknowledged the issue but left the question unresolved. In Patchett, the defendant argued there can be no such crime as attempted assault because an assault is an attempted batteiy and an attempted assault would consist only of an attempt to attempt a crime, which action cannot be a crime. 229 Kan. at 165.
There are at least two reported cases in Kansas where the defendant has been convicted of some type of attempted assault. Unfortunately, the issue of whether that crime exists was never addressed.
In Fields v. State, 195 Kan. 718, 719, 408 P.2d 674 (1965), the defendant entered a plea of guilty to one count of attempted felonious assault. On appeal, defendant raised several issues regarding his conviction. However, he never raised the issue of whether such a crime exists. The Supreme Court affirmed the judgment. This case, however, involved a plea of guilty.
In State v. Boan, 235 Kan. 800, 807, 686 P.2d 160 (1984), the issue was whether the trial court erred in admitting a prior conviction under K.S.A. 60-455. The prior conviction was for attempted aggravated assault and occurred in 1977. The Supreme Court found the evidence was properly admitted.
The Patchett court stated: “There is authority which recognizes the existence of attempted aggravated assault. State v. Clanton, 219 Kan. 531, 533-34, 548 P.2d 768 (1976); Perkins on Criminal Law, Ch. 2, § 2 B3 (2nd ed. 1969); Annot., 79 A.L.R.2d 597. However, we do not reach the question in this case.” 229 Kan. at 165.
In the instant case, defendant’s argument that there is no such crime as an attempted, assault is based on the same rationale as the argument made in Patchett. Defendant argues that because an assault is defined as an intentional threat or attempt to do bodily harm, it is a logical absurdity to allow a prosecution for an attempt to attempt.
Defendant’s argument is directed at a common-law conception of assault that has long since been abandoned in this state. At common law, an assault was merely an attempt to commit a battery. 2 Wharton’s Criminal Law § 179 (15th ed. 1994); Perkins & Boyce, Criminal Law § 2, p. 159 (3d ed. 1982); see State v. Daniels, 12 Kan. App. 2d 479, 482, 753 P.2d 300 (1987). Furthermore, it is generally recognized that “[t]here can be no attempt to commit a crime which is itself an attempt, i.e., there can be no attempt to commit an attempt.” 4 Wharton’s Criminal Law § 741, p. 568 (14th ed. 1981). See Annot., 79 A.L.R.2d 597 §§ 1, 2; 6 Am. Jur. 2d, Assault and Battery § 10; see also 21 Am. Jur. 2d, Criminal Law § 158, p. 313.(stating “where the substantive offense is in the nature of an attempt, there can be no conviction for an attempt to commit it, since it would be merely an attempt to attempt”). At common law, since an assault was itself an attempted battery, it was generally held there could not be an attempt to commit an assault. 4 Wharton’s Criminal Law § 741, p. 568. See Allen v. People, 175 Colo. 113, 485 P.2d 886 (1971); Wilson v. State, 53 Ga. 205 (1874); Green v. State, 82 Ga. App. 402, 61 S.E.2d 291 (1950); State v. Davis, 108 N.H. 158, 229 A.2d 842 (1967); State v. Hewett, 158 N.C. 627, 74 S.E. 356 (1912).
The offense of assault, however, is no longer defined strictly as an attempted battery. In Daniels, 12 Kan. App. 2d 482-83, this court recognized:
“In Kansas today, ... as in most states, an assault is not necessarily an attempted battery. As stated in 2 Wharton's Criminal Law § 180, pp. 300-01:
‘In most jurisdictions, there is another way by which as assault may be committed: by defendant's performing an act which places another in- reasonable apprehension of an imminent contact. (This also happens to be the tort theory of assault.) Under this theory of assault, the defendant need not intend to cause a contact, and by definition the victim must be aware of the impending contact.’
“As the Judicial Council note to K.S.A. 21-3408 indicates, the definition of assault under the criminal code adopted in 1969 ‘follows the tort concept of assault and is narrower than the usual criminal definition of assault. The crime of assault does not usually include the apprehension of bodily harm as a necessary element of the offense. The status of the former Kansas law is not entirely clear.’ Under this theory of assault, the defendant’s intent is not the determining factor; the focus is shifted to the victim’s perception of impending harm. Also, the defendant may intend either just to threaten or to do bodily harm. K.S.A. 21-3408.”
According to K.S.A. 21-3408, an assault can result from either an intentional threat or an attempt to do bodily harm (an attempted battery). Thus, defendant’s argument that an attempt to attempt a crime is not a crime at all is only applicable to those cases in which the assault arose out of an attempt to do bodily harm. In such a case, a defendant cannot be convicted of an attempt to attempt to do bodily harm.
Defendant’s argument, however, leaves intact the possibility of an attempted assault arising out of intentional threat to do bodily harm. We now turn to that issue.
At Annot., 79 A.L.R.2d at 598, it is written:
“Whether or not there can be a distinct offense of an attempt to commit an assault depends, from the logical standpoint, on what an assault is regarded as being. If an assault is an ‘attempt’ to do something, the contention can be made that there can be no ‘attempt to attempt’, but if an assault is regarded as simply putting a person in fear of his life or of personal injury, perhaps there can, from the philosophical standpoint, be an attempt at an assault.”
This same proposition is explained at 4 Wharton’s Criminal Law § 741, p. 568-69:
“If an assault is defined as the performance of an act which places another in reasonable apprehension of an imminent contact, the defendant intends merely to frighten the victim; he does not intend to follow through and cause the contact of which the victim is apprehensive. Under this definition of assault, there would appear to be no conceptual difficulty in finding a defendant, who attempted but fails to frighten the victim, guilty of an attempt to commit an assault.”
It should be apparent that there is no conceptual or philosophical difficulty preventing a conviction for attempted assault arising out of an intentional threat to do bodily harm. Nonetheless, we find that well-established rules of statutory construction require the conclusion that there could not be a valid conviction for attempted assault in Kansas under the laws in effect at the time of the incident in this case.
It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). See State v Gonzales, 255 Kan. 243, 248-49, 874 P.2d 612 (1994). The legislature is presumed to intend that a statute be given a reasonable construction, so as to avoid unreasonable or absurd results. Todd v. Kelly, 251 Kan. at 520. Furthermore, our criminal statutes are to be construed strictly against the State. State v. JC Sports Bar, Inc., 253 Kan. 815, 818, 861 P.2d 1334 (1993).
K.S.A. 21-3408 makes a threat to do bodily harm a crime only if it results in immediate apprehension of such harm. See Judicial Council note appended to K.S.A. 21-3408. The apprehension of bodily harm is a threshold requirement of criminal culpability. See State v. Warbritton, 215 Kan. 534, 537-38, 527 P.2d 1050 (1974). By specifically requiring the defendant’s action to result in immediate apprehension of bodily harm, the legislature has chosen to punish conduct which causes a particular result rather than only specific conduct.
Our attempt statute, K.S.A. 1992 Supp. 21-3301(a), necessarily requires that the defendant failed to perpetrate the subject crime, i.e., the defendant failed to put the victim in immediate apprehension of bodily harm. Since the legislature has chosen to punish a particular result in K.S.A. 21-3408, it would contravene the purpose of the statute to make conduct criminal that did not achieve the result the legislature has deemed punishable. Applying the attempt statute to K.S.A. 21-3408 would lead to a result apparently not intended by the legislature.
This principle is best reflected by the Supreme Court’s recent decision in State v. Robinson, 256 Kan. 133, 883 P.2d 764 (1994). In that case, it was held that Kansas does not recognize the crime of attempted felony murder. The court explained: “The application of the felony-murder doctrine in Kansas always has depended on the existence of an actual homicide.” 256 Kan. at 136. Absent a homicide there cannot be a felony murder and there cannot be an attempted felony murder. Furthermore, “the purpose of the felony-murder doctrine is to deter those engaged in felonies from killing negligently or accidentally and the doctrine should not be extended beyond the rational function which it was designed to serve.” 256 Kan. at 136.
The purpose of the assault statute is to deter individuals from placing victims in immediate apprehension of bodily harm. Like the felony-murder doctrine, assault should not be extended beyond the rational function it was designed to serve. Other crimes to which the attempt statute has been applied are aimed at punishing the act, not the result. This is due, in part, to the fact that other attempts, such as attempted murder and attempted rape, are dangerous in and of themselves. Thus, the legislature has chosen to prohibit and punish the conduct even if the attempted result is not achieved. A threat that does not put the person threatened in apprehension of harm does not meet the requirement. Without the requisite apprehension, there is no harm.
The State argues that K.S.A. 21-3410 defines aggravated assault more broadly than K.S.A. 21-3408 defines simple assault. According to the State, the inclusion of the term “striking at another with a deadly weapon” in K.S.A. 21-3410(a) makes die attempt statute applicable because a person can attempt to strike at another with a deadly weapon. The State’s argument is contrary to the well-established law of this state.
In State v. Nelson, 224 Kan. 95, 97, 577 P.2d 1178 (1978), the Supreme Court held: “All elements required to prove a simple assault must necessarily be included in the elements of the greater offense of aggravated assault.” Furthermore, in Daniels, 12 Kan. App. 2d at 481, this court observed:
“[Ajggravated assault is unlawfully assaulting or striking at another with a deadly weapon. K.S.A. 21-3410(a). Although the State points to the words ‘striking at’ and asserts the elements of simple assault are not all required for aggravated assault, this proposition was rejected in State v. Nelson, 224 Kan. [at] 97-98.”
The State’s argument that aggravated assault is defined more broadly than simple assault is not valid. Under either degree of assault, the State had to show the victim was placed in immediate apprehension of bodily harm. Because the legislature had chosen to punish a defendant only if that result is achieved, the attempt statute cannot be used to impose criminal liability when defendant has failed to achieve the result the legislature has chosen to make punishable.
We note that K.S.A. 21-3408 was amended in 1994. We make no ruling as to this new statute. We find that under the statutes in force in the instant case, the crime of attempted aggravated assault did not exist. The defendant’s conviction is therefore reversed.
Although not necessary for this decision, we would also note that due to the failure of Sheree to testify that the act complained of placed her in immediate apprehension of bodily harm, there is also a likelihood that there was a failure of proof to establish any kind of assault under our laws.
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|
Royse, J.:
Robert Allen Emerson was convicted of six counts of burglary and six counts of misdemeanor theft. The district court sentenced Emerson to a controlling term of 3 to 15 years and placed Emerson on probation for 2 years. Emerson appeals from his sentence.
The case was tried to the court on stipulated facts. Emerson and Kelly Bohn went into the fenced storage lot at Marine World, a business in Clearwater, Kansas. They removed stereo equipment from six boats. Todd Landers did not enter the fenced lot, but he acted as a lookout for Emerson and Bolin.
Emerson was charged and convicted of six counts of burglary and six counts of misdemeanor theft. Bolin and Landers entered into diversion agreements. The record does not reflect how long they were to remain on diversion.
The standard of review in this case is abuse of discretion. When a sentence is within the statutory limits, it will not be disturbed on appeal unless it is shown that the district court abused its discretion or that the sentence was the result of partiality, prejudice, oppression, or corrupt motive. State v. Turner, 252 Kan. 666, Syl. ¶ 1, 847 P.2d 1286 (1993).
Emerson’s sole argument on appeal is that the district court failed to comply with State v. Bailey, 251 Kan. 527, 531, 834 P.2d 1353 (1992). Bailey requires a sentencing court to state its reasons for giving a defendant a more severe sentence than that received by a similarly situated codefendant. Emerson complains that the district court did not set forth any reasons for imposing a 3- to 15-year controlling sentence.
Emerson’s reliance on Bailey is misplaced. Bailey concerned two defendants convicted of the same crimes. They received identical sentences, but one defendant was ordered to serve consecutive sentences while the other defendant received concurrent sentences. The result was that one defendant had to serve 45 years before he was eligible for parole while the other had to serve only 30 years. 251 Kan. at 529.
The district court that sentenced Bailey ignored the difference in parole eligibility and said that the sentence received by the codefendant was not relevant. Because the record indicated that the defendant receiving the longer sentence was less culpable than the other defendant, the Supreme Court concluded the district court erred by not considering the sentence disparity. Pointing out that the legislature’s adoption of sentencing guidelines demonstrated an intent that “similarly situated defendants” should receive similar sentences, the Supreme Court ordered that Bailey be resentenced. 251 Kan. at 531.
Unlike Bailey, this case does not involve similarly situated defendants. Emerson was convicted of multiple crimes. Bohn and Landers have not been convicted of any crime. By definition, “diversion” means “referral of a defendant in a criminal case to a supervised performance program prior to adjudication.” (Emphasis added.) K.S.A. 22-2906(3). Significantly, Emerson does not even suggest that he could have met the requirements for diversion.
Unlike Bailey, this case does not present a comparison of sentences. Emerson received a controlling sentence of 3 to 15 years. Bolin and Landers have not been sentenced. They have agreed to fulfill obligations set forth in their diversion agreements; if they do so, the charges against them will be dismissed with prejudice. K.S.A. 1993 Supp. 22-2909(a). By comparing his sentence to the codefendants’ diversion agreements, Emerson compares apples and oranges.
Finally, the sentencing transcript in this case reflects that the district court carefully considered and discussed on the record the individual characteristics of Emerson, the harm caused by him, and his prior criminal conduct. “Generally, disparity in the sentences of codefendants does not amount to abuse of discretion where the trial court considers the individual characteristics of the defendant being sentenced, the harm caused by that defendant, and the prior criminal conduct of that defendant.” State v. Smith, 254 Kan. 144, Syl. ¶ 4, 864 P.2d 709 (1993); accord State v. Stallings, 246 Kan. 642, Syl. ¶ 6, 792 P.2d 1013 (1990).
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|
Rulon, J.:
Jimmie Shane Ward, defendant, appeals his sentence following his guilty plea to one count of attempted indecent liberties with a child in violation of K.S.A. 1991 Supp. 21-3503 and K.S.A. 1991 Supp. 21-3301. He argues the district court erroneously concluded that his offense was an offense severity level 5 when calculating his sentence under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 1993 Supp. 21-4701 et seq. He further contends the district court erroneously applied the Habitual Sex Offender Registration Act, K.S.A. 1993 Supp. 22-4901 et seq. We affirm in part, reverse in part, and remand the cause with directions.
The material facts, reduced to their essence, are as follows:
The State charged defendant with two counts of indecent liberties with a child, but amended the complaint to one count of attempted indecent liberties with a child in exchange for defendant’s guilty plea. The amended complaint was never reduced to writing, but the fact of the amendment was included in the journal entry of judgment. The original charging instrument showed that the child victims were almost four years old at the time of the offenses.
The presentence investigation report (PSI) listed defendant’s offense as an offense severity level 7 crime and noted defendant had a criminal history category of D. Defendant’s criminal history category was based upon one prior juvenile offense of attempted indecent liberties, which would have been a person felony if committed by an adult. The PSI report noted that although this was defendant’s second conviction of a sex offense, the present offense was defendant’s first felony conviction. At the initial sentencing hearing, the State agreed that the present offense was defendant’s first felony conviction as an adult.
At the initial sentencing hearing, the district court found, based upon the PSI report, that defendant had a history of offenses involving children; it ordered him to undergo evaluation for pedophilia and continued the sentencing pending this evaluation. After receiving the evaluation, the court sentenced defendant to a term of imprisonment of three to seven years. The court also calculated defendant’s KSGA sentence and concluded that the crime of conviction in this case was a level 5 offense, rather than a level 7 offense as the PSI report indicated. Defendant’s criminal history was a category D, and, therefore, the court found defendant’s presumptive sentence would be 52 months in prison. The court further certified defendant as a habitual sex offender for purposes of the Habitual Sex Offender Registration Act.
SEVERITY LEVEL
Defendant contends that although K.S.A. 1993 Supp. 21-3504(a)(3)(A) is the statute under which he would have been charged and convicted if he had committed his offense on or after July 1, 1993, this statute should not be applied when calculating his sentence under the KSGA. Defendant argues that when the district court took the facts underlying this offense, which occurred in 1991, and fit them into a 1993 statute and used the 1993 offense severity classification, such violated the constitutional prohibition against ex post facto laws.
The State has not filed a brief in this case.
At the time of defendant’s offense, indecent liberties with a child was defined as engaging in a sexual act with a child under 16 years old who was not married to the offender. This statute included the language under which defendant was charged: “any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both.” K.S.A. 1991 Supp. 21-3503(l)(b). Aggravated indecent liberties with a child was defined as the offense of indecent liberties perpetrated by “any guardian, proprietor or employee of any foster home, orphanage or other public or private institution for the care and custody of minor children.” K.S.A. 21-3504(1).
Under K.S.A. 1993 Supp. 21-3503(a)(l), indecent liberties was altered to be “[a]ny lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both” when the child was between 14 and 16 years old. This is a severity level 5 offense. K.S.A. 1993 Supp. 21-3503(c). K.S.A. 1993 Supp. 21-3504(a)(3)(A) specifies that this conduct, with a child less than 14 years old, is aggravated indecent liberties. Aggravated indecent liberties is a severity level 3 offense. K.S.A. 1993 Supp. 21-3504(c).
The original complaint in this case reads in relevant part:
“[T]hat during the month of September 1991, in Chase County, Kansas, one Jimmy [sic] Shane Ward, then and there unlawfully, feloniously, and willfully: engage in lewd (fondling) and or (touching) of [S.B.], Date of Birth 10/17/87, a child under the age of sixteen (16) years, with the intent to (arouse) (satisfy) the sexual desires of either the child or the offender or both. Said act being Indecent liberties with a child in violation of K.S.A. 21-3505, as amended, a Class C Felony.”
This language was repeated in the second charge with regard to S.B.’s twin sister, E.B.
Defendant pled guilty to one count of attempting to engage in indecent liberties with a child in violation of K.S.A. 1991 Supp. 21-3503. The district court relied upon affidavits filed in regard to the original charges in finding a sufficient factual basis for defendant’s plea.
The complaint in this case specified the victims’ date of birth, showing that both were well under 14 years old. Under the law in effect at the time of sentencing, the offense to which defendant pled guilty would have been attempted aggravated indecent liberties with a child. Conviction of an attempt to commit a crime results in an offense severity level of two levels lower than the severity level of the crime attempted. K.S.A. 1993 Supp. 21-3301(c). Therefore, attempted aggravated indecent liberties would result in an offense severity level of 5. Attempted indecent liberties would result in an offense severity level of 7.
Under K.S.A. 1993 Supp. 21-4724(f), a district court shall sentence a pre-July 1, 1993, offender who is sentenced after July 1, 1993, under the law as it existed prior to July 1, 1993. However, the district court “shall compute the appropriate sentence had the person been sentenced pursuant to the Kansas sentencing guidelines.” K.S.A. 1993 Supp. 21~4724(f). This language requires a KSGA determination made for retroactivity purposes, similar to the determination the Department of Corrections (DOC) is required to make in K.S.A. 1993 Supp. 21-4724(c)(l). K.S.A. 1993 Supp. 21-4724(c)(l) requires the DOC to prepare a KSGA report for all inmates, except those who have convictions for crimes which, if committed on or after July 1, 1993, would constitute severity level 1 through 4 felonies.
Defendant contends that permitting the district court to look to the facts underlying his conviction in determining his offense severity level violates the constitutional prohibition against ex post facto laws. Defendant argues the court should simply consider the crime of conviction, attempted indecent liberties, and find that his offense severity rating is level 7. We disagree.
“The United States Constitution prohibits the legislative enactment of any ex post facto law. U.S. Const, art. 1, § 10. Two critical elements must be present for a criminal or penal law to be ex post facto: It must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. A criminal law disadvantages the offender if it punishes an act not punishable when committed, imposes additional punishment to that then prescribed, aggravates the crime, or alters the legal rules of evidence.” Lamb v. Kansas Parole Board, 15 Kan. App. 2d 606, Syl. ¶ 8, 812 P.2d 761 (1991).
A trial court’s interpretation of a statute is 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). “ It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained.’ ” City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993) (quoting West v. Collins, 251 Kan. 657, Syl. ¶ 3, 840 P.2d 435 [1992]).
“ ‘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.’ ” State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994) (quoting Brown v. Keill, 224 Kan. 195, Syl. ¶ 3, 580 P.2d 867 [1978]).
“ ‘[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.]” Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992).
“ ‘In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia. When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.’ [Citation omitted.]” Todd v. Kelly, 251 Kan. at 516.
We conclude that the legislative intent of K.S.A. 1993 Supp. 21-4724(c)(l) and (f) is to look to the criminal acts committed prior to July 1, 1993, for which a defendant was convicted and then determine what crime those acts would constitute after July 1, 1993, and the appropriate severity level.
Consequently, we conclude the sentencing court did not err when determining defendant’s severity level as required by the KSGA.
HABITUAL SEX OFFENDER
Defendant contends the Habitual Sex Offender Registration Act should not have been applied to him because his only previous offense of this nature resulted in a juvenile adjudication and disposition and was neither a felony nor a conviction. Defendant claims that because he has only one felony conviction for a sexually violent crime, the district court erred in applying the Act to him.
The Habitual Sex Offender Registration Act requires a habitual sex offender, after discharge from confinement, to register within 30 days with the sheriff of any county in which the offender resides for more than 30 days. K.S.A. 1993 Supp. 22-4904 and K.S.A. 1993 Supp. 22-4905. A habitual sex offender is defined in K.S.A. 1993 Supp. 22-4902(a) as “any person who, after the effective date of this act, is convicted ... of any of a sexually violent crime set forth in subsection (b).” A conviction from another state shall be considered a conviction for purposes of this statute.
A sexually violent crime includes, among other crimes, indecent liberties with a child and aggravated indecent liberties with a child, and attempts to commit these crimes. K.S.A. 1993 Supp. 22-4902(b).
At sentencing, the parties agreed that the present conviction was defendant’s first felony conviction. But, defendant did admit that he had a prior juvenile offense of attempted indecent liberties.
