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The opinion of the court was delivered by
Burch, J.:
The action was one by dependents for compensation for death of a workman. Plaintiffs recovered, and defendants appeal.
The company was engaged in the business of developing mineral resources of leased land and producing mineral therefrom. In the prosecution of this business, drilling rigs were erected. On occasion, a derrick would be torn down, and salvaged material would be used in another place, necessary new material being furnished by the company. The work of tearing down and rebuilding derricks was let to a derrick builder, F. J. Hedges, who furnished his own tools, employed his own workmen, and did the work according to his own plan and method, for a standard price, free from control reserved or ex- ' ercised by the company. Hedges had been building rigs for the company for about a year and a half previous to the accident. Defendant purchased and owned a lease referred to by Hedges as the Shambaugh lease. The vice president of the company, who had charge of development and production and was the person to see about rigs, directed Hedges to take the derrick from a lease on which the company had been operating, and build a seventy-four-foot derrick on the Shambaugh lease. The Shambaugh was a producing lease, on which there were three wells, and the work of drilling well No. 4, to which erection of the derrick was an incident, was being conducted by the company. Hedges employed Harry Y. Purkable as a workman. When the new derrick was partially completed, Purkable fell from it and received injuries which resulted in death.
Liability of the company to pay compensation is predicated on the subcontracting section of the workmen’s compensation act. The section provides that when any person, called principal, undertakes to execute any work “which is a part of his trade or business,” and contracts with another person, called contractor, for execution of the whole or any part of the work, the principal shall be liable to pay to a workman employed in execution of the work any compensation for which the principal would have been liable if the workman had been employed directly by the principal. Subdivision (ci) of the section reads as follows:
“This section shall not apply to any case where the accident occurred elsewhere than on or in, or about the premises on which the principal has undertaken to execute work or which are otherwise under his control or management, or on, in, or about the execution of such work under his control or management.” (R. S. 44-503.)
The company contends Hedges was an independent contractor, and because Purkable was employed by Hedges, the company is not liable. The statute was enacted for the very purpose of giving employees of the contractor remedy against the principal, and the court has so held. (Spencer v. Marshall, 107 Kan. 264, 191 Pac. 468.)
The company cites three cases which it asserts support its contention. None of them does so. In the case of Maughlelle v. Mining Co., 99 Kan. 412, 161 Pac. 907, a coal-mine owner leased his mine, and the lessee employed a workman, who was injured. The mine owner was not undertaking to execute work of mining coal, any more than a landowner undertakes to farm land which he leases to a tenant for a term of years, and the lessor had no management or control over the lessee’s operation of the mine. In the case of Farmer v. Purcell, 109 Kan. 612, 201 Pac. 66, the district court instructed the jury that if the employer of the workman was an independent contractor, the workman could not recover from the principal. No complaint was made of the instruction, which became the law of the case, the question now under consideration was not before this court, and was not determined. In the case of Mclllvain v. Oil and Gas Co., 110 Kan. 266, 203 Pac. 701, the Prairie Oil and Gas Company employed Earl Blue to haul casing from leased premises to a machine shop twenty miles away. Blue employed Mclllvain to help load and unload casing. The court held Mclllvain was not the company’s employee, and cited the Farmer case for its discussion of the difficult question — employee, or independent contractor? With respect to Blue, the court held his work belonged to no class of work, and was not performed on, in or about any locality covered by the workmen’s compensation act. By citing the Farmer case, which for the reason stated did not involve the subcontracting provision of the statute, the court had no intention to deny the decision in the Spencer case and nullify the statute. Perhaps the opinion should have been extended to show the precise manner in which the controversy was presented to this court. The briefs were devoted to discussion of nature and locality of employment. Although the company was under the compensation act, and hauling pipe was an incident to its business, hauling pipe had nothing to do with that part of its business which brought the company within the act. This was indicated in the first paragraph of the syllabus. In the absence of any contention that the company would be liable if the workman were not its employee, it was sufficient to say he was not its employee. .If it had been determined that the workman was an employee, the law relating to nature and locality of employment would have been applied.
The company criticizes the findings of the court with respect to nature of the company’s business. The criticisms need not be discussed. It is not disputed that, as the court found, the company was engaged in the business of developing land covered by oil and gas leases, and producing oil and gas therefrom. It was admitted at the trial that the company owned the lease on which the derrick stood which Hedges was erecting. It is not disputed that,. as the court found, the company was engaged in drilling oil and gas wells ■on the lease, and was producing oil therefrom. It was admitted at the trial that the work of drilling a well to which building of the derrick was an incident, was being conducted by the company. Aside from the fact that the subject is one of common knowledge, it was a fair inference from the testimony and the admissions that, as the ■court found, an oil-well derrick is a part of the necessary equipment for drilling an oil well, and construction of such a derrick is a part of the business or work of drilling an oil well. The result is, the business of the company was operating for and producing oil, the work of building the derrick was part of its business, and the accident occurred on premises on which the company had undertaken to execute work under its management and control and a part of its business.
The company denies the building of derricks was part of its busi-' ness, contends the most that can be said of such work is that it was merely ancillary or incidental to the company’s business, and concludes the subcontracting provision of the statute does not apply. In support of this position, the brief for the company quotes the British workmen’s compensation act of 6 Edw. VII, c. 58, § 4, which is identical in part with and otherwise similar to R. S. 44-503, and then says: “Construing this particular section of the act, a number of cases have been decided by the English courts.” A review of several English decisions follows, one of which is typical. A railway company let a contract to a firm to build stations for the company. A painter employed by the contractor was injured while painting a station. It was held the painter was not entitled to compensation from the railway company. The court said the primary business of a railway company is to carry passengers and goods, the erection of stations is not a part of that business, and it would be difficult to give a better illustration of what constitutes merely ancillary or incidental work, as distinguished from the actual business carried on, than the case afforded. (Pearce v. London and Southwestern Railway Co. [1900], 2 Q. B. 100.)
The obstacle to recognition of this authority consists in the- fact that the court was not, as the brief states, construing the act of 6 Edw. VII. The year 6 Edw. VII was the year 1906. The compensation act of 6 Edw. VII was passed in that year, and section 4 served as a model for section .4 of our statute of 1911, now R. S. 44-503. The decisions cited, the last of which was rendered in 1902, dealt with the act of 60 and 61 Viet. c. 37 passed in 1897. Section 4 of that act was similar to section 4 of the act of 1906, with this exception: The earlier section contained the following provision:
“This section shall not apply to any contract with any person for the execution by or under such contractor of any work which is merely ancillary or incidental to, and is no part of, or process in, the trade or business carried on by such undertakers respectively.”
The provision was omitted from the British acts of 1906,1923 and 1925, and has not been recognized in the compensation legislation of this state. Inclusion of the quoted provision in section 4 of the act of 1897, and repeal of the provision in 1906, indicate that, without the provision, a contractor’s workman injured in execution of' work ancillary or incidental to the principal’s trade or business, is entitled to compensation from the principal. In this instance, the work of building the derrick was part of the company’s business as a necessary incident to prosecution of its primary business of producing oil.
A contention relating to insufficiency of offer to arbitrate is without merit.
. The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
On September 2,1924, a check for $50 was presented to the teller of the Roanoke State Bank, of Kansas City, Kan., and accepted by him, $35 being paid out in cash and an account being opened for the balance, a signature card being signed. It proved to be a forgery. The teller on October 14 following pointed out Will Blakely as the person who gave him the check and caused a warrant to be issued for his arrest. The teller went to the jail the next day and saw Blakely, affirming his identification. About a week later a preliminary examination was had and the teller as a witness said he was not positive Blakely was the right man, and he was released on bond, the hearing being continued to October 29. ' After a further continuance to November 6 the case was dismissed, the plaintiff’s innocence having been established. Blakely brought an action against the bank for malicious prosecution and recovered a judgment for $1,866, from which the defendant appeals.
1. A contention is made that the plaintiff’s evidence did not conform to his pleading. The action was brought against the bank and a detective agency. The petition alleged that they conspired to bring about the prosecution of the plaintiff; that a representative of the detective agency pointed him out as the offender. The evidence was that the detective directed the teller’s attention to a group of men who were at work for the park board and the teller undertook to identify the present plaintiff as the man who gave him the check. The verdict was in favor of the detective agency. This was not such a variance as to warrant setting aside the verdict against the bank. No prejudice to the bank appears. The conspiracy charged was not essential to the cause of action against it. The plaintiff proved less against the detective agency and more against the bank than he had alleged, but this was a matter of detail by which there is no reason to suppose the bank was seriously misled.
2. The bank contends there was no evidence to support the verdict or the following special findings made by thé jury:
“Did R. D. Watts [the teller], at the time he signed the complaint against Blakely, bear any actual malice against him? Yes.
“If you answer the foregoing question ‘yes,’ state what Watts did that indicated malice against the plaintiff? He testified to that effect. Did not use diligence in ascertaining his identity. Showed a willful disregard of his rights as a citizen.
“When Watts signed the complaint, did he honestly believe that Blakely was the man who appeared on September 2 and presented and got cash on the forged check? No.
“When Watts saw Blakely in the county jail, did he then honestly believe that Blakely was the man who appeared at the bank and presented the check? No.”
In the first of the quoted findings the jury said the defendant bore “actual malice” against the plaintiff, a term which was not defined or used in the instructions. Whether it was accurately used in the finding is not material, for the following three answers showed a state of mind, whatever it might be called, such as to justify a verdict against the defendant, and the vital question is whether there was evidence supporting these findings. There is authority, however, for calling such a state of mind actual malice (38 C. J. 421), although what is called legal malice has been held sufficient where punitive damages are not sought. (38 C. J. 422, 478-479.) We think the evidence supported a finding of the kind of malice necessary to sustain the judgment for the plaintiff. It is not essential to the existence of such malice that the teller should have had any personal ill will toward the plaintiff. It is enough that he did not believe the plaintiff guilty and proceeded upon an improper motive. (Foltz v. Buck, 89 Kan. 381, 131 Pac. 587; 38 C. J. 422-423; 18 R. C. L. 28-30.) The state of the teller’s mind in this regard necessarily had to be determined by inferences to be drawn from the circumstances presented, a matter in which his own bearing on the stand may be of controlling influence. The jury were not bound to accept his own testimony on the subject. A possible motive for his making the charge without believing the plaintiff guilty may be found in the hypothesis that he desired at least to appear to. make amends for having been imposed upon by the forgery, by getting credit for discovering the perpetrator of the fraud. He undertook positively to identify the plaintiff as the man who gave him the check and caused his arrest, without investigation beyond looking at him — without, for instance, undertaking to see how his writing compared with that on the signature card or the back of the check, without hearing his voice so that he might see if it resembled that of the impostor, and without an inquiry as to the plaintiff’s whereabouts on the day the crime was committed. All this gives room for the inference that he was acting as the jury found, in willful disregard of the plaintiff’s rights.
3. Complaint is also made of the amount of the verdict, particularly of the item of $1,700 awarded for mental anguish. In the case of persons of ordinary sensibility and of reasonably good standing in the community the humiliation of being unjustly arrested and held in jail is naturally and properly a basis for a very considerable allowance of damages. It is true the plaintiff while on the stand failed to rise to the opportunity afforded to stress this feature of the injury done him. He returned a negative answer to his counsel’s question whether there was any feeling of shame on his part by reason of having been imprisoned and undergoing a trial. It was, however, for the jury to determine how far this reply was due to insensibility and how far to his failure to grasp fully the force of the question. He had already given this testimony:
“My health was good when I was arrested. I felt awful sick; awful sick whilst I was in there (jail). I was in jail for the first time, you see. I was feeling all right when I first got in there, but after I stayed in there that night and I thought of seeing my children, you know, again, it was beginning to take effect on my heart, you know, and bothered me; I just could not rest.”
Whether the reference to his heart was meant literally or figuratively the jury may reasonably have believed a man who volunteered the remark, “I was in jail for the first time, you see,” was not wholly unconscious of the disgrace that ordinarily attaches to arrest and imprisonment.
We think the amount awarded was not so excessive as to justify interference by this court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.;
The plaintiffs appeal from an order overruling their demurrer to the defendant’s plea of res adjudicata.
The plaintiffs sued James T. Rafter to recover $9,798 damages for fraudulent representations made by him in the sale of a promissory note for $5,150 to the plaintiff, Bert Rucker. The note had been signed by James W. Hagar and Lucy A. Hagar, a one-half interest in which was afterward by the plaintiff, Bert Rucker, sold to the plaintiff, J. M. Stark. The defendant pleaded a former adjudication. The answer contained the following:
“For a second and further defense this defendant alleges that on the 11th day of October, 1922, the plaintiff brought an action in the district court ‘of Jackson county, Kansas, wherein, they were plaintiffs and James W. Hagar, Lucy A. Hagar and D. H. Hagar were .defendants, and thereafter by motion of plaintiffs the defendant James T. Rafter was made a -defendant therein, and . . . that on April 4, 1923 ... the plaintiffs . . . filed a second amended petition, a copy of which is hereto attached, marked ‘Exhibit A,’ and made a part hereof; that on May 7, 1923, this defendant filed a demurrer to said second amended petition; . . . that on the same day the above demurrer was heard by the court and sustained, and the court thereupon rendered judgment for costs in favor of this defendant and against the plaintiffs therein.”
In the action described in the defendant’s plea of former adjudication, the plaintiff sought to recover from James W. Hagar and Lucy A. Hagar on the promissory note which, it is alleged in the present action, James T. Rafter sold to Bert Rucker. In the second cause of action in the former case, the plaintiff alleged:
“That these plaintiffs were, on October 11, 1922, informed by the defendant, David H. Hagar, that he had given the makers of said promissory note no consideration therefor; that he had never seen said note up to said last named date, and never had it in his possession; that he had never disposed of said note; and that the signature thereon purporting to be his indorsement is a forgery. These plaintiffs allege that said David H. Hagar is the father of defendant, James W. Hagar, and father-in-law of defendant Lucy A. Hagar; that the claims of said defendant, David H. Hagar, if not true, are fraudulent, and made for the purpose of shielding the makers of said note from payment thereof and of preventing judgment against them thereon; and that by his indorsement of said note as above set forth, and delivery of the same as aforesaid, said David] H. Hagar warrants the genuineness of said promissory note and the good faith of taking of the same, and that he has no knowledge of any fact which would impair the validity of said note or render it valueless; and in the event a breach of any of the aforesaid warranties, is liable to these plaintiffs for the payment thereof.
“That the plaintiff, Rucker, at the time he acquired the promissory note sued on herein, had no notice or knowledge of any infirmity in the said promissory note, or of any of the matters herein set forth which would impair the validity of said note or render it valueless, and had no notice or knowledge of any of the facts stated to him by defendant, David H. Hagar, on said October 11, 1922; and had no notice or knowledge of any defect in the title or right of the said James Rafter to negotiate and deliver said note; and delivered to him all of the consideration then agreed by said Rucker to be paid to him for said note. That neither of the said plaintiffs ever had any notice or knowledge of any defect or infirmity in said promissory note or in the title thereof, or any right of said Rafter to transfer the same, prior to October 6, 1922; nor had they any notice or knowledge, prior to said date, of any fact that would cause or did cause them or either of them to suspect .any such defect or infirmity.”
In the third cause of action in the first case the plaintiffs alleged:'
“That they do not know whether the signature purporting to be that of defendant, David H. Hagar, upon the back of said promissory note is the genuine signature of said defendant, or not . . . that the filling in of the name of said Bert Rucker, by defendant, James Rafter, and the sale and delivery of said note by him to said plaintiff as bearing the indorsement of said David H. Hagar, if said indorsement was in fact forged, were false and fraudulent; and that the forgery of the signature of said David H. Hagar concealed from said plaintiff. That the defendant, Rafter, warranted by his said acts that said note and the indorsement thereon were genuine and what they purported to be; that he had good title thereto, and that he had no knowledge of any fact which would impair the validity of said note or render it valueless. That the defendants, James W. Hagar and Lucy A. Hagar are .only partially able, financially, to pay said note; that the defendant, David H. Hagar, is financially able to pay the same, but that by reason of said false and forged indorsement said David H. Hagar is wholly discharged therefrom; that by rea- • son of the breach of any of the aforesaid warranties these plaintiffs are entitled to recover from the defendant, James Rafter, the said sum of $5,150 with interest thereon from October 14, 1913, at ten per cent per annum. And plaintiffs refer to the last paragraph of their second cause of action herein, and make the same part hereof, as if fully incorporated herein.”
Judgment was there rendered in favor of the defendant Rafter on his demurrer to the plaintiff’s petition. That case found its way to this court, where the judgment was affirmed. The opinion of the court is reported at Rucker v. Hagar et al., 117 Kan. 76, 230 Pac. 70.
The plaintiffs state that the former action was one on contract, to recover for the warranties implied by law on the transfer of the note by Rafter to Rucker, and that in the present action they are seeking to recover for the fraud practiced by Rafter in transferring that note. The transaction on which the plaintiffs sought to recover against Rafter in the former action is the same transaction as the one on which they seek to recover in the present action. The principle involved is discussed and disposed of by Lux v. Columbian Fruit Canning Co., 120 Kan. 115, 242 Pac. 656, where this court said:
“The defense that goods received under a contract to purchase them did not conform to the samples from which the goods were ordered set up and litigated in an action by the seller to recover the purchase price, cannot be again litigated in an action by the buyer to recover the damages caused by the goods not complying with the samples.” (Syl.)
In that case the court discussed the rules governing the principle of res adjudicata, including the rule declared in C. K. & W. Rld. Co. v. Anderson, 47 Kan. 766, 29 Pac. 96, that “when a matter is once adjudicated, it is conclusively determined between the same parties and their privies as to all matters which were or might have been litigated.” Every issue connected with the transfer of the note by the defendant to the plaintiffs could have been litigated in' the former action. The plaintiffs there sought to recover on a contract of warranty; they cannot now recover for fraud in making specific warranties. In the former action they elected to pursue one remedy and prosecuted it to final judgment. They cannot now pursue another remedy. (Ireland v. Waymire, 107 Kan. 384, 191 Pac. 304; Morse v. Grain & Ice Co., 116 Kan. 697, 229 Pac. 366; Beneke v. Bankers Mortgage Co., 119 Kan. 105, 237 Pac. 932; and Hamilton v. McGinnis, 119 Kan. 719, 241 Pac. 690.)
The judgment-is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by Susan A. Crane Hart against Walter L. Gooding and his wife, Myrtle, on a promissory note in which the plaintiff prevailed. Defendant appeals.
The note was for the amount of $332, payable with interest at ten per cent on August 1,1923. A number of payments had been made, leaving a balance due of $242.21. The execution of the note was admitted, but it was alleged that on March 10, 1923, bankruptcy proceedings against defendant were instituted, and in the schedule that was filed the note in question was included. There was an adjudication of the bankruptcy proceedings, and on December 19, 1923, the defendant was discharged from that and other debts. Plaintiff replied, admitting the adjudication of bankruptcy and the discharge of the indebtedness as claimed by defendant, but she stated that since the discharge the defendant had expressly promised and agreed with the plaintiff that upon consideration of the promise of plaintiff’s permitting the defendant to remain on her farm in Stafford county until July, 1924, he would pay the balance due on the note, including the interest, notwithstanding the bankruptcy proceedings; and in consideration of this promise it was agreed that the defendant should occupy the premises and did occupy them under the agreement made between the parties. It was further alleged that on the day when this new promise was made the defendant made a further payment on the note of $89.79 and a further sum of $26.18 on the interest due on the note. Upon the testimony produced the jury returned a general verdict in favor of plaintiff and made a special finding to the effect that the alleged new promise had been made. The defendant contends that the evidence offered to sustain the new promise was not sufficiently specific and complete to justify a recovery by plaintiff. There was testimony to the effect that subsequent to the proceeding in bankruptcy a promise to pay the note to plaintiff was made. The consideration or indorsement for the promise was that defendant should be allowed to remain another year on plaintiff’s land. It appears that on the faith of this promise he was permitted to continue in the possession of the farm the specified time. In the negotiations a reference was made to the note upon which an indorsement of payment had been made of $89. There was no doubt as to the identity of the note, and apparently it was the only one which plaintiff held against defendant. It is argued that the promise was conditional in that he only promised to pay it out of threshing that he should do, and the contention is it was not shown that he was ever able to pay in that or any other way. It is disclosed that he ran a threshing machine during the threshing season and the reference to the threshing related more to the time of payment, but was mentioned as the means by which he expected to derive the money to fulfill the new promise he had expressly made. It did not operate to qualify the promise nor make it conditional on the successful operation of his threshing machine. Manifestly the desire for the continued possession of plaintiff’s land was the controlling motive for making the new promise, and it constituted an added consideration for the promise. However, the moral obligation of a debtor to pay a debt extinguished through a bankruptcy proceeding, is of itself a sufficient consideration for the new promise. It has been determined that the promise need not be in writing nor phrased in any set form of words. It is enough that there is an express and unequivocal promise to pay a specific obligation. (Robinson v. Jacobia, 115 Kan. 36, 221 Pac. 1113, and cases there cited.) No error was committed in denying the motion of defendant for an instructed verdict in his favor.
There is complaint that requested instructions were not given, and also of some that were given. One of those requested was to the effect that to revive the debt,
“There must be an expressed promise, that is, a clear, distinct and unequivocal promise to pay the specific debt without qualification or condition, and such promise cannot be implied from the fact of part payment or from other circumstances.”
The character of the new promise to be effective was well covered by an instruction given. The court charged that if the defendant after the adjudication in bankruptcy expressly promised to pay the discharged debt, the plaintiff could recover, and then added:
“To constitute a new promise there must be a clear, distinct and unequivocal recognition and renewal of the debt as a binding obligation.”
■ While the court did not expressly say that the promise could not be implied from circumstances, that was fairly covered in the statement that the promise must be express. In another instruction the court repeated the requirement that the new promise must be an express one and that no form of words need be used to constitute it, and1 stated in that connection:
“Any words . . . which signify a present willingness to pay the debt and which are intended to convey the idea to the hearer are sufficient. The natural import of the words must be a contract to discharge by payment the moral obligation that remains out of the debt discharged by a certificate of bankruptcy.”
Exception is taken to the use of the expression “which signify a present willingness to pay,” but it will be observed that these words are used in connection with the statement that the natural import of the words must be a contract to pay the debt. A like expression is found in the opinion in Bennett v. Everett, 3 R. I. 152, which was cited with approval in Robinson v. Jacobia, supra.
Some complaint is made as to the allowance of an amendment to a pleading and also to some other matters of procedure, but an examination of the objections discloses that they are not material.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
Defendant was convicted of having intoxicating liquor in his possession, and appeals.
The errors discussed in defendant’s brief are that the court gave the jury an instruction -when defendant and his counsel were not personally present, and the jury was guilty of misconduct in that it returned a compromise verdict. If well founded in fact and law, these were grounds for new trial, and unless urged by motion for new trial, were waived. The basis of fact appears in affidavits made and filed on January 16, 1926. The verdict was returned on December 17, 1925. The motion for new trial was presented and was denied on December 18, 1925. Defendant was sentenced on January 16, 1926. The journal of the proceeding discloses that before he was sentenced he was asked if he had any sufficient cause to urge why sentence should not be pronounced against him, and he replied in the negative. The result is, the grounds for new trial tendered in the affidavits were waived.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by the holder of a promissory note given to the Belvue State Bank, to recover from the makers and to foreclose a real-estate mortgage securing the note. The makers defended on the ground the note was procured by fraud. The receiver of the bank was a party to the action, and claimed the note was the property of the bank. Plaintiff recovered, and the receiver appeals.
The cashier of the bank indorsed the note without recourse to himself, and subsequently indorsed and delivered the note to the First National Bank of St. Marys. The cashier was acting for his bank, and not for himself. The note with other collateral was used to obtain money for the Belvue bank, and the full value of the note and other collateral was received by that bank. Subsequently, the St. Marys bank became owner of the paper. The mortgage was a second mortgage, and the note and mortgage had been carried by the Belvue bank as real estate. A bank examiner advised the St. Marys bank it could not make loans on second mortgages. The cashier of the St. Marys bank then took the note and mortgage to Belvue, and stated the circumstances to plaintiff, who was president of the Belvue bank. Plaintiff gave the St. Marys bank his personal note for the instruments, and they were delivered to him. The court-found specifically that the maker’s claim of infirmity was not supported by evidence, that the St. Marys bank became owner of the-paper for value, before maturity, and without notice of infirmity, and that plaintiff became a holder in due course by purchase from the St. Marys bank.
No question of law is involved. The single question is whether the receiver’s claim that the note and mortgage belong to the Belvue bank should be sustained notwithstanding the findings of fact. The fact that the cashier of the Belvue bank was acting for his bank and' not for himself when the note and mortgage were delivered to the St., Marys bank, was abundantly proved. The officers of the St. Marys bank testified positively that, although the paper first came-to that bank as collateral, the bank subsequently became full owner,, and that they paid $3,000, the face of the note, for the note and mortgage. There is no dispute about how plaintiff acquired title.
The findings of fact were well sustained by the evidence, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is a suit to reform a real-estate mortgage as to the real property described therein and to foreclose it as reformed. It was tried to the court, who made findings of fact and conclusions of law and rendered judgment for defendants. The plaintiff has appealed.
It seems that a Mr. English laid out and platted several separate additions to the city of Wichita, one of which he named “English’s addition to the city of Wichita,” and another one of which he named “English’s Fifth addition to the city of Wichita.” Lying between these two, as platted, is “English’s Third addition to the city of Wichita.” Emporia avenue extends through the three additions above mentioned. As platted there is a lot 26 on Emporia avenue in English’s addition to the-city of Wichita. This is 25 feet wide and 140 feet deep, and at the time of the giving of the instruments in question there was a frame residence situated thereon. There was also a lot 26 on Emporia avenue in English’s Fifth addition to the city of Wichita. This lot is 76 feet wide and 140 feet deep. Lot 26 on Emporia avenue in English’s addition is about four blocks from lot 26 on Emporia avenue in English’s Fifth addition, and on the other side of the street. On January 16, 1919, the Imperial Warehouse Company, a corporation, was the owner of lot 26 on Emporia avenue in English’s Fifth addition to the city of Wichita (except the south ten feet thereof). On that date it executed, by its proper officers, its promissory note to John M. Ketchersid in the sum of $17,302, and for the purpose of securing the note, executed a mortgage in which the real property was described as follows:
“Lot (26) twenty-six, on Emporia avenue, English’s addition to the city of Wichita, Sedgwick county, Kansas, according to the plat thereof on file in the office of the register of deeds of Sedgwick county, and the brick and tile warehouse building situate thereon, described as being one story, 66x110 feet, with a 20-foot platform abutting the east thereof.”
At that time the Imperial Warehouse Company was not the owner of lot 26 on Emporia avenue in English’s addition to the city of Wichita, but the intention was to mortgage the property owned by the corporation, namely, lot 26 on Emporia avenue in English’s Fifth addition to the city of Wichita, as shown by the recorded plat, etc. The incorrect description was the result of mutual mistake. Thereafter the mortgagee, John M. Ketchersid, sold and assigned the note and mortgage above mentioned to David Hollinger, the plaintiff herein, and the mortgage and the assignment thereof were duly recorded in the office of the register of deeds of Sedgwick county March 1, 1919. At the time this action was brought payment had been made upon the. indebtedness evidenced by the note and mortgage above mentioned, leaving a balance due thereon of $8,855.53.
On January 26, 1921, the Imperial Warehouse Company, by its proper officers, executed a general warranty deed to John M. Ketchersid for lot 26 on Emporia avenue in English’s Fifth addition to the city of Wichita (except the south 10 feet thereof), which deed was duly recorded July 14, 1921. On May 16, 1921, John M. Ketchersid and wife executed a general warranty deed to Margaret Ketchersid for the same property, which deed was duly recorded July 25, 1921. On August 1, 1921, Margaret Ketchersid and husband executed to A. L. Wright a mortgage for $10,000 on the same property, which mortgage was duly recorded August 22, 1921. This mortgage was assigned by A. L. Wright to J. E. Landsdowne August 22, 1921, which assignment was duly recorded July 7, 1922, and a release thereof was filed August 1, 1922. On July 20, 1921, Margaret Ketchersid and husband executed a general warranty deed to Minnie S. Miller for the same property, subject only to the mortgage of $10,000 to A. L. Wright, which deed was duly recorded August 23, 1921. On March 16, 1922, Minnie S. Miller and husband executed a general Warranty deed to Ladra R. Mayall and Opal Mayall for the same property, subject to the $10,000 mortgage to A. L. Wright, which deed was duly recorded March 27,1922. On July 25, 1922, Laura R. Mayall and Opal Mayall executed a mortgage to the Wheeler-Kelly-Hagny Investment Company in the sum of $8,000 on the same property, which mortgage was duly recorded July 31, 1922. On June 22, 1922, Laura R. Mayall and Opal May-all executed a general warranty deed to E. M. Miles for the same property, which deed was duly recorded August 1, 1922. In none of the instruments mentioned in this paragraph was any reference made to the mortgage of January 16, 1919, executed by the Imperial Warehouse Company to John M. Ketchersid.
The defendants in this case, other than the Imperial Warehouse Company — E. M. Miles and wife and their tenant and the Wheeler-Kelly-Hagny Investment Company — had no actual knowledge of the mortgage executed by the Imperial Warehouse Company January 16, 1919, to John M. Ketchersid, or the later assignment thereof to plaintiff, until after this action was filed January 31, 1923. At the time of making its mortgage on the property the Wheeler-Kelly-Hagny Investment Company had an abstract prepared and brought down to date by a competent abstracter, , Which abstract was examined by their attorney. This abstract did not show the mortgage of the Imperial Warehouse Company to John M. Ketchersid of January 16, 1919, nor the assignment thereof to this plaintiff, as being of record against lot 26 on Emporia avenue in English’s Fifth addition to the city of Wichita. The defendant, E. M. Miles, purchased the property at the time this loan was made, and in doing so relied upon the abstract made for, and examined by the attorney of, the Wheeler-Kelly-Hagny Investment Company as to the condition of the title to the property. Actual possession of the property was delivered to him by his grantor at the time of such purchase.
Appellant contends that the findings of fact made by the trial court are not in conformity to the evidence in certain respects, and complains that the court did not sustain his motion to modify, change and enlarge the findings as requested. We have carefully examined this complaint. Much of the evidence consisted of records and of stipulations, and the remaining testimony was not controverted. The findings might have been enlarged in some respects, but we do not regard this defect as serious. They are not inaccurate when compared with the evidence, and they fairly present the legal questions involved.
There would be no difficulty about reforming and enforcing the mortgage against the maker, but the maker is no longer the owner of the property intended to have been mortgaged. The real question is whether Miles is such an innocent purchaser, and the Wheeler-Kelly-Hagny Investment Company such an innocent mortgagee, that it would be inequitable as to them to now reform and foreclose the mortgage. In support of the judgment of the court below it is contended that the mortgage sought to be reformed did not describe lot 26 on Emporia avenue in English’s Fifth addition (less the south ten feet) in such a way that the record of it imparted constructive notice to subsequent purchasers and mortgagees' of the property; it is conceded they had no actual notice!'
When the mortgage upon which plaintiff relies and the assignment thereof to plaintiff were filed for record they were entered in the general index required to be kept by statute (R. S. 19-1205) and recorded at length in suitable books provided for that purpose, as required by the statute (R. S. 19-1204). The record does not disclose whether or not a numerical index was kept as permitted by statute i(R. S. 19-1209). Appellant contends that when the abstracter searched the record and compiled the abstract as agent for the defendants Miles and the Investment Company, the general index should have given notice of the mortgage by the Imperial Warehouse Company. But if so, that index, in the column for description, would have shown the mortgage to be upon a lot the chain of title to which the abstracter was not searching. Had this entry been seen — and for this purpose we shall assume that it was, or must have been, seen — it would have referred to a lot in another addition to the city, and there would have been no reason why the abstracter should have examined it further. These defendants, and the abstracter as their agent representing them, would not be required to know what other property in the city of Wichita the Imperial Warehouse Company might own, convey, or mortgage. But it is argued that the fact there was a common grantor, that is to say, the grantor of this mort gage was the same as the grantor in one of the deeds of the chain of title to the lot, the title of which they were then searching, made it the duty of defendants, or the abstracter as their agent, to search the contents of that instrument as shown by the records. We see no reason why this conclusion should follow, but conceding for the moment that it does, an examination of the record of the mortgage at length would have disclosed that it purported to be a lien upon another lot in another addition to the city of Wichita, and did not purport to be a lien upon the lot the title to which they were then searching. But appellant contends that because the mortgage gave a description of the building, defendants, or the abstracter as their agent, were bound to know that a building of the size described in the mortgage could not be situated upon lot 26 on Emporia avenue in English’s addition, for the reason that the plat, also on file in the office of the register of deeds, disclosed that lot to be 25 x 140 feet. It was rather unusual to describe buildings on a mortgaged property in a mortgage. The fact it was so described might indicate that there was something about the location of the building that would cause it not to pass to a purchaser or mortgagee by a description only of the land upon which it was wholly or in part situated. There would be no reason for a searcher of the title to assume that the building was not situated, in part at least, upon the lot described in the mortgage. We think there was nothing in the index of the' record of this mortgage, or in the record of the mortgage at length, that would cause an examiner of the record of the title to lot 26 on Emporia avenue in English’s Fifth addition to the city of Wichita (less the south ten feet thereof) to suspect that the mortgage was intended to be a lien upon this lot.
Appellant cites the statute (R. S. 67-222) that the filing of this mortgage imparted notice to all persons of the contents thereof, and that subsequent purchasers and mortgagees shall be deemed to purchase with notice. The difficulty of applying that statute to the facts here is that there was nothing in the mortgage as recorded to impart notice to subsequent purchasers and mortgagees of lot 26 on Emporia avenue in English’s Fifth addition to the city of Wichita. Ordinarily, a recorded instrument, to be constructive notice to a subsequent purchaser or mortgagee of the property, must be in the line of title of such property.
In 23 R. C. L. 220 the rule is thus stated:
“On the principle that a prospective purchaser is under no obligation to examine the record of instruments not in the line of title to the property he contemplates purchasing, all courts hold that the record of an instrument which is intended to affect the property, but which, because of defective or erroneous description, is not in the line of title, does not constructively put a subsequent purchaser on inquiry suggested by matters contained in the record itself, unless it be proved that he actually read the record. The reason for the rule is that he cannot be presumed to have read the instrument. So it has been generally held that where the recorded instrument appears by its description to relate to certain land, it is not constructive notice as to other land, which it was intended to describe. If the record of an instrument containing a defective description of the property is sufficient'to put those who see it on an inquiry which, duly prosecuted, would disclose the true facts, the recorded instrument is notice to subsequent purchasers. Accordingly if, notwithstanding the error or defect in the description, the instrument appears to be in the line of title, then it is not only constructive notice of all the facts disclosed by the record of the instrument itself, but it puts the searcher upon inquiry suggested by the facts disclosed, and is notice to him of such facts as would have been disclosed by the inquiry. Obviously the question as to what sort of defects in the description will make the instrument appear to be not in line of title will depend on particular facts in connection with particular systems of recording. Generally speaking, however, the point might be illustrated by the difference between an instrument giving a wrong range or block number and one that merely omitted the range or block number. Ordinarily, the first would not be in line of title, and there would be no occasion for the abstracter to look at the deed at all, since he is concerned with property in a different range. On the •other hand, the mere omission of the range number, if county, township, and section number were correctly given, would indicate a probability that the instrument is in line of title, especially if there were no other ranges in the county with sections bearing the given section number.”
The text is supported by numerous cases. Applying the rule there stated to the case before us, it will be noted that the mortgage sought to be reformed in this case contained a correct description of an existing lot in a platted addition to the city, which lot is not the one mortgaged to the Wheeler-Kelly-Hagny Investment Company and purchased by the defendant Miles. Hence, it was not in the line of the title to such property, and gave no constructive notice to them. Appellant cites Nolen v. Henry, 190 Ala. 540, and Bowen v. Galloway, 98 Ill. 41, 43, but neither of these cases goes so far as to hold that the description in plaintiff’s mortgage was in the line of title to the property purchased by Miles and mortgaged to the defendant investment company.
The mortgage should not be reformed, of course, as against a subsequent purchaser, or mortgagee, for value, who had neither actual nor constructive notice of the mortgage sought to be reformed. (34 Cyc. 956, and cases there cited.) Appellant calls attention to the statute (R. S. 67-221) making it the duty of the register of deeds when an instrument is filed with him for record, before copying the same in the record, to compare the instrument “with the last record of transfer in his office of the property described, and if he find such instrument contains apparent errors, he shall not record the same until he shall have notified the grantee -where such notice is reasonably possible.” And appellant argues,, had the register of deeds performed his duty, the erroneous description would have been discovered. We are dealing here with actual or constructive notice to subsequent purchasers and mortgagees for value. It is difficult to see how the failure of the register of deeds to perform his duty in the respect indicated would constitute, or in any way contribute to, such notice to such purchasers or mortgagees. More than that, the record is silent upon the question of whether the register of deeds performed the duty imposed upon him by this statute. In the absence of evidence the presumption is the officer performed his duty. Hence, no point can be made against appellees because of this statute.
Some other questions are discussed, but in view of the conclusion reached it is not necessary to decide them.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover damages on account of the alleged negligence of the defendant in failing, through its medical examiner, to properly record answers to questions and deliver a policy of insurance. Plaintiff prevailed and defendant appeals.
The facts are substantially these: The plaintiff and her husband, George R. Evans, on July 31, 1922, executed and delivered to the defendant a joint application for an ordinary life nonparticipating insurance policy for $2,500. The plaintiff was named as beneficiary of her husband and he as hers. The application was written in part by L. A. Alexander, defendant’s agent and solicitor, and part by its medical examiner, Dr. J. N. Beasley. The answers by plaintiff and her husband to the several questions in the medical examination were written by Doctor Beasley. The application was forwarded to the home office of the defendant company at St. Louis, Mo., the day it was executed. On August 6 following, Alexander received a letter from the company which reads:
“No. 116501 — George R. Evans, Elizabeth J. Evans.
“Delivery of the policy is conditioned upon your obtaining a signed statement from the medical examiner, Dr. J. N. Beasley, relative to the illness suffered by Mrs. Evans referred to in question No. 11-J in the examination report, which statement must be satisfactory to the company. When this has been obtained, delivery of the policy can be made, but not otherwise.”
Upon receipt of this letter, Alexander called Doctor Beasley’s office, found he was out of the city on his vacation and forwarded the letter to him. This doctor received it about the time he returned. In the meantime, plaintiff’s husband died, August 15, 1922.
Plaintiff alleged two acts of negligence — one by the medical examiner and the other by the local agent of the company in failing to deliver the policy. The trial court absolved the defendant from liability resulting from the delay in delivery of the policy, but submitted to the jury the question whether the defendant was liable for negligence in the taking and recording of the answers by the doctor to the questions propounded by him to the plaintiff in her examination.
The question and answer which gave rise to the controversy designated in the application as “11-J” was, “Have you ever had any disease peculiar to your sex?” Doctor Beasley wrote the answer, “Yes.” The plaintiff maintains that she answered it “No,” and that if the application had been sent to the company containing the answer as she made it, the policy would have been returned and would have been delivered on or about August 6. Doctor Beasley also testified that the answer to the question was in his handwriting; that he put it down at the time as given to him by Mrs. Evans; that the disease referred to was a laceration of the womb resulting from a premature birth., and that the treatment was a curettement. He did not think the matter of such serious importance as to prevent him from advising acceptance of the risk. The plaintiff contends that although the injury to the womb had been incurred and the curettement performed, it was not correct to say that it was a “disease peculiar to her sex.” We think it immaterial whether the trouble be technically designated as a disease or an injury. When the examination was completed, the document containing plaintiff’s answers was signed by her. The signature appeared directly beneath the particular question and answer. Above plaintiff’s signature appeared a certificate which reads:
“I warrant, on behalf of myself and of any person who shall have or claim any interest in any policy issued hereunder, each of the above answers to be full, complete and true.”
Concerning the letter received from the company, Mr. Alexander testified:
"Q. Mr. Alexander, after receiving the letter from your company of August 5, did you have any conversation with Mr. Evans? A. Yes; on the next day, Monday, in fact, I told Mr. Evans about receiving the policy and the letter, and that I had written to Doctor Beasley, and I explained the situa/tion and that I had the letter.
“Q. Told him you received the policy to be delivered on condition— A. That I couldn’t deliver it until I had this information.
“Q. What did he say? A. That it was all right.”
Plaintiff contends that the instant case is controlled by Pfiester v. Insurance Co., 85 Kan. 97, 116 Pac. 245, and Boyer v. Mutual Hail Ins. Co., 86 Kan. 442, 121 Pac. 329. In the former it was said:
“It is the duty of such an agent to prepare the application of a person, solicited to insure so it will accurately and truthfully state the result of the negotiations, and the agent’s failure to do so is in legal effect the fault of the company.” (Syl.)
In the Boyer case it was held:
“Under the facts of this case it is held that a hail insurance company which issued a policy on a crop of growing com the day after it was destroyed by a hailstorm is liable in damages for the amount of the insurance which would have been in force before the storm had its soliciting agent not delayed for an unreasonable length of time to forward the application on which the policy was issued.” (Syl.)
Many cases hold that the medical examiner is the agent of the insurer in making the examination, taking down the answers and reporting them to the company; that his knowledge thus acquired, his interpretation of the answers given and his errors in recording them are the knowledge, interpretation and errors of the company itself. (Sternaman v. Metropolitan Life Ins. Co., 170 N. Y. 13, 57 L. R. A. 318. See, also, editor’s note, 41 L. R. A., n. s. 505 et seq., Mystic Workers of the World v. Troutman, 113 Ill. App. 84; Ames v. Manhattan Life Ins. Co., 40 App. Div. [N. Y.] 465, 58 N. Y. S. 244, affirmed in 167 N. Y. 584, 60 N. E. 1106; Fair v. Metropolitan Life Ins. Co., 5 Ga. App. 708, 63 S. E. 812; Royal Neighbors of America v. Boman, 177 Ill. 27, 30, 52 N. E. 264; Franklin Life Ins. Co. v. Galligan 71 Ark. 295, 73 S. W. 102; Iowa Life Ins. Co. v. Haughton, 87 N. E. 702 [Ind. App.].) It has been-held, also, that where the agent of an insurance company who fills out an application for insurance is duly informed as to facts and fails to state them in the application, the actual knowledge of the agent will be held to be the knowledge of the company. (Insurance Co. v. Davis, 59 Kan. 521, 526, 53 Pac. 956. See, also, Insurance Co. v. Bank, 60 Kan. 630, 57 Pac. 524; Insurance Co. v. Darrin, 80 Kan. 578, 103 Pac. 87.) In our opinion the principles _ enunciated in the cases relied on by plaintiff and the other cited 'cases are not applicable to the facts in the instant case.
Here no policy had been delivered. The negotiations between the parties were not completed. The joint application was submitted to the company, together with a note for the premium, for its acceptance at its home office in St. Louis. It was promptly examined, and found to be unsatisfactory in the one respect. Continuing the negotiations, the company requested a signed statement by the local •medical examiner, satisfactory to itself, as to the plaintiff’s illness disclosed by her application. It was not beyond its rights in doing this before concluding the negotiations and accepting the risk. Before it received the explanation, plaintiff’s husband died. The company then refused to deliver the policy and returned the premium note which had accompanied the application. The delay in the delivery of the policy occasioned by the agent’s attempt to procure an explanation cannot be said to have been negligence. Therefore no negligence was attributable to the defendant because of the delay between the receipt of his instructions from the company and the death of plaintiff’s husband. If the medical examiner had deliberately returned a false answer to his company (which is in no wise charged here) plaintiff in our opinion would be in no better position. It was the duty of both the plaintiff and the medical examiner to give the insurance company correct information. In New York Life Insurance Co. v. Fletcher, 117 U. S. 519, the headnote in 29 L. Ed., 934, reads:
“Where both the assured and the insurer are deceived by fraudulent acts of an agent in inserting in the application false answers, where the assured answered truthfully, if both parties acted bona fide, the policy should be canceled and the premiums returned.”
In the instant case no fraud was alleged or claimed. The negotiations for delivery of the policy were never completed, so that the law question involved must necessarily be resolved on entirely different principles from those in the cited cases. The act of Mr. Alexander in forwarding the company’s letter to Doctor Beasley was acquiesced in by the deceased, who it may be noted, was present at the time Doctor Beasley wrote down the plaintiff’s answers. There was no completed contract-r-no meeting of the minds — no delivery of the policy, and no negligence of the company in seeking further information.
The conclusion at which we have arrived renders unnecessary any discussion of other questions presented in the briefs.
The judgment is reversed and the cause remanded with instructions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The appellant, Lloyd McClurkin, was charged with burglary in the second degree and was adjudged guilty of an attempt to commit burglary. In his appeal his principal complaint is of the instructions given by' the trial court. The one chiefly complained of is the following:
“You are instructed that the presence of the defendant in the vicinity of and at the garage of the prosecuting witness, Thomas J. Rogers, in Cherokee, Crawford county, Kansas, on the night of October 15, 1924, at the time of the burglary, or attempt to commit a burglary, if you find that any offense was committed, or attempted to be committed at the time, would be a circumstance tending to prove his guilt, and casts upon the defendant the burden of explaining how he came to be there, or of giving some explanation, and if he fails to do so such presence would be conclusive evidence of his guilt. The explanation given must not only be reasonable, it must be credible, and account for his presence there in a manner consistent with his innocence, or enough so to raise a reasonable doubt in the minds of the jury.”
There was evidence introduced in behalf of the appellant to the effect that appellant, who ran a jitney at Picher, Okla., was employed to take a man from that place to Cherokee, Kan. His charge for the trip was $8, and the man said he did not have the money, but had a new casing and inner tube which he would give appellant for the service, and that was agreed upon. The distance to Cherokee Was about thirty miles, and on arrival there appellant directed him to what part of the city to drive, and pointed out the hom'e where he said he lived and wished him to stop. There the man asked for appellant’s flashlight, which was given him, and appellant accompanied him to a garage and the man told him that he had a balloon casing for him, and appellant replied that the man had said that he had a tire that would fit his car. Then the man said that he didn’t live there, and that he was going to steal a tire. Appellant then said, “Let’s go away from1 the premises”; and that it was then his purpose to surrender the man to the authorities. After going a few steps they were approached by men with shotguns, who fired on them| and some of the shots struck appellant. He and his companion ran a distance between some buildings and appellant came around towards where his car Was left, and found several men standing on guard near the car. Appellant says he told the man with him that he was going to get his car and explain to the men at the car how he happened to be there. His companion protested, and said he would go and get the car himself. Some shots were fired towards them and the mp-n With appellant ran under a porch and as the men with the guns were pursuing appellant and his companion, and through mistake Were about to shoot each other, evidently thinking that the other was one of the suspected criminals, appellant told them not to shoot each other. They thereupon took appellant into custody and the prosecution and conviction followed.
One of the complaints of appellant, which is not much urged, is that the evidence does not sustain the verdict, but in- the absence of other claims of error it cannot be held that the evidence was so insufficient as to require a reversal. Some evidence of incriminating circumstances Was produced which, taken together, must be held under the rules governing a review to be sufficient to sustain a verdict of conviction.
Evidence was offered in behalf of defendant .tending to explain his presence at the place of the crime which tended to exculpate him and which required a proper instruction as to the inference or presumption of fact arising from his proximity to the place of the crime at the time it was attempted. It is the contention of appellant that the instruction given to the effect that the presence of the defendant at the place of the crime was a circumstance tending to prove his guilt, which cast upon him the burden of explaining how he came to be at the place, and that if he failed to do so it would be conclusive evidence of his guilt, is material error. The contention must be sustained. It was competent, of course, to show his presence at the garage when the alleged offense was committed, and the court would have been warranted in telling the jury that his proximity at the place about the time of its commission, together with other circumstances brought out in the evidence, might warrant an inference or a presumption that he participated in the crime. (16 C. J. 542.) Here, however, the court told the jury that the bare circumstance of his presence at the place casts upon him the burden of making a satisfactory explanation of how he came to be there, and the failure to do so would be conclusive evidence of his guilt. The defendant was clothed with a presumption of innocence, and the burden throughout the trial rested upon the state to prove that he participated in an attempt to commit a burglary, and a conviction was not warranted by his mere unexplained presence at the place of the crime, nor unless all the evidence in the case taken together convinced the jury beyond a reasonable doubt that he participated in the attempt to commit a burglary.
In State v. Powell, 61 Kan. 81, 58 Pac. 968, where there was a conviction for burglary there was evidence that defendant had possession of property alleged to have been stolen, and the question was whether such possession alone raised a presumption of law that he was guilty of the charge, it was said:
“It has been frequently held in this state that such possession, unexplained, is prima facie evidence of larceny, but the instruction goes close to, if it does not pass over, the danger line when it throws the burden on the defendant of proving how he came into possession of the property. The burden of proof is upon the state, and does not shift or change to the defendant at any stage of the case. . . . Assuming, however, that a presumption of guilt arises in case of larceny from the possession of goods recently stolen, we do not feel warranted in still further extending the presumption that the evidence is of itself sufficient, if unexplained, to warrant a conviction for burglary.” (p. 84.)
In a case where the circumstances of the possession of stolen goods obtained when a burglary was committed, the instruction of the court to the effect that the unexplained possession of the fruits of the crime immediately after its commission is as a matter of law conclusive evidence of the guilt of the possessor, was error. (State v. Deuel, 63 Kan. 811, 66 Pac. 1037.) In State v. Herron, 64 Kan. 363, 67 Pac. 861, it was held that the unexplained possession of recently stolen property might be submitted to the jury and that it with other evidence might be sufficient to justify a conviction, but that such possession did not give rise to a conclusive presumption of guilt. (See, also, State v. Conway, 56 Kan. 682, 44 Pac. 627; State v. Gillespie, 62 Kan. 469, 63 Pac. 742; State v. Jewell, 88 Kan. 130, 127 Pac. 608; State v. Rice, 93 Kan. 589, 144 Pac. 1016.)
In ■Karnes v. Commonwealth, 125 Va. 758, it was held that the mere presence of the accused where the crime was committed was not alone sufficient to justify conviction, and that under the evidence relating to the presence of the accused he was entitled to have the jury told distinctly that his mere presence at the time the crime was committed was not sufficient to justify a conviction, and the refusal of such an instruction was prejudicial error. The liberty of persons that happened to be present in a crowd where a theft, robbery or other crime was committed would be precarious indeed if their mere presence was deemed conclusive evidence of guilt in case they could not satisfy the jury how they happened to be there when the offense was committed. Here the instruction went much further than that unexplained possession makes a prima facie case, as it placed the burden of proof upon the accused to explain his proximity to the place of the crime, and then states as a matter of law that an unreasonable explanation of his presence there of itself is conclusive evidence of his guilt. It may be, as the state contends,’ that the explanation was not reasonable nor satisfactory, but that was a question for the determination of the jury under the guidance of a correct rule of law. Under the evidence and circumstances of the case a correct statement of the law was an important matter. It is not so much a question as to the weight of the evidence as it is that the jury was properly instructed in respect to the rule for weighing and applying the evidence.
For the error in the instruction the judgment must be reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this action Frederick Pfleiderer asked for the partition of the. real property of Elizabeth Gregory Pfleiderer, his deceased wife. She had two daughters, J. Maud Mower and Lela Etta Brooks, who contended that plaintiff had no interest in the property, and they having prevailed plaintiff appeals.
The plaintiff and Elizabeth Gregory Pfleiderer were married on June 24, 1921, at Salina, lían., when he was about seventy-six years of age, and she was about seventy-three. He had several children by a former wife and she had two daughters by a former husband. Each owned property of about the same value at the time of the marriage. She had a half section of land in Jewell county, which included the homestead of herself and her former husband. Prior to the marriage she was a resident of Kansas, and while he had resided in this state in his earlier years, it appears that he left the state about thirty-nine years before the marriage and had not been a resident of the state since that time. After their marriage she went with him to Superior, Neb., where they built and maintained a home until her death on June 13, 1925. It was claimed by defendants that prior to their marriage an antenuptial contract was made, the validity of which is challenged by plaintiff. It contained among other things a provision that each should hold his or her property independent of the other, and upon the death of either the other should not have nor assert any interest, estate or title in the property of the other under the laws of any state by reason of survivor-ship, and that the agreement should stand as a consent in writing by each to any will or conveyance made by the other. On February 8, 1924, Elizabeth Gregory Pfleiderer executed a conveyance of her land to her daughters, reserving to herself a life estate in it. Plaintiff did not join in the execution of the deed, and it was delivered to Maud Mower on July 10, 1924, and to Lela Etta Brooks on March 5, 1925. It was filed for record on June 13, 1925. It is further disclosed in the record that on June 24, 1924, Mrs. Pfleiderer had made a will by which she gave plaintiff |25, reciting in the will that this bequest was made on consideration of an antenuptial contract, which the parties had made and which plaintiff had destroyed without the testator’s consent subsequent to the marriage, and there was attached to the will an unsigned copy of the antenuptial contract. In the will she recognized and confirmed the deed executed to her daughters on February 8, 1924, and gave all the residue of her property of every kind to her two daughters in equal parts. The will was admitted to probate in Nebraska after a trial in the district court. That court excluded the copy of the antenuptial contract, holding that proper proof of its execution had not been made and that such a document without proof of execution could not be incorporated as a part of the will. The will, however, was admitted to probate on other grounds. Shortly after the death of Mrs. Pfleiderer, the plaintiff brought this action claiming that he was entitled to a half interest in the land owned by her under the law of descents and distributions.
The controlling question in the case is the interpretation of R. S. 22-108, which provides:
“One-half in value of all the real estate in which the husband, at any time during the marriage, had a legal or equitable interest, which has not been sold on execution or other judicial sale, and not necessary for the payment of debts, and of which the wife has made no conveyance, shall, under the direction of the probate court, be set apart by the executors or administrators as hér property, in fee simple, upon the death of the husband, if she survives him: Provided, That the wife shall not be entitled to any interest, under the provisions of this section, in any land to which the husband has made a conveyance, when the wife at the time of the conveyance is not and never has been a resident of this state. Continuous cohabitation as husband and wife is presumptive evidence of marriage, for the purpose of giving the right aforesaid.”
This provision is followed by another which declares:
“All the provisions hereinbefore made in relation to the widow of a deceased husband shall be applicable to the husband of a deceased wife. Each is entitled to the same rights or portion in the estate of the other, and like interests shall in the same manner descend to their respective heirs. The estates of dower and by courtesy are abolished.” (R. S. 22-127.)
, The plaintiff did not join in the execution of the deed conveying the land to the daughters of his wife, and he contends that as she owned land during the marriage which had not been sold on execution or judicial sale, and was not necessary to pay debts, and had not been conveyed by her prior to the marriage, one-half of it descended to him inasmuch as he had been a resident of the state some years before the marriage. The defendants’ contention is that the act was dealing with the marital relations of husband and wife, and that the rights defined in the provision quoted did not arise until the marital status began. They insist that the legislature was making a provision for a status of those standing in the relation of husband and wife and not to individuals generally. It is further insisted that the provision giving one spouse the right to make conveyance of land where the other is not and never has been a resident of the state, means a resident of the state while the marriage relation existed. It is clear that the legislature was prescribing rules regulating the marital relation and fixing the rights which husband and wife have in the lands of the other spouse. There was no attempt to give rights to land which the deceased spouse had owned or disposed of prior to the marriage nor to base any rights on conditions which existed before the parties became husband and wife. Plaintiff urges that the words used as to residence, “and never has been a resident of the state,” are unambiguous and should be given their ordinary signification and effect. He contends that there should be no departure from the natural meaning on account of consequences or public policy nor even what the court may deem ■to be the better policy, and that if the legislature had sought to restrict the term to the declaration of the marital relation it would have said so. The general rule is that words in common use are to be given their natural and ordinary meaning, but it is also the rule that they are to be examined and interpreted in connection with the subject matter to which they relate. It has been said that “a cardinal canon of construction to which all mere rules of interpretation are subordinate, is that the intent when ascertained, governs.” (State v. Bancroft, 22 Kan. 170.) If a term is inappropriate or open to more than one meaning, we should look to the context and give effect to the manifest intention of the legislature. “This (it has been said) is only making the naked letter yield to its obvious intent.” (Coney v. City of Topeka, 96 Kan. 46, 149 Pac. 639.) It is manifest that the legislature was dealing with the status and not merely with individuals. Its attention was directed to the marital relation, and it prescribed a rule for the descent of land which the deceased spouse had had during the marriage. The opening provision of the statute relates to land owned by the husband at any time during the marriage of which the wife has made no conveyance and it provides that it shall be set apart to her. There is a further provision that the wife shall not be entitled to an interest in land which the husband has conveyed when the wife was not and never had been a resident of the state. The last sentence of the section indicates the obvious purpose of confining the operation of the act to the marital status where it provides that “continuous cohabitation as husband and wife- is presumptive evidence of marriage for the purpose of giving the right aforesaid.” We think it is reasonably clear that the clause relating to residence was intended to apply only to parties who occupied the relation of husband and wife, and that the restriction means that the wife as wife has never been a resident of the state. It is not easy to imply an-intention of the legislature to make the circumstance that a spouse when an infant in arms was brought to the state and resided here with her parents for a few months, and then was taken to another state by them, should be held to be within the restriction clause if after maturity she returned to and lived with her husband in the state. Rights as to the descent of land are based on the marital status, and the surviving wife cannot claim a share of property conveyed by the husband when she was a nonresident of the state at the time of the conveyance and never had been while occupying the relation of wife. The statute was before the court in Kennedy v. Haskell, 67 Kan. 612, 73 Pac. 913, and McKelvey v. McKelvey, 75 Kan. 325, 89 Pac. 663, but in neither of them was the question involved here considered or decided. In Buffington v. Grosvenor, 46 Kan. 730, 27 Pac. 137, the policy of the law was discussed to some extent and it . was said “for reasons that were deemed sufficient the legislature made the signature and conveyance of the nonresident wife unnecessary. The fact that the wife did not accompany her husband to Kansas or had abandoned him and gone to another state and may or may not have obtained a divorce elsewhere, thus leaving the status of the parties in doubt, and making it difficult to obtain a perfect transfer of land, in many cases may have been deemed sufficient reason for prescribing this rule of conveyance.” (p. 735.) If the words “never has been a resident of the state” had been in an act dealing with persons generally instead of those occupying the marriage relation, plaintiff’s contention must prevail, but the words used in an act must be interpreted in connection with its obvious purpose, and if that purpose is clear, effect must be given to the intention of the legislature. In Van Doren v. Etchen, 112 Kan. 380, 211 Pac. 144, where a statute was involved which imposed a penalty on the refusal of a mortgagee to enter satisfaction of a mortgage on real estate where the same was paid or a recorded mortgage in which the mortgagor has no interest, and it was interpreted in consonance with the manifest intention of the legislature, that the expression, “mortgagor, his heirs or assigns,” to mean the party in interest, the party aggrieved by the recording of an invalid mortgage. In the later case of Pitts v. Milling Co., 117 Kan. 626, 233 Pac. 114, the words “rent due” in a lease for a proportion of a crop where a purchaser of the crop had notice of an existing lien, relate only to the proportion of value of the crop and do not limit recovery to rent in arrears, this being the obvious intent of the legislature.
We conclude that the trial court correctly interpreted the statute as well as the validity of the deed to the defendants, which had not been signed by plaintiff. This view of the statute renders it unnecessary to consider other questions relating to a will and an ante-nuptial contract.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action on an account for merchandise sold. The defendants are J. D. Roberts, Lee Wallace and Mike Roberts, doing business as the Keystone Supply Company and as individuals. The defendants reside in Oklahoma. Service of process was by attachment. Lee Wallace alone defended, and he has appealed from a judgment for plaintiff and against him.
The facts are not seriously controverted and are substantially as follows: Wallace owned a drilling rig which was in need of some repairs and equipment. On April 15, 1914, he and J. D. Roberts entered into the following written agreement (omitting formal parts):
“That whereas, party of the first part is the owner of an Independent Standard drilling rig now located in Armstrong township in Nowata county, Oklahoma, on the Christy and Greenwood farm. And whereas, party of the second part is the owner of certain acreage in Kansas, more particularly described hereinafter. And whereas, it is the mutual desire of the parties hereto to become associated as partners in the development of certain acreage hereinafter described.
“Now, therefore, it is agreed between the parties that party of the second part shall place on the said drilling machine repairs and equipment to the ex tent of $1,200, and the parties hereto will then be the owner in equal shares of the said drilling machine. Party of the first part then agrees to move his machine to a location to be chosen, by party of the second part on the leasehold estate hereinafter described in the state of Kansas, and commence drilling a well for oil and gas mining purposes immediately.
“Party of the second part agrees to pay all expense in connection with the drilling of said well, including the moving expense, and agrees to furnish all casing and material necessary to complete said well, and, in the event a paying well is found, to pay the expense in connecting the said well to the tank, or in case a gas well is found, to connect the same to the pipe-line, or in the event that said well should be a dry hole, to pay the expense in pulling the casing and plugging the said well.
“Upon the completion of said well, party of the first part will then be entitled to an undivided one-eighth interest in and to said leasehold estate, described as containing eighty acres, more or less, and be the owner of an undivided one-eighth interest in said well, and all equipment therein, and party of the first part agrees that in the drilling of future wells upon said property, or in operating the said lease, party of the first part will stand and bear at his own expense the equal one-eighth portion of all expense in connection with said operation and further development of the same, and in the drilling of all wells under this contract party of the first part shall have the exclusive right to control the operation of said machine, including the hiring of help, and party of the first part shall be entitled to regular wages as a driller in drilling of all wells upon this land.
“It is further agreed between the parties that in the drilling of any other wells on any other acreage other than the eighty acres last above described, that each of the parties hereto will bear the expense half and half, and be entitled to an equal division of all profit.
“Party of the second part is to have the care and custody of all books concerning the operation provided for under this contract, and all settlements under this contract shall be based upon said books.
“The firm name of the partnership shall be known as Roberts & Wallace, and all accounts may be created in the name of Roberts & Wallace, and all deposits in the bank shall be carried in the name of Roberts & Wallace, subject to the check of either of the parties hereto.
“It is further agreed between the parties that if at any time either of the parties desires to terminate this contract, or sell his interest in either the property or the drilling machine that he will offer to the other party the option of taking the same at the price that he would sell the same to any third party.
“The partnership relation provided for under this contract shall continue indefinitely, unless definitely terminated by agreement by each of the parties hereto.”
This agreement was not recorded and was unknown to plaintiff at the time the merchandise was sold.
The drilling rig was moved to the lease in Kansas. Roberts went to plaintiff, a dealer in oil-well supplies, to purchase a Manila cable, and wished to have further credit extended to him'to be charged to the Keystone Supply Company, which he represented consisted of his father, Mike Roberts; but plaintiff’s representative did not know him. Robei’ts then said he was going to take care of the account anyway, represented that he had a certain acreage east of Coffey-ville and a drilling rig thereon, that he was selling a part of the acreage to complete the well, and it would leave him at least the eighty acres on which he was drilling. He represented that there was no indebtedness against the drilling rig except for what he was then buying. Upon this representation he was given short-time credit, with the understanding that plaintiff would look to the rig and its owner, or owners, for payment. Material to the amount of $1,793.14 was so purchased, and Roberts and Wallace used this material in drilling with the rig upon the acreage. The account was not paid, and plaintiff pressed Roberts for payment. On July 16 Roberts wrote plaintiff to be patient for a week or so; “we will be in a position to make things satisfactory to you;” and on July 28 wired plaintiff from Coffeyville that he found it necessary to leave on business. “Will be back Saturday and see you then.” A few days later plaintiff’s representative went to see Roberts and urged payment, or that a mortgage be given upon the rig and equipment. Roberts then said that he would have to see his partner about that. He was asked who his partner was, and he said it was Wallace. Plaintiff’s representative’ then went to the rig and talked to Wallace, who was drilling. The tools and equipment sold were being used in the work. Wallace declined to give a mortgage on the rig, or join in giving one. Afterwards and on August 8, Roberts executed to Wallace a bill of sale, reciting a consideration of $500, of “all my right, title and interest in and to a certain Independent Standard drilling machine, together with all the tools, cables and equipment therewith,” being the drilling rig in question. This bill of sale was received by Wallace and by him recorded in the office of the register of deeds. Soon thereafter this action was brought. There was further evidence tending to show that Wallace knew when he commenced drilling, or. soon thereafter, that the supplies and materials bought by Roberts had come from plaintiff, and that they were not paid for.
Appellant’s principal contention is that no completed partnership was ever formed, or consummated, between him and J. D. Roberts; that under the written agreement between them Roberts was to furnish $1,200 worth of repairs and equipment for the drilling rig as a condition precedent to his having a half interest therein; that Roberts failed to perform his part of the contract, and therefore did not become a part owner with Wallace in the drilling rig. This contention cannot be sustained. The written agreement recites the formation of a partnership in prcesenti “in the development of certain acreage” described by the leases in Kansas. The $1,200 worth of material and supplies were to be furnished by Roberts before Wallace was to move the drilling machine to the Kansas leases. It was moved to the Kansas leases and was there used, together with material purchased from plaintiff, in the work for which the partnership was created. Appellant was to draw wages for his time as a driller, but nothing for the use of the drilling rig. That was used by the parties for their joint benefit and in prosecuting the business for which the partnership was formed. And it seems clear that when the bill of sale was executed, August 8, both of the parties recognized that Roberts had an interest in the drilling rig, tools ánd equipment. This, of course, included the merchandise bought from plaintiff. So, from the contract itself and from the interpretation the parties themselves placed upon it, there was a partnership for the purpose of developing the acreage in Kansas between Roberts and Wallace.
Appellant says that Roberts never furnished the $1,200 worth of repairs and equipment mentioned in their agreement. The argument on that point is a little hard to understand. There was about $1,800 worth of equipment purchased from plaintiff. Though perhaps that is not what appellant refers to, he could hardly expect all of this to be furnished under that provision. The record does not disclose whether Roberts furnished the $1,200 worth of repairs and equipment before appellant moved the drilling machine to the lease in Kansas. Of course, he either did do so, or he didn’t. If he did do so, he became the ownér of an undivided one-half interest therein before these supplies were purchased. If he did not do so, Wallace waived that requirement of their agreement, or at least waived the time of its performance, when he brought the drilling machine to the Kansas leases, and thereby made the question of whether they should be furnished a matter of adjustment between them, upon considerations other than the specific provisions of the written agreement.
When the bill of sale of August 8 was offered in evidence appellant disclaimed any interest in merchandise referred to therein purchased from plaintiff, and contends that Roberts never had any interest in the remainder of the drilling machinery. If that were true there was nothing transferred by the bill of sale. This position is inconsistent with the bill of sale, as well as with the written agreement between the parties and their joint development of the lease in accordance with their written agreement.
But appellant contends that plaintiff knew nothing about any partnership between him and Roberts until some time after the goods were sold, and that the sale was to Roberts on his credit. Persons who are partners in business between themselves are partners as to third persons, even though they have not disclosed the existence of the partnership (30 Cyc. 382, and cases there cited). The merchandise was sold to Roberts on his representation that he had leases, and a drilling rig thereon which was clear of incumbrances, and the goods purchased were used on the drilling machine on the leases and in the conduct and prosecution of the business of the partnership between appellant and Roberts. The merchandise sold by plaintiff, and used as above stated, was of the kind necessary or useful in the prosecution of the partnership business. There seems to be no valid reason why the partnership, and hence the appellant as one of the partners, should not be liable for it.
Complaint is made of evidence received and of instructions given. We have examined these questions and find no error therein prejudicial to appellant.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.;
This is an action for damages for personal injuries wdiich resulted from plaintiff’s being struck by an automobile driven by a servant of the defendants. It was tried to a jury, there was a verdict and judgment for plaintiff upon two counts, one being for the personal injuries sustained and the other for expenses paid or incurred by reason thereof. The defendants have appealed.
Briefly the facts disclosed by the record are substantially as follows: The plaintiff, a young woman twenty-two years of age, was a student nurse in the Wesley Hospital at Wichita. About 5:30 o’clock in the afternoon of June 28, 1924, on her way home she was walking east along the north side of Second street and across the intersection of North Chautauqua avenue. As she started to cross the intersection she looked to see if any automobiles were close and saw none. She did not look back of her along Second street to see if there were cars, except to see if there were any close. She had proceeded across North Chautauqua avenue until within a foot or two of the curbing on the east side, perhaps was just stepping up on the curbing, when she was struck by the automobile of defendants and seriously injured. Defendants’ automobile was being driven by Elsie Schultz, in the employ of defendants as a maid, and on an errand for defendants. In the car with her were her sister, the two Bowen children, Bobbie, nine years of age, and a baby, and Janet Murdock, a neighbor girl, eleven years of age. There is a conflict in the testimony as to the speed at which defendants’ car was being driven east along Second street and as it turned north into Chautauqua avenue, the testimony of plaintiff’s witnesses tending to show that it was being driven at about twenty-five miles per hour, while that of defendants’ witnesses tended to show that the speed was about twelve miles per hour. As Elsie Schultz was driving defendants’ car east on Second street and approaching the intersection of North Chautauqua avenue there was a Ford roadster in which three young men were riding ahead of her going east along Second street. About the time the cars reached the intersection of North Chautauqua avenue Elsie Schultz attempted to drive past the Ford roadster. As she entered the street intersection her car was a little to the left of and the front portion of it almost even with, the rear part of the Ford roadster. Just after it passed the middle of the intersection the Ford started to turn to the left north into Chautauqua avenue. To avoid hitting the Ford car Elsie Schultz turned sharply north into Chautauqua avenue. The driver of the Ford after starting to turn, seeing defendants’ car so close, turned back to the right in Second street and stopped in a short distance. As Elsie Schultz turned north into Chautauqua avenue, seeing that she was about to strike the plaintiff, and when her car was about ten feet from plaintiff, she let go of the steering wheel, threw up her hands -and screamed. While most of the evidence is that the plaintiff did not do anything at that time which indicated that she saw defendants’ car approaching her, there is testimony tending to show that plaintiff did see defendants’ car just before she was struck, and either stopped or took a step backwards. The right front fender or wheel of defendants’ car struck plaintiff’s left foot, ankle and leg below the knee, dragging her between the car and the curb several feet, and seriously injured her. Defendants’ car struck the east curb of Chautauqua avenue about ten feet north of the sidewalk on the north side of Second street and continued north on Chautauqua avenue nearly half a block, when it was stopped.
The negligence relied upon by plaintiff was that defendants’ servant undertook to pass another automobile at an intersection and drove into the intersection and made the turn at a high rate of speed, in violation of an ordinance of the city. On this appeal it is not contended that this negligence was not established. There was a defense of contributory negligence.
Appellants first contend that the court erred in giving an instruction on the doctrine of the last clear chance. There was no reason for giving that instruction in this case. Ordinarily when one relies on the doctrine of last clear chance it should be pleaded (Drown v. Traction Co., 76 Ohio St. 234), but testimony may arise in the case which would make the doctrine applicable though it were not specifically pleaded, and in such event the court would not err in instructing on it. Here the defendants’ contention, while not urged in those words, is that there was evidence tending to show that plaintiff was negligent in that she did not make a sufficient lookout for approaching cars while crossing the intersection, and that plaintiff saw the car just before it struck her and neglected to go forward, which action would have enabled her to avoid injury, or that she negligently took a step backward which placed her in a position of danger. Plaintiff’s answer to that is that even if that be true, under the evidence, defendants’ servant could easily have guided the car to the left enough to have missed plaintiff after plaintiff was seen to be in a perilous situation from which she did not have time or notice to extricate herself, but instead of doing so that defendants’ servant let go of the steering wheel and permitted the car to run into plaintiff. Here was a new act of negligence of defendants’ servant which plain'tiff contends justified giving the instruction. In view of this rather close analysis of the situation by the respective parties, we do not regard the instruction as being prejudicially erroneous.
Appellants contend that the court erred in refusing to give an instruction defining an unavoidable accident. On this point the court told the jury:
“You are further instructed that if you should find from the evidence that the occurrence in question was a pure accident, for which no one was responsible, you will not allow damages, but will merely return a, verdict for the defendants.”
The term, “a pure accident, for which no one was responsible,” as used in the above instruction, was for this case an appropriate and sufficient definition of the term “unavoidable accident.”
Plaintiff’s counsel asked the jurors, on their voir dire, “Are you a stockholder in any insurance company that insures liability on automobiles?” and “Are you a director in any insurance company of that kind?” Defendants’ objection to these questions were overruled, and they complain of that ruling. Questions of this character are proper if asked in good faith for determining the qualifications of a prospective juror, and the good faith of such an inquiry is to be determined by the trial court. (Howard v. Motor Co., 106 Kan. 775, 190 Pac. 11; Smith v. Ice and Delivery Co., 117 Kan. 485, 490, 232 Pac. 603.)
There was no suggestion by plaintiff’s counsel at any time in the trial of this case that defendants carried indemnity insurance. Hence, authorities relied upon by appellants are not in point.
It was awkward and seems useless, after learning that the juror was not a stockholder of such a company, to ask if he were a director of such a company; for ordinarily one may not be a director of a company without being a stockholder thereof. But, even that question did not intimate that the defendants were insured, and the good faith of the inquiry was for the determination of the trial court.
Lastly, it is contended that the verdict on the first cause of action is excessive. While it is large, it is not sufficiently so to justify this court in adjudging it to be excessive. The plaintiff was seriously and permanently injured; she was confined to the hospital about five months and suffered much pain, which was not entirely gone at the time of the trial. It is not necessary to detail these injuries. We have carefully considered all counsel say on this question and conclude that the point is not well taken.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The appeal was taken from action of the district court in reviewing an arbitrator’s award of compensation.
The workman was a miner, and his disability was caused by an explosion of gas. The principal dispute before the arbitrator was the extent to which inhalation of hot gas at the time of the accident had affected his lungs, and his general physical condition and ability to work. Radiographs of the lungs were interpreted, and much expert medical testimony was given. The hearing before the arbitrator commenced on August 25, 1925, and the award was made on November 24,1925. The arbitrator found the workman was totally disabled from October 15; 1924, to February 18, 1925. For this disability compensation was awarded at the rate of $15 per week, amounting to $270. The arbitrator further found the workman was partially disabled from February 18,1925, to August 18, 1925. For this disability compensation was allowed at the rate of $6 per week; amounting to $156. The total compensation awarded was, therefore, $426. At the time of the award the workman had received compensation in the sum of $270, and because the arbitrator found all disability had ceased before the hearing commenced, the balance of compensation, amounting to $156, was due and payable, and was ordered paid in a lump sum.
The ground of the motion to review was that the award was grossly inadequate. The hearing in the district court occurred on March 26, 1925. The workman testified his condition was worse than it was at the time of arbitration, that he was shorter of breath, and that he was growing weaker all the time. He produced two physicians who had testified at the hearing before the arbitrator, and who had made physical examinations on February 3,1925. The physicians stated the result of their latest examinations, compared the workman’s physical condition with his condition at the time of arbitration, and gave their views regarding the nature and extent of his disability. They agreed plaintiff was suffering from effects of the accident and was unable to work, and one of them expressed the opinion his disability was permanent. The employer introduced no evidence, but contended the fact that plaintiff’s disability wholly ceased on August 18,1925, had been conclusively determined by the arbitrator.
The district court found the workman’s total disability extended to April 15,1926, instead of to February 18, 1925, and found partial disability would extend for a period of .fifty-two weeks after April 15,1926. Compensation for total disability was allowed at the rate of $15 per week. Compensation for partial disability was allowed at the rate of $10 per week, instead of at the arbitrator’s rate of $6 per week. The result was, the arbitrator’s award of compensation for total disability to February 18, 1925, in the sum of $270, was permitted to stand. Further compensation was awarded for total disability for sixty weeks at $15 per week, amounting to $900, and compensation for partial disability was awarded for fifty-two weeks at $10 per week, amounting to $520. The difference in amount between the original award and the award as modified was the difference between $426 and $1,690.
May an arbitrator’s award of compensation be reviewed to ascertain whether the amount of compensation allowed was grossly inadequate?
It may be reviewed. The statute so provides in express terms.
How may review be secured?
By direct application made to the district court before final payment of the award, alleging the award was grossly inadequate.
What elements enter into an award which may affect adequacy?
They are: (1) Nature of disability, whether total or'partial; (2) extent of disability, whether permanent or temporary; (3) the average earnings of the workman, to be used as a basis of computation (except in certain special cases). Inadequacy must be found in one or more of these factors, and may result from any one of them.
How may inadequacy be ascertained?
By judicial inquiry, which includes the hearing of all competent evidence offered, and may include reports of physicians appointed by the court to examine the workman.
If inadequacy be discovered, what must the quantitative extent of it be to warrant modification of the award?
It must be gross. The primary question on' review is not amount, but integrity of the award. Gross inadequacy affiliates with fraud, undue influence, and transgression of authority. Difference in opinion between district court and arbitrator respecting one or more of the elements of compensation which does not greatly influence the result, is not sufficient. The award must so glaringly fail to measure up to adequacy as to be inexcusable and insufferable.