A proceeding under the Kansas Juvenile Offenders Code, K.S.A. 38-1601 et seq., is civil in nature. “In Kansas, a juvenile proceeding has long been considered a civil proceeding of a protective nature totally divorced from any criminal implications.” State v. Muhammad, 237 Kan. 850, 854, 703 P.2d 835 (1985). The Code specifically provides that “[i]n no case shall any order, judgment or decree of the district court, in any proceedings under the provisions of this code, be deemed or held to import a criminal act on the part of any juvenile.” K.S.A. 38-1601.
The plain language of the Habitual Sex Offender Registration Act indicates that only convictions for sexually violent crimes may be considered in determining whether an offender is a habitual sex offender. The plain language of the Juvenile Offenders Code provides that adjudications under the Code are not criminal convictions. Where the language of statutes is plain and unambiguous, this court is required to give effect to that language without considering what the law should or should not be. Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992).
Further, the legislature is clearly aware that juvenile adjudications do not count as criminal convictions. In writing the KSGA, the legislature made special provisions in K.S.A. 1993 Supp. 21-4710 to include juvenile adjudications, in some instances, as part of an offender’s criminal history, showing its awareness that without the special provisions juvenile adjudications could not be counted as prior convictions. Had the legislature intended to include prior juvenile adjudications for sexually violent offenses as part of the Habitual Sex Offender Registration Act, such could have been done.
Affirmed in part, reversed in part, and remanded with directions that the district court vacate that portion of the sentencing order which subjects the defendant to the requirements of the Habitual Sex Offender Registration Act. | [
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Lewis, J.:
Errol Joe Kampschroeder was bom to the marriage of Robert and Waneta Kampschroeder. Waneta died in April 1980, and Robert married Norma in October 1980. The marriage was not accepted well by Errol Joe and appears to have affected the relationship between the parties from that point on.
Robert and Norma remained married until Robert’s death in 1990. Upon Robert’s death, most of his and Norma’s assets were held in joint tenancy with the right of survivorship. Norma placed these assets in her own name and the name of Sherryl Holmes, her daughter. Errol Joe commenced the present action to impose a constructive trust on the jointly held assets. The trial court held in favor of Errol Joe, and Norma and Sherryl appeal.
We affirm the decision of the trial court.
Litigation of this nature is particularly fact driven. The facts in this case are not, unfortunately, unusual. This lawsuit is between a stepson and his stepmother over property owned by the son’s father and stepmother’s husband at the time of his death. There was an extensive trial, and the trial court made 32 detailed findings of fact. We have reviewed the record and conclude that all of the trial court’s findings of fact are supported by substantial competent evidence.
After hearing all the evidence, the trial court held that Norma and Robert agreed, for the convenience of the parties, to hold most of their assets in joint tenancy. This was to allow the properties accumulated by both parties or brought into the marriage by both parties to become the property of their heirs after their death. They intended that “the properties of Robert go to Errol and the properties of Norma go to Sherryl.” Although we concede that a different spin might have been put on the evidence, the analysis adopted by the trial court is substantially supported by the record.
The trial court found five significant factors in reaching its conclusions:
“a. The Antenuptial Agreement showed their original intentions to keep their property separate.
“b. Robert’s attitude toward Sherryl’s son was emphatic that he not receive any of Robert’s property and was certainly corroborative of their intent that the properties of Robert go to Errol, and the properties of Norma go to Sherryl.
“c. Clearly, the taped conversation of Norma and Nancy corroborates the testimony and position of the Plaintiff. Norma’s testimony that she wanted to be fair did not refer to her deciding whether commingled property should be separated because that had already been decided by the parties. That was clear by their intent as indicated on the taped conversation. When Norma indicated she wanted to be fair it is clear from the testimony she was overwhelmed by the process of having to separate the property out, of deciding just what was hers and what was Robert’s, and thus would be Errol’s.
“d. Robert’s comment: ‘Make certain that Norma will be cared for’ is not the language or the statement of a man who was leaving his entire estate of some worth to his wife. The fact that he wanted to make certain Norma was cared for indicated to me on his part a confusion as to what the wills would be.
“e. Norma’s comment: ‘This will is no good,’ certainly again corroborates the testimony or the position that this was — indeed, the intentions of the parties was to make certain that what was Robert’s went to Errol, and what was Norma’s went to Sherryl.”
Once again, the analysis of the trial court is well within the evidence shown. The five factors cited by the trial court are clearly supported by substantial competent evidence. In the final analysis, the trial court concluded that the parties had entered into an understanding where each was to have the use of the income from the property of the other until their death, at which time the property would go to their respective children. This understanding formed the basis for the consideration of the agreement.
The trial court went on to conclude:
“Plaintiff has by clear and convincing standards shown that there was an agreement entered into, and, in fact, always understood by Norma and Robert, that upon the death of the first to die, the income from the property brought into the marriage by that person would be enjoyed by the surviving spouse, and then pass on to the children of Norma or Robert, depending upon the situation.”
This conclusion is consistent with the trial court’s findings of fact. Norma had breached this understanding, which gave rise to the constructive trust imposed.
The trial court went on to determine which assets were subjected to the constructive trust. The total value of those assets is $323,233.11. The constructive trust is such that Norma is to receive the income from these assets until her death, at which time they are to be paid to Errol Joe.
In appellants’ brief is the following statement: “While defendants admit that the trial court’s findings of fact are supported by substantial competent evidence in the record, defendants deny that those findings of fact support the trial court’s conclusions of law or its judgment.” During oral argument before this court, counsel for Norma conceded that the trial court’s findings of fact were supported by substantial competent evidence. On the other hand, counsel for Sheriyl was unwilling to make such a concession. The problem with Sherryl’s position is that her attorney did not file a separate brief. He joined in a single brief filed by the attorney for Norma. Sheriyl is not in a position to contradict admissions made in the brief filed.
However, we have examined the record, and we conclude that the findings of fact are supported by substantial competent evidence.
An oral trust must be proved by clear and convincing evidence. Wehking v. Wehking, 213 Kan. 551, 554, 516 P.2d 1018 (1973). Upon review, we operate under the assumption that the trial court applied the correct standard of proof and was satisfied with the quantum of evidence introduced.
A constructive trust arises “ wherever the circumstances under which the property was acquired make it inequitable that it should be retained by the person who holds the legal title.’ ” Hile v. DeVries, 17 Kan. App. 2d 373, 374, 836 P.2d 1219 (1992) (quoting Clester v. Clester, 90 Kan. 638, 642, 135 Pac. 996 [1914]).
An essential element of proving a constructive trust is a showing of fraud. However, there are two types of fraud, actual and constructive.
“Actual fraud is an intentional fraud, and the intent to deceive is an essential element of the action. Constructive fraud, however, is a breach of a legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others or violate a confidence, and neither actual dishonesty of purpose or intent to deceive is necessary. [Citation omitted.]” Moore v. State Bank of Burden, 240 Kan. 382, 389, 729 P.2d 1205 (1986), cert. denied 482 U.S. 906 (1987).
In the context in which this issue is presented, we are not dealing with actual dishonesty of purpose or intent to deceive. The evidence indicates Norma was guilty of a breach of duty amounting to constructive fraud.
Absent actual fraud, there are two additional elements which are required to be proven. First, there must be a confidential relationship. Secondly, the confidence reposed must be betrayed, or a duty imposed by the relationship must be breached. See Winsor v. Powell, 209 Kan. 292, 302-03, 497 P.2d 292 (1972).
A confidential relationship is not presumed, and the burden of proving such a relationship existed rests upon the party asserting its existence. Paul v. Smith, 191 Kan. 163, Syl. ¶ 4, 380 P.2d 421 (1963). The mere fact that a transfer of property occurs between a husband and wife and no valuable consideration passes is not sufficient to raise a trust by implication. Clester v. Clester, 90 Kan. 638, 641, 135 Pac. 996 (1914).
Under the facts shown, Errol Joe seeks to impress a trust on property which Norma owns by virtue of a joint tenancy contract with Robert. There is no question but that the property held in joint tenancy may be the subject of a trust. Wehking v. Wehking, 213 Kan. 551, Syl. ¶ 2; Winsor v. Powell, 209 Kan. at 300.
The facts of this case are strikingly similar to those in Winsor v. Powell. In that action, the decedent, when discussing his affairs, spoke of his daughter, Sarah, and said, “ ‘She’ll do the right thing.’ ” 209 Kan. at 301. In this action, Robert told Errol Joe that he had $350,000, that Norma would be fair, and that Errol Joe could trust her. Robert told Errol Joe that Norma was to get the interest and, upon her death, Errol Joe was to get the principal. In addition, Norma acknowledged to Errol Joe’s wife the necessity of her separating Robert’s assets from her own. These facts in Winsor v. Powell were held sufficient to raise a constructive trust, and they are equally sufficient in this action.
Norma and Sherryl argue that the agreement found by the court was not proven by clear and convincing evidence.
“To be clear and satisfactory, evidence should be ‘clear’ in the sense that it is certain, plain to the understanding, and unambiguous, and ‘satisfactory’ in the sense that it is so believable that persons of ordinary intelligence, discretion, and caution may have confidence in it. Clear and satisfactory evidence is not a quantum of proof, but a quality of proof.” Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, Syl. ¶ 7, 827 P.2d 24 (1992).
Norma and Sherryl suggest that there was no direct evidence of an agreement between Robert and Norma. However, we note that in the recorded conversation between Norma and Errol Joe’s wife, Norma acknowledges the existence of some understanding between her and Robert and indicates that in order to carry out that understanding, she must separate Robert’s assets from her own. We consider this to be direct evidence of the existence of an agreement. Indeed, circumstantial evidence may be used to prove the existence of an agreement. Staab v. Staab, 160 Kan. 417, 419, 163 P.2d 418 (1945).
Earlier in this opinion, we enumerated the five significant factors relied on by the court in reaching its conclusion. Norma and Sherryl argue that these factors do not show by clear and convincing standards that an agreement existed.
We do not review for the quantum, of evidence, but rather the quality. “On review, this court considers only the evidence of the successful party to determine whether it is substantial and whether it is of a clear and convincing quality. See Newell v. Krause, 239 Kan. 550, 557, 722 P.2d 530 (1986).” Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. at 448.
As we review the evidence in light of our standard of review, we conclude that each of the five factors relied upon by the trial court is supported by evidence of a clear and convincing quality. In the final analysis, this was a factual situation. The facts were resolved in favor of Errol Joe, and we will not engage in fact-finding or substitute our judgment on that issue.
The element of a confidential relationship is shown by the evidence. Under the trial court’s construction of the facts, Robert and Norma entered into an agreement in which each relied on the survivor to see that the assets were properly distributed. Robert placed trust and confidence in Norma to see that Errol Joe received the proper distribution of assets, and it would be inequitable to permit her to disregard the terms of that agreement.
Finally, it is suggested that even if there was an agreement and a confidential relationship, Norma did not breach either. The argument is that under the terms of the agreement, Norma was to enjoy the income for her lifetime, and only upon her death was the principal to pass to Errol Joe. It then follows that there cannot be a breach of fiduciary duty or a betrayal of confidence unless and until Norma dies without the necessary provisions in her will.
While this argument may have some logical basis, it ignores the realities of the situation. After Robert’s death, some of the assets were placed in joint tenancy with Norma’s daughter, Sherryl. This was obviously done with the intent that upon Norma’s death, these assets would pass to Sherryl. In addition, Norma now denies that any agreement existed and testified, “I never made any commitment to Bob.” These facts point to a breach of the agreement by Norma.
In summary, the findings of the trial court were supported by substantial competent evidence and the conclusions of law are consistent with and supported by the findings of fact.
EXHIBITS 6 AND 14 THROUGH 20
Norma and Sherryl next argue that the trial court erred in admitting into evidence plaintiff’s exhibit 6 and plaintiff’s exhibits 14 through 20. This argument is principally based upon the premise that an inadequate foundation was shown.
The trial court is possessed of discretion when ruling on admissibility of evidence. An attack on an evidentiary ruling requires that the party attacking that ruling show that the trial court abused its discretion. An abuse of discretion exists only when no reasonable person would take the view adopted by the trial court. St. Francis Regional Med. Center, Inc. v. Weiss, 254 Kan. 728, 748, 869 P.2d 606 (1994).
K.S.A. 60-407(f) provides that all relevant evidence is admissible unless otherwise provided by statute. Relevant evidence is evidence having “any tendency in reason to prove any material fact.” K.S.A. 60-401(b). “It is axiomatic that a foundation must be laid establishing the competency, materiality and relevancy of all evidence prior to admission.” Cansler v. Harrington, 231 Kan. 66, 69, 643 P.2d 110 (1982).
We conclude that the trial court did not err in admitting the exhibits in question. Exhibit 6 was a photocopy of the schedule “E” of Robert’s estate tax return. This exhibit listed all of Robert’s jointly held property. In addition to schedule “E,” the exhibit contains a listing of separate assets held by Norma at Robert’s death. The separate property was identified by Norma on direct examination. We conclude this exhibit was clearly relevant and material and that a proper foundation was laid.
Exhibits 14 through 20 consisted of financial records which traced the assets from the time Robert and Norma were married until Robert’s death. These exhibits were clearly relevant. One of the principal issues in this action was to identify which assets originated as Robert’s separate property and which assets were accumulated during the marriage. Exhibits 14 through 20 were relevant on that issue.
Norma and Sheriyl also argue about the authenticity of the records. They suggest that these exhibits were admitted without proper foundation, identification, or indicia of trustworthiness. The principal problem with this particular argument is that the parties stipulated as to the authenticity of the records prior to trial.
We see no need to describe with particularity the evidence purported to be shown by each exhibit. It seems to us that one of the principal issues in the admission of evidence of this sort is its authenticity. The parties stipulated as to the authenticity of those records, and we find no error on the part of the trial court in admitting exhibits 6 and 14 through 20.
TUDGMENT AGAINST SHERRYL HOLMES
Sherryl takes issue with the trial court’s finding of fact No. 32. This finding identifies assets which were brought infb the marriage by Robert and later transferred by Norma into joint tenancy between herself and Sherryl. Sherryl argues that this finding of fact is not supported by substantial competent evidence. We disagree and have previously indicated our decision that all of the trial court’s findings of fact were supported by substantial competent evidence. Our earlier comments are also relevant concerning the position of Sherryl in arguing that the findings of fact were not supported by substantial competent evidence.
Sheriyl also argues that no findings of fact remain which would support the judgment entered against her.
The trial court does not suggest that Sherryl was culpable in procuring the transfers to her mother and herself as joint tenants.
Culpability is not the issue. The stark fact is that Sherryl is a joint tenant on a substantial amount of assets on which the trial court has imposed a constructive trust. “If the trustee in breach of trust transfers trust property and no value is given for the transfer, the transferee does not hold the property free of the trust, although he had no notice of the trust.” Kline v. Orebaugh, 214 Kan. 207, Syl. ¶ 6, 519 P.2d 691 (1974).
The fact that Sherryl did not procure the transfer of the property does not entitle her to hold it free of trust nor warrant a conclusion that the judgment against her is invalid. Norma testified that she wanted Sheriyl to have access to the joint tenancy accounts in case they were needed to take care of Norma. In addition, Norma testified that she intended Sherryl to get the accounts upon her death.
We hold that the trial court did not err in entering judgment against Sherryl. The findings of fact made by the trial court support that judgment.
Affirmed. | [
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Brazil, J.:
Lany E. Rice appeals the denial of his petition filed pursuant to K.S.A. 60-1507, alleging that the 1990 amendments to K.S.A. 21-4504 should be retroactively applied to his sentence. We disagree and affirm the trial court.
Rice was sentenced pursuant to K.S.A. 21-4504, which stated that a sentence could be doubled if one past felony conviction existed or tripled if two or more past felony convictions existed. No distinction was placed on the type of felony necessary to war rant application of the enhancement statute. The statute was amended in 1989 and 1990, resulting in the version to which Rice cites, K.S.A. 1991 Supp. 21-4504.
The Kansas Court of Appeals interpreted the amendments to K.S.A. 21-4504 in State v. Greever, 19 Kan. App. 2d 893, 878 P.2d 838 (1994). The appellate court decided that due to the 1989 and 1990 amendments to K.S.A. 21-4504, sentences for article 34, 35, or 36 crimes could only be enhanced for previous article 34, 35, or 36 convictions or comparable felony offenses from the federal system or other states, and sentences for felonies not classified as article 34, 35, or 36 crimes could only be enhanced for prior convictions of non-article 34, 35, or 36 convictions or comparable offenses. 19 Kan. App. 2d 893, Syl. ¶ 6. Article 34, 35, or 36 convictions could not be used to enhance a sentence for a non-article 34, 35, or 36 crime, and vice versa. See 19 Kan. App. 2d at 898-99.
Under K.S.A. 1991 Supp. 21-4504, Rice’s sentences for rape, aggravated assault, and aggravated battery could not be enhanced by his previous convictions for theft and burglary. Thus, retroactive application of the statute would warrant reconsideration of Rice’s controlling sentence.
The general standard of review for an appeal from a K.S.A. 60-1507 action directs the appellate court to ask whether the factual findings by the trial court are supported by substantial competent evidence and whether these findings are sufficient to support the relevant conclusions of law. Taylor v. State, 252 Kan. 98, 103, 843 P.2d 682 (1992). In the present appeal, the facts are not disputed. The issue is one of statutory construction that requires the appellate court to ask whether the court arrived at a correct legal conclusion when it decided that K.S.A. 1991 Supp. 21-4504 did not apply retroactively. Statutory interpretation is a question of law. State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). The appellate courts apply an unlimited standard of review to conclusions of law. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). Our review indicates that K.S.A. 1991 Supp. 21-4504 does not apply retroactively.
A statute applies prospectively unless its language clearly indicates that the legislature intended it to operate retroactively. State v. Sutherland, 248 Kan. 96, 106, 804 P.2d 970 (1991); In re Application of Noel for Discharge Hearing, 17 Kan. App. 2d 303, 315, 838 P.2d 336 (1992). The first question is what the legislative intent was regarding retroactive application of the statute. The legislature is presumed to act with full knowledge of relevant judicial decisions. See State v. Trudell, 243 Kan. 29, 34, 755 P.2d 511 (1988). Specifically, the legislature is aware of the judicial position regarding prospective application of a statute. The courts have noted examples of statutory language included to reflect retroactive application. See 248 Kan. at 106. No language within any statutory variation of K.S.A. 1991 Supp. 21-4504 has indicated the statute should be applied retroactively.
An exception exists to the legislative intent requirement. A statute or statutory amendment that announces a procedural or remedial change and does not prejudicially affect the substantial rights of the parties applies retroactively. 248 Kan. at 106. The determinative question is whether the statute is substantive criminal law. A substantive law is one which makes an act criminal and prescribes the punishment for that act. State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 138 (1980). A procedural law regulates or provides the steps by which an individual is punished for a criminal act. 228 Kan. at 287 (citing State v. Augustine, 197 Kan. 207, Syl. ¶ 1, 416 P.2d 281 [1966]).
Rice argues that K.S.A. 1991 Supp. 21-4504 announces a procedural change in the sentence enhancement statute. He cites to the Court of Appeals decision in Lamb v. Kansas Parole Board, 15 Kan. App. 2d 606, 812 P.2d 761 (1991). In Lamb, this court reviewed K.S.A. 22-3717(h) and the legislature’s amendment to the frequency of opportunities available to prove parole suitability. Because the amendment did not alter the substantive criteria for parole eligibility, the change was procedural and applied retroactively. 15 Kan. App. 2d at 609-10. Rice claims that K.S.A. 1991 Supp. 21-4504 constitutes a mere change in the procedural steps necessary to prove prior convictions for sentence enhancement. This argument is unpersuasive.
The purpose of K.S.A. 21-4504 is to provide additional penalties for the commission of felonies subsequent to the first one, and thereby strive to deter the criminally inclined from repeated felonies. Greever, 19 Kan. App. 2d at 898. In State v. Ogden, 210 Kan. 510, Syl. ¶ 10, 502 P.2d 654 (1972), the Kansas Supreme Court stated that K.S.A. 1971 Supp. 21-4504 applied prospectively to offenses committed after its enactment. As discussed in Greever, “The 1989 amendments were added to draw distinctions between habitual offenders of article 34, 35, or 36 felonies and those convicted of other felonies. The 1990 amendments were meant to ‘clarify the previous convictions to which the section applies.’ ” 19 Kan. App. 2d at 897-98 (citing 11 Vernon’s Kansas Crim. Code § 21-4504 [1994 Supp.]).
The Kansas Supreme Court rejected an argument for retroactive application of the 1989 amendment to K.S.A. 21-4504 in State v. Mayberry, 248 Kan. 369, 807 P.2d 86 (1991). In Mayberry, an individual’s 1989 sentences for murder and aggravated burglary were enhanced under K.S.A. 21-4504. After commission of the crimes, but prior to trial and sentence, the 1989 amendment to K.S.A. 21-4504 was enacted. This amendment required the conviction of a second article 34, 35, or 36 crime to warrant, sentence enhancement. See K.S.A. 1989 Supp. 21-4504(a). May-berry argued for application of the amended version of K.S.A. 21-4504 because it prevented enhancement. 248 Kan. at 386-87. His brief argued that the revised statute was remedial and did not constitute a substantive change in the sentence applicable to the crime.
The Kansas Supreme Court found Mayberry’s argument to be misplaced. The court refused to apply the 1989 amendment because K.S.A. 21-4504 was the applicable statute when the crimes were committed. Statutes and criminal penalties in effect at the time of a criminal offense control the imposition of sentence. The court found that Mayberry’s sentences were properly enhanced. 248 Kan. at 387.
In this case, the district court relied upon the decision in State v. Hutchison, 228 Kan. 279. In Hutchison, a 16-year-old defendant was sentenced pursuant to a mandatory fireann sentencing statute (K.S.A. 1976 Supp. 21-4618) that applied to all persons regardless of age. The statute was then amended and its appli cation limited to crimes committed by individuals over the age of 18. Hutchison argued for retroactive application of the statute. The court discussed the general rule for prospective application of statutes that affect the length of a criminal sentence. The court also noted the legislature expressly stated that the statute applied prospectively. 228 Kan. at 287. The court decided the amendment did not apply retroactively.
K.S.A. 1991 Supp. 21-4504 clearly sets forth standards for increasing the length of a criminal penalty. The language of the 1990 amendment, although inserted for clarification, was substantive because it affected the criteria by which enhancement was imposed. The changes were not merely procedural. The decisions in Mayberry and Hutchison, as well as the general rules governing retroactive application of a statute, clearly demonstrate that K.S.A. 1991 Supp. 21-4504 applies prospectively.
Finally, Rice argues that if the court determines that the 1990 amendments to K.S.A. 21-45,04 are substantive rather than procedural, then they should still apply retroactively based on K.S.A. 1991 Supp. 22-3717(n) and K.A.R. 44-6-107(a). These provisions direct that an inmate receive the benefit of changes in parole provisions that favorably affect computation of parole eligibility. These provisions are neither applicable nor instructive because they deal solely with parole and not computation of sentence length.
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Briscoe, C.J.:
Dennis Marbley appeals his convictions of robbery (K.S.A. 21-3426) and attempting to elude a police officer (K.S.A. 8-1568). He argues the trial court erred in allowing the State to use a peremptory challenge to strike the only black juror on the panel, and that the court erred in failing to instruct on the lesser included offense of theft by threat.
Marbley entered an Amoco station in Overland Park at approximately 1:20 a.m. on November 5, 1991, and purchased some cigarettes. When the clerk reached under the counter to get a roll of quarters, Marbley took money from the cash drawer. Marbley had his right hand in his pocket during the entire incident, and the clerk thought he was holding a gun in his pocket. In response to Marbley’s questioning, the clerk told Marbley there was no other money in the store. Marbley fled in his car and was apprehended after a car chase. No weapon was found. Marbley was charged with aggravated robbery and attempting to elude a police officer.
During voir dire, the prosecutor asked if anyone on the panel had any reason to believe his or her ability to be fair might be affected. The only black juror on the panel stated she was aware of the racial issues dealing with crime victims locally and nationally. She stated she was a social worker for the public schools and would feel some affiliation toward Marbley because they were both of the same race. However, she stated she could be fair. When questioned by defense counsel, the black juror indicated she was aware more black males are arrested for crimes, but that such knowledge would not affect her ability to hear the case and she would look at the facts presented.
The prosecutor attempted to peremptorily strike the black juror, stating:
“First of all, irregardless of her race, she is a social worker. Prior to knowing that, it was my — at least that raises a question in my mind in that social workers tend to be — at least our perception is that they tend to be persons who are involved in empathetic positions and that they naturally will tend to identify with a criminal suspect. That would be at least one reason.
“Also, I think she was very candid in her answers indicating that she would have a tendency to identify with the defendant because of his race and her race. She did say that she would try to set that aside, but I think she was candid in saying that that would be a natural tendency that she would have.
“Thirdly, she indicated on the situation as far as being aware of certain statistics that more black men are brought up for charges and more black men are arrested. What I hear in that statement is an idea that perhaps black men are being picked on by the system. She didn’t say more black men commit crimes; she said more black men are charged with crimes. I believe while it may not have been enough to strike her for cause, because she said, ‘I’ll try to set those things aside,’ I think it certainly provides an adequate basis for a peremptory strike.”
Defense counsel objected, stating the reasons articulated by the prosecutor were not race neutral. The trial court allowed the black juror to be struck. Marbley moved for a mistrial, which was denied.
On appeal, Marbley argues the trial court erred in allowing the State to peremptorily strike the only black juror on the panel, arguing the reasons were not race neutral.
“In Batson v. Kentucky, 476 U.S. 79, 89, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the United States Supreme Court held that the striking of black venire members based on racial grounds or the belief that black jurors will be sympathetic to a defendant of their own race violates the Equal Protection Clause of the United States Constitution.” State v. Sledd, 250 Kan. 15, 19, 825 P.2d 114, cert. denied 121 L. Ed. 2d 98 (1992).
In order to question the State’s use of peremptoiy challenges, a defendant must make a prima facie showing of purposeful discrimination. The defendant is entitled to rely on the fact that peremptory challenges permit those who wish to discriminate to do so and must show that these facts and any other relevant circumstances raise an inference that the prosecutor used the practice to eliminate prospective jurors because of their race. Sledd, 250 Kan. 15, Syl. ¶ 1.
Once a defendant has made a prima facie showing of purposeful discrimination, the burden shifts to the State to come forward with a race-neutral explanation for the challenge. The explanation need not rise to the level of justifying an exercise of a challenge for cause, but the prosecutor may not rebut the prima facie case by stating the juror was challenged on the assumption the juror would be partial to the defendant because of shared race. Smith v. Deppish, 248 Kan. 217, 227, 807 P.2d 144 (1991).
“Appellate review of a trial court’s determination relative to whether or not the prima facie showing required by Batson v. Kentucky, 476 U.S. 79, 96, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), has been made is plenary as it involves a question of legal sufficiency. In contrast, appellate review of a trial court’s acceptance of the State’s announced reasons for removal of a juror as being racially neutral is on the basis of abuse of discretion.” Sledd, 250 Kan. 15, Syl. ¶2.
Judicial discretion is abused when no reasonable person would take the view adopted by the trial court. Smith, 248 Kan. 217, Syl. ¶ 2.
Here, the prosecutor offered three reasons to strike the black juror. One of those reasons, that she was a social worker, is race neutral on its face. The other reasons take race into account and might run afoul of Batson v. Kentucky, 476 U.S. 79, 96, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). Marbley alleges that since the trial court did not state which reason it relied on in denying Marbley’s motion for a mistrial, the case must be reversed unless all of the reasons were race neutral.
Marbley cites People v. Fuentes, 54 Cal. 3d 707, 286 Cal. Rptr. 792, 818 P.2d 75 (1991), in support of his argument. A close reading of Fuentes, however, reveals that it stands for the proposition that the court must make sure every peremptory challenge is justified by a race-neutral reason rather than that every reason put forth must be race neutral.
In Vann v. State, 788 S.W.2d 899, 905 (Tex. App. 1990), the court found that when a prosecutor gives more than one reason for exercising a peremptory strike, the trial court must review every reason for the strike. In Whitsey v. State, 796 S.W.2d 707, 713 (Tex. Crim. 1989), which was cited in Vann, the court held that every reason given for a peremptory strike should be examined in order to determine whether the race-neutral reason is in fact a pretext for discrimination. This reasoning appears to be sound. Not only must a race-neutral reason exist for the strike, but the race-neutral reason must be the basis of the strike rather than a pretext for discrimination. Therefore, each of the reasons for striking the black juror must be examined.
The State argued at trial that the black juror was struck not only for being a social worker, but also because of her statement that she would feel some affinity for Marbley since both she and Marbley were black. Marbley argues this is not a race-neutral reason. According to Marbley, feeling some affiliation toward a person is not the same as being partial or biased in favor of that person, and it would be difficult to imagine a person who did not feel some kind of affiliation toward a person of the same race. The State argues the black juror’s statement that she would feel some affiliation for Marbley, although not rising to the level of bias necessary to sustain a challenge for cause, did indicate bias to the extent necessary to justify a peremptory strike.
Batson prohibits the prosecution from rebutting the defense’s prima facie case by stating jurors of the same race as the defendant are challenged on the assumption or the intuitive judgment that they would be partial because of shared race. 476 U.S. at 97. However, this leads to the conclusion that the prosecution could strike a juror who stated he or she would be partial to the defendant because of shared race. The racial aspect of the prosecution’s reason would be outweighed by the race-neutral aspect of the juror’s bias. A reason may still be race neutral even though it results in adverse effects upon an identifiable group, unless a discriminatory intent is inherent in the prosecutor’s explanation. Hernandez v. New York, 500 U.S. 352, 359-60, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991).
The question is whether the black juror’s statement that she would feel some affiliation with Marbley because of their race indicates sufficient bias to serve as a reason for a peremptory strike. Such a reason need not rise to the level of that necessary to justify a strike for cause, but obviously must be more than a “surrogate” for race discrimination. See Hernandez, 500 U.S. at 362-63. Marbley argues any black juror would necessarily feel an affiliation toward a black defendant and that an affiliation does not necessarily indicate bias. He contends the very idea of a jury is that it be composed of a defendant’s peers who have some affiliation with the defendant. As the court in Hernandez noted, the critical element in this examination is whether the prosecutor’s strike had a discriminatory intent. 500 U.S. at 360. The trier of fact who heard the witnesses and observed their demeanor has a better opportunity than a reviewing court to determine whether such intent exists. 500 U.S. at 365.
Although allowing a peremptory strike based on a juror’s stated feeling of affiliation toward the defendant will have a disproportionate impact that is racially related, it does not necessarily follow that every black juror will automatically feel an affiliation for a black defendant based on race. Some black jurors may in fact have hostile feelings toward a black defendant. The prosecutor’s peremptory strike of this juror was based upon the juror’s statement that she would feel some affinity for Marbley. This statement is an indication of bias sufficient to justify a peremptoiy strike. Therefore, in the absence of any inherent discriminatoiy intent, the prosecutor’s reason for striking this juror is race neutral.
The State also claims it struck the black juror because she stated she was aware of statistics indicating more black men than white men were arrested. Although this reason deals tangentially with race, it does not deal with the race of the juror and is race neutral.
Based on our standard of review, the trial court’s determination that the State’s reasons for using its peremptory challenges to strike the black juror were race neutral is not a determination with which no reasonable person would agree. The trial court did not abuse its discretion.
Marbley also contends the trial court erred in failing to instruct the jury on theft by threat as a lesser included offense of aggravated robbery. A trial court has the affirmative duty to instruct the jury on lesser included offenses of which the accused might be found guilty under the information or indictment and upon the evidence adduced. This duty exists regardless of whether the accused requested the instruction. State v. Bowman, 252 Kan. 883, 892, 850 P.2d 236 (1993).
Our Supreme Court’s recent ruling in State v. Blockman, 255 Kan. 953, 880 P.2d 561 (1994), resolves this issue. In Blockman, the court addressed whether the trial court erred in failing to grant the defendant’s request for an instruction on theft by threat where the defendant was charged with robbery. After an analysis of the historical context of robbery and theft by threat, the court held theft by threat, or extortion, is not a lesser included offensé of robbery under the provisions of K.S.A. 21-3107(2)(a) or (d).
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Rulon, J.:
Tammy G. Foulk, claimant, appeals from the decision of the Appeals Board for the Kansas Division of Workers Compensation (Board).
Essentially, we must decide if the Board erred in its award of permanent partial general disability. We affirm.
On August 22, 1991, claimant suffered a lower back injury while working at Colonial Terrace (Colonial), a nursing home. Claimant worked at Colonial as a Certified Nurses Aide (CNA). Claimant advised her supervisor of this injury. The day after her injury, she was unable to return to work.
Claimant visited the company physician, Dr. Charles L. Empson, who put her on Flexeril and Darvocet and told her not to return to work for two or three weeks. At the end of this time, claimant attempted to return to work but was only able to work approximately two days before the pain began increasing. She visited Dr. Empson s partner, Dr. Thomas M. Auxter, who took her off work for another two or three weeks. She later returned to work on modified duty for about eight weeks. Claimant testified she was taken off work at that time by the regional district manager for the owners of Colonial. The administrator for Colonial testified, however, that claimant came into her office and said she was quitting because she could not handle the job.
After being seen by Dr. Empson, claimant was seen by Dr. David L. Black, an orthopedic surgeon, who became her treating physician. During Dr. Black’s physical examination of claimant, he found she was tender over the sacroiliac joint of her back, but the rest of her exam was normal. Dr. Black diagnosed claimant with sacroiliitis, or inflammation of the sacroiliac joint. He treated claimant with trigger point injections, which did not alleviate her pain. After a follow-up visit, he restricted claimant’s activities, but she returned to work.
After claimant’s return to work aggravated her condition, Dr. Black specifically laid out a number of restrictions on her activ ities. He advised claimant she could lift 10 to 20 pounds 30 times an hour, 30 pounds 4 times an hour, and 40 to 50 pounds 2 times an hour. He instructed her never to lift 60 pounds or more. In his deposition, Dr. Black testified claimant could bend, stoop, twist, squat, kneel, or crawl on a frequent basis. In his notes, however, he stated, “[S]he should be permanently restricted in the amount of bending and twisting that she should do and she should not be bending or stooping more than 2 times an hour.” Claimant testified she could not work as a CNA under the restrictions Black imposed.
Dr. Black recommended a work hardening program of therapy for claimant, but she refused to participate in this. Claimant advised Dr. Black that she had been through a lot of therapy and did not think work hardening would be helpful. Further, she stated she had difficulty arranging transportation.
Dr. Black stated claimant suffered a three percent whole body impairment as a result of her injury.
Claimant was also seen by Dr. P. Brent Koprivica. At the initial examination, Dr. Koprivica recommended a rehabilitative program for conditioning and work hardening, which claimant elected not to follow. At a subsequent visit, Dr. Koprivica took x-rays of claimant’s back which showed degenerative changes. Dr. Koprivica diagnosed claimant with chronic nonradicular low back pain with chronic left sacroiliac dysfunction. He tested for symptom magnification but did not find any evidence that claimant was magnifying her symptoms.
Dr. Koprivica also indicated claimant had a congenital problem of pelvic obliquity; a leg length discrepancy. Dr. Koprivica believed the injury claimant suffered at work aggravated her congenital condition.
Dr. Koprivica also placed restrictions on claimant’s activities. He restricted claimant to one-time lifts of 50 pounds and repetitive lifts of only 25 pounds. He stated claimant was capable of working in a light-medium to medium physical demand level job as defined in the Department of Labor’s Dictionary of Occupational Titles. He advised that claimant should avoid repetitive bending, pushing, pulling, twisting, or lifting activities.
Dr. Koprivica opined claimant suffered a five percent impairment to her body as a whole.
Dr. Ely Bartal also examined claimant. He took one x-ray of her back, which showed nothing. He stated claimant had an excellent range of motion and good reflexes. He did note, however, that claimant had a leg length discrepancy. In his opinion, this was a congenital condition with no relationship to her accident. He recommended she begin physical therapy and return to work as soon as possible. Further, he did not find any disability related to her accident and did not think she needed any treatment after he saw her. He stated he recommended therapy as “more a fitness thing rather than a treatment.” In a letter to Dr. Empson, however, Dr. Bartal stated claimant had a remote lumbosacral sprain.
Colonial offered claimant a different job, as a dietary aide, in an attempt to keep her employed without pain. The job was offered at the same rate of pay as a nursing aide. Claimant did not accept this position. Claimant stated she turned this position down because she felt she could not perform certain aspects of the job in light of the medical restrictions she was under. Dr. Black stated a job as a dietary aide would not be a problem for claimant unless it reached a point where claimant would be bending down in the carts. A repetitive bending motion would be a problem for her. Dr. Koprivica stated he believed claimant could perform the job duties of a dietary aide within the restrictions he had placed upon her.
In preparation for her workers compensation case, claimant was interviewed by Jerry D. Hardin, a personnel/human resources consultant. Hardin performed an analysis of claimant’s access to the job market after her injury, taking into account her education, background, experience, and capacity for rehabilitation. Using the restrictions and limitations Dr. Black had placed on claimant, Hardin found she had a 73 percent loss of access to the open labor market in Kansas and a 69 percent loss of access to the open labor market in Montgomery County, where she lived. Using Dr. Koprivica’s restrictions and limitations, claimant suffered a 59 percent loss of access to the open labor market in Kansas and a 54 percent loss of access to the open labor market in Montgomery County. Hardin stated if he used Dr. BartaTs records in calculating claimant’s loss of access to the open labor market, there was no loss and no work disability.
Karen Crist Terrill, a vocational rehabilitation counselor, at the request of the employer and insurance company, also met with claimant and evaluated her. Terrill concluded, based on medical records and the history provided by claimant, that claimant had suffered an 18 percent loss of access to the open labor market in Montgomery County. However, based only on Dr. Black’s restrictions, claimant did suffer a 41 percent loss of access to the open labor market. It was based on Dr. Koprivica’s restrictions that Terrill found the 18 percent loss. Terrill opined that claimant’s ability to earn a comparable wage remained the same: “[S]he still retains the capabilities of earning a comparable wage, as a result, she has suffered a zero percent loss of wage earning capacity.” Terrill further stated that if Dr. Bartal’s records for claimant were used, claimant had a zero percent loss of access to the open labor market.
In preparation for litigation, respondent’s insurer in this case hired a private investigator, Robert D. Keal, to watch claimant. Keal observed, videotaped, and took still photographs of claimant push-mowing her lawn with a power mower. Keal further observed that claimant, after mowing, picked up trash along the curb in front of her house. Keal stated he observed no signs of distress while claimant was walking, pushing, pulling, stooping, bending, twisting, turning, and reaching. He did, however, agree that the lawn mower may have been self-propelled, and claimant spent only 18 minutes mowing the lawn and about 5 minutes picking up the trash.
Claimant had testified in her deposition that she could not mow her lawn or pick up items around the yard. She stated she could pick up pieces of paper in the yard but not rocks or things of that nature. Further, claimant had testified she had not mowed the yard since the time of her accident.
Dr. Black testified during his deposition that pushing a lawn mower and picking up trash would be prohibited by the restric tions he had placed upon claimant. Dr. Koprivica, however, testified mowing or picking up trash in the yard would not violate the restrictions he had placed upon claimant.
The Administrative Law Judge (ALJ) determined claimant met her burden of proof to show a loss of access to the work market and that she had sustained a permanent injury resulting in permanent limitations on her abilities. However, die ALJ also found claimant had a zero percent wage loss in that she retained the ability to return to work and earn a comparable wage. The ALJ determined claimant had a 22 percent permanent partial general bodily disability and gave her an award for this, as well as 33 weeks of temporary total disability for her time off of work.
Colonial and its insurer timely applied to the Board for review of the ALJ’s decision.
The Board determined claimant had sustained a five percent permanent partial general bodily disability from the accidental injury she had suffered on the job. However, the Board found she had not met her burden of proof to show a loss of access to the open labor market. The Board noted claimant did have some permanent limitations, but those were imposed based on the subjective complaints of claimant. The Board further found claimant’s testimony about those complaints not credible “in light of the videotape and other evidence taken as a whole which shows claimant capable of performing tasks beyond the restrictions imposed by Dr. Black.” The Board further found claimant had refused to participate in work hardening rehabilitation or even attempt the job as a dietary aide.
The Board used the test for permanent partial general disability in K.S.A. 1988 Supp. 44-510e(a) and held:
“Based upon the claimant’s demonstrated ability to perform tasks outside the modified restrictions of Dr. Black, the fact that the restrictions of both Dr. Black and Dr. Koprivica were based largely upon the claimant’s subjective complaints, considering the claimant’s lack of credibility, her unwillingness to participate in the recommended work hardening programs, and her unwillingness to attempt the dietary aide position, the Appeals Board finds that claimant has not sustained her burden of proving a work disability in excess of tire five percent functional rating given by Dr. Koprivica.”
Consequently, the Board awarded claimant a five percent permanent partial disability in addition to her temporary total disability award.
Claimant argues the Board erred in its application of K.S.A. 1988 Supp. 44-510e in her case; she contends that because the manner in which a statute should be applied is a matter of law, this court should engage in an unlimited review of the Board’s decision. Respondent, Colonial Terrace, contends the Board simply made a finding of fact that claimant had not met her burden of proof to show that she has a work disability that exceeds her functional impairment.
Claimant does raise one question of law in regard to interpreting 44-510e. She argues the presumption found in 44-510e, that a worker has no work disability if that worker engages in work for comparable wages, does not apply to cases where the worker has the ability to engage in such work but does not do so. Claimant argues the statute “clearly says ‘engages in any work’ not ‘possess the ability to engage in work.’ ”
Interpretation of a statute is a question of law. State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). Therefore, this court’s review of this argument is unlimited. See Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
K.S.A. 1988 Supp. 44-510e(a) was in effect at the time of claimant’s injury and provided in relevant part:
“[Pjermanent partial general disability shall be the extent, expressed as a percentage, to which the ability of the employee to perform work in the open labor market and to earn comparable wages has been reduced, taking into consideration the employee’s education, training, experience and capacity for rehabilitation, except that in any event the extent of permanent partial general disability shall not be less than percentage of functional impairment. . . . There shall be a presumption that the employee has no work disability if the employee engages in any work for wages comparable to the average gross weekly wage that the employee was earning at the time of the injury.”
When interpreting a statute, this court should give effect to the intent of the legislature to the extent that intent can be ascertained. Martindale v. Tenny, 250 Kan. 621, 626, 829 P.2d 561 (1992). If the language of the statute is plain and unambiguous, this court “must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” 250 Kan. 621, Syl. ¶ 2. In doing so, the court should give words in common usage their ordinary and natural meanings. Bank IV Wichita v. Plein, 250 Kan. 701, 705-06, 830 P.2d 29 (1992). However, if interpreting one section of an act according to its literal import would “contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.” Jackson v. City of Kansas City, 235 Kan. 278, 319, 680 P.2d 877 (1984).
If a term or phrase within the statute is ambiguous, this court can determine its meaning by reference to its context and associated words. See Farm Bureau Mutual Ins. Co. v. Carr, 215 Kan. 591, 596, 528 P.2d 134 (1974). Legislative intent should be determined from a general consideration of the entire act. Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992). In addition, this court must presume the legislature intends for the courts to give an act a reasonable interpretation to avoid unreasonable or absurd results.. 251 Kan. at 520.
Construing K.S.A. 1988 Supp. 44-510e(a) to allow a worker to avoid the presumption of no work disability by virtue of the worker’s refusal to engage in work at a comparable wage would be unreasonable where the proffered job is within the worker’s ability and the worker has refused to even attempt the job. The legislature clearly intended for a worker not to receive compensation where the worker was still capable of earning nearly the same wage. Further, it would be unreasonable for this court to conclude that the legislature intended to encourage workers to merely sit at home, refuse to work, and take advantage of the workers compensation system. To construe K.S.A. 1988 Supp. 44-510e(a) as claimant suggests would be to reward workers for their refusal to accept a position within their capabilities at a comparable wage.