The foregoing catechism is framed from the workmen’s compensa tion act and from the decisions of this court interpreting that statute. It is not necessary to review the decisions. The result is, the fact that the arbitrator determined that total disability ceased on February 18, 1925, and partial disability ceased on August 18, 1925, was not conclusive. Nature and extent of disability were factors of compensation which the court was authorized to reexamine, in response to the challenge of the motion for review. The district court’s findings-of fact relating to those subjects are supported by evidence, and disclose gross inadequacy of the award.
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The opinion of the court was delivered by
Burch, J.:
The action was one by an applicant for insurance to recover the loss sustained on account of destruction of property by fire. No policy w'as issued, and in its original form the petition predicated recovery on an oral statement of the soliciting agent that plaintiff was insured from the time the application was signed. The petition was amended to state a cause of action based on negligence of the company. The negligence charged was that the agent did not notify plaintiff that he had no communication from the com pany respecting the application, had not received a policy, and had not received advice from the company of either acceptance or rejection of the application. The amended answer denied negligence on the part of the company, and alleged that if plaintiff was damaged because of lack of information respecting the fate of his application, his own conduct placed him in fault in the matter. The court found the company was negligent, plaintiff was not negligent, and rendered judgment for a sum within the amount of insurance applied for. The company appeals.
The application was dated September 13, 1924, and was for insurance on farm property. The agent was a soliciting agent, had no authority to bind the company on farm property, and the application contained a plainly printed statement that he had no such authority. The application also contained a statement that it should not be binding on the company until it was accepted in writing or a policy was issued. Plaintiff did not read the application, and did not know of these provisions, but he could read, and nothing prevented him from reading the application. He was told it was necessary for the agent to send the application to the home office .of the company, which would issue a policy and send it to the agent within two or three days. Otherwise plaintiff was in fact ignorant of the scope of the agent’s authority. When the application was signed, plaintiff inquired when the insurance would become effective, and the agent replied it would become effective immediately. Attached to the policy was a premium note prepared by the agent which bore the same date as the application. Plaintiff requested the agent to keep the policy for him until he called for it, and the agent agreed to do so. On the day the application was signed, the agent deposited it in the post office in an envelope addressed to the company, postage paid. Plaintiff was the agent’s milkman, and delivered milk to the agent’s home nearly every day. Every week or two plaintiff would collect from the agent at his office for milk delivered'. Subsequent to September 13 this practice continued, and plaintiff frequently saw the agent at his home and office, but nothing was said by either of them touching the subject of plaintiff’s insurance. On December 10,1924, the property burned, and on investigation it was discovered the application had been lost in the mail, and the company had never heard of it.
Leaving at one side for the present the fact the agent advised plaintiff the insurance became effective immediately and a policy would be issued within two or three days, there is no sound basis for the judgment.
The agent exercised his authority to take the application and place it in course of transmission to the home office. His immediate authority was then exhausted. He had no function to perform on behalf of the company until he received from it a policy to be delivered, a rejected application with note attached to be returned, or some other commission to be executed relating to the insurance. For some unknown reason the application did not reach the home office. That office had no occasion to communicate with the agent respecting an application which it did not know existed. Its silence was without fault, and did not involve delay. The agent was not guilty of delay in forwarding the application, the home office was not guilty of delay in approving or rejecting the application, and cases dealing with liability consequent upon delay are not helpful. The court found it was the custom of the company to accept or reject applications promptly, usually within twenty-four hours after receiving them. Because of this practice, the company had no occasion to instruct its agents that if they did not hear from the home office respecting forwarded applications, they should notify applicants of the suspense, and the court knows of no peremptory rule of law requiring such' notice.
The plaintiff was actor. The application constituted his offer to enter into a contract of insurance. He would remain without insurance unless the company manifested its assent. He had as much interest as the company in knowing if there was to be insurance. He appointed the company’s agent his agent to receive and keep the policy for him, and he was interested in knowing if that relation came into existence. Throughout a period of nearly three months he had frequent opportunity to ask for the information which the court held it was the duty of the company to volunteer. Had he sought information, he would have learned the facts, and could have procured a policy from the company if it approved the risk, or could have applied for insurance elsewhere; and in the absence of ground of belief induced by the company that his application had been accepted, he was not in position to charge the company with sole responsibility for the fact that his property was uninsured, or indeed, any responsibility.
The subject of inquiry by an applicant concerning the status of his application for insurance was discussed in the case of Winchell v. Iowa State Insurance Co., 103 Ia. 189. In that case an application for insurance with premium note attached was rejected, and was returned to the soliciting agent, White, who failed to notify the, applicant. In denying recovery for a sum within the amount of insurance applied for, the court said:
“The plaintiff has failed to show that the defendant knew, or had any reason to know, that he relied upon the belief that his application had been accepted. The defendant had promptly returned the application and note, when rejected, to White, with the evident intention that he should inform the plaintiff of what had been done. It may be conceded that it was a duty which White owed to the defendant to give that information; but the defendant and the plaintiff were alike interested in making the, contract, and it was as much the duty of the latter to inquire whether it had been entered into as it was the duty of the former to give that information. The plaintiff admits that he was with White eleven days, and again more than two months, after the application was delivered, and yet claims that he did not make any inquiries with respect to the policy. He does not claim to have been misled by anything which was done or said by the defendant or White, excepting the statements of the latter in regard to the effect of the application and note, to which we have already referred.” (p. 194.)
The concluding portion of the quotation from the opinion in the Winchell case brings up the subject, consideration of which was postponed — the bearing upon the relation of the parties of the agent’s statement that plaintiff’s insurance would take effect immediately and a policy would be issued within two or three days.
In the Winchell case, the agent told the applicant his insurance would take effect at noon of the day the application was signed. As in this case, the agent had no authority to make contracts for the company,' and made no representation respecting contents of the application, which the applicant did not indicate he desired to read. The court held it was not the duty or within the power of the agent to construe the application and premium note, or to declare their legal effect, and thus create liability on the part of the company. This is necessarily so, because an agent may not accomplish by indirection what he could not do directly,- and the law on the subject is too well settled to require citation of authority.
In this instance, no matter what plaintiff believed, he was charged with knowledge that the agent could not make a contract of insurance to begin on the day the application was signed, or on any other day. The application informed him the agent could not bind the company with respect to the class of property he proposed to insure, informed him the company would not be bound until the application was accepted in writing or a policy was issued, and it is not material that plaintiff did not read the application. (Pickett v. Insurance Co., 39 Kan. 697, 18 Pac. 903.) The statement that the policy would be issued and sent to the agent within two or three days from the time the application was sent in, belongs in the same category with the statement that the insurance became effective immediately, and may not be considered as coming from the company. The result is, plaintiff knew he was not insured, and could not be insured, without positive action of the home office; and the agent’s unauthorized statements were ineffectual either to form a contract or to furnish a foundation for a charge of negligence.
Plaintiff cites the decisions of this court in which it has been held that, for the purpose of taking and transmitting an application for insurance, a soliciting agent has all the authority possessed by his principal. Those decisions are not pertinent, because integrity of the application is not disputed. Plaintiff lays stress on the fact that he executed a premium note attached to the application and dated the day the application was signed. The bearing of the specific fact on liability of an insurer is discussed in the case of Miles, Adm’r, v. National Union Fire Ins. Co., 201 Ky. 179. The headnote reads:
“Applicant for fire insurance was bound by a statement in the application blank that no insurance was to become effective until the policy was issued and delivered, though he did not read the application, and he could not rely on oral statement of agent the property was insured, or that he would provide insurance, even though a note for the premium was given the agent.”
The court concludes there was no contract of insurance, and under the circumstances liability may not be imposed on the company.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a conviction of larceny of wheat of the value of $52.50.
He urges that the verdict was not sustained by sufficient evidence and that for that reason his motion for a new trial should have been granted. He was charged with stealing wheat from the Farmers Union Cooperative Association, a corporation, of Dillwyn, Kan. There was evidence which tended to prove that 135 bushels of wheat were taken from the elevator of the association without its consent. There was other evidence which tended to show that the defendant admitted to the county attorney in the presence of the sheriff and of his deputy that he had assisted in stealing thirty-five bushels of wheat from the association’s elevator. There was other evidence which tended to prove that the market value of wheat at that time was $1.50 a bushel, and still other evidence which tended to prove that the defendant received a part of the proceeds arising from the sale of the stolen wheat. The evidence was sufficient to warrant the jury in finding that the thirty-five bushels of wheat had been stolen and -that the defendant had assisted in stealing it.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
In the city court of Leavenworth (having substantially the jurisdiction and procedure of a justice of the peace) the plaintiff brought replevin for a piano, and other property, the whole .valued in the affidavit at $45. The defendant gave a redelivery bond and the possession of the property was restored to him. The bill of particulars of the plaintiff asked judgment for the possession of the property or for its value in the amount named. The defendant filed a written confession of judgment for $45 and costs. Judgment was rendered for that amount, which the defendant paid into court. The plaintiff appealed from the judgment by filing a statutory bond. In the district court the defendant moved to dismiss the appeal on the ground that all matters in controversy had been adjudicated. This motion was overruled and a trial was had over the objection of the defendant, who introduced no evidence. Judgment was rendered that the plaintiff recover the possession of the property or its value in the sum of $45. The defendant appeals from this judgment, urging these propositions:
a. The plaintiff’s course amounted to an election to ask for a money judgment, which could not be larger than the value stated in the affidavit (R. S. 61-508), and the payment of the judgment for that amount ended the matter.
b. The action must be treated as one merely for the recovery of money because of the statutory provision that in replevin before a justice of the peace, when the property claimed has not been taken, the action may proceed as one for damages only (R. S. 61-513), which in this instance could not exceed $45.
1. Neither proposition is well founded. The prayer of the plaintiff’s bill of particulars for the possession of the property or its value in money is to be interpreted, not as giving the defendant the option to return the property or pay the value as he might choose, but as meaning that if a return could not be had a payment of $45 should be required in lieu thereof. The alternative feature of the judgment in replevin is for the benefit of the wronged party only. (Bank v. Venard, 109 Kan. 15, 197 Pac. 877.) The plaintiff doubtless was dissatisfied with the judgment in the city court because it provided for a money judgment only; but in any event she was entitled to take an appeal (Mercantile Co. v. Wimer, 97 Kan. 31, 154 Pac. 216), and her giving of the statutory bond vacated the judgment (3 C. J. 1261), regardless of whether or not error was committed in its rendition. The appeal is a matter of right, calling for a trial de novo (R. S. 61-1003), no review of the correctness of the rulings of a justice of the peace being provided by the statute. (Norman v. Toliver, 94 Kan. 356, 146 Pac. 1037.) The judgment in the district court was for the return of the property or the payment of its value, but the option rested with the plaintiff and not with the defendant.
2. The provision of the statute that where the. property claimed has not been taken the action may proceed as one for damages only is intended to meet the situation where the constable has not obtained possession of the property under the order of delivery issued to him. It does not apply in cases like the present, where the property, after being seized by the officer, is returned to the defendant upon the giving' of a forthcoming bond. The abstract recites that the defendant filed a redelivery bond and “retained possession of the property.” Whether the constable ever had physical possession of it is immaterial. The giving of the redelivery bond was a recognition of his control of it.
3. The judgment of the city court was not rendered “on confession” in such sense as to be subject to the rule that judgments rendered on confession by a justice of the peace are not appealable (R. S. 61-1010); otherwise a plaintiff in justice court would be without remedy if on request of the defendant judgment were wrongfully rendered for a less amount than that claimed.
4. The defendant raises the point that this court has no jurisdiction because the amount in controversy does not exceed $100. Formerly the statute provided that no review should be had in this court “in any civil action” (with certain exceptions) .unless the amount or value in controversy exceeded that sum. (Laws 1889, oh. 245, §1; Gen. Stat. 1901, §5019.) That law made the limitation applicable to replevin actions. (Blank v. Powell, 68 Kan. 556, 75 Pac. 486.) Under the present statute it is imposed only in the case of a “civil action for the recovery of money.” (Laws 1907, ch. 256, § 1; R. S. 60-3303.) Replevin is not an action for the recovery of money primarily, unless where merely a lien is claimed. The money judgment where full ownership of the property is asserted is an alternative to prevent entire loss to the plaintiff if a return cannot be had. We hold the judgment to have been appealable.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action by an executor to recover from defendants, trustees of the Church of Christ of Hutchinson, the value of property alleged to have been wrongfully obtained from the testator, and which defendants had converted into money. A jury, called to try the case, was unable to agree and was discharged. Plaintiff then moved for judgment upon the pleadings, the admissions and stipulation at the trial, the undisputed evidence, and upon all the evidence, “the case having been fully tried and all the facts and evidence now before the court.” This motion was sustained and judgment was rendered for plaintiff. Defendants have appealed.
The facts giving rise to the litigation are substantially as follows: In December, 1922, Margaret J. Denning was the owner, and in actual possession, of a certain residence property in Hutchinson of the value of $5,000. She was past 80 years of age, and alone; she had no children, and her husband had died recently. Her health was not good — in fact was so poor she needed an attendant — perhaps her mental faculties were failing, and she had but little knowledge of business matters. The record does not disclose that she had any property of consequence other than the residence above mentioned. She and her husband had been members for many years of the Church of Christ of Hutchinson, and were constant and devout in their attendance and worship. She knew and had confidence in the pastor of the church, Rev. Mr. Smith, and consulted with him about how to handle her property so as to provide for her present and future necessities and comforts. As a result of advice which he, and some of the defendants to whom he referred her, gave to her, she deeded her residence to defendants. The following resolution was adopted by the church congregation:
“■Whereas, Margaret J. Denning -has proposed to the Church of Christ of Hutchinson, Kan., a corporation, to transfer to it by general warranty deed, lots 39 and 41 on Fourth street east in the city of Hutchinson, Reno county, Kansas, as shown by the original plat thereof, upon consideration that said Church of Christ of Hutchinson, Kan., a corporation, shall pay to Margaret J. Denning during her lifetime, the sum of three hundred sixty dollars ($360) per year, payable monthly, upon the first day of each and every month, beginning with January 1, 1923, and shall also pay her the sum of one hundred fifty-four dollars and sixty-two cents ($154.62) to reimburse her for taxes paid for the year 1922;
“Now, therefore, Be it resolved by the Church of Christ of Hutchinson, Kan., in open congregation assembled, that we do hereby accept the proposition of said Margaret J. Denning and do hereby authorize the board of trustees of this church to accept a general warranty deed from said Margaret J. Denning and file and record the same, and do authorize said board of trustees, or the proper authorities of this church, to pay to the said Margaret J. Denning the sum of one hundred fifty-four dollars and sixty-two cents ($154.62) to reimburse her for taxes paid for the year 1922 on said property, and we do hereby authorize the said board of trustees of this church to make, execute and deliver to Margaret J. Denning an annuity bond in words and figures as follows:
“Annuity Bond.
“Whebeas, Margaret J. Denning, of Hutchinson, Reno county, Kansas, has donated to and transferred by general warranty deed to the trustees of the Church of Christ of Hutchinson, Kan., a corporation, the following-described real estate lying and situated in Reno county, Kansas, to wit (description inserted): of the present value of $5,000;
“Now, therefore, The Church of Christ of Hutchinson, Kan., a corporation, in consideration thereof, hereby agrees to pay to Margaret J. Denning, of Hutchinson, Kan., during her lifetime, an annuity of three hundred sixty dollars ($360) per year, payable in twelve (12) equal payments of thirty dollars ($30) each, payable on the first day of each and every month, beginning with January 1, 1923. Said payments to cease and determine upon the death of said Margaret J. Denning.
“Witness the hands of said corporation this 11th day of December, 1922. ■ The Church of Christ of Hutchinson, Kan. (Signed by the individual members of the board of trustees.) (Seal.)
“And we do hereby pledge the property of this church as security for said indebtedness and direct the payment of thirty dollars ($30) per month to Margaret J. Denning, upon the first , day of each and every month, beginning with January 1, 1923, to continue during her lifetime, said payments to cease and determine upon her death.
“Said resolution passed and adopted this 10th day of December, 1922. Leo C. Reeves, clerk of said church.”
The trustees, to whom the property was deeded by plaintiff, sold it soon for $5,000, and have retained and invested the proceeds, and from the interest thereon paid Margaret J. Denning $30 per month as long as she lived. After her death they loaned $500 of it to the church, taking a note for the sum loaned; no part of it has ever been turned over to the church corporation. Soon after conveying her residence to defendants, Margaret J. Denning went to Ohio, where she had relatives, with whom she lived. A guardian was appointed for her August 8, 1923. He took up the matter of the conveyance of her house to defendants and asked that it be rescinded. This proposition was rejected. She died ,May 6, 1924, leaving a will, which was duly admitted to probate.
The Church of Christ of Hutchinson was incorporated July 7, 1884, under our statutes pertaining to religious corporations. Its charter provides:
“That the purposes for which the corporation is formed are to support the Church of Christ at Hutchinson, and for the proclamation of the gospel to sinners.”
Appellants first contend that this is an action for the recovery of money, and that they were entitled to a trial by jury as a matter of right (R-. S. 60-2903). This must be determined by the pleadings. (Lapham v. Oil and Gas Co. 87 Kan. 65, 123 Pac. 863; Boam v. Cohen, 94 Kan. 42, 145 Pac. 559.) The pleadings in this case disclose that it is essentially an action for rescission of the agreement, whatever it was, by which Mrs. Denning conveyed her property to defendants, predicated upon the alleged mental incapacity of Mrs. Denning to comprehend the nature of the transaction, and the allegations of conduct by Rev. Mr. Smith, and others, amounting to fraud and undue influence, and the alleged illegality of the transaction. Tire answer joined issues on these allegations. These issues were properly triable to a court of equity, without the intervention of a jury. (Rayl v. Brown, 108 Kan. 385, 195 Pac. 611; Fisher v. Rakestraw et al., 117 Kan. 441, 447, 232 Pac. 605; Spena v. Goffe, 119 Kan. 831, 241 Pac. 257.) The petition alleged that the property had been sold by defendants, who had the proceeds of the sale. The prayer for a money judgment for such proceeds, in connection with a prayer for equitablé relief, is but a tracing of the fúnd which plaintiff contended was wrongfully obtained from Mrs. Denning, and does not have the effect of converting the action into one at law for a money judgment.
The trial court held that the contract was illegal; that the Church of Christ of Hutchinson had no corporate power or authority to make a contract such as it attempted to make in this case. Appellants complain of this ruling. It is erroneous. It is time that our statute (R. S. 17-202) provides the purposes for which private corporations may be formed are: . . (9) the insurance of human life and dealing in annuities . . Further provisions relative to corporations for this purpose are found in R. S. 40-301; 40-320, and perhaps, in other sections of the statute. The Church of Christ of Hutchinson was not incorporated under these provisions of our statute, but under R. S. 17-202 — (1) The support of public worship — and R. S. 17-1701 et seq., which do not specifically authorize such corporations to deal in annuities. But that is not the end of the matter. Church organizations are supported by gifts and donations of various kinds. These may be' outright gifts, or gifts to take effect in the future, and these may be made to depend upon contingencies, or may be made upon conditions. The fact that a gift is made upon condition that the donee pay to the donor a fixed or determinable sum, at stated intervals, for a stated or determinable time, does not render the gift illegal, even if the sum named is to be paid annually, and is called or might be classified as an annuity, and even though the church organization had no corporate power to deal in annuities. In such a case the fact that the condition of the gift is. a payment by the donee to the donor of a sum annually, or periodically, is but an incident of the gift, and does not make the donee “dealing in annuities,” as that term is used in our statute (R. S. 17-202 [9]). The donee is dealing in gifts, or in accepting gifts — a function clearly within its corporate powers (R. S. 17-601).
In Sherman v. American Congregational Ass’n, 113 Fed. 609, it was held:
“The fact that a religious association has by its charter certain enumerated power's does not bar it' from complying with the terms of a legacy requiring it to pay an annuity, when such compliance is only incidental, and tends to the accomplishment of the substantial purposes of its incorporation.”
See, also, Burnes v. Burnes, 137 Fed. 781; Jones v. Brown et al., 156 Ga. 452; Watrous v. Watrous, 180 Ia. 884; State Historical Society v. Foster, 172 Wis. 155; Patterson v. Vermillion Academy, 312 Ill. 386, as bearing upon gifts in which as incident thereto the donee was to make payments annually or periodically for a time. It is evident the trial court based its decision largely upon the theory that the transaction was an illegal one. This is an error which requires a reversal of the judgment. The fact that the words “annuity” and “annuity bond” were used in the instruments executed by the church authorities should not be construed as classifying the transaction as “dealing in annuities.” The use of those terms was inapt. It would have avoided confusion if the instruments prepared in connection with the transaction had correctly described it as a conditional gift.
The real question in the case, under the pleadings, is whether a valid gift was made. This depends upon the issues joined as to Mrs. Denning’s mental capacity to comprehend the nature of the transaction, and the allegations as to the conduct of Rev. Mr. Smith, and others representing the church organization, amounting to fraud and undue influence. This should be determined by the evidence pertaining thereto and in accordance with the principles of courts of equity in dealing with such questions. The fact that Rev. Mr. Smith, and those associated with him, were ambitious to get Mrs. Denning’s property, or the value of it, to use for religious purposes, if that is shown to be a fact, would not justify them in overreaching her, or taking advantage of her, if the evidence discloses such was done. If the evidence warrants it, there should be-a judicious application of the principle of independent advice recognized by courts of equity, and which our legislature has written into the law of wills. (R. S. 22-214; Flintjer v. Rehm, 120 Kan. 13, 241 Pac. 1087, and cases there cited.) We are not expressing a view as to the evidence, or the weight of the evidence, upon this question; we carefully avoid doing so; that is a question for the trial court. We are simply endeavoring to point out the question upon which the case must turn, viz., Was there a gift (conditional or otherwise) of the property in question, intelligently and freely made? and to point out the legal principles to be applied, viz., the principles usually applied by courts of equity in such controversies.
Appellants contend that the evidence discloses a completed gift, and calls attention to the wording of the resolution passed by the church congregation and of the “annuity bond.” As stated above, we are not passing on the evidence, but it seems clear this contention is an afterthought. Even in the original answer filed in this case, one of the contentions was that the transaction was a gift to be effective at the death of Mrs. Denning — although in an amended answer this was omitted. The trustees turned no part of the money to the church corporation during the lifetime of Mrs. Denning. Too much stress cannot be placed upon the wording of the resolution and of the “annuity bond” as binding Mrs. Denning, for it seems she was not present when the resolution was adopted; there is a controversy as to what she was told about it, and the “annuity bond” appears not to have been delivered to her — at least it was in possession of one of the defendants as late as August 31, 1923, who then writing the guardian about it described it as a “contract in the form of a mortgage” for $5,000 on the church property. For the reasons just stated, the case of Crawford v. Missionary Society, 24 Oh. Cir. Ct. (n. s.) 95, cited and relied upon by appellants is not controlling.
The judgment of the court below will be reversed for a new trial in accordance with the views expressed in this opinion. | [
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The opinion of the court was delivered by
Mason, J.:
Esther Hurt brought this action against Edwin S. Drew, seeking a money judgment. She caused an attachment to be levied upon a 320-acre tract of land as his property. His father intervened, claiming to be the real owner of the land, although at the time of the attachment the paper title stood in the name of his son. The trial of this issue without a jury resulted in a judgment in favor of the interpleader, declaring him to be the owner of the land and the attachment to be without effect.
Findings made by the trial court showed these facts: In 1915 the interpleader, who was then in Iow'a, owned the land in question. He executed to his son without consideration therefor a deed, reserving a lease for his own life. He sent this to his son saying a woman in Iowa was wrongfully threatening him with a suit for breach of promise of marriage, and that he wished the son to receive the conveyance and reconvey the property when he asked for it. Later this w’as orally agreed to between the father and son. The deed had then been recorded. No suit for breach of promise was ever brought. The interpleader had no debts at the time except a $600 mortgage on one quarter section of the land. The attachment-in question was, levied upon the land as belonging to the son on September 26, 1924. On November 10, 1924, the son deeded the land to the interpleader, no earlier request for this having been made. For about five years after the making of the deed by the interpleader the son occupied the land and paid him rent. For the next five years the father either farmed it on his own account or rented it to tenants who paid him. In 1916 the son, without the knowledge of his father, mortgaged the land to a loan company for $2,000, which was used to pay off the $600 mortgage referred to and notes of the son on which the father was surety.
1. The plaintiff contends that the arrangement between the father and son by which the latter was to hold the title to the land for the benefit of the former was an attempt to create an express trust in realty by parol and was invalid because the statute provides that “no trust concerning lands except such as may arise by implication of law shall be. created, unless in writing signed by the party creating the same, or by his attorney thereto lawfully authorized in writing.” (R. S. 67-401.) This statute would be applicable and would invalidate the trust at the instance of the son if the action were one by the father to enforce it against him. But inasmuch as the son saw fit to recognize the oral trust as obligatory and perform its conditions there is nothing in the statute to prevent his doing so. And the plaintiff as an attaching creditor can reach only property of which her debtor is the actual and beneficial owner — not property to which he has only a naked legal title. (Polley v. Johnson, 52 Kan. 478, 35 Pac. 8; Mallory v. Thomas, 71 Kan. 562, 81 Pac. 194; see, also, 27 C. J. 307; 25 R. C. L. 736.)
2. As against a creditor of his own or as against his son the inter-pleader could not effectively assert title to the property if his conveyance to his son were made to hinder, delay or defraud creditors, or a creditor. Assuming the rule to be the same as between him and a creditor of his son, it would not operate here because he had no creditors when he deeded the land to his son, and the fact that the deed was made because he was threatened with an unjust suit for breach of promise would not preclude his claiming the land.
“Where there are no actual creditors to be defrauded, and there is only a mental purpose to hinder imaginary creditors, equity will relieve against transfers of property without consideration.” (Hoff v. Hoff, 106 Kan. 642, 549, 189 Pac. 613.)
3. The matter of the son having mortgaged the land and used the proceeds to pay his owtn debts, for which his father was merely a surety, is of importance only as it may bear upon the question of the good faith of the arrangement between him and his father. The trial court’s decision is determinative of that issue.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one for damages for failure of the •defendants to waterproof a concrete standpipe erected by them under contract with the plaintiff. A demurrer to plaintiff’s evidence was sustained and plaintiff appeals.
The facts are substantially these:
Sometime prior to July, 1921, the city of McPherson decided to build a water tower, 110 feet high and 36 feet in diameter. It employed engineers who prepared plans and specifications which were ■complete except in the matter of waterproofing the tower.- The •specifications contained this paragraph:
“It is intended to allow any one of several methods of waterproofing to be ■used, provided that it is approved by the engineer and has demonstrated its value by a similar use elsewhere. Full specifications as to method of waterproofing shall be submitted with the bid, which shall include the weight per square foot or yard of fabric and bituminous material to be used.”
Defendants Stucker, Stucker and Strachan presented a bid including a statement that:
“If Ferro-tite Waterproofing is used, deduct $700. If new Billett Steel is used, add $700.”
The Stucker bid was accepted with the qualification that the city would investigate this particular kind of waterproofing. Its engineers examined into the merits of Ferro-tite and the city decided to use it. Specifications of the waterproofing were furnished, accepted and the work proceeded. When it was completed, the tank was filled and found to leak. After more work had been done toward waterproofing it with Ferro-tite, the leak was greatly reduced, but not entirely stopped. Demands were made upon defendants to make the standpipe water-tight, but were not complied with. Afterwards the defendants notified the city that they could not make the tank water-tight with their method, and advised the city to take over the w“ork. The job was then let to another contractor who completed it.
The city sought to recover damages and defendants counterclaimed. The controlling question is whether defendants guaranteed against defects of material and construction only or a water-tight tank. Defendants argue that if there was no defect in the materials furnished nor workmanship, that they were not liable for failure to produce the result of a Water-tight tank. Pertinent portions of the plans and specifications follow [italics ours]:
“3. Scope of Contract. This contract is to cover furnishing all labor and material to build the tank complete, including the construction of a valve manhole; to install the special valves furnished by the city; and provide the water and drain connections shown on the plans. The contract will also cover all other work, plant and equipment, which may be either directly or indirectly necessary for the satisfactory completion of the work, and the removal of all scaffolding, surplus materials, rubbish, or other obstructions caused or created by the operations of the contractor.
“58. Special care shall be used to secure the proper amount of water to produce a dense water-tight concrete.
“64. The concrete in the wall shall be placed in one continuous run and moist be absolutely wat&r-tight. The joint between the footing and the wall shall be made water-tight by a groove and a metal dam, and the same construction shall be used if through unforeseen circumstances a joint must be left elsewhere. If such joint must be left in the wall, any procedure which the engineers may deem necessary shall be followed to insure a ioater-tight wall at the joint.
“70. Waterproofing. The tank shall be waterproofed by applying a continuous bituminous membrane to the floor and the lower 55 feet of the wall and by applying a mop coat of hot asphalt to the upper 55 feet. The membrane shall be protected by an inner lining.
“71. Bituminous Membrane. The membrane shall be felt or fabric imbedded in a bituminous cement. All materials shall be of the highest quality suitable for the work and tested by previous similar use. The fabric shall be felt, cotton fabric. The bituminous shall preferably be a pure asphalt, and shall be soluble to not less than 98 per cent in cold carbon bisulphide. It shall be of the proper consistency and it is especially important that the material shall be ductile at temperatures down to 32 D. F. Full specifications and references to previous use shall be submitted for all waterproofing materials at the time of the bid. All such materials shall be delivered on the job in their original branded packages, and statements as to manufacturers’ tests shall be submitted. It is intended to allow any one of several different methods of waterproofing to be used, provided that it is approved by the engineer, and has demonstrated its value by similar use elsewhere. Full specifications as to method of waterproofing shall be submitted with the bid, which shall include the weight per square foot or yard of fabric and bituminous material to be used.
“72. ' The concrete surface shall be clean and dry before the waterproofing is applied, and no waterproofing shall be done in wet weather or when the temperature is below 32 D.F. Only men experienced in the application of this class of material shall be used. To the clean dry wall shall be applied one or two coats of a suitable primer. A mop coat of hot bituminous material shall then be applied, and to this shall be cemented while hot the first layer of felt or fabric. This shall be immediately mopped with hot bituminous and the additional layers then applied, cementing each layer and finishing with a heavy mop coat of bituminous material. The layers of fabric must be properly lapped or ‘shingled.’ The alternate materials to be used will be: (a) Two (2) plies of heavy cotton drill fabric; (b) four'(4) plies of wool felt; (c) four (4) plies of asbestos felt combined with one (1) ply of burlap or cotton fabric. Where felt and fabric are used in combination, the fabric must be given a sufficient lap to develop its strength. The joint at the top of the membrane shall be carefully calked with oakum or felt.
“73. Mop Coat. Above the membrane the concrete shall be protected by a mop of bituminous material. One or two coats of primer shall be applied as specified for the membrane waterproofing. Over this shall be mopped two coats of hot bituminous material of a suitable quality and ductility.
“74. Lining. After the waterproofing is in place, it shall be protected by a lining, which shall be a wall of hard burned No. 1 common brick one course thick; a poured concrete wall, four inches (4 in.) thick, and reinforced with a wire mesh weighing not less than 45 pounds per 100 square feet; or a two and one-half inch slab of ‘gunite’ with reinforcing as specified for the poured wall. Extreme care shall be used not to damage the waterproofing, and any damage done shall be immediately repaired. There shall be a mortar joint not less than one-half inch thick between the waterproofing and the brick wall. No construction methods may be used which tend to damage the waterproofing or prevent inspection immediately before it is covered up by the lining.
“99. Guarantee. The contractor shall guarantee the work aginst any defects of material or construction for a period of one year from the date of acceptance, as hereinafter provided in the contract. The tank shall be watertight when completed and shall not during the year show any leaks attributable to defects in material or workmanship.
“104. The contractor shall have charge of and be responsible for the entire improvement for which construction he has contracted until its completion and acceptance. He shall -also be held liable for any defects of material or workmanship, or both, which may appear within one year following the completion of the work.
“114. Bonds to be Executed. The contractor agrees to execute a bond in the sum of sixty-five (65) per cent of the contract, with such sureties as shall be approved by the city, running to the city as a guarantee (a) for the completion of the work in strict accordance with the detailed plans, specifications and contracts; or any improper materials used in its construction, or by or on account of any act or omission of the said contractor or of the contractor’s agent or agents. _
“122. Abandonment, Assignment and Loss of Control of Contract. It is further agreed by the contractor that if the work to be done under this contract shall be abandoned, or if it shall be assigned so that the contractor loses control of the work; or if the rate of progress is not such as to insure its completion within the time specified . . . The cost of doing such work shall be charged to said contractor and the expense so charged shall be deducted and paid by the city out of such money as may be due, or that any time thereafter may become due the contractor, under and by virtue of this contract or any part thereof.”
There was evidence that “at the time the bid was- opened, the defendants stated that this waterproofing (Ferro-tite) was proper for this kind of a job — would be satisfactory. ...”
“A. They were to make it water-tight.
“Q. What is that? A. Make it water-tight.
“Q. They said that? - A. Yes, sir.
“Q. Which one of them? A. I couldn’t say. That has been a long time ago.
“Q. They were both present? A. They were both present, Stucker and Strachan.
“Q. It' was said in their presence or their hearing, of the Stuckers? A. It was before the commission.
“Q. Before the commission? A. Yes, sir.
"Q. All three commissioners were there? A. Yes, sir.
“Q. And Mr. Learned was there? A. Yes, sir.
“Q. What more did they say about what Ferro-tite would do? A. Make it water-tight.”
Another witness testified substantially that the Ferro-tite people came to make it water-tight, and announced December, 1921, that they had it completed. The tank was filled with water about the first part of January, 1922. After it was filled it was found not to be water-tight; water came out of it all around clear down to the ground. The Ferro-tite people did some more work in the spring of the following year and put on a second application. After the second application had been put on they filled the tank. It still leaked. In the following fall they came back, went inside and put on burlap strips. It was filled with water again but still leaked. The Ferro-tite people did no more work on it. On January 3, 1923, at a meeting of the city commissioners, the Ferro-tite people were present. All parties were notified. The Contract Waterproofing Company and the defendants Stucker, Stucker and Strachan were present. The Ferro-tite people were present by their attorney, who stated that the expansion was too great, that their process would not hold and put the blame on the tank. The Ferro-tite people did no further work. Plaintiff notified them they must do something immediately or it would, so plaintiff advertised for new bids and let contracts to the Johns-Manville Company and to Gus Webb. Witness identified certain exhibits, the bids of the H. W. Johns-Man-ville Company and Gus Webb which were offered in evidence and refused by the court “on the ground that they were incompetent as there is no guarantee on the part of the contractor that the standpipe would be water-tight; their guarantee simply going to the material and workmanship.”
Another witness testified that he recalled the meeting of January 3, 1923; that he remembered the Ferro-tite people having stated they could not waterproof the tank with their process and was satisfied from that date that the waterproofing company could not make the water tank water-tight by that process. Another witness testified that the defendants did not want to go ahead and finish the standpipe, and suggested to the plaintiff that it take the proposition over because if the contractors (defendants) went ahead they were afraid it would create a liability on their part and they did not care to pay the Contract Waterproofing Company for a job it had never completed and that had not been made good; that Stucker said he believed the Contract Waterproofing Company had done all it knew how in respect to waterproofing this tank, and it would be better for the city to complete the waterproofing and pay for it out of the balance of the money that was retained on their contract and that they (defendants) had not paid the Contract Waterproofing Company any money on their contract, and did not intend to until they had waterproofed the tank; that no demand has been made on the city to pay the balance held by the city on the Stucker contract to the defendants when contract was completed, nor has any bill ever been presented or rendered by defendants to the city.
Considerable evidence was erroneously excluded, but enough was received to show that defendants themselves expected to make the tank water-tight. We are of opinion that the terms of the written contract were sufficiently clear to show that it was the intention of the parties to obtain a definite result; that the waterproofing should make the tank water-tight. The contract provided that such a result was to be obtained by using the method outlined in the specifications or any one of several different methods of waterproofing to be approved by the engineer and the specifications furnished by the contractor. When the principal object'of a contract is to obtain a result, there has been no compliance with the contract until the result has been obtained.
“Where the contract contains a guarantee or warranty, express or implied, that the builder’s work will be sufficient for a particular purpose, or to accomplish a certain result, unless waived by the owner, the risk of accomplishing such purpose or result is on the builder and there is no substantial performance until the work is sufficient for such purpose or accomplishes such result."-(9 C. J. 745.)
There was evidence showing the efforts of the defendants to comply with the provisions of the contract to make it water-tight, of their failure so to do and their suggestion to the city that it take over the job and complete it, and there was evidence of plaintiff’s damage and performance of all requisites entitling it to recover. Under the circumstances, it was error to sustain a demurrer to plaintiff’s evidence. (Rowan v. Rosenthal, 113 Kan. 604, 215 Pac. 1008; Prewitt v. Sholl, 120 Kan. 158, 242 Pac. 149; Lindenbaum v. Kamen, post, p. 775.)
The defendants in several ways question plaintiff’s right of review. It is contended that while plaintiff filed a motion for new trial and while one of its specifications of error is the overruling of the motion for new trial, the motion was not brought up and the notice of appeal did not specify the overruling of the motion for new trial as a basis of appeal. It is also contended that this court cannot review error based upon the exclusion of evidence because plaintiff produced no evidence on the hearing of the motion for a new trial. The various contentions are not controlling. The rule invoked (R. S. 60-3004) with reference to excluded evidence does not apply where the evidence is documentary because the trial court is already informed as to the character and admissibility as fully as it could be by affidavit or oral testimony. (Winkler v. Korzuszkiewicz, 118 Kan. 470, 235 Pac. 1054. See, also, Treiber v. McCormack, 90 Kan. 675, 163 Pac. 268; Bank v. Seaunier, 104 Kan. 7, 178 Pac. 239.) Error predicated on the exclusion of evidence where there has been no verdict, report or decision but where the case comes to this court on an appeal from an order sustaining a demurrer to the evidence, is reviewable. (Wagner v. Railway Co., 73 Kan. 283, 85 Pac. 299; State Bank v. McBride, 115 Kan. 51, 222 Pac. 141.)
It appears unnecessary to discuss other questions raised in the briefs.
The judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to quiet title to a lot in Kanorado. The defendant prevailed and plaintiff appeals.
Trial was had on an agreed statement of facts and certain oral testimony. Plaintiff held title through mesne conveyances from one Moseby, patentee. The patent was dated July 19, 1889, and recorded May 23,1911. The defendant held title through mesne conveyances from the holders of two receiver’s receipts both issued by Tulley Scott, receiver of the United States land office at Oberlin, the first to F. M. Crom, guardian of Martin Yocum, sole heir of William Yocum; deceased. It was dated June 5,1888, recorded June 7, 1888. The land was conveyed by Crom, as guardian, to Libbie M. Rule and John E. Rule, her husband, June 15, 1888. They conveyed an undivided 51 per cent of the land to the Kansas Town and Land Company, the deed being recorded June 23, 1888; on January 7, 1889, a second receiver’s receipt was issued to George B. Stevens conveying the same tract of land. This receipt was recorded January 9, 1889. On February 9, 1889, a deed was recorded from Stevens and wife to one Jillson, trustee. On February 27, 1889, Jillson, trustee, conveyed by warranty deed to the defendant, Libbie M. Rule, 49 per cent of the land of which the lot in controversy is a part. On July 5,1888, the Kansas Town and Land Company, Libbie M. Rule and her husband dedicated and platted their respective interests. On November 21, 1892, the Kansas Town and Land Company conveyed to the defendant its undivided 51 per cent of the lot in controversy, and other lands, the deed being recorded July 6, 1893.
The plaintiff contends that no title ever vested in the defendants or their grantors through the receiver’s receipt; that the various conveyances to defendants and their grantors were executed ahd consummated while the land in question was still government land; that defendants and their grantors were simply trespassers upon public land; that they acquired no title and no rights before or after the issuance of the patent to John M. Moseby. Plaintiff’s contention is not sound. The registry of the original homesteader’s final receipt is sufficient basis for title. (R. S. 60-2865; Weeks v. White, 41 Kan. 569, 21 Pac. 600; Buchwalter v. School District, 65 Kan. 603, 67 Pac. 831; Spaeth v. Kouns, 95 Kan. 320, 148 Pac. 651.)
There was evidence showing that the defendants and the Kansas • Town and Land Company entered upon the land, surveyed it into lots, streets and alleys. Such entry was visible, actual and hostile to the right of the patentee Moseby. There was evidence that the defendants exercised possession and dominion over the property by going upon it and offering it for sale and that they paid the taxes thereon. Their title was not questioned until Moseby quitclaimed whatever interest he had in the land by virtue of his patent, May 23, 1911. Adverse possession had been taken by defendants July 5, 1888, and while such possession may be said to have been meager it was sufficient to start the running of the statute of limitations, which was not interrupted by any act by the plaintiff or his grantees during the fifteen-year period which expired July 5, 1903. (See R. S. 60-304, 4th clause; Anderson v. Burnham, 52 Kan. 454, 34 Pac. 1056; Dickinson v. Bales, 59 Kan. 224, 52 Pac. 447; Finn v. Alexander, 102 Kan. 607.)
There was evidence that plaintiff began paying taxes on the lot in controversy about 1908; that he paid other taxes in subsequent-years ; that he took actual possession of it about the time of the recording of the patent and the deed to him in 1911 and that he built a fence on one side of it in 1916 or 1917. There was also evidence that the defendants paid the taxes of 1922, and that the fence mentioned was not on the lot in controversy. While the possession of plaintiff under claim of ownership was adverse to the rights of the defendants, it was not open, notorious and exclusive for a sufficient length of time (15 years) to ripen into title. Other than as stated, it would serve no useful purpose to detail the evidence. The final receipts on which defendants and their grantors based their title, together with the actual possession of the property originally assumed by them, ripened into a good title which was not afterwards cut off by the recording of the patent and the assuming of possession by the plaintiff.
Various questions are raised, all, however, pertaining to the questions discussed. The record discloses no error.
The judgment is affirmed.
Harvey, J., dissenting. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment sustaining a demurrer to an intervener’s petition in a case which had been brought under the workmen’s compensation act.
The purpose of the intervention was to fasten liability on defendant for an attorney’s fee in the compensation case because it had been settled by personal negotiations between plaintiff and defendant without regard to intervener’s claim to a lien on the proceeds of any judgment or settlement effected in favor of the plaintiff workman.
It appears that in 1913 John Polensek, an employee of defendant, was injured in a coal mine, and defendant promptly began to pay him compensation therefor, which periodical payments continued for several years until February 26, 1921, when defendant offered Polensek $500 in full and final settlement of all his lawful demands against it. This offer was refused, and on March 24, 1921, an action was begun to recover a claimed balance of $2,359 still due plain tiff for compensation. In the action Thomas W. Clark was employed as attorney by plaintiff under a contract whereby Clark was to receive as his fee one-third of any sum recovered by settlement or suit and judgment. No pleadings were filed by defendant. Attorney Clark served written notice on J. J. Campbell, designated in such notice as defendant’s attorney of record, of his claim to an attorney’s lien. This notice was served on Campbell April 4, 1921, the sheriff certifying that he delivered a copy of it “to J. J. Campbell, lawyer for the defendants.” Campbell was not then the defendant’s attorney of record, nor does the record show that he was a regularly employed salaried attorney of the defendant. Three days later, on April 7, 1921, plaintiff and defendant effected a settlement of their controversy by the payment of $1,200, and plaintiff’s verified receipt and acknowledgment was filed with the clerk of the district court April 19, 1921.
On January 11, 1923, Clark filed in court a verified application for leave to intervene in the action (which had not been formally dismissed notwithstanding the settlement effected between the litigants some twenty-one months previously), and in.his application Clark alleged:
“That he claims an attorney’s lien in the above entitled action, and for a final determination thereof should be made a party thereto.
“That intervener has no other way of having an adjudication of said cause and matter, except by intervening herein.”
J. J. Campbell acknowledged service on January 11, 1923, of a copy of this application to intervene, and signed it as attorney for defendant.
On March 27, 1925, Clark’s application to intervene was granted over the objection of defendant’s attorneys, Messrs. Pingry, Nulton & Stevenson, and on March 28, 1925, the intervener’s petition was filed. It alleged his employment by plaintiff John Polensek on February 21,1921, to commence suit or effect a settlement with defendant for the amount yet due plaintiff as compensation; that he immediately attempted without success to settle the controversy with defendant, and accordingly filed the action on March 24, 1921 ; that at the same time he filed his lien as attorney and caused it to be served upon J. J. Campbell, attorney for defendants, on April 6, 1921. Intervener also alleged that defendant was thereby advised of the conditions of his employment, .but nevertheless defendant settled its controversy with plaintiff for $1,200, whereby defendant became indebted to the intervener, under the terms of his employment as attorney and under his attorney’s lien, in the sum of $400.
The defendant demurred to the intervener’s petition on various grounds — improper joinder, no cause of action stated, settlement effected and plaintiff’s claim satisfied before the intervention of appellant, and the statute of limitations.
This demurrer was sustained and the intervener appeals, and argues with considerable force and cleverness that none of the grounds of the demurrer was well founded. However, the one based upon the failure of the intervening petition to state a cause of action raises the main and controlling question, and we will direct our attention to it. A demurrer raising that point searched the entire record. The service of notice of the intervener’s claimed lien for attorney’s fees on April 4, 1921, upon J. J. Campbell was ineffective. So far as shown by the record, Campbell was not at that time a regularly employed salaried attorney for the defendant, upon whom such claimed lien might be served under the statute (R. S. 7-108), nor was he attorney of record upon whom such service might be effected under the rule announced in Alexander v. Clarkson, 100 Kan. 294, 164 Pac. 294, syl. ¶ 5. Later, on January 11, 1923, J. J. Campbell as attorney for defendant acknowledged service of a copy of appellant’s application for leave to intervene, and that is the first time Campbell did anything in connection with the case as attorney of record or otherwise; but whatever significance might otherwise be given to such service of notice of leave to intervene, it was altogether ineffective to found a lien on a sum of money which had been paid in full settlement of the pending lawsuit one year, nine months and • four days prior thereto.
Appellant’s case simply comes to this: His claimed lien failed because it was not perfected in compliance with the statute ere the defendant had parted with its money in satisfaction of plaintiff’s demand. Appellant therefore could not prevail. (Ahalt v. Gatewood, 109 Kan. 328, 198 Pac. 970.) Other questions of law raised by the demurrer and argued in the briefs of counsel need no discussion.
The .judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover on the bond of a receiver of an insolvent bank. A demurrer to plaintiff’s petition was sustained and he appeals.
The plaintiff alleged in substance that the Citizens and Farmers State Bank, then engaged in a general banking business at Arkansas City, was taken over by the bank commissioner August 18, 1910; that the defendant Jeffries was appointed receiver, executing bond for $20,000, signed by the other defendants as sureties; that Jeffries in the course of his duties as receiver collected $3,800 from one Rowan in 1922 for oil stock purchased by Rowan from Jeffries (receiver) and that he (Jeffries) collected from various other parties, including plaintiff, sums aggregating $2,500; that he converted to his own use funds due the depositors of the insolvent bank to the amount of from one to two thousand dollars; that he filed a report in the district court of Cowley county in November, 1922 or 1923, disclosing the sum. of $100 in his possession, which he claimed as attorney’s fees; that it was later ascertained that this report was untrue and the defendant was ordered to make a new and correct report, which he failed to do; that an order of contempt was issued against the defendant but was evaded by him, and that about June, 1925, the court set aside the defendant’s report; that there is due plaintiff as a depositor, on a first cause of action, $64 and on a second, $179.41, by assignment from L. W. Burnett, another depositor. A copy of the bond was attached to and made a part of the petition.
The defendants Denton, Brown and Kroenert demurred on the ground that there was a defect of parties plaintiff; that the plaintiff had no capacity to sue and that the petition did not state facts sufficient to constitute a cause of action.
The plaintiff’s petition did not allege the filing and proof of his claim, that it had ever been allowed or rejected or demand made upon the receiver therefor, or whether it might ever have been reduced to judgment. It alleged that certain moneys had been wrongfully converted to the use of the defendant Jeffries; that certain other moneys had been misappropriated on the claim that they were attorney’s fees. If such allegations w'ere true, the funds so converted to the use of the defendant, Jeffries, and the funds misappropriated as attorney’s fees belonged to the estate or the fund from which all depositors were entitled to a part. The petition failed to allege that the claimed conversion and misappropriation of funds had ever been called to the attention of the bank commissioner or the representatives of the state. It failed to allege that any demand had ever been made upon the receiver or the bank commissioner for plaintiff’s proportionate part of the funds so converted and misappropriated. The bank being in an insolvent condition, was taken charge of by the bank commissioner in 1910. Under the statute (R. S. 9-130, 9-204) he proceeded to wind up its affairs. In such process, he appointed a receiver (Jeffries). Provisions of the same statute were considered in Labette County Commissioners v. Peterson, 118 Kan. 560, 235 Pac. 848, where it was said that,
“The statutory scheme of bank supervision appears to have been constructed on the idea of plenary power in the bank commissioner, to take charge of all the affairs of an insolvent bank and unhampered by the interference of other authorities, to liquidate its assets and pay its depositors and other creditors. Discretion as to methods and agency for reaching this end is therefore largely vested in the commissioner.”
In Jeffries v. Bacastow, 90 Kan. 495, 497, 135 Pac. 582, it was said:
“The person spoken of as ‘receiver’ might just as well have been called a special deputy bank commissioner. Before insolvency the management of a bank is placed by law in the hands of a body of men, created by statute, designated a board of directors, who act under the supervision and in many respects under the control of the bank commissioner. Aftere insolvency, and in certain other contingencies, this management is exercised by a single official chosen by the bank commissioner, who is called, for convenience and by analogy, a receiver.”
The facts alleged in plaintiff’s petition, if true, should have been laid in some appropriate form before the bank commissioner and allegations of such action together with other essential allegations showing failure to obtain relief would have stated a cause of action against the receiver and his bondsmen. The powers of a court of general jurisdiction to make judicial inquiry touching the dissipation of a bank’s assets by or through a receiver is a proper proceeding when the basic antecedent steps have been taken. (Labette County Commissioners v. Peterson, supra.) The allegations of plaintiff’s petition in the instant case were insufficient.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Harry Saunders was brought before a justice of the peace under the portion of the code of criminal procedure relating to proceedings to prevent the commission of offenses (R. S. 62-201, 62-203), and upon the taking of evidence was bound over to the district court. A hearing was there had at which Saunders testified in his own behalf. The present action was brought charging him with having committed perjury in the course of that testimony. He was convicted, and appeals.
The testimony which is relied upon as constituting perjury, and which for the present will be assumed to have been given by the defendant at the hearing of a surety of the peace proceeding in the district court, was in the form of questions and answers as follows:
“Q. Did you at that time make any statement about cutting anyone up? A. No, sir.
“Q. If they didn’t quit accusing you of those things? A. Not that I remember of.
"Q. You would know if you said it? A. I didn’t say it.
“Q. (By the court.) Did you make any threats about doing anything to Mr. Miller? A. No, sir.
“Q. (By the court.) At that time? A. No, sir.
“Q. (By the court.) Did you ever? A. Never did.”
1. For the defendant it is contended that the evidence did not support a conviction, one of the grounds relied upon being that there was' no evidence that any threats testified to as having been made by the defendant were spoken by him with reference to Miller. One witness for the state gave this testimony1:
“He said, ‘I am going to cut that son-of-a-bitch up some of these days in such shape he cannot be sewed together any more.’
“That is what Mr. Saunders said? Yes, sir.
“Who did he say that about? Mr. Miller.”
Another’s testimony with regard to the same conversation included this:
“He said he was going to cut this man, Wendle Miller, up so he couldn’t be sewed together any more.
“His exact words were, T am going to cut Wendle Miller up so he cannot be sewed together’? That in substance.
“Is that what he said? He said that son-of-a-bitch.
“Did he use Wendle Miller’s name? Yes.
“His name was in there? Yes, sir.
“Would you just make that statement again. Just his words, his words exactly? Well, he was talking about Wendle Miller and he said, ‘I am going to cut that son-of-a-bitch up so he cannot be sewed together any more.’
"He didn’t say, T am going to cut Wendle Miller up’? He was talking about him.
“Is that what he said? He made that threat.
“Did he leave Wendle Miller out? He was talking about Wendle Miller when he said it, T am going to cut that son-of-a-bitch up.’
“He didn’t say I am going to cut Wendle Miller up? No, not like that.”
In the defendant’s brief the statements of the witnesses that the words were spoken of Miller are characterized as mere opinions. We see no difficulty in a witness stating as a fact, from his knowledge of the context — the other portions of the conversation in the course of which it occurred — to whom the speaker referred.
A further contention of the same character is that no showing was made as to the time when the threats were claimed to have been made. One witness said it was in the first part of November, 1925, the place being described. In some situations the exact time might be material, but the broad denial of the making of threats with respect to Miller at any time makes it unimportant here. There is nothing in the record to suggest any prejudice from the omission to fix more definitely the time of the utterance of the threats. It is true, however, that the phrase “at that time” in the first question'in the part of the defendant’s- testimony on which the prosecution is based was shown to refer to threats which Miller testified the defendant had made against him, but which are not shown anywhere in the record, Miller not having been a witness in this case.
2. A final reason advanced for holding the state’s proof insufficient is that not all the statements included in the testimony of the defendant on which the prosecution is based were shown to be false. It has been said: “If . . . the indictment is in one assignment, failure to prove all the statements substantially as alleged is fatal to the prosecution.” (30 Cyc. 1452.) This rule has been applied in somewhat extreme cases. (Welch v. The State, 88 Tex. Crim. Rep. 346; People v. Senegram, 27 Cal. App. 301.) Whatever its force generally we think it is not substantially violated here. The defendant had testified that he had never made any threats to do anything to Miller. The state produced evidence that he had said he would cut Miller up — this was the only form of threat-claimed to have been employed. If the jurors had ,not accepted this evidence as true they would not have convicted. If it was true •then every one of the defendant’s answers set out in the information was necessarily falsé. If he had threatened to cut Miller up he could not truly have said he had not made any statement about cutting anyone up. As already mentioned, the testimony of the defendant that he did not, at a time indicated, make any statement about cutting anyone up, referred to an occasion on which according to Miller he had made threats against him. The answer, “Not that I remember of,” becomes immaterial in view of the next reply: “I didn’t say it.” That practically amounted to a withdrawal of the plea of want of memory and an assertion that he remembered what took place and had not made the statement in question. It would be pressing the rule very far to hold the defendant could not be convicted without proof that he remembered making the statement, but in any event the evidence warranted the jury in finding that to be the fact.
3. The sufficiency of the information is attacked on the ground that it merely alleged that the defendant’s testimony in the peace bond case was false, without setting out the actual facts by way of antithesis. There is much authority that such pleading is bad (30 Cyc. 1437; 21 R. C. L. 268, note 10), but there is also considerable to the contrary, as shown in the Oklahoma case cited in the note just referred to, and in a note on the subject in 124 American State Reports, 671, where it is said: “Clearly, a direct and distinct allegation of the falsity of the matter is of the very essence of the indictment, but when the falsity is alleged in ordinary and concise language, with such certainty and in such manner as to enable a person of common understanding to know what is intended, the indictment should be sustained. Some of the courts have shown a most commendable disposition to take this view of the law, and to repudiate the extreme technical requirements further than is necessary to advise the defendant accurately with reference to the essential requirements charged.” (p. 674.) See, also, United States v. Freed, 179 Fed. 236; Blakey v. Commonwealth, 183 Ky. 493; Atkinson v. State, 133 Ark. 341.
The rule seems quite technical. -Whether or not it should ordinarily be followed we think in the present case the allegation of falsity is sufficient. The testimony of the defendant alleged to be false was essentially in the form of negative answers to questions asked, which were very simple and covered much the same ground. A situation may readily be imagined where the naked allegation that a statement was false would not fairly advise a defendant of the essence of the charge against him, but we do not regard that here presented as one of them. It is well said of the allegation of falsity: “It must particularize wherein the testimony was false, a general allegation that it was so not being commonly sufficient. While in some connection a short negative will satisfy this requirement, in others much amplification will be necessary.” (3 Bishop’s New Crim. Proe., § 919.) An excellent summary of what the law at least should be is: “The true rule is that while it is not sufficient merely to aver that the oath or affidavit was false, but it is essential that it must appear what the truth is, that requirement is met if the allegation that a certain statement is false necessarily implies that its converse is true, and necessarily implies what the converse is. A necessary implication is equivalent to an allegation in such cases.” (Loudermilk v. State, 110 Ark. 549, 554.)
'4. Complaint is made of the overruling of a motion to require the state to elect on which charge it would rely for a conviction. As we have already indicated we think the answers given to the several questions may fairly be treated as forming one statement — -a denial of having uttered threats. The point is much the same as that made in urging the failure to prove the falsity of all the defendant’s answers.
5. A final contention is that the evidence did not justify an instruction given by the court that the testimony on which the prosecution was based was material to the issue on trial when it’ was given. The state did not introduce an affidavit on which the inquiry before the justice of the peace was based, or a warrant issued thereon, or a transcript or other evidence of the proceedings had in the justice court in respect thereto, or the recognizance for the appearance of the defendant in the district court, so that there was an absence of any formal showing as to just what the issues were in the hearing in the course of which the perjury is alleged to have been committed. There was introduced, however, a transcript of all the testimony given by the defendant in a proceeding by the state against him, the character of which is not otherwise indicated. His testimony there given relates to controversy between himself and Miller and to conversations with others about it, and includes denials of making threats against him. It is shown to have been given in January, 1926, prior to January 11. The testimony on which the perjury charge is based is shown to have been given on January 4, 1926, but there is no direct evidence that it was given in the surety bond proceeding. That such is the case may seem probable from the unlikelihood of there having been more than one criminal proceeding against the defendant heard at about the same time, to which his testimony would have been pertinent. This, falls short, however, of the certainty required in felony prosecutions. Even if it be assumed that the proceeding in which the defendant’s testimony was given was one to bind him over to keep the peace, there would be difficulty in saying as a matter of law it was material to the issue. The question of materiality was not sent to the jury as one of fact to be determined by them, but as one conclusively settled by the court. The omission of the plaintiff to show, by record evidence or otherwise, what the issues were in the proceeding in which the perjury is alleged to have been committed, renders the instruction that the testimony was material fatally erroneous.
The judgment is reversed for a new trial.
Harvey, J., concurs in the order of reversal, but is of the opinion the defendant should be discharged. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action by the plaintiff insurance company against defendant by whose negligence it had to pay a policy of insurance covering a collision of automobiles. Plaintiff’s claim was based upon its subrogation to the rights of the insured.
The material facts were these: One A. L. Richardson had a Studebaker automobile which needed some overhauling and he took it to defendant’s garage and machine shop1 for repair. One of defendant’s employees took the car out of the workshop to test it and drove it at high speed along a street and road leading westward out of the city of Hutchinson. It collided with a Ford car at a street intersection, and the Studebaker was badly wrecked. Its owner, Richardson, held a policy of insurance protecting his car from collisions, which policy had been issued by the plaintiff insurance company.
The insurance company sent a representative to Hutchinson, who called upon the defendant and obtained from him an estimate of the cost of repairing the automobile, which sum defendant, after consulting with his expert mechanics, placed at $796. The insurance company then paid that amount to Richardson on the policy, one of the terms of which provided:
“Upon payment of any loss, damage, claim or expense under this policy, the company shall be subrogated, to the extent of such payment, to all rights of recovery of assured against others for such loss, damage, claim or expense, and the company shall be entitled, if it so desires, to institute, conduct and prosecute, in the name of the assured or in its own name, any claim of the assured for indemnity, damages or otherwise against any third party. The assured shall render all possible cooperation and execute all papers requested by the company to enable the company to secure all rights to which it may be entitled under this policy.”
Meantime Richardson and defendant effected a settlement of Richardson’s claim for damages caused by the negligence of defendant’s employee. By the terms of that settlement defendant gave Richardson a new car worth $2,415 for the damaged' car and $1,146 in cash. In consequence of this settlement, which defendant claimed to have made without notice or knowledge of plaintiff’s claim or right through subrogation, he denied liability.
Hence this lawsuit. The pleadings developed the foregoing facts and other more or less pertinent incidents; and a trial by jury pursuant thereto resulted in a verdict and judgment in favor of defendant.
Plaintiff appeals, and the first error urged on our attention is based upon “certain remarks and comments” of the trial judge in the presence of the jury, “which indicated his opinion that the plaintiff should not recover and which were prejudicial to the plaintiff.” In support of this specification of error, plaintiff directs our attention to cited pages of the abstract which show that the judge took part in the examination of a witness to develop the facts touching the range of vision of the drivers of the automobiles as they approached the point of collision. Again, while counsel for appellant sought to elicit from a witness his estimate of the speed at which the Studebalcer car was being driven from the sound, the record reads:
“[Counsel foe Plaintiff] : It was the impression you got — ”
By the Court: Impressions don’t go. . . .
“Q. Was it shortly after the car passed you, the roar stopped; is that the way you wish us to understand it?
“By the Dependant: We object to that as incompetent, irrelevant, and immaterial and leading.
“By the Court: Yes; it wouldn’t help us any in the case to know when the roar stopped. He mightihave shut off the muffler or something. . . .
“Q. Then the car passed you two and one-half blocks before it had this collision at Van Burén and Second?
“By the Court: He didn’t say that. He said it is two and a half blocks to the railroad track.
“A. No, sir; I beg your pardon.
“By the Court: How far is it to the railroad track? A. Well, it must be about a block and a half. Just a little over a block and a half. . . .
“Q. Did you notice his actions at all?
“By the Defendant: We object to that for the reason that it is too remote.
“By the Court : Sustained, exception allowed.
“Q. You say you didn’t observe what the driver was doing when he passed you? A. He was going pretty fast.
“By the Defendant: We object to the question. We object to that question, and the question and the objection was sustained.
“By the Court: Yes; the objection has been sustained twice to that question. Exception allowed. What a man is doing in driving a car two blocks away wouldn’t cut any figure as to what he was doing when the accident happened. Exception allowed. . . .
[Counsel for Plaintiff] : “We wish to show by this witness what the
driver of the car was doing at the time he passed him, which was two and one-half blocks from the intersection where the accident occurred.
“By the Court: Unless it was something that was presumed would be continued the whole time, you couldn’t get it in. I don’t know what you are trying to prove. He said he didn’t observe what he was doing.
“By the Witness : I was mistaken if I said I didn’t observe what he was doing. I didn’t testify I didn’t observe what he was doing.”
When defendant was on the witness stand his counsel sought to develop the fact that defendant’s employee who wrecked the insured car was a careful driver. The record reads:
“Q. Had he ever on any previous occasion ever been in any kind of accident or had any kind of a collision during the time that he was adjusting other cars prior to this time?
[Counsel for Plaintiff] : “We object to that as incompetent, irrelevant and immaterial.
“By the Court: Sustained. That is presumed. They don’t claim he ever did. The presumption is this is his first accident and that he was a careful man and everything.
[Counsel for Defendant] : “I was just trying to show due care on the part of Mr. Clark.
“By the Court: The presumption is he exercised due care. They don’t claim he wasn’t a careful man; they don’t claim he was a negligent man in any way. Exception allowed.”
It is appellant’s contention that these excerpts from the record disclose an unfavorable attitude on the part of the trial judge whereby plaintiff’s rights were prejudiced in the action. Appellant concedes that the trial court “acted absolutely conscientiously in this matter,” but “simply had the idea to start on that the plaintiff should not recover, and stuck diligently and consistently to this from the examination of the first witness to the giving of the last instruction.”
There are obvious limits to the scope of an appellate review. The mannerisms of the trial judge, the atmosphere of the court room, the decorum or want-of it which pervades a trial — these and many attitudes and incidents which exist or transpire in the course of the trial cannot be reproduced in the record (State v. Stockton, 119 Kan. 868, 872, 241 Pac. 688) and in the very nature of things can seldom be reviewed and redressed by an appellate court. (Fowler v. Shaw, 119 Kan. 576, 590, 591, 240 Pac. 970.) However, mere regard for the feelings of the trial judge will not excuse counsel from making timely objection to improper remarks of the trial court, nor will deference to his judicial position relieve them from their duty to direct the trial court’s attention thereto, respectfully but frankly, in the motion for a new trial, and thus give the trial judge a fair chance to consider and correct, where necessary, any harsh, partial or prejudicial rulings or remarks he may have committed in the course of the trial. Unless this course is candidly and courageously followed, it is useless to bring such matters to this court for review. In Brick v. Fire Insurance Co., 117 Kan. 44, 45, 230 Pac. 309, it was said:
• “The purpose of a motion for a new trial is to give the court an opportunity to reexamine rulings made in the course of the trial and to correct any errors in the proceedings, so that parties may avoid the trouble and expense of having them corrected on appeal. How could the court reexamine and correct a ruling unless the party called attention to the particular one to which objection was made and the statement of the grounds of his objections: It is manifest that no specific ruling was brought to the attention of the trial court in the submission of the motion, and that it has had no opportunity to reconsider any objections or errors which might have been assigned as grounds for a new trial. Rulings of which a review is desired, whether or not they constitute grounds for a new trial, should be clearly pointed out to the court, and when this is not done they will as a general rule be deemed to have been waived.”
So far we have discussed this point as if there might be some merit in this specification of error if it had been properly brought to the trial court’s attention before bringing it here for review. But we must add that from our detached and neutral viewpoint the excerpts from the record as quoted above disclose nothing of consequence for appellant to complain of under this particular assignment.
Error is also assigned on this instruction:
"... Only in cases where the injury and damage is the proximate result of negligence can there by recovery under the law, and in this case if you find that the collision was a mere accident, and not caused by the negligence of Parker, but was the fault of the driver of the Ford, then you will find a verdict in favor of the defendant.”
Parker was defendant’s mechanic who drove the Studebaker car at the time of its collision with the other car, the Ford mentioned in the instruction. Plaintiff argues that the Ford driver’s carelessness, if any, “would not have affected plaintiff’s right to recover in this action.” On the contrary, it should have a very decided effect upon this lawsuit. If the collision was due to any other cause than Parker’s negligence, neither plaintiff as subrogee of Richardson nor Richardson himself would have had any claim against Parker’s employer for the wreck of the Studebaker car; and one proper way of defending against this action, if the facts would permit, was to show that the collision was the fault of the Ford driver and not of Parker. The criticized instruction was quite correct.
Similar fault is found with other instructions given by the trial court. These have been examined. They were not inaccurate statements of law pertinent to the issues, but it is needless to set them out here.
Other assigned errors are argued together, and in substance the complaint therewith is in the admission of evidence covering' the matter of Richardson’s settlement with defendant for the .negligence of Parker which wrecked the Studebaker car. It seems to have been plaintiff’s theory of the case that defendant’s settlement with Richardson had no bearing on plaintiff’s subrogated claim against defendant. If such indeed was plaintiff’s theory of the case, it was in error. ' Its claim against defendant drew its only virtue, if any • it had, from its contract with Richardson. It received from Richardson by subrogation, by express or implied assignment, whatever right of. action for damages Richardson had against Parker’s employer, this defendant. If Richardson settled with defendant whatever claim he had against the latter, there was an end of defendant’s liability. We might have an altogether different case to consider if defendant had known of plaintiff’s claim through subrogation to the rights of Richardson before defendant settled with Richardson. There was such an issue of fact in this lawsuit, but it was settled by the jury in favor of defendant; and there was no want of testimony to support that finding implied in the general verdict; and the fact that some rather persuasive testimony was adduced tending to show that defendant had been notified by the plaintiff’s agent of its claim through subrogation after it had paid Richardson and before defendant had settled with Richardson is of no consequence since the jury’s general verdict discredited that testimony. . Plaintiff’s grievance is not justly directed towards defendant. It should look for redress to Richardson who apparently sacrificed its rights in settling with defendant for his claim for damages, which claim he had theretofore assigned to plaintiff by virtue of the terms of the insurance policy.
No prejudicial error of sufficient gravity to disturb this judgment is called to our attention. The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Johnston, O. J.:
D. P. Fleeger brought an action in Kingman county to recover $800 from J. C. Swift and nine others, alleged to be due for pulling casing from a test well which had been drilled in that county in an exploration for oil. None of the defendants named resided or could be summoned in Kingman county. Five of them were residents of Missouri and five of them resided in Kansas, four in Finney county and one in Kearny county. Plaintiff procured the issuance of an order of attachment, which was levied on casing alleged to be the property of the defendants. The ground for the attachment was that Swift and four others of the defendants were nonresidents of Kansas. Plaintiff undertook to obtain service on the Missouri defendants by publication, and then caused summons to be issued and served on the Kansas defendants in Finney and Kearny counties. Later the Kansas defendants made a special appearance and moved to quash the summons upon the ground that the only service made on them was in a county other than Kingman, that no valid service had been made on any of the defendants in Kingman county, either personally or by publication. This motion was sustained, and from the ruling an appeal was taken, which is No. 26,525.
Fred Mims, one of the defendants, interpleaded in the case as receiver, setting forth that he claimed the property in the capacity of receiver. He alleged that on April 10, 1923, in an action brought by another against the defendants named in this case, the district court of Finney county appointed him as receiver of property, including that involved here, and that under the appointment he took possession of the casing sought to be attached in the instant case; that the property was then in the jurisdiction and control of the district court of Finney county, and for more than a year had been in the control of it by and through its receiver, and was therefore not subject to seizure by attachment.
In answer to the interplea the appointment and qualification of the receiver was conceded, and that the receiver was ordered to take possession of the property in question was not denied, but plaintiff alleged that he claimed a lien on the property for work done in pulling the casing. On the presentation made the trial court determined that the property attached was in the custody of the law and within the jurisdiction and control of the district court of Finney county long before the attachment levy, and therefore refused to go further in the case. The order was a dissolution of the .attachment and dismissal of the cause. The trial court ruled correctly in holding that the plaintiff had no right to interfere with the possession of the receiver. It appeared that the court of Finney county had jurisdiction to appoint a receiver. The right to the possession of the property involved in that action passed to the receiver, and such possession as was practical was taken by the receiver. The receiver is an officer and árm of the court. His possession is in fact the possession of the court and the property so taken is regarded as in the custody of the law, to be held for distribution among those shown to be entitled to the property or fund. The possession of the court is deemed to be exclusive, and no one may interfere with that possession without leave of the court appointing the receiver. It has been determined thgjb property so brought within the control of a court of competent jurisdiction is not sub ject to seizure by attachment or garnishment process issued from another court. (Railway Co. v. Love, 61 Kan. 433, 59 Pac. 1072. See, also, Cramer v. Iler, 63 Kan. 579, 66 Pac. 617, 23 R. C. L. 69; 34 Cyc. 183, 231.) The court first exercising jurisdiction by appointing a receiver has the untrammeled right to control and administer the property or fund derived from it to the end, and if creditors or others claim liens or preferences they should apply to the court appointing the receiver for the protection of their rights. If the plaintiff has a lien upon the property as he contends, he is not without a remedy, as he can present that claim to the district court of Finney county, which has the custody and control of the property and which has jurisdiction to give all necessary relief. Plaintiff could acquire no right by attachment issued from another court nor any preferences over other creditors except with the sanction of the court having the custody of the property. The attachment and seizure of the property, therefore, was not only without right, but it constituted a contempt of the district court of Finney county.
By way of a cross appeal, Fred Mims, as receiver, contends that the court erred in not specifically ordering the release of the property to him as receiver. The judgment of the court was that the cause should be dismissed and the attachment levied be dissolved and the property released from the custody of the trial court. The dissolution of the attachment and the dismissal of the cause of action were based on the rule that the possession of the property seized was in the receiver. When the court decided that the property was in the custody of another court by and through its receiver, and that it should be released, it naturally followed that it was released to the receiver. It is of course the duty of the sheriff to surrender the possession of the property to the receiver, but it is hardly necessary to reconvene the court to specifically order the delivery of the property to the receiver, since that is really the purport of the order made. As plaintiff’s case rested on the right to attachment, and it appearing that the property was not subject to attachment, nothing remained except to dismiss the proceeding. That being the situation there is no occasion to consider the questions raised on the motion to quash, as they are no longer of importance.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Nellie R. Stroup was injured in a wreck caused by a motor car of the Northeast Oklahoma Railroad Company, in which she was a passenger, running into a car ahead of it, bound in the same direction, which had come to a stop while the other car was some two or three hundred feet behind it, going twenty-five or thirty miles an hour. She brought this action against the company to recover damages. A first trial resulted in a verdict for $37,000, which was set aside by the trial court on the ground that it was excessive “to the point that it indicated passion and prejudice on the part of the jury.” On a second trial a verdict was returned for $36,700. The trial court required a reduction of this to $30,000 as a condition of refusing a new trial. The remittitur was accepted by the plaintiff and judgment was rendered for that amount, from which the defendant appeals.
The case was submitted to the jury solely on the question of the amount to be allowed, no controversy being made as to the defendant’s liability. She was twenty-four years old at the time of the accident. She then weighed 180 or 185 pounds. She walked home from the car line unassisted, the distance being six or eight blocks. Immediate visible injuries included a cut on her forehead and one on her lower lip, and bruises, on the back of her head and on her shoulder. Following the injury she was extremely nervous, a condition that has continued. Her weight dropped to 136 pounds within a few months. A specialist in mental and nervous diseases from a later examination testified that she had a fracture of the third cervical vertebrae downward, a displacement in the other vertebrae next to it, and also a fracture of the second cervical vertebrae, and an impaction of the first and second vertebrae. He gave it as his opinion that she— ■
“Will never be able to do any work or concentrate her mind on anything or amount to anything either physically or mentally, and the probabilities are from her symptoms that she is manifesting, and from what the X-ray plates show, that she will never be right mentally, probably end her days in the insane asylum, or probably she will, in a few words, develop definite paralysis and become completely paralyzed, or death may intervene in the next few years. Those are the things that we find in far the majority of the cases of similar injury; . . . that her mental and physical weakness will continue throughout her life because of the accident she has received.”
There was other medical testimony in corroboration of this, and doctors called for the defendant contradicted it. One of them said:
“I did not find any fracture or break in the vertebrae. ... I found no evidence of fracture in the vertebrae of the plaintiff. ... I found no evidence of any impaction in the vertebrae. . . . This young lady it occurs to me is suffering with a type of hypnosis or hysterical condition as a result of suggestion. ... I do not find anything wrong with her physically. Her mental condition of course too is a type of hypnosis or hysteria. It shouldn’t be permanent. I think her condition will change materially when this lawsuit in question is settled, regardless of how it is settled, whether it is for or against her. I think the condition will immediately change. I think she will get better, I believe she will get well. I believe that this to some degree is a hysterical and mind condition somewhat induced by outside conditions and influences.”
These quotations are merely fragmentary but serve to show the. general character of the issues tried.
In an opinion given in overruling the motion for a new trial the judge said in explaining the setting aside of the first verdict:
“In the trial . . . several things occurred, one of which was that the plaintiff had been permitted to occupy a cot in the county attorney’s office right across from the court room in a position in which the jury frequently at least could have seen her if they didn’t see her lying on this cot and being taken care of by members of the family.”
In the course of the decision granting the new trial the judge had said:
“If the jurors or any of them did see what took place in there, and I refer now to the plaintiff lying on the cot surrounded by two or three ladies attending her, I am convinced that it was improper.”
In the second trial the plaintiff took the stand in her own behalf. The abstract shows these proceedings followed:
“My name is Nellie Stroup. I am the plaintiff in this action. I was on the back car when a collision occurred north of Miami on March 22, 1924. I remember getting on the other car that came out, that is the first thing that I remember. When I got down Miami I went to my home.
“Q. What, if anything, did you experience in the matter of feeling after that collision and as you were going home and when you got home, etc., that evening?! Take it along in the evening after you got home, what did you experience that was unusual to you? A. Well—
“Q. Did you have any pain? Did you have any pain, Miss Nellie? You must try and contain yourself now. Just state to the jury. Try and contain yourself. We want your testimony.
“By the court: Let the record show that at this time the witness, after having been asked the last question, began crying and manifested an apparent nervousness on the stand and this condition continued for a period of a minute or two and it was then requested by both sides that we take a brief recess, which was done. Let the record show further that as the jury was leaving the room the witness was assisted down from the witness chair by her mother and one of the attorneys for plaintiff.”
After an interval of about an hour and a quarter the defendant returned to the stand. Her attorney asked no further questions. A brief cross-examination followed, during which the plaintiff “manifested one of her nervous spells.” The cross-examination was stopped “for a moment or so, when she seemed to quiet herself again,” and then proceeded. A very brief redirect examination was followed by a still shorter recross-examination. “Just as this was being completed she again manifested another one of her spells and two members of her family carried her from the witness stand practically to the door of the court room and then sat her down on her feet and opened the door and they assisted her out of the door. This was in the presence of the jury.”
The defendant argues that a new trial should have been granted and that a reversal should now be ordered because the proceedings just related necessarily made such an impression on the jury as to bring about a verdict based upon sympathy for the defendant rather than upon the evidence. This argument is supplemented by the contention that inasmuch as the first verdict, for $37,000, was set aside as so excessive as to show passion and prejudice, consistency requires like action with respect to the second verdict, which was for only $300 less. The trial court was in a better position than we are to form a judgment as to the character and cause of the episode referred to and as to its probable effect on the jury. And we cannot be certain that the evidence at the second trial may not have been so different from that at the first as to justify a different conclusion concerning the amount of damages that should be awarded. Therefore these two matters in themselves afford no basis for a reversal. They are, however, of importance when considered in connection with the defendant’s principal contention, which is that a new trial should be ordered because the verdict was too large, and especially because it had not received the kind of approval by the trial judge which the statute contemplates.