Claimant also contends, however, that the uncontroverted evidence in this case is that her permanent partial disability exceeds her functional impairment. This is basically an issue of whether there is sufficient evidence to support the Board’s finding that claimant did not meet her burden of proof on this issue.
In a workers compensation case, the finder of fact’s determinations should be affirmed if they are supported by substantial competent evidence. Miner v. Bruenger & Co., 17 Kan. App. 2d 185, 188, 836 P.2d 19 (1992). This court “must view the evidence in the light most favorable to the prevailing party and determine whether there is substantial competent evidence to support the findings of the trial court.” See Elder v. Arma Mobile Transit Co., 253 Kan. 824, 827, 861 P.2d 822 (1993). If there is substantial competent evidence to support the district court’s findings, this court is bound by those findings. Duncan v. City of Osage City, 13 Kan. App. 2d 364, 366, 770 P.2d 843, rev. denied 245 Kan. 783 (1989). Further, those findings will be upheld on review even if there is evidence in the record “which, if given credence by the trial court, would have supported contrary findings.” Elder, 253 Kan. at 826. “Even if this court feels that the weight of the evidence, as a whole, is against the findings of fact made by the district court, it may not disturb those findings if they are supported by substantial competent evidence.” Tovar v. IBP, Inc., 15 Kan. App. 2d 782, 784, 817 P.2d 212, rev. denied 249 Kan. 778 (1991).
In workers compensation cases, substantial evidence is “ ‘evidence possessing something of substance and relevant consequence and carrying with it fitness to induce conviction that the award is proper, or furnishing substantial basis of fact from which the issue tendered can be reasonably resolved.’ [Citation omitted.]” Angleton v. Starkan, Inc., 250 Kan. 711, 716, 828 P.2d 933 (1992).
In a workers compensation case, if evidence is presented that is uncontradicted, and not improbable, unreasonable, or shown to be untrustworthy, the finder of fact cannot disregard this evidence. Uncontradicted evidence should generally be regarded as conclusive. Demars v. Rickel Manufacturing Corporation, 223 Kan. 374, 380, 573 P.2d 1036 (1978).
In this case, the Board chose to disbelieve claimant’s testimony in light of the fact that she had lied under oath and there was evidence she could perform activities of which she claimed she was not capable. Because the various estimates of her disability and loss of access to the open labor market were based upon her subjective complaints, which the Board did not believe, the Board did not find these estimates to be credible. It is not the function of this court to reweigh the credibility of the testimony and the evidence. Adamson v. Davis Moore Datsun, Inc., 19 Kan. App. 2d 301, 307, 868 P.2d 546 (1994).
Uncontroverted evidence is binding on the Board only to the extent that evidence is not untrustworthy, improbable, or unreasonable. Here, the Board found the uncontroverted evidence that claimant’s work disability exceeded her functional impairment to be untrustworthy because it was based upon claimant’s complaints and claimant was not credible. Therefore, the Board did not err in disregarding this evidence and in basing claimant’s award solely on the extent of her functional impairment of five percent.
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The opinion of ..the court was delivered by
Benson, J.:
This action was brought by a widow to recover damages for the death of her husband, caused by the alleged negligence of the defendants in the operation, as partners, of a lead-and-zinc mine. Defendants Griggsby and Elliott admit that they were operating the mine at the time of the injury, but deny that the other defendants were their partners or interested in the business. The other defendants deny the partnership, and deny any participation in the business until after the injury. The plaintiff recovered a judgment against all the defendants.
Every was a laborer in the mine. Sometime before the accident the mine had been leased by the owner to Clary & Schultz, who had by written agreement given to Griggsby & Elliott the right to mine and hoist ore to the surface, where it was received and crushed by Clary & Schultz, and after paying the royalty the proceeds were divided between these firms. Clary & Schultz had nothing to do with the mining operations underground. Afterward Griggsby & Elliott became associated with the other defendants, under the name of the Mineral King Mining Company, to continue the mining operations and business before that time carried on by Clary & Schultz and Griggsby & Elliott.
Every was killed while at work in the mine on the 21st day of October, 1909. He was shoveling ore into a tub which stood on a push car in a drift about 100 feet from the shaft. His duty was to fill the tub, push the car to the shaft and there attach it to the hoisting apparatus, and return with another tub and repeat the operation. Thirty feet beyond where he was at work another laborer, was drilling into the face of the mine, preparatory to blasting. Every had just filled his tub and started to push it to the shaft when he received a signal that a shot was about to be fired, and he, with other laborers, went on to the shaft for safety. The shot was fired, after which the signal “that’s all” was given by the shot firer, in pursuance of" his duty. The signal was a notice to the laborers to return to their work. About five minutes afterward, while Every was going back to his work and when he was within twenty feet of that place, a piece of soft rock fell from the roof, inflicting the injury from which he died. The drift varied from about fifteen to fifty feet in width, and from twenty-five to seventy feet in height. There was evidence tending to show that at the place of the accident it was forty-five to fifty feet high and fifty feet wide. Fifteen or twenty feet from this place there had been a cave-in at the side of the drift, extending to the roof and opening to the light, so that the roof could be seen. Along one side of the drift, near this place, was a bench that had been left about fifteen feet from the floor. It was customary to prod the roof from time to time with a piece of gas pipe about fifteen feet long, and at this place, where the roof was high, the person using the prod mounted this bench, but the entire roof could not be reached by this means and the prod was used only so far as it could be done. This prodding was the means adopted to ascertain whether the roof was safe. The roof was prodded in the morning of the day before the injury. Griggsby and Elliott were practical miners, and were in the active control of the operations.
There was evidence tending to prove that prodding should be done after each shot, the shots having a tendency to loosen the roof; also, that the proper time for firing shots was in the evening, although it was testified that different mines had different regulations. The roof was of flint rock, and the fragment that fell had not been noticed before its fall. The cave-in occurred about fifteen or twenty days before this accident.
The negligence complained of and submitted to the jury was the failure properly to prod the roof.
The jury found that the drift was lighted by the opening caused by the cave-in; that the roof of the mine could be seen by the miners; that Every was an experienced man; that he could see a person prodding the roof if that work had been in progress while he was returning from the shaft to his place. There was no evidence of the frequency of shots other than that a shot or shots had been fired the previous day. The evidence tends to show that this was after the prodding had been done in the morning of that day.
It is contended that the evidence is insufficient to sustain a finding of negligence against any of the defendants, and also that Every had full knowledge of the dangers and assumed the risk incident to his serv ice. It is also earnestly contended that none of the defendants, except Elliott and Griggsby, was a partner in the business or had any interest in the mining operations when the accident occurred.
It was alleged in the petition that the defendants, as copartners, were carrying on the mine under the name of the Mineral King Mining Company. The principal testimony to prove that the defendants other than Elliott and Griggsby were partners was a petition in a case wherein all these defendants, as plaintiffs, had sued the owner of the mine, Mr. Schermerhorn, for failure to make them a lease. This petition was signed by the same attorneys who represented the defendants here. In that petition it was alleged that the plaintiffs named therein were a copartnership; and that the copartnership was formed on or about the first day of October, 1907. To this petition several exhibits were attached, containing items dated in October prior to the date of the accident. After this action was commenced an amended petition was filed in that action changing the date of the formation of the alleged partnership to November 1, and omitting from the exhibits all items dated before that time.
It is insisted that there was error in admitting the petition in evidence. All the defendants except one testified that the Mineral King Mining Company was formed about November 1, but no one gave the exact date. It seems that Mr. Elliott organized the company, and that the different individuals joined at different dates — according to their testimony, near the first day of November, and each one testified that he had nothing to do with the mining operations before that time. It also appears from their testimony and that of the owner of the mine that the old lease to Clary & Schultz was surrendered on that day. No testimony was offered explanatory of the mistake in the dates given in the petition offered in evidence.
There was also some evidence of accounts kept with laborers in the mine, and of checks given in payment, but no checks, books or other written evidence was offered to show when the change in the management of the mining operation occurred. The agreement between Clary & Schultz and Griggsby & Elliott was dated September —, 1907, and the jury found that to be the date upon which the defendants obtained the lease ■ from the owner. This finding may have been based upon the belief of the jury that Griggsby & Elliott obtained the lease for the Mineral King Mining Company. However that may be, the date upon which the mining company obtained their lease is quite immaterial, the vital question being whether the defendants, or Griggsby & Elliott alone, were the employers of this man at the time he was injured. The jury found that the defendants commenced their mining operations on or about October 1, 1907. The petition in the case against Schermerhorn, if admissible, contained some evidence that the partnership, composed of all the defendants, was in existence as early as October 1. There was no positive evidence on the part of the defendants of-the exact date, although they testified that it was after the accident.
It seems to be conceded that the finding that the defendants other than Elliott and Griggsby were copartners with them in carrying on the mine at the date of the injury is based principally on the admissions contained in the petition in the Schermerhorn case; therefore the ruling upon the objection to the petition in that case is material. It is held in this state that such a pleading is admissible when filed in the same action. (Arkansas City v. Payne, 80 Kan. 353.) The reasons stated in support of that ruling apply as well to pleadings filed by thé same party in another action, and it was held in Solomon Rld. Co. v. Jones, 30 Kan. 601, that a verified petition in another action is admissible. (See, also, Bank v. Edwards, ante, p. 495.) While a verification may give additional probative force to the pleading as evidence, it is not necessary to make it admissible in evidence against the party filing it. (2. Wig. Ev. § 1066; 2 Enc. L. & P. 184.) The defendants were at liberty to show that the dates were inserted in the petition through mistake or otherwise explain the allegation that the partnership was in existence before the date of the injury to Every, but they did-not do so; and, notwithstanding their testimony that the partnership was formed afterward, the finding of the jury in harmony with the allegations in the petition filed in another action before the plaintiff’s claim was sued upon, being sustained by competent evidence, can not be overturned on appeal.
The contention of the defendants that there is not sufficient evidence of negligence to sustain the verdict is based principally on the proposition that the defendants had no notice or knowledge that the roof of the mine was defective. Two of the defendants were practical miners and in personal management of the mining operations. The fragment which fell was of different formation than most of the roof. While there was evidence that it could not be seen, it appears that it might have been discovered by prodding, the means resorted to to ascertain the condition of the roof; but it was a question for the jury whether it might have been. The last use of the prod before the injury was on the morning of the previous day, although shots had been fired afterward on that day, which, as the evidence tends to show, would have a tendency to loosen fragments of the roof. Nothing was done by prodding or otherwise to ascertain its condition when work was commenced the next day, nor at any time before Every was killed. The prod used would not reach over the whole roof at the place of the injury, and the system of inspection by the means adopted seems to have lacked method and that thoroughness reasonably commensurate with the dangers attending the hazardous operations of mining, especially when accompanied by the use of powerful explosives. Defendant Elliott testified that the prod was used “to get down any loose pieces that might be in the roof after we did some shooting. That roof had been prodded all over. I don’t remember exactly the last time. I prodded it sometimes, but Hulvey [the shot firer] did it most of the time. He run the machine, and it was his place to prod it mostly. Anybody who got scared prodded it.” Hulvey was the employee who gave the signal to call the men to come back to work, and the recall implied that it was safe for them to do so. Considering the inability to reach over the roof with the instrument used, and the lack of any definite method or particular times for making the inspection, the jury were justified in finding that the charge of negligence based upon the failure properly to prod the roof was sustained. That the defendants did not know of the defect will not excuse them if in the exercise of reasonable care it would have been discovered. (1 Shear. & Redf. Neg., 5th ed., § 206; Wellston Coal Company v. Swift, 65 Ohio St. 70; 87 Am. St. Rep. 559, note; Solomon Rld. Co. v. Jones, 30 Kan. 601; 4 Thomp. Com. L. of Neg. § 3794.)
In Griffin v. Brick Co., ante, p. 347, it appeared that a laborer had been injured by a rock which had fallen from the face or wall of an excavation at the foot of which he was working in a shale pit. The court said:
“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.” (p. 348.)
The evidence tends to show that the defendants knew that it was necessary to inspect this roof to guard against such injuries as the one causing the death of Every, and it was a proper question for a jury, un der the circumstances presented, whether reasonable care had been exercised in making the inspection. The .suggestion that the laborer could observe the defective roof as well as the employer is not persuasive. It was not the duty of the laborer to make inspection, but to attend to his work, while it was the duty of the employers to exercise proper care to make the place reasonably safe. It does not appear that the defect was open to the ordinary observation of the workmen or that they were aware of the danger.
No proof was offered to support any claim of negligence except the one already referred to, but two other charges of negligence were contained in the petition, and in giving the instructions the petition was read to the jury. The defendants claim that the court thereby submitted issues without proof. In stating what the plaintiff must prove to make out her case the court instructed the jury that if the defendants “failed to properly prod the roof of the mine in question at the point where the deceased received the injury, and that the mine at that point was not properly cared for in a reasonably safe and suitable manner, and that by reason of the neglect . . . this deceased met death . . . then . . . your verdict should be in favor of the plaintiff.” In this instruction the court tersely stated the faets which the plaintiff was required to prove to make out a case, and the jury could not have been misled by the mere reading of the petition. Besides, if the defendants feared that they might be prejudiced by such reading, a request should have been made for an instruction eliminating every charge of negligence- except the- one referred to' in the instruction quoted.
It is insisted that Every assumed the risk of the injury, and that this is shown by the evidence and by the special findings. It is said that the findings show that he was as well able to determine whether the drift was dangerous as all others who were working there. This may be true and yet the defendants may be liable. The risks assumed by a servant in such a situation are stated in Griffin v. Brick Co., ante, p. 347, and need not be restated here. If Every knew that proper inspection had not been made, there is no finding that he was aware of the danger arising from the failure. It was held in King v. King, 79 Kan. 584, a case involving injuries resulting from the use of a defectively constructed machine, that a servant, to be chargeable with knowledge •of a defect, must not only know the physical facts in relation thereto but must also know and appreciate the danger resulting therefrom. (Brick Co. v. Mussulman, 78 Kan. 799; Carillo v. Construction Co., 81 Kan. 823.)
“The. servant does not accept the risks of unknown, latent, unseen or obscure defects or dangers, such as the servant would not discover by the exercise of ordinary care and prudence, having reference to his situation, but such as the master ought to discover by exercising the duty of inspection which the law puts upon him to the end of seeing that the premises, tools and appliances with respect to which the servant is required to labor are in a reasonably safe condition.” (4 Thomp. Com. L. of Neg. § 4641.)
Other objections to the proceedings, referred to in the brief, have been considered, but further comment is •deemed unnecessary.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
E. B. Robertson sued O. E. Talley and W. H. Stine. A demurrer to his petition was sustained and he appeals. The petition alleged in substance that the defendants entered into a verbal agreement with the plaintiff that they would furnish to him a deed to a tract of land, owned by another person, in consideration of the payment to them of $600, which was to be. the full purchase price of the land and the compensation of the defendants; that the defendants delivered to him an instrument purporting to be a deed to him from the owner, conveying the tract in question; that relying on the statements of the defendants, he believed the instrument to be such a deed, accepted it, and paid them $525 of the $600 agreed upon; that the purported deed turned out ,to be a forgery.
If the defendants had merely agreed to try to induce the owner of the land to deed it to the plaintiff for not to exceed $600, and if successful to accept for their services the difference between that 'amount and the price demanded by the owner, they would have been the agents of the plaintiff for the purpose of negotiating a bargain between him and the owner, and doubtless would have been liable only in case they knew or ought to have known that the deed was forged, which is not charged.. But the allegation is that they undertook on their own account to furnish a deed from the owner for the sum of $600, to be paid to them. The situation alleged is much the same as though they had contracted to buy the land themselves on whatever terms they could, and sell it to the plaintiff for $600. As the deed was to be made direct to the plaintiff there was in a sense a contractual relation between him and the owner, but the actual contract involved was really a transaction between him and the defendants. The price to be paid by the plaintiff was a matter of agreement between him and the defendants, with which the owner had no concern; the price to be received by the owner was a matter of agreement between him and the defendants, with which the plaintiff had no concern. It was not in contemplation that a bargain should be made with the owner by the plaintiff, ether directly or through the defendants acting as his agents; he dealt solely with the defendants and looked to them to deliver him a deed conveying title, in return for his payment to them of the stipulated amount. Under these circumstances we think that the plaintiff, having paid the defendants $525 on account of their having delivered to him a paper which they represented to be a valid deed, but which turned out to be a nullity, was entitled to recover that amount, regardless of whether they had paid it, or a part of it, to the person from whom they procured the forged instrument.
There is a conflict of authority as to whether an oral agreement to procure a third person to convey land is within the statute of frauds. (29 A. & E. Encycl. of L. 893; 5 L. R. A., n. s., 112, 123, notes.) The conflict may be due in a measure to the aspect in which the matter is presented in the different cases. Here the contract is in effect one for the sale of land, and therefore unenforceable because not in writing. But where such an agreement has been acted upon its terms may be shown for the purpose of determining the rights of the parties (Longhofer v. Herbel, 83 Kan. 278), and money paid upon the faith of it may ordinarily be recovered (Brashear v. Rabenstein, 71 Kan. 455). In this instance the contract was not in contravention of public policy, as was the case with that considered in Thimes v. Stumpff, 33 Kan. 53. One need not be the owner of a tract of land in order to make a valid agreement that he will convey it. This has been determined where he has acquired a right by which he may compel a conveyance by the owner to himself. (Krhut v. Phares, 80 Kan. 515.) No reason is apparent why he may not bind himself personally by a contract that he will procure a deed to land, although he is not certain that he will be able to do so, thereby incurring liability for damages if he shall fail, and for loss by the bargain if .he shall be compelled to pay more for the property than he is to receive.
If the defendants had agreed that in consideration of $600 to be paid to them they would cause a deed to be made by the owner of the land to the plaintiff, and the plaintiff had at once advanced them $525 of the amount, there can be no doubt that if they failed to perform the agreement the money could be recovered from them. If in that situation they had procured and delivered a forged deed their liability for the-return of the money would be the same. The fact that the money was paid after the delivery of the void instrument can not affect the matter. The defendants having agreed to furnish the plaintiff a real deed, and having received the $525 upon their representation that they had done so, were bound to restore the money upon its turning out that the supposed deed was a nullity. That they may have paid the same amount, ■or even the identical money received, to the person who imposed the forgery upon them, would not constitute a defense to the plaintiff’s claim.
In addition to the return of the money paid to the defendants, the plaintiff asks to be reimbursed for his expenses incurred in defending. an action brought against him by the owner of the land to remove the cloud cast by the recording of the forged deed. We think no damages can be recovered on this account. To allow them would be°in effect to sustain an action upon the contract itself. There was no breach of warranty, for there was no sale. The defendants, under the allegations of the petition, did not actually sell any land to the plaintiff, and a deed is of course not an instrument in itself capable of sale. The liability of the defendants arises from their having received money from the plaintiff for which they have made no return.
The judgment is reversed and the cause is remanded with directions to overrule the demurrer. | [
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The opinion of the court was delivered by
Benson, J.:
The plaintiff contends that he was at the post of duty, the only place where he could perform it, giving close attention to the signals of his conductor, which it was necessary to do to prevent accidents to his train; that while so engaged, absorbed with duty and wholly unaware of danger, the passenger train, running quietly, without giving signals or warning, ran upon and injured him; and that this injury could have been prevented if the conductor of the passenger train had exercised ordinary care. On the other hand, the defendant contends that no negligence on its part is shown, but that the plaintiff, who knew that the passenger train would be backed in on the main track about that time, was bound to look out for it, whether the conductor gave warning signals or not; that the plaintiff’s duty did not require him to be on the track, and that there was nothing in the circumstances to lull him into a sense of security; that the plaintiff was negligent in entering upon the track without looking for the incoming train; and that this negligence continued down to the moment of the accident, and was a concurring cause of the injury. Contributory negligence is relied upon to bar a recovery, irrespective of any negligence of the defendant. As the passenger conductor was upon the* rear platform of his train, observing the track, and saw the freight train going upon the siding and the plaintiff at his work, and as he was in control of the appliances for giving warning and for stopping the train, the situation presented a question of fact whether the conductor was negligent, and if this were the only question in the case it is plain that it could not be taken from the jury.
A more difficult question is whether the testimony clearly proves that the plaintiff is barred from recovery by his conduct in going upon the track and remaining upon it until injured, without looking for the train which he knew should come in about that time. This question, it appears, was first decided, as a matter of law, in favor of the defendant by sustaining the demurrer to the evidence, but afterward it was held that a question of fact was presented for a,jury, and a new trial was ordered. If the evidence conclusively proved the plaintiff’s negligence beyond cavil or dispute, the first decision was right; if it did not, the last order was proper and should be affirmed. (Beaver v. A. T. & S. F. Rld. Co., 56 Kan. 514; Johnson v. Railroad Co., 80 Kan. 456.) A new trial having been granted, the order will not be reversed unless error is clearly shown with respect to some pure, simple, unmixed question of law. (Sanders v. Wakefield, 41 Kan. 11.) The question is resolved into this: Is there any room for doubt or difference of opinion among men of reasonable intelligence, exercising candid judgment, whether the plaintiff used the care which an ordinarily prudent person would have exercised in the circumstances disclosed by the evidence? (Grand Trunk Railway Co. v. Ives, 144 U. S. 408.) The rule imputing negligence as a matter of law to a traveler upon a highway who fails to look and listen for trains at a railroad crossing is not applied to employees whose duties require their presence upon the track. The failure to look and listen in such a case may or may not constitute negligence, according to the circumstances. The employee must exercise such care as the danger of his surroundings would suggest to a man of ordinary prudence and caution. (Railway Co. v. Bentley, 78 Kan. 221; Baltimore, etc., R. Co. v. Peterson, Adm., 156 Ind. 364; Goodfellow v. Boston, Hartford & Erie Railroad Company, 106 Mass. 461; McMarshall v. The Chicago, R. I. & P. Ry. Co., 80 Iowa, 757; Jordan v. Chicago, St. P., M. & O. Ry. Co., 58 Minn. 8.)
It was said in Railway Co. v. Bentley, supra, that-“the same degree of diligence is not required of one whose duty compels his presence upon the track as is required from a traveler about to cross.” (p. 225.) In Jordan v. Chicago, St. P., M. & O. Ry. Co., supra, cited in the Bentley case, it was said in the opinion, referring to the rule requiring travelers upon a highway to look and listen at railway crossings:
“That this rule is not to be applied to the case of one who is employed in a railroad yard, and whose duties frequently make it necessary for him to go upon the tracks, and the exigencies of whose duties may call upon him to do so without premeditation or time or opportunity to ascertain if it is dangerous to do so; that the act of such a person in placing himself upon the track, in the discharge of his duty, without looking or listening, is not per se negligence, but may be negligence or not, according to other circumstances in the case, of which the jury are to judge.” (p. 9.)
This subject'has been recently considered by this court in Ray v. Railway Co., 82 Kan. 704, where it was held that as the. plaintiff in that case was injured while performing a duty which required him to be upon the track he was relieved from the absolute duty of keeping a lookout, being required only to exercise reason able care in view of all the circumstances. That was the case of an employee of an electric railway company injured while picking up a board, which, with some tools, had been left on the track. He could have seen the approaching car when he stepped upon the track if he had looked, but he did not, and yet a general verdict for the plaintiff was upheld. In the opinion in that case it was said:
“The jury found specially that the plaintiff could have seen the car if he had looked, and that the motorman could not have stopped it after seeing him upon the track in time to avoid the accident. But the general verdict implies findings that the plaintiff’s situation was such that he was under no absolute duty to keep a lookout, that he used diligence adapted to the situation, and that the motorman should have anticipated that he might get upon the track.” (p. 707.)
If it be suggested that there is a distinction between that case and this, that there the workman was in a stooping posture, intent upon his work, while here the plaintiff stood upright and needed only to turn ‘his head sufficiently for a backward look, then it should be observed that the laborer in the Ray case was in the same attitude when he stepped upon the track, and a look at that time would have revealed the danger to him also. It is true that in this case the plaintiff knew that the passenger train should come in about that time, and in this respect it differs from the Ray case — presented another circumstance for the consideration of a jury, but did not change that into a matter of law which is essentially a question of fact. It still remained for a jury to determine whether the plaintiff ought, in the exercise of reasonable prudence, to have looked out for the expected train, in view of the nature of his duties and the importance of attending to the work of removing his own train to the siding, and the dangers to be apprehended. In the language of Mr. Justice Harlan.:
“In determining whether an employee has recklessly exposed himself to peril, or failed to exercise the care for his personal safety that might reasonably be expected, regard must always be had to the exigencies of his position, indeed, to all the circumstances of the particular occasion.” (Kane v. Northern Central Railway, 128 U. S. 91, 95.)
(See, also, Comstock v. U. P. Rly. Co., 56 Kan. 228; St. Louis, I. M. & S. R. Co. v. Jackson, [Ark. 1906] 6 L. R. A., n. s., 646; Shoner v. The Pennsylvania Comyany, 130 Ind. 170.)
It should be observed that the plaintiff’s work was, upon and along the track. This is not the case of an employee coming from .some other place of duty away from the track, and walking upon or crossing it without looking. In this respect the case differs from many others where this general subject has been considered.
Decisions have been cited wherein this court has held, that employees were chargeable with contributory negligence as a matter of law. These cases have been carefully considered, but are believed to be distinguishable from the one here presented. Where there is no absolute rule imputing negligence as a matter of law, it must be-determined upon the circumstances of each case, and may be one of fact or of law, as the circumstances may disclose. The boundary line between cases where, under the evidence, the question of negligence is one of law for the court, and those where it is one of fact for the jury, is. not always easily traced, and may be perplexing in this instance; but, following the decisions of this court already cited, we conclude that the district court did not err in holding that the evidence presented a case for a jury.
The plaintiff presents a cross-appeal, based upon the rejection of the testimony offered to show the distance within which the passenger train could have been stopped. This evidence was competent, and the witnesses appear to have been qualified to testify. (U. P. Rly. Co. v. Shannon, 33 Kan. 446.) The offer was probably rejected because of the opinion of the court, entertained at that time, that the plaintiff could not recover because of contributory negligence.
The order for a new trial is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
This is an action of ejectment. The plaintiff, Edward Austin, relied upon a title derived through a sheriff’s deed issued to Heber & Emerson upon a sale made in an action to foreclose a mortgage. Defendant Louise Ballard pleaded a former adjudication and title under a tax deed. The plaintiff recovered, and the defendants appeal. The only controversy is between the plaintiff and defendant Louise Ballard..
In a former action between the same parties the plaintiff introduced in evidence a sheriff’s deed to himself reciting a sale made in the same foreclosure suit. The defendants then produced the return of the sheriff reciting a sale to Heber & Emerson, plaintiffs in the-foreclosure action, and also the order confirming the sale and directing the sheriff to make a deed to the purchasers. On this evidence, on December 16, 1908, judgment was rendered in that action for the defendants. Afterward the plaintiff obtained from Heber & Emerson a quitclaim deed for the land, dated March 29, 1905, and containing the following recitals:
“The said grantors, A. H. Heber and Willis G. Emerson, hereby state and covenant that they are the same parties who, as plaintiffs, commenced a suit to foreclose a mortgage on said land under the firm name of Heber & Emerson, as partners, against Henry J. Atchison and wife, on June 21, 1889, in the district court of Meade county, Kansas; that in said cause, on March 10,. 1890, an order of sale was issued under the decree therein rendered, directing the sale of said land to satisfy the mortgage debt; that the return. of the-sheriff on said order of sale shows that said land was sold to the plaintiffs in said cause, being the grantors herein, but the sheriff’s deed thereafter issued on February 7, 1891, conveying said land to Edward Austin, who was in fact the real purchaser thereof, and entitled to such deed, and said land was not in fact intended to be sold or conveyed to these grantors and this: conveyance is hereby made for the purpose of correcting the records in said cause in such respect and in. confirming and establishing the title of the said Edward Austin under his sheriff’s deed.”
On March 27, 1906, on motion of the plaintiff in this action, an order was made in the foreclosure suit directing the sheriff to make a deed of the premises to Heber & Emerson, which was done. Thereupon Heber & Emerson executed another quitclaim deed to the plaintiff, after which this action was commenced.
It will be observed that the first sheriff’s deed recited a sale to Austin, the plaintiff, and the second sheriff’s deed recited a sale to Heber & Emerson, and they were named as grantees therein. Defendant Louise Ballard contends that the plaintiff’s title was adjudicated in the former action. The plaintiff insists that he did not have the title at that time, but acquired it afterward, and that therefore the former judgment is not a defense. The question is whether the plaintiff is estopped by the judgment of December 16, 1908.
If the recital in the first quitclaim deed is to be taken as true the sale was really made to the plaintiff, and the record ought to have been amended to show that fact and then the sheriff’s deed would have appeared regular. But in an affidavit filed in support of the motion for a new deed the sheriff testified that the sale was made to Heber & Emerson, and that the deed was made to Austin at the request of their attorney. In his opening statement of the plaintiff’s case, on this trial, the plaintiff’s attorney said:
“But Heber & Emerson bid it in, and the sheriff was ordered to make a deed to the purchaser, Heber & Emerson; by some arrangement between Heber & Emerson and Austin, it was agreed, although that is not in testimony, but that was the fact, it was agreed that the deed should be made direct to Austin, and instead of the sheriff doing what the court ordered him to do and making the deed to Heber & Emerson be made the deed to Austin.”
It may be accepted then as true that the bid was in the name of Heber & Emerson, but that they agreed and directed that the deed should be made to Austin,, and it was therefore so made. ' That they had a right to transfer the interest acquired by purchase under their bid is clear. (Proctor v. Farnam, [N. Y.] 5 Paige, 614; Archer v. Archer, 155 N. Y. 415; 63 Am. St. Rep. 691, note; 2 Freeman, Exec., 3d ed., § 313; 3 Freeman,. Exec., 3d ed., § 328.) It will be presumed that the transfer was made as agreed, but in any event the agreement was carried into effect by causing the deed to be made to the transferee, thus vesting the title in Austin. It was said in Ehleringer v. Moriarty, 16 Iowa, 78:
“It is a familiar doctrine and practice that the sheriff may make his deed to a different person from the bidder, when the bidder consents to it. It is a matter of bargain between him and such other.” (p. 79.)
In Voorhees v. The Bank of the United States, (35 U. S.) 16 Pet. 449, it was said:
“The remaining objection is that the auditors did not make their deed to the person who purchased at the sale under the order of the court. This is a matter entirely between such person and those to whom the deed was made.” (p. 478.)
Our statute does not prescribe the form or contents of a sheriff’s deed, but such a deed ought, in addition to the matters contained in ordinary conveyances, to include proper recitals showing the proceedings and the authority under which it was made. The usual recitals are stated at length in section 329 of volume 3 of the third edition of Freeman on Executions, where the author says that if the conveyance is to a person other than the purchaser the deed should recite that he has assigned to such person, or otherwise disclose the reason why the purchaser is not named as the grantee. We quote from the same section:
“But except where a contrary rule has resulted from statutory prescriptions, it is probable that each, and possibly that all, of these recitals may be omitted from a deed without destroying its validity. The authority of the officer to convey depends upon the existence of certain precedent facts. The existence of these facts may be shown otherwise than by the recitals in the deed.”
A sheriff’s deed is prima facie evidence of the legality of the sale and proceeding. (Shields v. Miller, 9 Kan. 390; Civ. Code, § 502.) If this prima facie case was overcome on the first trial between these parties by the sheriff’s return and the order of confirmation, which, however, we do not decide, still the inquiry was not concluded, and the existence of the facts upon which the authority to execute the deed to the plaintiff instead of the persons named as purchasers might have been shown by extrinsic evidence, within the rule just quoted. (Lessee of Armstrong v. M’Coy, 8 Ohio, 128; Jackson v. Pratt, [N. Y. Supr. Ct.] 10 Johns. 381; Welsh v. Joy, 30 Mass. 477.) In the case last cited it was said, by Mr. Chief Justice Shaw:
“But the court are of opinion that those claiming under that deed are not so estopped, that all the facts upon which the power is given to the officer need, not be recited in the deed, and that a misrecital of such facts is not fatal.” (p. 480.)
Whether the facts should be found as stated in the recitals in the first quitclaim deed or as stated by defendant’s attorney in his opening statement and in the sheriff’s affidavit, it seefiis clear that the plaintiff was entitled to the benefit of the sale, although made in form to Heber & Emerson, and that the court might well have ordered a deed to be made to him direct. The fact that the last order directed that the deed should be made to Heber & Emerson may be accounted for by the fact that, having already conveyed any interest they might claim in the land to the plaintiff, a deed to them would accomplish the same purpose. The effect of the judgment in the first action of ejectment, pleaded in bar in this action, must be determined with reference to the actual interest of the plaintiff in the land at that time, and not by his apparent interest, or lack of inter est, as appearing from the record then existing. He then claimed to own the land, and this claim is shown by the evidence produced at the trial of this action to have been good — only the record at that time did not fully disclose it.' In that situation at the first trial he should have produced evidence of the facts which would have sustained his claim. If advised that further proceedings ought to be taken in the foreclosure suit to show a perfect legal title, they might easily have been taken; both actions were in the same court,-and an amendment of the record in the foreclosure suit would have been allowed, probably without delay. (Longworth v. Johnson, 66 Kan. 733.) But if delay were necessary in order to give notice, or for any other reason, a postponement of the trial should have been asked for to afford the necessary time.
The plaintiff relies upon the same sale and confirmation now that he relied upon in the former trial. He took nothing under the quitclaim deeds, for whatever interest Heber & Emerson had acquired by the bid made in their name, as the evidence shows, was vested in him before or at the time the first sheriff’s deed was made. It is true that the plaintiff was not estopped by the judgment in his first action from asserting an independent title acquired afterward (Comm’rs of Marion Co. v. Welch, 40 Kan. 767), but it prevented him from thereafter asserting a claim of title which he held while the action was pending and prior to the judgment. The title now set up is not a new or independent one, and is only confirmatory of the one first relied upon. A multiplicity of suits should be avoided if possible, and a party must present whatever evidence he may have to support his claim, on peril of losing it; and in an action to recover real property he should file supplemental pleadings, if necessary, to avail himself of such evidence. (Hentig v. Redden, 46 Kan. 231.) The plaintiff might have shown upon the first trial the facts disclosing his right to have the deed made to himself as grantee when such right was challenged.
The plaintiff’s contention that he acquired his title to the land after the judgment in the first action had been rendered can not be sustained, for he held the title at that time. The judgment in the first action in ejectment is therefore an estoppel in the present case. If the court erred in that judgment the estoppel is nevertheless complete, as it remains unreversed. (Manley v. Park, 62 Kan. 553.)
The sufficiency of the tax deed need not be considered.
The judgment is reversed and the cause remanded, with directions to render judgment for the defendants. | [
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The opinion of the court was delivered by
Smith, J.:
The appellant was arrested and convicted in the city of Minneola, Clark county, for a. violation of the ordinance of the city making it an offense for any person to be drunk on the streets' or in any public place in the city. Section 30 of ordinance No. 3 of the city of Minneola is as follows:
“Drunkenness. If any person shall be drunk in any street, alley, or any public place or building in this city, or if any person shall be drunk upon his own premises or the premises of another, disturbing his own family or others, he shall upon conviction thereof be fined in any sum not less than five dollars nor more than one hundred dollars.”
Section 4382 of the General Statutes of 1909 (Laws 1883, ch. 104, § 1) prescribes a penalty for the like offense of a fine not exceeding $25. This section does not in any way relate to the authority of cities of the third class to punish for drunkenness, and, although subsequently enacted, does not supersede or limit the authority expressly delegated by section 1579, infra.
Ordinance No. 3, supra, was evidently enacted under the general provisions of section 1579 of the General Statutes of 1909 (Laws 1871, ch. 60, § 66), which reads:
“For any purpose or purposes mentioned in this article, the council shall have power to enact and make all necessary ordinances, rules and regulations; and they shall also have power to enact and make all such ordinances, by-laws, rules, regulations and resolutions, not inconsistent with the laws of the state, as may be expedient, in addition to the special powers in this section granted for maintaining the peace, good government and welfare of the city, and its trade, commerce and manufactories; and to enforce all ordinances by inflicting fines, forfeitures and penalties upon inhabitants or other persons for the violation thereof, not exceeding one hundred dollars, for any one offense, recoverable with costs, and to provide for the recovery and collection thereof; and in default of payment, to provide for confinement in the city prison or workhouse, or at labor on the streets, or both.”
Motions to quash the complaint and in arrest of judgment were made, on the ground that the ordinance is repugnant to the state law because it authorizes a greater penalty than is authorized for the offense in the state courts; also, that the ordinance provides a minimum penalty, which is not authorized by section 1579, supra. The case of Assaria v. Wells, 68 Kan. 787, is cited as authority in support of the contention.
It will be observed that section 1579 of the statute is a general provision authorizing cities of the third class — which includes the city of Minneola — to enact ordinances for maintaining the peace, good govern-ment and welfare of the city, and to enforce such ordinances by inflicting fines' not exceeding one hundred dollars; and that section 4395 of the General Statutes of 1909 (Laws 1901, ch. 232, § 7), is a special provision in relation to ordinances to enforce the prohibitory liquor law, and, in effect, constitutes an exception to the provisions of section 1579. Section 4395 reads:
“Cities of the first, second and third classes may provide by ordinance for the prohibition of the sale of intoxicating liquors contrary to law and the suppression of common nuisances as hereinbefore defined, and for the search of premises where such common nuisances are maintained, and the seizure and destruction of all intoxicating liquors, bottles, glasses, kegs, pumps, bars and other property used in maintaining the same. Such ordinances may be enforced by imposing as a penalty for the violation of the same a fine of not less than one hundred dollars nor more than five hundred dollars, and imprisonment for not less than thirty days nor more than six months for each offense, and payment of the costs, and shall provide for commitment until fine and costs are paid. In prosecutions for violations of such ordinances, it shall not be necessary to describe in the complaint the kind of liquor sold or used, or the place where sold or kept, except where the charge is for maintaining a common nuisance; nor shall it be necessary to state the name of the person to whom sold, or to prove in the first instance that the party charged did not have a permit to sell intoxicating liquors.”
It is made clear in the opinion in Assaria v. Wells that the ordinance which in that case was held invalid was so held because it was in direct violation of the provisions of section 4395, swpra.
It is a general rule that a provision of the statutes expressly relating to a certain subject supersedes a general provision which may include the same subject. Because the statute relating to misdemeanors provides a penalty for the offense of drunkenness less than the maximum penalty provided by the ordinance does not render the ordinance repugnant to the statute; nor does the limitation as to the minimum penalty in the ordinance render it repugnant. The maxim “the greater includes the less” is applicable.
Some other objections are urged which we do not consider it necessary to discuss.
It is further contended that the evidence does not sustain the finding implied in the verdict — that the defendant was drunk. The evidence upon this subject was conflicting. There were more witnesses who testified that the defendant was not drunk than who testified that he was drunk at the time in question, but it is not our province to weigh the evidence. There is abundant evidence to sustain the finding of the jury.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The Phenix Insurance Company issued two policies, of $500 each, insuring appellees’ stock of merchandise. A fire occurred during the life of the policies which damaged a part of the goods insured. Appellees brought an action against the insurance company, alleging a loss of $1000; that they had complied with the conditions of the policy essential to a recovery of the loss, and that the insurance company had refused to pay the loss. In addition to a general denial and an averment that the action was prematurely brought, the insurance company answered that soon after the loss occurred a disagreement arose between the parties as to the extent of the loss, and that under a provision of the policy each party chose an appraiser and the two appraisers chose an umpire, and that together they made an award fixing the total loss at $838.02, and, there being additional insurance, the proportionate amount of the total loss due from appellant was $192.20, which had been tendered to appellees and by them refused. In the reply appellees attacked the honesty of the appraiser chosen by appellant, and also of the umpire, alleging that they were chosen -to wrong and defraud appellees; that, instead of being disinterested and fair, they ignored the appraiser selected by appellees and arbitrarily and fraudulently fixed values, regardless of'the goods that were in the stock and of the extent to which they were damaged. They therefore asked the court to set aside the award and to give them judgment for the actual loss in accordance with the demand made in their petition. Testimony was received as to the amount of the loss and tending to show that the award was not fairly made in accordance with the contract — was not the honest judgment of the appraisers, and that it was otherwise invalid. On the testimony the jury awarded appellees $1013.17.
Appellant contends that it was error to allow appellees to plead and prove a loss under the policy because it appeared from the pleadings that the. amount to become due had been settled by an award made by arbitrators, mutually selected by the parties to the contract, and that the cause of action which appellees had was on the award and not on the policy. It is insisted that if appellees choose to challenge the binding force of 'the award they should first bring an equitable action to set aside the award, and, succeeding in that, they might then bring an action on the policy. Two actions to determine the extent of appellees’ loss are not necessary and would not be tolerated under the modern practice. The distinction between actions at law and suits in equity has been abolished and all matters growing out of the contract of insurance, such as the matter of arbitration and the validity of the award, may be tried out in the same action. (Walker v. Insurance Co., 51 Kan. 725; Insurance Co. v. McLead, 57 Kan. 95; Insurance Co. v. Payne, 57 Kan. 291.) The right to blend law and equity in a single action is illustrated in the case of Insurance Co. v. Stone, 61 Kan. 48, where a demand for specific performance of a contract to issue a policy of insurance was united with a cause of action to recover on a loss, the same as though the policy had been formally issued.
In this case the amount of the loss resulting from the fire, and against which appellees were insured, was the principal issue in controversy, and whether a binding award was made was only an incident of the main issue. Appellees set up the contract of insurance, the loss, compliance with the conditions of the contract, and a refusal to pay the loss. Appellant answered that there was a contract of insurance, but that the amount of the loss had been fixed by an award made in pursuance of the contract. Appellees replied, “Yes, there was an attempt at an award, but it was not fairly made and is invalid.” It is competent for a plaintiff to set up in a reply matter in avoidance of a defense pleaded in an answer, even though that set up might of itself constitute a good cause of action against the defendant. Appellees might have told the whole story in their petition by pleading the attempt to arbitrate and the invalidity of the award made, but perhaps they had no assurance that the appellant would rely on that award, and, when it was set up as a defense, they were justified in alleging that the award was illegal. Under the code such allegations in the reply “shall be deemed to be controverted by the adverse party, as upon direct denial or avoidance, as the case may require.” (Civ. Code, § 129.) There was no demurrer to the re^ly and the parties entered upon the trial without any suggestion that the allegations were not responsive and •sufficient, and, having been pleaded in that action, the •court was justified in trying out the question whether the award limited or affected the amount to be recovered under the policies. Indeed, appellant would have had good reason to complain if appellees had split the controversy and had brought two actions against appellant, and thus, subjected it to unnecessary trouble and expense.
It is next argued that the contract contained a clause providing that a loss should not become payable until sixty days after proofs of loss were furnished by the Insured, and that there was no evidence showing when, if ever, proofs of loss had been made. It seems that notice of loss reached the company within a few days after it occurred, and that appellant’s adjuster proceeded to inquire into the extent of the loss without challenging the sufficiency of the - proofs. There is-nothing in the abstract showing that the proofs of'- loss-were incomplete, or that the action was begun less than sixty days after they were made; but, however that, may have been, the request for arbitration and the steps taken toward an adjustment of the loss were an elfectual waiver of proofs of loss. (Walker v. Insurance Co., 51 Kan. 725.) Appellees established their claim that the so-called award was not binding, and, as it is taken out of consideration, the time within which the action must be commenced is not limited by the time the award was made.