The “spells” of the plaintiff while upon the witness stand, and the assistance given her in leaving it, would obviously make an appeal to the sympathy of the jurors difficult for them to resist unless they were “exceptionally discreet and fair-minded and strong-minded,” as has been said with reference to the probable effect of inflammatory language used in the argument of counsel. (A. T. & S. F. Rld. Co. v. Dwells, 44 Kan. 394, 24 Pac. 500.) Conduct of this kind could not properly be exhibited to the jury as a demonstration of her condition, and its inadvertent exhibition before them ought not to be allowed .to influence their verdict. The trial judge would be regarded as having held, upon better information than is available here, that it did not increase the amount awarded to the plaintiff, if he had given an unequivocal approval to the verdict. Such approval as he gave, however, was qualified by considerations shown by these excerpts from his opinion in overruling the motion for a new trial:
“We have now had two trials . . . and the jury in each instance has reached substantially the same conclusion. I still think that the verdict is too high — at the same time to say that the verdict is not supported by the evidence is going pretty strong. We must look at this from both points of view. I will say frankly that if I had been a member of the jury I would not have returned a verdict for an amount as large as this. At the same time, after hearing the testimony twice and observing the apparent condition of the plaintiff I would have voted to return a verdict for a veiy substantial sum. Just what amount should be allowed in cases of this kind is difficult to say. The evidence showed that the plaintiff was a young woman earning approximately $900 a year, and the evidence further shows and the condition of the plaintiff shows that she is undoubtedly in a deplorable condition at this time. Whether that condition will be permanent or not, as I said a moment ago, was the chief question before the jury. Two juries have apparently decided that they would take the plaintiff’s version of it. If the plaintiff ‘is permanently injured and that injury will remain substantially as it is now neither $36,000 or $36,000,000 would pay her back for the injury she has sustained. There can be no question about that. In other words, what I mean is, it is sometimes argued to juries — what would you take to have your wife or your daughter placed in the condition in which this person is now? Of course, nobody would take any sum. . . . ' Of course, in this case the plaintiff was not earning a great amount of money — $900 a year. The interest on $36,700 alone would pay her considerably more than she was able to earn, and she would always have the principal.
“The supreme court of this state has said that a verdict must be approved by the trial court. In at least one case they say that the trial judge sits as the thirteenth juror and the verdict must .be his verdict. I haven’t been able to understand that or, if I do understand it, then I don’t understand the value of a jury trial. I don’t understand what a jury trial means. If the verdict must be his verdict in other words, if the amount were too large or too small it must be the same amount that he would render if sitting on the jury, then what is the use of having a jury at all? I cannot see it. I dont believe that is what the court means. I believe that the court simply means that the verdict must be, in the opinion of the trial judge, well supported by the testimony in the case and by reason.
“Now, I will say that this amount that I have offered to approve, $30,000, I want to say this and I want it in the record, and then the supreme court can do what they want to with it, but I think it is fair to the defendant that this be put in. If I were sitting on the jury as one of the jurors I would not have voted for that much. As said awhile ago I would have voted for a very substantial amount, but I think it would have been something less than $30,-000. On the other hand, I think the evidence in the case fully and abundantly sustains and supports a verdict for this amount. That is, of course, I mean the evidence of the plaintiff which apparently the jury has. accepted, and I cannot say that a verdict for $30,000' would be so unreasonable that it should be set aside, therefore, I am saying that if the plaintiff will remit all in excess of $30,000, I will approve that amount and render judgment accordingly, otherwise, a new trial will be granted.”
It is doubtless true, as stated, that no one would voluntarily undergo the plaintiff’s injuries, if they are permanent, for 136,000,- - 000 or any other sum. But that is not a consideration to be taken into account in assessing her damages. The law does not undertake to compel compensation on that basis. If it did there would be no limit to the amount that could be exacted. The case is not based upon a claim of intentional wrong doing, and exemplary damages were not given or asked.
As suggested, this court has in a number of instances referred to the trial judge as a thirteenth juror. For illustration: “The saying that it takes thirteen to render a verdict has passed to an adage, but can mean nothing more than that, in cases where conflicting evidence raises a substantial and serious doubt in the mind of the trial judge of the correctness of the conclusion reached by the jury, he may interfere.” (Sovereign Camp v. Thiebaud, 65 Kan. 332, 337, 69 Pac. 348.) “This was peculiarly the sort of a case where the trial judge was bound to exercise to the fullest extent his judicial prerogative as the thirteenth juror.” (Vidich v. Benefit Association, 108 Kan. 546, 550, 196 Pac. 242.) “The reasons back of the policy of having the judge, in the familiar phrase, act as the thirteenth juror, apply in subsequent trials as well as in the first.” (Davis v. Central States Fire Ins. Co., 121 Kan. 69, 71, 245 Pac. 1062.) This language is attributed to Dean Wigmore: “To save justice from the consequences of using untrained jurors, there must be judicial control. The judge must be the thirteenth juror. If this feature is gone, jury trial becomes, as at Athens [when Socrates was tried], merely a system of mob justice.” (13 American Bar Association Journal, 51.) In a criminal case this court has said: “On appeal, it is of no consequence that before the jury rendered its verdict the trial court expressed serious doubt as to the sufficiency of the evidence to establish the defendant’s guilt; although if such doubt had persisted in the trial court’s mind after the verdict was rendered it would have been its duty to set the verdict aside and grant a new trial.” (State v. Frey, 111 Kan. 798, syl. ¶ 4, 208 Pac. 574.)
In an often-cited case the trial judge made this statement in overruling a motion for a new trial:
“I cannot say that the verdict of the jury in this case is not a fair average of the various estimates of damages stated by the witnesses; but it is an average, and seems to take no account of any differences in the ability of the several witnesses to judge of the matter. . . .
“The verdict in this case does not meet the approval of my judgment. It is, in my opinion, largely in excess of what would be full compensation to the owner of the land; but because, and only because, a jury in a former trial of this case gave a verdict but slightly larger than that now under consideration, and which I set aside as excessive, I let this one stand. There must be an end to the litigation some time, and inasmuch as twenty-four men have substantially agreed upon a rate of compensation, though greatly in excess of what my judgment can approve, it is possibly fair and proper that I should stand out of the way to a final determination of the controversy.” (K. C., W. & N. W. Rld. Co. v. Ryan, 49 Kan. 1, 3, 4, 30 Pac. 108.)
In reversing the decision this court said:
“It has been the unvarying decision of this court to permit no verdict to stand unless both the jury and the court trying the cause could, within the rules prescribed, approve the same. When the judgment of the trial judge tells him the verdict is wrong, whether from mistake, or prejudice, or other cause, no duty is more imperative than that of setting it aside and remanding the question at issue to another jury. While the case is before the jury for their consideration, the jury are the exclusive judges of all questions of fact; but when the matter comes before the court upon a motion for a new trial, it then becomes the duty of the trial judge to determine whether the verdict is erroneous. He must be controlled by his own judgment, and not by that of the jury.” (p. 12.)
Whatever difference of opinion there may be concerning the proper terms in which to describe the duty of the trial judge in his capacity as what is sometimes called the thirteenth juror, this much is clear — if he is to let the verdict stand he must approve it upon his own judgment and not upon that of the jurors. This does not mean that the decision of the jury is not to weigh with him in making up his mind, but the final decision must be his and not merely the acceptance of theirs. We do not regard the language of the trial judge in this case as showing such an approval. It is at most equivocal and doubtful. The tests it proposes of the conditions permitting an approval of a verdict are insufficient: that it is “well supported by the testimony in the case and by reason”; and that “the evidence in the case fully and abundantly sustains and supports” the verdict. These seem but little different from the test of what is necessary to. the sustaining of a verdict in an appellate court — that there shall be substantial evidence to support it.
“Where a motion for a new trial is filed on the ground that the verdict and findings are eontrary to the evidence, and the trial judge in overruling the motion makes a statement from which this court is doubtful whether he intended to give his approval to the verdict, or overruled the motion and rendered judgment on the verdict and findings because they were sustained by some positive evidence, held, the judgment should be reversed and the cause remanded with directions that a new trial be granted, unless the trial-judge shall make a finding that he approves the verdict, and in case the verdict is approved, the judgment will be affirmed.” (Butler v. Milner, 101 Kan. 264, syl., 166 Pac. 478.)
In the present case the alternative of giving the trial judge the opportunity of making his finding more definite is not available, for since the trial he has retired from the bench. Inasmuch, however, as the only issue involved is the amount to be awarded, an option will be given the plaintiff to accept a reduction of the judgment to $20,000 with interest from the date of its original rendition, in lieu of a new trial.
If before a mandate is issued hereon the plaintiff shall file in this court a consent to such reduction the judgment will be modified accordingly. Otherwise it will be set aside and a new trial granted | [
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The opinion of the court was delivered by
Burch, J.:
Defendant was convicted of statutory rape, and appeals.
Defendant contends the district court erred in refusing a continuance. The contention is not predicated on the record, and the brief in support of the contention departs so far from the record that it would be useless for the court to make it a basis of discussion. Consideration of the record in the light of the statute and rules of practice relating to the granting of continuances, compels the conclusion that a continuance was properly denied.
Defendant contends a new trial should have been granted on account of newly discovered evidence relating to the true disposition of the complainant toward defendant. The evidence given at the trial is not abstracted or summarized, or even indicated, in such a way that this court can estimate the importance of the newly discovered evidence. Apparently, it would strengthen the probability of defendant’s guilt. Perhaps it would tend to impeach testimony of the complainant. If that were all, it would not authorize the granting of a new trial. Whatever the probative value of the evidence, the district court did not deem it important, and this court cannot say that it was.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
J. W. Williamson, chief of police of the city of Parsons, and F. H. Callaway, an undersheriff of Labette county, brought this action against the board of county commissioners of Labette county to recover a reward offered by the board. Judgment was given for defendants and plaintiffs appeal.
It appears that about January 4,1923, two men were murdered in or near the city of Parsons in Labette county, and on January 8, 1923, the board of county commissioners of Labette county offered a reward of $500 “for evidence leading to the arrest and conviction of the murderers of Paul Thomas and John Shannon, this offer to expire within one year from date.”
The plaintiffs, with a knowledge of the offer of reward, actively engaged in a search for the criminals, and after investigation and diligent inquiry the perpetrators of the crime were discovered about January 15, 1923, and thereupon warrants were issued and one George Emery Knight was arrested, tried and convicted, while another of the criminals, James H. Jones, pleaded guilty, and both are now incarcerated in the Kansas penitentiary as punishment for the murder of the parties mentioned in the offer. Plaintiffs allege that the arrest, conviction and punishment were brought about by the evidence procured and produced by them. The defendants do not contest the efficiency of the part taken by the plaintiffs in tracking and apprehending the murderers, but they defend upon the ground that plaintiffs being officers of the law, it was their duty to take diligent and prompt measures for the arrest and punishment of the perpetrators of the crime, perpetrated within their jurisdiction, and that an officer cannot claim a reward for performing his duty, and the allowance of such a reward is contrary to public policy. It may be stated that no warrant had been issued when the criminals were discovered by the plaintiffs.
There are two statutes, one, R. S. 62-1824, authorizing the offer of a reward by the governor of $300 for the apprehension of persons committing a felony. Another statute is R. S. 62-1827, authorizing the county commissioners to offer a reward not to exceed $500 for the discovery, arrest and conviction of murderers where the perpetrators are unknown, or have escaped to parts unknown. All other crimes than murder are excluded from the application of this statute. One of the things that is relied on by the plaintiffs is that this statute excepts from its application the prosecuting attorney. The argument being that he being specifically excluded, all other officers are fairly included.
It appears that the plaintiffs are salaried peace officers, and the question presented is, may such officers demand or receive any other or further remuneration or reward than that prescribed by law? Upon this question it has been held that where an officer is under no obligation to discover and arrest the perpetrator of a crime arising from his official character, the policy of the law does not preclude him from recovering a reward (Elkins v. Wyandotte County, 91 Kan. 518, 138 Pac. 578; Smith v. Fenner, 102 Kan. 830, 172 Pac. 514), but it is clearly contrary to public policy to allow an officer to recover a reward for the performance of an official duty. (Marsh v. Express Co., 88 Kan. 538, 541, 129 Pac. 168; Thacker v. Smith, 103 Kan. 641, 175 Pac. 973.) In Taft v. Hyatt, 105 Kan. 35, 180 Pac. 213, 181 Pac. 561, it was decided that:
“A chief of police, whose duty it is to make an arrest of fugitives from justice or persons charged with or suspected of crimes, is not entitled to maintain an action to recover a reward offered by private individuals for the apprehension of the°person, for the reason that public policy does not permit an officer to claim a reward for merely doing his duty.” (Syl. ¶ 4.)
In Marsh v. Express Co., supra, the case of In re Russell, 51 Conn. 577, was cited in which it was said:
“And no case can be found — at least I have not been able to find any — in which the claim of a public officer to recover a reward for services rendered in the performance of his official duties has received the sanction of a court of last resort in this country or in England.” (p. 583. See, also, Lees v. Colgan, 120 Cal. 262; Bank v. Edmund, 76 Ohio St. 396; and authorities cited in case note 11 L. R. A., n.s., 1170.)
Plaintiffs cite and rely on the authority of United States v. Matthews, 173 U. S. 381; but there the one claiming a reward was a nonpay or nonsalaried officer, but if the decision is open to the interpretation placed upon it by plaintiffs that an officer may recover a reward for services rendered in the line or scope of his official duty, it is out of line with the Well-nigh unanimous holdings of the courts of this country. As tending to show the policy of the law in our state we may refer to the legislative provision:
“That no officer, state or county, or deputy or clerk of the state officers, or. staff officers of the governor, shall retain under color of his office any fee, compensation or reward for the performance or doing any service or thing apper taining to the duties of said office other than is expressly allowed by law.” (R. S. 21-1607.)
In State, ex rel., v. Anderson, 117 Kan. 117, 230 Pac. 315, it was held that a clerk of the district court who collected and kept for his own benefit interest on money which came into his possession by virtue of his office is a violation of the statute quoted. It would appear that the acceptance of a reward by a salaried officer for the service performed by him in discharge of his official duty would be a violation of that statute.
The trial court reached a correct conclusion in holding that plaintiffs were not entitled to the reward offered and its judgment is therefore affirmed. | [
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The opinion of the court was delivered by
■ Johnston, C. J.:
This action was begun by William Frowe, a resident of Florida, against L. E. McPheeters, and four others as de fendants, asking for a recovery of $2,000 by reason of the fraudulent action of the defendants in a real-estate transaction. In his petition he alleged that he was the owner of forty acres of land in Douglas county, about two miles distant from Lawrence, and resided in Florida; that the defendants were engaged in the real-estate business in the vicinity of Lawrence and did business under the name of the Mansfield Investment Company. It is alleged that the defendants wrote to him suggesting that they had a buyer for his land who would give the sum of $8,500 for it, stating that it was the best offer that anyone could get for the land when in fact they had bargained with one Martin Miller to purchase it for the sum of $10,500. It is alleged that the defendants conspired together to falsely represent to plaintiff that the price of $8,500 was the best offer that could be obtained; that the proposed purchaser was one H. S. Tayloe, and that plaintiff being in sheer need of the purchase price and relying upon the statements of the defendants about it, being entirely ignorant of the falsity of their representations, authorized the defendants to close the sale and accept from the purchaser the price of $8,500, and that amount was remitted to plaintiff by the defendants. The plaintiff adds that the representations as to price and the name of the purchaser were absolutely false and were made to plaintiff for the deliberate purpose of defrauding him, that plaintiff did not learn of the fraud until after the transaction had been completed, that in truth and in fact the purchaser was Martin Miller and that defendants represented to Miller that $10,500 was the price placed on the land by the plaintiff, and that he would accept no less. It was further alleged that plaintiff was a resident of Florida and at no time had been personally present in Lawrence, and had no personal conversations with any of the defendants as to the sale, but that all communications in the transaction were carried on by mail or telegrams. Plaintiff therefore asked that by reason of the facts a recovery be had from the defendants in the sum of $2,000.
Two of the defendants served with process filed motions to require the plaintiff to make the petition more definite and certain in respect to the details constituting the alleged conspiracy, and the matters which are relied upon as fraud as mentioned in the petition; also to state whether or not the relation of principal and agent subsisted between the parties or what the relationship was, and that plaintiff be required to set out whatever the contract and transac tions between himself and defendants was, shown by mail and telegrams, as alleged in the petition. The motion to make more definite and certain was' overruled and also a demurrer to the petition on the ground that facts sufficient to constitute a cause of action were not stated.
Error is assigned on the overruling of defendants’ motion to make the petition more definite and certain, but it is now conceded that the order is not reviewable at this time as it is not an appealable order. (Manwaring v. Reynolds, 108 Kan. 777, 196 Pac. 1086.) The ruling on the demurrer is a reviewable order and upon that order defendants contend that the petition does not state employment or agency, nor show that there was any contractual relationship between the parties. It is urged that they were dealing at arm’s length and had a right to make as good a bargain with plaintiff as they could, that they received no compensation for the transaction and had not demanded any, and that plaintiffs having accepted their offer that is the end of the matter.
The question arises, Were defendants agents of plaintiff and as such bound to act in good faith and to inform him fully as to purchaser, price, terms and all facts material to the transaction? An agent is said to be one “who undertakes to transact some business, or manage some affair, for another, by the authority and on account of the latter, and to render .an account of it.” (3 Bouvier’s Law Dictionary, Third Revision, p. 2687. See, also, 2 G. J. 430.) Plaintiff had land which he desired to sell. Defendants were real-estate brokers who desired and invited authority to act for plaintiff in conducting a sale of his land. Representations were made to him concerning the price at which his land could be sold and of a prospective. purchaser. Plaintiff knowing nothing as to the truth of the representations accepted their tender of services and authorized them to act for him. They conducted the negotiations, effected a sale and accounted to him by remitting what they said were the proceeds of the sale. Thus it appears that the defendants were authorized to bring about a business relation between the plaintiff and a third person which in a legal sense constitutes a distinctive characteristic of agency. It is said that one of the features of an agency is an agreement as to commission and that this was lacking. Here, however, the defendants acted upon the authority of plaintiff and rendered services in his behalf, and although the contract was silent on the subject of commissions or compensation, the plaintiff could not escape liability for the reasonable or customary commission, if defendants’ acts in the transaction were free from falsity and fraud. (Nourse v. Prime, 7 Johns. Ch. 69 [N. Y.]; 4 R. C. L. 297.)
Under the circumstances the defendants were not, as they contend, in the attitude of purchasers, but were authorized by plaintiff to act for him and in his behalf. They acted upon authority conferred by him and rendered an account to him and in a legal sense were his agents. As such it was their duty to act with the utmost good faith and loyalty to him. Instead of that it is alleged that they made false representations to him as to the price paid for the land upon which plaintiff relied in closing a sale and they fraudulently took a secret profit for themselves. The effect of such a fraud and disloyalty is stated in Deter v. Jackson, 76 Kan. 568, 92 Pac. 546, as follow's:
“Where a real-estate broker falsely states the facts and deceives the owner as to the price paid for the latter’s land, and fraudulently retains a part of the selling price, the broker is liable not only for so much of the consideration as he retained but he will also forfeit all claim to any compensation for procuring a buyer.”
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Jo|Hnston, C. J.:
This was an action by A. I. Darling to recover from the Franklin Fire Insurance Company, upon a policy of insurance on a garage to an amount not exceeding $5,000. The loss insured against was that occurring directly by tornado, windstorm or cyclone. There was a stipulation in the policy that the company should not be liable for any loss or damage caused by hail, whether driven by wind or not, nor snowstorms. It appears that a heavy snowstorm visited Mankato, where the building was located, on March 16, 1924, and was accompanied by a strong wind. On the morning of the seventeenth the roof of the garage collapsed and -the plaintiff made a claim for the amount of his policy. Payment was refused by the defendant on the ground that the loss was the result of a snowstorm, while the plaintiff contended that it was the result of the wind. The garage was a one-story brick building, with a frontage on the street of 60 feet which extended back 140 feet, and whs situated between a brick building somewhat higher on the north and a building on the south with a gabled roof which extended about 60 feet towards the south. The north garage wall was 12 inches in thickness, the south wall was 8 inches in thickness, and the roof was supported by 60-foot wbod girders or trusses extending from the north to the south walls, and were about 15 feet apart, the center of each truss rising about 8 feet higher than the ends. Boards were placed over the trusses and on these was laid a composition roof. In respect to the snow and wind, including the collapse of the roof, special findings of fact were made by the jury. By their general verdict the jury awarded the plaintiff $3,000 upon which judgment is rendered, and it is insisted that there was error in the admission of evidence, the instructions of the court, and in the rendition of judgment. There was conflicting evidence as to the velocity of the wind, the extent of the snowstorm and as to the quantity of snow which had accumulated upon the roof of the garage at the time of the collapse. Some witnesses for plaintiff stated that there was little snow on the roof, others that not more that three or four inches rested there, others that it amounted to no more than six or eight inches, and that the snow could have little ■ effect on the falling of the roof. It was shown that the fire wall at the wtest end of the building extended about three feet above the edge of the roof, and about eight inches above at the east end. There was testimony that the south wall, which was only eight inches thick, had at some former time become defective and had leaned outw'ards but did not fall down. At that time the wall was pushed back by jack screws and pillars of brick constructed about eighteen feet apart on the inside of the wall with a view of strengthening it. In respect to the snow, some of these witnesses stated that it was the heaviest snowfall that had occurred in many years. Some photographs produced indicated the condition of the building shortly after the roof fell and showed large quantities of snow on parts of the roof. An expert builder said he had calculated the weight which the trusses of the roof would support and found they had a carrying capacity of 290,000 pounds. That the Weight of the roof, including the trusses, was 62,184 pounds, and that the estimated weight of freshly-fallen snow was six or seven pounds to the cubic foot. A witness for the defendant who was a government weather observer testified that' the snowfall amounted to eighteen inches, and that the amount of water in the snow was the equivalent of 1.90 inches of the fall on Sunday, March 16, and .38 inch on the following day when the roof collapsed, making a total of 2.28 inches. This observation was made about ten miles north of Mankato, where the garage was situated. Another weather observer whose station was at Concordia, about forty-five miles away, took hourly measurements of the Wind and in respect to the snow testified that it began to fall at 6:32 Sunday morning and continued until 2:15 a. m. on Monday. That he made a number of tests in different places and found that the total snowfall during the storm was 17.2 inches. Additional pictures of the fall of the roof and of the snow thereon were presented by the defendant showing a large quantity on the collapsed roof, and one witness said that at one place it appeared to be eight or ten feet deep. Others who had shoveled snow in order to reach their cars inside the garage, gave similar testimony as to the snow which'was collected on the roof.
There Was less conflict in the evidence as to the velocity of the wind. By some it was called a very strong wind, others said that on Sunday it was blowing at a rate of about forty miles an hour. Another that it was a hard wind on Sunday, but at 7:30 Monday morning it had abated and could not be called a windstorm at that time. Still another that it was a pretty hard wind and that on Monday morning the wind had died down, and was very light. One witness said it was blowing a severe gale, another that it was snowing hard and blowing hard at midnight, but was not blowing hard at the time of the collapse. The weather observer ten miles north of the garage, who kept a record on blanks furnished by the government as to weather conditions, stated that he had noted the existence of the snowstorm and as to the quantity that fell, but had no notations on his record of any unusual condition of the wind. Another witness estimated the velocity of the wind on Monday morning at from 15 to 18 miles per hour. The weather observer at Con cordia, 45 miles from the garage, testified that at one time on Sunday the velocity of the wind was 24 miles an hour, but that it abated about midnight and on Monday morning at 7 o’clock the velocity was 13 miles an hour. He made hourly observations which were recorded on an anemometer furnished by the government, and the reading showed only slight variation from 1 a. m. on Monday to 8 a. m. of that day, ranging from 7 to 15 miles an hour. He stated that the storm was general over north central Kansas, but he also said that weather' conditions do vary between different locality. As already stated, the jury found that the highest velocity of the wind during the storm was 35 miles and that its velocity at the time the building collapsed was 20 miles. It was shown that the south wall of the garage fell outwards towards the south, while the west wall fell to the west. The trusses adhered to the north wall and the south ends fell and rested upon the cars stored within the garage.
Plaintiff contends that under the evidence the wind was shown to be the efficient cause of the loss, while the defendant insists that as the south wall was pushed outwards towards the south and the west wall to the west, and the further fact that the roof appeared to start falling from the center and moved westward like a wave of water, it demonstrated that the weight of the snow rather than the wind caused the collapse, citing as authority Insurance Co. v. Nelson, 64 Kan. 115, 67 Pac. 440. Defendant says that it being shown that the roof did not fall when the 35-mile wind was blowing, nor until the wind had abated to the velocity of 20 miles, seven hours later, shows that the snow1 was the efficient cause of the fall, and it asks if the south wall was pushed out by the wind before midnight, when the strong wind was blowing, what held up the ends of the trusses from that timé until it fell at 7:30 the next morning.
Enough has been stated to show the conflict in the testimony and that it was a difficult and close question whether the wind or the weight of the snow was the efficient cause of the collapse. The policy insured against direct loss or damage by tornado, windstorm or cyclone, and provided that the defendant should not be liable for any loss or damage caused by snowstorms. As stated the jury found that the wind caused the collapse, but it also found that the weight of the snow contributed to the collapse. In view of the evidence and the findings certain testimony which was admitted over the objection of the defendant is deemed to be important. Plaintiff asked a number of witnesses whether in their opinion the collapse of the building was caused by the wind or the weight of the snow, and they expressed their opinions to the effect that it was the wind. These witnesses were not in the vicinity of the building when the collapse occurred, nor were they shown to have any special qualifications for giving an opinion as to the cause of the collapse. Their opinions were given upon the real controversy in the case, the ultimate fact which it was the province of the jury to determine. It was a question to be determined from facts and not from opinions. There was no occasion for expert testimony, nor was it necessary to resort to opinion evidence. The witnesses could describe the character of the building, its appearance immediately after it fell, the condition of the walls, the quantity of snow thereon, the character of the wind before and at the time of the collapse, and from these facts so disclosed the jury could give an opinion as to the cause of the damage. That was in fact the essential inquiry in the case and the facts could be and were fully described and placed before the jury, and it then became the province of the jury to determine the issue. The situation was such that the facts could be detailed by witnesses so that jurors possessing knowledge and experience common to jurors in the ordinary affairs of life, were as competent, and may have been more competent, to draw inferences and determine questions than the witnesses who ventured opinions on the ultimate facts. The general rule in such cases as has been determined is that where there is no necessity to resort to opinion evidence, it is error to permit witnesses to give an opinion on the ultimate facts which it is the duty of the jury to determine. (K. P. Rly. Co. v. Peavey, 29 Kan. 169; Murray v. Woodson County, 58 Kan. 1, 48 Pac. 554; Erb v. Popritz, 59 Kan. 264, 52 Pac. 871; Telephone Co. v. Vandevort, 67 Kan. 269, 72 Pac. 771; Oil Co. v. Drilling Co., 80 Kan. 261, 101 Pac. 1072; Duncan v. Railway Co., 86 Kan. 112, 119 Pac. 356; Healer v. Inkman, 94 Kan. 594, 146 Pac. 1172.) Davis v. Insurance Company, 158 Cal. 766, was an action brought to recover upon a policy which insured against the fall of a building, except as the result of a fire, and it was held that a witness could not be permitted to give his opinion as to whether or not the building fell as the result of a fire. It was remarked that the question called for an opinion as to a fact which was not the subject of expert testimony. In view of the vital character of the fact involved and also as to the state of the evidence, we cannot hold that the error was without prejudice. The jury may have substituted the opinions of the witnesses for their own or have based their own conclusions in whole or in part upon the opinions of the witnesses.
It is suggested by plaintiff that if there was error in the admission of the evidence, it was cured or waived by the fact that defendant subsequently offered evidence of a similar kind, and some cases of our own court are cited in support of the suggestion, which we think do not bear directly on the question involved.
Objections were made when the opinions of witnesses were offered and the court, after consideration, overruled them and made that ruling the law of the case. It was a definite and final ruling to which the defendant was required to submit. It was obliged to try the case upon the theory announced by the court and could not have the ruling reviewed until the trial ended and judgment was entered. The fact that defendant conformed to the ruling and offered testimony on the theory adopted by the court and which it was obliged to accept did not, we think, indicate a purpose to waive the error, nor did it increase the burden imposed on the plaintiff who had invoked the action of the court. In Teter v. Spooner, 279 Ill. 39, the matter of waiver was considered and it was held:
“After the court has overruled a defendant’s objections to a certain class of evidence the defendant may introduce evidence of the same class to meet that of the plaintiff without waiving his right to urge his exceptions on appeal.”
The supreme court of Nebraska on a similar question, ruled:
“We think plaintiff should not be charged with complicity in the error complained of; the immaterial and incompetent evidence had been received with the approval of the court, and plaintiff was not required to rely upon her exceptions but might reasonably proceed in accordance with the view of the trial court and offer evidence of a similar character to rebut the inferences which might be drawn from defendant’s evidence without waiving the objection.” (Macke v. Wagener, 106 Neb. 282, 288. See, also, Panhandle & S. F. Ry. Co. v. Laird, [Tex.] 224 S. W. 305; Martin v. Commonwealth, 126 Va. 715; Stipel v. Piggott, [Mo. App.] 269 S. W. 942; Washington Va. Ry. Co. v. Deahl, 126 Va. 141; Walker Grain Co. v. Blair Elev. Co. 254 Fed. 422; 38 Cyc. 1398.)
Some complaint is made of the refusal of requested instructions and also of some that were given, but we find no error in these rulings of which the defendant may justly complain. For the error committed in the admission of testimony 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.:
In this proceeding John Stowell seeks to subject an eighty-acre tract of land occupied by Thomas A. Kerr and his family as a home to the payment of a judgment against Kerr and in favor of Stowell. The judgment was rendered in the justice court, and an abstract of it was filed in the district court on December 6, 1900. It appears that the Kerrs induced S. F. Springer, a relative by marriage, to purchase a home for them, and he did so by buying forty acres on April 3, 1903, and a contiguous forty-acre tract on February 1, 1904. The purchase-money was advanced by Springer, and the title was taken in his name as security for the money advanced. The land was bought by Springer with the intention that Kerr and family should occupy it as a rural homestead. It was immediately occupied by the Kerrs as their home, an occupancy which has continued ever since the pur chase. The court held that the judgment lien did not attach to the land.
The judgment of Stowell appears to have been valid and subsisting when the land was purchased, and, of course, it became a lien on all the property of Kerr which was subject to judgment liens. Such a lien can never take precedence, however, of a homestead right, nor in any way affect a homestead. Kerr had an equitable interest in the land in question — an interest sufficient to uphold a homestead right. (Tarrant v. Swain, 15 Kan. 146; Moore v. Reaves, 15 Kan. 150.) Plaintiff argues that, as the judgment was on file and in force when the land was purchased, the lien of the judgment attached instantly and before the land became invested with the homestead character. As the land was purchased with the definite intention of making it a homestead, it had the homestead character from the beginning. The law does not prohibit a judgment debtor from procuring a homestead which will be exempt from forced sale for debts, nor is there anything in its purpose warranting the view that in the purchase of a homestead a judgment lien will outrun a homestead interest. On the other hand the homestead law is given a practical and liberal interpretation, in keeping with its policy and purpose. While occupancy is an essential feature of a homestead right, it is well known that complete occupancy at the moment of purchase is frequently impracticable. So it was said in Edwards v. Fry, 9 Kan. 417, 425:
“We know that the purchase of a homestead, and the removal onto it, cannot be made momentarily cotemporaneous. It takes time for a party in possession to move out, and then more time for the purchaser to move in. Repairs may have to be made, or buildings partially or wholly erected. Now, the law does not wait till all this has been done, and the purchaser actually settled in his new home, before attaching to it the inviolability of a homestead. A purchase of a homestead with a view to occupancy, followed by occupancy within a reasonable time, may secure ab initio a homestead inviolability.”
On the purchase of a homestead there should be such occupancy as the situation warrants. To preserve the homestead character full occupancy as a residence should be taken within a reasonable time, and, if that is done, the occupancy will relate back to the time when the property was purchased with the bona fide intent to make it a homestead. (Swenson v. Kiehl, 21 Kan. 533; Gilworth v. Cody, 21 Kan. 702; Loan Association v. Watson, 45 Kan. 132, 25 Pac. 586; Upton v. Coxen, 60 Kan. 1, 55 Pac. 284, 72 Am. St. Rep. 341; Neumaier v. Vincent, 41 Minn. 481, 43 N. W. 376; Reske v. Reske, 51 Mich. 541, 16 N. W. 895, 47 Am. Rep. 594; Scofield v. Hopkins and others, 61 Wis. 370, 21 N. W. 259; 15 A. & E. Encycl. of L. 578.)
There appears to be no reason for the claim that considerable time intervened between the purchase and the occupancy. Plaintiff bases his claim on the fact that several months intervened between the time of purchase of the two tracts that constitued the homestead. The statement in the answer, upon which the ruling and judgment of the district court rest, is that immediately after the purchase Thomas A. Kerr and his family went into the possession of the land, and have ever since occupied the same as their homestead.. This means that possession immediately followed the purchase, whenever made, and not that there was no occupancy until the purchase of the second tract.
Under the facts presented the land was acquired for a homestead in good faith, it was occupied and used for that purpose, and the Stowell judgment never became a lien upon it. The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
This is an appeal by the respondent from a judgment of the district court of Wyandotte County granting a lump sum redemption of a workmen s compensation award in an action brought pursuant to K. S. A. 44-512a.
On June 30, 1970, the workmen’s compensation examiner entered an award in favor of claimant for weekly benefits and incurred medical and hospital expenses in the total sum of $1006.50, to be paid upon proper presentation of medical statement. On October 15, 1970, the director affirmed the award as to the medical and hospital expenses and made some modification, not material in this case, of the other provisions of the award. On October 20, 1970, the respondent filed a notice of appeal from the director’s decision to the district court.
Respondent made all of the weekly payments required by the award, and in its answer admitted that written demand was made for payment of all amounts due under the award and that it had refused to pay any of the medical and hospital expenses. Respondent alleged full compliance with the provisions of K. S. A. 1971 Supp. 44-556 in its answer.
The district court found that by reason of respondent’s failure to reimburse claimant for the medical expenses included in the director’s decision, within the twenty-day period under K. S. A. 44-512a, the entire amount of the award was accelerated and entered a judgment in favor of claimant for the full amount of the award.
The sole question before us is whether payment of the medical expenses, which were incurred more than ten-weeks prior to the director’s decision, was stayed by respondent’s perfection of an appeal to the district court. The answer is found in the pertinent proviso of K. S. A. 1971 Supp. 44-556 which reads:
“. . . Provided, however, That the perfection of an appeal to the district court shall not stay the payment of compensation due for the ten-week period next preceding the director’s decision, and for the period of time after the director’s decision and prior to the decision of the district court in such appeal: . . .”
Under 44-556 an employer’s appeal from the workmen’s compensation director’s decision awarding an injured workman compensation, including weekly payments and medical expenses, stays payment for all compensation except the weekly payments due for, and the medical expenses incurred during, the ten-week period next preceding the director’s decision, and a period of time after the director’s decision and prior to the decision of the district court in such appeal. An award for medical expenses is, of course, an award of compensation under many decisions of this court, but since the medical expense award here was not made for the non-stay period set out in the proviso to 44-556; it follows that the payment thereof was stayed by respondent’s appeal and thus nonpayment thereof cannot serve as a basis for a lump sum redemption action under 44-512a.
The judgment is reversed.
Fatzer, C. J., dissenting.
Owsley, J., concurs in the result. | [
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The opinion of the court was delivered by
Foth, C.:
Appellant pleaded guilty to escaping from the penitentiary without breaking in violation of former K. S. A. 21-734. He was sentenced to the statutory penalty for a first offender, i. e., a maximum of three years commencing upon the expiration of his present sentence. He appeals, claiming his guilty plea was coerced by the prosecutors threats to invoke the habitual criminal act if appellant did not plead guilty — threats which, he asserts, illustrate the unconstitutionality of the act.
Appellants offense was committed on September 4, 1969, and the information was filed May 6, 1970. However, because of delay caused in part by his request for a commission to examine his competency to stand trial, he did not enter his guilty plea until March 15, 1971. His notice of appeal was filed April 15, 1971.
At the time appellant pleaded guilty and instituted this appeal the proceedings were governed by the new code of criminal procedure, which had become effective July 1, 1970. (Laws 1970, ch. 129.) Under section 22-4602 (1) of that act, if appellant had insisted upon a trial he could have elected to have those proceedings governed by the law in effect at the time the prosecution was commenced. Appeals, however, are governed by the new code even if commenced prior to its effective date. (K. S. A. 1972 Supp. 22-4602 [2].)
The crucial section of the code, which had been in effect for eight and one-half months when appellant pleaded guilty and for nine and one-half months when he instituted this appeal, is K. S. A. 1972 Supp. 22-3601:
“An appeal to the supreme court may be taken by the defendant as a matter of right from any judgment against him 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, except: No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere: Provided, Jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K. S. A. 60-1507.”
That statute expressly precludes appeals by persons who plead guilty, remitting those who would assert claims like appellant’s to their remedy under K. S. A. 60-1507. We have said: “The supreme court has only such appellate jurisdiction as is conferred by statute pursuant to Art. 3, § 3, of the Constitution, and when the record discloses lack of jurisdiction it is the duty of the supreme court to dismiss the appeal.” (State v. Shehi, 185 Kan. 551, Syl. ¶ 1, 345 P. 2d 684.) Since this court has no jurisdiction of this purported appeal it must be dismissed.
It is so ordered.
APPROVED BY THE COURT. | [
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Per Curiam:
The appellant, Robert Rostocil, owned a quarter section of land in Rooks County which was subject to a “Form 88-(Producers)” oil and gas lease, dated September 12, 1940, executed by the former owners of the land. The appellee, Phillips Petroleum Company, was the lessee.
The lease contained the following provision: “When requested by lessor, lessee shall bury his pipe lines below plow depth.”
Later, in 1953, in connection with a unitization of the lease with adjoining properties, a “right of way grant” was made to the Phillips Petroleum Company for pipe lines to meet requirements to transport oil arising from the unitization. The grant contained no reference to burying the pipe lines.
The trial court held that the easement grant of 1953 did not modify the duty of the lessee to bury the pipe lines. No issue is made of this finding.
The lessee had initially buried its pipe lines below plow depth in the course of its operations under the lease.
The appellant, as present owner, desired to terrace his land for agricultural purposes and requested the lessee to lower its pipe lines where necessary to accommodate the terracing. This the appellee refused to do. Thereupon, appellant had the pipe lines re-buried to meet his needs. He sues to recover $1,339.99, the cost of having the work done. The reasonableness of the amount is not disputed. It is stipulated that the whole amount is due the appellant, or none.
The trial court found this case to be identical with Potter v. Northern Natural Gas Co., 201 Kan. 528, 441 P. 2d 802, and rendered judgment for the defendant, holding that there was no continuing obligation on the lessee to bury its pipes more than once, and that the duty is to be determined by the extent of the use made at the time of the grant.
The Potter case involved a grant of easement to the pipe line company for the laying of a pipe line. The grant required the grantee to “bury all pipe laid upon said land to a sufficient depth so as not to interfere with the cultivation of the soil.” In that case the landowner demanded that the pipe line be re-buried to accommodate the leveling of the land so that it could be irrigated. The demand was refused and the refusal upheld on the ground that the owner of the dominant easement had met its obligation in the first instance and had no continuing obligation once the purpose and conditions of the grant had been fulfilled.
We find the Potter case is not applicable to the present case for the reason that the requirement “when requested by the lessor, lessee shall bury his pipe lines below plow depth,” carries an implied continuing obligation to keep pipe lines buried below plow depth so as not to interfere with normally anticipated agricultural practices. Certainly terracing in these times is such a practice.
We do not have here a grant of a permanent easement for a stipulated price, with a dominant estate in the grantee. What we have here is a landlord and tenant relationship, in the light of which the obligation of the lessee must be tested. The interest under an oil and gas lease is personal property. It does not necessarily run beyond the initial term but may run indefinitely. The obvious intent of the parties under such a lease is that the licensed privileges of the lessee are to run hand in hand with those reserved by the lessor with neither interfering more than need be with the continuing uses of the other — the one for the exploration, production and transportation of minerals and the other for the pursuit of' agriculture.
The lessee, under an oil and gas lease, does not own a dominant easement. He is licensed to lay pipes wherever and whenever he finds it convenient. If he is obligated to bury them below plow depth, as he is in this case, he must keep them so buried when requested by the lessor, so as not to interfere with the lessor’s normal and accepted practices.
We find accordingly that the language of the lease in this case, which defines the basic obligation of the lessee, is, in the light of the relationship, clear in imposing upon the lessee a continuing duty. If any aid of construction from collateral facts were to be needed, we find that the parties themselves construed the language of the lease as we have construed it here, when the same lessee a short time before complied with a similar request under an identical lease on other property owned by the same lessor.
The judgment of die trial court is reversed and the court is directed to enter judgment in favor of the plaintiff and against the defendant for $1,339.99 and costs. | [
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The opinion o£ the court was delivered by
Harman, C.:
In this action for damages for personal injury arising from a bursting soda water bottle plaintiff Corine M. Butterfield seeks recovery from defendant Pepsi-Cola Bottling Company of Wichita, Inc., for breach of implied warranty of fitness. Judgment was entered against plaintiff as a result of a jury’s adverse finding on this issue and she has appealed.
Plaintiff-appellant’s evidence at trial revealed the following:
She owned and operated a small grocery store in Milan, Kansas. Defendant-appellee bottled and distributed soft drinks, including Diet Pepsi-Cola. On May 19, 1969, appellee’s route man delivered one case of Diet Pepsi-Cola and several cases of other kinds of soft drinks to appellant’s store. Appellant had a rack in which all the various cartons were kept for sale to her customers.
On the evening of May 26, 1969, appellant’s supply of Diet Pepsi-Cola had dwindled to a single bottle. At this time she removed that bottle from the pop rack, intending to place it in the cooler so that she might consume it herself the following day. However, the cooler was full, so she placed the bottle on the floor behind her checkout counter from whence she could put it in the cooler when space became available. The next day, May 27th, she picked up the bottle, holding it by the neck, and when she had lifted it about eight to twelve inches it exploded, injuring her leg. Appellant summoned a part-time employee to tend the store while she sought medical attention. This employee promptly swept up the pieces of the broken glass bottle and disposed of them in the trash can.
Appellant further testified she had her air-conditioner operating at the time of the incident but the ducts were not near the bottle and the room temperature was between seventy and seventy-five degrees; that she did not bump the bottle in any way prior to the explosion.
Appellee’s employee who delivered the bottle to appellant, called as a witness by her, stated his truck had been loaded by loaders at Wellington; that the vehicle rode “fair for a truck”, “It was a pretty smooth running truck”, it was “pretty rough” when going over railroad tracks, and when driving over railroad tracks “You can shake them [the bottles] plumb off the truck if you want to, if you run over them fast enough”.
In behalf of appellee its route manager testified he interviewed appellant concerning the incident one or two days after it occurred; that appellant described the event to him, stating she had set the bottle down on the floor, turned around to pick up some cookies, then had turned back and picked up the bottle again when it exploded or broke.
Appellee’s production manager testified as to the mechanics of the bottling process at appellee’s plant, describing the procedures used; after washing and inspection bottles are placed on a conveyor which takes them to a filling machine where carbon dioxide is inserted and they are subjected to a pressure of fifty-five pounds; at this point bottles which have a flaw in them will break; the pressure is gradually reduced so as to prevent foaming when the bottles are filled; the pressure is completely released and the bottles remain unsealed prior to being capped in the crowning machine; there is pressure after the bottles are crowned; a bottle can break any time from shock, such as hitting it; such a bottle will break shortly after it receives the shock, “Perhaps a minute or split seconds”; bottles can be subjected to occasional knocking after distribution to dealers.
As indicated, appellant relies for recovery upon the theory of breach of implied warranty of the fitness of the bottle for its in tended purpose. The jury was not called upon to render a general verdict. Instead the issues were submitted to it upon special verdicts in the form of interrogatories, the first of which, together with the jury’s answer, was as follows:
“1. Was the bottle of Diet Pepsi-Cola reasonably fit for the purpose for which it was intended and reasonably safe at the time it was delivered to the plaintiff's store?
“Answer: Yes"
Succeeding questions dealt with the damage aspect and were not required to be answered in event of an affirmative answer to the first question. The trial court entered judgment for defendantappellee on the foregoing answer to question No. 1 and this appeal ensued.
Appellant’s specifications of error will be dealt with chronologically.
Appellant asserts the trial court erroneously permitted appellee’s production manager to give expert testimony, over objection, as to the time when flawed bottles would blow up. This point lacks merit. After the question embracing the challenged testimony had initially been put to the witness but prior to receipt of an answer appellant did object on the ground of the witness’s lack of qualification. The objection was made prior to any questioning of the witness as to his qualification as an expert and, quite properly, was sustained. Thereafter appellee elicited considerable testimony upon this subject. The witness then gave the testimony now complained of but the objection was never renewed.
The failure to renew the challenge may well have been because the witness was shown to have had considerable occupational experience in the soft drink bottling industry, having been employed in various capacities in it since 1936. He demonstrated familiarity with breaking bottles and was sufficiently qualified to give the testimony now challenged, which was relevant evidence.
At the conclusion of all the evidence appellant moved for a directed verdict in her favor on the issue of liability. The trial court denied this motion and appellant assigns the ruling as error. She also asserts the jury’s verdict was contrary to the law and the evidence. In view of the arguments advanced and the particular posture of the case, the contentions may be considered together. Essentially appellant urges that all she had to show to be entitled to a verdict on the issue of liability was the fact that the bottle burst and she was injured thereby. She cites and relies on cases involving the sale of food for immediate consumption, such as Stanfield v. F. W. Woobworth Co., 143 Kan. 117, 53 P. 2d 878, and Swengel v. F. & E. Wholesale Grocery Co., 147 Kan. 555, 77 P. 2d 930, as well as those in which foreign substances were found in bottles, such as Sharp v. Pittsburg Coca Cola Bottling Co., 180 Kan. 845, 308 P. 2d 150, and Simmons v. Wichita Coca-Cola Bottling Co., 181 Kan. 35, 309 P. 2d 633. She asserts there was no evidence of mishandling of the bottle by her or by anyone under her control.
Ever since Nichols v. Nold, 174 Kan. 613, 258 P. 2d 317, 38 A. L. R. 2d 887, it has been well established that an implied warranty exists in the manufacture, distribution and sale of a carbonated beverage bottle, such as a Pepsi-Cola bottle, such warranty being that the container is reasonably fit for the purpose for which it is intended. And it is true that a claim for relief for breach of implied warranty may be proved by circumstantial evidence (Balthazor v. B & B Boiler & Supply Co., 169 Kan. 188, 217 P. 2d 906); however, it does not thereby follow, as asserted by appellant, the mere fact a bottle broke while in the hands of a user constitutes of itself a breach of warranty on the part of the bottler-distributor.
In Evangelist v. Bellern Research Corporation, 199 Kan. 638, 433 P. 2d 380, the plaintiff was injured when a partially filled Pepsi-Cola bottle broke as he was attempting to recap it. Recovery was sought against both the maker of the recapping device and the bottler-distributor of the beverage. In discussing the liability of the latter this court stated:
“The burden of proving a breach of implied warranty was on the plaintiff, and that burden was not sustained simply by showing the bottle broke and he was thereby injured. ... In other words, it was incumbent upon plaintiff to establish the bottle was defectively manufactured. . . . [p. 642.]
“Only recently we had occasion to point out that irrespective of the theory of recovery — negligence or implied warranty — a prerequisite to recovery against a manufacturer for a defective product is that the plaintiff must show the product was defective at the time it left the manufacturer’s control. . . .
The rule is well stated in Gardner v. Coca-Cola Bottling Co., 267 Minn. 505, 127 N. W. 2d 557:
“ ‘Before liability can result from a breach of an implied warranty there must be proof from which an inference is permissible that the product was defective. In Prosser, Torts (2 ed.) § 84, p. 509, we find the following:
“ ‘ “. . . The existence of the warranty of course does not eliminate the necessity of proof that the product was defective when it left the defendant’s hands; . . .”’ (p. 510.)
“Also, see Anno. 81 A. L. R. 2d 259. Thus, it may be said as a general rule that there must be evidence from which it may reasonably be inferred that the defect existed at the time the product left the possession or control of the party sought to be held hable.” (p. 646.)
(See, also, Tilley v. International Harvester Co., 208 Kan. 75, Syl. ¶ 8,490 P. 2d 392.)
In turning to the evidence in the case at bar it should be borne in mind we are not called upon to determine whether appellant made out a submissible case for jury determination, as is the situation where a plaintiff’s case has been as a matter o£ law withdrawn from jury consideration. Here appellant’s claim was submitted to the jury. From the outset the question of causation in fact, that is, whether appellee’s breach of warranty caused appellant’s damage, was a contested issue. The only admission made by appellee throughout was that it had sold the offending bottle to appellant on May 19, 1969; hence the burden was on appellant to prove the bottle was defective when it left appellee’s control.
Appellant’s only evidence on this score was her own testimony that the bottle exploded in her hand and she had not previously bumped it. Unfortunately for her the broken pieces of glass were immediately disposed of, making them unavailable for examination and rendering it impossible to produce direct evidence as to the condition of the bottle at the time it broke. Appellant had no expert testimony of any kind. Appellee did produce such testimony. This evidence indicated that if a bottle contained a flaw it would break under pressure while being filled and, further, that a bottle would also break within a very short time upon receiving external impact. In a limited sense only can appellant’s testimony be deemed to be undisputed. However, even thus considered, a jury is not required to accept the self-serving assertions of a litigant upon whom rests the burden of proof. In American Housing & Investment Co. v. Stanley Furniture Co., 202 Kan. 344, 449 P. 2d 561, we stated.
“The effect of a negative finding of fact by a jury, as contrasted to an affirmative one, against one upon whom the burden of proof rests, is that such party did not sustain that burden. Absent arbitrary and capricious disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice on the part of the jury, such finding cannot be disturbed. Appellate courts cannot nullify a jury’s disbelief of evidence nor can they determine the persuasiveness of testimony which a jury may have believed.” (Syl. jfl.)
In Sexsmith v. Union Pacific Railroad Co., 209 Kan. 99, 495 P. 2d 930, we said:
“On a motion for directed verdict the trial court does not weigh evidence but must accept as true all the facts which the evidence tends to prove and draw against the party making the motion all reasonable inferences most favorable to the party opposing the motion, and if the evidence is of such character that reasonable men in an impartial exercise of their judgment may reach different conclusions, then the case should be submitted to the jury.
“In considering a motion for directed verdict the question is not whether there is literally no evidence supporting the party against whom the motion is directed but whether there is evidence upon which the jury could properly find a verdict for that party. Even where facts are undisputed it is possible that conflicting inferences may be drawn from those facts, and where this is true, then the issues must be submitted to the jury.” (Syl. ff 2, 3.)
Beyond its expert testimony appellee also produced testimony by its route manager that a day or two after the incident appellant had related a slightly different version. This evidence was not wholly consistent with that given by appellant on the witness stand and the jury might possibily have inferred that her manner of handling the bottle produced the shock from which it broke. Also working against appellant in establishing as a fact that the defect which caused her harm existed when she purchased the bottle was the lapse in time after the bottle had left the control of appellee until injury and the fact it had after delivery been placed in a display rack accessible to the public.
We need not further iterate familiar rules respecting the sufficiency of evidence requisite either to directing a verdict for the one upon whom the burden of proof rests or to sustaining a verdict adverse to that litigant. Suffice it to say, we find no merit in either contention advanced by appellant.
Appellant asserts the court erred in submitting special question No. 1 to the jury. She focuses on the words “delivered to the plaintiff’s store” used therein and argues the court should instead have framed the question so as to encompass the time when the bottle was “used”. Appellant relies on certain language in K. S. A. 84-2-314 (2) (c) but the thrust of the argument is not entirely clear as applied to a bursting bottle case. The question was geared into the trial court’s instructions respecting appellant’s allegations of breach of warranty, her burden of proof and with instruction No. 5, which was as follows:
“The bottlers of a carbonated soft drink such as Diet Pepsi-Cola impliedly warrant that a bottle of Diet Pepsi-Cola is reasonably fit for the purpose for which it is intended and is reasonably safe. If this implied warranty of reasonable fitness and reasonable safety was breached by the defendant and if this breach was the proximate cause of the bottle exploding, then and in that event the defendant is liable to the plaintiff for her injuries.”
At trial appellant specifically stated she had no objection either to the instructions or to the form of the special verdicts. It has always been the rule in this jurisdiction that where no objection was made to special questions at the time they were submitted to the jury, their propriety may not be questioned for the first time upon appeal (McKinley-Winter Livestock Commission Co. v. Fletcher, 185 Kan. 637, 347 P. 2d 248; see also Kirkendoll v. Neustrom, 379 F. 2d 694 [10CA, 1967]). Moreover, as already indicated, we see nothing legally amiss in the language of the interrogatory (Evangelist v. Bellern Research Corporation, supra).
Appellant’s final specification of error arises from an additional instruction to the jury given at its request after it had commenced its deliberations. The jury’s question and the court’s response thereto dealt with the time element involved in the implied warranty of fitness of the bottle in question. Although couched in different language the additional instruction was in line with instruction No. 5, which we have already quoted, and actually amounted only to an elaboration of that instruction. The record indicates the jury’s questions and the court’s proposed answers were discussed between court and counsel and, although opportunity was afforded, no objection was made. The instruction was not erroneous.
In conclusion, it may be said this was essentially a fact case, fairly tried and submitted to a jury for decision under proper instructions. The jury verdict resolved the crucial issue against appellant. We find nothing to warrant disturbing that verdict and the judgment is affirmed.
approved by the court.
Prager, J., concurs in the result.- | [
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The opinion of the court was delivered by
Kaul, J.:
Plaintiff-appellee brought this action to recover past due child support payments which had been awarded by the District Court of Jackson County, Texas, on January 6, 1964. Defendant-appellant herein was plaintiff in the Texas divorce action. Both parties have remarried and for convenience the plaintiffappellee will be referred to as Barbra or appellee and the defendant-appellant as Andrew or appellant.
The dispositive issue is whether, under full faith and credit, a Kansas court can convert past due child support payments awarded by a Texas court into a lump sum judgment enforceable in Kansas.
In the Texas divorce action, Andrew was granted a divorce; Barbra was awarded custody of the two minor children, subject to reasonable visitation by Andrew; Barbra was to receive $200 per month for child support; and the community property of the parties was divided.
Thereafter, on November 16, 1964, on the request of Andrew, the Texas court modified and clarified the visitation rights.
Barbra moved to New Mexico shortly after the divorce where she remarried and presently resides. Andrew now resides in Ells-worth. Andrew made the child support payments until midyear of 1965.
In January 1970, Barbra filed this action in Ellsworth County, attaching as exhibits to her petition copies of the original Texas decree and the subsequent modification concerning visitation. In her petition Barbra alleged that Andrew had failed to pay the child support payments since April of 1965, and that there was due her the sum of $11,400.00 for which she prayed judgment.
On February 5, 1970, Andrew filed a motion in the instant case requesting additional time to plead. On the same date Andrew filed an "Application for Reformation and Modification of Support Order” in the Texas court of original jurisdiction. In his application Andrew alleged that he had been adjudged a bankrupt in 1966, and that since then he had been unable to secure employment that would allow him to make the original support payments. Andrew further alleged that in the interest of justice the support payments should be reduced to $100 per month and that the back payments — which he owed — be declared null and void. Barbra appeared by counsel in the Texas courts in this proceeding.
The trial court stayed further proceedings in the instant case until the Texas proceedings were resolved;
On June 29, 1970, the Texas court modified the original support order by reducing the amount to $120, consisting of $60 per month for each child, but made no ruling concerning past due support payments — the only mention made being as follows:
“The Court being informed that Defendant was not seeking recovery of past due support in this hearing.”
On October 2, 1970, Andrew filed his answer to Barbra’s petition in the case at bar. In his answer, Andrew admits Barbra’s allega Rons setting out the Texas divorce decree, but alleged that her peRtion fails to state a cause of acRon and as afBrmaRve defenses further alleged that (1) judgment cannot be entered for any arrearage under the Texas decree; and (2), in the altemattve, that the acRon of Barbra is barred by the statute of limitations of the State of Texas with reference to child support orders.
On October 27, 1970, the parRes appeared for trial and stipulated to the authenticity of the copies of the Texas proceedings. No parol evidence was submitted. After oral arguments concerning perRnent Texas statutes and case law, the trial court made tentative rulings in pertinent part as follows:
‘1 should say at this point I cannot believe that the fact that this type of obligation does not give rise in the State of Texas to a judgment in Texas, should in any way keep this court from granting judgment on the obligation.
The court then permitted counsel to file briefs on the question of applicable statutes of limitattons. On December 29, 1970, the trial court filed a written memorandum decision ruling in essence that Andrew’s duty to make child support payments was contractual having been a part of a property settlement agreement, approved by the Texas court, in the original divorce decree. The court proceeded to apply the Texas four-year statute of limitations (Vernon’s Texas Ann. Civil Statute, Art. 5527, [indebtedness evidenced by a contract in writing]), and rendered judgment in the amount of $9,600, calculated at $200 per month for the four years prior to January 14, 1970.
Andrew makes a statement of five points in his brief; however, we need consider only two in disposing of the appeal. They read as follows:
“4. That the court erred in holding that a Texas decree for child support is enforceable by an action for the recovery of money when under Texas law such decree can only be enforced by contempt proceedings.
“5. This action was based on the Texas decree of divorce and no pleading or evidence supports the court decision that this is an action on contract.”
The constttuttonal mandate of Article Four, Sectton One of the ConstttuRon of the United States is that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state; and further that Congress may by general laws prescribe the maimer in which such acts and proceedings shall be provided and the effect thereof. Congress in 28 U. S. C. A., § 1738, has prescribed, as perRnent herein:
“Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.” (Emphasis supplied.)
In the application of the foregoing by state courts, the general rule is that a judgment rendered by a court of one state is entitled, in the courts of another state, to recognition, force or effect to the same extent and with as broad a scope as it has by law or usage in the courts of the state where the judgment was rendered. On the other hand, no greater effect need be given to any judgment of a court of one state than is given to it in the state where rendered. (47 Am. Jur. 2d, Judgments, § 1218, pp. 224-226; Restatement of the Law 2d, Conflict of Laws, 2d, Judgments, § 109, p. 322.) Kansas adheres to the foregoing. (Smolinsky v. Federal Reserve Life Ins. Co., 126 Kan. 506, 268 Pac. 830; Robinson v. Railway Co., 96 Kan. 137, 150 Pac. 523; and Bleakley v. Barclay, 75 Kan. 462, 89 Pac. 906.)
The judgment rendered by the trial court in the case at bar gives effect to the Texas support order which Barbra could not have secured under the law or usage in the courts of Texas. Contrary to Kansas law, (Hains v. Hains, 187 Kan. 379, 357 P. 2d 317; and Ortiz v. Ortiz, 180 Kan. 334, 304 P. 2d 490.), past due child support payments do not become judgments under Texas law. Under Texas law child support may be awarded in the form of periodical payments or by a judgment in a fixed amount. The judgment in either form is subject to modification.
Authorization for an award of child support under Texas law is provided for in Article 4639a, Vernons Ann. Civil Statute. It reads:
“Section 1. Each petition for divorce shall set out the name, age, sex and residence of each child under eighteen (18) years of age born of the marriage sought to be dissolved, if any such child or children there be; and if there be no such child or children, then the petition shall so state. No court having jurisdiction of suits for divorce shall hear and determine any such suit for divorce unless such information is set out in such petition or in each cause of action for divorce. Upon the trial of any such cause, and in the event a divorce is granted by the court, if there are such minor children, it shall be the duty of such trial court to inquire into the surroundings and circumstances of each such child or children, and such court shall have full power and authority to inquire into and ascertain the financial circumstances of the parents of such child or children, and of their ability to contribute to the support of same, and such court shall make such orders regarding the custody and support of each such child or children, as is for the best interest of same; and said court may by judgment, order either parent to make periodical payments for the benefit of sucb child or children, until same have reached the age of eighteen (18) years, or, said court may enter a judgment in a fixed amount for the support of such child or children, and such court shall have full power and authority to enforce said judgments by civil contempt proceedings after ten (10) days notice to such parent of his or her failure or refusal to carry out the terms thereof, and for the purpose of ascertaining the ability of the parents of such child or children to contribute to the support of same, they may be compelled to testify fully in regard thereto, under penalty of contempt of court, as in other cases. Said court shall have power and authority to alter or change such judgments, or suspend the same, as the facts and circumstances and justice may require, upon notice to such parent as above provided for, or with his or her consent.” (Emphasis supplied.)
Section 3 of Art. 4639a further provides:
“The authority herein conferred upon the Court to alter, change, or supersede the provisions of judgments providing for the support of minor children, and the authority conferred upon the Court to enforce such judgments may be exercised by the Judge of said Court in vacation.” (Emphasis supplied.)
Under the foregoing statutes a Texas court may do one of two things — (1) order periodical payments for child support to become due in the future until the child reaches the age of eighteen; or (2) enter a judgment for a fixed amount for child support. The plain language of the statutes clearly grant the court power and authority to alter or change such judgments, either by increasing or decreasing as the facts, circumstances and justice may require. Obviously, any change in a “fixed amount” judgment would be a retrospective modification. Since the same authority to “alter or change” is given with respect to both judgments it seems clear to us that a judgment for past due periodical payments for child support would also be subject to retrospective modification. This appears to be the construction given the statutes by Texas courts. (Davi v. Davi, 456 S. W. 2d 238, [Tex. Civ. App. Texarkana, 1970, and cases cited therein].)
Because enforcement procedures are limited to proceedings in civil contempt the matter of retrospective modification usually comes about by a finding in contempt coupled with an order permitting purge by the payment of some fixed lesser amount. (See Ex Parte Kollenborn, 154 Texas 223, 276 S. W. 2d 251, [1955]; and Ex Parte Spicer, 444 S. W. 2d 829, [Tex. Civ. App. 14th Dist., 1969.]).
The limited enforcement procedure with respect to past due child support payments under Art. 4639a, supra, was established by the Texas Supreme Court in the case of Burger v. Burger, 156 Texas 584, 298 S. W. 2d 119. Mrs. Burger sued for a money judgment in the sum of $5,315.00 representing the arrearage at $300.00 per month of child support payments due from her defendant husband. Mrs. Burger was successful in the trial court and her judgment was affirmed in the Texas Court of Civil Appeals. The Supreme Court reversed, holding that the trial court had no power to enter a judgment such as that sought by Mrs. Burger. The court held that the only remedy for enforcing an order for child support is a civil contempt proceeding. The court interpreted the purpose and thrust of 4639a in these words:
“ ‘. . . The statute is so enacted to meet an urgent situation, specially designed in the interest and for the benefit of the minor child, or children, and enforceable only by contempt. The order is not final; it may be altered, changed or suspended by the court entering the order, as the facts, circumstances, and justice may require. The wife has no pecuniary interest in the award; her interest is merely the promptings of a mother’s filial obedience to the demands of her offsprings (sic) that they have necessary support. The order is not enforceable, other than by the means provided by the statute.’ . . .” (p. 587.)
Under the holding in Burger a Texas decree, awarding periodical child support payments, cannot be considered a final judgment when suit is brought thereon in a sister state such as in the case confronting us here, and this holds true regardless whether the payments dealt with are past due or prospective. It must be kept in mind, of course, that our consideration herein is limited to an action brought on a Texas decree as distinguished from a common law action for support or a proceeding instituted under the provisions of the Uniform Reciprocal Enforcement of Support Act, K. S. A. 1971 Supp. 23-451, et seq. It should be further noted that our holding here is based on Texas law which was presented to the trial court and to this court on appeal. Thus, any presumption that the Texas law was the same as that of Kansas is foreclosed. Unlike the situation in Burnap v. Burnap, 144 Kan. 568, 61 P. 2d 899, the Texas law is not similar to that of Kansas. In dealing with a Colorado judgment for child support in Burnap we found that a Colorado judgment was final and that a court had no power to modify its judgment with respect to amounts due and unpaid, the Colorado law being the same as the law of Kansas.
While this is the first appearance of a Texas child support decree before this court, the courts of several other states have been confronted with the identical problem. The most recent case to come to our attention is Robertson v. Cason, 203 So. 2d 743, (La. App. 2nd Cir. 1967). The suit was brought on a Texas judgment awarding $30 weekly child support payments which had accrued and were unpaid. The Louisiana Court of Appeals held that although the Texas decree of divorce was a valid and final judgment entitled to recognition under the full faith and credit clause of the United States Constitution, the provisions of the decree dealing with child support were subject to modification under the law of Texas and thus full faith and credit was rightly denied by the trial court to provisions pertaining to installment payments for child support.
In the Robertson opinion the court reasoned:
“The provisions of a foreign judgment pertaining to accrued child support payments may be accorded full faith and credit unless by the law of the state where rendered the decree is subject to modification as to accrued installments at the discretion of the court. Where the decree is final and not subject to subsequent modification it must be recognized and enforced without modification of accrued installments in a suit arising in a state other than the one in which the decree was rendered. Sistare v. Sistare, 218 U. S. 1, 30 S. Ct. 682, 54 L. Ed. 905, 28 L. R. A., N. S., 1068, 20 Ann. Cas. 1061 (1909); Cf. Barber v. Barber, 323 U. S. 77, 65 S. Ct. 137, 89 L. Ed. 82, 157 A. L. R. 163 (1944); Weston v. Weston, 177 La. 305, 148 So. 241 (1933); Devore v. Devore, La. App. 172 So. 2d 923 (4th Cir. 1965). . . .” (p.745.)
After considering the Texas statutes (Art. 4639a) and a number of Texas decisions the Louisiana court, in the Robertson case concluded:
“The foregoing authorities make clear that the provisions for child support as contained in the Texas decree were subject to modification and change and may not be considered final. The Louisiana Court, therefore, rightly denied full faith and credit to the provisions of the Texas judgment pertaining to installment payments for child support.” (p. 745.)
The Supreme Court of Oklahoma — in a closely divided (5 to 4) decision — held adversely to the Robertson decision in the case of Catlett v. Catlett, (Okla. 1966), 412 P. 2d 942. In Catlett the rationale of the majority opinion seemingly rested on the premise that despite what appears to be the express authority granted a Texas court under the provisions of Art. 4639a, an award of child support was not subject to retroactive modification. Cases from Oklahoma, Texas and other states, including Kansas, are cited in the majority opinion in support of the proposition that a divorce degree of a court of a sister state awarding alimony or child support is entitled to full faith and credit protection. The cases cited, however, appear to deal with situations where matured, unpaid child support or alimony payments have become absolute and vested under the law of the state of original jurisdiction, such as in the case of Kansas. In the case at bar, the payments are not absolute or vested and to give the Texas decree the effect sought by Barbra would be to accord it force and effect far beyond that which it would receive in Texas. In our opinion, to permit the gaining of this end by the vehicle of full faith and credit is clearly beyond the contemplation of the constitutional mandate and the implementing direction of Congress. In the opinion for the dissent in Catlett, Vice-Chief Justice Jackson points out that in Texas past due child support payments could not be the basis of a money (lump sum) judgment, they could not be enforced by garnishment or execution and they do not create a debt or a vested right. Justice Jackson also discusses cases cited in the majority opinion and fully reconciles them with the point of view expressed in the dissenting opinion. He further points out that in Texas, “involuntary inability to pay” is a good defense in a civil contempt action, which operates, as in Ex Parte Kollenborn, supra, to give the practical effect of a retrospective modification. In Kollenborn the former husband was in arrears to the extent of $1,700 in child support payments and was ordered to be confined in contempt until he purged himself by the payment of $1,000 to the wife, thus working a restrospective modification in the amount of $700. (See, also, Ex Parte Spicer, 444 S. W. 2d 829, [Tex. Civ. App. 14th Dist., 1969.]).
The Oklahoma Supreme Court approved an Oklahoma trial court judgment for unpaid child support payments awarded by a Texas decree in the case of Clark v. Clark, (Okla. 1962), 380 P. 2d 241. The reason given, however, was:
“The law of Texas was not pleaded in tihe record in the instant case. Thus, the trial court was constrained to presume that it was the same as that of Oklahoma concerning power of modification. . . .” (p. 243.)
Since Texas law was not presented in the Clark case, it is of no consequence with respect to the issue before us.
Appellee also cites Williams v. West (Ky. 1953), 258 S. W. 2d 468, in which the court of appeals of Kentucky refused to treat a Texas child support decree as interlocutory insofar as it related to payments accrued prior to the filing of the Kentucky action. The Williams decision was prior to Burger v. Burger, (1957), supra, and the succeeding Texas cases which we believe have fully established Texas law on the subject.
To our knowledge, the most recent Texas case dealing with the subject is Ranford v. Ranford, 475 S. W. 2d 590 (Tex. Civ. App., Dallas, 1971, Rehearing denied Jan. 14, 1972). William Ranford was found, by the lower court, to be $2,000 in arrears in child support and he was ordered to pay it in monthly installments. He appealed on the ground that the order of the lower court was invalid as a matter of law; his position was sustained and that part of the order of the lower court was reversed. In the Ranford opinion the court summarized Texas cases on the subject and stated:
“It is well settled in Texas that the trial court has no authority to render a personal judgment against a parent for accumulated unpaid child support. Vernon’s Ann. Civ. St. of Texas, Article 4639a, gives the court ‘full power and authority to enforce said judgments by civil contempt proceedings,’ and civil contempt proceedings are held to be the only remedy for enforcement of child support orders. . . .” (p. 591.)
We have carefully examined other cases cited by appellee and even though some older cases demonstrate some inconsistencies in Texas decisions, we are fully convinced that the current law of Texas is that stated in Ranford v. Ranford, supra.
We next give our attention to the proposition whether the original Texas child support order was based on an agreement of the parties. As we have previously indicated, the trial court, on October 2, 1970, after hearing the evidence and arguments of counsel, announced a tentative decision in favor of Barbra for four years child support payments at $200 per month on the theory that even though child support payments never become a judgment in Texas, the order of the Texas comí:, nevertheless, created an indebtedness; contractual obligation was not mentioned. The court announced at that time that its decision was tentative and “Subject to looking at any authorities that Mr. Aylward may have indicating that a two-year statute instead of a four-year statute of limitations would apply.” On. December 29, 1970, the trial court filed its written decision in which it found:
“It is beyond question that in the original proceeding in Texas the parties entered into a property settlement agreement that included an agreement for child support in the amount of $200 per month payable by this defendant to this plaintiff. . . .”
Appellant (Andrew) takes vigorous exception to this finding on two grounds. First, that this was, an ordinary action brought on a sister state judgment with no mention being made of contractual obligation until it was injected for the first time by the trial court in its final decision, and, second, there is absolutely no evidence to show that tire child support order was based on or stemmed from any agreement of the parties in that regard. We agree with the appellant’s position on both grounds.
Apparently, the trial court concluded there had been an agreement with respect to child support from language appearing in the original decree. The findings of the Texas court in the original decree appears in paragraph form. Child support is provided for in paragraph 3 which simply reads:
“The Plaintiff shall contribute towards support and maintenance of said minor children the sum of $200.00 per month until said children reach the age of 18 years."
Paragraph 4 sets out the property to be received by Andrew, it lists the items and then concludes:
“Defendant agrees to execute all instruments of conveyance order to carry out the agreement herein approved.”
Likewise, paragraph 5 awards Barbra, defendant herein, as her sole and separate property the property listed and concludes:
“Plaintiff shall execute any necessary instruments to carry out the terms of this property settlement agreement.”
The order and adjudication of the court reiterates the findings verbatim. Obviously, the parties either before or at the time of trial arrived at a division of property and agreed to execute any necessary instruments to carry out the terms of the property division, but we fail to see how this can be construed to serve as a basis for concluding that child support was also agreed to when the court made no mention of any agreement in the child support order in paragraph 3. Also, we think it highly indicative that no mention of an agreement or any contractual arrangement regarding child support was made in any of the subsequent proceedings of the Texas court — the ruling to clarify visitation rights made on November 16, 1964, and, particularly, the modification of child support payments made on June 5, 1970. Both of these proceedings dealt with the child support and custody provisions of the original decree. We also deem it worthy of note that the record is void of any proof offered by Barbra that the child support order was based on an agreement. We must agree with appellant that there is no evidence in the record to support a finding that the child support order was based on an agreement. Moreover, while we do not rest our decision on the proposition, recent Texas cases indicate that even though there was evidence of a contractual obligation, it would not effect the decision in the instant case. We find this statement in the recent case of Davi v. Davi, 456 S. W. 2d 238 (Tex. Civ. App., Texarkana, May 12, 1970):
“. . . But if this court he mistaken in concluding that the support provision of the original judgment is not contractual in nature, it becomes immaterial in the particular proceeding. Neither an agreement between the parties respecting child support nor a judgment entered pursuant thereto precludes a district court from thereafter exercising the powers and duties given the court by Art. 4639a. (citing cases.)” (pp. 240-241.)
A similar holding appears in Duke v. Duke, 448 S. W. 2d 200, (Tex. Civ. App., Amarillo, 1969.)
In the Davi case the court was confronted with a journalized decree quite similar to that before us — the decree ordered child support in one paragraph and in a separate paragraph approved a property settlement agreement which included a paragraph pertaining to child support; however, since the child custody and support division in the original judgment neither approved nor referred to a support payment, the court concluded:
. . The record here for consideration does not show on its face the support order was the result of a contract, or that it is contractual in nature. . . .” (p. 240.)
In view of what has been said the judgment of the trial court must be reversed.
It is so ordered. | [
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Per Curiam:
Continental Casualty Company appeals from the denial, after trial to the court, of its counterclaim for $7,000 against its insured, a partnership engaged in the practice of architecture and engineering.
Shaver purchased from Continental an architects and/or engineers professional liability policy affording coverage subject to a deductible amount of $7,000. Shaver also purchased a general comprehensive liability policy from Employers’ Liability Assurance Company which had no deductible feature.
On January 5, 1966, one Larry Abell was killed in the course of construction of a church designed by Shaver in Sutton, Nebraska. A wrongful death action was filed seeking $125,000 from Shaver based upon defective design (which was covered only by the Continental policy) and upon improper supervision at the jobsite (which was covered by both policies).
At this point Shaver filed this action for a declaratory judgment as to its coverage under the Continental policy. The wrongful death action was ultimately settled for $24,500 with Employers’ paying $10,500 and Continental paying $14,000. Continental then filed this counterclaim against Shaver seeking reimbursement of the $7,000 deductible it claimed was due under its policy.
The pertinent policy provisions are as follows:
“Part III
“2. Definitions.
“a. Deductible.
'The amount stated as the ‘Deductible’ in Item 5 of the declarations shall first be subtracted from the amount required to satisfy a claim against the insured. . . .
“b. Net loss.
“The net loss is the amount required to satisfy a claim against the insured . . . less the amount of the deductible.
“3. Computation of Amounts Payable by the Company (Per Claim).
“The company shall pay all of the net loss attributable to a claim solely for bodily injury, sickness, disease or death . . .”
The definitions are unambiguous. The “net loss” here would be $24,500 (“the amount required to satisfy a claim against the insured”) less $7,000 (“the amount of the deductible”) or $17,500. Since Continental actually paid only $14,000 it did not pay in excess of the net loss so as to entitle it to reimbursement from the insured under Part III, paragraph 6 of its policy.
Continental contends that “the amount required to satisfy a claim against the insured” is only $7,000, the amount remaining after Employers’ contribution of $10,500, less the $7,000 deductible. It further suggests this result is dictated by its “other insurance” clause, Part IV, paragraph 6, which reads:
“This policy is in excess of all other valid and collectible insurance and shall not be called upon in contribution.”
This seems a tortured reading of the definition of net loss. The Abell claim was for $24,500 and that was the amount required to satisfy the wrongful death claim. Had Continental wished to define “net loss” as the amount required to satisfy the claim against the insured less payments by other insurers less the deductible, it could have done so. Under the definition it chose “net loss” is $17,500. If an insurer intends to limit its liability it should use language revealing that purpose. (Gowing v. Great Plains Mutual Ins. Co., 207 Kan. 78, 483 P. 2d 1072.)
Roth policies thus purport to offer only excess insurance coverage. Continental did not seek to bring Employers’ into court to determine their respective liabilities under their policies. This determination would have involved not only the excess insurance clauses but also the question of whether Shaver’s liability arose only by virtue of defective plans. If so, no coverage would have been afforded under the Employers’ policy and the excess insurance clauses would have been irrelevant. Instead of litigating all this, the companies settled the matter as above described.
Even assuming Continental is liable only to the extent of the loss in excess of Employers’ payment of $10,500, it has unequivocally obligated itself to pay an amount not exceeding the net loss as defined in its policy. Since Continental actually paid less than the net loss as so defined, it has no right to reimbursement from Shaver. Continental initially recognized this by letter but altered its position for this action.
The judgment is affirmed. | [
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|
Per Curiam:
Flett Construction Company, Inc. (appellee-plaintiff) recovered a judgment after a jury trial in the amount of $7,676.12, plus interest, on a promissory note executed by Don E. Williams (appellant-defendant). Defendant admitted the execution of the note and his nonpayment thereof, but sought to prove an accord and satisfaction.
Defendant was president and majority stockholder of Personal Service Garage, Inc. In December 1965, the corporation s account with plaintiff, carried in the name of Williams, showed a balance due of $22,676.12 representing material furnished for a trailer park being developed by defendant. Flett had filed a mechanics lien against the real estate.
Plaintiff’s version of the facts, which must have been accepted by the jury, was to the effect that defendant wanted to secure the release of the mechanic’s lien to facilitate financial arrangements. Williams offered to pay $15,000 cash and execute a personal promissory note for the balance of $7,676.12. Plaintiff prepared a note bearing the date of December 20, 1965, but offered evidence that Williams did not appear to sign the note until December 22, 1965, at which time plaintiff executed a release as to Personal Service Garage, Inc., and a release of the mechanic’s lien. Repeated efforts to collect on the note failed, though defendant did not deny his obligation on the note, and plaintiff ultimately brought this action. Defendant’s position was that the note was executed December 20, 1965, as it recited, and that the payment of $15,000 cash two days later with the attendant releases constituted an accord and satis faction between the parties which extinguished any obligation on tibe note.
Defendant complains on appeal of the trial court’s instructions regarding release and accord and satisfaction. The jury was instructed as follows:
“11.
“A release is in itself a contract whereby one party, for something of value known as ‘consideration,’ gives up some right or claim he has against another. Whether there was a release of any obligation in this case is a question of fact for you to determine.” (PIK Civil 1968 Supp. 18.13b.)
“12.
“An accord is a contract between creditor and debtor for the settlement of the claim by some performance other than that which is due. Satisfaction takes place when the accord is performed. Whether there was a release of any obligation in this case is a question of fact for you to determine.
“13.
“If the plaintiff did not intend or understand that the claimed consideration was to operate as a release or satisfaction, there could be no contract of release or accord and satisfaction.”
At the argument on the instructions, defendant requested an instruction to the effect that the release of one of the obligors would automatically release the other obligor as a matter of law, regardless of the intention of Flett Construction Company, as would appear to be the meaning of instruction No. 13. If Williams and Personal Service Garage, Inc. are considered joint debtors, K. S. A. 16-105 prevents the release of Personal Service Garage from releasing Williams. Defendant, however, points to evidence that Flett treated Williams and Personal Service Garage, Inc. as one and the same, and suggests that if this is true, then the release of Personal Service would release Williams.
This argument overlooks the fact that an essential question for the jury was whether it believed plaintiff’s contention that the note was signed two days after its date, at the same time the releases were .executed. The date of an instrument is one of its formal parts and parol evidence is admissible to show that the instrument was executed on a different date. (Elias Shelton v. Jeremiah Dunn, 6 Kan. 128; West v. West, 135 Kan. 223, 9 P. 2d 981; McFall v. Murray, 4 Kans. App. 554, 45 Pac. 1100.) The jury could properly find that the note was executed contemporaneously with the releases. Further, the jury could logically find that the release was not intended to apply to the note, and that no accord was ever reached by the parties. An accord and satisfaction must be con summated by a meeting of the minds' of the parties and must be shown that he understood that he was so doing. See Harrison v. Henderson, 67 Kan. 194, 72 Pac. 875. For this reason, appellant’s requested instruction would not have been proper. The extent of the release here was a question for the jury. (Vigneron v. List & Hallett Construction Co., 130 Kan. 676, 288 Pac. 570.)
Appellant also requested an addendum to instruction No. 11 to the effect that if there was a dispute between the parties regarding the amount due, then an agreement to accept less than the sum claimed due by plaintiff would be sufficient consideration to support the release between the parties. The only evidence that the account was disputed was the testimony of Williams himself and there was testimony to the contrary.
Assuming that a disputed account is a necessary element of an accord and assuming an instruction similar to that requested by defendant would have been proper Amino Brothers Co., Inc. v. Twin Caney Watershed District, 206 Kan. 68, 476 P. 2d 228, no conceivable prejudice could have inured to defendant in the failure to give the instruction. Defendant bore the burden of proving an accord. Under his proposed instruction, he would have had to prove that the account was in dispute in addition to proving an agreement by the parties entering into an accord. Under the instructions as given, defendant could prevail by showing only that the parties had reached agreement as to an accord with the payment of $15,000 by Williams without having to show the existence of a disputed account, the settlement of which would be sufficient consideration for the accord. The jury’s verdict plainly evidenced its determination that no accord was reached. The failure to give the requested instruction could not have prejudiced defendant.
Defendant’s other objections to the instructions were not presented to the trial court. They may not be considered for the first time here. (Underwood v. Missouri-Kansas-Texas Rld. Co., 191 Kan. 338, 381 P. 2d 510; Boucher v. Roberts, 187 Kan. 675, 359 P. 2d 830.)
On the few disputed issues the jury by its verdict found for the plaintiff. The verdict of the jury is supported by substantial competent evidence.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
The defendant, William E. Wigley, was convicted of selling a narcotic drug, which is a felony, and of possessing barbiturates, a misdemeanor. He was sentenced to a term of from one to ten years on the felony charge and one year in jail on the misdemeanor, the sentences to run concurrently.
Two points, only, are argued on appeal: First, that the trial court erred in admitting a tape recording of a telephone conversation between the defendant and an informer, or undercover agent, for the Federal Bureau of Narcotics, and second, that the trial court erred in refusing to allow the defendant to examine the report of a prosecution witness.
The facts with respect to the first point are as follows: On October 26, 1970, the informer, a man by the name of Froniabarger and two federal agents, Leap and Ingram, met in a Kansas City, Missouri, motel room where a call was placed to Wigley at his barber shop in Wichita. A recording device was attached to the phone from which the call was made and both ends of the conversation were recorded. Froniabarger, who talked with the defendant, was aware of the device and had consented to its being used to record the conversation. During the conversation, Froniabarger agreed to wire the defendant $680 with which to buy an airplane ticket and to “cop a piece” for him. The record indicates that in the nefarious drug trade the term “cop” means to purchase various types of drugs and that “piece” refers to an ounce of heroin or cocaine, or whatever drug is being dealt with. A recording of this telephone conversation was admitted in evidence over the defendant’s objection.
On October 29, 1970, another telephone call was placed to the wayward Mr. Wigley at his barber shop, and Froniabarger again talked with him. While this call was electronically recorded, its contents are not disclosed by the record. Following this call, Froniabarger and a third agent, Klick, flew to Wichita where the purchase of heroin was made.
At the outset it may be said that the defendant concedes no federal question is involved in his first point. On page 7 of his brief, he states:
“Under a very recent federal case, United States v. White, supra, the tape recording of the telephone conversation in question would have been permissable [sic], and the government agents could have proceeded with a Federal prosecution under the Federal criminal narcotic statutes to-wit: 26 U.S.C. sec. 4705 (a) and 21 U. S. A. sec. 174,.”
The question remains: Has Kansas law been violated? The defendant insists that it has; that the recording of his telephone conversation with the undercover agent was in violation of K. S. A. 1971 Supp. 21-4001 and 21-4002. The pertinent portions of these statutes read:
“21-4001. (1) Eavesdropping is knowingly and without lawful authority:
“(c) Installing or using any device or equipment for the interception of any telephone, telegraph or other wire communication without the consent of the person in possession or control of tire facilities for such wire communication.” “21-4002. (1) Breach of privacy is knowingly and without lawful authority:
“(a) Intercepting, without'the consent of the sender or receiver, a message by telephone, telegraph, letter or other means of private communication;
This appeal presents us with our first opportunity to consider or construe these two statutes. Both were enacted by the 1969 legislature as part of the Kansas Criminal Code which became effective July 1, 1970, and both offenses are Class A misdemeanors. Notes of the Judicial Council which drafted the Kansas Criminal Code, indicate that 21-4001 is similar to the Model Penal Code, 250.12 (1) and that the Model Penal Code, 250.12 ( 2) was drawn upon in drafting 21-4002.
As we read these statutes together — although they will require separate analysis — their general import is to protect the privacy of communication between individuals. Yet, we apprehend that society also has an interest in seeing that, in the administration of justice, the law seelc out the best and most reliable information. This concept appears to have been given recognition through the consent features imbedded in the statutes.
K. S. A. 1971 Supp. 21-4002 (1) (a) forbids the interception of messages without the consent of the sender or receiver. In this respect the statute closely parallels Title III, Omnibus Crime Control and Safe Streets Act, 82 Stat. 212, 18 U. S. C. § 2511. Thus we consider the court’s decision in United States v. White, 401 U. S. 745, 28 L. Ed. 2d 453, 91 S. Ct. 1122, as being pertinent to our problem.
In the White case, government agents had monitored certain conversations between the defendant and a government informer, the latter having been “wired for sound”, that is he carried a radio transmitter concealed on his person. In an opinion holding there was no violation of Fourth Amendment rights, Mr. Justice White wrote:
“Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter’s Fourth Amendment rights. Hoffa v. United States, 385 U. S., at 300-303. For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, supra. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.
“. ... An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent. It may also be that with the recording in existence it is less likely that the informant will change his mind, less chance that threat or injury will suppress unfavorable evidence and less chance that cross-examination will confound the testimony. Considerations like these obviously do not favor the defendant, but we are not prepared to hold that a defendant who has no constitutional right to exclude the informer’s unaided testimony nevertheless has a Fourth Amendment privilege against a more accurate version of the events in question.
“. . . Our opinion is currently shared by Congress and the Executive Branch, Title III, Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 212, 18 U. S. C. § 2510 et seq. (1964 ed., Supp. V), and the American Bar Association. Project on Standards for Criminal Justice, Electronic Surveillance § 4.1 (Approved Draft 1971). It is also the result reached by prior cases in this Court. On Lee, supra; Lopez v. United States, supra.” (pp. 751-753.)
Sections 4.1 and 4.2 of the American Bar Standards relating to Electronic Surveillance, to which reference is made in the White case, read as follows:
“4.1 The use of electronic surveillance techniques by law enforcement officers for the overhearing or recording of wire or oral communications with the consent of one of the parties should be permitted.
“4.2 The techniques should be so employed by law enforcement officers that the recording will be insofar as practicable complete, accurate and intelligible.”
In the commentary commencing on page 124 of the approved draft of the Standards relating to Electronic Surveillance, the Advisory Committee notes read in part:
“This standard reflects the prevailing law (citing cases). It recognizes the validity of the use of electronic surveillance techniques for overhearing or recording conversations with the consent of one party in the administration of justice. It does not suggest that their use for this purpose should be circumscribed by a warrant procedure or otherwise be similarly limited. We recognize that another rule might ultimately prevail. . . .
“. . . [W]here informants, whose credibility may be suspect, are used, see, e. g., Osborn v. United States, 385 U. S. 323 (1966) . . . every effort should be made to record the conversations through the best available means. For a recording will reproduce the very words spoken with all the added significance that comes from inflection, emphasis and the other aspects of oral speech. See State v. Reyes, 209 Ore. 595, 308 P. 2d 182 (1957). The goal of finding the truth in the criminal trial demands no less. The defendant, too, has a stake in the best evidence being presented to the court and jury. Thus, recording as such ‘involves no “eavesdropping” whatever in any proper sense of that term.’ Lopez v. United States, 373 U. S. 427, 439. It should not be unthinkingly placed in the same category with wiretapping or bugging. . . .
“The crucial issue in any overhearing or recording situation is instead the right of the witness himself to testify. Where he is entitled to testify, there can be no valid objection to the use of an overhearing or recording device, and the introduction of its product at trial. No one should have the right to exclude the testimony of a third party or a recording and ‘rely on possible flaws in the [witness’s] . . . memory, or to challenge [his] . . . credibility without being beset by corroborating evidence that is not susceptible of impeachment.’ Lopez v. United States, 373 U. S. at 439. . . .”
It is noted that the Standard is geared to the use of electronic surveillance by law enforcement officers, which is, of course, what we are dealing with in the instant case. Here, the surveillance was undertaken and carried out by agents of the Federal Bureau of Narcotics whom we recognize as members of the law enforcement fraternity.
From the record in this case we believe it clear there was no breach of K. S. A. 21-4002 (1) (a) which enjoins interception without the consent of either the sender or the receiver. Consent in this case was undoubtedly obtained from the sender, Mr. Froniabarger.
What of the other statute, K. S. A. 1971 Supp. 21-4001 (1) (c)? It is our opinion that no violation of this statute may validly be charged, either. The statute forbids installing or using a device for the interception of wire communication without the consent of the person in possession or control of the facilities for such wire communication.
The final clause of the statute “without the consent of the person in possession or control of the facilities for such wire communication” does not appear in either the Model Penal Code, the federal statute or the American Bar Standards, and no help is forthcoming from these sources as to the meaning or construction of the phrase. Consequently, since we have found nothing in the committee notes to assist us, we are left to our own bare-bone resources
Since the statute refers to the person in charge of the facilities, not persons, it occurs to us that consent of both sender and receiver was not meant to be required. As between the sender and receiver, whose consent was intended? We believe the answer depends upon who is in possession or control of the telephone upon which the device is installed. In the present case, for example, only Froniabarger, at the sender’s end, was sufficiently in control of the facilities to permit a recording device to be affixed thereto. It was Froniabarger who initiated the call and was in a position to consent to the installation and use of the recording device, not the unwitting party at the other end of the line.
We are aware that our views are not universally shared. In a recent case, State ex rel. Arnold v. County Court, 51 Wis. 2d 434, 187 N. W. 2d 354, on which the defendant relies, the court held that even though the electronic recording of a conversation with the consent of one participant was excepted from statutes which prohibit electronic interception of wire or oral communications, the exception does not authorize the admission into evidence of the fruits of such interceptions. Based on this reasoning, the court held that an electronic recording of a face-to-face conversation was inadmissible in the state’s case in chief, even though one of the parties had consented to the recording. Two members of the court dissented, pointing out that the recording of a communication by one of the participating parties is not the equivalent of an outsider’s uninvited surveillance, or of the interception of a message en route from dispatcher to intended receiver, a point of view which is ardently advanced by the state in the present case.
The Illinois court in People v. Kurth, 34 Ill. 2d 387, 216 N. E. 2d 154, managed to construe the phrase “without the consent of any party” to mean “without the consent of all parties.” In this case, also, two justices dissented in an opinion which appeals to us as being much more sensible.
The defendant calls our attention to K. S. A. 1971 Supp. 22-2513, which provides a procedure by which certain law enforcement officials may obtain an ex parte order authorizing eavesdropping under specified conditions, and he suggests that should the state’s position, in this case, be sustained, it would be tantamount to abrogating the statute. We do not agree. Many situations might arise under the statutes in question where no consent had been obtained from any party and an order authorizing eavesdropping would be required as outlined in K. S. A. 1971 Supp. 22-2513.
The defendant next contends, as a second ground of error, that the trial court erred in refusing to permit him to examine statements of prosecution witnesses after they had testified. The statutory basis for this claim is found in K. S. A. 1971 Supp. 22-3213, sometimes referred to as the little Jencks Act, after a federal statute commonly known by that name. (71 Stat. 595, 18 U. S. C. 3500.)
In pertinent part the statute provides that after a witness for the state has testified on direct examination, the court, on the defendant’s motion, shall order the prosecution to produce any statement of the witness in its hands which relates to the subject of his testimony; if the prosecution claims the statement contains matter unrelated to the subject matter of the witness’ testimony, the statement shall be delivered to the court for inspection in camera for the excision of those parts which do not relate to the subject matter of the testimony given; and if any portion be withheld from the defendant over his objection and the trial continues to a finding of guilty, the entire text of the statement shall be preserved by the prosecution and, in case the defendant appeals, shall be made available to the appellate court for the purpose of determining whether the trial judge ruled correctly. The statute also defines “statement”, but we need not repeat the definition here.
While the present appeal was pending, the defendant filed a motion with this court praying for an order “compelling the County Attorney to submit to the Kansas Supreme Court for review, the statements or reports of Special Agent Harold Leap, pursuant to K. S. A. 22-3213 ( 3) and pursuant to Statement of Points No. 2.” We sustained this motion, and a report of Harold Leap was forwarded to this court, under seal, as directed.
Although the record discloses that Harold Leap testified on behalf of the state at the defendant’s trial, it does not show any motion for an order directing the prosecution to deliver Leap’s pretrial statements or reports to the defendant. The record does reveal that during the cross-examination of Agent Ingram, who was also a prosecution witness, defense counsel requested a copy of Ingram’s statement or report, but no statement made by Leap is shown to have been mentioned at that time.
The record fails even to establish that Agent Leap had ever made a prior statement or report. Be that as it may, however, in the absence of a motion directed to the trial court requesting that Leap’s pretrial statements or reports be produced, error cannot well be predicated on the court’s failure to order the same delivered to the defendant for his examination and use. Nonetheless, we have examined the report of Mr. Leap which has been furnished us and we fail to see how its withholding can be said to have resulted in prejudice to the defendant’s cause.
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The opinion of the court was delivered by
Johnston, C. J.:
The point in dispute herein is the validity of a lease executed on December 11, 1889, by David Ahlberg to the Lyons Rock Salt Company, giving the exclusive right to take salt from a tract of land that constituted a rural homestead. Mrs. Ahlberg, who occupied the land with her husband, did not sign the lease; and when told of it, about the time of its execution, remarked that it was wrong to sign things without her consent. The salt company acquired the right to mine salt under adjoining lands, and in May, 1890, began operations by sinking a shaft within 200 feet of the Ahlberg land to a depth of more than 1000 feet. Buildings were erected and machinery and mining appliances installed which cost $130,000, but none of them was placed on the Ahlberg land, nor was the surface in any way occupied or disturbed by the salt company. The plant was installed and the shipping of salt begun in 1891, and, the money for the plant having been furnished by Bevis, the property was ultimately transferred to the Bevis Rock Salt Company.
During the sinking of the shaft and the erection of the buildings and other improvements Mrs. Ahlberg was frequently at and near the plant, observed the purposes and progress of the operations, and knew that the expenditures were made for the mining of the salt under the homestead and in pursuance of the contract with her husband. Except the remark made when she first learned of the lease, she never remonstrated or complained to any one connected with the operation of the mine, although some of the workmen boarded at her house. She did not even suggest to her husband that the work should be stopped because she had not signed the lease or given her consent to it.
In the spring of 1893 the Ahlbergs removed from the homestead and established a residence in the city of Lyons, where they remained until the fall of 1895; and during their residence in the city Ahlberg exercised the privileges of an elector there, and otherwise manifested an intentional change of residence and an abandonment of the rural homestead. They returned to the farm in the fall of 1895, and lived there until 1902, when they moved back to the city; and they were not occupying the farm when it was sold to the plaintiff, John J. Shay. After the abandonment of the homestead by the Ahlbergs the salt company continued to operate the mine and expended $25,000 additional in improvements, and the company was in the possession of, and actively operating, the mine when Shay acquired the land.
One of the defenses of the salt company was that the Ahlbergs and their grantees were estopped from asserting that the lease was invalid, or that the mining rights had not been effectually transferred to the salt company, and this defense the court sustained. It is conceded that the lease was not signed by Mrs. Ahlberg, and that her consent was not given when the lease was executed; and plaintiff insists that it was void when it was made and that the conveyance to him gave him everything on the surface and under it. The defendant contends that, as the surface of the land was not disturbed, nor its occupation as a homestead impaired, the joint consent of the wife was not essential to its validity. We find it unnecessary to determine that question, but, assuming that the lease carried such an interest in the homestead, as required the joint consent of husband and wife, the court correctly applied the doctrine' of equitable estoppel as against the claim of Shay. Assuming that consent was necessary, it was not essential that it should be in writing; and as she could have given an oral consent, the lease was not necessarily bad on its face. (Pilcher v. A. T. & S. F. Rld. Co., 38 Kan. 516, 16 Pac. 945, 5 Am. St. Rep. 770; Dudley v. Shaw, 44 Kan. 683, 24 Pac. 1124; Durand v. Higgins, 67 Kan. 110, 72 Pac. 567.)
The salt company proceeded on the theory that the lease was valid, and made a large outlay in the belief that the Ahlberg lease, as well as others likewise executed, gave it mining rights under the lands. Mrs. Ahlberg knew of the existence of the lease; that it purported to give the right to mine for salt under her husband’s land; and that a large amount of money was being invested for the purpose of mining salt under the land in pursuance of the lease. She lived within a short distance of the mine and in view of the work, visited and passed the plant, and was in contact with those engaged in the work; but she and her husband remained silent as to any defect in the lease, and allowed the salt company to believe that both were assenting to the lease and were recognizing the rights which the lease undertook to transfer. They did not protest or speak when they should have spoken, and neither they nor their grantee should now be heard to speak or complain.
It has already been determined that equitable estoppel may be invoked to defeat the operation of the homestead law, and parties may by their conduct and acquiescence be estopped from asserting that a transfer, insufficient in the first instance, is not finally sufficient and valid. The doctrine was applied in McAlpine v. Powell, 44 Kan. 411, 24 Pac. 353, where an owner of land occupied as a homestead undertook to convey it in exchange for another home, and it was finally claimed that the deed of conveyance was invalid because the wife did not in fact sign it. She, however, knew of the exchange, acted in accordance with the terms of exchange, expressed satisfaction with it, and occupied and enjoyed the benefits of the land received in exchange; and it was held that she was equitably estopped from claiming the homestead.
In Sellers v. Crossan, 52 Kan. 570, 35 Pac. 205, an owner of a homestead and her husband executed a deed purporting to convey a complete title. They subsequently made the claim that the deed was in fact a mortgage, given to secure the payment of borrowed money. Their grantee, however, executed a mortgage on the tract, and, as those claiming the homestead and who still held the possession of the land had not signed that mortgage, it was claimed that it was ineffectual. It was shown that after they had executed the deed they had disavowed ownership of the land and had acted so as to induce the belief that they had neither title nor homestead interest in it, and it was held that they were estopped to claim any. The case of Sellers v. Gay, 53 Kan. 354, 36 Pac. 744, was based largely on the facts of the last-cited case, and the same rule of estoppel was applied as against a claim of homestead.
In Adams v. Gilbert, 67 Kan. 273, 72 Pac. 769, 100 Am. St. Rep. 456, the principle of equitable estoppel was again invoked and applied. There a husband having an insane wife signed a deed to a homestead. Later he surrendered the possession to one holding under his deed and put the grantee in possession. Extensive improvements were made and much money expended by the grantee with the full knowledge of the grantor; and it was held that these facts embraced all the necessary elements of equitable estoppel, and the court denied the claim of the grantor to the property. (See, also, Johnson v. Samuelson, 69 Kan. 263, 76 Pac. 867; Spafford v. Warren, 47 Iowa, 47; Brown v. Coon, 36 Ill. 243, 85 Am. Dec. 402.)
In this case, as in Adams v. Gilbert, 67 Kan. 273, there was an abandonment of the homestead. If we put aside the elements of estoppel which existed prior to the abandonment, that which occurred subsequently was certainly sufficient to estop both of the Ahlbergs. Although Ahlberg owned the property for nine years after surrendering the homestead right in the land, the attitude of himself and his wife was that of assent to the right claimed under the lease, and it was such as to induce the belief of the salt company that the mining right was unquestioned and valid. During that time the mine was operated, improvements made and a large amount of money invested by the salt company. Each of them knew of these operations and expenditures, and each knew that they were carried on and made in pursuance of the lease and on the faith of a valid transfer, but neither protested nor raised a single objection. Both had complete information, both acquiesced in the possession and claim of right by the salt company, both acted as if a good transfer had been made, and it would be inequitable now to allow them to repudiate their recognition and to assert that the transfer was invalid. It would operate as a fraud on the salt company to permit them to deny what they had led that company to believe, and upon which it had acted.
Shay is in no better position than his grantors. The lease was on record, and the lessees were in the open possession of the mine. By inquiry he would have learned all the circumstances, including those which showed that the company had acquired a mining right in the land — one which was as binding upon him as it had been upon the Ahlbergs.
There is nothing substantial in the objections to the admission of testimony, nor in the claim that the findings of the court were not supported by the evidence. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
Plaintiif in error is the widow of Dr. T* E. Taylor, who was a member of the local camp of the Modern Woodmen of America at Circleville, Kan. He died in March, 1900, holding a benefit certificate of $2000 in the society. This is an action to recover upon the certificate. The same case was before the court in Modern Woodmen v. Taylor, 67 Kan. 368, 71 Pac. 806, and was reversed for the reason that there was no allegation in the petition nor any showing made that Doctor Taylor had appealed from the ruling of the clerk of the local camp in refusing his assessment, and for error in the instructions which informed the jury that the appeal from the clerk’s ruling provided for in the by-laws was permissive and not obligatory. Upon the second trial the court below gave a peremptory instruction to find for defendant, and plaintiif brings this proceeding in error.
The record presents in some important particulars a case entirely different from the one reviewed before. On the former trial the clerk of the local camp, George Starcher, testified that he refused the assessment “on the ground that he [Taylor] was intemperate and used cocaine or opiates, and therefore according to the bylaws we could not receive his assessment.” The benefit certificate upon which the action is based contains a provision that it shall become null and void if the holder becomes so far intemperate in the use of alcoholic drinks or opiates as permanently to impair his health or to produce delirium tremens. Section 276 of the by-laws prohibits the clerk from receiving dues or assessments “from a member whom he knows to be addicted to the intemperate use of intoxicants or opiates to such an extent as to be frequently under the influence thereof, or intoxicated, or use drugs to such an extent as to injure his health.” Section 329 of the by-laws provides for an appeal from the decision of the clerk in refusing dues or assessments to the local camp, and section 332 makes the decision of the clerk in refusing an assessment final and conclusive, unless appealed from as provided for in section 329. For the reasons that the petition did not allege an appeal, and that no showing was made that an appeal had been taken or of any excuse or waiver thereof, the cause was reversed and remanded. For a fuller statement of the by-laws see the former opinion.
Upon the second trial the same clerk testified that he refused the assessment for the reason that Doctor Taylor had been suspended by the local camp for being in arrears. He related what took place at a meeting of the local lodge on the evening of October 30, 1899, beginning with an informal gossip before the lodge was called to order, as follows:
“Then they drifted onto Taylor’s matter, and asked me if I did not know it, and they said they had taken him away. This was on our meeting night, about October 30; and they had taken him away. They told the reason why they had done so; that he was using opiates to excess, and then they dropped the question from then until the lodge opened up and got in working order. They went ahead with their work like any other business, and when they came to that item they brought it up before the lodge, while all the members were there, and explained matters; and I said he was in arrears. I said that according to our by-laws we would have to drop him; and they said if he was in arrears to let him drop and to instruct the assistant clerk not to accept any more dues, and for me myself not to accept any more assessments or dues from that time. That was about all that was done then. I instructed the assistant clerk that no money was to be received from him until we heard from the head camp.”
Plaintiff allowed this testimony to be given without objection, but moved to strike it out as not the best evidence. The ground of the motion is too narrow. The evidence was irrelevant and immaterial. The answer did not plead a suspension by the camp, but did specially plead a suspension by the refusal of the clerk to accept the assessment upon other grounds, namely, “for the reason that said local clerk knew said T. E. Taylor to be in impaired health, and further that he knew said T. E. Taylor to be addicted to the intemperate use of intoxicants and opiates to such an extent as to be frequently under the influence thereof, and that he knew and believed that said T. E. Taylor used drugs to such an extent as to injure his health.” The answer further averred that this decision of the clerk, “with the reasons therefor,” was communicated 'to Doctor Taylor at the time of the refusal of the tender of the delinquent assessment, and that no appeal from the decision of the clerk was ever made. It is apparent that the proof offered not only differed materially from that given on the former trial but wholly failed to establish this particular defense, which in the answer was termed the “third defense.”
The by-laws provide for an appeal from the ruling of the clerk to the local camp, from the decision of the local camp to the executive council, and from the latter to the head council; but the evidence upon this trial showed a decision or ruling by the local camp, which was merely communicated to Doctor Taylor by the clerk, and which was not a ruling of the clerk. Nor were the reasons given for the ruling the same as those claimed in the answer.’ As was said in the dissenting opinion of Mr. Justice Smith in the former case, “forfeitures are not favored in the law, and courts lean against them.” Defendant in error, in order to establish a forfeiture of the benefit certificate, must do so by strict compliance with the provisions of the contract itself, the by-laws of the order, and the rules of pleading and evidence. Courts, “in construing the conditions of membership when a forfeiture is claimed, will preserve, if possible, the equitable rights of the holder of the certificate of membership.” (Modern Woodmen v. Jameson, 48 Kan. 718, 30 Pac. 460.)
For convenience we shall now refer to what was termed in the answer the “second defense,” which, briefly stated, was that Doctor Taylor failed to pay the October, 1899, assessment. C. A. Oursler, the father of Mrs. Taylor, testified that he tendered to Meeks, the assistant clerk of the camp, Doctor Taylor’s assessment for October on the 20th day of October, 1899, and that Meeks said he could not receive it. Mrs. Taylor testified that on that date she handed to her father eighty-five cents, the amount of the assessment, and asked him to take it to the clerk, as Doctor Taylor was out of town; that before leaving the doctor charged her to be sure to attend to the payment. Her brother, R. L. Oursler, a member of the camp, testified that he paid his own assessment to Mr. Meeks on October 28, 1899, and asked the latter if Doctor Taylor’s assessment had been paid for that month, as the doctor was away from home, and Meeks said that it had not been paid; that he (the witness) then said he would go and see his father about it and have it attended to; that Meeks replied that C. A. Oursler had been there several days before and made a tender of the assessment, but that he could not receive it. Meeks was a witness for the defense, and admitted that the tender was made by Mrs. Taylor’s father, but fixed the date as of November 9.
Notwithstanding this direct conflict upon the material issue raised by the second defense, counsel for defendant in error argue that “there was no real conflict in the evidence adduced upon the trial — absolutely no conflict as to matters material to the determination of the issues.” The answer set up three defenses. It is said in the briefs that the trial court gave the peremptory instruction to find for defendant upon the theory that there was no conflict in the testimony upon the issues raised by the first and third defenses. The record is silent as to this, but it is probable that such was the view taken by the court, as there can be no question of a direct and substantial conflict upon the issues raised by the second defense.
We now come to the first defense, which was that the benefit certificate contained a provision that the same should be void if the holder of it should become intemperate in the use of drugs to such an extent as “permanently to impair his health.” It also set up an amendment to the by-laws, adopted June 9, 1899, known as section 13, which reads as follows:
“If any member of this society, heretofore or hereafter adopted, shall become intemperate in the use of alcoholic drinks or in the use of drugs, the benefit certificate held by said neighbor shall by such acts become and be absolutely null and void as to benefits, and all payments made thereon shall be thereby forfeited.”
It was then alleged that Doctor Taylor, for a period of eighteen months prior to the time of his death, became and was intemperate in the use of drugs, and that, for that period, he became addicted to and did use them to such an extent as permanently to impair his health. This defense is grounded in part upon the violation of section 13 of the by-laws, and in part upon the violation of the warranty clause in the benefit certificate. It will be considered from both standpoints, as it is contended by plaintiff in error that section 13 of the by-laws, having been adopted after the issue of the benefit certificate, cannot be given a retroactive effect, and that it was error to permit it to be introduced in evidence, as a violation of its provisions furnished no ground of defense.
It will be observed that there is no penalty provided by this amendment for a member who was addicted to the use of drugs at the time the amendment was adopted — June 9, 1899. The answer made no claim that Doctor Taylor’s condition or habit was acquired after the adoption of the amendment. The testimony of Doctor Simpson, the principal witness offered by defendant to prove the habit, was that he first saw the doctor April 15, 1899, and from the examination made at that time his opinion was that Doctor Taylor had been using morphine for at least two years. This examination was made prior to the adoption of by-law 13, and the question is whether this by-law is to be interpreted as intended to apply to a member who had already acquired the habit and had already become intemperate.
This court, in a recent case (United Workmen v. Haddock, ante, p. 35), had occasion to review the authorities upon a similar question. The by-law in that case provided:
“Any member of the order who shall, after August 1, 1898, have entered or who shall hereafter enter into the business or occupation of selling by retail intoxicating liquors as a beverage shall stand suspended from any and all rights to participate in. the beneficiary fund.”
It was held that the by-law in that case “does not in terms apply to the case of a member who, prior to that time, was engaged in such business and who remains in it continuously thereafter.” In that case all payments made upon the certificate after the adoption of the amendment were tendered back to Mrs. Haddock after her husband’s death. In the case at bar defendant claims apparently that it can accept and retain the payments made upon Doctor Taylor’s certificate during the period from eighteen months prior to his death, when it is alleged he became addicted to the use of drugs, up to the time his assessment was refused, four months prior to his death, and still defeat an action upon the certificate by showing that he had become addicted to the use of drugs prior to the adoption of the amendment. It was not alleged in the answer that the knowledge of his habits in this respect was acquired by defendant after the acceptance of the previous assessments. In construing the by-law in the Haddock case, supra, Mr. Justice Mason, speaking for the court, said:
“A more difficult question is whether the law adopted in 1898 is to be interpreted as intended to affect the status of one who, like Haddock, having already engaged in the business of selling liquor, continued such occupation after that time without interruption. Construed literally, it has no application to such a case. Haddock did not enter into the forbidden occupation after August 1, 1898. He entered into it long before that time, and remained in it continuously. To make the expressions used apply to one in his situation, it would be necessary to give them a very liberal, if not a strained, construction. No freedom of interpretation, however, should be indulged to accomplish the forfeiture of property rights. If it had been the design of the framers of the new law that it should apply to members whp were already liquor-sellers it is reasonable to suppose, that language would have been employed plainly indicating such a purpose, and that there would have been express reference to those who remained in the business as well as to those who entered it. In that case it seems probable, too, that some time would have been fixed within which such persons might save their rights by changing their occupation. It is hardly conceivable that there was a deliberate intention to make the amended law operate as an immediate decree of expulsion against any members who were at the time engaged in the interdicted business. Yet such would be the effect given it by the interpretation proposed by the plaintiff in error. The provision that a member’s certificate should become null and void from the date of his engaging in the business also supports the theory that the operation of the enactment was intended to be wholly prospective. We conclude that the law of 1898 did not affect, and was not intended to affect, the standing of Haddock.” {Ante, p. 38.)
We think the reasoning of that case and the authorities cited apply with equal force to section 13 in the case at bar. A man engaged in selling liquor can quit the business with much less difficulty than one of his steady customers can quit the habit of drinking it or than one confirmed in the use of drugs can throw off the slavery of his habit and acquire his independence. In construing the provisions of such contracts courts should consider the frailties of human nature, which, doubtless, were in the minds of the framers of the amendment to these by-laws. As was said in plaintiff’s brief, this section “provides no penalty unless the member shall become intemperate. There is no penalty for one who is, or shall be, intemperate at the time of the enactment of the by-law. By the wording of this section it is manifest' that the society intended to make intemperance ah offense only as to those members becoming intemperate after the by-law was passed. According to Webster, the word ‘become’ means to pass from one state to another; to enter into some condition, by change from another condition; or by receiving new or additional properties or qualities. It is not alleged by defendant that Taylor’s condition was different after the passing of section 13 than it had been before.”
Section 13 furnished no ground of defense to the action, and it was error to. admit it in evidence. The contention of defendant is, however, that the court was justified in giving the peremptory instruction because the evidence was conclusive to the effect that Doctor Taylor had become intemperate in the use of drugs to such an extent as permanently to impair his health, and that this furnished a complete defense, aside from the provisions of section 13, inasmuch as this condition is in violation of the provisions of the benefit certificate itself. Doctor Simpson, a witness for defendant, refused to say that Doctor Taylor’s health was “permanently” impaired, and no other witness testified upon this point.
Defendant cites Railway Co. v. Withers, 69 Kan. 620, 77 Pac. 542, 78 Pac. 451, where it was held that a verdict should have been directed. That case has no application here. The opinion expressly stated that the evidence of defendant added little to that offered by plaintiff. The plaintiff’s own testimony, moreover, established contributory negligence sufficient to bar a recovery. In Kelley v. Ryus, 48 Kan. 120, 29 Pac. 144, it was said:
“Where evidence is introduced on the trial which, if uncontradicted, would fairly prove all that is necessary for the plaintiff to prove in order to make out his case, it is error for the trial court to instruct the jury to find for the defendant, although such evidence might be contradicted by other evidence. The court has nothing to do with any conflict in the evidence, but must submit the question as to which is true and which not to the jury.” (Syllabus.)
To the same effect see Sullivan v. Phenix Ins. Co., 34 Kan. 170, 177, 8 Pac. 112; Brown, Adm’r, v. A. T. & S. F. Rld. Co., 31 Kan. 1, 1 Pac. 605. The recent case of Railway Co. v. Geiser, 68 Kan. 281, 75 Pac. 68, is in point. That was an action for damages by fire alleged to have been caused by the negligent operation of a locomotive-engine. The court said:
“In the case at bar sufficient evidence was offered by the plaintiff to make out a prima facie case. The railway company then offered proof tending to establish the fact that the engine which set out the fire was equipped with the latest and best appliances to prevent the escape of fire therefrom, was in good repair, and was being skilfully handled by competent employees. Here was a case of evidence against evidence. . . . If it is a question of evidence against evidence, or of a conflict of evidence, upon what theory would the court be authorized to take the decision out of the hands of a jury and pronounce, as a matter of law, that the railway company’s witnesses were in all respects to be believed, and that their conclusions as to the condition of the engine and the skill of the employees were beyond the pale of contradiction?” (Page 282.)
The contention of the railway company in that case was that as the statutory presumption of negligence on the part of the company had been rebutted by positive evidence on behalf of defendant the court should have directed a verdict. Here it is claimed that the prima facie case made by the plaintiff was rebutted by the defendant’s witnesses as to the intemperate use of drugs, and, therefore, that the verdict should have been directed. But to do this the court would have to assume that the testimony of defendant’s witnesses was to be taken as true as a matter of law. The rule that authorizes a trial court to direct a verdict is governed by the same principles that authorize that court to sustain a demurrer to the evidence; the principles differ slightly in their application. There was a conflict of the evidence upon all the issues raised by the pleadings, and the case should have been submitted to the jury.
We have examined the reply and do not think that plaintiff has, by pleading knowledge on the part of defendant with respect to the habits of Doctor Taylor, thereby admitted the use by him of drugs to the extent claimed in the answer.
As the case must be reversed it is proper to mention some errors complained of in reference to testimony. It appears that over the objections of plaintiff the clerk was permitted to state, in answer to several questions, what had occurred at meetings of the local camp, all of which were matters of record. He was also permitted to state the contents of a letter received from the head camp. All of these were mere conclusions, and, besides, no attempt was made to lay a foundation for secondary evidence. Some of the records of the local camp being offered by defendant, it was proper for plaintiff to introduce the entire record of the proceedings, if any of the records were proper under the pleadings as they stood.
The cause is reversed and remanded for further proceedings in accordance herewith.
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The opinion of the court was delivered by
Greene, J.:
The plaintiff, W. E. Sloan, who was doing business under the name of W. E. Sloan & Co., recovered judgment for damages resulting to him from a breach of contract by defendants, and they prosecute error. The plaintiff pleaded an offer made to him at Wichita, Kan., by the defendants at New Castle, Colo., to sell and ship to him at Wichita six cars of potatoes of a particular kind and quality, for a given price, shipments to begin on or about October 26, 1903, and his acceptance of defendants’ proposition, and a neglect and refusal by the defendants to comply with the contract, in consequence, of which plaintiff was damaged $315. The answer was a general denial.
It would serve no purpose to discuss the facts or the evidence in this case; suffice it to say that the evidence supports all of the material findings of the jury, and such findings made it necessary for the court to render judgment for the plaintiff.
Contentions of the plaintiffs in error not disposed of by the above conclusion are, first, that the court misconceived the theory upon which the action was brought, and consequently his instructions were not applicable. Upon this question it is contended that the action was brought and tried on the theory that the plaintiff was selling potatoes on commission; that, therefore, the failure of the defendants to fulfil their contract could only result in a loss to plaintiff of his commission for selling them; and that the instructions were based on the theory that plaintiff claimed to be a dealer and his damages should be measured by the difference between the contract price of the potatoes and the market value at the time and place they were to be delivered. The theory of the action was not misconceived by the court. The action was not brought by plaintiff as a commission merchant, but as an independent dealer.
Another contention is that the court erred in copying the petition and exhibits into the instructions and submitting them as a whole to the jury. It is much better practice for the court succinctly to state the issues to the jury; in many cases the pleadings do not strictly conform to the code in simplicity, and therefore tend to confuse rather than to elucidate the questions before the jury. (Railroad Co. v. Eagan, 64 Kan. 421, 67 Pac. 887; Stevens v. Maxwell, 65 Kan. 835, 70 Pac. 873; Myer v. Moon, 45 Kan. 580, 26 Pac. 40; Railroad Co. v. Dalton, 66 Kan. 799, 72 Pac. 209.) In this case, however, the petition was short, and the issues were distinctly stated in the instructions to the jury. Therefore, it cannot be said that it was prejudicial error to incorporate a copy of such a petition in the instructions.
Another contention is that the amount awarded the plaintiff is grossly excessive, tending to indicate that it was the result of prejudice, and for that reason the verdict should have been set aside. The amount recovered was $315 and interest. The plaintiff claimed that his purchase was six cars. The evidence showed that a car holds about 500 bushels; that before accepting the defendants’ offer the plaintiff had sold 1500 bushels at an advance of 10 cents per bushel, and 1500 bushels at an advance of 11 cents per bushel. A computation shows plaintiff’s loss because of defendants’ breach of contract was $315. To this amount the jury added interest amounting to $5.51. It does not appear from the petition that the plaintiff asked for interest, but the court in one of its instructions told the jury that if they found for the plaintiff they might award him six per ceiit. interest on the amount so found due, and it was in pursuance of this instruction that the jury computed the interest. It cannot be contended that the awarding of this additional amount, under the instruction of the court, is conclusive evidence that the verdict was the result of passion or prejudice. There was no complaint of this instruction. The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
On September 22, 1903, the plaintiff delivered to the defendant at Florence a car-load of flour for shipment, consigned to “shipper’s order; notify D. B. Kirk & Co., Kansas City, Mo.” On the following day the plaintiff drew on Kirk & Co. for the price of the flour, attaching the bill of lading to the draft. On September 25 the draft was dishonored on account of a claimed defect in the quality of the flour. The plaintiff then recalled the draft and bill of lading, and took the bill of lading to the defendant’s agent at Florence and ordered the flour diverted to Nashville, Tenn. On October 2 the bill of lading was changed according to direction, and the order of diversion was duly transmitted to the company’s agent at Kansas City.
On October 5, when the defendant attempted to comply with the order of diversion, it found the flour in the possession of Kirk & Co. It seems that employees of Kirk & Co. had discovered the car on a sidetrack leading to the firm’s warehouse, and had taken possession of it and unloaded it without the knowledge of their superiors, and without the knowledge of the defendant. In consequence of this fact the defendant' was unable to comply with its contract to transport to Nashville.
The defendant, through its agent at Florence, then conferred with the plaintiff, and, after explaining the situation, gave the plaintiff the impression that the Kirk & Co. draft would be taken up if it were returned to Kansas City. The agent further said there would be a speedy adjustment of the claim, he thought; that officials were coming to Florence for that purpose; and suggested that the plaintiff return the draft and bill of lading to Kansas City for collection. The plaintiff consented to do as the agent advised, but stated to him at the time that he would hold the defendant responsible for the flour.
Afterward the defendant regained possession of the flour, but did not forward it according to the shipper’s order. Kirk & Co., having furnished the sacks in which the flour was contained, claimed title to them, and also claimed that they expected to come to an understanding with the plaintiff within a few days. The second draft was not paid; and on October 10 Kirk & Co. commenced an action of replevin against the defendant for the sacks, which resulted on October 27 in a judgment for the defendant. On October 29 Kirk & Co. garnished the flour in the defendant’s possession, and a portion of it was afterward sold to satisfy orders made in the case. The plaintiff was duly notified by the defendant of the pendency of both the Kirk & Co. suits, but declined to appear or defend.
After a request upon the plaintiff for instructions the remainder of the flour was disposed of by the defendant under the statutes of the state of Missouri, and the net proceeds held for the plaintiff’s use. After a demand upon the defendant for the full value of the car of flour, the plaintiff brought an action and obtained a verdict and judgment.
In answer to special questions the jury found the material facts of the controversy. The plaintiff furnished the only evidence relating to the drawing of the second draft. From that evidence the jury found the draft was made under the advice of the defendant. The statement to defendant’s agent that the plaintiff would hold it responsible for the flour occurred in the same conversation, and was not denied. Hence the finding fairly may be construed to exclude, as the evi dence and general verdict clearly do, the notion that the plaintiff waived any of his rights or in any manner released the defendant from liability by making and sending forward the second draft with the bill of lading attached.
With the record in the condition noted the case may be determined upon the broad ground marked out by counsel for defendant, viz.: Did the defendant do its whole duty, and was the plaintiff’s loss the result of his own laches? The defendant’s contract was to deliver according to the shipper’s order, and when it allowed Kirk & Co. to obtain possession of the flour without presentation of the bill of lading it was guilty of a misdelivery. The request for a diversion of the consignment from Kansas City to Nashville was a demand for the property — an order from the shipper— with which it was the defendant’s duty to comply. That it could not do so was the result of its own wrongful act. Except for the inexcusable loss of possession it might have diverted the car immediately upon receiving instructions to that effect, and all subsequent complications were the result of that original fault.
The fact that the bags when furnished to the plaintiff belonged to Kirk & Co. gave the latter no right to the possession of them, much less the right to detain the entire consignment of flour. The bags were voluntarily turned over to the plaintiff to be filled with flour. In a certain sense the process of manufacturing flour for market is not entirely complete until the flour is encased in sacks. At least, the product is not merchantable until that or its equivalent is done, since the commodity cannot be handled in bulk. When once a bag has been filled with flour the two cannot be separated without loss, and it is not contemplated that they shall be separated, except as the flour is finally consumed. For all practical commercial and legal purposes the bag and its contents become inseverable. They are no longer independently identified as so many pounds of flour and a bag, but they become united in a single entity — a sack of flour. The flour, however, is the principal thing. The sack is but a minor accessory to the flour, and in comparison with it is óf an almost negligible value.
Therefore, under ordinary circumstances, and in the absence of an express agreement to the contrary, a party supplying sacks will be held to consent that his subsidiary and relatively unimportant contribution to the final product shall become an accession to the contribution of the manufacturer. If by accident, inadvertence, mistake or other conduct not involving fraud a sack be improperly filled the result is the same as if it were lost or destroyed. The remedy is not by replevin, but through an action for damages, since the law as a means of justice will not jeopardize the overwhelming mass and value of the article for that which is insignificant and incidental. (D. Merritt v. Johnson, 7 Johns. [N. Y.] 472, 5 Am. Dec. 289; Wetherbee v. Green, 22 Mich. 311, 320, 7 Am. Rep. 653; Pulcifer v. Page, 32 Me. 404, 54 Am. Dec. 582; Arnott and Archer v. K. P. Rly. Co., 19 Kan. 95.) From this it follows that the claim of Kirk & Co. to the sacks furnished no justification for the defendant’s failure to obey the order of diversion.
The defendant having suffered itself to be deprived of the property, and having offered an impotent excuse for not complying with the demand lawfully made upon it, the plaintiff had the right to treat the property as converted. (6 Cyc. 472.) This he did on October 6, and so notified the defendant. Although the defendant regained possession of the flour it neither offered to perform the contract of carriage nor to return the property. It merely notified the plaintiff to defend certain suits. These suits having been commenced after the plaintiff had elected to hold the defendant responsible in damages, and had so advised the defendant, they did not concern the plaintiff, and he was not guilty of laches in ignoring them.
“Where a common carrier fails and refuses to de liver to the consignee property shipped over its line, the consignee has a right to elect to claim damages for the value of the property, and to waive all title to it; and, after the carrier has been notified of such election, the property belongs to it, and is not subject to attachment in its hands as being the property of the consignee.” (Hamilton v. C. M. & St. P. Ry. Co., 108 Iowa, 325 [syllabus], 72 N. W. 536.)
For like reasons the plaintiff was not obliged to direct the disposition to be made of the remnant of the property in the defendant’s custody after the execution sale, and the conclusion upon the whole matter must be that the defendant was guilty of a breach of duty, while the plaintiff was free from fault.
A carrier is not warranted in refusing a rightful claim to property because one whose title is shown to be invalid by its mere description represents that he expects to be able to arrive at an understanding with the owner within a few days. Therefore, the first instruction asked by the defendant was properly refused. The fourth instruction asked was incorrect for reasons already set forth; and, in view of the facts found and concerning which there is no controversy, the instructions which were given and which are now assailed could scarcely have been prejudicial, even if it be conceded they were erroneous.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
The defendant appeals from a conviction upon one count of an information charging him with selling intoxicating liquor without having procured a permit therefor. The state at the trial elected to rely for conviction upon the evidence relating to a sale made to Oscar Cardin. The defendant claims that the evidence was that N. C. Loftin gave Cardin the money and asked him to buy the liquor and bring it to him, and that Cardin did so; that Loftin’s sole purpose in the matter was to obtain evidence against the defendant. It is contended that this evidence did not tend to show a sale to Cardin but only a sale to Loftin. The contention is not sound. So far as the defendant was concerned it was a sale to Cardin.
The defendant is a physician, and the argument is made in his behalf that there is nothing in the evidence to show that the transaction complained of was other than a lawful administering of the liquor by him as a medicine. It is at least doubtful whether there was anything in the evidence to raise an issue of this character, but the court submitted it to the jury, directing an acquittal unless it should be found that the liquor was sold as a beverage. If there was error in this it was on the side of the defendant, and as the evidence was sufficient to sustain a conviction under the instruction given the defendant has no ground of complaint.
The defendant was acquitted upon several counts and assigns as error that he was charged with all the costs of the proceeding. As no motion to retax costs was made this is not a matter to be considered now.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The grand lodge of the Ancient Order of United Workmen of the state of Kansas, an insurance association, prosecutes error from a judgment rendered against it in favor of Jane Haddock upon a beneficiary certificate issued to her husband, John Haddock. The judgment must be affirmed unless the certificate was avoided under the rules of the order by the fact that John Haddock was a saloon-keeper. He became a member of the Workmen in 1880, being then engaged in the business of selling liquor in Kansas. At that time neither the laws of this state nor of the association forbade that occupation. After the enactment of the prohibitory law Haddock continued in the same business, but changed his location to Missouri, so that there is no claim that he was at any time a violator of the statute. He remained in the business until his death, in 1903.
In 1889 a by-law of the grand lodge was adopted providing, among other things, that “no person shall be admitted to membership or retained as a member in this jurisdiction . . . who is engaged in any way in the sale of intoxicating liquors as a beverage.” The by-law was silent as to how this requirement should be enforced, except for a further declaration that any lodge offending against any of the provisions of the section in which it was found should be deprived of its charter. On August 1, 1898, the supreme lodge of the order adopted a law reading as follows:
“Any member of the order who shall, after August 1, 1898, have entered or who shall hereafter enter into the business or occupation of selling by retail intoxicating liquors as a beverage, shall stand suspended from any and all rights to participate in the beneficiary fund of the order, and his beneficiary certificate shall become null and void from and after the date of so engaging in said occupation, and no action of the lodge of which he is a member, or of the grand lodge or any officer thereof, shall be necessary or a condition precedent to any such suspension. In case any assessments shall be received from a member who has thus engaged in such occupation after August 1, 1898, the receipt thereof shall not continue the beneficiary certificate of such member in force, nor shall it be a waiver of his so engaging in such occupation.”
After the adoption of this law Haddock maintained his relations with the order and continued to pay his assessments regularly. They were received by the officers of the local lodge with knowledge of the facts regarding his occupation, and were by them forwarded to the proper officers of the grand lodge. All payments made after that time, however, have been tendered back to Mrs. Haddock since her husband’s death. The questions involved are: (1) Whether the terms of the by-laws referred to preclude a recovery upon the certificate; (2) if so, whether it was competent for the order to adopt them as against Haddock; (3) whether the grand lodge was estopped to invoke the benefit of these by-laws in this case. Owing to the conclusion we reach regarding the first question it will be unnecessary to consider the others.
It is sufficiently clear that the by-law adopted in 1889 did not affect Haddock’s standing in the lodge or the rights of the beneficiary under the certificate. While it forbade the. acceptance or retention as members of the lodge of persons engaged in the business of selling liquor, it did not profess to be self-operating; it provided no machinery by which it could be enforced, and no effort was in fact ever made under it to terminate Haddock’s membership. A very similar question was discussed in Steinert v. United Brother hood of Carpenters & Joiners of America, 91 Minn. 189, 97 N. W. 668, where it was said:
“The constitution provided that ‘no person who.engages in the sale of intoxicating drinks can be admitted or retained as a member.’ . . . The question is: Must charges be preferred and an opportunity to defend given to an accused member before his membership ceases, or does the act of selling intoxicating drinks terminate the membership without any further proceedings? That Steinert disregarded the laws of the order stands admitted, but it does not follow that this fact of itself ended all liability of the defendant on his certificate of membership, issued when he was eligible, under which he had good standing, and in which he had acquired a property right. This depends entirely on the contract of membership, of which the constitution was a part. It was expressly provided in the certificate that a member must strictly adhere to his obligation, and obey the constitution and all rules of the union based thereon. No person who engages in the sale of intoxicating drinks can be ‘retained’ as a member. Provisions of this kind, which may deprive one of property rights acquired when paying dues from time to time, are to be construed strictly, for forfeitures are not favored in the law. A member should not be deprived of benefits arising out of his certificate of membership unless a construction of the constitution makes such a result absolutely necessary. We do not regard these constitutional provisions, taken as a whole, as indicating an intent to make the one above quoted self-executing or operative. It would have been very easy for the association, which undoubtedly prepared its own constitution, if such had been the intent, to have provided explicitly that in case a member engaged in the sale of intoxicating drinks his membership should forthwith and immediately cease, his certificate should stand canceled, and that he should have no further rights under it.”
A more difficult question is whether the law adopted in 1898 is to be interpreted as intended to affect the Status of one who, like Haddock, having already engaged in the business of selling liquor, continued such occupation after that time without interruption. Con strued literally, it has no application to such a case. Haddock did not enter into the forbidden occupation after August 1, 1898. He entered into it long before that time, and remained in it continuously. To make the expressions used apply to one in his situation, it would be necessary to give them a very liberal, if not a strained, construction.
No freedom of interpretation, however, should be indulged to accomplish the forfeiture of property rights. If it had been the design of the framers of the new law that it should apply to members who were already liquor-sellers it is reasonable to suppose that language would have been employed plainly indicating such a purpose, and that there would have been express reference to those who remained in the business as well as to those who entered it. In that case it seems probable, too, that some time would have been fixed within which such persons might save their rights by changing their occupation. It is hardly conceivable that there was a deliberate intention to make the amended law operate as an immediate decree of expulsion against any members who were at the time engaged in the interdicted business. Yet such would be the effect given it by the interpretation proposed by the plaintiff in error. The provision that a member’s certificate should become null and void from the date of his engaging in the business also supports-the theory that the operation of the enactment was intended to be wholly prospective. We conclude that the law of 1898 did not affect, and was not intended to affect, the standing of Haddock.
This acords with the view taken in Deuble v. Grand Lodge A. O. U. W., 72 N. Y. Supp. 755 (affirmed in 172 N. Y. 665, 65 N. E. 1116). The scope of the opinion, so far as it affects this matter, is shown by the second paragraph of the syllabus, which reads as follows:
“An amendment to the laws of an insurance order, providing that any member who shall, after a specified date, have entered into the business of selling liquor, or who shall thereafter enter into such business, shall stand suspended from all rights in the beneficiary fund, and his certificate shall become void, does not in terms cover the case of a member who was previously engaged in such business and continued therein.” 1
In the case of Langnecker v. Trustees of Grand Lodge A. O. U. W. of Wisconsin, 111 Wis. 279, 87 N. W. 293, 87 Am. St. Rep. 860, 55 L. R. A. 185, it was held that a similar amendment reached the case of a member who, having once abandoned the occupation of selling liquors, afterward reentered it, the discussion clearly indicating, however, that if he had remained continuously in the business he would have been exempt from the operation of the law.
In the case of Ellerbe v. Faust, 119 Mo. 653, 25 S. W. 390, 25 L. R. A. 149, in discussing a provision similar to the one under consideration, the writer of the opinion expressed the belief that it was intended to apply to all saloon-keepers who remained in that business, no matter when they entered it, upon the ground that the by-law should be interpreted “so as to meet the abuse or thing prohibited and to correct it if possible.” The determination of that case, however, was controlled by other and unassailable reasons, and we cannot regard this dictum as seriously impairing the authority of the New York decision.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
Plaintiff in error brought this action in replevin to obtain possession of certain hogs and cattle levied upon by the sheriff of Doniphan county upon process issued against her husband. The receiver of the Bank of Highland was substituted as defendant. Upon the trial, at the close of plaintiff’s testimony, the court sustained a demurrer to the evidence, and plaintiff brings error.
The plaintiff with her husband occupied a farm belonging to the husband’s father. She testified that she purchased with her own money the brood-sows and boar for breeding purposes, and that the young pigs were the increase from these; that she purchased and paid with her own money for the cows which with their calves were levied upon; that she purchased with her own money the feed that was fed to this stock— some of it from her husband and some from others; that her resources consisted of interest paid to her upon a note for $2000 which came to her from her father’s estate, and money obtained from boarding the school-teacher, amounting to seventy dollars at one time, and eighty dollars at another; that she borrowed some of the money from the bank; that she and her daughter delivered milk to a creamery during one season, -and with the money earned bought a buggy; and that she traded her half-interest in this buggy for a colt, and traded the colt for one of the cows. She testified with reference to each head of stock claimed by her, and was familiar with the history and description of each.
In addition she introduced her pass-book, showing a bank-account kept in her name from December, 1899, to some time in 1904, and the checks given in payment of most of the stock in controversy. These checks were signed in her name by her husband, and the deposits she said were made by him in her name from funds'belonging to her.' She testified that her father-in-law owned the farm and gave the use of it to her; that her husband had no property on the place except one cow; that the work on the farm was done mostly by a hired man; and that her husband acted as her agent in depositing the moneys belonging to her in the bank and in drawing checks upon her bank-account. Her husband was a witness, and testified to his acts as her agent in depositing the money and drawing the checks, and that in each instance, when checks were given for stock purchased, she directed him to make the purchase and to draw the checks. The checks were all signed “L. A. Acker, C. F. A:,” the initials “C. F. A.” being those of her husband.
Upon cross-examination plaintiff was asked with reference to each of the items shown upon the credit side of the pass-book, beginning with December 18, 1899 — whether the items represented money belonging to her, and where she obtained it. She was unable to state as to most of the items where the money came from, or whether in fact it was her own or her husband’s money. In reference to one item of $69.20, de posited March 6, 1902, she said “that might have been mine,” and that she was boarding the school-teacher about that time. Also upon cross-examination she still insisted that she gave her husband thirty-five dollars to pay for corn for feed, and that she borrowed money twice at the bank with which to take up checks given for some of the stock purchased. She was unable to show upon the pass-book the particular credit given her for either note, and was not clear whether the amount borrowed at the bank was exactly the amount of the checks or not. She was asked the following questions by the court:
“Ques. Can you give even one time, and name the time or the amount you deposited, and from where or from whom you got the money? Ans. No, sir; I can’t. I can’t remember. . . .
“Q. When you borrowed this money in the bank, what did you do with it — place it to your credit? A. I borrowed enough to pay for the cow — to cover the check.
“Q. Did you have it placed to your credit on the bank-book? A. Yes, sir.
“Q. Then drew the check? A. Yes, sir.”
Afterward she was asked to point out in the passbook the item of $52.97 representing this transaction, and answered:
“There is a deposit here of that amount.
“Ques. Is n’t that on the other side, where the check is charged up; it is n’t there, as a matter of fact, is it, Mrs. Acker? Ans. No; it is not here.”
There are many material contradictions in her testimony disclosed by her cross-examination, and it is apparent that the trial court sustained the demurrer on account of these, believing that the admissions and contradictions had destroyed the effect of her evidence in chief. This was error for which the cause must be reversed. Where there is a conflict in the testimony it is the province of the jury to decide it. They are the exclusive judges of the weight and credibility of the evidence. (K. C. Ft. S. & G. Rld. Co. v. Foster, 39 Kan. 329, 18 Pac. 285.) In Neiderlander v. Starr, 50 Kan. 770, 771, 33 Pac. 592, 593, the court said: “In his cross-examination he seems to have been confused, and his evidence is indefinite and conflicting; but the court should have permitted the jury to pass upon the conflicting evidence.” In Christie v. Barnes, 33 Kan. 317, 6 Pac. 599, it was said: “A demurrer to evidence admits every fact and conclusion which the evidence most favorable to the other party tends to prove.” (K. P. Rly. Co. v. Brady, 17 Kan. 380; K. P. Rly. Co. v. Couse, 17 Kan. 571; Wolf v. Washer, 32 Kan. 533, 4 Pac. 1036; Merket v. Smith, 33 Kan. 66, 5 Pac. 394; Horne v. Salt Co., 52 Kan. 617, 35 Pac. 200; Buoy v. Milling Co., 68 Kan. 436, 75 Pac. 466; Hoffmeier v. Railroad Co., 68 Kan. 831, 75 Pac. 1117.)
It must be observed that nowhere in her cross-examination did the plaintiff withdraw her statement that the cows and hogs had been purchased by her with her money. True, she admitted that she could not remember where any particular item of deposits in her bank-account came from, but when her cross-examination closed she was still contending that it was her money that purchased all the stock. Doubtless there are instances where a demurrer should be sustained because, upon cross-examination, a party testified in direct contradiction to his testimony in chief upon some vital fact, essential to his recovery, where the latter controls the former statement and practically admits that the former was a mistake or untrue. If a demand be necessary to be shown to entitle the plaintiff to recover, and upon examination in chief he should state that he had made the demand, but upon cross-examination should correct his former testimony and state that he had not made the demand, or had made it upon the wrong person, and if no other evidence were given upon that essential point, a demurrer would lie. This would require no weighing of the testimony; the later statement would control, and plaintiff would not be' left in the position of contending that he had proved a demand. If in an action for damages at a railway-crossing it were necessary for plaintiff to show that he looked and listened for a train, and upon his examination in chief he should say that he had looked and listened, but on cross-examination should state that he was mistaken, and in fact had not looked or listened, and this should be all the evidence upon that point, there would be nothing to weigh. The fact would be the same as admitted or conceded, and, under the supposed case, a demurrer would lie because contributory negligence was shown.
Where the cross-examination merely tends to show that the testimony in chief was false, and to say that it was false requires a weighing of it, and plaintiff is still left in the position of contending that the first statements are true, there arises a conflict of testimony which the jury alone may determine. That is this case. Many of the answers of plaintiff upon her cross-examination tended to show that this bank-account was made up of funds belonging in part at least to her husband, and left grounds from which the jury might have found that little, if any, was ever hers, and from which they might have disbelieved her testimony entirely as to the facts about the purchase 'and ownership of the stock; but it was necessary before the jury could do this for them to weigh carefully a large mass of testimony, made up of conflicting statements of plaintiff, the checks, the pass-book, the husband’s testimony, and all the facts and circumstances in evidence. Among other things they might have taken into consideration that the woman was examined in reference to the separate items in her pass-book upon an account covering a period of five years, made up of over 60 items of deposits and about 200 debit items of checks drawn against the account, and, with their experience in keeping track of items in pass-books of their own, may have attached less importance to her failure to remember what these items represented than did the trial court.
The other errors complained of in sustaining objections to certain questions asked of plaintiff and her husband have been examined, but we find nothing substantial in any of them.
For the error in sustaining the demurrer the judgment is reversed and the cause remanded for another trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
M. S. Bowman appeals from a conviction upon a charge of violating an ordinance of the city of Clearwater (a city of the third class) forbidding the maintenance of a public pool-table. But two questions are presented, each relating to the validity of the ordinance. The first objection made to it is that it provides a penalty of either fine or imprisonment, while the statute (Gen. Stat. 1901, § 1145) authorizes only the fine. The part of the ordinance which attempts to empower the police judge to pronounce a jail sentence is clearly void, but it may be treated as mere surplusage. The other provisions remain unaffected by the elimination of this one, for none of them is so connected with it as to be in any way dependent upon it. (21 A. & E. Encycl. of L. 993.) The defendant was sentenced to pay a fine, not to be imprisoned, and was not prejudiced by the inoperative words of the ordinance.
The second objection to the ordinance is that the authority for the prohibition of public pool-tables must be found, if at all, in section 1129 of the General Statutes of 1901, which gives the city council power to suppress billiard-tables, but makes no reference to pool-tables by that name. Evidence was introduced to show that the game of pool is not the same as that of billiards, and that a pool-table differs from a billiard-table in having pockets. The argument is made in behalf of the defendant that the ordinance is broader than the statute, that the term “billiard-table” does not include a pool-table, and that, consequently, the city was without authority to restrict the use of the latter.
This contention derives some support from Squier v. The State, 66 Ind. 317, where a conviction under a statute forbidding the owner of a billiard-table to permit a minor to play thereon was set aside because the evidence showed that.the game played was pool. The present question is affected, however, by a consideration which, if applicable to the Indiana case, does not appear to have received the attention of the court. Evidence was introduced that billiard-tables were formerly made with pockets. The same fact is shown by the standard dictionaries and encyclopedias. Just when the change took place may not be clear, but the testimony indicated that it was about thirty or -thirty-five years ago. The statute in question was passed in 1871, but is a reenactment of the fifth subdivision of section 29 of chapter 26, Laws of 1869. The statute must be construed in the light of the approved usage of words at the time of its enactment, notwithstanding any subsequent changes. The argument upon the precise proposition involved is thus presented in Sikes v. The State, 67 Ala. 77, 80:
“In interpreting statutes, we must endeavor to arrive at the meaning and intention of the legislature, to be gathered from the words they have employed. Words are but the vehicle of thought; and if, since they were employed by the legislature, they have undergone change, or, if the subject they refer to has undergone modification since their employment, we must search for and enforce the sense they bore when the statute was enacted; for such, we must presume, was the intentipn of the lawmaking power. If when this statute was enacted — March, 1875 — as the testimony shows billiard-tables embraced both classes, those with, and those without pockets, then both classes are within its prohibition. We think, the legislature intended, in the employment of the term billiard-table, to include all tables on which the game of billiards was played at the time; and the language will also embrace billiard-tables under any modification they may undergo.”
Even at the present time the word “billiard-table” is employed as a generic term, including the form adapted to the playing of pool. This is illustrated by the definition of “pool” in the Century Dictionary as “a game played on a billiard-table with six pockets by two or more persons.” Whatever meaning might be attached to the term if found in a law recently enacted, we think, as used in the statute of 1869, it was sufficiently comprehensive to authorize the ordinance here involved, and that the conviction was properly sustained.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In an action to recover a lot in the city of Cherryvale the result turned on whether a tax deed purporting to convey the lot, and under which Godfrey Hammerburg held, was valid on its face. The defect relied on by Charles E. Gibson, who held under a conveyance from the original owner, was that a full description of the land was not given in the granting clause of the tax deed. In the first part of the tax deed, and as a part of the recital that the lot was subject to taxation, it'is fully and accurately described. In the succeeding parts, reciting the sale, the assignment of the certificate of sale, the failure to re deem from the sale, and the final grant and conveyance to the assignee, the lot is referred to as “said property,” “the real property above described,” and “the property last hereinbefore described.” There can be no uncertainty or doubt as to the property taxed, sold, or intended to be conveyed. Only one description is given in the deed, and that is complete and perfect. The whole of the parcel taxed was sold for the taxes. It was the least quantity bid for the taxes charged against it, and the whole of it was conveyed by the deed.
Reference is made to McDonough v. Merten, 53 Kan. 120, 35 Pac. 1117, where it was said that a second description was necessary. There, however, a quarter-section of land was taxed, and the deed did not show the quantity of land sold for taxes, or that what was sold was the least quantity bid for the taxes against the property. It was therefore held that the omissions were fatal to the validity of the conveyance. Here it is recited that the purchaser, “having oifered to pay the sum of $7.38, being the whole amount of taxes, interest and costs then due and remaining unpaid on said property, for all of said property, which was the least qu'antity bid for, and payment of said sum having been by him made to the said treasurer, the said property was stricken off to him at that price.” It therefore appears that a single lot was taxed, a single lot was sold, and a single lot was conveyed, and the appropriate references to the lot as first described in the deed designate the property sold and conveyed with “ordinary and reasonable certainty,” and that is all that is required. (Haynes v. Heller, 12 Kan. 381; Dodge v. Emmons, 34 Kan. 732, 9 Pac. 951.)
There is a further contention that the deed is bad because it does not show the notice of tax sale, that a certificate of sale was given, and that the certificate was presented to the county clerk prior to the execution of the deed. While these details are men tioned in the statute, they are not prescribed in the statutory form of deed. Where the statute prescribes the form of a deed a compliance with that form is sufficient. (Hobson v. Dutton, 9 Kan. 477.) The deed in question closely follows the statutory form, and, being good on its face, it furnishes prima facie evidence that the required notices were given, that the proceedings were regular, and that every step necessary to its validity was taken. There is further a recital in the deed, as prescribed by the statute, that the sale was made in substantial conformity with all the requisites of the statute. The case of Duncan v. Gillette, 37 Kan. 156, 14 Pac. 479, is cited as an authority that the recital of the facts above stated is essential to the validity of the deed. In that case the deed was made under a special statute providing for a resale of lands bid in by the county which remained unredeemed for five years after the first sale, without any one offering to purchase the same for the taxes, penalties, and charges. The statute did not prescribe the form of the deed in such cases, and hence it was held that the deed should show compliance with the special authority under which it was issued and that the essential steps prescribed by that statute had been taken.
The court ruled correctly in holding that the tax deed was valid on its face, and hence its judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
The appellant, Lena B. Allen, commenced this action against the City of Ogden, Kansas, a municipal corporation, alleging that agents of the city conspired to use excessive force in her arrest for double-parking, and that subsequent harassment by public authorities has caused her irreparable physical and mental anguish. The petition sought actual damages of $60,000 and punitive damages in a like amount. It should be noted that neither the officer who made the arrest, the mayor, nor any of the members of the city council of Ogden were made party defendants to this action.
The substance of the appellant’s claim is stated in her petition, and pertinent allegations therein are quoted:
“3. That as indicated in said claim, on or about Wednesday, October 22, 1969, the plaintiff, Lena B. Allen, asked Mr. R. G. Schultz of the Ogden police force to move his police vehicle from the entrance to her grocery store in Ogden; that her request apparently made him angry as he proceeded immediately to confer with the Mayor of Ogden, Mrs. Geneva Crosby; that apparently acting under instructions from said mayor, he soon returned, obtained the amount of the City’s account owed to the store and left indicating he would be right back; that apparently still acting under instructions from said Mayor, he promptly returned and paid off the City’s account at the plaintiff’s grocery store indicating there would be no further purchases; that the following Saturday night, on or about the 25th day of October, 1969, the plaintiff as she left her store with two of her clerks was followed and stopped by Mr. Schultz purportedly to check her driver’s license; that after having done so, he followed her continuously to the places where she discharged the two clerks from her automobile and at the last of the two places after she had carried some groceries into the house of one Mrs. Blueheart, the said Mr. Schultz immediately followed her to the porch of the house demanding that she come out so that he could give her a ticket for double parking; that the plaintiff indicated she would do so as soon as she had unloaded the groceries for Mrs. Blueheart; that, thereupon, said policeman, R. G. Schultz, without any authority whatsoever, unlawfully burst into the house in a violent rage, seized the plaintiff by the arm and dragged her bodily out of the house at the same time removing his mace from its container on his belt and threatening to use the same on plaintiff; that said policeman in grabbing the plaintiff by her left arm caused her right arm and wrist to come in contact with the door jamb, which hand and wrist had recently been operated on at the Mayo Clinic because of a carpal tunnel syndrome, to relieve nerve pressure on her wrist; and that furthermore, in the course of removing the plaintiff from the house she was forced or pushed up against the door.”
“5. That said actions and harassment of the policeman, were made known to the Mayor, Mrs. Geneva Crosby, and the other members of the City Council of the City of Ogden, Kansas, but that no corrective action was taken or said policeman restrained in any way; that subsequently, said harassment continued, the said policeman from time to time following the plaintiff around in a very threatening and peculiar manner; that because of his extreme temper and strange behavior, plaintiff experienced a great deal of fear and apprehension; that said continued conduct and harassment was repeatedly brought to the attention of said City officials, including the Mayor and the members of the City Council, but that said policeman was not relieved of his position or restrained in any way.”
“8. That prior to October 25, 1969, the Mayor and City Council of the City of Ogden, Kansas, knew, had reason to know or should have known of the violent and extreme propensities of said R. G. Schultz, and nevertheless continued to allow him to act in his capacity as police officer of Ogden, Kansas.
“9. That the continuing course of conduct and acts herein described were committed by agents of the defendant city; and that they were unlawful, illegal, willful, wanton acts of which the city officials of the City of Ogden, Kansas, knew or should have known and were and have been continued.”
The city filed a motion to dismiss the action upon the ground the petition failed to state a claim upon which relief may be granted. After hearing arguments and giving consideration to the briefs of council, the district court sustained the motion. The appellant has appealed, asserting three grounds for reversal.
It is first contended the district court erred in sustaining the city’s motion to dismiss the action since the “judge-made” doctrine of immunity of cities from suit for torts committed by city employees in the exercise of governmental activities should be abolished by this court. The appellant cites and relies upon Carroll v. Kittle, 203 Kan. 841, 457 P. 2d 21, where this court abolished the right of the state and its governmental agencies to claim immunity for the negligence of its employees or agents engaged in proprietary activities. The point is not well taken. Carroll recognized the authority of the Legislature to control the entire field of governmental immunity, including matters covered by judicial decision. (Syl. ¶ 4.) However, the effect of Carroll was of short duration, and as stated in Woods v. Kansas Turnpike Authority, 205 Kan. 770, 472 P. 2d 219, the Session of the Legislature following the filing of the opinion in that case, enacted Chapter 200, Laws of 1970, now appearing as K. S. A. 1971 Supp. 46-901 et seq. While the provisions of Section 2 of that Act (K. S. A. 1971 Supp. 46-902) do not apply to or change the liability of local units of government as established by our judicial decisions, such as cities of the state, the same Session of the Legislature enacted Chapter 318, Laws of 1970, now appearing as K. S. A. 1971 Supp. 74-4714 et seq. That Act was effective July 1, 1970, and Section 2 (K. S. A. 1971 Supp. 74-4715) authorizes the procurement of insurance by any city for the purpose of insuring the city, its officers, employees and agents against any liability for injuries or damages resulting from any tortious conduct of its officers, employees and agents arising out of the course of their employment. Section 3 (K. S. A. 1971 Supp. 74-4716) provides that the procurement of such insurance constituted a waiver of the city’s governmental immunity from liability for injuries and damages resulting from such tortious conduct to the extent of the insurance so obtained. A corresponding statute (K. S. A. 74-4707 et seq.) requiring every state agency to purchase automobile liability insurance for the protection and benefit of the state agency, its officers, agents and employees responsible for the operation of any motor vehicle by such persons within the scope of their employment, and the traveling public, was construed in Mott, Executor v. Mitchell, 209 Kan. 476, 496 P. 2d 1297, and it was said the provisions of the statute waiving governmental immunity are to be read into the policy.
In the instant case, the tortious conduct was alleged to have occurred on October 25, 1969, at a time when the provisions of K. S. A. 1971 Supp. 74-4714 et seq. were not enacted or effective, and we must look to the law of this state applicable on October 25, 1969, to determine this litigation.
The rule of governmental immunity in this state is very clear. It has been repeatedly stated. Without exception, this court has held that the enforcement of police power is a governmental function so as to afford to municipalities the cloak of governmental tort immunity. (Wommack v. Lesh, 180 Kan. 548, 305 P. 2d 854; Gardner v. McDowell, 202 Kan. 705, 451 P. 2d 501; Daniels v. Kansas Highway Patrol, 206 Kan. 710, 482 P. 2d 46.) Contentions made in this case to the effect the doctrine should be abolished are very similar to those previously asserted, and this court sees no reason why they should not be rejected again. It is sufficient to say we adhere to the rule announced in the Gardner and Daniels cases that the operation of a police department by a city is a governmental function, and that enforcement of the police power by police officers of a city is within the scope of governmental immunity from suit.
The appellant seeks to avoid the effect of the doctrine of governmental immunity upon the theory of nuisance, as an exception to the general rule. This court had occasion to consider the merits of such an argument in Wommack and Gardner, supra. We held that such actions by police officers would not constitute a nuisance so as to nullify the application of the doctrine.
A nuisance is an annoyance, and any use of property by one which gives offense to or endangers life or health, violates the laws of decency, unreasonably pollutes the air with foul noxious odors or smoke, or obstructs the reasonable and comfortable use and enjoyment of the property of another, may be said to be a nuisance. In Caywood v. Board of County Commissioners, 200 Kan. 134, 434 P. 2d 780, this court cited numerous examples of property used so as to constitute a nuisance. (1. c. 141-143.) We find no analogy of the facts alleged that would justify a conclusion the actions complained of would constitute a nuisance so as to place this case within the exception'.