We find no error in the proceedings, and the judgment is therefore affirmed. | [
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The opinion of the court was delivered by
West, J.:
The appellees, on March 9,1907, executed a promissory note to the order of the Bank of Ellinwood for $3500, payable on September 9, 1907, at the bank. This was the seventh renewal of the same indebtedness, and all the renewed notes had been left with the bank. This note, with others, was negotiated to the appellant bank, to secure a loan of $6500 made by it to the Bank of Ellinwood. Sometime after its negotiation the cashier of the Ellinwood bank, when calling at the appellant bank, wrote on the note in question with pencil, “Ex. 3 - 9 - 08,” to signify that it was to be extended to March 3, 1908, saying that he wanted the appellant to carry it along. The appellant did not expect the Ellinwood bank to pay this or the other collateral notes unless, and until, the obligation of the 6500-dollar note should fail, and then they would be sent to the Ellinwood bank for collection if that bank was doing business; if not, to some other bank. But the note in question was never sent to any bank for collection. It was held by the appellant until May 5, 1909, when this action was begun. The 6500-dollar note was dated about April 24,1907, and matured about July 24, 1907. The Ellinwood bank failed in January, 1908, and the appellees, who were not otherwise indebted to the bank, did not know until after such failure and until the bank was in the hands of a receiver that their note had been negotiated to the appellant or to anyone. On June 21, 1907 (the note having been made in March and coming due in September) , the cashier of the Ellinwood bank met Mr. Dick, one of the appellees, on the street and told him that he (Dick) had plenty of money in the bank, and he, the cashier, would like to have the note paid, the result being that with the consent of Dick the cashier charged the amount of the note, with $105.78 interest, to Mr. Dick’s account, and told him that if he wanted it he would find his note among his papers at the bank, where his papers, including the renewals, were kept. Soon, after this the cashier gave Mr. Dick a note, which the latter thought was the one he had paid, but which was in fact one of the former renewals, and also sent a deposit slip on which was written:
“Bank of Ellinwood, Ellinwood, Kan.
Debit Mat Diclc.
Por account of note...........$3,500 00
Int. Jan. 23 to June 8.......... 105 78
June 21, 1907................$3,605 78”
To the petition the appellees pleaded, among other things, their right to have the note presented at the Ellinwood bank for payment at maturity, and the appellant’s failure so to present it; that they had paid the note in full on June 21, 1907, to the agent of the appellant; that the failure to present prevented them from discovering the fraud of the Ellinwood bank, and prevented them from protecting themselves therefrom, and that the money they paid the cashier was held as a trust fund by the receiver for the benefit of the appellant. The jury found that the Ellinwood bank or its officers intended to collect the note in question when the payment was made on June 21, 1907. They also found that by the common agreement between banks the appellant had authorized the Ellinwood bank to collect the note before it was due. The general verdict was for the appellees, and the appellant complains of the overruling of its demurrer to certain counts of the answer, of certain instructions, and of the refusal to set aside the verdict and certain of the findings.
The fourth count of the answer was to the effect that' the Ellinwood bank, by the negotiation of the note, became the primary debtor, and the appellees thereby became indorsers, and that the failure to present the note at maturity released them. This allegation was demurrable, but the court seems to have disregarded it in its instructions.
The fifth count averred that the appellant knew of the failing condition of the Ellinwood bank, and that the latter had the right to and did accept and receive the payment on Juné 21, 1907, as the agent of the appellant, and did as such agent acknowledge satisfaction of the note, and that it had such right to accept payment by virtue of the general custom among banks as well as between the appellant and the Ellinwood bank. The jury were instructed that the fact that the note was made payable at the Ellinwood bank did not itself make that bank the agent of the appellant to collect it, and that to make such payment a good defense it must be shown by a preponderance of the evidence, by express authority or by general rule or custom that the appellant looked to and depended on the Ellinwood bank to collect the note. We think the demurrer as to this count was properly overruled, and that the instruction just referred to was not erroneous as against the appellant.
The seventh count amounted to an allegation that the money paid on June 21, 1907, went to the agent of the appellant, and remained available to the appellant as a trust fund in the hands of the receiver of such agent bank after its failure, having been mingled with its general assets and gone to swell the same. We are not advised what instruction, if any, was given with reference to this allegation, but the demurrer thereto was rightfully overruled for the reason, if for no other, that it contained an averment of agency on the part of the bank which received the June payment.
More serious complaint is made, however, concerning the seventeenth instruction, with reference to presentment, which was as follows:
“You are instructed that if you find from the evidence that the- plaintiff acquired possession and title to the note sued on in this action from the payee named therein before its maturity, that it was his duty to present said note for payment when due at the place of payment named therein; and, if you find from the preponderance of the evidence that the plaintiff failed and neglected to present the same for payment at the place where by its terms it is made payable, and you further find from the evidence that the drawers of said note have suffered loss by reason of the holder’s neglect so to present said note, and that the holder, by presentment, could have secured the payment thereof, and that by reason of his neglect the holders [drawers ?] have suffered damages to the extent of the amount thereof, with interest, without any fault on their part, then the plaintiff can not recover.”
Counsel assert that this instruction wipes out the statute which, it is claimed, gives the failure to present the mere effect of a tender, but not the effect of destroying the obligation. Section 5323 of the General Statute of 1909, being section 77 of the negotiable instruments law of 1905 (Laws 1905, ch. 310, §77), is as follows:
“Presentment for payment is not necessary in order to charge the person primarily liable on the instrument; but if the instrument is, by its terms, payable at a special place, and he is able and willing to pay it there at maturity, and has funds othere available for that purpose, such ability and willingness are equivalent to a tender of payment upon his part; but, except as herein otherwise provided, presentment for payment is necessary in order to charge the drawer and indorsers.”
Here ability and willingness to pay are expressly made equivalent to a tender, and a tender merely and only stops interest; a tender is not payment, but merely an offer to pay. But this instruction was not, we think, materially erroneous, in view of the very peculiar circumstances of this case. ■ It is true that the appellees were careless or overconfident in the cashier of the Ellinwood bank or they would have seen that the proper note was surrendered when the payment was made, or at least when it matured. But they had been dealing with and trusting the cashier, leaving with him their papers, including the six renewals of the indebtedness for which the note sued on was executed, and were told that they could get this back by calling for it at the bank, and they had no knowledge that it had been transferred, much less that it had been extended. They continued in the bona fide belief that the note had been paid until after their trusted home bank had failed and gone into the hands of a receiver. Until after the failure the appellant gave no intimation that the noté was unpaid, that it had been transferred or that the appellant claimed any interest in it, or that it had been dishonored. It is clear that had the note been presented at maturity there would have been no difficulty whatever in procuring its payment. The money was there, had been there several weeks, and had been receipted for by the original payee, whose cashier had requested payment in advance of his customer, who had a good balance then on deposit.
The jury found that the Bank of Ellinwood or its officers intended to collect the note in controversy when the payment of June 21, 1907, was made by Mr. Dick, and that after the failure of the bank the first demand was made on the appellees, when Mr. Dick stated that he had paid the bank all he owed it. - Also the following:
“Ques. Did the Bank of Ellinwood have any authority from the New England National'Bank to collect the note sued on before it was due? Ans. Yes.
“Q. 'If you answer the preceding question in the affirmative, then you may state when such authority commenced and how it was created. A. By common agreement between banks, according to testimony of George B. Harrison, cashier of New England National Bank.”
Mr. Harrison was shown to have testified concerning another of the collateral notes (in another case) that he “simply received it as collateral and held it and looked to the Bank of Ellinwood to collect it.” He testified in the court below as follows:
“Ques. You said something about, if they should be collected — these collateral notes — you expected that they would be paid at Ellinwood; how is that? What procedure would you follow, Mr. Harrison? Ans. If the Bank of Ellinwood was doing business we would send it to them, to the Bank of Ellinwood, for collection —if we did not want to send it to them we would send it to some other bank at Ellinwood.
“Q. And as a part of the banking business was making collections on collaterals? A. Yes, sir.
“Q. That was the rule between you, was it? A. Yes, we exchanged collaterals, and I presume you would call it the rule.
“Q. Under the rule, Mr. Harrison, the makers- of the paper had the right to pay their notes when they matured, had they? A. Oh, yes.
“Q. Or at any other time prior to maturity? A. I presume a man has a right to pay his note any time he wants to.”
The twenty-sixth finding was that the appellant consented that the note should be paid by the appellees before maturity, “according to custom existing between banks, according to the testimony of George B. Harrison, its cashier.” It is not material whether this finding was or was not supported by the evidence, in view of the other finding of agency, which, as shown supra, had support in the testimony of the cashier here referred to. If there was an agency the appellant’s consent for the agent to act must have followed as a matter of course. But, aside from this, the appellant was in the position of knowing that the note matured September 9, 1907, that it was payable at the Ellinwood bank, and that the makers had by making it payable there, in law, ordered that bank to pay it at maturity for their account. (Laws 1905, ch. 310, § 94, Gen. Stat. 1909,' § 5340.) With this knowledge the appellant neither presented the note, nor notified the makers of its nonpayment, until the bank had failed and their money had been mingled with and gone into, its general assets.
The findings of the jury as to agency were, as herein shown, supported by the evidence, and the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiffs, Fred Robertson and W. J, Ratcliff, brought a suit the purpose of which was to settle the title to the land in controversy and to obtain the relief which would follow from an adjudication that they were the owners of it. Originally the land was school land. A certificate of purchase was issued which passed by due assignment to Mrs. Georgia F. Banta, of Maryville, Mo., who thereby, the petition alleges, became the lawful owner and holder of it. In 1901 the land was sold for taxes. On the basis of the tax proceedings, which were invalid, a patent was obtained by H. H. Obert, who conveyed to the defendant, the board of county commissioners of Rawlins county. In 1905 W. J. Ratcliff went to Maryville, Mo., and procured an assignment of the certificate of sale and a quitclaim deed of the land from Mrs. Banta. Soon afterward Ratcliff assigned a half interest to Fred Robertson. The necessary tenders were made by the plaintiffs to perfect their rights, if they were entitled to use the certificate of purchase adversely to the county. The county claimed the assignment of the certificate of purchase was obtained from Mrs. Banta under circumstances which made the county the beneficiary of the transaction. The issue thus raised was submitted to a jury, which returned a general verdict for the county and the following special findings of fact:
“Ques. Did W. J. Ratcliff, one of the plaintiffs, procure from Georgia F. Banta an assignment of the certificate for the land in question by pretending and representing to her that she had forfeited and lost all interest in the land, that it was then owned by Rawlins county, and that he wanted the assignment from her for the purpose of perfecting the county’s title to the land? Ans. Yes.
“Q. Did Georgia F. Banta give such assignment to Ratcliff believing it would be used for the purpose of being used to perfect the title of the county to this land? A. Yes.”
Judgment was rendered in favor of the county, and' the plaintiffs appeal.
It is claimed that these findings are not supported by the evidence. The testimony of Mrs. Banta was taken by deposition. The deposition appears in full in the abstract. The court has read it, and her statements alone are ample to sustain the findings. She was corroborated by other witnesses. She was contradicted by Ratcliff, who was examined in the presence of the jury. Evidently his testimony was not accepted, so far as it conflicted with hers.
In her deposition Mrs. Banta states that the transaction relating to the assignment and quitclaim deed was wholly with Ratcliff, that he did not mention coming to her for anyone else, and that when she signed the papers she did not believe she was transferring anything to the county: It is argued that these statements show that Ratcliff did not pretend to represent the county, that Mrs. Banta supposed he was acting in his own right, that she dealt with him on that basis, that she had no intention of selling anything to the county, and consequently that the findings can not stand. In other portions of her testimony, however, the witness makes the matter plain beyond possibility of misinterpretation. The substance of such testimony follows :
Ratcliff told her he came to perfect the title to this and to another tract of land covered by the school-land ■certificate that he was a perfecter of titles, and had the right to do so. He told her that the county owned the land in controversy, having purchased it for a poor farm, and that George W. Gaunt owned the other tract. He explained to her that she had no interest in the land, that her interest was all gone, that it had gone for nonpayment of taxes, that the time had- expired on the patent for anything to be done, and that ■she had no ownership of the land. He said he thought the county would be willing to give her fifty dollars ■and that Gaunt would be willing to give her twenty-five dollars, that she could get seventy-five dollars out of it, which was all she could get, and that after she signed the papers he presented it would make the title ■clear. She thought that if the land had gone for taxes, if her right to redeem had expired and she had no interest in it, she would take the seventy-five dollars. She thought he was straightening up the title in case the parties should desire to sell the land, and she thought the papers she signed were to perfect the title to the two pieces of land and to let the abstract show that •she did so.
It was not necessary that the jury should be wise respecting the ways of the world to understand this testimony. Ratcliff testified that before he went to Missouri he understood the title of the county and of Gaunt to the land covered by the certificate of purchase was not good because of a decision of this court relating to school-land certificates. His conduct proves that he hoped to obtain the land for himself by means of the outstanding certificate and he went to Missouri to secure the coveted document. If Mrs. Banta should entertain the belief that the certificate' carried with it a right to the land she might regard it as a valuable thing and might want to keep it, or if she consented to sell it she might demand a fair price for it. Therefore he convinced her that she had no right or interest whatever to transfer. If, however, this were true, he could obtain nothing of value by the transfer, and Mrs. Banta might be suspicious enough to inquire why he was expending so much time and money to secure a lifeless document. Consequently he satisfied her that he was acting for the county and for Gaunt, who would pay small sums for the certificate simply to clear up their titles. With this understanding she,signed and delivered the instruments he presented.
The law question arising upon the foregoing facts is whether the plaintiffs can now dispute with the county that Ratcliff acted for its benefit. Robertson makes no claim to any superiority of right over that of his assignor, Ratcliff. It dignifies the matter too much to suggest that there may be a question about it. According to the facts as they were finally established the institution of the suit was merely an attempt to use a court of justice as a tool to finish up an unconscionable job. The fact that Ratcliff came into court with-unclean hands was sufficient to prevent him from recovering, but the law does not stop there. It takes the transaction to be just as it was represented, seizes the fruit in the hands of the volunteer agent and passes it over to the party who ostensibly was to be benefited. It is scarcely necessary to cite authorities in support of this- rule. Its justification lies in its moral quality and not in the recognition it has received in textbooks and court decisions. However, the following are pertinent: 3 Pomeroy’s Eq. Jur., 3d ed., § 1053; 15 A. & E. Encycl. of L., 1188; Mulvany v. Dillon, 1 B. & B. [Irish Ch.] 409; Sweet v. Jacocks, 6 Paige Ch. [N. Y.] 355, 359; Rollins v. Mitchell, 52 Minn. 41; Gates v. Kelley, 15 N. Dak. 639; Johnson v. Knappe, [S. Dak. 1909] 123 N. W. 857; Va. Pocahon tas C. Co. v. Lambert, 107 Va. 368; Merrett v. Poulter, 96 Mo. 237; Satterthwaite v. Loomis & McLachlen, 81 Tex. 64; Dennis et al. v. McCagg et al., 32 Ill. 429.
The plaintiffs argue that Ratcliff bore no fiduciary relation to the county, broke no faith with it, made no-misrepresentations to it, and consequently that they are under no obligation to the county. It was not necessary that Ratcliff should already be bound to the county by any ties of good faith, should owe it any duty or should mislead it, in order that the plaintiffs may be-charged as its trustees. Ratcliff having covered himself with the county’s cloak, and in that garb having-possessed himself of valuable rights respecting the-property the county claimed, the law will not permit him to escape the fiduciary character of the relationship to the county which he, assumed to bear. It makes, no difference that he intervened voluntarily and used his own money.- His mouth is closed against a denial of the capacity in which he acted, and the county has-the right, if it so desires, to treat the transaction as. one conducted solely for its benefit.
The plaintiffs further argue that, admitting the facts, to be as the findings show, Ratcliff deceived Mrs.. Banta in regard to the purpose for which he desired an assignment of the certificate and that she is the only-person who should be heard to complain. The reply to this argument has already been stated. The plaintiffs are estopped from asserting that Ratcliff was not acting for the county in an endeavor to perfect its title to the land. The transaction is thereby purged of deceit and the instruments executed by Mrs. Banta are devoted to the very purpose and are given the precise effect which she had in mind. Nor does it make any difference in this action what Mrs. Banta’s rights may be on account of the representations made to her respecting the extent of her- interest'in the land. The-right of the county to recover against Ratcliff and his assignee does not depend upon those representations.. It rests upon the fiduciary relation which Ratcliff established between himself and the county; and, the transaction having been concluded, he holds the proceeds for the county and can not escape an accounting by asserting the impropriety of his own conduct in obtaining them.
The plaintiffs undertake to distinguish some of the cases cited. In the case of Rollins v. Mitchell, 52 Minn. 41, Mrs. Gabiou had conveyed to Bardon by a deed which was ineffectual. Mitchell held the Bardon title. Nichols procured'from Mrs. Gabiou a deed to Rollins, a figurehead for himself, by representing that he was curing the Bardon title. Rollins was held to be a trustee ex maleficio for Mitchell. The court said:
“In our judgment, the entire evidence irresistibly compels the conclusion that Nichols secured the deed by giving Mrs. Gabiou to understand, or by conveying to her the impression, that it was in support of her original conveyance to Bardon, and to validate the Bardon title, and that she executed it under that impression, and supposing it would have that effect.
“It is not necessary that Nichols should have expressly told her that he or the party for whom he was acting had purchased of Bardon, and that the deed was desired for the purpose of fixing up that title. It is enough to hold him chargeable as trustee if he by indirection gave her to understand, or by any means intentionally conveyed to her mind the impression, that such was the fact. A person may make a false representation or fraudulent promise by indirect as well as by direct statements, and even by keeping silence when he ought to speak. [Citing cases.] It is urged, however, that, although a fraud may have been committed on Mrs. Gabiou, none was committed on defendant Mitchell; that to charge Nichols, as trustee for Mitchell, either the former must have sustained some fiduciary relation to the latter in respect to the title, or the latter must have had some claim to the land in the hands of Mrs. Gabiou, which he could have enforced against her. We do not so understand the law. The rights of the third person in such cases depend, not upon the fact that he had some legal or equitable claim to the property before the constructive trust .was created, but upon the fact that he acquired such_ right by the trust, as being the party for whose benefit it was intended by the former owner.” (p. 49.)
Seizing upon the concluding words of this quotation, the plaintiffs argue that in cases of this kind equity merely executes the intention of the grantor, and that, unless the grantor holds the specific design of benefiting the third person, no equity in his favor will arise. It is further pointed out that Mrs. Banta was moved by no desire on her part to clear up the county’s title. She merely thought the county desired to perfect its title and she got what she could for signing the necessary papers. The argument ignores entirely the facts ¿upon which the decision is based. The first paragraph of the quotation discloses a state of mind on the part of Mrs. Gabiou which is precisely the same as that imputed to Mrs. Banta. It is true that the doctrine under consideration originated in cases like those referred to in Perry on Trusts:
“Courts of equity will not only interfere in cases of fraud, to set aside acts done, but they will also, if acts have by fraud been prevented from being done, interfere and treat the case exactly as if the acts had been done; and this they will do by converting the party who has committed the fraud, and profited by it, into a trustee for the party in whose favor the act would otherwise have been done. If one by a promise to buy land at an auction sale for one having an equitable interest in it induces the latter and her friends not to bid against him, .he will be held a trustee. . . . If a person bv tbs promises, or bv anv fraudulent conduct, with a view to his own profit, prevents a deed or will from being made in favor of a third person, and the property intended for such third person afterward comes to him who fraudulently prevented the execution of the will or deed, he will be held to be a trustee for the person defrauded, to the extent of the interest intended for him. . . . And where a person fraudulently intercepts a gift intended for another, by promising to hand it over if it is left to him, equity will compel an execution of the promise, by converting such person into a trustee.” (Yol. 1, 5th ed., § 181.)
But it would require a lesion in the conscience of courts of equity to restrain the application of the doctrine to cases of this kind. As the Rollins-Mitchell case shows, no specific undertaking on the part of the grantor and no express promise on' the part of the' fraudulent grantee are necessary. It would be odious to suffer the evildoer to reap any advantage from his.machinations, and to prevent such a result the transaction is given the beneficial effect which the party who acted in good faith understood it would have.
Mr. Pomeroy states the principle in a way which fairly covers the subject:
“In general, whenever the legal title to property, real or personal, has been obtained through actual’' fraud, misrepresentations, concealments, or through undue influence, duress, taking advantage of one’s weakness or necessities, or through any other similar means or under any other similar circumstances which render ■ it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably-entitled to the same, although he may never perhaps have had any legal estate therein.” (3 Pomeroy’s Eq. Jur., 3d ed., § 1053.)
In the case of Va. Pocahontas C. Co. v. Lambert, 107 Va. 368, the opinion reads:
“While the evidence is conflicting as to the repre- ■ sentations made by the appellee in obtaining the conveyance from Mrs. Beavers and Cline and wife, it clearly appears, from the whole testimony and from the circumstances surrounding the transaction that he made the impression upon the grantors that he was. not purchasing for himself, but for the coal company, which claimed to be the owner of the land and was in possession thereof, and that they were induced to make ■ the conveyance because of their belief that in so conveying they were curing defects in former conveyances of the same land made by them. In other words, the' record establishes the fact that the appellee secured' the conveyance by causing his vendors to believe that: it was made to cure defects in their former conveyances. Where a conveyance is procured under these circumstances the grantee, under settled equitable principles, is held to be a mere trustee for the party really intended to be benefited by the grantor.” (p. 373.)
The plaintiffs argue that a trust was imposed in that case to satisfy the moral obligation of the grantors to remedy defects in their former conveyance. It is sufficient .to say that the court took no such position. The principles upon ' which the decision rests are those stated by Pomeroy and by the Minnesota decision, both of which are cited as authority.
In this case Ratcliff led Mrs. Banta to believe that' the instruments he presented would be used to perfect the title to the two pieces of land. Acting under this belief, she signed them and delivered them to him. It would be utterly unconscionable to allow him to use documents procured by such means to overthrow the title. Therefore equity will take them away from him and will-give them the beneficial éffect which he represented they would have by delivering them to the title holder.