Lastly, the appellant contends the district court erred in sustaining the appellee’s objections to interrogatories, the purpose of which was to ascertain whether the municipality had insurance coverage for the circumstances as alleged in the petition.
In Smith v. Board of Education, 204 Kan. 580, 464 P. 2d 571, this court held that governmental immunity was not waived by the purchase of liability insurance. Moreover, it was stated the Legislature only has the authority to waive such immunity, and that immunity could never be waived or surrendered by inference or implication. In the opinion it was said:
“The appellant next contends that the trial court erred in not ruling that the purchase of a certain . . . policy of insurance . . . constituted a waiver of governmental immunity.
“We cannot agree. The immunity of the state from actions for tort arising out of the performance of governmental functions extends to its governmental agencies. (Smith v. Higgins, 149 Kan. 477, 87 P. 2d 544.) Only the legislature has the authority to waive this immunity. There must be express statutory waiver before the state or its agencies may be subject to suit while operating in a governmental capacity. (Purity Oats Co. v. State, 125 Kan. 558, 264 Pac. 740.)
“Such immunity from suit is never waived or surrendered by inference or implication. Construction Co. v. Board of Administration, 105 Kan. 291, 182 Pac. 386.) That which governmental agencies cannot do directly they should not be permitted to do indirectly. Permitting such agencies to waive governmental immunity by simply taking out insurance would be the equivalent of permitting a direct waiver. The appellant cites a limited number of cases from foreign jurisdictions which she claims are to the effect that the procurement of insurance is a waiver of immunity. Be that as it may, such a ruling is not in harmony with the rule announced in our decisions as to the waiver of immunity.” (1. c. 585.) (Emphasis supplied.)
Subsequently, as noted above, the Legislature enacted K. S. A. 1971 Supp. 74-471 et seq. providing that a municipality and other political subdivisions may procure liability insurance to insulate it, its agents, and employees from liability while within the scope of their employment, and that by purchasing the insurance, the municipality or other political subdivision waives the governmental doctrinal immunity. (K. S. A. 1971 Supp. 74-4716.)
As indicated, the appellant alleged she was falsely arrested on October 25, 1969, some eight months prior to the effective date of the statute in question. There are ancillary, vague, and conclusory statements that the appellant’s injury was of a continuing nature because of subsequent harassment, but no factual basis for the continuing injury is alleged. The crux of the claim is the alleged false arrest and use of excessive force in October of 1969.
It is a rule of law of this state that statutes do not operate retroactively, but operate prospectively, unless there is an intention of the Legislature clearly expressed by the statute that the provisions are to be applied with retrospective effect. (Jones v. Garrett, 192 Kan. 109, 386 P. 2d 194; State v. Cramer, 196 Kan. 646, 413 P. 2d 994; Davis, Administrator v. Union Pacific Railway Co., 206 Kan. 40, 476 P. 2d 635.) We find no legislative intent that K. S. A. 1971 Supp. 74-4714 et seq. was intended to have retrospective effect, and conclude the statute has prospective operation only.
We adhere to our holding in Smith, supra, and conclude that the existence of insurance coverage, prior to the effective date of K. S. A. 1971 Supp. 74-4714 et seq. would have no bearing on the viability of governmental immunity as a defense. The district court did not err in sustaining the objections to interrogatories.
This court is of the opinion the actions complained of by the appellant do not state a claim for which relief may be granted and the district court did not err in sustaining the appellee’s motion to dismiss.
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The opinion of the court was delivered by
Fromme, J.:
This appeal is from a partial summary judgment ordering the defendants, Burton P. Greenhouse and Betty L. Greenhouse, ejected from leased premises recently purchased by the plaintiff, Bud Jennings Carpets and Draperies, Inc. The defendants-Greenhouse appeal. For brevity and clarity we will continue to refer to the parties as the plaintiff and defendants.
The plaintiff’s petition alleged it to be the owner of the described premises under a warranty deed from the former owners, Axel W. Olson and Irene B. Olson. The petition stated that defendants obtained possession of the premises under a leasing agreement evidenced by two contemporaneous instruments executed by the Olsons and the defendants. Copies of the deed and the two lease instruments were attached to the petition as exhibits. It was further alleged that the Olsons served notice and did terminate the defendants’ tenancy under authority of a provision for termination contained in the leasing agreement. The leasing agreement pro vided for payment of rentals of $180.00 per month. The defendants refused to give up possession of the premises. The prayer of the petition reads:
“Wherefore, the plaintiff prays for a judgment ejecting the defendants from the property described herein and permitting plaintiff to recover said real property and for a money judgment for rentals owing from the defendants to plaintiff on a per day basis prorated on a rental of $180.00 per month for every day defendants remain in possession subsequent to September 15, 1970, and for their costs in this action.”
The defendants, by answer, conceded the plaintiff’s acquisition and ownership of the premises and the receipt of the 60 day notice to terminate the tenancy in event of a sale. They denied the provision for termination was an effective and binding part of the leasing agreement. Further answering the defendants admitted their obligation for rents as follows:
“. . . [T]hat on September 15, 1970, and October 15, 1970, defendants tendered to plaintiff checks of $180.00 but defendant [plaintiff] has refused the same and defendants have ever since remained and still are ready and willing to pay the plaintiff said sum.”
After discovery procedures had been completed plaintiff filed a motion for summary judgment predicated upon tihe admissions of the defendants and upon issues litigated and determined in a previous action in the same court, which action will be referred to as Case No. 25,012.
Case No. 25,012 had previously been filed by the defendants-Greenhouse against the Olsons, the lessors. The action was brought to enforce a provision to limit competition contained in this same leasing agreement evidenced by the two contemporaneously executed instruments. For reasons not material here the plaintiff, Bud Jennings Carpets and Draperies, Inc., was interpleaded in the case as a third party defendant and took part in that litigation. The action was brought to obtain an injunction and damages.
The present defendants-Greenhouse as plaintiffs in Case No. 25,012 alleged in their petition:
“2. On or about February 8, 1967, Plaintiffs entered into two written agreements with Defendants for the rental and lease of the following described premises in Lawrence, Douglas County, Kansas:
The North one-half (K) of the North one-half (%) of the First Floor of the Building located on Lot Sixty Five (65) on Massachusetts Street, in the City of Lawrence, Kansas.
Said leases are attached hereto and marked respectively, Exhibits A and B. Plaintiffs have occupied the premises under said lease since March 15, 1967.
“3. Exhibit B provides in part as follows:
Leasee shall use premises for a retail cosmetic store with all associated items and services and Leasor agrees that during the term of this lease and any renewal thereof, Leasor shall not lease the premises to the South of the premises leased herein for any purpose and [in] competition in any way to the Leasee or for any purpose which detract from the purpose of the Leasee.
“4. Notwithstanding the provisions of the preceding paragraph, Defendants have leased the premises to the South of the premises leased the Plaintiffs for a business operating in competition to the Plaintiffs for a business operating in competition to the Plaintiffs’ and detracting from the purpose of the Plaintiffs’ business.
“By reason of said competition, Plaintiffs have suffered damages in the amount of $5,000. Further, Defendants should be enjoined from allowing the continuation of said competition.”
Exhibits A and B referred to above are the same written instruments concerned in the present litigation. The business in competition referred to was that of Bud Jennings Carpets and Draperies, Inc.
After a trial to the court of Case No. 25,012 the essential facts found included the following facts surrounding the execution of the two instruments, to-wit:
“1. Defendants Olson own a business building which is situated in the 800 block on Mass. Street in the City of Lawrence. This building is divided into space for two small stores the entrances to which are on either side of the dividing partition. Defendants Olson reside on the second floor of their building and shall hereinafter be referred to as defendants.
“2. On February 8, 1967 plaintiffs came to defendants’ residence for the purpose of entering into a lease for the north part of defendants’ building. At this meeting defendants had a form lease which had been prepared for signatures and plaintiffs [Greenhouse] brought a typed lease which they had prepared for signatures. After some discussion the parties agreed to sign both leases and this they did following which plaintiffs [Greenhouse] paid the rent for the first month as required by the terms of the typed lease. Both leases provide for a three year term beginning March 15, 1967 and although both contain a provision for renewal the form lease grants the right to one two-year renewal, while the typed lease grants the right to two one-year renewals provided sixty days notice in writing of the exercise of such option is given. The basic difference between the two leases however is that the typed lease contains a covenant designed to prevent defendants [Olson] from leasing the south part of their building for a use which would in any way compete with the plaintiffs’ use of the portion of such building leased to plaintiffs [Greenhouse], which covenant does not appear in the form lease. . . .”
The court held that the leasing agreement as disclosed by the two written instruments was valid and binding between the parties and the covenant against competition contained in the typed instrument was enforceable. An examination of the two instruments indicates that the covenant against competition appears in the “typed” instrument. No similar covenant is contained in the “form” instrument.
In the case now under consideration the provision for termination of the tenancy appears in the “form” instrument. No similar provision is contained in the “typed” instrument.
The applicable rules of law applied by the trial court are clear. When separate instruments are executed contemporaneously and as a part of the same transaction they will be read and construed together to determine the rights of the parties. (Bowen, Administrator v. Hathaway, 202 Kan. 107, syl. ¶ 5, 446 P. 2d 723.) Language in a contract is not ambiguous unless the words used to express the meaning and intention of the parties are insufficient in a sense the contract may be understood to reach two or more possible meanings as to the matter in question. (Wood v. Hatcher, 199 Kan. 238, Syl. ¶ 1, 428 P. 2d 799.)
In our present case if the two contemporaneous lease instruments are construed together they contain but one provision for termination in case of sale. There are no conflicting provisions which relate to this matter. The termination provision reads:
“The second parties expressly agree that in case the said premises are sold they will give possession within 60 days after being notified of said sale, if so requested by said first parties heirs or assigns.”
We discern no ambiguity or uncertainty in the wording of the provision for termination.
The defendants-Greenhouse argued in the court below that the entire “form” instrument, which contained the provision for termination in case of sale, was never effective or binding upon the parties. The interrogatories answered by Betty L. Greenhouse indicated that she would testify in a trial of the case that both the Olsons and the Greenhouses agreed and understood when the two instruments were executed that the “form” instrument proposed by the Olsons was to have no force or effect. This same contention is now made on appeal. In support of the admissibility of such oral testimony defendant-appellants cite many authorities including White v. White, 183 Kan. 162, 326 P. 2d 306. White holds as between the original parties the rule which prohibits the introduction of parol evidence to vary a written instrument has no application when the legal existence or binding force of such instrument is in question. When applicable the rule is sound.
However, the trial court did not base its decision upon the parol evidence rule. Its decision, which precluded such a defense, was based upon the doctrine of collateral estoppel arising from the litigation in Case No. 25,012. That case was initiated by the defendants-Greenhouse against the Olsons. The present plaintiff was interpleaded. Thus the judgment in Case No. 25,012 was mutually binding on all present parties.
As shown by the allegations in the petition filed in Case No. 25,012 rights of tenancy were claimed, by defendants-Greenhouse under and by virtue of both instruments. They attached copies of both instruments to their petition as Exhibits A and B and alleged they were occupying these same premises under a leasing agreement evidenced thereby. On the basis of those allegations their tenancy was recognized as being created by both instruments and the covenant against competition contained in the leasing agreement was determined to be valid and enforceable after a trial on the merits.
In Penachio v. Walker, 207 Kan. 54, 483 P. 2d 1119, the doctrine of collateral estoppel was discussed and distinguished from the doctrine of res judicata. On page 57 of that opinion it was stated:
“. . . The doctrine of collateral estoppel is a bar in an action upon a different claim as to certain matters in issue wbicb were determined in a former judgment. The distinction between res judicata and collateral estoppel is based on the distinction between a cause of action and issues in a cause of action. [Citations omitted.]”
The doctrine of collateral estoppel may be invoked as a bar to litigating an issue when the following is shown (1) a prior judgment on the merits which determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the pleadings and judgment, (2) the parties must be the same or in privity therein and (3) the issue litigated must have been determined and necessary to support the judgment. (Penachio v. Walker, supra.) The doctrine was discussed in Hutchinson Nat'l Bank & Trust Co. v. English, 209 Kan. 127, 129, 495 P. 2d 1011. The doctrine was recognized in Green v. Kensinger, 193 Kan. 33, 39, 392 P. 2d 122, and was applied in Burnison v. Fry, 199 Kan. 277, 283, 428 P. 2d 809. Summary judgment procedure can be utilized to invoke the doctrine of collateral estoppel, see Goetz v. Board of Trustees, 203 Kan. 340, Syl. ¶ 10, 454 P. 2d. 481.
In the prior action (Case No. 25,012) the present parties litigated certain defined issues. The ultimate facts surrounding the execution of the two contemporaneous instruments were litigated to establish a leasing agreement which was a basis for the rights and liabilities of the parties. The two instruments were pleaded by the Greenhouses as their leasing agreement. The final judgment in the action was on the merits and one of the matters in issue which was heard and finally determined was that the two lease instruments created a valid and enforceable leasing agreement.
Therefore the trial court properly held in the present case the defendants were precluded as a matter of law from re-litigating that issue which the parties had laid to rest in the prior action.
A motion for summary judgment may properly be sustained if there remains no genuine triable issue as to any material fact and if the moving party is entitled on the record to a judgment as a matter of law. (Brick v. City of Wichita, 195 Kan. 206, Syl. ¶ 1, 403 P. 2d 964; State Bank of Burden v. Augusta State Bank, 207 Kan. 116, Syl. ¶ 1, 483 P. 2d 1068.) When the pleadings or proof of either party disclose that no claim for relief or defense exists, a summary judgment may be granted. (Hastain v. Greenbaum, 205 Kan. 475, Syl. ¶ 3, 470 P. 2d 741.)
The trial court entered judgment on the ejectment feature of this case. No judgment was entered against the defendants for the amount of the unpaid rentals. A party seeking to recover upon a claim may move for a summary judgment in his favor as to all or any part thereof. (K. S. A. 60-256 [a] and [d].) The partial summary judgment was proper. The defendants were precluded by the doctrine of collateral estoppel from presenting a genuine issue on the binding effect of the “form” lease instrument. The record before the court on the motion for summary judgment disclosed that such defense was not open to the defendants. The partial summary judgment in favor of plaintiff was proper and disposed of the ejectment feature of the claim.
In addition to the ejectment feature the plaintiff was claiming a money judgment for rentals owing from the defendants on a per day basis prorated on a rental of $180.00 per month for every day defendants remained in possession subsequent to September 15, 1970. The defendants in their amended answer acknowledged liability therefor. Plaintiff is entitled to a money judgment to the extent prayed for in its petition.
The partial summary judgment as to ejectment is affirmed with directions to enter a money judgment against the defendants in accordance with the prayer of plaintiffs petition after determining the period of time defendants have remained in possession of the premises. | [
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The opinion of the court was delivered by
Smith, J.:
A cart in which defendant in error was riding came into collision with a buggy occupied by Jphn W. Bagby, who was driving one horse to his vehicle. Bagby was a tenant of Clark, the defendant below, and cultivated a small tract of land belonging to his landlord, near Kansas City. On the day of the accident Bagby came to town, and there was testimony tending to show that he bought some wire-fence staples at a store in the city, and that soon afterward, on his way home, he negligently ran his buggy against the cart in which defendant in error was riding, throwing her out and causing her severe bodily injuries'. She brought this action against Clark as the master of Bagby and recovered judgment. The trial court in its instructions based the right to recover from Clark on the jury’s findings that at the time of the accident Bagby was in his emyloy; that in carrying out such employment it was necessary to use wire-fence staples; that Bagby drove from the country to a hardware store in the city and bought some staples for the purpose of using them on Clark’s farm in performing work which Clark had employed him to do ; and that while returning from the store he negligently drove against the cart in which plaintiff below was riding and thus caused her injuries.
A witness on behalf of plaintiff below testified that in a conversation with Clark he stated that Bagby was his agent and foreman and looked after everything on the farm. This admission of the defendant was, of course, competent, but it fell short of showing that at the time the plaintiff was hurt Bagby was em: ployed in or about his employer’s business. To establish such fact, a witness named Henry was permitted to testify that he was present at the store of a Mr. Yardley while Bagby was buying staples and that he asked the latter what he was doing. He responded that he was working for Mr. Clark. The latter was not present at the time. The following question to the ' witness and his answer appear in the record : “Did he (Bagby) say what he wanted to use the staples for? “Told me to fix a fence for Mr. Clark.” This testimony was material on behalf of plaintiff below,' and was the only direct testimony in the case tending to show that Bagby was on a business errand for his landlord when the accident happened. Bagby was called by Clark on the defense and denied making such statement, and Clark testified that Bagby was-his tenant only, cultivating land and building fences on his own account.
The-court in the instruction referred to narrowed' down the question to be considered by the jury, and brought it within the limits of the rule applicable in such cases. The mere fact that the agent, Bagby, was in the employ of Clark at the time of the injury did not make the latter responsible for the former’s negligence. To render a master liable it,must appear that the tortious acts of the -servant were done in the course of his employment in the former’s service. This the statement of Bagby tended to show. That such declarations were inadmissible admits of no doubt. , (Mo. Pac. Rly. Co. v. Johnson, 55 Kan. 344, 40 Pac. 641; Leu v. Mayer, 52 id. 419, 34 Pac. 969 Donaldson v. Everhart, 50 id. 718, 32 Pac. 405; Mo. Pac. Rly. Co. v. Stults, 31 id. 752, 3 Pac. 522 ; Coal Co. v. Dickson, 55 id. 62, 70, 39 Pac. 691.) Bagby testified that -what business -he transacted while in town on the day of the accident was personal to himself. If this was true, the witness himself, not his employer, was liable. (Hudson v. M. K. & T. Rly. Co., 16 Kan. 470.)
The rule is well illustrated in the case of Cousins v. Hannibal & St. Joseph R. R. Co., 66 Mo. 572. A person employed by a railway company as superintend- e'nt of a roundhouse where locomotives were housed, whose duty it was to see that they wene kept in running order, took an engine which had been left stand? ing in the railway yard by its regular engineer, and went after a doctor who lived about two miles distant, to attend a sick neighbor. In running the engine on this errand the plaintiff’s stock was injured and killed. It was held that the railway company was not liable.
We would prefer to affirm the judgment of the court below, if it could be done without violating a well-settled rule in the law of evidence, for we think there was ample proof of Bagby’s negligence, and the verdict of the jury exceedingly moderate in amount, considering the extent of plaintiff’s injuries.
The judgment of the court below will be reversed and a new trial granted.
All the Justices concurring. | [
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Per Curiam:
John Stahl was the respondent in a bastardy proceeding wherein Ella Lorimer was the relatrix. Upon the trial he was found to be the father of the child and adjudged to pay for its maintenance and education 12250.
In part, his defense was based upon the claim that a brother-in-law of Miss Lorimer was the father of the child. In proof of this he showed by one witness that, some nine, or ten years before the birth of the child, this brother-in-law was seen in a cave, or outdoor cellar, toward which Miss Lorimer, then a girl of about sixteen years of age, was going, and which she afterward entered, in a vulgar and compromising position. The brother-in-law had gone into the cave for the purpose of carrying the milk and Miss Lorimer was going there to take care of it. It was not shown that anything wrong ocourred between the parties after she reached the cave, or even what the brother-in-law’s position was, or that there was anything wrong in the brother-in-law’s conduct when she came to the cave. It was further shown that while Miss Lorimer was living at the house of this brother-in-law she sat next to him at the table, accompanied him to various meetings in the daytime in company with his wife and child, and, on occasion, when the crowded condition of the vehicle required it, she would ride sitting on his lap. To make these matters competent as evidence, it was further shown that this brother-in-law had stayed one night at the house of Miss Lorimer’s father, she then being at home, about the time that conception of the bastard child must have taken place. The trial court deemed the compromising acts testified to as having occurred nine or ten years prior to this too remote and indefinite to go to the jury for the purpose of raising any presumption that the brother-in-law had connection with the relatrix at the time he stayed all night at the house of her father. We think there was no error committed by the court in this matter. Giving the evidence its fullest effect, no wrong-doing is traced to Miss Lorimer, If the brother-in-law was acting lewdly, it was not in her presence or shown to be with her knowledge. The other actions were of the most innocent and usual occurrence.
The second claimed error is that the court refused to require the relatrix to produce the child in court. We need not discuss this, for subsequently the child was exhibited to the jury and their attention called thereto, and the error, if any, thereby cured.
It is next claimed that the court should have permitted evidence of the relatrix given upon the preliminary exami nation to be read upon the trial, as it tended to disprove and contradict the evidence given by her upon the trial. We have carefully examined her testimony given on both occasions and find no substantial difference.
The court instructed the jury as to the usual period of gestation, and then added that in extraordinary cases this period might be shortened or lengthened. We find no error in this, as .in any case the ordinary time as indicated by the court would include the time when defendant’s witnesses testified that the brother-in-law stayed at his father-in-law’s house.
Fault is found with the court in giving the following instruction: “The purpose of a proceeding in bastardy, such as this, is to compel the father of an illegitimate child to assist in supporting the fruits of his immoral act, and to indemnify the public against the burden of supporting the child.” It is claimed that this was an invitation to the jury to convict. We see no force in this objection.
Finally, it is claimed that the amount of the judgment was oppressive and excessive. The statute directs that the court shall render such judgment as may seem just for the securing of the maintenance and education of the child. This is a matter within the sound discretion of the court. The amount should be such as to secure the maintenance and education of the child commensurate with the standing of its mother, and measured to some extent by the ability of its father. Here it was shown that the defendant had property to the value of $9000 to $12,000. The amount adjudged is but little more than $100 a year for the child’s maintenance and education during minority. We are not prepared to say that this was an abuse of the court’s discretion in the matter or even excessive. •
The judgment will be affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
George N. Haas, as sheriff of Jackson county, seized a quantity of hay as the property of Frank Ashton, which was claimed by Chubb, who had cut and put up the hay.' Chubb brought this action on the bond of the sheriff, alleging the wrongful seizure and conversion of the hay. It appears that an agreement had been entered into by which Chubb sold to Ashton 1000 tons of hay, 500 tons of which wasAo be delivered on the cars at Hoyt, Kan., at the rate of two cars per day, and the remaining 500 tons to be put in a barn at Hoyt and held there subject to the order of Ashton. There were other provisions as to the time of shipment of the balance, the manner in which the cars should be loaded, and the price to be paid. It was claimed by Chubb that the contract was' modified because Ashton was unable to dispose of the hay as rapidly as it was shipped. Under the modification, a part of the hay brought in for shipment was placed in the barn, some of which was subject to the order of Ashton and some was not.
The contention in this case was that the hay seized was not subject to his order and was not his property. To settle the question of ownership, it was thought necessary to show certain shipments of hay from Hoyt to St. Joseph. To do this press copies of way-bills were introduced. • An agent of the railroad company produced a book containing the copies, and stated that he did not make the copies, but found the book in the office when he came to Hoyt and took charge of the station. The copies had been made by one of his predecessors. Another witness was introduced, who testified that one Pyle had been an agent at the station ; that he was acquainted with Pyle’s handwriting, and that the copies appeared to be of Pyle’s handwriting, -who, it seems, was outside the county when the trial was had.
It is very doubtful whether the writings introduced would have been admissible as original entries or books of entry in any case. It it true, they appear to be the only record of the way-bills kept at the station, but they were only copies of the way-bills, which presumably were extant and could have been produced. If the copies were offered as secondary evidence, it can hardly be said that a sufficient showing was made to warrant their admission. Neither the loss nor the inability of the parties to introduce the originals was shown (Barons v. Brown, 25 Kan. 410) ; indeed, it was not shown that the way-bills once actually had an existence, or that they were genuine, or even that they had been copied in the book as they were finally issued.
A more serious objection, however, is that the entries made by the agent of the railroad company, whether regarded as original or secondary evidence-, were offered in a controversy with which the railroad company had no connection. Neither the company nor its agent represented either Chubb or Ashton. The latter had no control over the. entries, nor had they any right to inspect the book in which they were copied, or to verify the copies as made. As to them the railroad company was a complete stranger. It has been said:
“Entries in the account-books of third persons, not parties to the suit, are not ordinarily admissible, since they usually fall within the description of res inter alios acta, and also because they are not made under the sanction of an oath, and the party against whom they are offered has no opportunity to cross-examine.” (9 A. & E. Encycl. of L., 2d ed., 937.)
There are some exceptions to this general rule, but the present case does not appear to fall within any of them. A class of entries made by third persons in the ordinary course of business, by one whose duty it was to make them, have been admitted in evidence in some cases, but only after the decease of the person who made them. (Price v. The Earl of Torrington, 1 Salk. 285; Nicholls v. Webb, 8 Wheat. 326, 5 L. Ed. 628; Nourse and wife v. M’Cay and others, 2 Rawle, 69; Augusta v. Windsor, 19 Me. 317; State v. Phair, 48 Vt. 366 ; Sypher v. Savery, 39 Iowa, 258 ; Fisher et al. v. Mayor, 67 N. Y. 73; Lassone v. Railroad, 66 N. H. 345, 24 Atl. 902, 17 L. R. A. 525; and Stark. Ev., 10th ed., 492.) It was not shown in this case that the agent who made the entries was dead; on the other hand, it appears that he was living at another point in the state and that his testimony could have been obtained.
Our attention is particularly called to the case of Robinson v. Mulder, 81 Mich. 75, 45 N. W. 505, where the freight book in which were copied way-bills was received in evidence. In that case, however, the agent who received the goods and who delivered them to the consignee and obtained his receipt was present and testified to the receipt and delivery of the goods, and the freight book was introduced in connection with, and supplementary to, his testimony. The case, therefore, was quite unlike the present one, and the question whether entries of third parties could be received in evidence against the litigants was not considered.
The reception of this testimony is deemed to be material error, and hence the judgment must 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
Pollock, J. :
This action was brought by the state against M. A. Wilson, as county attorney of Rawlins county, and J. H. Chambers and John M. Burton, sureties on his official bond, to recover money alleged to belong to the state collected by Wilson. Under the provisions of chapter 242, Laws of 1895, entitled "An act to provide seed for the needy farmers,” etc., the state furnished Rawlins county seed grain which was sold to the farmers of that county in small amounts, aggregating $2661, the farmers giving their promissory notes for the amount received. A large number of these notes came from the hand of the county treasurer into the possession of Wilson while county attorney, for collection. He collected thereon the sum of $1055.60, and of this amount failed to account for the sum of $791.64, for which amount this action was brought against Wilson, as county attorney, and the sureties on his official bond. As between the state and the county attorney, an agreed statement of facts was made, upon which the case was tried. However, it is expressly stipulated therein that this statement of facts is not binding on the sureties on the bond. There was judgment for plaintiff. Defendants bring error.
As there is no appearance in this court on behalf of the county attorney, Wilson, the judgment against him is affirmed.
Counsel for the sureties on Wilson’s bond urge upon our consideration many grounds of error. We shall consider but one. It is fatal to a recovery and terminates the controversy. The condition of the obligation executed by the sureties reads :
“If the said M. A. Wilson shall well and faithfully perform and execute the duties of the office of county attorney of said county, required of him by law, during his continuance in office by virtue of said election, and shall pay over to the county treasurer of said county all moneys that shall come into his hands by virtue of his office, and deliver to his successor in office, the boots, papers and other things belonging to his said office which may be so required by law, then the above obligation shall be void; otherwise to be and remain in full force and effect.”
As a general proposition, the obligation of a surety is strictissimi juris. The surety has the right to stand upon the letter of his obligation. That defendants, as sureties upon the official bond of Wilson as county attorney of Rawlins county, are liable only for such sums of money as he might lawfully receive by virtue of his office as county attorney is too well settled to admit of argument. (Brandt, Sure. & Guar. § 451; Cressey v. Gierman et als., 7 Minn. 398 [Gil. 316] ; McKee v. Griffin, 66 Ala. 211; San Jose v. Welch, 65 Cal. 358, 4 Pac. 207 ; The People v. Cobb, 10 Colo. App. 478, 51 Pac. 523 ; Nolley et al. v. Callaway County Court, 11 Mo. 447 ; People of the State of N. Y. v. Pennock, 60 N. Y. 421; Saltenberry v. Loucks, 8 La. Ann. 95.) The only question, therefore, in this case is, Did the money collected by Wilson upon these notes come into his hands by virtue of his office as county attorney ?
Section 5, chapter 242, Laws of 1895, under which the seed was distributed and the notes taken, provided :
“The county commissioners shall take from each applicant for seed an obligation for the cost of seed furnished to such applicant. . . . The form of such obligation shall be provided by the railroad commissioners ; the county commissioners shall collect such obligations and immediately transmit such collections to the state treasurer, who shall indorse the same upon the proper county warrants.”
Section 6 provided:
“The board of county commissioners shall receive the sum of two dollars per day for the time actually employed in carrying out the provisions of this act. . . .”
It was thus expressly made the duty of the county commissioners of Rawlins county to collect these notes. If by the commissioners the performance of this duty was delegated to Wilson as county attorney, the risk of the safe performance of such delegated authority rests upon the county commissioners and not upon the sureties on Wilson’s official bond. As there is no provision of law authorizing or requiring the county attorney to collect the notes in question, the assumption of this authority and the attempted performance of such duty by Wilson were purely voluntary acts, not falling within the scope of his official duty. It therefore follows of necessity that the defendants, as sureties on his official bond, are not liable for his default in the performance of this voluntary act.
The judgment is reversed as to the sureties, Chambers and Burton.
All the Justices concurring. | [
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Per Curiam:
Nearly all of the assignments of error
urged in this case by the appellants were considered and decided in the case of The State v. Davis, ante, page 545, 78 Pac. 87. We find no abuse of discretion on the part of the trial court in the questions asked by it of the witnesses. There was no error in the instructions given or refused.
The judgment will be affirmed. | [
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The opinion of the court was delivered by
Price, J.:
The question in this case concerns the propriety of a division of property in a divorce case in which a decree of divorce was granted to the husband on account of the fault of the wife.
The parties were married in 1942 and for a time lived in Oklahoma. In 1944 they moved to a farm purchased by the husband, near Edna, Kansas. The wife had been married twice previously, both marriages ending in divorce. She had five children by those marriages. The husband had also been married twice previously, one of his former wives having died and his other marriage ending in divorce. He had no children as the result of either marriage, and there are no children as a result of this marriage.
In June, 1950, plaintiff wife brought an action for separate maintenance, alleging extreme cruelty and gross neglect of duty. Her petition was later amended to ask for a divorce. He answered with a general denial and cross-petitioned for a divorce on the grounds of gross neglect of duty and extreme cruelty. After hearing all of the evidence the lower court granted a divorce to the husband on the grounds alleged. By its decree the court awarded to the husband certain household goods, the livestock and automobile of the parties, together with all real estate; and awarded to the wife certain household furniture and rendered a judgment in her favor in the amount of $6,600, payable at the rate of $550 monthly, such judgment to be a lien upon the husband’s real estate until paid in full. He was ordered to pay the costs of the action, together with her attorney fees.
Defendant husband’s motion for a new trial as to property rights being overruled, he has appealed. The wife has not cross-appealed from the judgment granting a divorce to her husband.
In this court the only question involved is whether the lower court, after granting a divorce to the husband, abused its discretion in making the award of property to the wife and in directing him to pay her attorney fee in the amount of $300.
Appellant concedes the matter of property rights is governed by G. S. 1949, 60-1511, which in part provides that when a divorce shall be granted by reason of the fault or aggression of the wife the court shall order restoration to her of the whole of her property owned by her before or by her separately acquired after the marriage and not previously disposed of—
“. . . and also the court may award the wife such share of her husband’s real and personal property, or both, as to the court may appear just and reasonable; . . .”
The precise question has been before this court many times and it has been uniformly held that under the statute a division of property rests in the sound discretion of the trial court. In the case of Hayn v. Hayn, 162 Kan. 189, 175 P. 2d 127, it was held that it rests in the sound discretion of the trial court whether it will award any portion of the husband’s separate property to the wife when the divorce is granted to the husband by reason of the fault of the wife. And in the very recent case of Harris v. Harris, 169 Kan. 339, 219 P. 2d 454, in which a number of our earlier decisions, including the Hayn case, supra, were referred to, it was again announced that where the divorce was granted to the husband a division of property will not be disturbed on appellate review unless it appears the statute has been disregarded or that the trial court’s action in making such division is so unjust and unreasonable as to constitute an abuse of discretion. (See also Johnson v. Johnson, 167 Kan. 624, 207 P. 2d 948.)
We have made a careful review of the record before us and, while it would seem that in view of the amount and kind of property owned by the parties the wife received a liberal award, yet we are unable to say the trial court was guilty of an abuse of discretion in making the award that it did. It is not the function of this court to retry divorce cases and divide property between husband and wife. We will, however, as we have done here, review the record for the purpose of determining whether a trial court’s findings have a factual basis in the evidence and whether its discretion in the matter of a division of property has been abused. A review of this record convinces us that such discretion was not abused, and the judgment of the lower court is therefore affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J. :
J. C. Brownfield was charged with perjury alleged to have been committed by him in his testimony given at the trial of Jessie Morrison upon a charge of murder. On the trial he was found guilty by a jury, and the punishment adjudged was a term of seven years in the state penitentiary.
I. Upon his appeal he claims that his application for a change of venue, based on the alleged, bias and prejudice of the judge, was refused. The ground for this claim was the action of the judge, who, at the close of Brownfield’s'testimony in the Morrison case, directed the sheriff to detain him until the county attorney could examine the testimony and file a complaint against him. This action, however, appears to have been taken by the judge at the suggestion and request of the county attorney and we see no impropriety in it, nor anything showing prejudice or disqualification of the judge.
2. No error was committed in overruling the motion to quash the information. The complaint is that the materiality of the testimony upon which perjury was assigned, was not sufficiently stated. The information set forth with fulness the substance of the offense charged, and the court before whom the oath was taken and the officer who administered it, together with proper averments to falsify the testimony upon which the perjury was assigned, and this under the statute is sufficient. (Gen. Stat. 1901, § 2148.) It was stated in the information that the question about which the testimony was given was a material issue in the case, and then the testimony itself was set forth in detail, and its materiality was manifest. In general, an express averment that the false testimony upon which perjury is assigned as material is sufficient, without setting out all the facts from which such materiality would appear. So it has been said :
“Two methods of showing the materiality of the' testimony alleged to be false are in common use in indictments for perjury. The first method is to allege generally that the testimony in question was material, and the second is to aver in the indictment facts which render the materiality of the testimony clearly apparent. And in general, an averment of materiality by either one of these methods will be held sufficient.” (16 Encyc. of PI. & Pr. 343, and cases cited.)
3. Objections were made to the competency of several of the jurors that were not sustained. Attention is specially called to one of them, who stated that he had some feeling as to the Morrison case, and that something might develop in the trial of the defendant so that he would be affected by the feeling which he had. His examination, however, showed that in the present case he had neither formed nor expressed an opinion as to the guilt or innocence of the defendant, and he stated that notwithstanding the feeling in the Morrison case^he could give the defendant-*a fair and impartial trial. No error was committed in impaneling the jury.
4. The statements of the testimony given by Brownfield as to what occurred and what was said by him two days after the attack on Mrs. Castle were set out in the information and introduced in evidence. It is said that these statements were immaterial and prejudicial. There is good reason to doubt whether they can be said to be immaterial,- as they tended to support and strengthen the defendant’s testimony on the main question, and to overcome the claim that he did not know anything of the place of the homicide until long afterward. However, the court finally concluded to treat the statements as immaterial and withdrew them from the consideration of the jury. In no event, therefore, can it be said that prejudicial error was committed.
None of the other objections to the rulings on testimony, which are mainly as to the. extent of cross-examination, are deemed to be material.
5. The charge of the court, although complained of, fairly presented the case to the jury. The offense was well defined and the essential things to be proved by the state were carefully stated. The claim' that the court left the jury to figure out the issues of the Case from the information alone is not sustained. "We find no good reason to complain of the rulings, either as to the instructions refused or as to those given.
Complaint is made of some of the statements of attorneys representing the state in the arguments before the jury. It is true that some of these went beyond the bounds of legitimate argument, but where objections were made most of the unwarranted statements were stricken out and the jury were admonished to give no attention to them. Other of the statements might well have been stricken out, but we see nothing in them so prejudicial as to warrant us in overthrowing the verdict.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Per Curiam:
Charles O. McCue purchased a herd of 100 cattle from the Zeb. Crider Commission Company. The promissory note of himself and C. W. Fairchild for $2341.72, and his individual promissory note for $328.40, both secured by chattel mortgage upon the cattle, were executed to the commission company as evidence of the entire purchase-money agreed to be paid for the cattle. These promissory notes were sold and delivered to the National Bank of Commerce, of Kansas City, Missouri. After default made in payment of the notes, this action in replevin was brought by the bank against McOue and one Lena J, Grace, to secure possession of the cattle. There was a trial to the court without a jury, which resulted in a judgment in favor of the plaintiff. Defendants bring error.
There is a contention made that the bank had not complied with the incorporation laws of this state, and that defendant Lena J. Grace claimed some interest in the cattle. An examination of the record shows that the claims of error made are not well founded.
' The judgment is supported by the facts as found from the evidence,-is unquestionably right, and must be affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
Defendant in error, who was plaintiff in the court below, recovered a judgment against the school'district for services rendered in conveying his three minor children to and from the schoolhouse. The action was based on the liability imposed on the district by section 12, chapter 177, Laws of 1899. The services were performed before said act was repealed by chapter 307, Laws of 1901 (Gen. Stat. 1901, §§ 6116-6158).' The school district complains that the legislative act allowing the recovery is void, being in violation of section 16, article 2, of the constitution, in that it contains two subjects, one being the reorganization of depopulated school districts, and the other a provision for conveying pupils to school in all the districts of the state ; that the law in effect diverts a part of the school funda raised by a general tax on the property in the school district and transfers it to a private individual for his benefit.
It is urged that, because all the sections of the act of 1899 except section 12 relate to the subject of depopulated school districts, section 12 cannot stand. It reads :
“Sec. 12. That in any school district where there are pupils residing three or more miles from the schoolhouse, the school board of such district shall allow to the parent or guardian of such pupils a sum not to exceed fifteen cents per day for not to exceed 100 days in each year, as compensation for conveying such pupils to and from the school; provided, that no such compensation be allowed unless the pupil is actually conveyed to and from the school.”
The law is entitled :
“An act relating to partially depopulated school districts, and providing for the disorganization thereof, for the consolidation of schools in eertain school dis tricts, and for the conveyance of children to schools in certain 'cases.”
It has been frequently held by this court that no narrow or technical rule should be adopted in applying the section of the constitution invoked to defeat the operation of a law. (Wilson v. Herink, 64 Kan. 607, 68 Pac. 72.) The whole act has relation to schools only ; no other subject is contained in it. The matter covered by section 12 is clearly expressed in the title. In a quotation by Mr. Justice Brewer, found in the case of Philpin v. McCarty, Supt., &c., 24 Kan. 393, 403, it was said : ‘ ‘ The intent of this provision of the constitution was to prevent the union, in the same act, of incongruous matters, and of objects having .no connection, no relation.” We are of the opinion that the subject of legislation expressed in section 12 is assimilated to the other provisions of the act, and is sufficiently germane thereto to justify the inclusion of both under one title.
The next point made against the validity of the act is that, by allowing a parent to be paid out of public funds for conveying his children to school, money collected by taxation is diverted to private and individual use. If it could be said that the sole purpose of education at public expense is to impose a benefit on the person receiving it and those related to him, the argument of counsel would have some foundation on which to rest. A wider view, however, must be taken of the subject. The common schools of the country, supported by an. annual expenditure of millions of money raised by taxation, are not maintained solely to confer advantages on those to whom instruction is imparted, but in the interest of all classes and conditions of the people. The illiterate class (a small minority in this state) profits by a system of general education because the political rights of all are preserved best where the most intelligence is applied in the selection of representatives to make the laws, and in the choice of executive officers to enforce them.
The influence of free schools on the destinies of a free people is beyond calculation or measurement. The possessor of a liberal education cannot so far confine his knowledge to selfish purposes that the benefits of his learning will not in some degree inure to the good of others.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Price, J.:
This was an action to recover damages for the alleged wrongful death of the daughter of plaintiffs resulting from an automobile collision. Defendants Tyrrell were common carriers for the hauling of oil field equipment, under permit of the Kansas Corporation Commission, and the other defendant is their insurance carrier. The collision of the car in which the deceased was riding, with another automobile coming from the opposite direction, was alleged to have resulted from a large accumulation of mud and slime which was carried onto and allowed to remain on a blacktop through highway by large, heavily loaded trucks being operated by defendants Tyrrell.
The trial of the action resulted in a hung jury, and a second trial thereof being continued until the next term of court defendants have appealed, specifying as error the orders of the lower court in overruling the demurrer to the petition, the demurrer to plaintiffs’ evidence, and the motion for a directed verdict.
Stated very briefly, plaintiffs’ theory of the action was that defendant truckers created a hazard when they brought onto the highway a large amount of slick, slimy mud, and that they were under obligation to remove it or else warn the traveling public of the alleged dangerous condition so created.
Defendants denied the acts of negligence complained of and alleged the death to be the result of negligence of the driver of the car in which deceased was riding, it being attributable to the deceased on account of their being engaged in a joint enterprise at the time in question, and also as the result of contributory negligence on the part of the deceased herself in failing to exercise due care for her own safety, all of the circumstances considered.
In substance, plaintiffs’ evidence was as follows:
Defendants Tyrrell had been employed by a drilling company to move a torn down oil rig from one location to another. It was located at a point about one mile east of Canton on U. S. Highway No. 50, then about one-half mile north on a township road, and then about 330 feet east in a field. The moving was to be done on November 23, 1948, and early that morning a number of trucks arrived at the scene. In order for them to get over into the field it was necessary for a caterpillar to break snowdrifts on the north and south township road up to the entrance to the field. Due to previous rains and snows the ground was soggy and muddy. Several of the trucks were equipped with tire chains. All of them had dual rear wheels. It was necessary for the caterpillar to hook on and assist some of the more heavily loaded trucks through the narrow lane leading to the township road and also on the township road, which was very muddy, to the intersection of U. S. Highway No. 50. As the trucks entered and turned west on the latter highway large quantities of mud and slime dropped off in the north traffic lane. They then proceeded on west for a distance of from 300 feet to a quarter of a mile, so as to shake off the mud, where they stopped and the chains were removed. All of the trucks had proceeded on west from the intersection by at least 3:30 or 4:00 o’clock in the afternoon. None of the mud and slime was removed from the highway and neither were any warning signs posted.
At about the time the last truck was proceeding on west several students at the University of Kansas, including the deceased, were starting to drive home to spend Thanksgiving vacation. They were riding in an automobile being driven by Elizabeth .Stenzel and which was owned by her father. They stopped in Emporia for food at about six o’clock p. m. When they arrived at Marion, about 24 miles east of the intersection in question, it began to rain and mist, making it necessary to use the windshield wipers. The deceased and another girl were riding in the front seat with the driver, the deceased being in the middle. The black-top surface of U. S. Highway No. 50 was wet but not slippery. As their car, which was being driven about fifty miles per hour, approached the intersection from the east it was slowed down on account of the fact the driver observed a car coming from the west. It was about eight o’clock p. m. Immediately west of the intersection the Stenzel car suddenly swerved out of control over into the south traffic lane and crashed into the oncoming car, driven by one Klassen. As a result the daughter of plaintiffs and the other passenger riding in the front seat were killed. The Stenzel girl, who was driving, received severe injuries.
A number of witnesses who came to the scene of the crash testified as to the mud and slime in the north traffic lane immediately west of the intersection, and several described the extremely slippery condition of that portion of the highway as a result of the film of mud which extended for about one-quarter mile west of the intersection. Another witness, who had driven over the highway from the east at about 6:30 that evening, testified as to his difficulty in holding his vehicle under control on account of the extremely slippery and “icy” condition of that portion of the highway caused by the mud and slime. After the collision warning flares were placed east of the intersection, but the evidence established that other cars had difficulty at the point in question due to the extremely slippery condition of that portion of the highway. The evidence further disclosed that other portions of the highway, while wet from the rain and mist, were not slippery.
At the conclusion of plaintiffs’ evidence defendants demurred on the ground that under the pleadings, the law, and the evidence, no cause of action had been established. This demurrer was overruled.
Defendants then introduced their evidence, and while it tended to minimize the alleged hazardous condition established by plaintiffs’ case, we find it unnecessary to summarize it for the reason that defendants concede the rule to be that there is no material difference between a ruling on a demurrer to evidence and a ruling on'a motion for a directed verdict. We therefore proceed to the question whether the demurrer to plaintiffs’ evidence was properly overruled.
Defendants contend that before plaintiffs would have a case sufficient to be submitted to the jury it was necessary to establish that defendants’ trucks actually carried such huge, abnormal amounts of mud onto the highway as to create the equivalent of an obstruction or dangerous condition in the highway; that they did not remove or eliminate the situation thus created; that they did not warn the traveling public thereof; and that whatever defendants did in the use of the township road and highway was such as in law would amount to an unlawful or negligent use for which legal liability would ensue. It is further argued that nowhere in the record is there any claim or evidence tending to show that defendants were not using the road and highway for lawful purposes.
Defendants concede that one using a highway must use reasonable care to avoid injury to the person or property of others, and that the use of a highway by one for private purposes is not without limitations, such as the negligent dropping and leaving of a fence post, a pile of coal, or other such obstruction on the traveled portion of a highway, where a subsequent traveler, without contributory negligence, might run into it to his injury; but they argue the most that was shown here was a mere incident resulting from a lawful use of a public road.
Counsel for neither side have cited any precedents or authorities going to the precise question before us, and our own limited search has failed to disclose any. Decisions on the question of defective highway conditions are hardly applicable, and neither are those having to do with injuries resulting from alleged negligent construction operations. In fact, so far as the issue here is concerned we think it must stand or fall on the particular facts established. We will not repeat the summary of plaintiffs’ evidence, but, following the often repeated general rule that in ruling on a demurrer to evidence the court is to consider only that which is favorable to the one adducing it, is to disregard that which is unfavorable, and is to resolve all reasonable inferences in favor of the party adducing such evidence, we are unable to say the lower court erred in overruling the demurrer to plaintiffs’ evidence. In other words, we cannot say that as a matter of law the leaving of the quantity of mud and slime on the traveled portion of the highway, in view of all the circumstances and conditions then existing, did not constitute negligence. We think it was a fair question to be submitted to the jury for determination.
We have not overlooked defendants’ contentions with reference to the alleged negligence on the part of the driver of the car in which deceased was riding, and the alleged contributory negligence of deceased herself, but those matters were also properly submitted to the jury.
Plaintiffs’ evidence followed in substance the allegations of the petition, and from what has been said it therefore follows the court did not err in overruling the demurrer to the petition, and neither did it err in denying the motion for a directed verdict for defendants.
And finally, it is argued that it was error to sue the insurance carrier directly, the contention being there would be no primary liability on the part of such insurance carrier for the reason that even though it be held the truckers were negligent in bringing onto and leaving the mud and slime on the highway, such acts would not be “negligent operation” of the truckers, particularly in view of ' the fact that several hours intervened before the collision.
The petition alleged the granting of a certificate to defendants Tyrrell by the State Corporation Commission under the provisions of G. S. 1935, 66-1,128. The obligation of defendant insurance company was that prescribed by the statute, and the statute is a part of the policy. It was obligated to pay compensation for injuries or damage resulting from the negligent operation of defendants Tyrrell. The latter were operating their trucks pursuant to the policy and permit. The death was alleged to have resulted from the negligent operations of the Tyrrells in carrying the large amount of mud and slime onto the highway and leaving it there in a position of danger to the traveling public. Under the facts before us, the fact the trucks were no longer there when the collision occurred is immaterial. The petition stated a cause of action against the insurance carrier on the theory of negligence. (See Henderson v. National Mutual Cas. Co., 164 Kan. 109, 117, 118, 187 P. 2d 508.)
We find no error in the record and the orders and judgment of the lower court are therefore affirmed. | [
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The opinion of the court was delivered by
Pollock, J.:
On the morning of the 22d day of June, 1900, in the city of El Dorado, the defendant, Jessie Morrison, cut the throat of Clara Wiley Castle, the wife, and scarcely a week the bride, of Olin Castle. The tragedy occurred in the home of the bride. The instrument used was a razor. The deed was, in all its surrroundings, accomplishment, and conclusion, most pathetic, terrifying, and bloody. No less than twenty gashes with the razor were inflicted on the person of the deceased. The windpipe was cut in two places, the esophagus was twice severed, yet in this horrible condition the wife lived until the 10th day of July. During all of this time her condition was indeed most pitiable. The nature of the encounter, the conditions under which the tragedy occurred, the choice of instrument employed, and the severity of its use, caused wide-spread excitement and comment. The tragedy, in all of its horrible details and ghastly conclusion, the ensuing arrest of defendant, her examination and subsequent trials, were by the public press and report spread broadcast over the country ad nauseam.
Defendant was arrested, charged with the murder of Mrs. Castle. The first trial resulted in a disagreement of the jury. At the second trial defendant was convicted of manslaughter in the second degree and appealed to this court, where the judgment of conviction was reversed for errors committed in the impaneling of the jury. The case will be found reported in 64 Kan. 669, 68 Pac. 48. She has been tried again, convicted of murder in the second degree, and appeals to this court.
The theory of the state in regard to the tragedy is this : Defendant had been greatly attached to Olin Castle prior to his marriage ; had corresponded and kept company with him, and evidently anticipated her marriage to him. Upon his marriage to Miss Wiley defendant became intensely jealous of her successful rival; went to the bride’s home, carrying with her a letter which it was claimed related to Olin Castle ; over this letter in some way a controversy arose; defendant handed the letter to Mrs. Castle to read, and while she was reading it defendant attacked her with the razor which she carried with her for that purpose.
The defense admits the killing, but justifies upon the ground of self-defense. The theory of the defense is that Mrs. Castle was jealous of her husband’s affection for defendant; that it was her belief that defendant was attempting to entice her husband from her; that she called Miss Morrison into her house as she was passing, accused her of secret relations with her husband, and attacked her with the razor used; that in the struggle defendant wrested it from deceased and used it in her defense. As evidence of this theory, it was shown that defendant received upon her throat cuts from the razor. The state, however, contends that such wounds were slight and self-inflicted.
The record is voluminous in the extreme, the assignments of error very numerous, the briefs of counsel lengthy. A large amount of labor has been performed in the examination of, and consultation over, the case. In the short limits of a legal opinion it will be impossible to give in detail separate consideration to each independent assignment of error, nor indeed do we deem this necessary in expressing the conclusion we have reached in regard to the case. The former decision in this court is controlling and conclusive upon us now as to some of the important objections here urged.
The first ground of error urged is the order of the trial court denying.the motion made by defendant for a change of venue. This application was based upon the bias and prejudice of the trial judge. In its support there were filed the affidavits of James T’. Butler and Henry Swan, alleging, in substance, that in the month of December, 1900, during the progress of the first trial of the case and before the commencement of the term of office (but after his election) of the present trial judge, the Honorable G. P. Aikman, in response to an inquiry about the case, he said : “ 1 could have been on the defense in that case, but did not feel like defending a person that was as guilty as I believe Jessie Morrison is” ; and further said : “ The Morrison case was one of the issues on which I was elected.” There was also filed the affidavit of E. G. Grinstead, made on the 27th day of May, 1901, alleging, in substance, that in the month of July, 1900, Judge Aikman had stated to him “ that Jessie Morrison was a murderess and ought to be hung; . . . that when he became convinced of the guilt of a person as he was of the guilt of said Jessie Morrison, he had no hesitation in saying so.” The affidavit alleged this statement to have been made in the law office of Judge Aikman, in the city of El Dorado. . There was also filed in support of the application the affidavit of defendant as to certain matters occurring at the former trial of the case before Judge Aikman. Our attention is also called to various matters appearing in the record of the present trial which, it is claimed, tend to show bias and prejudice on the part of the trial judge toward defendant, preventing a fair trial.
In opposition to the motion there was filed the affidavit of W. E. McGinnis, who alleged that he had a desk in the office of Judge Aikman, and was present at the time Grinstead called and introduced himself to the judge ; that he heard all the conversation between them ; that no such statement as related by Grinstead was made by Judge Aikman; on the contrary, that the Morrison case was not mentioned at all between the parties. The trial judge also filed a statement in writing in which he positively disclaimed making any such statements as are attributed to him by Grin-stead, Butler and Swan in their affidavits. He also as positively disclaimed any bias or prejudice whatever against defendant, or that anything which he might have said or done on the previous trial was in any manner or way influenced by his feelings toward defendant, but, on the contrary, asserted in terms most positive his entire ability fairly and impartially to try the case. He further stated that he at no time was consulted by any one as to employment on behalf of the defendant.
In brief, this is the record upon this application. Had the affidavit of Grinstead stood unchallenged in the record, the allegations therein contained would go far to sustain the charge of prejudice made against the trial judge, but this affidavit is flatly contradicted both by the affidavit of McGinnis and the statement of the trial judge. Again, as appears from the record, this affidavit was taken by the attorneys for the defense prior to the first trial of the cause presided over by Judge Aikman, but was not filed or used until the present application was made.
As to the affidavits of Butler and Swan, it may be said that the belief or disbelief of a'trial judge in the guilt of a defendant put upon trial before him is not a test of his qualification to preside at such trial. A trial judge may be convinced from his personal knowledge of the case, or what he has heard from others, of the guilt of one put upon trial before him, and yet with the utmost fairness and impartiality conduct the trial and give the defendant a fair and impartial hearing. It is the existence of prejudice or bias in the mind of the trial court against defendant which must be clearly shown in support of an application for a change of venue from the court presided over by such judge, not the belief of the judge in the guilt of defendant. In the case of City of Emporia v. Volmer, 12 Kan. 622, it was held :
“In criminal cases, on an application for change of venue on account of the prejudice of the judge, such-facts and circumstances must be shown by affidavits or other evidence as clearly establish such prejudice ; and-unless it be by such testimony clearly established, a reviewing court will sustain an overruling of the application, on the ground that the judge must have been personally conscious of the falsity or non-existence of the grounds alleged.”
In the case of The State v. Bohan, 19 Kan. 28, it Avas ruled:
“Neither unfavorable comments as to the innocence of a defendant in a criminal case, after a verdict of guilty by a jury, made by a trial judge upon the evidence introduced in the case, when passing sentence upon such defendant, nor adverse rulings, nor errors of judgment, of themselves amount to prejudice on the part of a judge so as to compel a removal of the case (upon a new trial granted by the supreme court) to the district court of some county in a different judicial district.”
These cases were commented upon and followed in the case of The State v. Grinstead, 62 Kan. 593, 64 Pac. 49. In the opinion in that case it Avas said of the conduct of the trial judge at the trial after the denial of the application for the change of venue:
“However, his right to a change of venue is not to be determined from the fact that after it had been denied he received a fair and impartial trial, but from the showing made by him in support of his application.” *
An examination of these cases will, we think, dis close in each a stronger showing in support of the application for the change of venue than appears from the record in the present case. From the record before us, in the light of the former holdings of this court, we cannot say prejudicial error warranting a reversal of the judgment rendered was committed by the trial court in denying the application for the change of venue.
At the second trial of the case a verdict of manslaughter in the second degree was returned by the jury. Upon this verdict judgment was entered against defendant sentencing her to imprisonment in the state penitentiary for the term of five years. That judgment of conviction was reversed and annulled by this court. Defendant has been again tried, the jury returning a verdict against her of murder in the second degree. Upon this verdict the judgment of the court has been entered condemning her to the penitentiary of the state for a term of twenty-five years'. It is now earnestly contended by her counsel that the verdict and judgment at the former trial work an acquittal of all the degrees of felonious homicide superior to that, of man-' slaughter in the second degree, and as a necessary consequence the present judgment cannot stand, but must be reversed.
In other jurisdictions, from courts renowned for their high standing, learning, and great ability, there is much authority and many adjudicated cases in support of this contention. Indeed, the argument made in its support is most convincing. This court, however, in the morning of its.existence, as early as the case of The State v. McCord, 8 Kan. 232, 12 Am. Rep. 469, gave consideration to this question, and upon mature deliberation held, with many other states, against the contention here made by the counsel for defendant. To the decision thus early made in this court it has steadfastly adhered, as an examination of the many cases in which this question has arisen will show. (The State v. Hart, 33 Kan. 218, 6 Pac. 288; The State v. Miller, 35 id. 328, 10 Pac. 865; The State v. Terreso, 56 id. 126, 42 Pac. 354.) We deem it sufficient to say upon this branch of, the case that we do not feel at liberty to reopen and reexamine this question, but must regard it in this state as finally and conclusively settled-and determined.
It is strenuously insisted that the trial court has again committed error in the impaneling of the jury. As has been seen, on account of the recent marriage of the deceased ; the prior relations of the defendant and the husband of deceased ; the merciless character and savage nature of the encounter; the lingering death of deceased; the arrest of defendant; her succeeding examination and trials, all of which were fully reported in the public press and by report spread broadcast over the country, the sympathies and passions of the people were aroused and intensified to an extent seldom accompanying the commission of any crime except that of the most notorious, amounting to a great public calamity. As a necessary consequence, the task of securing a jury was both tedious and difficult. Hundreds of jurors were called and subjected to the most searching examination, often upon matters of minor import and immaterial detail. Such being the circumstances surrounding the trial, it is difficult to conceive how a jury, some of whom were not more or less conversant with the facts of the case, at least by report, could be secured. The two jurors against whom the most seri ous objections are urged were Harry Potts and Thomas Glaze. The most objectionable features of their examination touching their qualification to serve as j urors in the case appear as follows:
“ Q,ues. From wh'at you (Mr. Potts) read in the St. Louis Globe and other papers and what you may have heard about the case, did you form in your own mind an opinion as to the guilt or innocence of the defendant? Ans. Yes, sir.
“Q,. Have you that opinion now ? A. Yes, sir.
“Q,. Mr. Potts, did you believe these statements that you read at the time you read them ? A. Yes, sir ; I suppose I did.
“Q. Now from what you read, or from any other source, did you ever form any opinion as to the guilt or innocence of the defendant, Jessie Morrison ? A. Yes, sir.
“Q,. Have you that opinion now? A. Yes, sir.
“Q,. Would it take evidence to remove it ? A. Yes, sir.
“Q,. If you should sit as a juror in this case, that opinion would remain in your mind until you would hear some evidence different from that opinion ? A. Yes, sir.
“Q,. Would it not take pretty strong or substantial evidence to remove it ? A. It would have to 'take something that I thought was good. =
“Q,. Something-that you thought was good and reliable? A. Yes, sir.
“Q,. Do you remember whether you have ever expressed an opinion as to her guilt or innocence ; not likely, but do you remember whether you have or not ? A. Yes,.sir; I probably have.
“Q,. You have? A. Yes, sir.”
Juror Glaze :
“Q,ues. You do not know whether-or not what you did read was true or not? Ans. Nothing more than just supposed'it was true by them being printed.
“Q,. But you had no means of knowing whether it-was a fair and impartial account of the trial or not? A. No, sir; I did not know anything about that;, only supposed it was true.
“Q. Have you any opinion at this time as to the-guilt or innocence of the defendant? A. Well, I suppose I could answer that in this way : to a certain' extent I have.
“Q,. If I understand you, Mr. Glaze, you have not made up your mind yet ? A. I have not exactly made-up my mind. I did not hear anything of the witnesses- and I could not definitely answer that.
‘ ‘ Q,-. Did you ever talk with any person that was present at either of those trials? A. I never talked with any of the witnesses. I have talked with persons that were in the court-room.
“Q,. Well, did those persons relate to you what the-evidence was or tell you what the evidence was or what was done in court? A. They told me what-they had heard sworn at that time.
“Q,. Was there in any paper that you read what-was claimed was the dying statement of Clara Wiley Castle as given to the jury? A. Yes, sir. .
“Q,. Did you read that? A. I did.
“Q. Have you ever heard anyone express an opinion as to the guilt or innocence of defendant, Jessie-Morrison? A. Oh, yes; I have heard them express their opinion.
<(Q. Have, you ever formed any opinion as to her guilt or innocence? A. I suppose that I have, to a-certain extent, no doubt.
“ Q. Have you any opinion now as to the guilt or innocence of defendant, Jessie Morrison? A. Why, I could answer that question in this way : that I have my opinion as to certain things and other things I do-not know as I can say that I have a firm opinion.
“Q. I would like, Mr. Glaze, for you to give me an answer. Have you any opinion as to her guilt or innocence? ( By the Court:) If you do not feel you have-any opinion, say so, Mr. Glaze, A. Why, I have an opinion in one way." .
Upon further examination, the juror Potts testified as follows :
“Q,ues. Does that opinion depend solely upon the truth or falsity of what you read in those papers and what you have heard? Ans. Yes, sir; that is all the source I have.
“Q,. That is the only source you have to form that opinion from ? A. Yes, sir.
“Q,. From what you have read about the case and from the rumors you have heard, have you any bias or prejudice either for or against the defendant? A. No, sir.
“ Q. Is that opinion you have formed from reading these accounts and from the rumors such an opinion as would readily yield to testimony you might hear from the witness-stand, if you are accepted as a juror here ? A. Yes, sir.
“Q,. You think it would ? A. Yes, sir.
“Q,. It is not a fixed and settled opinion ? A. No,sir.
“Q,. Would slight evidence remove it ? A. Yes, sir.
“Q. Mr. Potts, do you feel that this opinion, whatever opinion you may have, is of a light character, and not firmly fixed in your mind? A. Yes, sir ; of a light character.
“Q,. Have you heard any one express-any opinion as to the guilt1 or innocence of Miss Morrison? A. Yes, sir; both ways.
“Q,. I want to know whether it would take strong evidence or slight evidence to remove it? A. Well, slight evidence would remove it.
“Q,. Do you feel sure of that, now; that is your feeling, is it ? A. Yes, sir.
“Q. If it should turn out in this case that defendant killed Clara Wiley Castle, have you an opinion now as to whether or not that was done in self-defense ? A; I could not say.
“Q,. Have you any opinion as to that ? If it should turn out in this case that defendant killed Clara Wiley Castle, have you any opinion now as to whether or not that was done in self-defense ? A. I have not.”
The juror Glaze, upon further examination, testified as follows:
“Ques. You understand, Mr. Glaze, that under certain circumstances a person might be justified in taking the life of another, if done in self-defense? Ans. Í understand they have a right in self-defense.
“ Q. Now, did you form any opinion as to whether defendant in this case acted in self-defense or not in what she did? A. Why, I do not know as I can say that I formed an opinion, because I do not really understand how I could.
“Q. You did not understand how the facts were? A. No, sir ; because I didn’t read all of the papers.
“ Q. Have you any opinion at this time as to the guilt or innocence of the defendant? A. Why, I suppose I could answer that in this way : to a certain extent I have.
“Q. Is that such an opinion that would weigh against the testimony of witnesses that were sworn to appear before you and testified to the facts as they knew them? A. I do not think it would.
“Q. Mr. Glaze, do you feel that your mind is now open to a fair and impartial consideration of the testimony that might be offered? A. I think so ; yes, sir.
“Q. Hid you have an opinion as to whether or not Clara Wiley Castle was killed? A. Yes, sir; I have an opinion that she was killed.
“Q. But you had no opinion as to whether this defendant was justified in doing so? A. Why, Ido not know whether she had a right to do so or not.
“ft. And you have no opinion upon that subject? A. No, sir.”
While it is shown by the above examination that the jurors had read newspaper reports of the tragedy and trials, and from such reports had obtained information regarding the case, yet, in this enlightened age, the ability of the inhabitants of this state to read being almost universal, the daily or weekly paper appearing in almost every household with the regu larity of the seasons, it ceases to be a matter of wonder that the jurors called should have read or heard of the case and the facts in relation thereto. Indeed,, in a case so notorious, it would be a matter of astonishment if they had not. In considering and weighing the above testimony touching the disqualification of the jurors, the true issue in the case is important and must be borne in mind. In this case the fact' that defendant killed deceased was admitted, and was not in any way an issue on the trial. The material fact or issue presented to the jury for their determination was, Was the killing done in self-defense ? Section 205 of the criminal code (Gen. Stat. 1901, §5647) provides : “It shall be a good cause of challenge to a juror that he has formed or expressed an opinion on the issue or any material fact to be tried.” While in the first instance the jurors testified that they held an opinion as to the guilt or innocence of the accused, gathered from newspaper reading and reports, yet it was made quite clear by their subsequent examination that such opinion was not a settled conviction as to the guilt or innocence of the accused at all, but was only an opinion upon the admitted fact that defendant had killed the deceased. This the jurors most naturally confounded with an opinion as to the guilt of defendant. As to the real issue in the case, as to the material fact the jury were called to try — that is ■ to say, whether the defendant was justified in the killing because acting in self-defense — they had no opinion whatever, and so positively stated. In the case of The State v. O’Shea, 60 Kan. 772, 57 Pac. 970, this court held:
“The mere fact that a person called as a juror had formed or expressed an opinion that the defendant shot and killed the deceased did not disqualify him as a juror, where the shooting and killing was conceded by the defendant, who claimed that it was done .in self-defenso.”
In the opinion it was gaid :
“Throughout the trial the shooting and consequent death of Dawson were conceded, and the claim of the defendant was .that the act was justifiable, being done • in self-defense. Opinions upon matters notin issue do not disqualify the jurors entertaining them, and especially where, as in this case, it is shown that they have not formed or expressed an opinion as to the guilt or innocence of the defendant, and where there is nothing indicating that they cannot give the defendant a fair and impartial trial. (The State v. Wells, 28 Kan. 321; The State v. Gould, 40 id. 258, 19 Pac. 739 ; The State v. Wells, 54 id. 166, 37 Pac. 1005.)”
In the opinion in this case on the former appeal it ■ was said:
“It is true that an opinion of a juror upon a conceded fact does not disqualify him, and hence a belief that the defendant killed Mrs. Castle was not a good objection. A jui*or, however, who held or expressed a decided opinion as to whether the defendant was justified in killing the deceased or as to her guilt should have been excluded from the jury-box.”
Again, from the entire examination it does not appear that the opinion formed or expressed by the jurors was a settled conviction of the mind, or an opinion of a positive and fixed character, but it was such an opinion as is formed in the ordinary mind from the reading of a newspaper» account of a transaction with which they are not otherwise familiar.
. It has been many times held by this court that an opinion such as will disqualify a juror from trying a case must be not only an opinion as to a material fact or the issue to be tried, but must be of a positive and fixed character, where the jurors otherwise appear to be free frofn any bias or prejudice in the case. In the case of The State v. Treadwell, 54 Kan. 513, 38 Pac. 813, it was held :
“Some of the jurors had impressions or beliefs as to the commission of the offense charged which were not of a positive and fixed character, but were derived ■solely from rumor and newspaper statements, and they appeared to have been free from any bias or predjudice and to be. able to fairly consider the testimony and render an impartial verdict in the case. Held, that the overruling of the challenge to the retention of such jurors is not sufficient ground for reversal.”
In the opinion on the former appeal of this case it was said :
“What, then, shall be deemed a disqualifying opinion ? ■ It is not; as has been determined, a light and transient impression obtained from vague rumors or the reading of brief and partial newspaper reports, which in the nature of things would not close the mind of an unpredjudiced man against testimony. (The State v. Medlicott, 9 Kan. 279 ; The State v. Treadwell, 54 id. 511, 38 Pac. 813; The State v. Thomas, 58 id. 806, 51 Pac. 228 ; The State v Kornstett, 62 id. 221, 61 Pac. 805.) On the other hand, a strong impression or opinion of a fixed and abiding character, based on information derived from witnesses or from those acquainted with the facts and deemed reliable, will disqualify, although the .juror himself may think and state that he can fairly try the case. (The State v. Miller, 29 Kan. 43 ; The State v. Beatty, 45 id. 492, 25 Pac. 899; The State v. Snodgrass, 52 id. 174, 34 Pac. 750; The State v. Beuerman, 59 id. 586, 53 Pac. 874; The State v. Start, 60 id. 256, 56 Pac. 15 ; The State v. Otto, 61 id. 58, 58 Pac. 995.)”
From a consideration of the entire testimony of the jurors, we arrive at the conclusion that the only positive and. fixed opinion formed by them was that the defendant had taken the life of the deceased; that this opinion was of a fixed and positive nature, but concerned an admitted fact immaterial to the real issue tried; that as to the legal guilt or innocence of the accused the jurors were without a disqualifying opinion.
We have examined the record as to the jurors McClain and Ayers, and find no error in excluding the one and retaining the other.
Many assignments of error are based upon the reception and rejection of testimony. In so far as they relate to the dying statement of deceased, it is sufficient to say that this question was fully considered in the former appeal, and the decision there made is conclusive here.
It is contended that the court erred in refusing to receive evidence of the manner, demeanor, actions, conversation and conduct of defendant on the morning of the tragedy. There are cases in which this class of evidence is admissible. Had the defense interposed been insanity, evidence of this character would be highly proper as bearing directly upon the issue tendered. Had the state in this case relied on circumstantial evidence to prove the offense, such evidence would have been competent and material as a link in the chain of circumsta,nces tending to connect defendant with, or disconnect her from, the scene of the tragedy and participation therein. ( The State v. Baldwin, 36 Kan. 1, 12 Pac. 318.) But in this case the presence of defendant at the scene of the tragedy, her participation therein, the use of the instrument employed, were all admitted facts. As to which was" the aggressor .was the sole subject of inquiry. In this case the class of evidence offered was properly excluded. As touching upon the question here con sidered, see Garlitz v. State, 71 Md. 293, 18 Atl. 39, 4 L. R. A. 601, Again, much of this class of testimony was inadmissible as violating that principle of law which excludes self-serving acts and declarations.
It was attempted to be shown by the evidence of members of the family of defendant that they had not seen the razor found at the scene of the tragedy after its commission before the encounter occurred. This evidence was excluded. In this there was no error.
Over the objection of the defense, the state was permitted to ask defendant, a witness in her own behalf, as to statements made to third persons claimed to be' in conflict with her testimony. The questions so asked were for the purpose of discrediting the testimony of defendant, and were proper.
As to the remaining assignments of error ■ based upon the evidence in the record, it is sufficient to say that we have examined each carefully and find no error therein prejudicial to the rights of defendant.
Numerous assignments of error are based upon the charge of the court to the jury and the refusal of the court to instruct as requested by counsel for the defense. The instructions given by the court were forty-nine in number and in the exact language of those in the record on the former appeal. They covered every phase of the case. The defense requested the giving of fifty-seven separate instructions. It is impossible to treat the objections urged separately. We shall notice only those made the more prominent in the briefs and argument of counsel.
The court, in its forty-seventh instruction, attempted a definition of the term “reasonable doubt.” This instruction reads:
“The court further instructs the jury as a matter of law, that the doubt which the juror is allowed to retain in his own mind, and under the influence of which he should frame a verdict of not guilty, must always be a reasonable one. A doubt produced by undue sensibility in the mind of any juror, in view of the conseqences of his verdict, is not a reasonable doubt, and a juror is not allowed to create sources or materials of doubt by resorting to trivial and fanciful suppositions and remote conjectures as to possible state of facts, differing from that established by the evidence. You are not at liberty to disbelieve as jurors, if you believe as men. Your oath imposes .on you no obligation to doubt where no doubt would exist if no oath had been administered.”
Special complaint is made of the closing lines of this instruction. As has been often said by this court, the term “reasonable doubt” best defines itself. All attempts at definition are likely to prove confusing and dangerous. (The State v. Wilson, 66 Kan. 472, 71 Pac. 849 ; The State v. Kearley, 26 id. 77 ; The State v. Bridges, 29 id. 138 ; The State v. Davis, 48 id. 1, 28 Pac. 1092.) The question, however, here presented is, Does the definition given constitute prejudicial error? An instruction containing language almost identical with that here under consideration was approved by the supreme court of Illinois in the celebrated case of Spies et al. v. The People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320, following language used in Nevling v. Commonwealth, 98 Pa. St. 322. The ruling in the Spies case was afterward followed in Watt v. The People, 126 Ill. 9, 18 N. E. 340, 1 L. R. A. 403.
It is contended that the case of State v. Ruby, 61 Iowa, 86, 15 N. W. 848, in principle condemns the instruction given. The instruction in that case read as follows :
“You are to base your verdict solely on the evidence introduced on the trial, and to consider only the case of the defendant on trial. On the other hand, you are to view this evidence as reasonable men. Your oaths as jurors simply bind you to confin'e yourselves to the evidence and be governed by the law of the case as given by the court. Within this limit your minds in the jury-box should act as they would outside the jury-box. In other words, what satisfies the mind outside of the jury-box should do so within.”
The last sentence of this instruction was held erroneous. As an independent proposition the last sentence is undoubtedly erroneous. When considered in connection with the other portions of the instruction, the error is not so apparent. While the attempt here made to define "the term “reasonable doubt” is not commended, yet as an instruction, almost identical in form, has received the sanction of the courts, we,'are inclined to the opinion that the giving of it did not constitute prejudicial error.
Many of the requests made by defendant’s counsel for special instructions related to the dying statement of deceased. It is now -the settled law of this case that this statement was properly received in evidence. As to its consideration by the jury, and the weight it should receive, the court instructed (No. 39) as follows :
“The court has admitted in evidence a statement bearing date July 4, 1900, which it is claimed by the state was made by Clara Wiley Castle, and at a time when she was suffering from fatal wounds inflicted by defendant, and from which it is claimed she afterward died, and which statement, it is claimedvby the state, should be considered as the dying declaration of said Clara Wiley Castle. A person who is suffering from fatal wounds and who is weak and speechless from said wounds máy make her dying statement by such signs as clearly show that she knows and fully understands what she is doing, and the statement she is making, and is mentally conscious, and which signs clearly and distinctly convey her meaning, and the statement of such person may be reduced to writing, where such person is weak and speechless, by a third party, and if read over by the declarant, or read over to her by some other person, and clearly and fully understood and assentcsd to by her as her statement, and by her signed, it becomes her statement, if intended as such by her. In order to be considered by the jury as the dying declaration of said Clara Wiley Castle, it must clearly and satisfactorily appear, from the evidence and all the circumstances in the case, to the jury, that the statement offered in evidence by the state is the statement of Clara Wiley Castle regarding the encounter between her and the defendant, and that such statement was made by Clara Wiley Castle at a time when she was in extremis and in the full belief and sense of impending death, and that death was imminent, and in the full belief that she was going to die from the wounds inflicted on her by the defendant, and that death was near, and at a time when the deceased had abandoned all hope of recovery, then, in that case, it is your duty to consider such statement as the dying declaration of said Clara Wiley Castle, and to weigh, consider- and measure such statement by the same rules of evidence as the testimony of any other witness in the case ; and in determining the weight and credit to be given to such declaration you may take into consideration all the circumstances under which the declaration was made, giving just weight and credit only as you think and believe from the evidence and all the circumstances it is entitled to. You are the sole and exclusive judges as to whether such conditions existed as are herein named, and of the weight and credibility of such statement.”
This instruction fully covers the subject-matter of the dying statement, and properly states the law in relation thereto ; hence, there was no error in refusing to charge as requested by counsel for defendant. The charge of the court, considered as a whole, is singularly free from objectionable features.
In support of the motion for a new trial, and for the purpose of showing the disqualification of the jurors, Davis, Murphy, and Burch, there were filed the affidavits of various persons, alleging that prior to the trial said jurors had expressed positive opinions as to the guilt of the defendant. Many of the affidavits alleged the statements to have been made in the presence of the affiant and others. The record shows that said jurors were examined touching their qualifications to sit as jurors on the trial of the case. The juror Burch was challenged for cause, which challenge was overruled, but no exception to this ruling saved. The jurors Murphy and Davis were not challenged for cause. In opposition to the motion for a new trial, these jurors made affidavits denying in the most positive terms the making of the disqualifying statements attributed to them by the parties making the affidavits in support of the motion. One witness was called by the defense and examined in open court in support of the motion, and testified as to a disqualifying statement made by the juror Thomas Glaze prior to the trial. The juror indura positively denied the making of the statement.
Upon this record the motion was submitted to, and denied by, the court. It is earnestly insisted that this was error. Was the showing so made sufficient to annul the verdict? We think not, and for the following reasons : In the first place, the positive denials of the jurors to the making of the disqualifying statements are entitled to much consideration and weight. In the case of Territory v. Burgess, 8 Mont. 57, 19 Pac. 558, 1 L. R. A. 808, it was held:
“After conviction, the defendant, to sustain his mo tion for a new trial, filed the affidavits of two persons ; one of whom swore that the juror, Brassy, had expressed an opinion as to the guilt of the accused before the trial, and the other that the juror, Bowman, had also expressed such an opinion prior to his sitting on the jury. Both of the said jurors on their voir dire had stated that they had never expressed or formed an opinion concerning defendant's guilt or innocence. The two jurors were thereupon brought into court, sworn, and subjected to examination and cross-examination. They denied .ever having expressed the opinion set forth in said affidavits. The motion'for a new trial was denied. Held, that the denials of the jurors rebutted the statements of the persons making the-affidavits, and that there was no error in denying a new trial."
Again, conceding the jurors to have made the statements alleged against them in the affidavits filed, the showing would then, in' our judgment, be insufficient. It is neither shown nor attempted to be shown upon what information or supposed information concerning the facts of the case such statements were based. The jurors, at the time such statements were made, for aught that appears in the record, may have possessed no opportunity for knowledge of the facts of the case. On the contrary, the opinion so expressed may have been based wholly and entirely upon vague rumors and wild speculations as to the facts in the case, utterly unreliable and wholly at variance with the truth. In the case of State v. Harrison, 36 W. Va. 729, 15 S. E. 982, 18 L. R. A. 224, it was held :
"To set aside' a verdict because of an opinion entertained by a juror before he was sworn, it ought to appear that such opinion was not merely unsubstantial and hypothetical, but such as would .have excluded him from the jury had it been known before he was sworn."
In the opinion it was said :
“Should the verdict be set aside because Ward, one of the jurors, said before he was put on the jury that if the jury should return a verdict that Harrison was insane the jury ought to be hung, and that Harrison ought to be hung ? In the first place, we do not know but tha't the opinion of the juror so expressed was a merely hypothetical, unsubstantial opinion, based on mere rumor, and not such as to have disqualified him had it been known when he was questioned on his voir dire.”
Again, we believe it is a rule of universal application, when a motion for a new trial is supported by affidavits charging members of the jury with having expressed an opinion as to the guilt of the defendant prior to the trial, that such affidavits must unequivocally state that both defendant and counsel for defendant were ignorant of such fact at the time of impaneling the jury. In the case at bar the affidavits filed close with the following language, either in substance or exact words : “The affiant further says that he never told the defendant or any of her attorneys of .said conversation until after the trial had closed and the verdict had been rendered in said case.” Neither the defendant nor any of her counsel made any statement as to their knowledge of the making of such statements alleged to have been made by the jurors prior to the trial of the case. Many of the statements are alleged to have been made in the presence of affiant and others. The knowledge of the making of such statements, if made, could as well have been communicated by others present as by the affiant. There is no allegation in the affidavits that affiant did not communicate to others than the defendant or her counsel the fact that such statements were made. Error is never presumed. The record is insufficient to show that the statements alleged to have been made by the jurors, if made, were unknown to the defendant or her counsel prior to the impaneling of the jury. In the case of The State v. Ready, 44 Kan. 700, 26 Pac. 58, this court held :
“Where an objection to the competency of a juror, namely, that he had served as a juror in the same court in another case within the preceding year, is first raised after verdict, and the party objecting fails to show that the ground of challenge was unknown to him and his counsel when the juror was accepted, or that he would have exercised his right of challenge if he had known that the cause therefor existed, or that he had suffered any prejudice by the retention of the juror, the objection will not be available for the purpose of obtaining a new trial.”
In the case of Achey v. The State, 64 Ind. 56, it was held:
“Affidavits charging that one of the jurors, prior to the impaneling of the jury, had expressed an opinion that the defendant was guilty and should be hung should unequivocally allege that the defendant and his counsel were ignorant of that fact prior to the impaneling of the jury.”
In the opinion it was said:
“The affidavit of James M. Biddy states ‘he did not inform said attorneys’ (of appellant) ‘of the matters, until after the conclusion of said trial ’ ; but this goes only to what Biddy stated, and by no means shows that the appellant and his attorneys did not know all of the facts set up in the affidavits before the juror was impaneled.”
In the case of State v. Labauve, 46 La. Ann. 548, 15 South. 172, it was held:
“The defendant was convicted of larceny. He alleges as errors : (2) That one of the jurors was a non resident. This ground is not sustained by the facts certified to this court; moreover, application'for a new trial for this cause should show not only that defendant was not, but that counsel also was not,'aware of any fact affecting competency of juror, if he was incompetent.”
In the case of People v. Scott, 56 Mich. 154, 22 N. W. 274, it was held :
“The impaneling and final acceptance of a jury by a court, is a judicial determination that the jurors are competent, and if any objection to the qualifications of a juror is known to a party before such determination, it cannot be raised afterward unless on exception to the overruling of a challenge.”
In the case of Busey v. State, 85 Md. 115, 36 Atl. 257, it was held :
“After a party was convicted of assault and battery he sought to set aside the verdict because one of .the jurors rendering it had been convicted of larceny and not pardoned. The only evidence was an affidavit of defendant’s counsel that he had been informed of the conviction after the jury had been impaneled. Held, 1st, that the ignorance of defendant’s counsel does not imply the ignorance of the defendant himself, and if a party knows of a cause of challenge to a juror and does not take advantage of it while the jury is being impaneled, he cannot avail himself of the disqualification afterwards.”
In the opinion in the case of The State v. Jackson, 27 Kan. 581, 584, 41 Am. Rep. 424, it was said:
“It has also been held that the right to object because of the incompetency of a juror may be waived in civil cases, even where the parties do not know of such incompetency until after the trial. (Amherst v. Hadley, 18 Mass. 38; Jeffries v. Randall, 14 id. 205; Daniel v. Guy, 23 Ark. 51.)
“And in criminal cases, even in prosecutions for murder, where'the facts are known, an objection to the competency of a juror comes too late, if it is made after verdict. See the following capital cases : The People v. Coffman, 24 Cal. 230 ; Lisle v. The State, 6 Mo. 426 ; Keener v. The State, 18 Ga. 194.
“It has also been held in criminal cases, where the-parties did not know the facts, that an objection to the competency of a juror must be made before the verdict is rendered, or it will be too late. ( The King v. Sutton, 8 B. & C. 417 ; Gillespie v. The State, 8 Yerg. 507.)
“And the same rule seems to apply in capital cases-as in others. (Chase v. The People, 40 Ill. 352 ; Costly v. The State, 19 Ga. 614, 628 ; State v. Bunger, 14 La. An. 465; State v. Patrick, 3 Jones (N. C.) L. 443;. State v. Bone, 7 id. 121.) ”
In the absence of a positive and unequivocal showing in the record that neither the defendant nor her counsel were aware of the statements alleged to have been made by the jurors at the time the jury were impaneled, the showing made is insufficient.
Upon application of the county attorney, made in open court at the conclusion of his testimony, Doctor-Brownfield, a witness for the defense, was by order of the court placed in custody of the sheriff to await the filing of a complaint charging him with perjury, committed by him on the trial. It is contended that this was error. No authorities are cited in support of this-contention and we have been unable to find any such-holding.
In concluding this opinion it may be said that,, owing to the importance of the case and the gravity of the punishment imposed, we have examined it with more than usual care. Upon the theory of the tragedy maintained by the state, the murder of Clary Wiley Castle was a butchery of such a savage and vicious nature as has been rarely equaled, never excelled, in the criminal history of a civilized people. Search for a parallel so shocking must be instituted among the traditions of the aborigines. Upon the theory held by the defense, the act of killing, with all its attendant circumstances, was justified by the peril in which defendant was placed. These two theories have been fairly submitted to the decision of a jury. That jury, by their verdict, have adopted the theory held by the state and repudiated that of the defense. When the entire case in all its bearings, as protrayed by this record, is examined and considered, including the admitted facts, the age and sex of the parties, the time in their lives, the place of the encounter, the weapon employed, the repetition of its use, and the force exerted, the conviction becomes almost irresistible that this thing ought not to have been done ; and if, as found by the jury, it was not justified, it was indeed a brutal deed, utterly lacking in mitigating or extenuating circumstances, alike appalling to the mind and shocking to the sensibilities.
The judgment must be upheld.
All the Justices concurring. | [
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The opinion of the court was delivered by
Parker, J.:
This is an appeal by the state from an order sustaining a defendant’s motion to quash the information in a criminal prosecution.
We are told and, since the record discloses the defendant was so advised when arraigned and required to plead to the informa tion, shall proceed upon the premise the prosecution was instituted under the provisions of G. S. 1949, 21-407, providing:
“The killing of a human being without a design to effect death, by the act, procurement or culpable negligence of another, while such other is engaged in the perpetration or attempt to perpetrate any crime or misdemeanor, not amounting to a felony, in cases when such killing would be murder at the common law, shall be deemed manslaughter in the first degree.”
Omitting formal allegations of no consequence the information to which the defendant was required to plead reads:
“ . . . that on or about the 27th day of December A. D., 1950 in the County of Labette, State of Kansas, the above named defendant, Anna Mae Smith, there being, did then and there wilfully, unlawfully, feloniously and with culpable negligence, and while in the commission of a misdemeanor, to-wit: abandoning and neglecting her minor children, to-wit: Marian Jeannette Rogers, age 3 years, and Otha Lee Bryant, age 14 months, did then and there leave said minor children unattended in their home at 713 South 23rd Street, in the City of Parsons, in said county and state, and that the said defendant did then and there leaving said minor children in the said home unattended without any provision for food or heat in said home, and the defendant well knowing the danger to said children by reason of fire and that by reason the said culpable and wanton negligence of the defendant aforesaid, the said Marian Jeannette Rogers and Otha Lee Bryant were killed by suffocation caused by fire which started in said home during the abandonment and neglect of the defendant aforesaid, and this the said defendant, Anna Mae Smith, did contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Kansas.”
More than a month and a half after arraignment and the entry of her plea of not guilty the defendant, without objection on the part of the state, filed a motion to quash the information on grounds (1) that it was indefinite and uncertain with regard to the person and offense charged and (2) that it failed to clearly set forth in plain and concise language the offense charged. Thereafter, on May 1, 1951, the trial court sustained such motion to quash. The scope of its action in that respect is evidenced by a journal entry of record, approved by the attorneys for the respective parties, which reads:
“Thereupon, the court being full advised in the premises, finds that the Motion to Quash the Information filed herein should be sustained insofar as the offense charged. The Court further finds that the Plaintiff should be given five days in which to file an amended information herein.
“It Is, Therefore, by the Court Considered, Ordered and Adjudged, that the motion of the defendant to Quash the Information filed herein, be and the same is hereby sustained, insofar as the offense charged, and that the Plaintiff be, and is hereby, given five days in which to file an amended in formation herein, and that the bond of defendant filed herein shall continue to remain in full force and effect.”
On the 8th day following the rendition of the foregoing decision the state, as authorized by G. S. 1949, 62-1703 (first), perfected an appeal from the trial court’s ruling and now seeks a reversal of its action in sustaining such motion under a specification of error charging that the trial court erred in sustaining the motion to quash the information.
At the outset it should be pointed out our code of criminal procedure contains requirements pertaining to an information, the first pleading on the part of the state in a criminal action, which must be observed and that failure to comply therewith makes such a pleading subject to a motion to quash.
Respecting its form and content G. S. 1949, 62-1004, states:
“The indictment or information must contain . . . second, a statement of facts constituting the offense, in plain and concise language, without repetition.”
Regarding its sufficiency G. S. 1949, 62-1010, provides:
“The indictment or information is sufficient if it appears therefrom.
“Fourth. That the offense charged is clearly set forth, in plain and concise language, without repetition.”
It should also be kept in mind that by reason of the sections of the statute just quoted and our decisions interpreting them (see West’s Kansas Digest, Indictment and Information, § 71) the rule that a defendant is entitled to be fairly informed as to just what he is charged with and will be required to meet and defend under the allegations of an information is established law in this jurisdiction.
Furthermore, it must be remembered that on appeal this court is commanded by statute (see G. S. 1949, 62-1718) to affirm judgments rendered in criminal cases without regard to technical errors, defects or exceptions- which do not affect the substantial rights of the parties. This, we may add, is a requirement which must be complied with regardless whether the defendant or the state is appealing from the order or judgment complained of.
The gist of all contentions advanced by the appellant in support of its position is founded upon the premise the trial court erred in sustaining the motion to quash because its ruling was based upon the ground it did not have jurisdiction of the offense charged in the information for the reason the misdemeanor set out therein was a misdemeanor triable only in juvenile court. In fact appellant asserts the trial court so stated. It may be, as appellant contends, that was the basis for the trial court’s decision. But if so its statement to that effect, whatever it was, was not preserved and does not appear in the record. .In such a situation we cannot reach out and pass upon this asserted claim of error for, under all our decisions, it cannot be reviewed or considered on appeal.
See, e. g., State v. Burks, 134 Kan. 607, 7 P. 2d 36, where it is held:
“A ruling on a motion to quash an information not preserved in the record is not open to review on appeal.” (Syl. ¶ 2.)
See, also, State v. Ryan, 141 Kan. 549, 42 P. 2d 591, which holds:
“. . . (d) Gratuitous statements of counsel for defendant, appearing in their brief and not supported by the record, cannot be considered and form no basis on which error may be established.” (Syl. ¶[ 1.)
For other decisions to the same effect see State v. Boyle, 10 Kan. 113; State v. Shenkle, 36 Kan. 43, 44, 12 Pac. 309; State v. Schroeder, 103 Kan. 770, 771, 176 Pac. 659; State v. Lintner, 141 Kan. 505, 41 P. 2d 1036; State v. Townsend, 150 Kan. 496, 497, 95 P. 2d 328; State v. Carr, 151 Kan. 36, 46, 98 P. 2d 393; State v. Lammon, 153 Kan. 822, 824, 113 P. 2d 1052 and State v. Miller, 165 Kan. 228, 194 P. 2d 498.
Decisions, both criminal and civil, adhering to the same rule but pointing out that on appeal this court cannot determine the terms of a judgment on controverted or unsupported claims but must assume the journal entry, signed by the judge of the court below and approved by the attorneys for the respective parties, correctly reflects the judgment rendered, notwithstanding a claim such judgment was based on some ground other than that specified in the journal entry, are to be found in our reports. See State v. Coover, 165 Kan. 179, 181, 193 P. 2d 209, and In re Estate of Demoret, 169 Kan. 171, 180, 218 P. 2d 225.
Thus, when the motion to quash and the journal entry sustaining it are carefully read and considered, it becomes apparent the only question remaining for decision in this case is whether the trial court erred in concluding the information was indefinite and uncertain with regard to, and failed to clearly set forth in plain and concise language, the offense charged. Touching this point the appellant merely assumes the challenged pleading is definite and certain and makes no attempt, either by argument or decisions, to establish that the statement of facts constituting the offense therein attempted to be charged is clearly set forth in plain and concise language.
Long ago, in The State v. Durein, 70 Kan. 1, 78 Pac. 152, this court committed itself to the rule that in a criminal appeal the record of the proceedings in the trial court will not be interpreted to show error if it be susceptible of a reasonable interpretation to the contrary.
For all we know the trial court after giving consideration to the motion to quash may have concluded the wording of the information was such that the defendant was not fairly informed as to whether she was being charged with the crime of manslaughter in the first degree under the provisions of G. S. 1949, 21-407, the crime of manslaughter in the fourth degree under the provisions of G. S. 1949, 21-420, or for that matter the offense of neglect of her minor children under the provisions of G. S. 1949, 38-416. If so, in the exercise of sound discretion, it had the right to require the appellant to amend its information by making the allegations thereof more definite and certain. This, as the journal entry evidencing its action indicates, is all that the trial court did and appellant has not only made no effort but has failed to establish affirmatively that such action amounted to abuse of discretion or otherwise constituted error. Of a certainty it cannot be said that action affected appellant’s substantial rights for, so far as the record discloses, all it would have had to do in order to comply with the terms of the judgment was to amend its information and proceed with the case. The result, upon application of the pertinent rules to which we have heretofore referred, is that the trial court did not commit reversible error in sustaining the motion to quash and its judgment must be affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Mason, J.:
The Ferd. Heim Brewing Company sued Charles Hahn and Rosina and Reinhart Falk on two notes, each secured by a mortgage on the same real estate. One mortgage, for $1000, .was executed by Hahn alone while he owned the property; the other, for $800, by Hahn and the two Falks after the transfer of the property to them. Judgment was rendered on both notes and for the sale of the property under both mortgages. The Falks, by proceedings in error directed solely against the judgment on the second note and mortgage, obtained its reversal on December 4, 1900. (Falk v. Brewing Co., 10 Kan. App. 248, 62 Pac. 716.) A stay bond was given on October 26, 1899, but the property had already been sold on August 26, 1899, under a special execution based upon both judgments, and bid in by plaintiff at the aggregate amount due on them. This sale was afterward confirmed, and a sheriff’s deed was made on September 12, 1901. On October 8, 1901, a writ of assistance was asked against the Falks, they being in possession of the property, and on March 2, 1902, such writ was granted. The Falks now seek the reversal of the order granting the writ of assistance, upon the ground that the sale depends for its validity upon both judgments, and one of them having been reversed, the sale as between the parties is void.
To sustain their contention, plaintiffs in error cite Ferrier v. Deutchman, 111 Ind. 330, 12 N. E. 497 ; Brown v. McKay, 16 id. 484, and Hutchens v. Doe, 3 id. 528. These cases hold that where a sale of real estate is made upon several executions, one of them being based upon a judgment which is void or which is afterward reversed, the sale is invalid. Assuming the correctness of these decisions, a distinction might well be made in the case at bar because of the fact that the lien of the judgment attacked ^as inferior to that of the pther judgment, the validity of which was conceded. But the doctrine of the cases cited is recognized as exceptional. (Herm. Ex. § 207, and cases cited.)
Under the circumstances of this case, we see no reason for holding that the judgment defendants were entitled to have the sale set aside, much less ignored. Even if the„supersedeas bond had been given before the sale, the property could have been sold under the superior judgment, thereby cutting off all rights of defendants in the matter excepting the right to redeem under the statute by paying the amount of a first lien, and the right to receive the proceeds of the sale in excess of that amount. These are the only rights that defendants lost or that were suspended by the erroneous judgment against them, and a complete restoration to these rights did not require the setting aside of the sale, but resulted from the mere reversal of the judgment. The fact that they have not been exercised does not affect the matter. The district court correctly held that plaintiffs were entitled to be placed in possession of the property.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
Paul B. Zirkle was killed by the cars of the Missouri Pacific Railway Company. In an action by his wife against the company to recover her pecuniary loss, the court below sustained a demurrer to the evidence introduced in support of plaintiff’s case. She has come here complaining that such ruling was erroneous.
The circumstances of the accident may be briefly stated. Cherokee street in the city of Leavenworth runs west from the Missouri river. Near its eastern terminus three tracks of the Missouri Pacific Railway Company cross it at right angles. The deceased in the night-time was walking toward the west in company with a companion named Spangler. They crossed the first track, which ran through a railway freight-house situated south of them. Reaching the second track, which was laid along the west side of the freight-house, they stopped to permit a moving train to pass, which occupied the third track immediately in their path. The second track, on or close to which Zirkle stood when he was run down, was used chiefly for the storage of freight-cars. When Spangler and the deceased stopped they noticed a string of box cars standing south of them about forty-five feet distant. Each had a lantern and there were two electric arc-lights burning 200 feet away. Zirkle was a telegraph operator in the employ of the Union Pacific Railway Company, and had been working for two years in a building about eighty feet from the freight-house above mentioned of defendant in error. He had often crossed these tracks.
At the time of the accident Zirkle and his companion were standing between, or close to, the rails, facing north, with their backs toward the freight-cars south of them, engaged in conversation. There was ample space between the outside rails of the tracks where two persons might have waited, free from danger. While in this position, and so occupied, the freight-cars were moved north. Zirkle was struck and killed.
Spangler testified as a witness for plaintiff below. He said there was plenty of room between track No. 2 and the next one west; that the space was planked; that Zirkle's attention was called to the standing cars south of them. We give a few answers in the words of the witness upon cross-examination :
“Q,ues. So at all events, when you and he stepped in between the rails of this track, you deliberately turned your backs upon these cars and stood there while these cars moved at least fifty feet ? Ans. Yes, sir.
“Q,. Without looking in that-direction ? A. Yes, sir.
“ Q,. Without taking any precaution to see whether they were coming ? A. Yes, sir.
“Q,. Without any necessity for it ? A. Yes, sir.
“Q. You did it voluntarily ? A. Yes, sir.
. He responded to plaintiff's counsel as follows :
“Q,. At what time did you suppose they would move ? A. Well, I hardly thought they would move before this train (the train in front of them) got out of the way.”
Counsel for plaintiff below base their claim of error on the fact that there was testimony tending to prove that the moving train in front of Zirkle, which obstructed his passage westward, made considerable noise ; that the cars on the storage track were suddenly backed without warning ; that in violation of a city ordinance the railway company neglected to keep a flagman to guard the crossing; that there were no lights on the rear end of the freight-train, and when Zirkle approached the crossing he could see the standing cars, but whether an engine was attached to them could not be discerned by reason of the intervening freight depot, which obstructed his view.
We are well satisfied that the trial court did not err in sustaining the demurrer to the evidence. This court has often said that a railroad-track itself is a warning of danger, and that a person about to cross it must keep his faculties of sight and hearing in active exercise. In the present case the deceased turned his back in the direction from which the danger came, and was absorbed in conversation. His conduct negatived all suggestion of vigilance and showed a negligent disregard of the perils surrounding him. The fact that the freight-train which struck him was standing still on what was called the storage track forty-five feet distant when he started over the crossing was not an assurance that it would remain stationary.
The wheels of a railway-car, adapted solely for the purposes of locomotion, are signals that the car may be moved at any time, as the wings of a bird indicate that it is prepared to fly. The indifference shown by the deceased in turning his back toward the train which ran upon him, and taking a position on the track where death or great bodily injury was inevitable if the cars moved to the place where he stood without diverting his attention from the conversation which engaged him, constituted contributory negligence which cannot be excused. If negligence on the part of the company be conceded, the admission would not avail the plaintiff in error. (Collins v. B. C. R. & N. Ry. Co., 83 Iowa, 846, 49 N. W. 848.)
In the case of Williams v. Atchison, T. & S. F. R. Co. et al., 53 Pac. 834, a per curiam opinion was handed down by this court on which counsel for plaintiff in error rely. In that case a traveler on a street was killed by the coming together of a divided train which stood over a crossing. The company was held to be negligent. By separating the train there was an implied assurance by the railway company that it was safe to cross, and that the open space would not be closed suddenly or without wárning. (L. N. O. & T. R. R. Co. v. Thompson, 64 Miss. 584, 1 South. 840.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
This is an original proceeding in habeas corpus. Upon a preliminary examination the petitioner was required to give bond for his appearance in the district court of Saline county to answer the charge of obtaining goods under false pretenses. He is a merchant doing business at Scott City, in Scott county, Kansas. By reason of his false pretenses he procured the H. D. Lee Mercantile Company to deliver to the Missouri Pacific Railway Company at Salina, for carriage and delivery to him at Scott City, various items of goods. In the language of his attorney, “the only question in this case for serious consideration . . . is whether a delivery of goods and merchandise to a transportation company for shipment to some other given point will constitute the consummation of the crime of obtaining goods by false pretenses under our statutes, by the party to whom shipped.” The record shows that these goods were delivered in the city of Salina to the Missouri Pacific Railway Company for the petitioner.
The contention seems to be that, inasmuch as the petitioner did not come into the actual possession of the goods until their arrival in Scott City, that was the point of delivery, and hence the proper venue of an action; that pending their transportation to him from Salina over the railway there was a locus poenitentise which he might have availed himself of up to the time of’his actually taking possession. We think it is well settled by the authorities, as well as consonant with go.od reasoning, that the offense was consummated by the delivery of goods to the common carrier for the accused, the common carrier being his agent to receive and transport. The general doctrine is stated in Encyclopedia of Pleading and Practice, volume 8, page 859 :
“Where the false pretenses are made in one jurisdiction, and in reliance upon such false pretenses goods are delivered to a carrier for shipment to the defendant, the carrier acts as the agent of*the defendant; and, accordingly, the venue must be laid in that jurisdiction in which the goods are so delivered.”
See, also, Commonwealth v. Taylor, 105 Mass. 172 ; The State v. Lichliter, 95 Mo. 402, 8 S. W. 720 ; Norris v. The State, 25 Ohio St. 217, 18 Am. Rep. 291; Commonwealth v. Goldstein, 3 Pa. Co. Ct. Rep. 121 ; Commonwealth v. Karpowski, Appellant, 167 Pa. St. 225, 31 Atl. 572.
The petitioner relies on the case of Ex parte Parker, 11 Neb. 309, 9 N. W. 33. In this case no note or memorandum of the purchase of the goods was made in writing, which, under the statute of frauds in Nebraska, made such purchase void. In view of this fact, the court in the discussion said :
“It was urged at the hearing that such delivery was a delivery in legal effect to the petitioners, and so completed and gave locality — venue—to the offense. Such no doubt would be the case had the contract been such as to vest the legal title in the purchasers. But the contract being void within the statute of frauds a delivery to the railroad agent was no delivery to the consignees.”
Having thus decided the merits of the caée upon the soundest of reasons — which reasons find no place under our statutes — the court proceeded to a further discussion, which contains much to support the contention of this petitioner, but it is clearly dictum and fails to meet our approval as doctrine.
The legal presumption is that the title to goods delivered to a common carrier for carriage vests in the consignee upon such delivery, the common carrier being the agent of the vendee and not the agent of the seller. Therefore the possession of the carrier is the possession of the purchaser. This possession having been obtained by false pretenses, the offense was completed at the time and place where the goods were so delivered. In this case nothing appears in the record ■ to indicate that any other than the ordinary rule here obtains. On the other hand, it does affirmatively appear that the goods were delivered in the city of Salina, Saline county, to the Missouri Pacific Railway Company, for the defendant.
We are of the opinion that it sufficiently appears that the possession of the carrier was the possession of the petitioner, and that the venue was properly laid in Saline county.
The petitioner will be remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
Rosanna Cook sued H. and F. J. Mathias in the district court of Pawnee county, asking a money judgment, and upon a first-trial failed to recover. On February 6, 1892, a new trial was granted. Plaintiff then dismissed without prejudice, and later in the same year began a new action for the same re lief. Thereupon the defendants instituted proceedings in error in this court seeking the reversal of the order granting a new trial, and procured an order therein restraining the further prosecution of the action in the district court until the determination of such appeal, the order to be effective upon the giving of a bond in the sum of $1000 to pay plaintiff all damages she might sustain because of such order, if the decision awarding the new trial should be affirmed. Such a bond was given, signed by William B. Smith and G. Krouch as sureties. The decision was affirmed June 6, 1896. On September 6, 1896, judgment was rendered for plaintiff in the action in the district court for $6400. On July 17, 1901, plaintiff began an action against William B. Smith on the bond, the petition setting out the facts above stated, only adding that the judgment remained unpaid, and that the judgment defendants were insolvent at the time of the rendition of the judgment. The district court sustained a demurrer to the petition, and this proceeding is brought to review such ruling.
The objections urged to the petition are that it fails to allege facts showing'any injury to plaintiffs, and that it shows upon its face that action on the bond was barred by the statute of limitations. It will be noted that the petition does not attempt to allege that the judgment defendants were solvent when the stay order was made, or that the judgment would have been collectable if it had been rendered in the regular course of litigation without the delay occasioned by the stay order. But the plaintiff contends that the bond was in effect conditioned for the payment of such judgment as might be rendered. It is true that’ a supersedeas bond required by the federal statute, upon a writ of error brought to reverse a judgr ment for the payment of money, conditioned that plaintiff in error “shall prosecute his writ to effect, and answer all damages and costs if he fails to make his plea good,” is held to be an obligation to pay the judgment in full if it is affirmed, and not merely to' pay the damages occasioned by the delay. (Catlett v. Brodie, 9 Wheat. 553, 6 L. Ed. 158.) But this construction grows out of considerations not applicable here, and is expressly limited to cases where the effect of the bond is to stay execution on a money judgment. (Kountze v. Omaha Hotel Co., 107 U. S. 378, 2 Sup. Ct. 911, 27 L. Ed. 609.) In the present case there was no money judgment. If there had been, the judgment defendant, in order to procure a stay of execution pending an appeal under our statute, would have been required to furnish security for the payment of the judgment if it should be affirmed. The judgment or order appealed from was one granting a new trial, and the prosecution of the case in the district court was stayed until the determination of the appeal, upon the giving of an undertaking to pay all damages occasioned by the delay. As was said of a similar bond in Hughan v. Grimes, 62 Kan. 258, 62 Pac. 326, the obligors wei*e liable for all loss actually, sustained by the successful parties by reason of the stay. If the judgment debtors were insolvent when the action was originally brought, and the petition states nothing to the contrary, the plaintiff suffered no actual or substantial damage by the delay.
But plaintiff in error invokes the doctrine that any invasion of a legal right entitles the aggrieved person to nominal damages, even if no actual pecuniary damages are shown. In view of this contention the consideration of the statute of limitations becomes important. No doubt, in any case where the amount of recovery would depend on the final result of the proceedings in which the stay was had, the cause of action on. the bond would not accrue until such pro ceedings were ended. But considering the petition as setting out merely the technical wrong occasioned by a temporary suspension of the right to ixrosecute the case, without claiming any consequent actual damages, the cause of action must be deemed to have accrued as soon as the barrier was removed, and the wrongfulness of the delay was determined, by the decision of this court in the proceedings in error. As this decision was rendered June 6, 1896, and the present action was not begun until July 17, 1901, the bar of the statute of limitations had fallen, and the demurrer was properly sustained on that ground.
Moreover, another consideration would restrain this court from reversing a decision sustaining a demun-er to a petition, merely because the facts stated would entitle the plaintiff to nominal damages. In such case thei’e would be nothing substantial 'in the controversy here. It would fall within the rule under which proceedings in error and original actions have been dismissed where circumstances had limited the practical effect of a decision on the merits to a determination as to who should pay the costs, notwithstanding the fact that the costs alone amounted to a considerable sum. In Scott v. Marchant, 88 Ind. 349, a case having many features of similarity to the present one, being founded upon a stay bond, it was said :
"It does not appear of what sum of money she (the appellant) lost the use because of the appeal, or how, by reason of the execution of the bond, the appellant has been injured substantially. If the complaint showed a cause of- action for nominal damages, this court will not reverse a judgment for error which prevented the recovery of nominal damages only.”
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a damage action for bodily injuries alleged by the plaintiff to have been sustained by him while riding in an automobile on a county bridge. The jury found the bridge to be defective and returned a verdict for the plaintiff in the sum of $58,000. Appeal has been duly perfected by the defendant from the judgment and various rulings of the trial court.
The numerous specifications of error present four underlying questions. They are: % .
(1) Was the county bridge defective within the meaning of G. S. 1949, 68-301?
(2) If defective, was the defective condition of the bridge a direct or proximate cause of plaintiff’s injuries?
(3) Did any member of the board of county commissioners, the county engineer, or the superintendent of roads and bridges have notice of such defects, if any, for at least five days prior to the time when plaintiff’s injuries occurred?
(4) Was the verdict excessive?
The first two questions were raised by the appellant on a motion for judgment on the pleadings and the plaintiff’s opening statement, on a demurrer to the plaintiff’s evidence, on the admission of evidence and in the giving and refusing to give certain instructions. All questions were raised on the motion for a new trial. The appellant contends the first three questions should be answered in the negative and, if it fails on these points, that the verdict was excessive.
The facts giving rise to this action are as follows:
On November 27,1959, at approximately 8:30 o’clock in the morning, the Noblit family, consisting of Mr. and Mrs. Donald E. Noblit, their children, Donald A. Noblit, six years of age (plaintiff-appellee), and Joyce Noblit, three years of age, was involved in a tragic accident on a bridge built and maintained by the defendant (appellant) over the Big Arkansas River in Sedgwick County, Kansas. The road and bridge are a part of one of the principal thorough fares connecting the Boeing Airplane Company’s plants to the city of Wichita. It is known as the McArthur Road.
The Noblit family had departed from their residence about ten minutes before arriving at the site of the tragedy. They were embarked on a post-Thanksgiving holiday with friends in Leavenworth. The day was cold but the roads were clear and dry, and Mr. Noblit was driving well within the speed limit. As he approached the bridge across the Arkansas River, just east of the city limits of Wichita, he observed a truck, which had been preceding his automobile for some distance and about six car lengths ahead, suddenly swerve to the left and then back to the right side of the bridge. The truck then either stopped or practically stopped directly in the path of Noblit’s 1954 Chevrolet automobile. Mr. Noblit immediately realized the roadway over the bridge was covered with ice or frost and was extremely slick. He proceeded to do the only thing he could under the circumstances by removing his foot from the accelerator. He applied the brakes gently in order to reduce his speed without throwing the vehicle into an uncontrollable skid. Nevertheless, he was still approaching the rear of the truck, and to avoid colliding with it he turned into the left-hand traffic lane. As the car started to move to the left, the steering wheel gave a violent jerk and the automobile continued to move at an angle and out of control despite anything Mr. Noblit could do. Recognizing the danger, he set the brakes hard for an instant hoping to swing his car back to the right; he turned the steering wheel over and back again trying to get traction, but still nothing happened. It seemed to Mr. Noblit that everything was occurring in slow motion; he could see the bridge railing coming at him but he was helpless. In his opinion his speed at that time was between five to seven miles per hour. It did not seem as though there was a crash or jolt— although he realized there probably was — and the car went out and over the edge of the bridge, teetering for a moment, then plunged into the river twenty-four feet below. It overturned as it struck the water and settled to the bottom, coming to rest on its right, or passenger side. The water at the place where the automobile was submerged was about four and one-half or five feet deep.
At the time the Noblit automobile plunged into the river Mrs. Noblit was in the front seat on the right, the plaintiff (appellee) was in the rear seat on the left with his sister, Joyce, who was on the right side. Mr. Noblit, while under water, attempted to open the car door. He pulled'on the handle so violently that it broke off. He then kicked it open. All the time he could hear his daughter screaming, and he was able to pull her out of the rear seat and place her on the side of the car above the water. He then dove back in to try to get the plaintiff out. Mr. Noblit finally found the plaintiff who was not moving or crying and who seemed to be unconscious. He pulled the child’s head over the front seat and pounded on his back. Eventually, the boy gasped and started breathing again. The father held the boy’s head above the water and tried to extricate him from the back seat. At the same time, Mr. Noblit was trying to locate his wife. He felt her body but found no movement, and realized he could do nothing for her.
Two servicemen stationed at McConnell Air Base near Wichita arrived at the scene shortly after the accident and waded into the icy river to Noblit’s assistance.
The action in this case is brought pursuant to G. S. 1949, 68-301. It provides in part as follows:
“Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge, . . . may recover such damage from the county . . . wherein such defective bridge, ... is located, . . . when such damage was caused by a defective bridge, . . . which by law, . . . the county is obligated to maintain, and when any member of the board of county commissioners, the county engineer or superintendent of roads and bridges of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained; . . .”
The appellant contends the amended petition does not state facts sufficient to constitute a cause of action because it does not allege that any defect or defects in the bridge contributed to, or were a proximate cause of, any injury or damage sustained by the plaintiff. This point is first raised by specifying as error the adverse ruling of the trial court on the appellant’s motion for judgment on the pleadings and the opening statement. The appellant makes no contention regarding the opening statement.
A motion for judgment on the pleadings invokes the judgment of the trial court on questions of law as applied to the well-pleaded and conceded facts. It presupposes a lack of issue of fact. Such motion admits the truth of all well-pleaded facts in the pleadings of the opposing party, and under the circumstances presented by this record, it may be considered equivalent to a demurrer. (Geier v. Eagle-Cherokee Coal Mining Co., 181 Kan. 567, 313 P. 2d 731; Dearborn Motors Credit Corporation v. Neel, 184 Kan. 437, 337 P. 2d 992; and see Thompson v. Morris County Comm’rs, 170 Kan. 74, 223 P. 2d 749.)
The pleading under attack is the plaintiff’s amended petition, the material portion o£ which reads as follows:
“IV.
“At said time and place, the defendant was negligent in allowing the McArthur Road Bridge to exist and to be used as a portion of a public county highway while it was defective in the following respects:
“1. The asphalt surface of said bridge was worn, pitted and full of large holes, thereby creating a hazard for the vehicles of the public in general, and especially the vehicle in which plaintiff was riding, when using said bridge to cross the Big Arkansas River.
“2. The railings and rail posts of said bridge were made of wood which had rotted with the years of weather, was split and cracked.
“3. The rail posts on said bridge which support the railings were defective in that they were not fastened to the bridge by steel bands or any other type of support except iron bolts which were inserted horizontally through the rotten wood rail posts and in many instances, said rail posts were approximately 632 feet to 7 feet apart, thereby causing said railings and rail posts to give insufficient support to the vehicles of the public in general, and especially the vehicle in which this plaintiff was a passenger, when they came in contact with said railings and rail posts and thereby causing said vehicles, and especially the vehicle in which this plaintiff was a passenger, to go into the Big Arkansas River.
“4. Said bridge did not have adequate wheel guards of sufficient height, width or design to prevent the vehicles using said bridge, and especially the vehicle in which plaintiff was a passenger, from going off of said bridge and through the wood railings into the Big Arkansas River.
“The injuries and damages to plaintiff hereinafter set forth were proximately caused by such negligence of defendant as aforesaid.”
It is the appellant’s contention that none of the enumerated defects above alleged constitutes a defect in the bridge within the meaning and intent of the statute (68-301, supra). The appellant argues the statute enacted in 1917 (R. S. 1923, 68-1110) requiring the county board to place and maintain at all times good, solid, substantial guardrails, not less than three feet high on each side of all bridges, was expressly repealed by Laws of 1935, Chapter 250. Sell v. McPherson Township, 152 Kan. 731, 107 P. 2d 670; and Thompson v. Morris County Comm'rs, supra, are cited by the appellant as an expression of the court on this subject.
The appellant argues that inasmuch as the appellee based his cause of action upon a statutory requirement that no longer exists— the liability of the county being purely statutory — the appellee failed to state a cause of action. The appellant’s attempt, however, to explain away the allegation that “The asphalt surface of said bridge was worn, pitted and full of large holes, thereby creating a hazard” is not impressive. This allegation would be sufficient, in and of itself, without reference to other allegations pertaining to the defective condition of the railings, rail posts and wheel guards, which the appellant asserts are not within the purview of the statute.
In Gorges v. State Highway Comm., 135 Kan. 371, 10 P. 2d 834, the court said:
“No general definition of the term ‘defect in a highway’ appears to have been made by this court, nor do we find any such general definition in the decisions of the court of other states with similar or identical statutes. This for the very good reason that it is very difficult, if not impossible, to formulate a general definition which meets the intricate circumstances arising out of our modern highways and means of travel. The policy adopted by the courts has been to handle each case as it is presented, and to either include it in or exclude it from the operation of the statute. . . .” (p. 373.)
In Williams v. State Highway Comm., 134 Kan. 810, 8 P. 2d 946, the claimed defects were holes in the highway and the question concerning defects was considered. The court said:
“A condition of a highway which renders it dangerous for the public traveling over it is certainly a defect. . . .” (p. 813.)
The foregoing statement is cited with approval in subsequent decisions. (Thompson v. Morris County Comm’rs, 170 Kan. 74, 77, 223 P. 2d 749, and cases cited therein.)
The cases cited and relied upon by the appellant involved a bridge or culvert constructed without guardrails,. and it was held that the failure of the township or county to construct such guardrails was not a breach of any statutory requirements in view o£ the repeal of G. S. 1935, 68-1110. Another similar case, though not cited by the appellant, is Wilson v. Barber County Comm’rs, 154 Kan. 525, 119 P. 2d 502, which followed Sell v. McPherson Township, supra.
Here a different situation is presented. Where guardrails and wheel guards were installed on the bridge they become an integral part of the structure, and if damage is sustained as a consequence of a defect in the bridge, or any part thereof, the injured person may recover his damages from the county or township, assuming no other bar to recovery is present. A case of this type is presented in Neiswender v. Shawnee County Comm’rs, 153 Kan. 634, 113 P. 2d 115, decided shortly after the Sell case and before the Wilson case. There the petition alleged that the automobile driven by the dece dent was knocked out of control by accidentally coming in contact with another automobile, which threw it temporarily out of control, causing it to strike against the guardrailing of the bridge; the railing gave way, and the automobile fell into the river and the driver was drowned. The petition alleged that the drowning was the proximate result of the bridge being defective in that the railings were made of wood, which had rotted, were split and cracked, and not fastened to the bridge adequately; that the rail posts which supported the railings were defective in that they were rotten and split, and not fastened to the bridge adequately except in most instances by rusty nails that would stand no horizontal force. The petition next alleged that the bridge was defective in that it had no wheel guards.
The action was there brought pursuant to G. S. 1935, 68-301. The jury returned a verdict for the plaintiff and the defendant appealed. On appeal it was said:
“. . . There was evidence that the plank of which this railing was made was so rotten as to offer scarcely any resistance. That there was no wheel-guard on this bridge is admitted by all parties. A wheelguard is a solid piece of timber several inches high bolted to the floor of the bridge parallel with the railing. One does not need to be an expert to know that a wheelguard would offer some resistance to the movement of a car as it approached the edge of the bridge. We have concluded that under all the surrounding facts and circumstances the question of whether this injury would have occurred but for the defective condition of this railing was a fair question for tire jury under proper instructions of the court.” (p. 642.)
While the Neiswender case made no reference to the repeal of G. S. 1935, 68-1110, by the Laws of 1935, Chapter 250, it is clear the court considered that defective guardrails installed and in place on a bridge constituted a defect in the bridge within the purview of 68-301, supra.
We have little difficulty concluding that the amended petition sufficiently stated a cause of action under 68-301, supra.
The appellant in its demurrer to the evidence of the appellee raised substantially the same questions as those heretofore considered.
At the trial Mr. Noblit testified on cross examination that he hit a rough spot when his automobile started to slide; that he did not go back and check the exact area either way. “I just know that when I came upon the spot and turned the wheel, it suddenly grabbed. It could have been caused by a soft place, a hard place, a hole in the bridge. Not the ice. It would slide on the ice, but not suddenly grab. It would just have a slick surface. After I started in the angling direction that eventually hit the bridge railing, I think I put my brakes on momentarily to try and stop the angle of attack toward the bridge railing.”
Sergeant Luther T. McFarland, U. S. A. F., one of the servicemen who came to Noblit’s assistance in the river, testified that he had traversed the bridge five days a week for five years before the Noblit automobile went into the river. He said at the point where the Noblit automobile began to skid the surface of the roadway was rough — it had been rough for the past five years compared to what would be a reasonable roadway in his opinion; that the wood railings were poor, they were not painted; the wheel guards were wood and on occasion there was sand along the wheel guards. Through photographs admitted in evidence he identified the portion of the railing through which the Noblit automobile entered the river and he said it was rotted.
Other witnesses familiar with the McArthur Road bridge described the surface of the bridge as rough and washboardy; that the remaining railing at the point where the Noblit automobile left the bridge appeared to be “dry rotted;” that drains below the wheel guards were not apparent in photographs taken from the surface of the bridge but were apparent from the opposite side, thus indicating that instead of a ten-inch wheel guard as the bridge was constructed, the height of the wheel guard was merely five inches above the surface of the roadway and the debris which had accumulated thereon. Other testimony established that the bridge surface had holes and deep grooves in it; that the rails were weather-beaten and appeared insecure. Numerous photographic exhibits substantiated the foregoing testimony. These photographs were said by witnesses to portray the condition of the bridge at the time of the accident.
A civil engineer inspected the bridge and testified that in his opinion on November 27, 1959, the effectiveness of the hub or wheel guards in the bridge in question was reduced by reason of the accumulation of debris in the drains, and that the full ten inches of wheel guard as originally designed was reduced by reason of the accumulation of debris; that the guard, as originally installed, would have prevented a 1954 Chevrolet traveling between five and ten miles per hour and striking the wheel guardrail at an angle of forty-five degrees from going off the bridge. Eased upon the assumed facts in evidence and his inspection of the bridge, it was his opinion that the bridge in question was not in a reasonably safe condition on the date of the accident in question.
While the appellant concedes there were rough spots on the blacktop surface of the bridge, it contends there was no evidence as to the particular location of any of said rough spots. When the entire record is examined, including the photographs admitted in evidence, the foregoing contention is without merit.
The jury found in answer to special questions the bridge was defective within the meaning of the law, and in stating of what such defects consisted, answered: "The road surface is excessively rough from cracks and holes, and collection of considerable debris exhibits inadequate maintenance. The hub-guard is of inadequate height and the railing is extremely rotted in most areas.” They also found the defective condition of the bridge was a direct or proximate cause of the appellee’s injuries.
These findings by the jury were supported by the evidence under proper instructions given by the court as to the law in the case.
The appellant contends there was no evidence that any member of the board of county commissioners, or the county engineer or the superintendent of roads and bridges in Sedgwick County, had any knowledge of any defect in the bridge at any time prior to the accident which resulted in the appellee’s alleged injuries on the 27th day of November, 1959.
It has long been the rule that the notice required by G. S. 1949, 68-301, need not be formal. Proof of actual knowledge is sufficient. (Erie Township v. Beamer, 71 Kan. 182, 79 Pac. 1070; McGuire v. Ellis County Comm'rs., 133 Kan. 225, 299 Pac. 945; and Neiswender v. Shawnee County Comm'rs, supra.)
In Watkins v. Harper County, 95 Kan. 166, 147 Pac. 822, it was said:
“. . . Actual knowledge of the defect, like any other fact, may be established by circumstantial evidence, that is, it may be shown by a number of minor facts obtained from several witnesses and sources which are so related and linked together as to warrant the inference that the officer had actual knowledge of the defect. . . .” (p. 168.)
Mr. Fisher, a member of the board of county commissioners of Sedgwick County, testified that he was aware of the McArthur Road bridge during his entire tenure of office, from 1957 to and including November 27, 1959. He crossed the bridge at least three times a week and he said he was aware of the condition of the bridge, what ever it was, through the year 1959; that he knew of the wooden railings and wheel guards, as well as the surface; and that he was at the bridge on the morning of November 27, 1959. One of the appellee’s photographic exhibits was described by him as a fair representation of how the bridge appeared on that date, and was said to correctly and generally portray the condition of the bridge as he observed it throughout the year. He said, “Whatever the conditions were, I was aware of them at that time.”
The appellant relies upon the following question and answer of Mr. Fisher:
“Q. Mr. Fisher, during the year, 1959, or anytime prior thereto, did you have notice or knowledge of any defects in the McArthur Street Bridge?
“A. Not that I recall.”
The foregoing answer was' given over the objection of counsel for the appellee on the ground that it called for a conclusion.
Mr. Fisher did, however, admit in his testimony that an engineer was employed by the county commissioners of Sedgwick County to make a study of the bridge; that he was aware of the study made by this engineer as to the inadequacy of the road. The report also included the replacement of the McArthur Road bridge with a new bridge. The road was to be changed into a four-lane road.
It is observed that Mr. Fisher did not deny that he had notice or knowledge of any defects in the McArthur Road bridge; he merely did not recall notice or knowledge, although he had previously testified that he was familiar with whatever conditions were shown in several photographs of the bridge. Other witnesses identified these exhibits and saw the defects as shown in the exhibits, which were fair representations of the condition of the road surface on the bridge as it existed for several years prior to November 27,1959.
This circumstantial evidence that Mr. Fisher had actual notice of the defective condition of the bridge for at least five days preceding the accident was sufficient to sustain the jury’s affirmative finding on this point made in answer to a special question.
A similar situation was presented in Neiswender v. Shawnee County Comm'rs, 153 Kan. 634, 113 P. 2d 115, where the court said:
“. . . As a matter of fact, there was abundant evidence in addition to the testimony of the chairman. He himself testified that he crossed the bridge practically every day while he was chairman. There were some still pictures of the railing in different places. These pictures were shown to the jury and the trial court. They show a rotten, cracked condition of the railing in many places. The chairman testified that he observed the condition of the bridge as represented in these pictures. . . .
“Knowledge on the part of a particular person must sometimes be established by evidence other than statements of the party himself. That is what this court had in mind when it used the language already quoted in Watkins v. Harper County, supra. We refer to that here, not on the question of whether the findings Were supported by the evidence, but to demonstrate that there was ample ground- to indicate that the jury based the finding of notice to the chairman on knowledge he gained at other times when he saw this bridge . . .” (p. 639.)
Although assigned as error by the appellant, instruction No. 7 given by the court properly instructed the jury as to the law on this point when considered in connection with other instructions given and the evidence adduced in the case.
The appellant contends the verdict and the judgment rendered pursuant thereto are grossly excessive in amount. The verdict in this case was for $58,000 and judgment was entered for this amount.
The appellee in this case was partially submerged in icy water for twenty minutes or more. Dr. Hervey S. Hodson saw the appellee on the date of the accident and fifteen minutes after his admission to the hospital his temperature was 87 degrees. Subsequently his temperature rose to 104.6 degrees. The appellee also sustained a fracture of both bones in his left forearm, near the wrist. A closed reduction was unsatisfactory and another reduction was required. A permanent shortening of the arm resulted, although good function was obtained.
Doctor Hodson testified that the radically lowered body temperature of the appellee had a deleterious effect on his brain cells. He said there was no question but what the appellee had some brain damage and that brain cells do not regenerate. He further testified that it was medically impossible to determine what the final result would be. Numerous witnesses who knew the appellee before and after the accident testified as to the change in the appellee’s personality and mentality. The general effect of their testimony was that prior to the appellee’s injuries he was an exceptionally alert, responsive child, hut that subsequent to the injuries he had undergone a definite personality change; that he was mentally on the slow side and physically awkward.
The appellant does not argue that the verdict was the result of bias or prejudice on the part of the jury. Its only complaint is that it is “excessive.” The appellant offered no testimony on the issue of damages but relies wholly on matters developed on cross examination of the appellee’s witnesses. No special questions were submitted with reference to the injuries and damages, and the verdict was not itemized as to elements of damages.
Under these circumstances the appellee is entitled to a favorable review of the evidence. This was the situation in Knoche v. Meyer Sanitary Milk Co., 177 Kan. 423, 280 P. 2d 605, where the court said:
"A full and careful examination of the record pertaining thereto convinces us that taking into consideration the age of the appellee, her expectancy in life, . . . the nature of her injuries and their permanence, and the pain and suffering which she has endured . . . and considering amounts of verdicts for somewhat comparable injuries, heretofore approved, in the light of increased cost of living or the impaired purchasing power of money, it may not be said the amount of the verdict, even though it is for a substantial amount, is such as to shock the conscience of the court or that it should be set aside as unfounded by the evidence or as excessive. . . .” (pp. 437, 438.)
Similarly, we cannot say in the instant case that the verdict in favor of this six-year-old child is such as to shock the’ conscience of the court, or that it should be set aside as unfounded by the evidence or as excessive.
Other specifications of error assigned by the appellant which relate to the giving or refusing to give instructions, and objections to the evidence relate directly to the appellant’s legal theory of this case which has heretofore been considered and determined adversely to the appellant.
It may be conceded the provisions of 68-301, supra, do not require the maintenance of a perfect bridge (Hill v. State Highway Comm., 143 Kan. 129, 53 P. 2d 882; and Sheen v. State Highway Commission, 173 Kan. 491, 249 P. 2d 934), but the allegations of the amended petition and the evidence in this case, in our opinion, were sufficient to present a question for the jury to determine whether the bridge was defective, and, if so, whether such defective condition was the proximate cause of the appellee’s injuries.
Other points raised by the appellant have not been overlooked, but after careful review they either have no merit or do not affirmatively appear to have prejudicially affected the substantial rights of the appellant. (G. S. 1949, 60-3317.)
The judgment of the lower court is affirmed. | [
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|
The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from an order of the district court of Shawnee County, Kansas, overruling a motion to strike portions of the plaintiff’s petition in a damage action. The controlling question presented is whether such order is appealable.
On June 9, 1958, the plaintiff was riding in an automobile as a passenger with her husband and three children. As they were proceeding along a Kansas highway (U. S. Highway No. 40) west of Topeka in an easterly direction, the automobile in which the plaintiff was riding collided with the defendants’ truck which was being operated pursuant to authority of the Kansas Corporation Commission as a common carrier. It is alleged the truck was parked on the highway without lights and warning devices. As a result of the collision three independent actions were filed alleging negligence on the part of the defendants.
A companion case in which the three minor children, through their mother and next friend, sought recovery of damages from the defendants for the negligent injury to their father, who is presently living, was the subject of an appeal to this court in Hoffman v. Dautel, 189 Kan. 165, 368 P. 2d 57. There is also a separate suit pending by the husband against these defendants to recover damages for personal injuries to himself. (This cause of action, not a subject of this appeal, was brought by the wife for and on behalf of her husband and includes damage caused to him by reason of her injury and his loss of plaintiffs ability to perform services such as housework for and on behalf of her husband, pursuant to G. S. 1949, 23-205.)
In the instant action against the defendants the plaintiff seeks to recover damages for personal injuries to herself in the amount of $10,000, and also to recover damages in her own behalf for loss of consortium. On this point paragraph XVIII of the petition reads:
“That by reason of the concurrent negligence and concurrent carelessness of the defendants as set out above, the plaintiff’s husband, Everett Eugene Hoffman, who was the driver of the automobile as hereinbefore alleged, was seriously and permanently injured and that as a result of the injuries to plaintiff’s husband she has been and shall be deprived for the remainder of her life of tlie services, comfort, society, companionship and consortium of a kind, faithful and loving husband, damaging plaintiff in the sum of $50,000.00.”
Upon motion of the defendants the trial court refused to strike paragraph XVIII from the petition. In the same ruling the trial court refused to strike from the petition certain allegations concerning the limits of liability insurance coverage in an insurance policy issued to the defendants, Jackie E. Dautel and Delmer L. Dautel, by The Home Insurance Company and The Home Indemnity Company of New York. The limits of liability in the policy as alleged by the petition were “in the sum of $10,000.00 for loss to property of others in any one accident, $50,000.00 for personal injury or death to any one person in any one accident, mid $100,000.00 for injury or death to two or more persons in any one accident.” A copy of the policy was not áttached to the petition.
The defendants have duly perfected an appeal from the order of the trial court refusing to strike the foregoing quoted portions of the petition.
An application to consolidate the children s action against these defendants with the instant action has heretofore been denied by this court. In the childrens action (Hoffman v. Dautel, supra) the trial court sustained a motion to strike three paragraphs from their petition on the ground that the minor children had no cause of action against third parties for personal injuries to their parent, and that $50,000 claimed by each, or a total of $150,000, was not a proper measure of damage or an allowable item of damages. This order of the trial court, in effect, struck the children’s cause of action, and the appeal to this court could therefore be maintained on the ground that it was a final order. Upon consideration of the appeal this court affirmed the decision of the trial court.
The order of the trial court in the instant case, overruling the motion to strike portions of tibe plaintiff’s petition, however, presents a different procedural question.
Counsel for the appellants in argument rely upon, Vakas, Administratrix v. Collins, 189 Kan. 178, 368 P. 2d 271, contending they were required to appeal from the order overruling the motion to strike portions of the plaintiff’s petition or they would ultimately lose the point.
In attempting to paraphrase the law, the appellants state, . . a Motion to Strike is appealable if the ruling prejudices or will prejudice a substantial right (Gibson v. Bodley, 156 Kan. 338, 133 P. 2d 112), or it is appealable if it goes to the merits of the case (Whitlaw v. Insurance Co., 86 Kan. 826, 122 Pac. 1039).”
The appellants also rely upon Smith v. Wyandotte Furniture Co., 154 Kan. 494, 119 P. 2d 478; and Grain Co. v. Cooperative Association, 109 Kan. 293, 198 Pac. 964. It is then argued by the appellants that the adverse ruling by the trial court wherein it “refused to strike plaintiff’s claim for damages because of personal injury to her husband effects a substantial right of these defendants. The plaintiff wife seeks to recover on a cause of action which we feel the great weight of authority does not permit and which we feel is not permitted under Kansas law. Hence, it would certainly be prejudicial to these defendants to have this issue go to the jury and prejudicial to rights of these defendants to require them to defend a claim not permitted by common law. This portion of our Motion could quite properly be considered as a Demurrer to a separate cause of action in the wife’s Petition. Being properly before the Supreme Court, this court can consider the Motion to Strike the allegations in reference to insurance coverage since on timely appeal a party may have a review of prior rulings or an all-inclusive review (G. S. 1949 60-3314a; Foster v. Humburg, 180 Kan. 64, 299 P. 2d 46).”
While it may be conceded there is some inconsistency in our decisions (see In re Estate of Shirk, 188 Kan. 513, 363 P. 2d 461; Vakas, Administratrix v. Collins, supra; and Allman v. Bird, 189 Kan. 331, 369 P. 2d 387, including concurring and dissenting opinions), the statement has frequently been made that under the established rule of this jurisdiction rulings on motions to strike, regardless whether such motions have been sustained or overruled, rest in the sound discretion of the trial court and are not appealable under G. S. 1949, 60-3302 and 60-3303, unless they are final, affect a substantial right, or in effect determine the action. (Nausley v. Nausley, 181 Kan. 543, 545, 313 P. 2d 302; In re Estate of Sims, 182 Kan. 374, 321 P. 2d 185; Lee v. Johnson, 186 Kan. 460, 350 P. 2d 772; Wescoat v. State Highway Commission, 187 Kan. 228, 356 P. 2d 841; and the many cases cited in these decisions.) Some of the most recent decisions of this court which affirm the foregoing rule are Klepikow v. Wilson, 189 Kan. 66, 366 P. 2d 800; and Allman v. Bird, supra.
The procedural point here presented was recently discussed and considered in the cases of In re Estate of Shirk, supra; Vakas, Administratrix v. Collins, supra; and Allman v. Bird, supra, by the court and some of its members in concurring and dissenting opinions. Therefore, extended discussion will not be undertaken in this opinion.
In Pulliam v. Pulliam, 163 Kan. 497, 183 P. 2d 220, it was said:
“. . . we have repeatedly held that motions to strike portions of a petition are not appealable unless they affect a substantial right and in effect determine the action . . .” (p. 499.)
In substance the foregoing states that the order must be final to be appealable.
An analogous decision to the same effect is Allman v. Bird, supra, where the trial court overruled a motion to strike an affirmative defense from the answer of the defendant. The order was held not to be final within the contemplation of the code of civil procedure, and was therefore not appealable. To the same effect is Redfield v. Chelsea Coal Co., 138 Kan. 373, 26 P. 2d 579, where the court said:
“ ‘An order overruling a motion to strike out parts of an answer, which does not involve the merits nor determine the action, is not appealable, and can only be reviewed in this court after final judgment in the action.’” (p. 375.)
We hold the order of the tidal court in the instant case, overruling a motion to strike out paragraph XVIII of the petition, does not constitute a final order within the meaning of G. S. 1949, 60-3302 and 60-3303. It does not in effect determine the action and prevent a judgment. Prior to final judgment in the action it is not appealable. Thus, it is only after final judgment in the action that it can be reviewed in this court.
It should be noted the court is not here confronted with a demurrer, which is expressly made appealable by the provisions of G. S. 1949, 60-3302, Second. Nowhere in 60-3302, supra, is an order with respect to a motion to dismiss an action or to strike all or part of a pleading made appealable. To be appealable such order must be a “final order” as defined in 60-3303, supra.
Even assuming, as the appellants argue, that paragraph XVIII of the petition is a second cause of action alleged by the plaintiff, the refusal of the trial court to strike such second cause of action is not an appealable order.
The general rule is that an order overruling a motion to dismiss an action is not a final order and, prior to final judgment, is not appealable. In this situation there is, however, a recognized exception where the ground for the motion to dismiss the action is want of jurisdiction. (Wright v. Rogers, 167 Kan. 297, 205 P. 2d 1010; Collins v. Richardson, 171 Kan. 152, 230 P. 2d 1018; and Dick v. Drainage District No. 2, 187 Kan. 520, 358 P. 2d 744.)
On the pleading here under attack the exception to the foregoing rule has no application because the plaintiff’s petition states a good cause of action for damages against the defendants on the ground of negligence, and the allegations of the petition in paragraph XVIII relate only to the extent of plaintiff’s damages proximately caused by the defendants’ negligence.
While it is recognized that an order striking a petition from the files is a final order and therefore appealable (Pulliam v. Pulliam, supra, and cases cited therein at p. 498), the reason for the rule has been said to be so obvious as almost to preclude the necessity of commenting upon it. When a motion to strike is sustained, the plaintiff’s right to proceed with the cause on its merits is wiped out, and the ruling is to all intents and purposes a final order for which the code gives a right of appeal. But a ruling to the contrary has no such consequence. The overruling of a motion to strike a petition from the files or to strike a cause of action does not determine the action or prevent a judgment. It not only leaves the defendant free to conduct his defense, but also permits him after the cause has been tried upon its merits to' present the alleged trial errors and irregularities upon appeal and final review. (Pulliam v. Pulliam, supra; and see the concluding paragraphs in Allman v. Bird, supra; see, also, the concluding paragraphs of In re Estate of Shirk, supra.)
The appeal herein, not having been taken from a final order, is dismissed.
Parker, C. J., and Price, J., dissent. | [
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|
The opinion of the court was delivered by
Parker, C. J.:
After he had been granted permission to proceed as an indigent person Clarence Vincent Rose, an inmate of the state penitentiary, commenced this habeas corpus proceeding in this court by filing a petition, charging in substance that he is illegally deprived of his liberty by the respondent warden and entitled to a writ directing his release from the penitentiary because of the trial court’s action in denying him a free transcript of the record necessary and required for purposes of perfecting an appeal from his judgment and sentence.
Although the record discloses they are beyond dispute, certain salient facts are essential to a proper understanding of the single issue involved. Therefore they will be stated as briefly as the state of the record permits.
On October 1, 1959, while represented by competent counsel of his own choosing, and having been theretofore properly charged in the district court of Butler County by information with the commission of the crimes of burglary, in the nighttime, and larceny, petitioner entered a voluntary plea of guilty to both offenses and was then properly sentenced by the district court to serve such sentences consecutively in the Kansas State Industrial Reformatory. On the same day the district court granted petitioner’s application for a parole, subject to conditions imposed by the statute, and permitted him to go at large.
On January 3,1961, on application of the State showing violations of his parole, petitioner was brought before the district court and after a full and complete hearing, establishing violations of the parole in this state and elsewhere, that tribunal revoked the parole and by proper order committed petitioner to the state reformatory to serve the sentences theretofore imposed against him.
At this point it is interesting to note, that on all dates hereinabove mentioned, petitioner was making no complaint with respect to his original sentence or to the revocation of his parole. This is fully demonstrated by his own verified application for the writ wherein he specifically states, that on October 8(sic), 1959, “he, on his own free will entered a plea of guilty,” and adds in the same pleading that on January 3, 1961, “a hearing was held before the presiding Judge and after asking for the parole to be revoked the Judge granted his wish and the parole, . . . was terminated, . . . After which he was returned the same day to the Kansas State Reformatory.” It also appears from the verified application that petitioner makes no complaint regarding his present confinement in the state penitentiary instead of the state reformatory. Resort to such pleading discloses the following statement: “The above petitioner requested that he be transferred from the state reformatory to the present place of confinement, that being the Kansas State Penitentiary.”
On November 7, 1961, more than two years after rendition of his judgment and sentence, and more than nineteen months after his time to perfect an appeal therefrom had expired under the terms of our statute (G. S. 1949, 62-1724) providing that a defendant may appeal at any time within six months from the date of the sentence imposed against him, and without ever having attempted to perfect an appeal from the judgment and sentence prior to such date, petitioner filed a motion in the office of the clerk of the district court of Butler County asking the district court to make an order directing that he be furnished a free transcript of the record in his case as an indigent person. In the motion he alleged in substance that the order was required under the provisions of G. S. 1959 Supp., 62-1304b, now G. S. 1961 Supp., 62-1304b, inasmuch as the transcript was necessary in order to enable him to take an appeal from the judgment and sentence. This motion was taken under consideration and denied by the district court on December 5, 1961, upon the obvious premise, disclosed by the record, that since petitioner had made no attempt to appeal from the judgment and sentence, within the time prescribed by 62-1724, supra, this court, under its long established decisions (see cases cited at pages 587 and 588 of State v. Shores, infra), no longer had jurisdiction to entertain an appeal from such judgment and sentence; hence to furnish petitioner a free transcript for the purpose of appealing from the judgment and sentence would serve no useful purpose and therefore was not required by the provisions of 1304b, supra.
What has been heretofore stated makes it apparent the sole question before us in this case is whether, under the controlling facts and circumstances, petitioner’s constitutional rights were infringed upon by reason of having been denied a free transcript at the expense of the county for the purpose of taking an appeal from a judgment and sentence from which he had made no attempt to appeal until long after expiration of the time fixed by statute (62-1724, supra) for the taking of appeals in criminal cases.
The question thus presented is not new to this court. It was determined in the comparatively recent case of State v. Shores, 185 Kan. 586, 345 P. 2d 686, under facts, conditions and circumstances so similar that case must be regarded as controlling our decision in the case at bar. Therefore we make the opinion in State v. Shores, supra, a part of this opinion, as fully and completely as if such opinion was set forth at length herein, and, based on what is there stated and held, conclude the action of the district court in denying petitioner a free transcript, under the facts, conditions and circumstances here involved, did not result in any violation of his constitutional rights under the Fourteenth Amendment to the Constitution of the United States or our own state constitution and affords no sound ground for the issuance of a writ directing respondent to release petitioner from custody.
The writ is denied. | [
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The opinion of the court was delivered by
Price, J.:
The defendant, Clyde Cross, has appealed from a conviction of the offense of embezzlement by bailee as defined by G. S. 1949, 21-547, which reads:
“If any carrier or other bailee shall embezzle or convert to his own use, or make way with or secrete, with intent to embezzle or convert to his own use, any money, goods, rights in action, property or valuable security or other effects, which shall have been delivered to him, or shall have come into his possession or under his care as such bailee, although he shall not break any trunk, package, box or other thing in which he received them, he shall upon conviction be adjudged guilty of larceny, and punished in the manner pre scribed by law for stealing property of the nature or value of the article so embezzled, taken or secreted.”
The information charged:
“That heretofore and to-wit on or about the - day of October, a. d., 1959, at and within the county of Montgomery and state of Kansas, the above named defendants, Clyde Cross and Raymond Odie, then and there being and then and there acting jointly and together, and being then and there the bailees of certain personal property, to wit:
“Gasoline of the value of $170.00,
which said personal property was then and there owned by the Coffeyville Co-operative Refinery Association, and the said defendants, acting jointly and together, did then and there by virtue of their trust as bailees take said personal property under their care as such bailees, the same having a fair and reasonable value of $170.00, good and lawful money of the United States of America, and being the property of the said Coifeyville Co-operative Refinery Association, all as aforesaid; and after having so received said personal property in the manner aforesaid, did then and there willfully, wrongfully, unlawfully and feloniously embezzle and convert to their own use the said personal property aforesaid, which came under their care as such bailees; all with intent then and there on the part of them, the said defendants, to convert said property to their own use and deprive the owner of the use thereof; all without the consent of the owner, Coffeyville Co-operative Refinery Association; all contrary to and in violation of the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Kansas.”
Highly summarized, the record shows the facts to be substantially as follow:
During the latter part of 1959 the Coffeyville Co-operative Refinery Association, hereafter referred to as the refinery, was sustaining huge losses of gasoline from its loading dock. In September of that year the loss was 74,886 gallons, and in October the loss was 63,672 gallons, which was double the ordinary operational loss. One of the large gasoline storage tanks showed signs of leaking and a new bottom was placed in the tank. Nevertheless, the loss for November-amounted to 129,528 gallons. The gasoline losses reached their peak in December, totalling 202,246 gallons, which figure exceeded the ordinary operational loss by six times. In January, 1960, the loss totalled 86,310 gallons. In February the alleged mass embezzlement of gasoline from the dock was discovered and the loss for that month dropped to 5,082 gallons. Shortly thereafter the defendant and all other dock employees were removed from the loading dock.
The defendant was a biller on the loading dock and his assigned loader was one Odie. Defendant had more seniority on the loading dock than any other employee and had been involved in an investí gation for theft of gasoline back in 1948. During the fall of 1959 there were four shifts of dock workers at the refinery loading dock. Three workers were on duty on three of the shifts. The six o’clock p. m. to midnight shift had only two workers, a biller and a loader— consisting of defendant and Odie.
Odie also was a part-time employee of a service station in Coffey-ville. At the time he was employed by the service station it was agreed he would receive one dollar per hour “and his and the defendant’s gasoline.” They were to “pay” their accounts at the station with gasoline from the refinery dock. Other dock workers at the refinery also had a similar arrangement at the service station.
In late September or early October, 1959, Odie had an account at the service station of approximately $140 to $150. The defendant had an account there of somewhere between $35 and $50. Odie suggested to one L, one of the owners of the service station, that he, L, bring a truck out to the refinery to get a load of gasoline to apply on Odle’s and defendant’s accounts at the service station. Pursuant to this suggestion L drove a truck out to the loading dock at the refinery in the nighttime. Defendant and Odie were the only workers present. L pulled the truck up to a corner of the loading dock and Odie went down below to the ground level, where the meter mechanism was housed, and disconnected the meter on the regular gasoline spout. Defendant was approximately eight feet above on the loading ramp. The loading spout was placed in a compartment of L’s truck, which had a capacity of 1,500 gallons. The meter having been disconnected, the flow of gasoline through the spout was controlled by a lever operated manually by defendant. This procedure was followed with respect to another compartment of L’s truck, and in the course of the undertaking some gasoline was spilled, whereupon L told Odie “to shut off the flow of gasoline because the spill-over made him nervous.” After the hand valve was shut off the meter register was put back into place. L then drove off with the truck load of unmetered and nonbilled gasoline to the service station and marked the accounts of Odie and defendant on the service station ledger as “paid.” These ledger cards, together with the ledger cards of other dock workers at the refinery, were later destroyed by L’s partner for purposes of concealment. The service station received approximately 50,000 gallons of gasoline in the manner related and through “overload.”
The evidence also disclosed other similar transactions involving the defendant in connection with refinery gasoline, some of which involved the payment of cash for gasoline so diverted.
Defendant was found guilty as charged. His motions for discharge and for a new trial were overruled. The verdict was approved and judgment thereon was entered; and he was sentenced to confinement in the state penitentiary under applicable statutes. Although he has appealed from the order overruling his motion for a new trial such ruling is not specified as error. He also appealed from the order overruling his motion for discharge, and his principal specification of error is:
“1. The trial court erred in overruling defendant’s motion to discharge at the conclusion of the State’s evidence:
“A. For failure of the State to sustain the burden of proof that defendant was seized of possession of the property allegedly embezzled, one of the elements of the crime of embezzlement by bailee.
“B. For failure of the State to sustain the burden of proof that defendant had embezzled or converted to his own use the property of another, one of the elements of the crime of embezzlement by bailee.
“C. For the reason that a material variance between the allegation and the proof as to the ownership of the property allegedly embezzled which could only result in an erroneous or an impossible verdict.”
As argued in his brief — and upon the oral argument of this appeal —defendant’s contention is this:
He was charged with the offense of “embezzlement by bailee,’’ and therefore it was necessary for the state to prove that as such bailee he had possession of the gasoline in question as distinguished from mere custody of it by virtue of his employment. He concedes that if he acquired possession of the gasoline the trial court was correct in overruling his motion for discharge and in submitting the case to the jury, but contends the evidence established mere custody on his part — rather than possession. In other words — it is argued that he should have been charged with larceny rather than embezzlement — and reliance is had on State v. James, 157 Kan. 703, 143 P. 2d 642, in which it was said:
“. . . While larceny and embezzlement are distinct offenses and so denounced in our crimes act, they are measurably akin to each other, but there are distinguishing characteristics in each. Thus in larceny the element of trespass is inherent in its commission while in embezzlement possession of the res is obtained for a lawful purpose but which the wrongdoer later perverts to an unlawful use or purpose of his own.
“The courts have generally drawn an important distinction based upon the wrongdoer’s original relation to the res. Thus where the accused has the mere custody of the property and the legal possession is still in the owner, if the wrongdoer makes away with the property with intent to deprive the owner of it permanently his offense is larency; whereas if lawful possession is conferred on the wrongdoer as where property is entrusted to a bailee or trustee, a later conversion to his own use by the wrongdoer is embezzlement- — -unless at the time possession is conferred on him he already has formed the wicked intent to convert it to his own use, in which case the offense is classified as larceny.” (p. 706.)
In that case the defendant, a farm worker, drove with the complaining witness, a farmer, to a field adjacent to the farm house. He drove along for the express purpose of returning the truck to the house where he was to resume mowing weeds. After his employer, the complaining witness, got out of the truck, defendant drove it back to the house and parked it. He then entered the house, changed his clothes, stole some articles in the house, and drove the truck away. He later was charged with larceny of the truck. During the trial he contended that if he was guilty of anything it was embezzlement rather than larceny. In holding that defendant was properly charged with larceny, this court said:
". . Defendant had been given the bare custody of the truck to drive it back to the house. His custody of the truck, never amounting to legal possession, terminated when he took it to the house as his employer directed him to do. What he did afterwards, about changing his clothes, stealing some other clothing, some money and a rifle, and driving off with the truck constituted an entirely new and independent adventure, in no way related to the purpose for which his employer gave him the bare custody of the truck. It was clearly by unlawful trespass that he appropriated the truck to his own use with the intent to deprive the owner of it. His offense had none of the elements — none of the distinctive earmarks — of embezzlement.” (pp. 708, 709.)
On their face — the facts of the James case clearly distinguish it from the one before us. Furthermore, if, as contended by defendant, the element of “possession” is indispensable to establish the offense of “embezzlement by bailee” under the statute (G. S. 1949, 21-547), we believe the evidence is clear that for all practical purposes the defendant and the other dock workers at the refinery had the gasoline in their “possession” during their respective shifts.
In addition — and without attempting to indulge in a purely academic discussion of the so-called fine-spun distinctions between larceny and embezzlement — we believe that defendant places a too narrow construction on the language of the statute involved. In substance it provides that if any bailee shall embezzle or convert to his own use any property which shall have been delivered to him or shall have come into his possession or under his care as such bailee, he shall, upon conviction, be adjudged guilty of larceny and punished in the manner prescribed by law for stealing property of the nature or value of the article so embezzled or taken. That the gasoline in question came under defendant’s care as bailee cannot be disputed, and neither is it disputed that he converted it to his own use.
Some point is made of the fact there appeared to be some discrepancy in the evidence as to the correct “company” name of the owner of the gasoline alleged to have been embezzled or converted. The discrepancy, if any, was purely technical in nature, did not prejudice or mislead defendant in any way, and the contention with respect thereto is without merit. (G. S. 1949, 62-1718.)
Other matters urged by defendant have been considered but likewise are found to be without merit. Defendant was properly charged and convicted, and his motion for discharge was properly overruled.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Price, J.:
This was an action against defendants, Price and Eoltz, for personal injuries sustained by plaintiff, Lackey, when a truck carrying liquified petroleum (LP) gas was involved in an explosion. The explosion occurred at a time when the truck was being washed by Eoltz — an employee of Price — inside the service station owned and operated by Price.
The action was brought and tried under the theory of res ipsa loquitur. Judgment was for plaintiff, and defendants have appealed.
The theory of the case, as pleaded in the petition, was that at all times material the defendants were in sole and exclusive possession, management and control of the service station and of tibe truck involved in the explosion; that the explosion and resulting injuries to plaintiff was an occurrence which would not have taken place except for some act or acts of negligence of defendants in the handling and servicing of the truck, and that such acts of negligence, being unknown to plaintiff, were the direct and proximate cause of plaintiff’s injuries.
Defendants’ demurrer to the petition was overruled.
The answer admitted that the gaseous vapors escaped from the truck in question, denied negligence on the part of defendants, and alleged that plaintiff was guilty of assumption of risk and contributory negligence in entering the service station at the time he did; and further alleged that plaintiff’s injuries were proximately caused by the negligence of the owner of the truck and his employees in delivering the truck to the service station in a defective condition in that valves on the hoses were not closed, and without first emptying or bleeding the hoses. It was further alleged the owner of the truck had failed to comply with rules and regulations of the office of state fire marshal relating to equipment for the handling of liquified petroleum gases.
At a pre-trial conference it was determined that plaintiff was relying on the theory of res ipsa loquitur, and that defendants relied upon the defense of assumption of risk, contributory negligence, and the negligence of third persons.
The following is a summary of plaintiff’s testimony.
Plaintiff, a resident of Sterling, was an employee of one Johnson, the owner of the Sterling Butane Company. He was a truck driver and delivered LP gas to farmers in the area. He had been so employed for over three years. At about five o’clock in the afternoon on the date in question, December 1, 1958, he left his place of employment and went behind the Price Service Station, where he had parked his truck. Apparently the rear door of the service station was open, and Boltz asked him how to shut off the valve on the truck which was in the station. Plaintiff then looked inside the door and saw gas vapors on the floor under the truck. He recognized it as being LP gas and stated it looked like a heavy fog and was probably a foot high on the floor. He inquired of Boltz if all fires in the building were out. Boltz told him they were. Price then told him that he had checked the valves at the rear of the truck. Plaintiff then inquired if all doors and windows in the service station were open. Price and Boltz told him that they were open and asked him what remaining valves there were which should be closed. He told them there was one in the box, and he then went in the building and closed a valve on a hose which was in a box on the side of the truck. Just after he closed the valve he saw a flash, shut his eyes, and then went outside. He did not know the cause of the explosion. On the basis of his past experience with LP gas he knew that it was dangerous, but, nevertheless, he entered the building to shut off the valve with the idea in mind of helping the other persons in the building. He further testified as to the box on the side of the truck where the valve or valves were located— that the function the valve serves is to cut off gas from the main valve to the hose, and that with the valve open gas would be in the hose.