It is not necessary to discuss the authorities further. Entire unanimity is rarely to be found. The court is satisfied with the views which have been announced.
The answer alleged that Mrs. Banta was not the owner of the certificate of purchase in May, 1905, when the assignment and quitclaim deed were executed. Evidence was introduced relating to this defense, and the jury were instructed concerning it. The plaintiffs claim that the defense was irrelevant, that it was not established, and that the instructions upon the subject were erroneous. Conceding the claim to be well founded, it follows that Mrs. Banta was the owner of the certificate, as the plaintiffs alleged and as their proof showed, and the result already stated follows. If the defense were pertinent and duly established,- the sole foundation for relief presented by the plaintiffs’ pleadings was destroyed.
The petition, which was filed in August, 1905, prayed relief upon the specific ground of ownership of the certificate of purchase derived from Mrs. Banta by means of the assignment and the quitclaim deed. The tenders pleaded by the plaintiffs were all made in virtue of that ownership, and a demand for rents and profits was based upon the same right. ■ The evidence offered by the plaintiffs was confined strictly to the issue presented by the petition. The evidence offered -in support of the answer was confined strictly to the defenses which have been stated, and, so far as the matter of title was concerned, to the rights of the parties as they existed in 1905 before the suit was commenced. On rebuttal the plaintiffs offered evidence of a new title to the certificate of purchase, acquired in 1907 from a Mrs. Creveling, who, the county had tried to show, held the certificate in May, 1905. On objection that the evidence was immaterial, an-d that it was something fixed up a couple of years after the suit was instituted, it was excluded. Perhaps it was discretionary with the court whether or not it would permit the plaintiffs thus to shift their position to new ground and introduce a new issue at that stage of the proceedings. If so, the discretion was not abused. The only way the plaintiffs could properly secure the advantage of the title acquired after the suit was commenced was by obtaining leave, upon notice and under terms as to costs, to file a supplemental petition. (Civ. Code, § 145.) This course was not pursued. The plaintiffs say the county enlarged the issues by a general statement in an amended answer filed in 1908 to the effect that the plaintiffs did not own the certificate or the land it described. An amended petition had also been filed, and this statement was made in answer to the specific claim of title which it presented. If anything were expanded it was the an swer, to include defenses other than those specifically pleaded; but the plaintiffs were given no license to abandon the amended petition at the end of the case and substitute a new, unpleaded, and theretofore undisclosed, cause of action.
Instructions to the jury upon the issues determined by the special findings of fact are of course no longer of consequence.
By the judgment Ratcliff’s voluntary agency is kept, upon an honest basis and the county obtains the full benefit of it. His repudiation of the trust deprives him of compensation for his services, but the county ought to reimburse him for its proportion of his expenditures, in obtaining the assignment and quitclaim deed from Mrs. Banta. The judgment of the district court is-modified and the cause remanded for the purpose of' adjusting this matter. The costs in this court are taxed, to the appellants. | [
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Per Curiam:
In a petition for a rehearing attention is called to the recent case of Chantangco v. Abaroa, 218 U. S. 476. There the court held an acquittal upon a criminal charge to be a bar to the recovery of damages occasioned by the same unlawful act. The decision, however, turned upon a peculiarity of the law of the Philippine Islands, in virtue of which “a judgment of conviction was essential to an action for indemnification.” (p. 484.) After stating the substance of the local statutes the opinion continues:
“The foregoing considerations eliminate any question of the effect of such a judgment of acquittal under the principles of the common law.” (p. 486.)
The petition for a rehearing also urges that the injunction action here involved is in its essential nature penal, because the statute requires an unsuccessful defendant to pay the plaintiff’s attorney’s fee. Granting that this requirement is justified only on the theory that a wrong to the public has been committed, the attorney’s fee is not strictly and solely a penalty; it is also compensatory. (See A. T. & S. F. Rld. Co. v. The State, 22 Kan. 1, 15, 16.) Moreover, the object of the injunction action is not to exact the payment of the attorney’s fee — that is merely incidental.' The purpose is not punishment for a past offense, but security against its repetition.
West, J., not sitting. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by a number of individuals, firms and corporations engaged in the sale of gasoline and oil against Garden City to enjoin the enforcement of a city ordinance fixing what is termed an occupation license fee upon the business of selling gasoline. A temporary injunction was granted at the commencement of the action, but after plaintiffs had introduced their evidence at the trial, the court sustained a demurrer thereto dissolving the temporary injunction previously granted and gave judgment for the defendants. Plaintiffs appeal.
They contend that the ordinance under which fees are charged and collected is in conflict with the statute imposing a tax on the sale or use of motor-vehicle fuels, including gasoline, and providing “that the tax herein provided for shall be in lieu of all other taxes or license fees (except occupational taxes) upon the sale or use of said motor-vehicle fuels.” (Laws 1925, ch. 274, § 6.) It was also insisted that the fee charged is unreasonable, oppressive and confiscatory and that the revenue requirements of the city do not warrant the imposition of such a charge. The material parts 'of the ordinance challenged for invalidity follow:
“Ordinance No. 261.
“An Ordinance fixing an occupation license fee on certain trades, occupations and businesses in the city of Garden City, Kansas, and classifying the same for the purpose of regulating such trades, occupations and businesses and raising revenue for said city and providing for the time and manner of paying such license fees and fixing penalties for the nonpayment thereof.
“Be it ordained by the Mayor and Commissioners of the city of Garden City, Kan.:
“Section 1. That every person, firm or corporation now engaged in the business, trade or occupation of selling gasoline in said city either at wholesale or at retail, shall pay to said city an annual license fee for each place of business conducted by them as follows:
“At each place of business, or filling station where one gasoline pump is used in dispensing gasoline in said business, the sum of $360.
At each place of business or filling station where two gasoline pumps are used in dispensing gasoline in said business, the sum of $720.
“Where no gasoline pumps are used but other means are used for dispensing gasoline at wholesale or at retail, the sum of $360 annually for each dispensing method used.
“Sec. 2. The license fee provided for in this ordinance shall be paid in twelve equal monthly installments and each person, firm or corporation required to pay a license fee under the provisions hereof shall pay one-twelfth part of said annual license fee to the city clerk in advance on the first day of each month, the first monthly installment of said fee to be paid after this ordinance takes effect shall be made on the first day of October, 1925, the city clerk shall issue the city’s receipts for all fees received under this ordinance, which receipt shall recite the month or period of time for which such fee is paid and the date when paid and the amount thereof.
“Sec. 3. Every person, firm or corporation who shall fail for five days to pay any monthly installment of said license fee as herein provided for and required herein to be paid by them, after the same is due and payable shall be deemed guilty of a misdemeanor and shall be fined not less than $50 nor more than $100 and the costs of prosecution, and shall be committed to the jail of said city until said fine and costs are paid.
“Sec. 4. All license fees collected under this ordinance shall be placed in the city street and alley fund of said city and shall be expended in the improvement of the streets and alleys of said city.”
There Was testimony to the effect that the only other business or occupation regulated or charged with a license fee or tax was pool halls, and since the passage of the ordinance a charge has been imposed on auctioneers. There was testimony to the effect that there were twenty-eight gasoline stations, pumps and tank wagons that would be subjected to this license fee in Garden City, a 'city of the second class with a population of about 4,000. Some of the dealers testified that the fee charged was in excess of the profits derived from the sale of gasoline. One of the smaller dealers said that his gross pi'ofits on gasoline would not equal the license fee and that he had to abandon the business. There Was testimony of others tending to show1 that tire charge would reduce the net profits so they would be inadequate. Some of the dealers conduct other business in connection with dealing in gasoline, and it was shown that others would be able to continue in business at reduced profits but would not be driven out by the fees charged. As to the requirements of the city for the improvement and maintenance of the streets and alleys, it was shown that in 1924 the city expended thereon $1,873.29, which was raised by a tax levy for that purpose. In 1925 the amount raised for the same purpose was $5,367.77, and the estimate is that the amount that Would be raised from the license fees imposed would amount to about $10,000.
The question of whether or not the city ordinance is in conflict with the state law depends largely upon whether the charge is occupation tax or a license fee; whether it is a revenue measure wholly or in substantial part regulatory. If it is an occupation tax it is not within the prohibition of the statute cited, but if it is wholly or in part a license fee regulatory in character, it conflicts wiith the statute and is invalid.
In the title of the ordinance the term occupation license fee is used, and it is said to be for the purpose of regulation as well as revenue, but throughout the body of the ordinance the charge is spoken of as a license fee, the term usually applied to charges for regulation, restriction and control. A regulation charge is one exacted for a privilege or as a condition precedent to the carrying on of -the business and is an exercise of the police power, while an occupation tax is imposed under the power of taxation. (6 Words and Phrases 4908.) The term used in naming the charge is not always controlling, as it is sometimes used loosely and indiscriminately, and so we must look to the language of the ordinance to determine the legislative purpose. In the title of the ordinance it recites that the trades, occupation and business are classified for the purpose of regulation as well as revenue. The charge is repeatedly referred to in the body of the ordinance as a license fee on the business of dealing in gasoline. It is required to be'paid in monthly installments in advance for which a receipt is to be given. Those who obtain the receipt may sell gasoline, and those who engage in the business without paying the fee and obtaining the receipt are deemed to be guilty of a misdemeanor and subjected to a heavy fine. The charge was evidently intended as a regulation of the business, and probably as a restriction as to the number of parties that might engage in it. The amount of the charge is such as to prohibit the continuance in business of small dealers. Being a license fee and regulatory, at least in part, it falls within the prohibition of the statute. The legislative purpose was that the tax imposed by the state upon the sale of gasoline should be in place of and exclusive of all charges other than occupation taxes. License fees are in terms excluded, and it is clear that a substantial part of the charge made in the ordinance is for regulation, control and restriction, and is in conflict with the statutory limitation. Even if part of the charge can be regarded to be for the raising of revenue it cannot save the ordinance, as the parts are inseparable. The charge does not apply to occupations or businesses in general, but only to the sale of gasoline and oil, a legitimate business, and is grossly excessive. As an occupation tax it is discriminatory and out of line with that imposed on other legitimate occupations, trades or businesses and has no reasonable relation to the revenue requirements of the city. (Scriven v. City of Lebanon, 99 Kan. 602, 162 Pac. 307.) On that theory the ordinance would seem to be unjust, unreasonable and confiscatory, but we will dispose of the case upon the ground that it is in conflict with the statute in that the charge is in substantial part a license fee which the city may not impose. It is clearly beyond any proper charge for the expense of public supervision and police protection, and must be regarded as invalid.
The judgment will be reversed and the cause remanded with directions to enter judgment for plaintiffs.
Hopkins, J., not sitting. | [
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The opinion of the court was delivered by
Bur'ch, J.:
The action was one for damages for personal injuries sustained by plaintiff when she was struck by defendant’s automobile. Plaintiff recovered, and defendant appeals.
Defendant contends he was without fault, and plaintiff was guilty of contributory negligence. In a narrative apparently intended to take the place of an abstract of the testimony, defendant states the accident occurred under a railroad viaduct in the city of Wichita, on a roadway given over to vehicular traffic, and not at a street-crossing. Plaintiff abstracts testimony showing the accident occurred on a crosswalk used by pedestrians in traveling from the steps on one side of the viaduct to the steps on the other side.
The narrative referred to states that defendant was driving to his work in no special haste, a statement too indefinite to enlighten the court. The jury found defendant was not driving his car at a rate of speed less than ten miles per hour, and plaintiff abstracts testimony showing the speed of the car at the time of the collision was not less than twenty miles per hour. An ordinance of the city of Wichita limited the speed of a vehicle passing under a track elevation to twelve miles per hour, and plaintiff abstracts testimony of defendant that after he saw plaintiff he could not stop or turn aside in time to avoid collision.
The jury found specially that defendant’s vision was obscured by a car in front of him and by the foggy state of the weather, but that the injury plaintiff received was not the result of unavoidable accident. An automobile driver must take note of weather conditions and objects obstructing his view, and must operate his car with due regard to the safety of others under the circumstances limiting his ability to see.
It follows from the foregoing that this court is in no position to declare the rrerdict finding defendant guilty of actionable negligence and acquitting plaintiff of contributory negligence was unsound.
Defendant complains because the court permitted a boy eight years old to testify for plaintiff. The qualification of a witness is not determined by age alone. Defendant does not abstract the proceedings, and plaintiff’s abstract discloses the fact that the boy qualified as a witness.
Defendant complains that the court denied his request to give certain instructions, but his motion for new trial 'did not complain of the instructions which the court did give. Those instructions are not abstracted, and may have covered the issues in the case.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one of forcible detainer. Plaintiff prevailed and defendant appeals.
The facts are substantially these:
Henry L. Dutton, husband of the plaintiff, owned the land in controversy, consisting of about 130 acres. The defendant, his son, was in possession under a verbal agreement by which he was to pay his father one-half of all crops raised on the premises, including one-half of the grain in bin or cribs and one-half the hay in stack. The father was to furnish half the seed wheat, pay one-half the expenses of baling the hay and one-half the cost of threshing the wheat or small grain. Possession w*as to be delivered on demand. Henry L. Dutton, died in April, 1922, leaving a will which was duly probated, under the terms of which the plaintiff, his wife, became the owner of a life estate and entitled to the possession of the property in controversy. On August 1, 1922, a written agreement was entered into between plaintiff and defendant by which defendant leased from the plaintiff the premises for a term of twelve months. The terms of this lease were practically the same as the oral one theretofore ex ist-ing between the father and son. Under the lease defendant agreed to deliver possession of the property in August, 1923. A dispute arose between the parties in August, 1923, over possession of the farm, and in settlement of the controversy an agreement was entered into August 11 by which it was stipulated that defendant was to remain in possession of the premises until ten days after the close of the spring term of school in 1924. He was to harvest the immature crops then growing. He surrendered possession to the plaintiff of the part of the land that was not then occupied by the growing crops and was to pay one-half of the corn and one-half of the hay. In April, 1924, another agreement was made by which the defendant leased part of the premises in controversy from the first of May, 1924, to the first of September of the same year. Before this agreement expired and on August 25, 1924, another was made, leasing part of the ground until the close of the school year in 1925 and part until August, 1925, and another part until the corn crop should be picked not later than December 20, 1925, and providing for the payment of rent and delivery of possession. Still later another agreement was made covering all the ground then in possession of the defendant, until September 1,1925. It included the usual terms of lease between landlord and tenant. At the close of the lease period for which defendant had leased the premises, he failed to give possession, was served with notice to quit; did not comply; result — this action.
The defendant contends that he held the premises in controversy under and by virtue of a contract with his father, executed in 1910, more than fifteen years before the bringing of this action, and that the premises were occupied by himself and family as a homestead; that he was in possession under an equitable claim of title which c.ould only be tried in an action brought originally in the district court in which the equity of the property rights could be decided and proper decree entered. The contention cannot be sustained. It is clear from the record that the defendant held possession of the premises in controversy under and by virtue of the various leases executed first by himself and his father and later by himself and his mother; that the original relationship of landlord and tenant existed between the father and son and later continued between the mother and son.
Landlord and tenant is a phrase used to denote the familiar legal relation existing between the lessor and lessee of real estate. The relation is contractual and is constituted by a lease or agreement therefor of lands for terms of years, from year to year, for life or at will. A lessor is one who grants a- lease; the lessee, he to whom a lease is made, he who holds an estate by right of lease. A tenant is one who has the temporary use and occupancy of lands or tenements Which belong to another, the duration and other terms of whose occupancy are usually defined by an agreement called a lease, while the parties thereto are placed in the relation of landlord and tenant. In determining whether an instrument is a lease, or creates a relation other than that of lessor and lessee, the intention of the parties, to be ascertained from the instrument itself, will govern. The fundamental rule in the construction of agreements is to ascertain the intent of the parties, and in such construction the courts look to the language employed, the subject matter and surrounding circumstances. The construction given the contract by both parties through a long term of years is persuasive in arriving at their intention and purpose. (Berg v. Scully, 120 Kan. 637, 641, 245 Pac. 119.) The acts of the parties and the various agreements made between them leave no doubt that the relation, so far as the property in controversy is concerned, they intended to be that of landlord and tenant. The plaintiff was entitled to the possession of the property at the end of the tenancy and the kind of action brought was not improper. (Flannagan v. Dickerson, 103 Okla. 206, 229 Pac. 552; East Park St. Corporation v. Kalliodis, 208 N. Y. S. 42, 124 Misc.. Rep., 365; Hall v. Harrel, 136 Ark. 329, 206 S. W. 435.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover real and personal property from a devisee, by a person claiming under an oral contract with the devisor whose will had been duly probated. The petition was amended to base the claim on a written contract. There was no foundation for either claim. Plaintiff was an heir of the testator, and claimed the property on the ground the testator lacked mental capacity to make a will, and on the ground the will was induced by fraud and undue influence practiced on the testator. The court found the facts according to plaintiff’s contention, but held action on those grounds was barred for failure to contest the will within the statutory period. The will gave the testator’s property to McPherson county for charitable purposes. The court held the will was void for those purposes, and awarded the property to plaintiff. The county appeals, and plaintiff notes a cross appeal from the ruling based on her failure to contest the will.
On October 2, 1921, Oren G. Bigford died of pulmonary tuberculosis at the county hospital in McPherson county. He was about seventy-two years old. He left a will disposing of a farm of eighty acres in Marion county, two city lots in Carlton, Dickinson county, and some money and personal property. His heirs were the plaintiff, Minnie Rishel, and her brothers and sisters, who were children of the testator’s deceased sister. Plaintiff lived in North Platte, Neb., was forty-one years old, and so far as the abstract discloses never saw the testator. She kept up a desultory correspondencé with her uncle, and sent him small presents on his birthdays, at Christmas time, and on other infrequent occasions. Previous to November, 1920, the testator, who was a bachelor, lived alone on his farm. Advancing years, impaired eyesight, and the disease of which he died, made it difficult for him to care for himself. In October, 1920, the probate court of Marion county directed the county health officer to investigate his condition and make a report. At whose instigation this was done does not appear. On October 13, the county health officer reported that Mr. Bigford was not feeble-minded or mentally deficient, but was physically undernourished, weak, and infirm, was suffering from hardening of the vitreous humor, which in time would cause total blindness, and for those reasons he was unable to take care of himself. Tuberculosis of long duration was not mentioned. On October 15 the county health officer filed a complaint for appointment of a guardian of Mr. Bigford’s person and property. Suspecting that control of his property was the chief motive for the proceeding in his interest, Mr. Bigford went to McPherson county, and made his home with Burt Hodges from November 11, 1920, to June, 1921. While there he told Mr. Hodges he wanted his niece (the plaintiff) to have his property when he was through with -it, and asked Mr. Hodges to use his influence to see that she got it. Mr. Hodges asked for some writing that he might show or that she might show for it. Mr. Bigford replied he would put nothing in writing, because that would put it in court, and he did not want his property to go through court in any way. His reason for preferring his niece was, she was a daughter of a favorite sister, and had written to him since she was old enough to do so.
In the course of some work preliminary to the holding of a tuberculosis clinic in McPherson, two nurses, one an itinerant nurse of the Kansas State Tuberculosis Association, and the other a Red Cross nurse, discovered Mr. Bigford’s condition, and reported the facts to Dr. C. R. Lytle, who was county health officer of McPherson county. Doctor Lytle investigated the case, and in the course of his visits at the Hodges home, learned of the solicitude in Marion county for Mr. Bigford’s welfare and property. According to Doctor Lytle, and there is no other evidence on the subject, Mr. Bigford expressed a desire for care which would not be mercenary. Doctor Lytle suggested that Mr. Bigford place his property at the disposal of the county officials, to be used for .his comfort during the short time he had to live, and at his death to be used for erecting a sanitarium for unfortunates suffering from the disease with which he was afflicted. Doctor Lytle took Mr. Bigford to the county hospital, and later took the county attorney to see him. Mr. Bigford expressed a desire to dispose of his property as Doctor Lytle had ■ suggested, and the county attorney made the following written recommendation to the board of county commissioners:
“I hereby submit for your consideration a proposition secured by C. R. Lytle from Oren G. Bigford, a citizen of McPherson county, with his will, leaving all of his property to the county of McPherson for the establishment of a tuberculosis sanitarium at McPherson. Mr. Bigford has been taken in charge by Doctor Lytle as a tuberculosis patient, and it is his proposition that he shall be taken care of and maintained by this county during his lifetime, and at' his death all his property go t'o the county for the purpose named. Mr. Bigford has no relatives to leave his property to, and is willing to have his property devoted to this purpose. Doctor Lytle believes that with this property and the funds to be derived from it that he can secure state aid for the location of a tuberculosis sanitarium at McPherson, and to assist in this I advise and recommend that the proposition be accepted.”
The county commissioners were apathetic, and did not accept the proposal. They desired compensation for care of Mr. Bigford during his lifetime. Afterwards Mr. Bigford executed deeds of his real estate to McPherson county, and the will was redrafted. In its final form, the will read as follows:
“I, Oren G. Bigford, a resident of McPherson county, Kansas, being of sound mind and memory, do hereby make and publish this my last will and testament, that is to say: First,' I desire that all my lawful debts of every kind and nature whatsoever shall be paid, also, the expenses of my last sickness, my funeral expenses and the costs of administration shall be first paid. In recognition of the consideration and attention given me by the American Red Cross at McPherson, because of my afflicted condition and sickness, they being the promoting and moving cause in making arrangements for my remaining days on earth more certain for better maintenance, for medical care and treatment such as is necessary for one in my condition, and further to provide a means whereby others afflicted as I am, but in a more unfortunate situation, may be afforded assistance and relief, I do hereby give, devise and bequeath to the county of McPherson, Kansas, all my real estate and personal property, the real estate being the west half of the southwest quarter of section 4, in township 17, range 1 east of the 6th P.M., Marion county, Kansas; also lots 19 and 21 in block 7 in the town of Carlton, Dickinson county, Kansas, to be conveyed to the county of McPherson, Kansas, in fee simple, reserving to myself during my lifetime all rents, profits, and the income from same, for the payment of my debts if any and for my personal expenses during my remaining daj'S. In addition to the above, I have personal property, consisting of money on deposit in the banks and notes for money loaned, as follows: $147 in the Roxbuiy State bank; $80 in the Carlton State Bank, in Dickinson county, Kansas; one promissory note for $300 against John B. Mayes, and one promissory note for $300 against John B. Base, and one promissory note for $650 against Burt Hodges, all these notes drawing interest; I also have my last year’s corn crop on hand, stoi'ed in the crib on the farm, estimated at 200 bushels, and I also have the corn, wheat and oats crop for this year, and cash rent of $50 due me for the use of the pasture. All as above set out, and any other property that may come into my possession by reason of the above, I do hereby give, devise, and bequeath, for the purpose of relief to those afflicted, more especially by tuberculosis, to the county of McPherson, state of Kansas, to be expended by said county for such charitable purpose. For the purpose of carrying out the terms and provisions of this my last will and testament, I do hereby appoint Alex S. Hendry, of McPherson, Kansas, as administrator and executor of my estate, and that he shall not be required to give bond for the faithful performance of his duties as such administrator.”'
The witnesses to execution of the will were Doctor Lytle, Anna Main, one of the nurses mentioned above, and Lyda Swick, the matron of the hospital. The person, named as executor in the will was the county attorney. The will and deeds were executed on July 2,1921. The testator died on October 2,1921. The deeds were filed for record on October 7. The will was presented for probate by the testamentary executor on October 11, and was probated on October 12. The order admitting the will to probate reads in part as follows:
“And after due' proof and hearing had, and examination of the subscribing witnesses to said last will and testament having been duly taken and heard, according to the laws of the state of Kansas; and upon such proof, and it appearing to the satisfaction of the court that such last will and testament was duly attested and executed, and that the testator, at the time of executing the same, was of full age and of sound mind and memory, and not under any restraint, and was at the time of his death a resident of McPherson county, Kansas, and was in all respects competent to dispose of his estate: It is therefore by the probate court ordered and decreed that said last will and testament of Oren G. Bigford, late of McPherson county, Kansas, be, and the same is hereby established as a valid last will and testament, and that the same be, and is, duly admitted to probate, and is filed and recorded in the office of the probate court.”
Letters testamentary were issued to the executor named in the will, and his notice in statutory form was published on October 14, 1921. Soon after the testator’s death, Mrs. Hodges wrote a letter to plaintiff informing her of her uncle’s death, and inclosed a newspaper clipping telling her he had made a will. No investigation of the circumstances under which the will was made was instituted by plaintiff until the summer of 1924, and the action was not commenced until September 22, 1924, almost three years after the will was probated.
At the time the will was probated and at the time the action was commenced, the statute read as follows:
“If no person interested, or claiming to be interested, shall appear within two years from the time of the making of any order by a probate court, probating . . . the will and contest the same, such order shall be forever binding, saving, however, to persons under legal disability, the period of two. years after such disability is removed. . . .
“The mode of contesting a will after probate, . . . shall be by civil action in the district court of the county in which the will was admitted to probate, . . . which action may be brought at any time within two years after the probate, . . . and not afterwards. ...
"The order of the probate court shall be prima facie evidence on the trial of such action of the due attestation, execution and validity of the will.” (R. S. 22-222, 22-223, 22-224.)
Notwithstanding the fact the court held determination of the issues of testamentary capacity, undue influence, and fraud, by the order probating the will, was conclusive upon plaintiff, the court found the testator lacked mental capacity to make a will, and found the will was obtained by undue influence and fraud practiced by the county health officer. These findings are contested.
When the county physician of Marion county made his investigation, he was obliged to report that Mr. Bigford was not feeble-minded or mentally deficient. Mr. Bigford had mental capacity to circumvent the attempt to put him under guardianship. Mr. and Mrs. Hodges, with whom Mr. Bigford lived for thirty-one weeks previous to his removal to the county hospital, were witnesses for' plaintiff. She did not see fit to interrogate them concerning his mental capacity. Doctor Edgerton, who visited Mr. Bigford at the Hodges home four times in the month of 'May, 1921, was a witness for plaintiff. The doctor described Mr. Bigford’s physical condition, but was not asked to describe his mental condition. Before the will was executed, -two physicians, Doctor Dean and Doctor Heaston, examined Mr. Bigford, to ascertain his capacity to make a will. They found him very weak and emaciated as the result of tuberculosis in its last stages, but his mental condition “seemed to be all right.” The enumeration of items of property contained in the will, showing full comprehension of the nature and extent of the testator’s estate, was not impeached. At the trial, the following colloquy took place between court and counsel for plaintiff:
"By the Court: The only thing that is bothering me, you are undertaking to prove him insane, and then undertaking to prove a contract.
“By Mr. Hendry: No, sir. We are trying to show that he was ill. We do not claim that he was feeble-minded or insane. We don’t pretend that this man was feeble-minded or insane.
“By the Court : I was allowing this stuff to run on the ground that that is what you were attempting to do.
“By Mr. Hendry: No, sir. We don’t pretend or claim that; we don’t allege he was insane or even feeble-minded, but we do say he was feeble physically, disabled and weak, and subject to undue influence of the fraud that was perpetrated upon him.
“By the Court: All right. Go ahead.
“By Mr. Grattan : All of the evidence that has been offered preceding this question, the defendants move to strike out of the record, as incompetent, irrelevant, and immaterial, and not tending to support any of the issues in the case.
“By the Court: I will clean that up in the final wind-up.”
This occurred while plaintiff was making her case in chief, and defendant was relieved from offering proof of testamentary capacity. The “cleaning up” in the final “wind-up” was this: On an issue, investigation of which was foreclosed and which was abandoned by plaintiff, the court found, against the evidence, in favor of plaintiff.
The court limited its finding that the will was procured by fraud to fraud practiced by Doctor Lytle. There is no evidence in the record that Mr. Bigford did not leave the Hodges home and go to the county hospital voluntarily, or that he was under any restraint-while he lived at the hospital. There is no evidence whatever identifying or indicating or giving a clue to any false statement or pretense made to Mr. Bigford, or any trick or deception practiced upon him, to procure execution of the will. In the absence of evidence showing what false statements were made, what false pretenses were employed, or what trick or deception was used, there, was no basis of fact for a finding of fraud. (Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634.) The court merely assumed fraud from a letter written by Doctor Lytle to the state board of health the day after the will was executed, and from the testimony.of one witness.
The witness referred to was Mr. W. J. Krehbiel, a newspaper publisher. In conversation with Mr. Krehbiel, Doctor Lytle said he had a chance to secure an estate for a tuberculosis hospital; Mr. Bigford was without heirs, was in a very bad condition, and would be glad to will his property for a purpose of that kind, if the county would take care of him; the county commissioners were not favorable, and it would be dangerous to publish the story before the county commissioners acted; the county commissioners had to be educated, and some one might block transfer of the property; there were persons in Marion county who were trying to get hold of the property, and Doctor Lytle desired that publication be withheld until the matter was disposed of, so as not to defeat success of the project. Doctor Lytle was enthusiastic about possibilities of the plan to establish a tuberculosis hospital. This evidence does not prove or tend to prove that any fraud was practiced on Mr. Bigford. Doctor Lytle’s statement to Mr. Krehbiel of Mr. Bigford’s desire corresponded with the county attorney's statement to the board of county commissioners. The evident purpose of delaying public announcement was to prevent meddlesome interference with fulfillment of that desire.
The letter referred to was a communication from the county health officer to the state board of health, and the principal purpose in writing it was to suggest that others having an opportunity to do so might duplicate what had been done in Mr. Bigford’s case. It can scarcely be said that a presumption arises from these facts that the letter was intended to propose to the state board of health a model method of accomplishing fraud. The letter follows:
“Gentlemen: The result of a little team work. During the preliminary work of our tuberculosis clinic here recently, carried on by Miss Bolt' and Miss Main, a man, Oren G. Bigford, age 72, was found in a home twenty miles northeast of our city in the last stages of pulmonary tuberculosis and in a very unsanitary environment.
“The nurses reported the case to me, and I went t'o investigate. During this visit and subsequent ones, I learned the old gentleman had property, and had experienced trouble in safeguarding it from the efforts of supposed friends who were very solicitous for his welfare and his property. He expressed a desire to get' into the hands of honest people who would look after him and not rob him of all he had, and suggested the county commissioners. I finally loaded him in my car and brought him to town, and suggested he place the property at the disposal of the county officials, to be used for his comfort during the short time he had to live, and at his death to be used in building a sanitarium for unfortunates suffering with the same disease.
“His brothers and sisters, a family of fifteen, and his remaining kin — nephew and nieces — little caring for his welfare, he assented to this. I took him to the county farm, and later took the county attorney, and he expressed a desire for the disposal of his property in this way. Yesterday he executed papers to this effect, with the landlady and Miss Main and myself as witnesses.
“His property consists of eighty'acres of land and money and notes aggregating about $7,000, which will go to the above purpose at his death. But we are 'telling it not in Gath and publishing it not in the streets of Askalon’ abroad, fearing a distant relative might step in and try to upset the deal. We think that we have everything air-tight'.
“This is the outgrowth of our recent' tuberculosis clinic conducted by Doctor Kenney, and a glorious success it was. Much credit is due to the efforts of Miss Main and Miss Bolt — two' wonderfully efficient girls. Tell Miss Bolt we have finally put it across. She knows our aims and effoi’ts.
“I relate this incident that some one else having an opportunity may possibly duplicate it. Our tuberculosis clinics are going to result in a demand for the county sanitarium. I am very happy if one is in sight for our county. We have plenty of space in our county hospital site, and this amount' will give us a start toward the desired end.”
The letter lies before this court precisely as it did before the district court. The letter used colloquial and slang phrases — “team work,” “upset the deal,” “air-tight,” and “put it across,” which apply equally to honest and dishonest transactions, and uses one coarse expression, “loaded him in my car.” But the letter discloses no conspiracy, known to Miss Bolt and participated in by Miss Main and the county attorney, to deceive or defraud Mr. Bigford, and the court acquitted everybody of fraud except Doctor Lytle. The tone of the letter is the result of Doctor Lytle’s elation over prospect of realizing a cherished hope, a hope without trace of selfishness, the establishment of a sanitarium for the gaunt victims of tuberculosis; and considered as a whole, the letter contains nothing to impeach truthfulness of the full narrative which it contains of the precise circumstances which led to the making of the will. Bear that some distant relative might appear to frustrate the purpose expressed in the will was reasonably entertained. Old men’s wills are favorite objects of attack, and the testators cannot defend them. In this instance, a flank attack came in due season, in the form of an unwarranted assertion of contract with the testator for all of his property after his death.
Doctor Lytle was privileged to solicit and influence Mr. Bigford to give his property to public charity. The influence which will defeat a will is undue influence. In the case of Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634, it was laid down that power, motive arid opportunity to exercise undue influence do not warrant the inference that undue influence was in fact exercised, and that suspicion, conjecture, possibility, or guess that undue influence or fraud induced a will, is not sufficient to sustain a finding to that effect. There must be proof of coercion compulsion, or constraint which destroyed the testator’s free agency and obliged him to adopt the will of another instead of exercising his own. In this instance the record is barren of any proof that Mr. Bigford did not do just what he wanted to do.
In this 'state tuberculosis is declared by statute to be an infectious and communicable disease, dangerous to public health. (R. S. 65-105.) If a patient afflicted with infectious disease have no attending physician, it is the duty of the county health officer to perform the functions of-attending physician (R. S. 65-112), and he may take charge of the case (R. S'. 65-119). When the proposition was first made to Mr. Bigford that he will his property for the benefit of tuberculosis sufferers, the relation of Doctor Lytle to him was official, and not confidential. Conceding that the relation may have become confidential before the will was made, and freely admitting that Doctor Lytle was active in procuring' its execution, Doctor Lytle was not a beneficiary under the will. The evidence does not show who prepared the will. The internal evidence is that it was prepared by an attorney, from data furnished by the testator, and the court found it was prepared by the county attorney. The evidence is clear that the board of county commissioners were not concerned with preparation of the first will. One of the commissioners testified the will was presented to them by the county attorney, Doctor Lytle being present, and they rejected it. There is no evidence the board suggested the will be changed, or had anything to do with preparation of the will which was probated, and the statute relating to independent advice to a testator respecting contents of his will when prepared by a sole or principal beneficiary (R. S. 22-214) does not apply.
Aside from the conventional cant phrases appearing in the letter of Doctor Lytle to the state board of health, there is no evidence on which to base an inference that fraud or undue influence was practiced on the testator to procure execution of his.will. This court is able to declare that those phrases do not imply impropriety in Doctor Lytle’s conduct. The necessary conclusion is, the court’s finding of fraud and undue influence was based on conjecture, and not on proof.
If it be conceded the will was procured by fraud, the district court properly ruled that failure to contest it in due time precluded plaintiff from raising the issue.
In plaintiff’s brief it is said the action is not one to contest a will, but is one alleging the facts constituting the fraud and claiming the property. Two questions are pertinent: The petition is one alleging the facts constituting what fraud? The answer must be, fraud in procuring the will. The petition is one claiming the property on what ground? The answer must be, on the ground the will was invalid because procured by fraud. Both answers are found in the petition.
The petition alleged that plaintiff was Mr. Bigford’s legal heir, and was entitled to his property at his death; that Mr. Bigford contracted to give plaintiff all his land and personal property at his death; that he died seized of certain land and possessed of certain personal property; and that he was induced by fraud to make a will of his property, which was of no effect as against plaintiff’s contract. The prayer was that plaintiff’s contract be specifically enforced; that she be declared to be the owner of the real estate, and that she recover possession of it; that the will be canceled as a cloud on her title, and be set at naught; and that title be quieted in her. The petition further prayed for rents and profits of the land, for the money and personal effects belonging to the Bigford estate, and in case the land had been conveyed to innocent purchasers, that plaintiff recover its value with interest. The result was, the will was pleaded as a barrier erected by fraud to enjoyment of plaintiff’s contract right to Mr. Bigford’s estate, and the court was asked to remove the barrier by proper means. There was no pretense that the will might stand as a valid instrument, and that plaintiff might nevertheless recover. She was obliged to get rid of the will, and when she faced defeat on the contract and fraud theories, she sought to get rid of it on the ground it was void on its face as an ineffectual attempt to create a public charity. Therefore, it is a mere play on words for plaintiff to say she is not contesting the will.
The statute of wills was designed to prevent barratry and to give security to title derived by will. The statute provides for establishing a will by a proceeding in rem (Pee v. Carlyle, 120 Kan. 200, 202, 243 Pac. 296), which concludes the world with respect to validity of the will, unless some person claiming an interest appears within two years and contests it by civil action in the district court. The time limitation is now one year. (Laws 1925, ch. 160.) The nature of the privilege to contest a will was discussed at length in the cases of Medill v. Snyder, 71 Kan. 590, 81 Pac. 216, and Ferrier v. Ferrier, 108 Kan. 130, 193 Pac. 1071. In the Medill case the court said:
“The purpose of the law is to protect devisees, legatees, executors and trustees in their property rights, to foil efforts on the part of designing persons to foment annoying and embarrassing litigation, and generally to prevent the questioning of wills after time has removed witnesses and obscured the circumstances of their execution. . . .
“The jurisdiction of the district court under the wills act is an innovation of purely statutory origin. Likewise, the right of a party to invoke such jurisdiction is purely a statutory creation. One of the conditions attached to the exercise of the jurisdiction thus provided for, and the right to call it into exercise, is that proceedings be instituted within two years. Time is of the essence of the power and the right, and lapse of time operates to extinguish both, rather than as a mere bar to a remedy. . . .
“The fact that the statute concerns itself primarily with the creation and regulation of jurisdiction and procedure, makes the probate of a will conclusive and forever binding, establishes the title to real and personal property under probated wills, and creates indisputable evidence of such title, all over and beyond the mere matter of remedy to one who may desire to assume the role of a contestant, so far distinguishes it from a mere statute of limitations that sections of the general statute of limitations cannot modify it.” (pp. 592, 594, 599.)
In the Ferrier case, the court said:
“It was only by invoking that statute that an action to contest the will could be brought at all. The right to challenge the validity of the will by an independent action in the district court (as distinguished from an appeal, as to which see Durant v. Durant, 89 Kan, 347, 131 Pac. 613) existed solely by reason of the statute, The requirement that such an action, if maintained at all, must be begun within three years of the order of probate was not a mere statute of limitation applicable to a case of that kind; it was a condition upon which the right to bring such a proceeding was granted.” (p. 132.)
The result is, whoever seeks to impair the effect of a will to vest title to the testator’s property in his legatees or devisees, by denying its validity, finds both his right and his remedy in the statute, or not at all.
In the Medill case, the court held specifically that because the time limitation is a condition upon privilege to contest a will, the statute of limitations contained in the civil code had no application. No distinction is made with respect to grounds of contest, whether failure to observe essential formalities in execution of the will, nonexcution, lack of testamentary capacity, undue influence, or fraud. An action to contest a will on the ground of fraud must be commenced within two years, not from the discovery of fraud, but from the probate of the will. The result is, if the Bigford will had been procured by fraud, plaintiff was not permitted to impeach it on that ground.
Plaintiff cites the case of Rhino v. Emery, 72 Fed. 382, in which validity of certain probate proceedings not involving a will was attacked for fraud, and it was held a federal court of equity liad jurisdiction to compel restoration of property, or its proceeds, acquired by the fraudulent proceedings. Jurisdiction of the federal court to afford relief was upheld on the authority of the decision in the case of Arrowsmith v. Gleason, 129 U. S. 86. The ground of the decision in the Arrowsmith case was that the constitution of the United States confers privilege on a citizen of one state to sue a citizen of another state in courts of the United States; this privilege would be worth nothing if jurisdiction of federal courts was limited by state laws distributing power and prescribing modes of redress in state courts; therefore, a circuit court of the United States having chancery powers may, without controlling, supervising or annulling proceedings in a state court, give relief in cases of fraud, consistent with principles of equity.
In the case of Rhino v. Emery just referred to, a will formed part of the chain of title of the persons who held the fruits of the fraud. The testator had procured the property devised by the will, through fraud. One of the devisees was a participant in the fraud, and the other was not an innocent purchaser. Validity of the will was not questioned, and it was treated as a mere conduit through which property fraudulently acquired by the testator might be traced. The decision has no application to the present controversy.
There are numerous cases holding that under certain circumstances the beneficiary of a will may be charged as a trustee ex maleficio of property received by virtue of the will. The cases need not be reviewed here. It is sufficient to say that fraud and undue influence practiced on a testator are grounds for contesting his will; and to apply the constructive trust doctrine to the ordinary case of an heir suing to recover property on the ground a will which cuts him off if valid, was procured by fraud, would make waste paper of the statute of wills.
Plaintiff contended the will was invalid because McPherson county is not qualified to take or hold or act as trustee, and because other conditions essential to a valid trust for charitable uses were wanting. To state the contention is to state a ground for contest of the will. Probate establishes prima'facie not merely due execution and attestation, but validity of a will. (R. S. 22-224.) The purpose of contest is to establish invalidity. The statute does not specify or limit grounds of contest. The cause of action may be anything which may be urged as destroying validity. Anyone having an interest may, within the statute period, propose grounds of contest.' After that period has elapsed, he has no more privilege to contest a will than he would have if he were originally a stranger having no interest.
Since the district court did not dispose of the case on the ground just stated, but held the will invalid, it is proper to say the district court erred. The constitution makes it the duty of the several counties to provide for those inhabitants who, by reason of infirmity or misfortune, may have claims upon the sympathy and aid of society. (Art. 7, § 4.) This provision of the constitution was interpreted in the case of Beck v. Shawnee County, 105 Kan. 325, 182 Pac. 397, involving constitutionality of a statute providing that certain counties may issue bonds to establish a county settlement of public welfare institutions, including a tuberculosis hospital, to be used by persons having some means, as well as by the indigent. In the opinion it was said the constitution gives utterance not merely to the universal voice of sympathy, but to a universally recognized duty to be discharged in the interest of the public welfare. The county is the basic unit for the cost of local and charitable relief. (Treadwell v. Beebe, 107 Kan. 31, 190 Pac. 768.) The care of those requiring aid and the dispensing of funds for their benefit is a part of the county’s ordinary business, and there can be no doubt that a county may take and hold property as trustee for charitable uses, and administer the trust.
The testator suffered from tuberculosis while living, and died of that disease. He had some property, and could pay for his care and maintenance. His sympathy went out to those afflicted with the sáme disease but in a more unfortunate situation, and the beneficiaries of the trust created by his will are poor persons who are afflicted with tuberculosis. In Treadwell v. Beebe, supra, the court held a gift for the benefit of “deserving persons suffering from cancer in its early and probably curable stages,” was a gift to public charity. The court is entirely satisfied with that decision, and it governs the present case. Without consuming space in refuting the argument of counsel for plaintiff, which fails to distinguish between private trusts and trusts for public charity, the court concludes that the will is valid.
The judgment of the district court is reversed, and the cause is remanded with direction to render judgment for defendants. | [
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-116,
66,
73,
-11,
-39,
66,
56,
107,
18,
79,
-43,
-98,
-9,
43,
61,
-61,
40,
44,
91,
-71,
88,
-79,
-82,
7,
-3,
23,
1,
6,
-104,
-61,
72,
-86,
-104,
49,
-128,
-24,
115,
54,
-122,
-44,
15,
-103,
44,
118,
102,
113,
20,
-17,
-88,
-120,
15,
55,
29,
-89,
-106,
88,
-30,
44,
-68,
-103,
125,
16,
7,
-8,
-27,
20,
29,
108,
21,
-117,
-42,
-77,
-113,
60,
-110,
91,
-21,
-95,
54,
113,
-99,
86,
92,
71,
121,
-101,
-97,
-78
]
|
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