A summary of plaintiff’s testimony on cross-examination follows:
The gas in question had explosive characteristics and a flame or spark would ignite it. Ordinary heat without live flame or spark would not ignite it. Trucks belonging to his employer had been washed at the Price Service Station before. The first thing he saw when he looked in the rear door of the service station was the cloud of fumes or gas on the floor. He had driven the truck in the past. It was a 1958 truck which had two 600-gallon tanks mounted on it. The tanks were not new and had been transferred from an old truck. He immediately recognized the situation as being dangerous, but, nevertheless, entered the building and went directly to the box or cabinet on the side of the truck and closed the valve. After describing the two hoses rolled up in the cabinet on the side of the truck and details involved in bleeding hoses, he stated the hose should have been bled before the truck was driven into the building, the reason being that hoses sometimes burst. The fact that valves were open would mean that the hoses had not been bled.
Dwayne Miller testified for plaintiff, and a summary of his testimony follows:
He, like plaintiff, also was a truck driver for the Sterling Butane Company, and had been so employed for about six years. His duties were to deliver LP gas to customers and to fill tanks and tractors in the area. At noon on the day in question he had a conversation with one Moore, an employee of the Price Service Station, about getting the truck washed and greased. He took the truck to the service station at approximately 3:30 or 4:00 o’clock that afternoon. The truck was relatively new, but the tanks attached to it were approximately six years old. He was responsible for the maintenance of the truck and believed that it was in proper working condition. The tanks were approximately half full when the truck was brought to the station for servicing. Upon being asked what valves were closed when he left the truck at the service station he replied, “I couldn’t swear that any were closed, sir.” The hoses on the truck were approximately one year old, and when he left the truck at the service station he did not detect the odor of gas.
Upon cross-examination he testified that he had not bled the hoses before taking the truck in for servicing and, not having been bled, the hoses would have been full of gas at the time. So far as he knew the tanks were in good condition and had no leaks. It was possible that the gas which escaped came from a bursting hose, and he was the one who was responsible for the hoses. There would be less likelihood of a hose bursting if it were bled. Although not denying that he made the statement, he did not recall telling an agent of the state fire marshal’s office that the explosion and fire were caused by a failure to bleed the hoses. He admitted that his present feeling was that under like circumstances he would never again fail to bleed hoses.
On redirect examination he was asked if he had closed either of the valves and his answer was, “no.”
Mr. Johnson, the owner of the Sterling Butane Company, and who owned the truck and who was the employer of plaintiff and Miller, also testified for plaintiff. He said that Miller was in charge of the truck and that the hose on the truck was approximately one year old, and that the purpose of bleeding hoses was to reduce pressure. If a leak developed in the hose on a tank like the one in question it could have been caused by a number of things, such as (1) the condition of the hose being such that at the time the pressure inside was greater than what was holding the hose together; (2) the addition of heat applied to the hose or to the tank, creating a greater outside temperature and thus causing the fuel to expand; (3) slamming the door on the hose, thereby causing an incision or rupture in the line, or (4) pulling the hose off the end of the fill knob, releasing gas.
The foregoing is a summary of the evidence introduced in behalf of plaintiff, and at tire conclusion of its introduction defendants filed a demurrer as follows:
“Come now the defendants and demur to the evidence of the plaintiff for the reason that the facts and evidence on behalf of plaintiff fail to contain anything which would establish a cause of action against either of the defendants. Defendants affirmatively show that the plaintiff is barred by the doctrine of the assumption of risk, and affirmatively shows that he was guilty of contributory negligence, and if the plaintiff continues to contend that the doctrine of res ipsa loquitur is available to him, that no proper showing has been made and that therefore the evidence is insufficient to submit on the question of the defendants’ negligence.”
This demurrer was overruled — whereupon defendants introduced their evidence.
A summary of the testimony of defendant Price is as follows:
He had operated the service station for about one year prior to tire date of the explosion. The station was engaged in the usual operations, such as washing, greasing and servicing of automobiles and trucks, and selling gasoline and automobile accessories. He had two employees — his codefendant, Boltz, and Moore. Prior to the date in question trucks owned by the Sterling Butane Company had been washed and greased at his station. On the day of the explosion he had been in Hutchinson, and upon returning to his station he noticed that the truck in question was being washed by Boltz. Miller, the truck driver for Sterling Butane Company, and who had driven the truck to the station for a wash job, was at the station at the time of his (Price’s) return from Hutchinson. Miller asked Price to drive him home — which Price did. When Price returned Boltz called to him to come to the rear of the station to see what was the matter. He went to the back part of the station and found that something was leaking. He immediately went to the rear of the truck and shut off two main valves on the back end of the truck. Those valves controlled the liquid going to the filler hose. He also observed gas coming out of the truck underneath the panel which held the hose in the cabinet. This cabinet or box was on the right side of the truck near the front of the tanks. The cabinet had two doors on it. When trucks such as the one in question were brought to the station for servicing all he or his employees did was to wash and grease them. He was a former truck driver himself and had driven trucks similar to the one in question.
When Price, in response to the call from Boltz, went back to the truck he observed that the gas was spread out in vapor form probably six or eight feet around the truck. He saw liquid dropping from the bottom of the cabinet or box. Plaintiff then came in the door at the rear of the station and opened the cabinet door and turned the gate valve. Price further observed gas coming out of the hose, and that the hose in the cabinet was frazzled, thus indicating to him that it was a bad hose. After turning off the valve or valves in the cabinet plaintiff went toward the open door and just then the flash and explosion occurred. At the time in question the overhead gas units used in heating the station were off and there were no fires of any nature going in the station. There was a gas heater in the women’s rest room which had to be turned off or on from the outside, but there was a wall between the rest room and the inside of the station and there were no openings in the wall. An air compressor and a steam cleaner were in the station but both were off at the time, and, to his (Price’s) knowledge, there was nothing in the station that might have caused the escaped gas to ignite.
On cross-examination Price testified that at the time in question the front and back doors of the station were open, and that as plaintiff opened the cabinet he, Price, saw loose ends sticking out from the hose, and that the hose was frayed and curled, and that gas was coming out of the cabinet with some pressure — supposedly from the hose. The truck had been in the station for at least half an hour prior to the explosion, and that all fires were tamed out — further, that a spark of any kind could set it off.
A summary of the testimony of defendant Boltz is as follows:
He was an employee of Price and had worked at the service station for about eleven months prior to the date of the explosion. His duties were general and included washing and greasing automobiles and trucks, repairing tires, and the like. On the afternoon in question Miller left the track at the station for a wash job. He, Boltz, drove it into the station from where it had been parked. He started to wash the truck and after he had washed the tanks a leak started near the right compartment of the track. It made a hissing noise and sounded like the pop-off on an air hose. The noise came from the compartment (cabinet or box), and what appeared to be steam vapor came out through the cracks of the cabinet doors and dripped from the bottom. He called Price, who shut off or tamed something in the back of the track. Boltz also tamed off the gas heater at that time and opened the door to the east side of the station. He saw plaintiff in the alley. He did not remember his conversation with plaintiff — however, plaintiff came in, opened the cabinet doors, and tamed something. As the cabinet doors were opened he (Boltz) could see vapor coming out and also the vapor on the floor under the truck. The area covered by the vapor was eight to twelve feet across and eight to twelve inches deep on the floor. It had taken him about half an hour to wash the two tanks and they were washed with soap and cold water. It was a rather mild day and the outside temperature was about fifty to fifty-five degrees. He was unfamiliar with LP gas tracks, but had no reason to believe a leak was present when he drove the truck into the station. While not being familiar with the properties of LP gas, his custom had been to turn down the thermostat in the station when this type of track was being serviced. Just after plaintiff made the adjustment or tamed off a valve the explosion occurred.
Moore, the other employee of Price, testified that he had worked at the service station for six or seven months prior to the date in question. His duties were the general ones of a service station attendant. Earlier in the day he had had a conversation with Miller about washing and greasing the truck, and that it was brought to the station in the late afternoon. He had observed Boltz washing the truck, and his attention was next directed to it when he heard a hissing sound like an air hose. He observed a liquid vapor coming out of the cabinet near the front end on the right side of the truck. He heard Boltz call to Price. He did not know where the fire might have started from, but there was an explosion shortly thereafter. Although there was no opening from the ladies’ rest room to the inside of the station where the explosion occurred, he had reached for the key to that room immediately prior to the explosion. It was warm in the building, and although they usually turned down the thermostat when the doors were opened, he had not seen Boltz turn it down before bringing the truck in.
Mr. Hickman, a deputy state fire marshal, also testified for defendants. He was familiar with flammable liquids, including LP gas. He had been so employed about four years and had made an inspection and investigation of the fire and explosion in question. He had interviewed Miller, and Miller had told him that the only valve that was closed was the self-pack valve, which is located at the end of the liquid hose. Miller also had told him that the explosion or fire was caused by the fill hose bursting within the metal compartment (cabinet or box), which was located on the right side of the truck. This witness also had interviewed plaintiff and plaintiff had told him that he was in the alley behind the service station, and that Boltz had called for him to come in and do something; that he, plaintiff, ran in and saw the gas spewing out of the bottom of the hose compartment, following which he reached inside and turned off the valve to the fill hose. The witness had checked the equipment of the Sterling Butane Company about sixty days before the explosion and had made no written order to correct any hazard found on the truck. Although there was no state regulation requiring that hoses be bled, he recommends that it be done and that the valve be closed, particularly after making deliveries and before returning to a congested area.
Plaintiff offered no evidence in rebuttal — and defendants moved for a directed verdict on the same grounds as were lodged in con nection with their demurrer to plaintiff’s evidence. The motion for a directed verdict was overruled.
■The case was submitted to a jury, which returned a general verdict for plaintiff against defendants in the amount of $4,500.
Defendants’ motion for a new trial was overruled and judgment was entered on the verdict.
Defendants have appealed from the orders overruling (1) the demurrer to the petition, (2) the demurrer to plaintiff’s evidence, (3) the motion for a directed verdict, (4) the motion for a new trial, and (5) from the final judgment of the court.
In their specifications of error defendants specify fourteen alleged errors. We note, however, that the order overruling their motion for a new trial is not included among them. That being the case, alleged errors relating to matters occurring at the trial for which a new trial was asked — such as instructions given and requested instructions refused, rulings on the admissibility of evidence, the denial of the motion for a mistrial, and the refusal to submit separate verdicts for each defendant — are not subject to review and cannot be considered on appeal. (State, ex rel., v. Miller, 177 Kan. 324, 279 P. 2d 223, 52 A. L. R. 2d 691; Green v. State Highway Commission, 184 Kan. 525, 337 P. 2d 657 [opinion on motion for rehearing at 185 Kan. 36, 340 P. 2d 927].) Application of the rule — to which we adhere — does not, however, preclude appellate review of the orders overruling the demurrer to the petition, the demurrer to plaintiff’s evidence, and the motion for a directed verdict — all of which were appealed from and are specified as error.
Although the briefs somewhat commingle various arguments concerning res ipsa loquitur, assumption of risk, the “rescue” doctrine, contributory negligence, and the question of actionable negligence on the part of defendants — it is clear that the real contention in this case concerns the application of the doctrine of res ipsa loquitur to the facts and situation presented — and we proceed on that premise. .
There is no occasion here to enter into a detailed discussion of the doctrine of res ipsa loquitur. Rules concerning its application have been stated many times, and we mention but a few of our recent cases — Travelers Ins. Co. v. Hulme, 168 Kan. 483, 213 P. 2d 645, 16 A. L. R. 2d 793; Lamb v. Hartford Accident & Indemnity Co., 180 Kan. 157, 300 P. 2d 387; Worden v. Union Gas System, 182 Kan. 686, 324 P. 2d 501; and Wehkamp v. City of Garden City, 187 Kan. 310, 356 P. 2d 826, and the numerous decisions cited in those opinions.
The doctrine is a rule of evidence — and not of subtantive law— and does not create an exception to the rule that negligence is never presumed but must be established by proof. Generally speaking, the doctrine has application to a situation where the exclusive management and control of the thing which produced the injury is vested in the defendant, and the surrounding circumstances are such as to give rise to the inference that in the ordinary course of events the resulting injury would not have occurred except for the negligence of defendant — evidence of which the injured party is unable to produce, and the facts of which are peculiarly within the knowledge of defendant.
Examining the petition in this case — and giving it the liberal construction and favorable inferences to which, on demurrer, it is entitled — we are of the opinion that it sufficiently alleged a cause of action under the theory of res ipsa loquitur to withstand the demurrer.
In reviewing an order overruling a demurrer to the evidence or an order overruling a motion for a directed verdict — the rule is substantially the same. We are 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 the evidence is such that reasonable minds could reach different conclusions thereon, the demurrer — or motion — must be overruled and the matter submitted to the jury. (Albin v. Munsell, 189 Kan. 304, 307, 369 P. 2d 323, and Casement v. Gearhart, 189 Kan. 442, 445, 370 P. 2d 95.)
All of the evidence in this case has been summarized in detail— and there is no occasion to repeat. A majority of this court is of the opinion that plaintiff’s evidence was sufficient to make out a case under the theory of res ipsa loquitur, and therefore the demurrer thereto was correctly overruled. Likewise, a majority of this court is of the opinion that following the introduction of all of the evidence, it, the evidence, was such that reasonable minds could reach different conclusions thereon on the questions of negligence, proximate cause, and all other questions involved — and therefore the motion for a directed verdict was correctly overruled and the case was properly submitted to the jury. The verdict was approved by the trial court, and, no error being made to appear concerning any matter which is subject to review — the judgment is affirmed.
Parker, C. J., and Price and Schroeder, JJ., dissent from subdivisions 2 and 3 of paragraph 4 of the syllabus and corresponding portions of the opinion. | [
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The opinion of the court was delivered by
Price, J.:
This is a workmen’s compensation case.
The examiner before whom the matter was heard denied compensation.
Upon review by the commissioner an award in favor of the workman was entered.
Upon appeal the district court upheld the award entered by the commissioner.
The employer and its insurance carrier appealed to this court and the appeal was heard in March of this year. We reversed the judgment and our opinion is found in Franklin v. Watkins, Inc., 189 Kan. 495, 370 P. 2d 405.
As shown by the opinion, the basis of our decision was that under the provisions of G. S. 1949, 44-527 (the pertinent portions of which are therein set out), the findings of the examiner, not being disapproved and notice of such disapproval not being given within twenty days following the receipt of such findings in the office of the commissioner — such findings stood as approved and became final, and the commissioner, more than twenty days later, was without authority to disapprove the same.
In deciding the case we confined ourselves to the only points raised and argued by the parties in their briefs, and to the basis of the trial court’s decision as shown by the excerpts from the journal entry of judgment which are set out on page 496 of the opinion.
Be that as it may — a rehearing was granted — and the parties were directed to file additional briefs covering the question of the application of G. S. 1961 Supp. 44-549, and G. S. 1949, 44-527, to the facts of record. Additional briefs were filed and the matter was reargued at the October session.
After further consideration of the question, and of the additional briefs — which, for the first time throw any light on tibe specific proposition presented — we are convinced that the provisions of G. S. 1949, 44-527, apply only to final receipts and releases of liability and awards — as distinguished from an award of an examiner — and that under G. S. 1957 Supp. 44-551, the finding and decision of the examiner was subject to review and approval by the commissioner, and that the twenty-day period mentioned in G. S. 1949, 44-527, has no application to the matter involved.
To that extent, therefore, our former decision was erroneous, and the opinion is hereby withdrawn, vacated and set aside.
Concerning the other aspect of the case — whether the workman’s claim was timely filed — there is evidence in the record to support the trial court’s finding that it was filed within the statutory time, and such finding is binding on appeal.
Although, with respect to the statutes herein mentioned, the trial court reasoned incorrectly, its ultimate decision and judgment allowing compensation for the accidental injuries was correct, and the judgment is therefore affirmed.
Robb, J., not participating. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by the plaintiff from an order of the trial court sustaining defendant’s demurrer to the evidence of plaintiff.
Evidence presented consisted of testimony by plaintiff and her husband. On May 8, 1958, plaintiff accompanied her husband to the Mills building in Topeka, which is a public office building, where he had an appointment with a Doctor Lessenden. They had parked their car on the north side of Ninth street, walked across the street, and entered the building through the north entrance intending to take the elevator to the doctor’s office. It had been raining and after plaintiff had passed through the doors and had taken two steps, she fell and was injured. The time was between 8:00 and 8:15 a. m. and the building had been open to the public at approximately 7:00 a. m. Neither plaintiff nor her husband saw any mats on the floor when they entered the building but when they departed from the building some two hours later, they noticed two mats had been placed thereon. The sidewalks and streets were wet and there was water on the linoleum floor inside the doors where plaintiff fell. Plaintiff could not get up but was finally helped up by her husband and other people who were present. Plaintiff testified that a lady from the X-ray room had seen her fall.
Plaintiff and her husband went to Doctor Lessenden’s office and the doctor looked at her foot and leg. During the two hours she remained in Doctor Lessenden’s office Mr. Stearns N. Belden, the building manager, came in and plaintiff remembered hearing him say he was “sorry it happened but the pad should have been down.” After having X-rays taken by Doctor Finney, whose office is in the same building, plaintiff and her husband returned home. They saw the mats on the floor when they went back through the lobby on their way home.
Defendant demurred generally to this evidence and in its argument to the trial court in support of the demurrer cited 62 A. L. R. 2d 6, et seq., wherein the general rule is stated that the proprietor of a place of business owes to persons present on the premises as invitees the duty of exercising ordinary care to see that the portions of the premises which may be expected to be used by invitees are reasonably safe and that the presence of water on the floor causing a breach of that duty because of the dangerous floor condition must be proved to have actually existed. In addition, the plaintiff must show either that the proprietor had actual notice of the dangerous condition or that the condition existed for such length of time that in the exercise of ordinary care the proprietor should have known of it and taken action to remedy it. Liability for floor conditions created by the acts of persons other than employees exists only on proof that the proprietor had actual or constructive notice thereof.
The trial court sustained tihe demurrer and discharged the jury. In due time judgment was entered for defendant, plaintiff filed her motion for new trial which was overruled, and hence this appeal.
Plaintiff first argues that her evidence is subject to the general rule on testing its sufficiency when attacked by demurrer and relies on Hogan v. Santa Fe Trail Transportation Co., 148 Kan. 720, 723, 85 P. 2d 28, 120 A. L. R. 521. Many subsequent decisions have quoted the same rule including Koch v. Suttle, 180 Kan. 603, 306 P. 2d 123, which in pertinent part reads:
“. . . in testing the sufficiency of evidence when attacked by demurrer all of the evidence will be considered as true, it will not be weighed as to any contradictory parts or discrepancies therein between direct or cross-examination, or among the "witnesses, and every favorable inference to be drawn therefrom will be given to such evidence. If there is any evidence which sustains the case, the demurrer will be overruled.” (p. 606.)
See, also, Haga v. Moss, Administrator, 181 Kan. 171, 311 P. 2d 281.
Obviously, we must here begin with the foregoing proposition of law because we are immediately confronted with the question whether there was any evidence upon which the jury could find that the defendant, or its building manager-employee, had actual knowledge that the entran ceway to the elevators was in a dangerous and unsafe condition if used by plaintiff and other business invitees of the building in walking from the entrance of the building to the elevators, or that the dangerous condition had existed for a sufficient length of time to charge the defendant, or its servant, with notice thereof. The only evidence of actual knowledge or constructive notice, as just stated, was in the testimony of plaintiff who could not remember all of the conversation she had with Mr. Eel-den, the building manager, while they were in Doctor Lessenden’s office, but she did remember hearing him say that he was “sorry it happened but the pad should have been down.”
There is no definite or direct evidence as to the extent or amount of water that had accumulated on the floor in the lobby of the building. This is not a case where the Mills building company created the dangerous condition. Therefore cases of that type (Little v. Butner, 186 Kan. 75, 348 P. 2d 1022) are of little assistance in answering our problem. No competent substantial evidence was adduced to show when it had started to rain, the extent or degree of the rainfall, or how much dampness had accumulated on the floor of defendant’s building. We, therefore, cannot say that plaintiff’s testimony showed the condition of the floor had existed for a sufficient length of time to charge defendant, or its building manager, with constructive notice of any dangerous condition. Such notice certainly cannot be inferred from the statement made by Mr. Eel-den which was overheard by plaintiff. Plaintiff’s evidence includes no showing it was a common practice or precaution of defendant, or similar places of business, to use mats or other protective floor covering and we find no inferences of such common practice or precaution from the statement made by Eelden. These matters are thoroughly discussed in the extensive annotation to be found in 62 A. L. R. 2d, pp. 6-120.
A case almost identical with our present one is Parks v. Montgomery Ward & Co., 198 F. 2d 772, which was decided by the United States Tenth Circuit Court of Appeals and involved as the defendant the Montgomery Ward retail store located in Wichita, Kansas. The federal court therein directed a verdict for defendant while here tibe trial court sustained a demurrer to plaintiff’s evidence. The plaintiffs in both instances failed to establish actionable negligence on the part of the defendants.
We can only conclude the trial court was correct in sustaining the demurrer to plaintiff’s evidence and in view of this conclusion, it will not be necessary to discuss an element of contributory negligence which defendant contends was in the trial court’s consideration.
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The opinion of the court was delivered by
Schroeder, J.:
This is an action seeking to enjoin the assignment and subletting of a written lease. Appeal has been duly perfected from the trial court’s ruling on a question of law submitted at a pretrial conference upon stipulations, wherein the trial court ruled that the determination of two former actions concerning these parties did not permit the defense of res judicata in the instant action.
The controlling question is whether an appeal can be perfected from the above order prior to the entry of a final order in the case.
This appeal is a companion to the appeal in Case No. 42,366, Borgen v. Wiglesworth, 190 Kan. 367, 375 P. 2d 601, this day decided, to which reference is made for the facts giving rise to this appeal. (See finding No. 11 and conclusion No. 1 in the trial court’s quoted memorandum opinion.)
Here a ruling of law on the question of res judicata was requested and was made by the trial court prior to the trial of the case. The appellants came to this court with an appeal therefrom prior to the trial of the case, and no further appeal from such ruling has ever been perfected. After such ruling on the question of res judicata, the trial court set the case for trial. After trial appeal was perfected from the final decision by the appellees herein in Case No. 42,366, supra. A cross appeal could have been filed by the appellants herein in Case No. 42,366, supra, on the docket of this court, after the conclusion of the entire case in the lower court, but counsel apparently did not see fit to do so.
The order from which appeal has been perfected in the instant case was not one which in effect determined the action and prevented a judgment. It was not a final order as defined by G. S. 1949, 60-3303, and from which, under the preceding section of the appeal statute, an appeal may be taken.
Accordingly, we hold there is no valid appeal from the preliminary ruling of the trial court on the question of law submitted, and this appeal must be dismissed. (Borgen v. Wiglesworth, 185 Kan. 108, 340 P. 2d 365.) Similar decisions in analogous situations may be found in Hoffman v. Dautel, 190 Kan. 131, 373 P. 2d 191, and cases cited therein.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal by the state from an order of the trial court overruling the state’s motion for a mistrial, instructing the jury to return a verdict of not guilty on the principal charge set forth in the information, and discharging the defendant from the charge and the lesser included offenses therein.
An information containing one count charging the defendant with felonious assault under the provisions of G. S. 1949, 21-431, was filed in the district court. The defendant went to trial on the information, and at the conclusion of the evidence the court instructed the jury on the elements of the offense of assault with intent to kill or maim, as defined by section 21-431, and further instructed the jury that it could, if the evidence warranted, find defendant guilty of the lesser included offense of maiming, wounding or causing great bodily harm, as defined by section 21-435, or the lesser included offense of assault and battery, as defined by section 21-436. The court further instructed the jury that if the facts warranted, the defendant could be convicted of any one of the three offenses, or that the jury could acquit the defendant.
The trial court submitted to the jury six different verdict forms: one of guilty of the charge and one each for the two lesser included offenses thereof, and one of not guilty of the charge and one each for the two lesser included offenses thereof. The court did not submit a separate verdict form of not guilty. The issue squarely presented to the jury under the instructions of the court was whether the defendant was guilty of the offense of assault with intent to kill or maim, or of the two lesser included offenses of causing great bodily harm or assault and battery, or whether he was not guilty.
On May 4, 1962, the jury commenced its deliberation, and at approximately 3:00 p. m. a note was sent to the court by the jury advising that the members of the jury were unable to arrive at a verdict in the case. The jury was then called into the courtroom where the court inquired of the jury foreman whether or not the jury members were unable to arrive at a verdict of guilty on any of the three counts, to which the foreman replied that everyone could not agree on the charge but that they had reached agreement on the first count, which would be the greater offense, and were unable to agree on the two lesser charges. The court then asked if they had voted on the last charge of assault and battery, and the foreman replied this had not been done because it was their understanding from the instructions they were to reach a conclusion on the severest one and then go on to the next one, to which the court replied, “I think you are right.” The court then recessed to chambers to discuss the matter with counsel for the respective parties, after which the court decided to instruct the jury to go ahead and consider the lesser charge of assault and battery even though the members of the jury were unable to agree as to guilt or innocence on the second charge of maiming, wounding, or causing great bodily harm.
Thereafter, the jury advised the court by note that it had reached a decision of not guilty on the offense of assault with intent to kill or maim, but that it was unable to reach a decision on either of the two lesser included offenses. The jury returned to the courtroom, and the court confirmed the contents of the note with the jury fore man, after which the court, speaking of the greater offense — assault with intent to kill or maim — instructed the jurors to return to the jury room and sign the one verdict of not guilty upon which they had agreed, that of assault with intent to loll or maim.
For the first time during all this procedure the county attorney finally objected on the ground that the verdict as ordered returned constituted acquittal in the case. The county attorney then moved the court to declare a mistrial and discharge the jury for the reason that it was unable to reach a decision in the case. From an order overruling this motion, the state appeals.
After the jury returned its signed verdict of not guilty of the greater charge of assault with intent to kill or maim, defendant moved for his discharge, which was by the court sustained, and defendant was discharged from the principal offense and the lesser included offenses.
At the outset it is obvious that the trial court should have submitted but four forms of verdict: one of guilty on the main charge, one of guilty on each of the two lesser included offenses, and one form of verdict of not guilty in the event the jury failed to find the defendant guilty on either the principal charge or the two lesser included offenses. The submission of the six forms of verdict without the submission of a blank verdict of not guilty was confusing and of a certainty partially misled the jury into the resultant dilemma with which we are here confronted.
When the jury first advised the court that it was unable to arrive at a verdict, the court, in its examination of the jurors, brought out the fact that the members of the jury had reached an agreement on the principal charge and that they were unable to agree upon the first lesser included offense; whereupon, the court advised the jury to vote on the second lesser included offense and directed the jurors to return to the jury room. The jury again advised the court that it was unable to reach a decision on either of the lesser included offenses, and the court then instructed the jury to return to the jury room and sign a verdict of not guilty to the principal charge.
G. S. 1949, 60-2914, provides that a jury may be discharged by the court after they have been kept together until it satisfactorily appears that there is no probability of their agreeing. It appears from the record that the jury was unable to agree on a verdict, and so advised the court by the first note. However, after undue examination of the jury by the court, it was elicited that they had agreed on a verdict on the principal charge which had not yet been signed, and after they returned to the jury box a second time they again advised the court, under undue examination by it, that they could not reach a verdict on the two lesser included offenses, and at this juncture no verdict had been signed.
Whatever the motive of the court, and we have no doubt it was the best, its inquiry was invading the province of the jury and, in effect, dictating to them their verdict, which is a matter so delicate and important to the rights and liberty of the accused as to not be permitted. We are of the opinion that under the circumstances the proper course in an important criminal case is for the judge to inform the jury that they will be discharged on the ground it appears there is no probability of their agreeing. However praiseworthy the intentions of the trial judge, the language and spirit of our law guard too sacredly against any interference by the judge with the facts in a criminal case or any interference with the findings of the jury to permit the matter here presented to be passed over as a simple irregularity and to become precedent, which in some other case may be abused and lead to serious consequences. Trial courts cannot too strictly observe the line of demarcation between their province and that of the jury in criminal cases.
We are of the opinion that the trial court should have sustained the state’s motion to discharge the jury (G. S. 1949, 60-2914) on the ground that it satisfactorily appeared that there was no probability of the jury’s agreeing on a verdict.
In view of what has been said, other questions raised become moot. The state’s appeal on the question reserved is sustained. | [
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The opinion of the court was delivered by
Price, J.:
The question presented by these consolidated appeals is—
Who is entitled to hold the office of Workmen’s Compensation Director of the state of Kansas?
On April 13, 1959, Governor Docking appointed Elmer J. Schumacher to the office of Workmen’s Compensation Commissioner, effective May 10, 1959, for a four-year term. The appointment was made under the authority of § 16, ch. 250, Laws of 1955, appearing as G. S. 1959 Supp., 74-710, the pertinent part of which reads:
“There is hereby created the office of workmen’s compensation commissioner. The workmen’s compensation commissioner shall receive an annual salary of eight thousand dollars ($8,000) and, upon the expiration of the term of office running at the taking effect of this act, shall be appointed by the governor for a term of four (4) years, and he shall before his appointment have had a practical knowledge of the theory of workmen’s compensation. Upon the expiration of the term as aforesaid each succeeding workmen’s compensation commissioner shall be appointed and shall hold [the] office for a term of four (4) years and until his successor shall have been appointed and qualified. . . .”
Schumacher qualified, and took over and assumed the duties of the office of commissioner.
At the 1961 legislative session the above-mentioned statute was repealed by § 12, ch. 243, Laws of 1961, and in its stead § 7, ch. 243, Laws of 1961, was enacted, effective June 30, 1961. It appears as G. S. 1961 Supp., 74-710, and in pertinent part reads:
“The office of workmen’s compensation commissioner is hereby abolished and there is hereby created the office of workmen’s compensation director. The workmen’s compensation director shall receive an annual salary of ten thousand dollars ($10,000) and, upon the expiration of the term of office running at the taking effect of this act, shall be appointed by the governor with the advice and consent of the senate, for a term of four (4) years, and he shall before his appointment have had a practical knowledge of the theory of workmen’s compensation. Upon the expiration of the term as aforesaid each succeeding workmen’s compensation director shall be appointed and shall hold the office for a term of four (4) years and until his successor shall have been appointed and qualified. . . .” (Our emphasis.)
On June 21, 1961, under authority of the 1961 enactment just quoted, Governor Anderson appointed Fred W. Rausch, Jr., as Workmen s Compensation Director for a term of four years, effective July 1, 1961.
In due course Rausch took over the office, despite the protests of Schumacher who claimed — and still claims — that his appointment runs until May 10, 1963.
On June 30, 1961, Schumacher filed this action in the nature of quo warranto, and for injunctive relief, against Rausch, seeking to have the rights of the parties determined. Governor Anderson and Roy Shapiro, comptroller of the state of Kansas, also were joined as defendants.
On July 1, 1961, Rausch, while assuming the duties of Workmen’s Compensation Director, was served with a restraining order. On July 5, 1961, following a hearing, the restraining order was dissolved and Schumacher’s motion for a temporary injunction was denied. Rausch continued in, and proceeded to perform the duties of the office, over the protests of Schumacher.
The parties entered into a stipulation of facts, and on September 26, 1961, all matters in controversy were heard by the trial court and taken under advisement. On January 8, 1962, the court dismissed the action as to defendants Governor Anderson and Shapiro, and rendered judgment in favor of plaintiff Schumacher to the effect that he was entitled to the office in question. The pertinent portion of the journal entry of judgment reads:
“It Is, Therefore, Hereby Ordered, Adjudged and Decreed: That the plaintiff, Elmer J. Schumacher, is now and has at all times since his appointment on May 10, 1959, been entitled to the office in question; that under the express provisions of Chapter 243, Laws of 1961, the title of the office of Workmen’s Compensation Commissioner is changed to that of Workmen’s Compensation Director and the term of the incumbent Commissioner is specifically recognized by the State Legislature and continues until its expiration on May 10, 1963. The plaintiff as incumbent Workmen’s Compensation Commissioner is held to have assumed the title, powers and duties of Workmen’s Compensation Director upon the effective date of the act, which was June 30, 1961; that plaintiff is hereby restored to his office together with all the files and records of said office, and he shall receive all the salary and emoluments of this office from the date of judgment.”
On January 9, 1962, defendant Rausch appealed from the adverse judgment — the appeal being docketed as case No. 42,989. On January 15th this court granted a stay of execution and Rausch has continued in the office pending disposition of the appeal.
On February 16th Schumacher filed a notice of cross-appeal from various orders adverse to him made during the litigation. On March 7th Schumacher filed a direct appeal from the identical orders and rulings from which he had previously cross-appealed. His appeal was docketed as case No. 43,096. Ry order of this court the two appeals were consolidated.
On May 17th Rausch filed a motion to dismiss Schumachers appeal in case No. 43,096. On May 22nd the motion was denied with leave to renew at the hearing on the merits. Upon oral argument of the appeals, on June 8th, the motion to dismiss was renewed, and we now dispose of it.
G. S. 1949, 60-3309, provides that an appeal to this court shall be perfected within two months from the date of the judgment or order from which the appeal is taken.
G. S. 1949, 60-3314, reads:
“When notice of appeal has been served in a case and the appellee desires to have a review of rulings and decisions of which he complains, he shall within twenty days after the notice of appeal is filed with the clerk of the trial court, give notice to the adverse party, or his attorney of record, of his cross-appeal and file the same with the clerk of the trial court, who shall forthwith forward a duly attested copy of it to the clerk of the supreme court.” (Our emphasis.)
On January 9tb Rausch filed his notice of appeal from the adverse judgment of January 8th. Considerably more than twenty days later, Schumacher, on February 16th, filed his notice of cross-appeal. Under the plain mandate of the statute (60-3314, above) the purported cross-appeal was not filed in time and may not be considered. (Septer v. Boyles, 149 Kan. 240, 244, 86 P. 2d 505; Jones v. Pohl, 151 Kan. 92, 97, 98 P. 2d 175; Giltner v. Stephens, 163 Kan. 37, 48, syl. 4, 180 P. 2d 288; McComb v. Stanolind Oil and Gas Co., 164 Kan. 1, syl. 2, 186 P. 2d 574.)
The further question remains:
May Schumacher’s “direct appeal” (docketed as case No. 43,096), filed on March 7th — and therefore within two months (60-3309, above) from the judgment of January 8fh — be considered?
In our opinion it may not be.
As stated, Rausch filed his notice of appeal on January 9th. Under the plain language of the statute (60-3314, above) Schumacher had twenty days from that date within which to cross-appeal from any orders adverse to him. He did not do so within the time allowed. To permit him later to file a “direct appeal” would result in circumventing and extending the statutory time limit for a cross-appeal— and we know of no authority for such procedure.
It follows, therefore, that Schumacher’s cross-appeal in case No. 42,989, and his appeal in case No. 43,096, must be and are hereby dismissed.
This brings us, then — to consideration of Rausch’s appeal.
At the time of rendering its judgment that Schumacher was entitled to the office in question, the trial court filed á comprehensive memorandum opinion dealing with various questions of law raised by the parties. As we read it, however, and the journal entry of judgment (above), the real basis of the trial court’s ruling appears to be that because of the inclusion of the words—
“. . . upon the expiration of the term of office running at the talcing effect of this act, . . .”
in the 1961 enactment (G. S. 1961 Supp., 74-710, above), the legislature expressly recognized that no substantial change was being made in the office of workmen’s compensation commissioner by simply changing the name to workmen’s compensation director; that the legislature, by the enactment of the above-mentioned language, intended that the office of workmen’s compensation director was in actuality a continuation of the old office of workmen’s compensation commissioner, and that tihe then incumbent commissioner should continue to serve in the office as director until expiration of the term existing at the time of the taking effect of the act, that is, for four years from May 10, 1959, that being the effective date of Schumacher’s appointment as commissioner.
Before discussing the specific language of the 1961 enactment in question we mention a few fundamental principles as having a bearing on the over-all question presented.
One is that courts are concerned only with the power of the legislature to enact statutes, and not with their wisdom, and it is not the function of the courts either to approve or condemn legislative policy. (State, ex rel., v. City of Pittsburg, 188 Kan. 612, 364 P. 2d 71.)
Another is that our constitution limits, rather than confers power, and thus courts look to see what it prohibits, instead of what it authorizes. (Wulf v. Kansas City, 77 Kan. 358, 367, 94 Pac. 207.)
In Jansky v. Baldwin, 120 Kan. 332, 243 Pac. 302, 47 A. L. R. 476, (opinion denying rehearing, 120 Kan. 728, 244 Pac. 1036), it was said:
“Under our form of government all governmental power is inherent in the people. Some governmental powers are delegated to congress, or to the federal government, by our federal constitution; those not so delegated are retained by the people. Hence, congress has no legislative power not granted to it by the federal constitution. This is not true of a state constitution. Since the people have all governmental power, and exercise it through the legislative branch of the government, the legislature is free to act except as it is restricted by the state constitution, and except, of course, the grant of authority to the federal government by the federal constitution.” (p. 334.)
Generally speaking, that which is purely a creature of the legislature is subject not only to the legislative power to create, but also to the legislative power to modify, dissolve or abolish. (State, ex rel., v. School District, 163 Kan. 650, 185 P. 2d 677.)
Article 2, § 19, of our constitution authorizes the legislature to provide for the election or appointment of all officers and the filling of all vacancies not otherwise provided for in the constitution, and Article 15, § 1, thereof provides that all officers whose election or appointment is not otherwise provided for shall be chosen or appointed as may be prescribed by law.
In support of his position Rausch calls our attention to the fact that the words—
“. . . upon the expiration of the term of office running at the taking effect of this act, . . .”
first appeared in § 1, ch. 396, Laws of 1947, found at G. S. 1947 Supp., 74-710, which raised the salary of the workmen’s compensation commissioner and increased the term of office from two to four years. In 1951 the salary of the commissioner was again increased (G. S. 1951 Supp., 74-710). In 1953 the salary of the commissioner was again increased (G. S. 1953 Supp., 74-710), and the same was true in 1955 (G. S. 1955 Supp., 74-710). (The 1955 enactment was still in effect in 1959 [G. S. 1959 Supp., 74-710] and is the section under which Schumacher was appointed.) The quoted words which first appeared in the 1947 enactment were carried over and included in the enactments of 1951, 1953 and 1955, and, as heretofore noted, also are contained in the 1961 enactment under consideration. In this connection our attention is directed to that portion of G. S. 1949, 77-201, First, which reads:
“. . . The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.”
and to Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197, where it was held:
“The usual rule of statutory construction is that language of an earlier statute which is preserved in an amendment is deemed to speak as of the time of the original enactment, and not of the later one. (G. S. 1949, 77-201, First.)” (syl. 7.)
and thus it is argued that the quoted words in question have reference only to the office of commissioner — which is now nonexistent.
In addition to such contention — which we feel has merit — we believe there is a patent and compelling reason why the judgment of the trial court cannot be upheld.
The 1961 enactment expressly abolished the office of commissioner. Therefore, as of June 30,1961, the effective date of the act— no such office existed. There was no term of office as director “running” as of June 30th, for the office of director did not come into being until that date. There is nothing in the act which automatically transfers the incumbent commissioner to the office of director, and to say that Schumacher, as commissioner, should continue to serve until the expiration of the term for which he was appointed as commissioner — would mean that he would be occupying a nonexistent office.
In a situation such as this — motives of the legislature are not subject to court review. There is nothing in the constitution which prohibits the legislature from abolishing the office of commissioner and creating the office of director. That which the legislature had the power initially to create — was subject later to being abolished.
Our conclusion is that from and after July 1, 1961, Rausch has been entitled to hold the office of director.
The cross-appeal by Schumacher in case No. 42,989 is dismissed. The direct appeal by Schumacher in case No. 43,096 is likewise dismissed. As to the appeal by Rausch in case No. 42,989, the judgment of the trial court is reversed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action brought by plaintiff (appellant) D. O. Concannon, administrator of the estate of M. Z. Hall, Jr., a deceased farm laborer, against deceased’s employer, Ross Taylor, defendant (appellee), for damages for personal injuries and wrongful death. The case was tried to a jury, which returned its general and special verdict in defendant’s favor.
The facts in the instant case are not in dispute. The defendant is the only living eyewitness to the tragedy. The death of the employee resulted a few days after the occurrence of an explosion and fire. The plaintiff, in attempting to establish his case, used the defendant as his only witness about the facts surrounding the accident. The defendant testified, in substance, that about July 5, 1955, he employed Hall to work on his farm as a resident farm laborer at an agreed monthly salary of $200, and to furnish him with a house, electricity, water, a milk cow and some chickens; that Hall’s duties were general farm work, and that he continued with such duties until the date of his death. The defendant testified that he managed the operation of the farm; that he supervised and worked along with Hall; that Hall did what he was told to do and his work was very satisfactory; and that Hall exercised caution a reasonable, prudent farm laborer would exercise in performing his work up to the time of his death. Defendant further testified that Hall’s duties included the prevention of pilferage or thievery in the farm buildings, and helping to take care of the cattle at all times, whether defendant was present or not; that Hall was to do anything there was to be done on a farm consisting of ten quarter sections; that defendant had no other help other than Hall; and that Hall was expected to lock up the buildings, including the roundtop building where the fire occurred, every night after he put away his car.
It was the further testimony of the defendant that he had no equipment using liquefied petroleum gas on the farm during the time Hall worked for him until just a short time before the accident. Defendant had previously used two self-propelled gasoline combines on his farm. One had become inoperative. To replace this combine defendant purchased from a neighbor a used combine that was equipped with liquefied petroleum gas fuel (hereinafter referred to as LP gas). Defendant had intended to change it over to gasoline, but had not done so. Defendant’s neighbor loaned him an LP gas supply tank, and defendant and Hall loaded this tank onto Hall’s pickup truck. The gas was used in the combine operated by Hall in the cutting of the maize crop.
The evidence disclosed that Hall had had previous experience in the use of LP gas; that he had driven combines and tractors using such gas while in the employ of other farmers; that he had told one farmer he knew how to handle it. The evidence further disclosed that the defendant had had no experience in the use of such gas.
On the date of the accident, December 2, 1958, defendant and Hall finished cutting the maize and took the two combines — one powered by gasoline and the other powered by LP gas — to the house, and about 5:25 p. m. the defendant and Hall were in the roundtop building on the farm. Hall’s pickup truck, with the borrowed LP gas supply tank still loaded on it, was parked ins’de the roundtop building. A part of the floor of this building was concrete and the balance was dirt. Defendant had had trouble for years with rats and rodents in the building. The rats had made six holes under the concrete floor to the right of the pickup truck. Defendant and Hall had previously used gasoline, oil and water in these holes in an attempt to rid the building of the rodents, and on this date, December 2, for the first time, they tried LP gas for this purpose. Defendant said, “This would be a good time to kill our rats. We got the butane tank right here.” Located to the left of the pickup truck in the building, approximately thirty feet from title rat holes, was a natural gas stove that had been burning for several hours. Defendant told Hall, ‘We better turn the stove off because I heard that butane was real explosive, or dangerous.” Hall turned off the gas burner. Defendant then took the hose from the LP gas supply tank and put some gas in each of the rat holes, beginning with the farthest one from the tank. As defendant put the gas in the holes Hall stomped dirt into each, as he had done when they had used gasoline to exterminate the rats. The operation was completed in five to ten minutes, and defendant then hung the hose back on the tank and left the building. As he was leaving he saw Hall get into the pickup truck, which was loaded with the LP gas tank, but said nothing to him. Defendant further testified that when he had reached a distance of about thirty or forty yards from the entrance to the building he heard Hall attempt to start the truck and at the same instant heard the explosion and “the whole front of the building went up like throwing a match into some gasoline.” Hall was severely burned and injured, from which injuries he died forty-eight hours later; but immediately after the explosion and fire Hall assisted defendant in removing the pickup truck loaded with the LP gas tank from the building.
The expert testimony of a chemist revealed that LP gas is a mixture of butane and propane, both of which gases are heavier than air; that such gas is inflammable when it is mixed with oxygen and might be ignited by either heat or a spark; that contact with a hot metal surface or the spark from an electric motor might ignite such a mixture; that the principal uses of the gas are for heating, and fuel for engines; and that LP gas is not commonly used commercially as a fumigant.
At the close of all of the evidence the trial court overruled plaintiff’s motion for an order to direct a verdict in plaintiff’s favor on the issue of defendant’s liability and to submit the case to the jury on the issue of damages only. The plaintiff requested the trial court to give certain requested instructions and objected to other instructions given by the trial court. Also, plaintiff objected to certain special questions submitted by the trial court, all of which will be dealt with later.
The case was submitted to the jury, which returned a general verdict in favor of the defendant and answers to the following interrogatories submitted to it by the court: “1. What caused the gas in the round top building to explode? Answer: Attempting to start pickup. 2. Who had the most experience with the use of liquefied petroleum gas, Ross Taylor or M. Z. Hall, Jr.? Answer: M. Z. Hall, Jr. 3. Did M. Z. Hall, Jr., know the danger of using liquefied petroleum gas to the same or to a greater extent than Ross Taylor knew of such danger? Answer: Yes. 4. Did M. Z. Hall, Jr., make any objection to using liquefied petroleum gas to kill rodents? Answer: No. 5. Did Ross Taylor instruct M. Z. Hall, Jr., to do any additional work after they had finished using the gas to kill rodents? Answer: No. 6. Was Ross Taylor negligent in using liquefied petroleum gas to kill rats? Answer: Yes. 7. If your answer to Question 6 is yes, was that negligence a proximate cause of the injuries and damages sued for in this case? Answer: No. 8. Was Ross Taylor negligent in failing to warn M. Z. Hall, Jr., of the danger of explosion in the round top building after so using the gas? Answer: No.”
From an order overruling his posttrial motions, plaintiff has appealed.
It is elementary that a duty rests upon the master not to expose the servant, in the discharge of his duty, to perils and dangers against which the master may guard by the exercise of reasonable care. It is also the masters duty to provide safe and suitable machinery, tools and implements to work with, with reasonable safe materials to work upon. (Taylor v. Hostetler, 186 Kan. 788, 796, 797, 352 P. 2d 1042; Fishburn v. International Harvester Co., 157 Kan. 43, 45, 138 P. 2d 471.) In addition, it has also been held it is not only the duty of a master to provide for employees a safe place to work, and suitable tools, etc. with which to work, but that the employees may enter upon the discharge of their labor assuming these duties have been performed by the employer. (Fishburn v. International Harvester Co., supra, pp. 45, 46.) It has also been decided that ordinary risks assumed by an employee are those only which occur after due performance by the master of those duties which the law imposes on him. (Fishburn v. International Harvester Co., supra, p. 46.) Moreover, in this jurisdiction the servant, in the contract of employment, assumes all of the ordinary risks of employment, and in the exercise of ordinary care he must foresee that the negligence of those with whom he works may result in injury to him. (Taylor v. Hostetler, supra.) It has also been held it is the duty of the master to warn his employee of the hazardous conditions.
In view of the mentioned rules, plaintiff contended that the trial court should have instructed the jury as a matter of law that the proximate cause of the injuries and death of Hall was the negligence of the defendant in injecting the LP gas into the rat holes under the floor of the building, and relied on Finson v. City of Topeka, 87 Kan. 87, 123 Pac. 723, to sustain his contention. In the Finson case the plaintiff brought an action for the wrongful death of her husband against his employer, the City of Topeka. Her husband was killed by an explosion of gas in a cistern where he was at work. The court held the city liable by reason of its negligence in not furnishing the employee a reasonably safe place in which to work. There was evidence tending to show that the immediate cause of the explosion was that another employee struck a match for the purpose of lighting a cigar. However, the court held as a matter of law that the proximate cause of the injury sustained in the explosion was the negligent act of permitting the gas to escape into and to remain in the cistern. In the opinion the court stated:
“Where gas of such highly inflammable character as to be liable to explode when brought into contact with fire is negligently allowed to escape into a confined place like a room or cistern, the proximate cause of its explosion is held to be the negligent act of permitting the gas to escape into and to remain in such a place. An explosion of subtle and dangerous gases when thus confined is regarded as the natural and probable consequence which might reasonably have been foreseen. This principle was recognized and followed in the recent case of Luengene v. Power Co., 86 Kan. 866, 122 Pac. 1082, and it was held that the person injured could recover in an action against the gas company without producing evidence to show by what means the gas became ignited.” (p. 92.)
The majority of the court is of the opinion that the Finson case is not applicable under the facts in the instant case. In that case the employee had no knowledge that there was any gas present in the cistern. In the instant case Hall was not only aware of the fact that LP gas was being used in the manner as heretofore related but also assisted in putting the gas into the holes. He had previously used LP gas on numerous occasions for several years, was familiar with its use, and had formerly told one witness that he needed no explanation about how to use the gas. Moreover, the defendant told Hall prior to the use of the gas, “We better turn the stove off because I heard that butane was real explosive, or dangerous,” and Hall himself extinguished the fire in the stove. Under such circumstances it cannot be said as a matter of law that the sole and proximate cause of the explosion and resultant death of Hall was the injection of the LP gas into the rat holes. We are of the opinion that the questions as to whether Hall assumed the risks incident to the employment and whether he was contributorily negligent under the circumstances were proper questions to be submitted to the jury. The question of proximate cause is almost always a question for the jury. (Bateman v. Crum, 186 Kan. 1, 348 P. 2d 639; Applegate v. Home Oil Co., 182 Kan. 655, 662, 324 P. 2d 203.) In State Farm Mutual Automobile Ins. Co. v. Cromwell, 187 Kan. 573, 358 P. 2d 761, we stated that the question of negligence, including the determination of proximate cause, ordinarily rests in the province of the jury. The trial court did not err in overruling plaintiff’s motion for an order directing a verdict in his favor on the issue of defendant’s negligence and in not submitting to the jury the question of plaintiff’s damages only.
Plaintiff predicates error on the trial court’s giving instruction No. 6, which stated: “Where an employee has ceased working for an employer or under his direction and control and was acting outside of the scope of his employment or said employee was working for his own benefit then he cannot recover for injuries sustained,” and at the same time objects to special question No. 5 before related. It may be stated that there was no evidence whatsoever to support the instruction nor to support the giving of special question No. 5. It is paradoxical to say that a resident farm laborer has working hours from 8:00 to 5:00 when the undisputed evidence in this case was that Hall was employed to work for $200 a month, that there were no set hours, and that his duties required twenty-four-hour vigil. However, this court is of the opinion that the giving of the instruction and the asking of the special question was not prejudicial error requiring a reversal.
Appellant next contends the trial court erred in submitting special questions Nos. 2 and 3 to the jury. A review of the record reveals that on several occasions Hall had stated he knew how to use LP gas and needed no instructions. The evidence went to the question of whether or not Hall knew of the danger involved in the use of LP gas and whether or not he assumed the risk in using it. Under such circumstances we are of the opinion the two questions were not erroneously given.
We are of the opinion that the instructions given sufficiently covered the questions at issue and the substance of those requested by the defendant.
After a careful review of the entire record, the majority of the court is of the opinion that plaintiff has failed to make it clearly appear there was any prejudicial error that would justify a reversal of the judgment. | [
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The opinion of the court was delivered by
Jackson, J.:
Appellants who are the plaintiffs in the court below are lessors in a certain lease covering a rather large lot which is now within the city of Lawrence. In April, 1957, plaintiffs leased this lot to Wiglesworth and McClure, who are made defendants in the present action. We should observe at the start that this case or allied litigation has been before this court previously, see Borgen v. Wiglesworth, 185 Kan. 108, 340 P. 2d 365, and Borgen v. Wiglesworth, 189 Kan. 261, 369 P. 2d 360. Moreover, there is another appeal pending before the court at the present time, No. 42,270, Borgen v. Wiglesworth, ante, page 365, this day decided.
All these cited cases involve the same difficulty between the plaintiffs and defendants. As we understand the present case, it was one simply drawn up by new pleadings and submitted to the trial court with stipulations and an agreement that the evidence in the case in 189 Kan. 261, supra, would be used to supply the facts for the present action. In this action it is asserted that the lessees have been subletting the real estate, and it-is prayed that they be enjoined from carrying out such subleases.
The learned trial judge, after considering the case, handed down a memorandum opinion in which he makes findings of fact and con elusions of law and portrays the situation in the clearest manner possible. Therefore, we set out the memorandum below:
“On September 16, 1960, the court filed a memorandum opinion and entered judgment thereon on the 20th day of September, 1960. Said memorandum opinion is as follows:
“This case was tried to the Court on June 16, 1960 and has since been under advisement for decision. The briefs which counsel requested leave to submit have been filed and considered.
“In this memorandum the defendant Billy Wiglesworth will be referred to as W; the defendant Merle McClure will be referred to as M; the defendant Burton H. Lee will be referred to as L; the defendant William F. Boswell will be referred to as B; and the defendants Billy Wiglesworth, Burton H. Lee and William F. Boswell, a partnership dba Wash-O-Matic, will be referred to as the partners.”
From the evidence submitted, the following findings are made;
“1. On April 1, 1957 plaintiffs leased a tract of land 167 x 100 feet to W and M for a term of seven years with the option to renew the lease for two additional five year terms. Under the terms of this lease W and M agreed to construct a building for car washing and car servicing purposes, to pay the taxes on said tract for 1951 and subsequent years, and to pay rent at the rate of $50 per month beginning April 1, 1959, but they had the right to give up the lease at any time. This lease has been of record in the office of the Register of Deeds of this county since April 23, 1957. Under the lease W and M are expressly forbidden to use the leased premises for the operation of a restaurant or cafe business.
“2. W and M constructed the building as required by the lease and began the business of washing cars in the early part of June, 1957, which business they continued to operate until sometime in October, 1957 at which time they stopped.
“3. Among other provisions contained in the lease is a covenant in which W and M agree that they will not assign their lease or sublet the property so leased until they have been given written permission from plaintiffs. The lease does not, however, define the respective rights and liabilities of the parties in the event said covenant against assignment or subletting should be breached. The only provision for a forfeiture contained in said lease pertains to nonpayment of rent.
“4. At or shortly after W and M stopped operating the car wash business, M sold out to W and thereafter ceased to have or claim any interest in said lease.
“5. Sometime between the time W and M finished construction of the car wash building and March of 1958, the leased premises were annexed to the City of Lawrence.
“6. Shortly after W and M quit the car wash business, W approached plaintiff, Roy Borgen, about the matter of a new lease to himself and L and B under which the building to be constructed thereunder could be used for any lawful business purpose except that of operating a cafe or restaurant. Although said plaintiff initially evidenced sufficient interest in this proposition to suggest that W submit a proposed lease, plaintiffs ultimately refused to enter into the same.
“7. On March 26, 1958 W was ^granted a permit by the City to convert the building in question from a car. wash to a launderaide and shortly thereafter began the work required to effect such conversion.
“8. Sometime in March, 1958 W and L and B entered into a partnership for the purpose of operating an automatic laundry service in the premises which plaintiffs had leased to W and'M. By the terms of this contract W sold a ürds interest in the car washing building to L and B and W, L and B each had a Krd interest in the automatic laundry business. The partnership contract had a provision which is intended to fix the duration of the partnership but the date thereof is blank and there is nothing in the evidence to indicate when the arrangement is to terminate. Although W at first contended that he was the sole owner of the launderaide business he finally admitted that L and B were equal partners in the ownership and management thereof. The building was converted for use as a launderaide within a short time after the formation of the partnership, since which time the partners have been operating such business therein. The partnership contract contained a clause which provided that should W’s lease from the plaintiffs be declared void within one year after the date of said contract then all machinery, fixtures and equipment of the laundry business would become the property of L and B.
“9. On April 16, 1958 plaintiffs brought an action in this court (No. 21225) against W and M to enjoin them from engaging in any business except that of car washing and car servicing, to enjoin them from altering the building so as to make it useable for any business other than that of car washing or car servicing and for reformation of the lease if prerequisite to the relief plaintiffs sought. In the trial of this action, which was held on March 26, 1959, evidence was adduced which disclosed the facts heretofore detailed in reference to W acquiring the interest of M in the lease and in regard to the partnership which W had entered into with L and B, but the judgment ultimately entered expressly excluded an adjudication of any dispute about such matters because they were not within the scope of the pleadings. This was the first time plaintiffs had either notice or knowledge of such acts on the part of W and M, to which acts plaintiffs had not consented, either verbally or in writing. From an adverse judgment entered on December 12, 1959, plaintiffs appealed and such appeal is now pending before the Supreme Court.
“10. On March 31, 1959, plaintiffs filed an action in this court (No. 21477) against W and M for the cancellation of the lease between such parties on the theory that this relief was warranted under the provision of said lease by the terms of which W and M agreed not to assign their lease or sublet the property until granted written permission so to do by plaintiffs. Defendant’s demurrer to plaintiff’s petition was sustained and no appeal has been taken from such ruling.
“11. On February 8, 1960, plaintiffs filed the instant action in which they pray judgment that defendants W and M be permanently enjoined from transferring or assigning any interest in the lease to each other or to any other person or entity without the written consent of the plaintiffs; that defendants L and B as individuals and defendants W, L and B as partners be permanently enjoined from exercising any supposed or presumed rights which they may claim in said leasehold by reason of any transfer or assignment to them by the defendant W and/or M, and from accepting and exercising or attempting to exercise any assignment or rights thereunder in the future; and that plaintiffs have such other and further relief as the facts may determine.
“Conclusions
“1. The court adheres to its prior ruling that the judgments in cases numbered 21225 and 21477 are not res judicata to the instant case.
“2. Kansas is thus far committed to the rule that covenants against assignment or subletting, being restrictions upon the rights of alienation, must be strictly construed against the lessor and are not extended or enlarged by implication. (Lawrence v. Cooper Independent Theaters, 177 Kan. 125 at 130, 276 P. 2d 350). So construed the acts which plaintiffs charge as being in violation of the covenant against assignment and subletting, to which reference is made in the findings, do not constitute a breach thereof. (See: 17 ALR 185 et seq; also Hunter v. Johns, et al. (Pa.), 119 A. 605; Paul Pleating & Stitching Co., Inc. v. Levine, et al., 242 N. Y. S. 729; Morris Glick, Inc. v. Grubman, et al., 56 N. Y. S. 2d 324; 244 West 27th Street Corp. v. Lieberman, et al., 93 N. Y. S. 823; DeAngeles v. Cotta, et al. (Cal.), 217 P. 821; Safeway Stores, Inc. v. Buhlinger (Cal.), 259 P. 1013; Hoop, et al., v. Tate, et al. (Cal), 231 P. 2d 560.)
“Judgment will be entered for the defendants for costs on September 20, 1960."
The first conclusion above is probably correct, but we do not need to discuss it.
As to the second conclusion, the cases cited by the court seem ample to sustain the position taken. We believe the cases speak for themselves. We are convinced, as found by the trial court, that under the facts of this case, the plaintiffs are not entitled to enjoin the defendants (Borgen v. Wiglesworth, 189 Kan. 261, Syl. ¶ 4, 369 P. 2d 360) and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
Although the preliminary procedural aspects of this case were somewhat out of the ordinary — essentially the action was •one by an injured workman against alleged negligent third party tort-feasors to recover for his injuries — under the provisions of G. S. 1959 Supp. 44-504.
Because of the disposition we feel compelled to make of the appeal only a brief statement of the case is necessary.
Plaintiff Larsen was an oil-field worker. Named as defendants in his petition were his employer, B-K Well Service — its insurance carrier, Employers Mutual Casualty Company — and Herndon Drilling Company. Herndon was charged with negligence, and the petition sought an adjudication of the rights of the employer and its insurance carrier. The employer and its insurance carrier filed a cross-petition against their codefendant Herndon — and against Lynes, Inc., alleging that plaintiff’s injuries were caused by the combined negligence of Herndon and Lynes. The cross-petition sought recovery of the amount paid to plaintiff under the workmen’s compensation act, and also sought damages for plaintiff for his injuries.
Following various rulings concerning the pleadings and the right of cross-petitioners to bring Lynes into the case as a defendant, issues were joined and the case proceeded to trial by a jury in June, 1961. After a two-day trial the jury returned special findings and a general verdict for plaintiffs (cross-petitioners) against both Herndon and Lynes. They have appealed — and each specifies numerous errors.
The joint abstract of Herndon and Lynes was filed in this court on February 10, 1962. In due course the appeal was set for hearing at the June, 1962, session. Herndon filed its brief on April 28, and Lynes filed its brief on May 2.
On May 19 cross-petitioners (hereafter referred to as plaintiffs) filed a motion in this court to dismiss the appeals of Herndon and Lynes “for the reason that said appellants have not filed an official transcript of the testimony and proceedings had in the trial of this case with the Clerk of the trial court, as required by Section 60-3311, G. S.”
In response to the motion to dismiss, counsel for Herndon and Lynes, on May 22, filed in this court an affidavit, dated May 21, stating in substance:
That it was their understanding at the time transcripts of the trial were ordered that an original or copy of such transcript would be filed by the reporter with the clerk of the district court, but apparently there was a misunderstanding on the part of someone due in part to the multiple parties involved, and that they first learned on May 21 that the transcript had not been filed with the clerk of the district court, and that as of May 21 they mailed the original transcript for filing with such official. That they have prepared and filed an abstract in the case which, to the best of their ability, was fully adequate to cover all questions involved in the appeal, and that such abstract was served on the appellees on February 13. That the court reporter for the trial court prepared an extra copy of the transcript and they assumed that such copy was available to counsel for appellees. That they (counsel for appellants) are willing to give appellees whatever time they wish in order to prepare a counter abstract and are willing to waive the failure of appellees to file a counter abstract within the proper time. That appellees have not been prejudiced by the failure to file a copy of the transcript and they (appellants) are willing to consent to a continuance of the hearing of the appeal if desired by appellees.
On May 22 this court, upon consideration of the motion to dismiss and the affidavit filed in response thereto — denied the motion to dismiss.
On May 24 plaintiffs filed a motion seeking a rehearing on their motion to dismiss, and requesting permission to present argument on the motion at the time the appeal was set for hearing — June 6.
On May 24 — considering the matter on the papers filed — the motion for rehearing on the motion to dismiss was denied.
On May 25 plaintiffs filed their counter abstract and brief. The “counter abstract” consists only of their motion to dismiss the appeal because of failure to file the transcript as required by G. S. 1949, 60-3311.
The appeal was argued on June 6, at which time counsel for plaintiffs — as they had the right to do — again urged that the appeal be dismissed.
The statute in question reads:
“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.” (Our emphasis. )
In their brief — after citing several cases in support of their motion to dismiss — counsel for plaintiffs say:
“Appellees have been prejudiced because of the failure to file a transcript. The exact extent we are unable to inform the court as we have had no opportunity to examine the transcript and can not trust our memories. Carl Larsen, the chief beneficiary of the judgment is financially unable to procure a copy of transcript. In all probability the Employers Mutual Casualty Company would have advanced the necessary funds to procure a copy. However, the attorneys relied upon appellants filing a transcript until it was too late for a transcript to be of any benefit. The statute is plain and the attorneys had a right to assume that the transcript would be filed. Why wasn’t it filed?
“The attorneys for appellants profess to be devotees of strict construction and strict following of the provisions of the code and then they flagrantly fail to follow one provision. Under strict construction and strict following of the code the appeals certainly should be dismissed.”
The various circumstances under which an appellee has attempted to invoke the plain wording of the statute in question, and thus to secure the dismissal of an appeal — have been numerous.
In Hanson v. Kramer, 131 Kan. 491, 292 Pac. 788 (appeal dismissed 284 U. S. 585, 76 L. Ed. 506, 52 S. Ct. 128), although no transcript was filed, nevertheless the appellee in some manner obtained it and filed a counter abstract. In view of the circumstances, the motion to dismiss the appeal was denied.
In Johnson v. State Highway Comm., 148 Kan. 489, 83 P. 2d 619, there was a motion to dismiss the appeal because of appellant’s failure to file the transcript in compliance with the statute. Under the facts and circumstances related on page 490 of the opinion, the motion to dismiss was denied and the appeal was heard on the merits. In commenting on the matter, however, it was said:
“lust why appellant failed to comply with the plain provisions of the statute we are not advised. An appellee is entitled to the benefit of a transcript. That is the plain purpose of the statute. It was not intended the appellee should be restricted to the contents of an abstract prepared by the adverse party.” (p. 489.)
In Boggs v. City of Augusta, 180 Kan. 831, 308 P. 2d 72, the original transcript was not filed with the clerk of the district court until a date only nine days prior to the date the appeal was set for hearing — January 25, 1957. In denying appellee’s motion to dismiss and finding that appellee was not prejudiced with respect to the preparation of a counter abstract, the opinion notes that the official court reporter had delivered a true, correct and certified copy of the original transcript to counsel for appellee as early as April, 1956.
In Emond v. City of Wichita, 185 Kan. 720, 347 P. 2d 256, the plaintiff-appellee moved to dismiss the appeal because appellant had failed to file a transcript in the office of the clerk of the district court as required by the statute. In denying the motion to dismiss and holding that no prejudice was shown, it was said:
“However, plaintiff filed a counter abstract in which reference was made to page numbers of the transcript. While statutes and court rules relating to appellate procedure should be meticulously followed, this court has been reluctant to dismiss an appeal because of such omission as here claimed by plaintiff unless the complaining party has been prejudiced thereby.” (p. 720.)
In each of the foregoing cases it will be seen that under the facts and circumstances no prejudice to the appellee was found to exist.
In Lasnier v. Martin, 102 Kan. 551, 171 Pac. 645, it was claimed that no transcript of the evidence had been “provided” by the appellants. In denying the motion to dismiss the appeal, it was held:
“Failure to provide a transcript of the evidence does not necessarily require the dismissal of an appeal; it merely excludes from the scope of the review those features of the lawsuit dependent thereon.” (syl. 1.)
and said:
“In this case, apparently, there was some evidence introduced at the trial, but we do not discern its relevancy to the matters now urged upon our attention. (pp. 552, 553.)
In Putnam v. City of Salina, 136 Kan. 637, 17 P. 2d 827, the appellees moved to dismiss the appeal on the ground that appellants “have failed to procure and file a transcript of the testimony.” The court noted, however, that in their brief and argument appellees made repeated references to the evidence, and held that under the facts and circumstances the want of a transcript of the evidence did not justify a dismissal but that it did exclude from the scope of review those features of the case dependent upon the evidence.
In Schreiner v. Rothgarn, 154 Kan. 20, 114 P. 2d 834, the claim was made that no transcript of the record had been provided which would enable this court to review alleged errors. The rule announced in the Lasnier and Putnam cases, above, was adhered to.
In Kininmonth v. Carson, 156 Kan. 808, 137 P. 2d 173, the appeal was sought to be dismissed because of the failure of appellants to obtain a transcript of the evidence and to file it with the clerk of the district court. The appeal was not dismissed but it was held that under the statute (60-3311) it is the duty of an appellant to cause a transcript to be made, certified to and filed, and that when such is not done this court will not review any action of the trial court that requires an examination of the evidence.
To substantially the same effect are In re Estate of Fitzroy, 172 Kan. 339, syllabi 1 and 3, 240 P. 2d 163, and Matthews v. Jackson, 176 Kan. 397, 271 P. 2d 798.
In still another group of cases the claim was made by appellee that the transcript — although filed — was inadequate or incomplete. We mention but a few.
In Mercer v. Kirkwood, 147 Kan. 637, 77 P. 2d 929, the appeal was dismissed for the reason that the transcript was incomplete and insufficient to show all of the evidence pro and con which pertained to the controverted question of fact.
In Barker v. Chicago, R. I. & P. Rly. Co., 158 Kan. 549, 148 P. 2d 493, appellants raised only two questions on appeal — that the trial court erred in overruling their demurrer to the plaintiff’s evidence, and in refusing to instruct the jury to return a verdict in their favor. The appellee moved to dismiss the appeal on the ground appellants had not caused a complete transcript of the evidence to be prepared and filed. The motion to dismiss was sustained, and in the course of the opinion it was said:
“The rule is that to obtain a review of questions depending on the evidence the burden is on the appellant to produce a transcript containing sufficient evidence to establish his position beyond question. This he may do by a complete transcript or by a partial one on agreement between the parties that it contains all evidence material to the issues. . . . Moreover, without a transcript containing all evidence material to the issues there would be no sufficient record to which an appellee could turn in order to properly prepare his counter abstract.” (p. 554.)
Crowder v. Lindbergh, 175 Kan. 671, 265 P. 2d 851, is to the same effect, where it was held that it is the duty of appellant to provide an official transcript of all proceedings necessary for a review of the judgment, and that unless the parties agree by stipulation that a transcript of certain portions of the record is not necessary the burden is upon the appellant to obtain a transcript containing sufficient evidence to establish his position beyond any question. The appeal was dismissed.
In the recent case of Zerger v. Stucky, 186 Kan. 142, 348 P. 2d 612, the transcript filed by appellant was not only insufficient to enable the appellee to prepare a counter abstract therefrom, but also, as abstracted, was insufficient to enable this court to review tire proceedings below and the questions presented on appeal. In dismissing the appeal because of appellant’s failure to comply with the statute in question, it was held:
“It is the duty of an appellant to procure and file with the clerk of the district court an official transcript of such proceedings as is necessary for a review of the judgment rendered and sufficient to establish his position beyond question.” (syl.)
See also In re Estate of Rosey, 187 Kan. 254, 356 P. 2d 849.
The conclusion to be drawn from the foregoing cases appears to be that each was more or less decided on the basis of its particular facts and circumstances. In some there was an utter lack of a showing of prejudice sufficient to justify a dismissal. In others — the appeal was not dismissed — but the scope of review was restricted to those matters not dependent on evidence. In still others the appeal was dismissed because the transcript — although filed — was inadequate to cover the issues and was not such as a counter abstract could be prepared therefrom. Under the procedure followed in several of them we would be justified in denying the motion to dismiss — but restrict the scope of review to those questions not dependent on the evidence. Equally persuasive, however, are those cases in which the appeals were dismissed because the transcript —although filed — was inadequate.
The appeal in this case was set for hearing on June 6, and was heard on that date. The transcript was not filed with the clerk of the district court until at least May 22, after plaintiffs’ (appellees’) brief was in the process of being printed. In their brief, filed here on May 25, they say they were prejudiced — but candidly admit they do not know to what extent — because they had had no opportunity to examine the transcript. In the Matthews case, above, appellants admitted the transcript was not filed on account of “oversight,” but insisted that they had it in their possession at all times and had counsel for appellees so desired they could have obtained it by requesting it from appellants. Although, under the particular facts of the case, the appeal was not dismissed, it nevertheless was said:
“The argument that this failure is not available to appellees because they could have obtained the transcript by requesting it of counsel for tire defendants is not good. The statute makes it clearly the duty of counsel for appellants to file the abstract [transcript] with the clerk of the court so it is available for the counsel for the appellees if they wish to make use of it. The duty rests upon the counsel for the appellants to do this. It appears in this case there was a change in counsel between the time the case was tried in trial court and the appeal was taken. This might account for the failure to file the transcript but it is not a valid excuse.’’ (p. 405.)
Appeals are of course favored, and a litigant should not be deprived of appellate review because of some frivolous technicality. On the other hand, we are confronted with the proposition that orderly administration of justice requires that rules of appellate procedure should be strictly adhered to and enforced. An illustration (although not involved here) is the rule requiring an appellant to include in his abstract a specification of the errors of which he complains. (See Blevins v. Daugherty, 187 Kan. 257, 356 P. 2d 852, and the many cases cited in the opinion.) Considering the fact that numerous appeals have been dismissed because the transcript —although filed as required by the statute — was inadequate — it would seem that logic and consistency require the same fate where, as here, for all practical purposes — none was filed!
After giving this matter much consideration we feel compelled to hold (hat the appeal must be dismissed — and it is so ordered. | [
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The opinion of the court was delivered by
Wertz, J.:
Defendant (appellant) Verne Nelson Young was convicted of burglary in the third degree. Following the verdict of guilty, defendant filed a motion for a new trial containing ten grounds. The motion was overruled; whereupon, defendant perfected this appeal. The notice of appeal states that defendant appeals from the order overruling his motion for a new trial. Defendant asserts four specifications of error, all of which relate to trial errors, but fails to specify as error tire overruling of his motion for a new trial.
Defendant failed to comply with Rule No. 9 of this court (see 188 Kan. XXIX), and his appeal was dismissed. However, upon his application his appeal was reinstated on February 16, 1962. He filed his abstract and brief with this court on May 2, the state filed its counter abstract and brief on September 6, and the case was set for argument on September 24.
In its brief the state questioned the right of the defendant to be heard by reason of defendant’s failure to specify as error the overruling of the motion for a new trial. The defendant did nothing further until September 22, when, for the first time, he requested permission to amend and enlarge the specifications of error to include the order overruling the motion for a new trial. The challenge of the state of appellant’s right to be heard is based upon that portion of Rule No. 5 (see 188 Kan. XXVII; G. S. 1949, 60-3826, “Rules of the Supreme Court” No. 5) long in force and effect, which reads:
“The appellant’s abstract shall include a specification of tire errors complained of, separately set forth and numbered. . . .”
Not until Saturday, September 22, just two days before the case was argued in this court on September 24, did defendant make any attempt to ask for permission to amend his specifications of error to include the overruling of the motion for a new trial after his attention was called to that fact on September 6 by the state’s brief.
We have considered defendant’s request but have concluded that in the interest of orderly procedure on appellate review it comes too late and is therefore denied. We again dealt with this subject in Dupont v. Lotus Oil Co., 168 Kan. 544, 213 P. 2d 975, and there concluded that:
“It is true that in the past we have been lenient with appellants who saw fit to disregard the clear and unequivocal requirements of Rule 5. However, our opinions make it crystal clear our action in that respect has not been due to any thought the rule is arbitrary or of slight importance or that the reasons for its existence are not sound and substantial., Statements of such character, and others pointing out that noncompliance with its provisions justify the summary dismissal of appeals, are to be found in many of our decisions. For a few of the more recent ones see Cooley v. Hebrew, 165 Kan. 500, 502, 195 P. 2d 602; Topping v. Tuckel, 159 Kan. 387, 155 P. 2d 427; Federal Farm Mortgage Corp. v. Bolinger, 152 Kan. 700, 108 P. 2d 492.
“In at least two of our later cases (See Lambeth v. Bogart, 155 Kan. 413, 125 P. 2d 377; Hall v. Eells, 157 Kan. 551, 142 P. 2d 703), appeals were dismissed for failure to comply with its requirements.
“Indeed, on those occasions when its nonobservance has been overlooked, we think it can be said without fear of contradiction that we have indulged in what the late Justice Hoch termed ‘acts of grace’ in the hope that litigants would take heed and observe, not disregard, this rule, designed to promote definiteness, fairness and orderly procedure on appellate review. Much to our regret, despite criticisms for failure to observe it and studied warnings as to the probability of its application in the future (See Biby v. City of Wichita, 151 Kan. 981, 101 P. 2d 919; Carrington v. British American Oil Producing Co., 157 Kan. 101, 104, 138 P. 2d 463; Federal Farm Mortgage Corp. v. Bolinger, supra; Shannep v. Strong, 160 Kan. 206, 211, 160 P. 2d 683; Hamilton v. Binger, 162 Kan. 415, 419, 176 P. 2d 553), our leniency of the past has not accomplished what we had hoped for. Instead of reducing violations to a minimum it has increased them with the result that far too frequently we are forced into the intolerable situation of giving more consideration to appellants who disregard the rule than we can to appellants who observe it and are limited to the legal questions raised by their specifications of error. On that account, and since the need for Rule 5 far exceeds any possible reasons for its renunciation, we have concluded the time has come when its requirements should be rigidly enforced. It therefore follows that appellees’ challenge of appellants’ right to be heard in the instant appeal must be sustained.” (pp. 545-546.)
It is quite true that under G. S. 1949, 62-1701, an appeal to this court may be taken by a defendant as a matter of right from any judgment against him. The statute, however, does not mean that a defendant is entitled to a review of every matter involved in his trial and sentence without compliance with well-established rules of procedure relating to appellate review. (State v. Coletti, 102 Kan. 523, 524, Syl. 3, 170 Pac. 995.) In other words, while in this case defendant did appeal from the order overruling his motion for a new trial, his failure to specify that order as error precludes a review of alleged irregularities and errors occurring during the trial. (State v. Hamilton, 185 Kan. 101, 103, 340 P. 2d 390; State v. Schneider, 188 Kan. 808, 366 P. 2d 27.)
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This was an action to recover damages for personal injuries sustained by the plaintiff in a motor vehicle collision at the intersection of two city streets. Plaintiff recovered. The defendant has appealed from orders overruling his demurrer to the amended petition, his demurrer to plaintiff’s evidence, his motion for a directed verdict, his motion to set aside answers to special questions, his motion for judgment non obstante, his motion for a new trial, and from the judgment entered by the trial court.
In the face of the record presented the amended petition, which was attacked by demurrer on the basis it failed to state facts sufficient to constitute a cause of action in that it showed on its face that plaintiff was guilty of contributory negligence as a matter of law, is subject to a liberal construction under our statute (G. S. 1949, 60-736). That pleading sets out the facts on which the propriety of the ruling on the demurrer depends and contains other informative allegations essential to a proper understanding of the factual situation existing at the time of the collision in question. Therefore, omitting formal and inconsequential averments, numerous allegations relating to the nature and extent of plaintiff’s conceded injuries and resulting damages and the prayer, we shall quote from such pleading at length. It reads:
“. . . Linden Street is and was a north-south street located in a residential area in the northeast section of the city of Colfeyville. It is intersected by Second Street, which runs east and west. Both streets are of blacktop construction, and no traffic control signal exists at the point where said streets intersect. At the point of intersection Linden Sreet has a travel surface of approximately 20 feet in width and Second Street has a travel surface of approximately 26 feet in width.
“On or about April 7, 1960 at approximately 12:50 p. m., plaintiff (Alfred Ray Carpenter) was driving his Cushman ‘cracker box’ motor scooter north on Linden Street on his way to work . . . He was alone. The weather was clear and the road surface was dry. As plaintiff approached the intersection of Linden and Second Streets, his speed was not in excess of 15 miles per hour.
“In the area south east of the place where the two streets intersect, there are no buildings or other obstructions in the immediate vicinity, so that drivers of vehicles approaching the intersection both from the east on Second Street and from the south on Linden Street have, if they observe it, a clear view of each other for a distance of at least one-half block from the intersection.
“As plaintiff reached a point approximately 75 to 100 feet south of the intersection, while riding his scooter on Iris own or right side of the street, he observed defendant (Bert Logan Strimple), driving a 1941 Oldsmobile 4-door sedan, coming from the east on Second Street toward the intersection. At that time defendant was at least 200 to 250 feet east of the intersection and far enough to the east not to constitute an immediate hazard to plaintiff’s continued movement to the north and into said intersection. . . .
“Plaintiff continued in his northward movement at the same speed, looking both to his left and ahead of him until he reached a point approximately 10 to 15 feet south of the south edge of the intersection when he again looked to his right. Plaintiff’s motor scooter was in his own right hand lane of travel. At that time defendant’s vehicle was at least 50 feet east of the intersection, was in approximately the center of Second Street, and it was continuing at the same speed and without any reduction thereof. Plaintiff estimates defendant’s speed at that time to be approximately 35 to 40 miles per hour. Plaintiff immediately applied his brakes and began stopping his motor scooter and attempted to maneuver it to the right to avoid being hit broadside by defendant who continued his westward direction without observing plaintiff, without reducing his speed and without maneuvering to avoid an impending collision.
“After plaintiff entered the intersection, defendant then entered the intersection. By attempting to maneuver his motor scooter to the right, the scooter was caused to spin and plaintiff was able to avoid being struck broadside by defendant’s automobile, but was unable to avoid making contact with the same at about the leading edge of the left front door thereof. The collision occurred in approximately the center of the intersection.
“Defendant still did not slow or swerve his vehicle but continued westward at the same rate of speed as before, and as his car went by plaintiff, who was still on his motor scooter, plaintiff’s right leg was caught under the left rear bumper of defendant’s car and the leg was so badly severed that it became necessary shortly thereafter to amputate the same.
“Defendant was negligent in the operation of his vehicle in one, more or all of the following particulars:
“(c) In failing to yield the right of way to plaintiff whose motor scooter had entered the intersection ahead of defendant’s vehicle.
“(e) In failing to reduce the speed of his vehicle as he approached the intersection contrary to law.”
Following the overruling of the demurrer to the amended petition defendant filed his answer wherein he admitted that an accident, involving an automobile driven by him and a motor scooter driven by plaintiff, occurred at approximately the time and place alleged in the amended petition; denied generally all other allegations contained in that pleading; and charged that any damages or injuries sustained by plaintiff were occasioned by and were the proximate result of plaintiff’s own acts of negligence (describing them) at or about the time and place of the accident.
In his reply plaintiff denied generally all allegations of the answer.
With issues joined as indicated the cause came on for trial by a jury. Plaintiff adduced his evidence and rested. Thereupon defendant demurred to such evidence on the ground it did not prove a cause of action in favor of the plaintiff and against him in that such evidence showed plaintiff was guilty of negligence that contributed to his injuries. This demurrer was overruled. Defendant then presented his evidence and, at the close of all the evidence, did not renew his demurrer. Thereupon the court, after giving written instructions, submitting special questions and permitting arguments by counsel for the respective parties, on April 26, 1961, directed the jury to retire to the jury room for the purpose of considering its general verdict and its answers to the submitted special questions. No verdict having been reached by the jury by 5 p. m. of that day the court admonished the jury and recessed until 9 a. m. on April 27, 1961. On the morning of that date counsel for the parties appeared in open court. Defendant asked leave to file a motion for a directed verdict. Plaintiff objected. The court granted defendant’s request and, after the motion had been filed, overruled it. Subsequently the jury was directed to again retire to the jury room and further deliberate. Later, and on the same day, it returned into open court with a general verdict in favor of plaintiff and its answers to the submitted special questions. These were accepted by the trial court and the jury was then discharged.
The special questions and the answers read:
“1. Did the motor scooter strike the rear of the automobile driven by the defendant? Answer: No.
“2. If you answer Question No. (1) in the negative, then state the point on defendant’s automobile where the motor scooter struck defendant’s automobile. Answer: Left front door.
“3. At the time of the collision, was part of defendant’s automobile in the west portion of the intersection of Second and Linden Streets? Answer: Yes.
“4. If you answer Question No. (3) in the negative, then state where the front of defendant’s automobile was located in the intersection of Second and Linden Streets at the time of the collision. Answer:
“5. Was any part of defendant’s automobile in the intersection at the time plaintiff’s motor scooter entered the intersection? Answer: No.
“6. If you answer Question No. (5) in the negative, then state whether the automobile driven by the defendant and the motor scooter entered the intersection at the same time. Answer: No.
“7. How far to the east could plaintiff have seen defendant’s automobile as it approached the intersection? Answer: Approx. 230 feet.
“8. Did you find the defendant guilty of any act or acts of negligence which were the proximate cause of plaintiff’s injuries? Answer: Yes.
“9. If you answer Question No. (8) in the affirmative, then state the act or acts of negligence of which you find defendant guilty. Answer: Not yielding Rightway or slowing down for intersection.
“10. Do you find that the plaintiff’s injuries were occasioned by the negligence of both the plaintiff and defendant? Answer: No.”
Within three days after the jury reached its decision defendant filed his motion for a new trial, his motion to set aside the answers to special questions and his motion for judgment non obstante. On May 5, 1961, the court upon request of the defendant, postponed a hearing on the foregoing motions but, on plaintiff’s request, approved the general verdict and rendered judgment against the defendant in accord with its terms. On May 26, 1961, after a full and complete hearing, the court overruled all three of the foregoing motions. Thereafter, and within due time, defendant perfected his appeal from the rulings, orders and judgments described in the first paragraph of this opinion.
The issues involved in this case will be simplified by stating at the outset that, although appellant specified all rulings just men tioned as error in his abstract, claims of error in his brief are limited to three questions. The established rule of this jurisdiction (See Ferrellgas Corporation v. Phoenix Ins. Co., 187 Kan. 530, 358 P. 2d 786; Hughes v. Atkinson, 188 Kan. 413, 417, 362 P. 2d 618) is that specified errors not argued in the brief must be regarded as abandoned. We shall adhere to the rule and here limit appellate review accordingly.
The first claim of error made by appellant is that the trial court erred in overruling his demurrer to the amended petition. The gist of all contentions advanced by him on this point is that factual averments and allegations to be found in such pleading, particularly those relating to appellee’s conduct, just prior to the accident, with respect to existing laws and rules of the road regulating traffic upon the city streets, conclusively show appellee was guilty of contributory negligence which precluded his recovery as a matter of law. Let us see.
Where — as here — a challenged pleading is subject to a liberal construction a demurrer admits all well pleaded facts and its allegations must be liberally construed in favor of the pleader and all reasonable inferences to be drawn therefrom must be indulged in his favor (Hatcher’s Kansas Digest [Rev. Ed.], Pleading, §§ 35, 155; West’s Kansas Digest, Pleading, §§ 34 [1], 214 [2]).
In testing the sufficiency of such a pleading, when challenged by a demurrer, in an action to recover damages for injuries sustained in a motor vehicle collision, violations by the plaintiff of existing laws and rules of the road regulating traffic upon streets and highways, although they appear on the face of the amended petition, do not necessarily compel a conclusion the plaintiff is guilty of negligence which precludes his recovery as a matter of law. To prevent his recovery it must affirmatively appear from other allegations of the amended petition that such violations were the proximate and legal cause of his injuries. (Cunningham v. Barnes, 187 Kan. 663, 360 P. 2d 198; Miller v. Crawford, 163 Kan. 718, 186 P. 2d 116.)
Mindful, that in construing the sufficiency of any pleading, our decisions (See Fyne v. Emmett, 171 Kan. 383, 233 P. 2d 496; Kitchen v. Smith, 184 Kan. 188, 334 P. 2d 413) require that all of its allegations must be considered together and it is not proper to segregate allegations and determine their sufficiency without regard to the context of the whole pleading, we have carefully examined the amended petition. Since its pertinent allegations have been heretofore set forth at length it would serve no useful purpose and it is neither necessary nor required that we here repeat them. It suffices to say that having examined such pleading in the light of the foregoing rules we have little difficulty in concluding its allegations do not affirmatively disclose that appellee was guilty of contributory negligence precluding his recovery as a matter of law. It follows the trial court did not err in overruling the demurrer to the amended petition. In leaving the point it should be stated we are cited to, and our research discloses, no Kansas cases warranting a contrary conclusion. All decisions relied on by appellant to support his position on the point deal with situations where, after joinder of issues by pleadings, demurrers to evidence have been either sustained or overruled. For that reason those decisions are clearly distinguishable.
The second claim urged by appellant as grounds for reversal of the judgment is that the admissions of the appellee in his pleadings and at the trial, together with the findings of the jury, establish as a matter of law that appellee was guilty of contributory negligence.
That the established rule of this jurisdiction is that a plaintiff’s contributory negligence will bar him from recovery in an action for damages sustained in an automobile casualty if it affirmatively appears from all the evidence adduced in the action that his negligence contributed to and was the proximate cause of the injuries sustained by him in the accident cannot be questioned.
On the other hand the rule is equally well-established that, when the evidentiary facts relating to contributory negligence are such that men of reasonable minds might reach different conclusions, the question is for the trier of facts, otherwise it is one of law. See, e. g., Keir v. Trager, 134 Kan. 505, 7 P. 2d 49; Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 721; Jones v. McCullough, 148 Kan. 561, 83 P. 2d 669.
For one of our latest pronouncements in connection with the rule last stated see Krentz v. Haney, 187 Kan. 428, 357 P. 2d 793.
Mindful that it must be construed in the light of the rules just mentioned, we turn to the evidence on which the claim now under consideration must stand or fall. We have carefully examined the record and do not deem it necessary to detail the evidence. It suffices to say that examination discloses evidence which, at least in substance, is sufficient to warrant a conclusion that all factual allegations of the amended petition, as heretofore quoted, have been substantially established as therein alleged and, except for a few details to be presently mentioned, may be considered as the controlling evidence.
Based on its fair import further details of the evidence, not found in the amended petition but established by testimony of the appellee and other witnesses who were disinterested, are to the effect that in driving on the street in question and in approaching the intersection appellee was proceeding in a careful and cautious manner with due regard to existing traffic conditions at a speed of about eight to ten miles per hour; that the last time he looked to the east and saw appellant’s automobile he was at a point approximately eight to ten feet south of the intersection at which time appellant’s automobile was approximately seventy-five feet east of the intersection; that appellee then proceeded into the intersection; and that thereafter appellant, who admitted he did not see appellee until appellee was approximately twenty feet from the intersection, continued westward on Second Street and entered the intersection, notwithstanding appellee had entered the intersection first and was then engaged in maneuvering his motor vehicle in an obvious attempt to avoid an imminent collision.
It is not necessary that we further labor the evidence of record. It suffices to say that, in our opinion, the evidence already referred to, when surveyed in its entirety, discloses conditions and circumstances which could well cause reasonable minds to differ as to whether appellee’s conduct in entering the intersection was of such character as to constitute contributory negligence which was the proximate cause of the collision.
It appears to us that in the face of all the evidence the jury may have believed that under the existing facts and circumstances appellee had a right to assume that appellant would obey the law and either slow down before reaching the intersection or yield the right of way (G. S. 1949, 8-550[a]) prior to entering it.
The rule is well-established that an operator of an automobile may assume that others using the city streets will observe the law and he is not guilty of contributory negligence in acting upon such assumption unless and until he has knowledge to the contrary. (Sullivan v. Johnston, 164 Kan. 386, 390, 190 P. 2d 417, and decisions there cited.)
For other decisions dealing with the same subject see Scheve v. Heinman, 142 Kan. 370, 371, 372, 47 P. 2d 70; Schneider v. Stewart, 170 Kan. 158, 163, 223 P. 2d 698; Blankenship v. Fraker, 173 Kan. 438, 442, 249 P. 2d 683.
See, also, State Farm Mutual Automobile Ins. Co. v. Cromwell, 187 Kan. 573, 358 P. 2d 761, where it is held:
“An operator of a motor vehicle upon a public highway has the right to assume that others using the highway will obey the law, and until he has knowledge to the contrary, he is not guilty of negligence in proceeding.” (Syl. ¶ 6.)
Or, for that matter, the jury may have believed that when appellant failed to slow down for the intersection appellee was confronted with an emergency, just prior to or after he entered the intersection. In such a situation the rule, also well-established, is that an operator of a motor vehicle, otherwise obeying the law, who is confronted with a sudden emergency and who, because of want of time in which to form a judgment, acts according to his best judgment but omits to act in a most judicious manner, is not guilty of contributory negligence. (See Winfough v. Tri-State Insurance Co., 179 Kan. 525 [Syl. ¶3], 297 P. 2d 159; Albin v. Munsell, 189 Kan. 304, 311, 369 P. 2d 323.)
In any event, after serious consideration of all arguments advanced by the parties, we are convinced the evidence in this case presents a situation where what was said by Mr. Chief Justice Harvey in Lawrence v. Kansas Power & Light Co., 167 Kan. 45, 204 P. 2d 752, is clearly applicable and, when applied, must be regarded as decisive of the claim now under consideration. The pertinent portion of that opinion reads:
“The legal questions here involved are so well settled in our law that they need not be labored. The actions were ones at common law in which plaintiffs sought damages alleged to have resulted from defendant’s negligence, and defendant had pleaded contributory negligence of the plaintiffs. These are the kinds of actions in which each party is entitled to a trial, by jury as a matter of right. They should not be converted into trials by the court. Negligence is the lack of due care. The instances are relatively rare when the facts are such that the court should say that as a matter of law the negligence alleged has been established. Before the court should make such a holding the evidence should be so clear that reasonable minds, considering it, could have but one opinion, namely, that the party was negligent. In these cases we think the contributory negligence of plaintiffs was clearly a question of fact for the jury. More than that, plaintiffs were not required to anticipate that with their car in the intersection defendant’s bus would be driven into it and against their car at a speed of twenty-five to thirty miles per hour, with its driver not watching enough to know that the car was in the intersection. Under the evidence the jury might well have found such acts of defendant to be the proximate cause of the injury.” (p. 49.)
For numerous subsequent decisions where the foregoing statement has been quoted and applied see Fry v. Cadle, 171 Kan. 14, 17, 229 P. 2d 724; Blankenship v. Fraker, 173 Kan. 438, 441, 249 P. 2d 683; Siegrist v. Wheeler, 175 Kan. 11, 15, 259 P. 2d 223; Roehrman v. D. S. & O. Rural Electric Cooperative Ass’n, 178 Kan. 52, 60, 283 P. 2d 411; Thornton v. Bench, 188 Kan. 89, 93, 360 P. 2d 1065.
Adherence to the legal principles just quoted, as well as other rules to which we have heretofore referred, impels a conclusion that appellants second claim of error lacks merit and cannot be upheld; and necessarily compels a conclusion the trial court did not err (1) in denying appellant’s post trial motions based on contentions the evidence, as a matter of law, convicted appellee of contributory negligence which barred his recovery or (2) in rendering judgment for appellee in accord with the special findings and general verdict of the jury. We find nothing in the juiy’s findings, heretofore quoted and hence not repeated, which warrant or permit conclusions contrary to those just announced.
It is neither necessary nor required that we prolong this opinion or burden our reports with a detailed review or discussion of the numerous cases cited by appellant’s astute and diligent counsel in support of the claim just decided, for, as has been repeatedly pointed out in our decisions (see, e. g., Nolan v. Hebrew, 177 Kan. 363, 365, 278 P. 2d 1011; Siegrist v. Wheeler, 175 Kan. 11, 16, 259 P. 2d 223; Sullivan, Administrator v. Davidson, 183 Kan. 713, 718, 332 P. 2d 507), it must be remembered that every negligence action depends upon the factual situation disclosed by the record on which it is decided, and that other decisions are of little value as legal precedents unless, as rarely occurs, the governing facts and circumstances are similar. All that need be said as to such decisions is to state, that after carefully reviewing them, we find no case among those cited, so similar from the standpoint of facts and circumstances involved, that it can be regarded as a controlling precedent.
In passing it should be noted that in disposing of appellant’s second question we have ignored, not overlooked, certain claims made by him in connection therewith, to the effect the trial court erred in overruling his demurrer to appellee’s evidence and his motion for a directed verdict, because under the confronting facts and circumstances appellate review of those rulings is precluded. See In re Estate of Rogers, 184 Kan. 24, 334 P. 2d 830, where it is held:
“Where a defendant does not stand upon his demurrer to the plaintiff’s evidence, but introduces evidence in his own behalf, the question whether the evidence is sufficient to warrant the submission of plaintiff’s case to the jury is to be determined on the basis of all the evidence and not on plaintiff’s evidence alone. Under such circumstances, if the defendant does not at the close of all the evidence renew his demurrer or move for a directed verdict, he waives the right to contend the evidence is insufficient to warrant the submission of plaintiff’s case to the jury (following Ziegelasch v. Durr, 183 Kan. 233, 326 P. 2d 295).” (Syl. ¶ 2.) (Emphasis supplied.)
See, also, Francis v. City of Wichita, 184 Kan. 570, 337 P. 2d 678; State Farm Mutual Automobile Ins. Co. v. Cromwell, 187 Kan. 573, 575, 358 P. 2d 761.
The third and final claim advanced by appellant is that the trial court erred in permitting counsel for appellee, over objections, to inquire of appellant, while he was testifying on cross-examination as a witness in his own behalf, as to whether he ran a stop sign in the City of Coffeyville and received a parking ticket from the city authorities for doing so some four weeks prior to the date of the trial. Negative answers were given to such inquiries and it does not appear cross-examination on the subject was unduly prolonged or that the rights of the appellant were prejudiced by its extent. We are not disposed to labor contentions to the effect the extent of the cross-examination, or the trial court’s action in admitting the evidence introduced in connection therewith, requires the granting of appellant’s motion for a new trial. It suffices to say that under similar circumstances like contentions were long ago rejected by this court in Barshfield v. Vucklich, 108 Kan. 761, 197 Pac. 205, where it is said:
“On an issue as to the negligence of a driver of an automobile it is ordinarily not admissible to show acts of negligence on other occasions, but where the defendant has testified as to careful driving, a cross-examination within reasonable limits, as to whether he had not at other times been reprimanded and arrested for fast driving, may be permitted; and the extent of the cross-examination of the defendant in this case is not deemed to be a ground for a reversal of the judgment.” (Syl. ¶ 5.)
What has been heretofore stated and held compels an affirmance of the judgment and it is so ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action on a promissory note secured by a real estate mortgage seeking judgment against the defendants and foreclosure of the mortgage. Appeal has been duly perfected from an order of the trial court overruling a demurrer to the plaintiff’s petition.
The question presented is whether the petition alleges sufficient facts to accelerate the maturity of the note. Included within the foregoing question is whether the petition expressly alleges a breach of the condition in the mortgage requiring the mortgagors to keep the premises insured for the benefit of the mortgagee.
The note and mortgage are in ordinary form. The petition alleges the execution and delivery of a promissory note to the plaintiff dated the 4th day of December, 1960, wherein the defendants agreed to pay the plaintiff three years after date the sum of $15,000 with interest at 6% per annum payable semiannually. A copy of the note was attached to the petition, and the only condition specified in the note which is material to this appeal reads:
“. . . If any part of this note or installment thereof, or interest thereon is not paid as herein specified, this note shall at once become due, at the option of the holder, and bear ten per cent interest thereafter. . .
The note indicates that it was secured by a real estate mortgage, No. 2556, and specifies that it is due December 4, 1963.
The petition further alleges that to secure payment of the note the defendants at the same time and as part of the same transaction executed and delivered to the plaintiff a properly signed and acknowledged real estate mortgage, bearing the date of September 4, 1960, covering fourteen lots of real estate in the city of Mound City, Kansas. The real estate mortgage was attached to and made a part of the petition by reference. The conditions of the mortgage material to this appeal read as follows:
“And this conveyance shall be void if such payment be made as in said note, and as is hereinafter specified, and the said parties of the first part hereby agree to pay all taxes assessed on said premises before any penalties or costs shall accrue on account thereof, and to keep the said premises insured in favor of said mortgagee in the sum of Fifteen Thousand and no/100 DOLLARS, in some insurance company satisfactory to said mortgagee, in default whereof the said mortgagee may pay the taxes and accruing penalties, interests and costs, and insure the same at the expense of the parties of the first part; and the expense of such taxes and accruing penalties, interests and costs, and insurance, shall from the payment thereof be and become an additional lien under this mortgage upon the above described premises, and shall bear interest at the rate of ten per cent per annum. But if default be made in such payment or any part thereofs or interest thereon, or the taxes assessed on said premises, or if the insurance is not kept up thereon then this conveyance shall become absolute and the whole principal of said note, and interest thereon and all taxes and accruing penalties and interest and cost thereon remaining unpaid or which may have been paid by the party of the second part, and all sums paid by the party of the second part for insurance, shall be due and payable, or not, at the option of the party of the second part; . . (Emphasis added.)
The petition then alleges said mortgage was duly recorded and the registration tax was duly paid. It alleges:
“4. That defendants have paid the semi-annual installment of interest in the amount of $450.00, due March 4, 1961, but that on or about July 8, 1961, plaintiff was advised by the Farm Bureau Mutual Insurance Company that installment insurance premiums on the following described premises in the amounts shown were in default:
Lot 4, Block 42, City of Mound City, Kansas, $13.38;
Lots 1 and 2, Block 37, City of Mound City, Kansas, 13.29;
Lots 7 and 8, Block 31, City of Mound City, Kansas, 16.25;
and that unless said premiums were paid the insurance policies on said premises would be cancelled effective 12 o’clock noon July 21, 1961; that defendants failed and neglected to pay said premiums and that plaintiff, on July 21, 1961, in order to avoid cancellation of such insurance, paid said insurance premiums .in the total amount of $43.02; that by the terms of said mortgage said amount becomes an additional lien under said mortgage, to bear interest at the rate of 10% per annum.
“5. That the plaintiff is the present owner and holder of said note and mortgage and have and do hereby declare the whole of said sums with interest thereon as aforesaid due and payable by reason of the default of said defendants as provided by the terms and conditions of said mortgage.” (Emphasis added.)
The petition concludes with a prayer for judgment on the note and mortgage in the sum of $15,000, together with interest at the rate of 6% per annum from March 4,1961; for a further judgment for the sum of $43.02 with interest thereon from July 21,1961, at the rate of 10% per annum; and for foreclosure of the real estate mortgage.
The appellants rely upon the foregoing quoted portion of the note for the proposition that the petition states no facts sufficient to accelerate the maturity date of the note. It is argued the note shows on its face that it is not due until September 4, 1963, and the petition therefore shows on its face that the action is premature. They argue the only attempt in the petition to allege any fact that might be an excuse to accelerate the maturity of the note by some two years is contained in paragraph 4. They contend the language in this paragraph does not say the “insurance is not kept up thereon,” but in fact it says just the opposite. They argue these allegations negative any idea that insurance was allowed to lapse by stating that plaintiff paid a total sum of $43.02 in premiums to be sure the insurance was kept up on the property. This, the appellants concede, the appellee had a right to do and charge the amount to the appellants, but they contend it cannot be used by the bank as an excuse to declare an obligation of some $15,000 due and payable some two years in advance of its maturity date.
On demurrer to a petition the plaintiff is entitled not only to the benefit of facts well pleaded, which must be taken as true, but to all reasonable inferences that may be derived therefrom. (Galleher v. City of Wichita, 179 Kan. 513, 296 P. 2d 1062; Cassity v. Brady, 182 Kan. 381, 321 P. 2d 171; Rex v. Warner, 183 Kan. 763, 332 P. 2d 572; Adams v. City of Arkansas City, 188 Kan. 391, 362 P. 2d 829; and Voss v. Bridwell, 188 Kan. 643, 364 P. 2d 955.)
It may be conceded that a cause of action on a negotiable instrument does not accrue until the instrument matures, and a suit commenced before that time is premature. (Upham v. Shattuck, 151 Kan. 966, 101 P. 2d 901.) It has also been held the maker of a promissory note, payable at a bank, has the entire day of maturity in which to make payment; and an action begun thereon just after the close of banking hours of the day it falls due is prematurely brought. (National Bank v. Paper Mfg. Co., 58 Kan. 207, 48 Pac. 863.) The appellants rely upon the two foregoing cases, each of which involves ordinary unsecured promissory notes.
In the case at bar it must be conceded nothing is due by the terms of the note alone, but this note is coupled with a real estate mortgage that embodies conditions which the mortgagors must meet. It specifically provides that a default in any one of the conditions therein may accelerate the maturity of the note.
In the instant case the note and mortgage were executed on the same, date and as a part of the same transaction. Where two instruments are executed by the same parties, at or near the same time, in the course of the same transaction, and concern the same subject matter, they will be read and construed together. (Skinner v. Skinner, 126 Kan. 601, 270 Pac. 594; and Dearborn Motors Credit Corporation v. Neel, 184 Kan. 437, 448, 337 P. 2d 992.)
It has long been held in this state that the terms and conditions of a real estate mortgage given as security for a promissory note are part of the entire loan transaction, and that a breach of the conditions set forth in the mortgage, or any one of them, if they be stated in the disjunctive, as here, serves at the option of the mortgagee to accelerate the maturity of the note. This court said in Porter v. Schroll, 93 Kan. 297, 144 Pac. 216:
“As the mortgage provided that upon failure to comply with any of the conditions the whole sum of money should become due, the agreement to insure being one of the conditions, and the breach of the condition being expressly alleged in the petition, a cause of action was stated.” (p. 298.) (Emphasis added.)
The facts there involved closely parallel the facts in the instant case, and the decision is controlling herein if it can be said the petition in the instant case contains an express allegation of a default in the condition to keep the premises insured. There, as here, nothing was due on the note when the suit was commenced, except as provided in the mortgage. There, as here, the covenants in the mortgage were stated in the disjunctive, and default in one — failure to keep the covenant respecting insurance — was sufficient under the plain stipulations of the mortgage.
By the terms of the mortgage instrument the mortgagors agreed to keep the premises insured for the benefit of the mortgagee. Even though the mortgagee is entitled, by the terms of the mortgage, to charge the amount of the insurance premiums to the mortgagors and charge penalty interest thereon, this does not preclude the mortgagee from electing to declare the entire debt due and begin proceedings to foreclose the mortgage.
The appellants’ argument, that payment of insurance premiums by the mortgagee bars foreclosure, is answered in the case of Insurance Co. v. Puckett, 97 Kan. 428, 155 Pac. 930. There the mortgagors defaulted in the payment of taxes. The taxes were paid by the mortgagee and a foreclosure action was instituted for breach of the condition to pay taxes. In the opinion the court said:
“. . . The stipulation that the default in paying the taxes would accelerate the maturity of the debt and give a right to foreclose is not alternative to or inconsistent with the provisions permitting the morgagee to protect his security by the payment of overdue taxes. Nothing in the stipulations of the mortgage indicates that the exercise of one option by the mortgagee shall preclude the exercise of the other. The right to foreclose for nonpayment of taxes does not depend on the condition that the taxes remain due and unpaid, but it is dependent on the contingency that the mortgagors fail to pay them in accordance with their agreement. . . .” (p. 430.) (Emphasis added.)
Upon the foregoing authority there is no question but that the mortgagee here could foreclose the mortgage upon a breach of the covenant of the mortgagors to keep the premises insured, and the mortgagee is not barred from that right by the payment of insurance premiums which become an additional lien under the mortgage.
The appellants argue the most that can be said for the allegations in tire petition are that some agent of an insurance carrier advised the appellee that certain policies would be canceled at noon on a certain date unless certain premiums were paid. This, it is argued, is not an allegation that “insurance was not kept up” on the property, but it is not even an allegation that the designated policies would be inoperative after that date. They argue the allegations, rather than showing no insurance, show definitely that there was insurance at all times effective. The appellants further argue, insofar as the allegations of the petition are concerned, they might have had sufficient insurance on the properties to meet the requirements of the mortgage without the designated policies, even if such policies had been canceled.
The petition in the instant case expressly alleges a breach of the covenant in the mortgage requiring the mortgagors to keep the premises insured. The petition expressly alleges that the mortgagors failed and neglected to pay the premiums when due — that the installment premiums on the described premises were in default.
The appellee is entitled to a liberal construction of the petition on demurrer as heretofore stated. It is entitled to the reasonable inference that these policies were initially taken out by the mortgagors in order to comply with the conditions of the mortgage, and that if they were canceled for nonpayment of premiums there would be no coverage on these premises. If the premiums alleged in the petition were not paid on the three mortgaged premises and these policies lapsed, a fire could easily destroy the buildings which are security for the debt. The mortgagors are not charged in the petition with failure to take out insurance on the premises, but with failure to keep it up by the payment of insurance premiums.
The petition, liberally construed, entitles the appellee to the reasonable inference that the insurance company had complied with the law and the policies in giving the notice to the appellee referred to in the petition, and that the mortgagee waited until the last day of the grace period before paying the premiums “in order to avoid cancellation of such insurance.”
We think the appellants’ contention that the mortgagee was obligated to allow the actual cancellation of the insurance, thus jeopardizing its security, before it could insure the premises and declare the debt due by reason of the default of the mortgagors is untenable. We therefore hold the petition states a cause of action. The right to declare the note due and foreclose the mortgage for failure of the mortgagors (appellants) to keep the premises insured is not dependent upon the premises being uninsured, but is dependent upon failure to keep the insurance up in accordance with their agreement. This can be accomplished only by the payment of insurance premiums when due, which is the obligation of the mortgagors.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a criminal action from a judgment of conviction and sentence wherein the appellant was charged with writing a no-funds check in the amount of $24.48. Sentence was imposed pursuant to the habitual criminal statute (G. S. 1949, 21-107a) upon a finding by the trial court that the appellant had two previous felony convictions.
Ten specifications of trial error are set forth by the appellant, most of which are not sufficiently specific to point out the exact nature of the alleged error committed by the trial court. Such general specifications are insufficient to invoke appellate review. (State v. McCool, 34 Kan. 613, 9 Pac. 618; Fagerberg v. Johnson, 48 Kan. 434, 29 Pac. 684; Garden City v. Heller, 61 Kan. 767, 60 Pac. 1060; and State v. Herschberger, 160 Kan. 514, 163 P. 2d 407.)
The complaint in this action was filed on the 14th day of January, 1958, in the justice court of Wilson County, Kansas, but the appellant was not apprehended on the warrant until the 7th day of April, 1961. The record discloses that during the interim period the appellant was confined in the penitentiary in the state of Texas. After arrest the appellant was bound over for trial to the district court where he was tried and found guilty by a jury.
The appellant contends that he is not guilty of the offense for which he has been charged because the evidence was insufficient to show that he committed the offense. This contention is founded upon the failure of the complaining witness to positively identify the appellant. There was other evidence, however, consisting of the testimony of a handwriting expert, and also the testimony of the wife of the complaining witness, both of whom made positive identification. Under these circumstances the appellant’s contention that the evidence is insufficient to identify him with the crime is without merit.
On cross-examination the appellant testified without objection that he had been convicted of giving bogus checks in the state of California and served thirty-seven months at the California Men’s Colony, and that he had been convicted of writing insufficient funds checks in 1958 in the state of Texas where he had served three years for such offenses. By such voluntary testimony without objection by the appellant or his counsel, the appellant waived any right to assert error because the sentence was imposed pursuant to the habitual criminal act. (21-107a, supra; see Oyler v. Boles, 368 U. S. 448, 7 L. Ed. 2d 446, 82 S. Ct. 501; and Browning v. Hand, 284 F. 2d 346.)
The long delay between the issuance of a warrant for the appellant’s arrest and his trial was occasioned by the appellant’s absence from the state and confinement in the penitentiary in the state of Texas. Under the provisions of G. S. 1949, 62-504, the appellant’s time of absence from the state is not to be included in computing the period of limitation specified in G. S. 1949, 62-503. (State v. Hill, 145 Kan. 19, 64 P. 2d 71.) The appellant is therefore in no position to assert the statute of limitations.
Where the entire record in a criminal case shows that a prosecution was commenced within the time provided in 62-503, supra, it is not necessary for the information to contain allegations to toll the statute. (State v. Woolworth, 148 Kan. 180, 81 P. 2d 43.)
The appellant contends the trial court erred in giving instruction No. 6 which told the jury the purpose for which evidence of prior convictions was admissible. Although raised on the motion for a new trial and specified as error, the record as abstracted does not disclose that any objection was made by counsel for the appellant to the instruction before it was submitted to the jury. Furthermore, other instructions given by the court have not been abstracted to show the full context of the instructions given. Under these circumstances the instruction is not subject to review on appeal.
On the date the appellant committed the offense for which he was charged, the giving of a no-funds check in the amount of $24.48 was a felony under the provisions of G. S. 1949, 21-555. Subsequent thereto in 1959 the giving of a no-funds check in such amount was made a misdemeanor. (L. 1959, Ch. 161.) The appellant contends the offense for which he was tried is a misdemeanor because the statute had been amended prior to the date of his trial. The material statute for purposes of such determination is the statute in force on the date the offense is committed, and the appellant’s contention is without merit.
The record presented to this court for review has been carefully examined, and the appellant has failed to make it affirmatively appear that any error has been committed to the prejudice of his rights.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from a judgment of the trial court wherein appellee, petitioner, was allowed a second class claim against the estate of Ralph A. Wolfe in the sum of $7,061.91 and the appellant, respondent, was denied judgment against the petitioner for payments in excess of its pro rata share of the assets of the estate under G. S. 1949, 59-1301.
The case was submitted to the trial court under stipulated facts filed October 12, 1961.
On August 25, 1959, Ralph A. Wolfe died testate and his wife, respondent, was appointed executrix of his estate. For many years prior to his death decedent had purchased pianos and other merchandise from petitioner. At his death he owed petitioner $10,919.44. On or about September 1, 1959, by orders of the probate court respondent was authorized to operate the Wolfe Music Company as a going business in the same manner decedent had operated it. In her representative capacity respondent continued to purchase pianos and other merchandise from petitioner and eventually owed him the sum of $11,515.90. During her operation of the business respondent paid petitioner the sum of $15,373.43 by checks signed by her in her representative capacity. Petitioner applied the payments to the account of decedent until that account was paid in full and then applied the payments to the account of respondent in her representative capacity. Petitioner sent periodic statements to respondent and no objections thereto were lodged by her. The estate did not have sufficient funds with which to pay all of the demands against it. On May 19, 1961, petitioner for the first time filed a claim against the estate as costs of administration and sought to have it allowed as a second class claim under G. S. 1949, 59-1301. On October 12, 1961, the district court held the claim should be allowed and classified as a second class claim. It is from this order that respondent perfected her appeal on December 8,1961, in which she assigned three specifications of error as follows: The district court erred (1) in allowing petitioner’s claim as a second class claim against the estate of Ralph A. Wolfe, (2) in failing to rule that any claim of petitioner against such estate was barred by the nonclaim statute, and (3) in failing to render judgment in favor of respondent for the amount petitioner had been paid by respondent in excess of its pro rata share of the estate.
Respondent first calls our attention to an extensive annotation to be found in 83 A. L. R. 2d 1406, 1437, et seq., wherein priority of claims arising out of the continuation of a decedent’s business is discussed and a careful reading thereof shows that no harmony exists among the different jurisdictions in their rulings on questions such as we now have before us even in states with statutes similar to ours except that in the majority of jurisdictions the courts have carefully guarded decedent estates and have placed on claimants the burden of showing they are entitled to classification of their claims as a result of the provisions of a testator’s will or by and through the direction of the court. Our probate code fully prescribes how and when claims against a decedent’s estate must be filed and in G. S. 1949, 59-1402, the code also prescribes by what method the court may allow a representative to continue to operate a decedent’s business:
“Upon a showing of advantage to the estate the court, with or without notice, may authorize a representative to continue and operate any business of a decedent . . . for the benefit of his estate, under such conditions, restrictions, regulations and requirements, and for such periods of time not exceeding six months for any one period as the court may determine. No debts incurred or contracts entered into shall involve the estate or representative beyond the assets used in such business immediately prior to the death of the decedent. . . .”
Under the provisions of G. S. 1949, 59-301, the probate court, or, as in our case the district court where the proceedings were transferred for hearing and determination, has the power and original jurisdiction to direct and control official acts of executors and administrators to settle their accounts.
The undisputed and stipulated facts show the petitioner herein filed no claim against decedent’s estate until long after the expiration of the nine months’ period from the date respondent was appointed executrix and qualified. Although petitioner furnished merchandise to respondent after decedent’s death, it sought no order or authorization from the court to apply payments received from respondent other than on the indebtedness of the business which under the general order of the court was being continued in operation by respondent in the same manner it had previously been conducted by decedent. Since petitioner has made no showing of the merchandise sold to decedent immediately prior to his death (last-sentence of 59-1402, above quoted), neither the trial court nor this court can consider whether any of that merchandise was in the possession of the estate at the time of decedent’s death. The result is this court is unable to make any determination of that phase of the case.
Petitioner’s theory is that by reason of the court’s statement that respondent was to continue the business in the manner in which decedent had conducted his affairs with the petitioner and under the rule that when a payment is received by a creditor with no designation as to whether it is to be applied, the creditor has the authority to choose that application and thus bind the debtor, but we find it impossible to sustain this theory in the face of the provisions of 59-301 wherein the probate code places the control of respondent in the court. Petitioner’s theory simply is not the law because it would mean that in any estate case where, as here, the probate court, in attempting to benefit the estate, would order continuation of a business, then all creditors who furnished a large or even a small amount of merchandise, labor, or services of any kind could apply any payments made by the representative of the estate to bills owed by the decedent prior to death, and thereby toll the requirements of G. S. 1949, 59-2239, commonly known as the nonclaim statute which, in pertinent part, provides:
“All demands, including demands of the state, against a decedent’s estate, whether due or to hecome due, whether absolute or contingent, including any demand arising from or out of any statutory liability of decedent or on account of or arising from any liability as surety, guarantor, or indemnitor, and including the individual demands of executors and administrators, not exhibited as required by this act within nine months after the date of the first published notice to creditors as herein provided, shall be forever barred from payment. . . .” (Our emphasis.)
Petitioner further cites 2 Bartlett’s Kansas Probate Law and Practice, rev. ed., Continuation of Business, §§ 823, 824, where the author in discussing 59-1402 mentioned that it was an entirely new section and, in part, stated:
“It may, in some cases, be advantageous to an estate to continue the business of the decedent . . . for a limited period in order to obtain the greatest amount in liquidating the business. . . . The code section is so drawn that as many safeguards against loss are provided as are reasonable. . . . The representative is limited in incurring obligations which bind the estate. . . .” (Our emphasis.) (p. 850.)
We are unable to see how the above authority supports petitioner’s contention. Petitioner properly states the law in his brief to the effect that the nonclaim statute (59-2239) is one of limitation. This was settled in In re Estate of Brasfield, 168 Kan. 376, 214 P. 2d 305, where this court held:
“G. S. 1947 Supp. 59-2239, providing that no creditor shall have any claim or lien upon the property of a decedent, other than hens existing on the date of his death, unless an executor or administrator of his estate has been appointed within one year after the death of a decedent is clearly a statute of limitations and is to be given the same force and effect as limitation statutes appearing in the code of civil procedure.” (Syl. ¶ 5.)
The foregoing statute cannot be interpreted to mean that the executrix of a decedent’s estate can, without an order of the court, make payments for merchandise and bind the estate so that a fourth class claim can thereby be accelerated into a second class claim. Had petitioner desired it could have obtained appropriate orders of the court before continuing transactions with respondent under the circumstances and the duty was upon petitioner to protect itself. Certainly it was not the intention of the legislature in enacting the probate code to require a representative of a decedent’s estate to anticipate an occurrence such as we have in this instance where petitioner, by crediting payments made by the continuing business so they applied on the indebtedness of decedent prior to his death, rather than applying them on the indebtedness of the continuing business subsequent to decedent’s death, obtained a preference over other creditors with the same classification of claims.
In view of all that has been stated herein we conclude the first two specifications of error should be answered in the affirmative and any claim petitioner had against decedent prior to his death was nothing more than a fourth class claim (59-1301) and since petitioner did not file its claim against decedent’s estate within the nine months’ period after the appointment of respondent, as prescribed by tire nonclaim statute (59-2239), the claim is barred.
Concerning the third specification of error relating to the trial court’s failure to render judgment for respondent for the amount petitioner had been paid by respondent in excess of its pro rata share of the estate, we can only hold that question is not properly before us. See In re Estate of Thompson, 164 Kan. 518, 523, 190 P. 2d 879, cited and applied in Hildenbrand v. Brand, 183 Kan. 414, 327 P. 2d 887, where it was held:
“Generally speaking, when the purpose of an action or claim is to bring something into an estate of a decedent, that is, when an estate has a claim which its personal representative is attempting to enforce, the action is to be filed in the district court or some other court of competent jurisdiction.” (Syl. ¶ 2.)
The judgment is reversed. | [
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The opinion o£ the court was delivered by
Price, J.:
This is an appeal from an order of the district court of Leavenworth county denying an application for a writ of habeas corpus.
In October, 1956, the appellant here, Delphos B. Burns, was placed on trial in the district court of Hamilton county on the charge of murder in the first degree. He was represented by counsel throughout the trial and was convicted of manslaughter in the first degree. Pursuant thereto he was sentenced to confinement in the state penitentiary for a term not less than five years nor more than twenty-one years (G. S. 1949, 21-421).
While so confined Burns filed in the district court of Leavenworth county an application for a writ of habeas corpus, setting forth a number of alleged errors in his trial in Hamilton county. The matter was heard by the district court of Leavenworth county on February 20,1962, at which time Bruns was present in person and introduced evidence. In denying the application for a writ the court found that Burns was being held in custody of respondent warden pursuant to a valid sentence imposed by the district court of Hamilton county; that he had not been deprived of any rights guaranteed to him by either the state or federal constitution, and that the evidence failed to show that he was being unjustly and unlawfully deprived of his liberty.
This appeal followed.
At the outset we are confronted with the fact the “abstract” filed by appellant fails to include a specification of errors in compliance with rule number 5 of this court (see 188 Kan. xxvii).
The principle is thoroughly settled that where an appellant has made no effort to comply with rule number 5 appellate review is precluded and the appeal will be dismissed. For recent decisions dealing with the question see Blevins v. Daugherty, 187 Kan. 257, 356 P. 2d 852; State v. Armstrong, 188 Kan. 567, 363 P. 2d 520, and Lemon v. Pauls, 189 Kan. 314, 369 P. 2d 355.
There being nothing before us for review, the appeal is dismissed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from a conviction by the jury, the trial court’s acceptance of the juiy’s verdict, and sentence of defendant for the commission of the crime of second degree burglary and larceny.
The information charged defendant with committing the crime of burglary in the building of Albertson & Hein, Incorporated, located in Wichita, Sedgwick county, Kansas, and with larceny of certain miscellaneous tools and an adding machine, of the total value of $3,937.20, contrary to G. S. 1961 Supp., 21-520, and G. S. 1949, 21-524. Proper notice of plea of alibi was served on the county attorney and filed in the court by counsel for defendant.
The first witness for the state in its case in chief was Plarvey A. Twichell, who had been employed by the Wichita Police Department for approximately fifteen years. He was asked the following question:
“Did you have any further conversation with him [defendant] at that time? A. ... I advised him at that time that due to the fact that he was ad mitting that all previous accounts of this were false and that he was telling this for the true story, I suggested that 'he and his wife come in and be run on the polygraph in regard to tins, and he agreed to do so.”
Defense counsel immediately objected to this testimony and was overruled by the trial court. The witness then testified that he suggested to defendant and his wife that they come in the following week and have a ‘lie examination” to determine the status of defendant’s story. Defense counsel again objected and was again overruled by the trial court. The witness continued to testify and stated defendant had told him he would come in and make an appointment for such a test and again defense counsel objected and was overruled.
On cross-examination defense counsel asked Detective Twichell if he had been in his office continually during the time he had suggested defendant make an appointment for the lie detector test and whether the detective knew of his own knowledge that defendant had not tried to contact him about the appointment for the test. Twichell answered he had been in his office continually but he did not know of his own knowledge whether defendant had tried to contact him.
The witness, on redirect examination, testified:
“At the time he was told that if the outcome of the polygraph examination, lie detector examination, would indicate that he was telling the truth, then we would start checking on this story but that up to that point we did not have a straight story to check on.”
The next witness for the state was another detective, William Overman, who had been with the Wichita Police Department for nearly twenty years. Overman testified that after defendant had been brought back to Wichita from Howe, Oklahoma, in conversation with him defendant had stated he wanted to set up arrangements to have a lie detector test for himself and his wife with reference to their story as to how they came into possession of the tools in question. Overman later testified that somewhere around the tenth or twelfth of May he asked them if they were going to come down and take the lie detector test and defendant replied, “No.” He stated he had hired an attorney, he was going to fight the case, and there was no reason for either him or his wife to take the lie detector test.
Defense counsel made no objection to this testimony on the part of this witness in the state’s case in chief.
On cross-examination Detective Overman stated that defendant had originally approached Detective Twichell about a lie detector test and defendant had also approached him about a test but defendant later informed Overman that he had hired an attorney and was not going to take the test.
Defendant in his own behalf testified he had told Detective Twichell that if Twichell did not believe his story he was willing to take a lie detector test but later defendant had “got a hold” of an attorney who did not want him or his wife to take a lie detector test and that was the reason for their not having taken the test.
The plea of alibi was that on the dates in question defendant was at Fort Smith, Arkansas, Howe, Oklahoma, and Oklahoma City, Oklahoma, and thus he was not in Wichita.
The jury returned a verdict of guilty which was accepted by the trial court and defendant was sentenced under the habitual criminal act (G. S. 1949, 21-107a) for a term of fifty years. Hearing was had before the trial court on the motion for new trial. The only question raised was the competency of the evidence offered by the state in its case in chief relating to the lie detector test. The contention was such evidence prejudiced defendant’s only defense, that of alibi, because an impression was made on the jury that defendant was afraid to take a lie detector test and the testimony of defendant and his wife was thereby discredited which was highly prejudicial to defendant’s substantial rights. Motion for new trial was overruled and appeal taken from the order overruling defendant’s motion for new trial, and the further order of the court entered on October 24, 1961, in the final journal entry of judgment of the trial court.
The only question before this court for determination is whether reference to defendant’s refusal to take the lie detector test and other testimony in regard thereto in the state’s case in chief prejudiced the substantial rights of defendant. The state contends the error, if any, was a technical error and does not, therefore, justify a reversal. It directs our attention to G. S. 1949, 62-1718, which provides:
“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”
The defendant, on the other hand, contends that since his only defense was that of alibi, the trial court’s admission of references to a lie detector test and the defendant’s refusal to take the test did prejudicially affect his substantial rights. He contends that any result of a lie detector test would not only be improper but incompetent testimony, and further contends that a record containing a refusal to take the test was prejudicial and serious because it created the impression in the minds of the jury that he was lying in regard to his alibi because he was afraid to submit to the lie detector test. In support of his contentions defendant cites State v. Lowry, 163 Kan. 622, 185 P. 2d 147, wherein this court, in substance, stated that at the second trial (following the disagreement and discharge of the jury at the first trial) over the objection of the defendant, testimony was given as to the results of certain tests on the “lie-detector” and the operator’s interpretation of such results, and it was there held such evidence was not admissible, over objection, and the rights of the defendant were prejudiced by its admission. (Syl. ¶ 3.)
It should be noted that in the Lowry case even though the lie detector evidence tended to support the state’s case and to contradict the defendant’s case and the verdict of the jury found defendant guilty of a lessor offense than the one with which he was charged, this court held that the trial court erred in admitting the lie detector evidence, reversed the judgment, and directed that a new trial be granted.
In the opinion in the Lowry case this court pointed out cogent reasons for this attitude toward the admission of such evidence including the fact that a machine cannot be cross-examined and that while a sensitive person having to submit to the test might show unfavorable physical reactions, many guilty persons of hardened or less sensitive spirit would register no physical indication of falsification. The court further stated:
“We are not ready to say that the lie-detector has attained such scientific and psychological accuracy, nor its operators such sureness of interpretation of figures on a dial that the testimony here in question was competent, over objection, for submission to a jury holding the fate of the defendant in its hands.” (p. 628.)
Defendant cites many authorities from other jurisdictions, but we think this subject is so well covered in the reported cases of this court that we need not go into foreign jurisdictions for determination of the question presented.
Defendant then directs our attention to State v. Smith, 187 Kan. 42, 353 P. 2d 510, wherein the county attorney attempted to inject into the evidence reference to a he detector test. The trial court sustained each and every objection thereto and admonished the jury not to consider it either as part of the evidence or in its deliberations. This was done not only on direct evidence regarding the lie detector test but on any evidence of conversations regarding the subject not only before the jury but during arguments before the trial court in the absence of the jury. This court, in affirming the trial court, stated:
“All parties were fully cognizant of the decision of this court in State v. Lowry, 163 Kan. 622, 185 P. 2d 147, holding lie detector tests to be incompetent evidence.” (p. 44.)
In our present case the state contends defendant waived his objection to the testimony of Detectives Twichell and Overman for the reason he cross-examined Twichell, he did not object to Over-mans testimony in chief, and he cross-examined Overman in regard to the lie detector test. We cannot agree with this contention because the trial court’s admission of Twichell’s testimony in the state’s case in chief allowed the “poison” to be brought in, so to speak, when it was, in fact, incompetent. Under our decision in the Lowry case, the only proper thing for the trial court to do was to sustain defendant’s objection, to admonish the jury to disregard the testimony, as was done in the Smith case, and to see that no further reference was made to a lie detector test during the remainder of the trial.
Our conclusion is that a new trial should be granted to this defendant because the trial court erred in the admission of evidence with reference to defendant’s refusal to take a lie detector test and the erroneous admission of such incompetent evidence prejudiced the substantial rights of defendant whereby he was deprived of his only defense of alibi and was thereby denied a fair and impartial trial.
Reversed with directions. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a habeas corpus action from an order of the district court of Leavenworth County, Kansas, entered on the 6th day of December, 1961, which denied the appellant’s release from custody in the State Penitentiary in Lansing, Kansas.
The question presented is whether the appellant was denied either equal protection of the laws or due process of law. On the 22nd day of August, 1959, the appellant appeared before the district court of Montgomery County, Kansas, and entered a plea of guilty to each of the two counts in the information charging him with robbery in the first degree and grand larceny of an automobile. Three other persons were charged with those crimes in the same information as the appellant. At his hearing the appellant was represented by a court-appointed counsel, and thereafter the court sentenced him under G. S. 1949, 21-530 and 21-534, and also G. S. 1957 Supp., 62-2239, to serve terms in the Kansas State Penitentiary at Lansing, Kansas, as follows:
“(a) A term under the provisions of G. S. Kansas, 1949, section 21-530, for robbery in the first degree, with a minimum of 7 years;
“(b) A term under the provisions of G. S. Kansas, 1949, section 21-534, for grand larceny of an automobile, with a minimum of 5 years;
“(c) That the above terms shall run concurrently.”
The three co-defendants of the appellant were also convicted and were sentenced to the Kansas State Industrial Reformatory at Hutchinson, Kansas, but since the appellant had previously been sentenced to the Reformatory, he was sentenced to the Kansas State Penitentiary at Lansing.
The appellant first contends there was no evidence produced against him at his trial in the district court of Montgomery County. The short answer to this point is that once a plea of guilty has been entered by a defendant in a criminal action there is absolutely no need to introduce any evidence whatsoever to maintain a conviction. (Darling v. Hoffman, 180 Kan. 137, 299 P. 2d 594; Carrier v. Hand, 183 Kan. 350, 327 P. 2d 895; and Peay v. Hand, 184 Kan. 182, 334 P. 2d 369; see, also, State v. Downs, 185 Kan. 168, 341 P. 2d 957.)
His second contention is that since the trial court set no maximum sentence, the seven-year minimum period for the sentence on the robbery charge was the maximum term. It is apparent the trial court applied the provisions of 62-2239, supra, to fix a minimum sentence of seven years. The provision authorizing such minimum sentence has heretofore been declared so vague and indefinite as to be judicially unadministrative, and therefore void in State v. O’Connor, 186 Kan. 718, 353 P. 2d 214. (See, also, State v. Lewis, 187 Kan. 221, 356 P. 2d 845.)
The sentence for robbery in the first degree under G. S. 1949, 21-530, is by confinement and hard labor for not less than ten nor more than twenty-one years; and the sentence for grand larceny of an automobile under G. S. 1949, 21-534, is by confinement and hard labor for not less than five nor more than fifteen years.
G. S. 1957 Supp., 62-2239 (now G. S. 1961 Supp., 62-2239), provides in pertinent part:
“In committing a defendant to an institution, the court shall not fix a maximum term of imprisonment, but the maximum term provided by law for the offense for which die prisoner was convicted and sentenced shall apply in each case: Provided, In those cases where the law does not fix a maximum term of imprisonment for the offense for which die prisoner was convicted and sentenced, the court shall fix the maximum term of imprisonment. . . .”
The above proviso has no application in this case; thus, the maximum sentenced provided by law is applicable to the appellant herein. The correctness of the manner in which the records of the Penitentiary officials reflect the sentence in no way creates or extinguishes the validity of the confinement during that term to which the petitioner is lawfully confined.
It is readily apparent the appellant has not served either the minimum or the maximum term of imprisonment for the lawful sentence imposed for grand larceny under 21-534, and he is therefore not entitled to his release by way of habeas corpus on this point. (Hicks v. Hand, 189 Kan. 415, 369 P. 2d 250; Crimi v. Hand, 187 Kan. 580, 358 P. 2d 736; and see United States v. Pridgeon, 153 U. S. 48, 38 L. Ed. 631, 14 S. Ct. 746.)
The appellant’s third contention is that he has been denied equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution because his co-defendants were sentenced to the Kansas State Industrial Reformatory, while he was sentenced to the Kansas State Penitentiary.
Even among those eligible to be sentenced to the Kansas State Industrial Reformatory it is discretionary with the trial judge. Chapter 331, Section 33, Laws of 1957 (G. S. 1961 Supp., 76-2306) provides:
“Any male person between the ages of sixteen (16) and twenty-five (25) who shall be convicted for the first time of any offense punishable by confinement in the state penitentiary may, in tire discretion of the trial judge, be sentenced either to the state penitentiary or to the Kansas state industrial reformatory.”
The appellant was previously sentenced to the State Industrial Reformatory by reason of a prior conviction December 16, 1957, in the district court of Sedgwick County, Kansas, pursuant to which he was confined to that institution, and this rendered him ineligible for a second sentence to the State Industrial Reformatory. The question thus presented is whether the Kansas statute, which classifies persons by age and previous criminal record, violates the equal protection clause as guaranteed by the Fourteenth Amendment to the United States Constitution. This must be answered in the negative. In McGowan v. Maryland, 366 U. S. 420, 6 L. Ed. 2d 393, 81 S. Ct. 1101, the United States Supreme Court stated:
“• . . Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. . . .” (pp. 425, 426.)
The statute here in question states a rational and logical classification of offenders to determine their place of confinement. Similar reasoning has been applied to uphold cases which established the constitutionality of the so-called habitual criminal acts. (Oyler v. Boles, 368 U. S. 448, 7 L. Ed. 2d 446, 82 S. Ct. 501.)
The final contention of the appellant is that the trial court erred by denying the relief he sought “when it failed to require respondent to answer the allegations made by appellant and proceeded to deny relief sought, in a mere ex parte hearing devoid of any direct answer by respondent to the grounds relied upon by appellant,” and when it “arbitrarily refused to be guided by the law of the case, as cited by appellant, and offered no lawful rebuttal to appellant’s authorities cited and did, in fact, attempt to argue the respondent counsel’s case for him.”
The record discloses an answer and return of the respondent was filed which joined issues with the contentions of the appellant in his application for a writ. Attached to and incorporated into the answer were copies of the court records upon which the confinement was based.
A statement of the law by the trial court as that court believed it to be after hearing the arguments of both the appellant and the appellee is entirely proper.
These contentions of the appellant are both frivolous and contrary to the facts.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from a conviction and judgment sentencing the accused to confinement in the State Penitentiary for a period of not less than ten nor more than twenty years on a first degree robbery charge pursuant to G. S. 1949, 21-527 and 21-530.
The questions raised are (a) whether the evidence presented by the record is sufficient to support a finding by the jury that the accused had a felonious intent, and (b) whether the trial court erred in its refusal to grant a new trial on the ground of newly discovered evidence.
The appellant, James Eugene Cooper, in his brief admits there is no question on this appeal but that he was involved in the alleged offense. This is contrary to the position which he took at the trial where his defense was alibi.
The record discloses that the appellant was charged with the crime of robbery in the first degree on the 12th day of June, 1961. The alleged act occurred at approximately 9:30 a. m. in a room at the Skaer Hotel located in Wichita, Kansas.
The complaining witness, Kirby L. Ruffin, was a bellboy at the Skaer Hotel and had retired to his room after the night’s work. The appellant knocked at Ruffin’s door and identified himself as D. L. Sterling, an alias. Upon Ruffin’s opening the door the appellant backed him into the room with a pistol and made him lie on the bed face down. Shortly after the appellant’s entry into the room Angelica Freshwater came into tire room and claimed that she had lost some money and that Ruffin had taken it. Ruffin reminded her that she had found her money and had called the manager and told him she had found it. Then according to Ruffin’s testimony Angelica said, “Well, you don’t owe me no money. You didn’t take none. You owe me $33 for a doctor bill.” He then said, “Why would I owe you for a doctor bill?”
Ruffin denied that he owed her $33 for a doctor claiming that she had had a doctor at the hotel treating her for asthma. Thereupon the appellant told Ruffin to give Angelica $33, and when he said he only had $9, the appellant ordered him to give that to her.
Ruffin in his testimony identified Angelica Freshwater as an Indian girl who had previously been in the hotel. According to Ruffin when she came into his room she said, “I told you I would be back.”
Ruffin testified that the appellant said, “I bring these girls to town to work, keep them prostituting and you boys won’t let them work. You called these boys around town and won’t let her work. You got her checked out of the Eaton.”
After Ruffin had given nine one dollar hills to the appellant, he then testified concerning the appellant as follows:
“A. Then he told me to send him $50 down to the Roaring Twenties Night Club. I told him I didn’t have $50. He said, ‘Well, I don’t care how you get it or where you get it but have it down there by 9 o’clock tonight.’ I asked him how. He said, ‘Well, go to the Western Union and get a money order made out to cash and send it to the Roaring Twenties Night Club.’
“Q. After he told you that what happened, Mr. Ruffin?
“A. Well, that was about the end. He decided he would go then. They left shortly, along about that time or right after. I think that is the last thing he said, to be sure to have the $50 to the Roaring Twenties Night Club by 9 o’clock that night.”
Thereafter police officers were called and apprehended the appellant who was identified hy Ruffin. A pistol taken from the appellant was identified by Ruffin at the trial, and also by a police officer who identified it by serial number.
At the time of apprehension the appellant denied that he knew Angelica Freshwater, and consistent with his defense of alibi he did not tell his trial attorney about her testimony as given at the hearing on the motion for a new trial, and she was not called as a witness.
The jury rejected the appellant’s evidence on the defense of alibi and found him guilty of robbery in the first degree as charged.
Counsel who represented the appellant at the trial filed a motion for a new trial within time specifying various trial errors, but thereafter the appellant employed new counsel who filed a supplemental motion for a new trial specifying for the first time the ground of newly discovered evidence. This evidence presented at the hearing on the motion for a new trial consisted of the testimony of Angelica Freshwater.
Whether the evidence before the trial court was sufficient to sustain a finding of guilt was first raised by the appellant’s motion for discharge.
The appellant argues that Ruffin denied he owed money to the appellant’s companion and co-defendant in the lower court, but that the appellant insisted he did owe money to the co-defendant and through the use of force persuaded the complaining witness to give him the sum of $9. Under these circumstances it is argued (citing State v. Goldsberry, 160 Kan. 138, 160 P. 2d 690; and 32 Am. Jur., Larceny, § 41, p. 936) that one who takes property in good faith, under fair color of claim or title, honestly believing that he is its owner and has a right to its possession or that he has a right to take it, is not guilty of larceny even though he is mistaken in such belief, since in such case the felonious intent is lacking. The appellant contends the State has not clearly shown that he was not acting under a color of right or belief that he was entitled to the property which he took. We fail to see merit in this contention.
The only testimony at the trial on this point was that of Ruffin, who related the conversation which he had with the appellant and Angelica Freshwater. The jury was entitled to believe that this was nothing more than a thinly veiled excuse to rob and extort money from Ruffin. In addition to the foregoing testimony of Ruffin the jury had before it the fact that the appellant disguised his identity to Ruffin by using a fictitious name, D. L. Sterling; that he tried to extort more money than he claimed was owed; that the appellant first tried to disguise his identity to the police; that the appellant denied any knowledge of the incident to the police; and that he denied knowing Angelica Freshwater.
In State v. Goldsberry, supra, there was a dispute over the ownership of cattle and the defendant openly took the cattle to shear them so the brand would show. The uncontroverted evidence was that the defendant took the cattle in good faith with the intent to keep them temporarily only, if he determined that he did not own them.
In reviewing an order overruling a motion to discharge in a criminal case this court on appeal examines the record to determine whether there is an absence of substantial evidence proving or tending to prove the essential elements of the crime charged. If from all the facts and circumstances disclosed by the evidence the jury might have reasonably drawn an inference of guilt, the defendant’s motion for discharge is properly overruled, and the verdict of guilty will not be disturbed. (State v. Dill, 182 Kan. 174, 319 P. 2d 172, and authorities cited therein.)
It must also be borne in mind that in criminal prosecutions any essential elements of the crime charged may be proved by circumstantial evidence. , (State v. Dill, supra; and State v. Goldsberry, supra.) Furthermore, it is axiomatic that a person is presumed to intend the natural and probable consequence of his voluntary and deliberate act, and if the commission of an unlawful act is proved, it will be presumed that such act was done with criminal intent. (State v. Eye, 161 Kan. 69, 166 P. 2d 572, and authorities cited therein.)
To honor the appellant’s contention that he should have a new trial on account of newly discovered evidence would, in substance, permit the appellant to take an inconsistent position on appeal. His defense at the trial of the case was alibi, and he presented his evidence upon that theory. The newly discovered evidence which he now asserts for a new trial, being the testimony of Angelica Freshwater, is not newly discovered evidence. It is an attempt to assert an inconsistent defense. To be newly discovered evidence it must be such that the defendant at the time of the trial was not aware of such evidence. (State v. Currens, 46 Kan. 750, 27 Pac. 140; State v. Cardwell, 90 Kan. 606, 135 Pac. 597; and State v. Fry, 131 Kan. 277, 291 Pac. 782.)
If the appellant was with Angelica Freshwater on the morning of June 12, 1961, as he now admits and previously denied, her testimony is not newly discovered evidence because the appellant must have known at the time of the trial all that he knows now concerning her testimony and her ability to testify to the facts.
Before a new trial will be granted upon the ground of newly discovered evidence, it must affirmatively appear, among other things, that it was through no want of diligence on the part of those applying for the new trial that new evidence was not discovered sooner so that it could have been produced at the trial. (Carson, Pirie, Scott & Co. v. C. M. Henderson & Co., 34 Kan. 404, 8 Pac. 727; State v. Nimerick, 74 Kan. 658, 87 Pac. 722; and State v. Chaplain, 101 Kan. 413, 166 Pac. 238.)
In State v. Nimerick, supra, it was said:
“A new trial will not be granted on the ground of newly discovered evidence unless it clearly appears that the testimony is new, material, not cumulative, and that it could not with reasonable diligence have been obtained at the time of the trial.” (Syl.)
We conclude the Rial court did not err in denying the appellant’s moüon for a new Rial on the ground of newly discovered evidence. Such acüon was within its power of discretion. (State v. Leigh, 166 Kan. 104, 199 P. 2d 504.)
The judgment of the Rial court is affirmed. | [
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|
The opinion of the court was delivered by
Parker, C. J.:
This controversy stems from a proceeding by the City of Kansas City, Kansas, to enlarge the city limits.
On April 11, 1960, the City (appellee) filed a petition with the Board of County Commissioners of Wyandotte County (hereinafter referred to as the Board) for the enlargement of the boundaries of the City to include the Fairfax Municipal Airport. The land was definitely described by metes and bounds. The petition concluded:
“Said City of Kansas City, Kansas, by and through its proper officials, states to the Honorable Board of County Commissioners that the only owner of property in the above described lands is the City of Kansas City, Kansas, and said City further states to the Board that the adding of said territory will be to its interest and will cause no manifest injury to the owner of real estate in the territory sought to be added, the City.
“Petitioners further state that they are filing this petition with the Board of County Commissioners under the terms of G. S. 1949, 12-501 and 12-502, and pray the Board of County Commissioners for the earliest possible hearing in accordance with the terms of said Statutes.”
The area described in the petition included all of the airport and dikes rights-of-way on two sides along the Missouri River. The Fairfax Drainage District (appellant) owned the dikes which comprised approximately fifty acres and also held easements on twelve to fifteen acres of land covered by the airport.
On the first day of the hearing before the Board the Drainage District objected to the dikes being included in the City’s proposed annexation. The City then requested the Board to sustain the protest and remove the land covered by the dikes from the proposed area. The Drainage District objected to this procedure.
After an extended hearing the Board passed a resolution enlarging the boundaries of the City which, so far as here pertinent, reads:
“Whereas,' after hearing all of the evidence, considering the briefs and arguments, and after due deliberation and consideration the County Commissioners did find that the adding of such territory as hereinafter described to the city will be to its interest and will cause no manifest injury to the persons owning real estate in the territory sought to be added.
“Now, Therefore, Be It Resolved that the Commissioners of Wyandotte County, Kansas herewith determine that it will be to the best interest of the city of Kansas, City, Kansas to extend its boundaries and to add the real property hereinafter described and that such extension and addition will cause no manifest injury to the persons owning real estate in the territory as described.
“Be It Further Resolved, that the boundaries of the city of Kansas City, Kansas be and they are hereby enlarged to include real property described as follows, to-wit: . . .”
The description, by lengthy metes and bounds, was omitted from the abstract but it is conceded that it did change the legal description from that set out in the petition so as to eliminate the fifty acres covered by the dikes.
The resolution of the Board approving the enlargement of the boundaries of the City was dated October 6, 1960. On the same day the Drainage District filed its appeal in the district court of Wyandotte County. We note no further action in the case until April 19, 1961, when the Drainage District filed a motion for declaratory judgment. This motion challenged the interpretation and validity of previous ordinances annexing territory to the City.
The case was tried before the district court on the evidence and exhibits submitted to the Board and other stipulated facts. The court made findings of fact which, corrected to reflect the court’s modifying order and a nunc pro tunc order, are as follows:
“1. The City of Kansas City, Kansas, has adopted three ordinances which are pertinent to this appeal, as follows:
“a. Ordinance No. 41358, adopted December 10, 1957, which described a portion of tracts of land owned by Phillips Petroleum Company and the Union Pacific Railroad lying between Fairfax Airport and the City with the north boundary line of such tract extending east and west on a line 33 feet north of the east-west centerline of Section 10, Township 34, Range 25, to the center of the Missouri River.
“b. Ordinance No. 41358 was repealed by Ordinance No. 41525. No proceedings were ever instituted under G. S. 1949, 12-504, to de-annex or exclude said tract from the city.
“c. Ordinance No. 41525, adopted March 25, 1958, described the same tract of land as described in Ordinance No. 41358 except that the north boundary is the east-west center line of Section 10, Township 34, Range 25, and extends only to the harbor line of the Missouri River instead of to the center of the river. This ordinance was the one involved in State ex rel. v. Kansas City, 186 Kan. 190.
“d. Ordinance No. 42589, adopted September 15, 1960, describes a tract of land which includes Fairfax Airport. Its south boundary line extends along the east-west center line of Section 10, Township 34, Range 25. The tract excludes 50 acres of dikes owned by the Drainage District and includes approximately 12-15 acres of easements for sewers and drainage under the airport proper which are owned by the Drainage District. It is this ordinance which is involved in the findings and order made by the Board of County Commissioners which have been appealed to this court.
“2. The petition of the City to the Board of County Commissioners for an enlargement of boundaries describes the same tract described in Ordinance No. 42589.
“3. All of the lands described in the above ordinance are unplatted.
“4. There are ten outstanding lease agreements from the City and Board of Public Utilities to various firms and corporations who occupy facilities at Fairfax Airport. Most of the leases are for terms of from one to three years. One lease extends to 1968 and another to 1991. In two of said leases, the lessees agreed not to protest any annexation efforts by the City. There is no evidence that any of these lease agreements are recorded or otherwise shown in any county records.
“5. The published notice given by the City pursuant to G. S. 1949, 12-502, did not include the names of any of the lessees referred to in Finding of Fact No. 4, nor the Missouri Pacific Railroad Company. None of said lessees nor the Missouri Pacific Railroad Company have appealed from the findings and order of the Board of County Commissioners involved in this appeal.
“6. The Drainage District appeared at the hearing before the Board of County Commissioners and protested annexation by the City, and the Board of County Commissioners, at the request of the City, excluded from the area to be annexed the 50 acres of dikes owned by the Drainage District. The Board did not exclude the approximately 12 to 15 acres of easements under the airport owned by the Drainage Board.
“7. The Missouri Pacific Railroad Company by deed dated July 18, 1944, conveyed an 8.12 acre tract of land to the City described as follows:
“ ‘A tract of land situated in the northeast quarter of Section 34, Township 10 South, Range 25 East, Wyandotte County, Kansas, more particularly described as follows, viz.:
“ ‘Starting at the southeast corner of the northeast quarter of said Section 34, measure westwardly 1138.05 feet along the southerly line of said quarter section, being also the centerline of Rickel Road (66 feet wide) as located therealong; thence turning an angle of 109 degrees, 3 minutes, 40 seconds to the right, northeastwardly 34.91 feet to the northerly line of Rickel Road for the point of beginning, thence continuing northeastwardly along last described course 879.47 feet; thence westwardly parallel to centerline of Rickel Road 425.67 feet; thence turning an angle of 70 degrees, 58 minutes to the left, southwestwardly 879.31 feet to the northerly line of Rickell Road, thence eastwardly 425.16 feet to the point of beginning, containing 8.12 acres, more or less.’ Rickel Road is 60 feet wide instead of 66 feet wide as stated in the above description, and the Drainage District contends that the south three feet of the above tract (3' x 425.67') is still owned by the grantor, Missouri Pacific Railroad Company.
“8. The Board of County Commissioners by resolution No. 467, dated October 6, 1960, made a finding that the adding of Fairfax Airport, as described in the resolution, excluding the dikes of 50 acres, to the City, would be to its interest and would cause no manifest injury to the persons owning real estate in the territory to be added, and ordered the boundaries of the City enlarged to include such territory.”
The Court made the following conclusions of law:
“1. In this appeal, this Court has only the jurisdiction granted by G. S. 1949, 12-502a.
“2. The validity of the ordinances described in Findings of Fact numbered 1 may not be questioned in these proceedings.
“3. The City boundaries are adjacent to the area sought to be annexed by Ordinance No. 42859 [sic] [42589].
“4. The Drainage District is not aggrieved by the failure of the published notice required by G. S. 1949, 12-502, to name the leaseholders named in Finding of Fact No. 4 or the Missouri Pacific Railroad Company.
“5. The failure of the published notice required by G. S. 1949, 12-502 to name certain leaseholders and the Missouri Pacific Railroad Company does not void the proceedings to annex Fairfax Airport.
“6. Under the facts set forth in Finding of Fact No. 6, the Board of County Commissioners properly excluded from the area to be annexed the 50 acres of dikes owned by the Drainage District.
“7. The Drainage District is not aggrieved by the order of the Board of County Commissioners excluding from the area to he annexed the 50 acres of dikes owned by the Drainage District and not excluding the approximately 12-15 acres of easements owned by the Drainage District.
“8. There has been no showing that the order of the Board of County Commissioners referred to in Finding of Fact No. 8 has caused any manifest injury to the Drainage District or to any leaseholder or any owner of any interest in the land included in the area to be annexed.
“9. The order of the Board of County Commissioners referred to in Finding of Fact No. 8 is affirmed.”
The Drainage District, after filing its appeal in the district court, filed a motion for declaratory judgment challenging the validity of four previous ordinances extending the boundaries of the City. It challenges, in particular, Ordinance No. 41525 which brought the city limits adjacent to the airport. The Drainage District suggests that if this ordinance is held invalid the city limits are not adjacent to the airport and G. S. 1949, 12-501, under which the City proceeded, would not be applicable. The statute applies only “whenever any city desires to enlarge the limits thereof from territory adjacent thereto, . . .”
The first obstacle facing the Drainage District is that it has no legal standing to raise the issue. This court has held in a long line of decisions that the validity of an ordinance annexing territory to a city can only be challenged in an action brought in the name of the state by its proper officers.
In Chaves v. Atchison, 77 Kan. 176, 93 Pac. 624, it was held:
“The validity of proceedings taken by city officers under statutory authority extending the corporate boundaries of a city so as to annex a tract of land can only be questioned in a direct proceeding prosecuted at the instance of the state by proper public officers. The case of Topeka v. Dwyer, 70 Kan. 244, 78 Pac. 417, followed.” (Syl.)
See, also, Price v. City of McPherson, 92 Kan. 82, 139 Pac. 1162 in which the two cases above mentioned are cited.
In Smith v. City of Emporia, 168 Kan. 187, 211 P. 2d 101, we held:
“In this jurisdiction actions questioning the validity of proceedings extending the corporate limits of a city cannot be maintained by private individuals and can only be prosecuted at the instance of the state by its proper officers.” (Syl.)
And in the opinion, after reviewing the earlier decisions, said:
“Appellant advances numerous arguments, many of them plausible, as to why the courts should permit private individuals to attack the corporate integrity of a city. Most, if not all, of them have been considered and rejected in the decisions to which we have referred and for that reason require no specific discussion here. It suffices to say we find nothing in any of them which would justify us in repudiating the rule, founded on public policy and which has been the settled law of this state for far more than half a century, that they cannot do so. If the consequences resulting from its application are as dire as he would have us believe it is indeed strange that the legislature of this state, which has unquestioned power to authorize individuals to maintain actions of such character, has not seen fit at repeated sessions to grant them that privilege.” (p. 193.)
In the recent case of State, ex rel., v. City of Kansas City, 186 Kan. 190, 350 P. 2d 37, this court stated:
“We now come to the question of Quindaro’s status in this proceeding. In State, ex rel, v. City of Kansas City, 169 Kan. 702, 719-721, 222 P. 2d 714, Quindaro, along with four rural high school districts of Wyandotte County, filed briefs amici curiae in support of plaintiff’s attack on similar annexation ordinances affecting the Fairfax industrial district because of the resulting loss of taxes to Quindaro and the school districts. . . .
“The most favorable interpretation to be made of the pleadings of Quindaro and the intervenors indicates they are attacking the city’s attempt to extend its corporate limits to include new territory, which is a reorganization of the city that in turn involves its corporate validity. Such an attack can only be made by the state. The landmark case of Smith v. City of Emporia, 168 Kan. 187, 211 P. 2d 101, 13 A. L. R. 2d 1272, malees this point crystal clear and includes a thorough discussion of , many of the leading cases cited by the parties to this appeal. See, also, Lampe v. City of Leawood, 170 Kan. 251, 253, 254, 225 P. 2d 73.
“In City of Blackwell v. City of Newkirk et al., 31 Okla. 304, 121 Pac. 260, the conclusion of the Oklahoma supreme court likewise was that only the state may question extensions of city limits and, as shown in the opinion (p. 329), this conclusion was based at least in part on decisions of our Kansas court.” (pp. 197, 198.)
Even though a declaratory judgment action were a proper method of challenging the validity of a city ordinance, it would not lie in this case. Before an action for declaratory judgment can be maintained an actual controversy must exist. There can be no actual controversy in the absence of a proper party plaintiff. Boeing Airplane Co. v. Board of County Comm'rs, 164 Kan. 149 188 P. 2d 429, holds:
“There must be at least two parties who can assert rights which have developed or will arise against each other before an actual controversy can exist which is justiciable under our declaratory judgment act.” (Syl. ¶ 2.)
There is an additional reason why the Drainage District’s attempt to challenge the validity of the previous ordinances must faff. The validity of an ordinance extending the boundaries of a city cannot be attacked in a collateral proceeding.
See Topeka v. Dwyer, 70 Kan. 244, 78 Pac. 417, where it is held:
“Complete proceedings for the enlargement of the corporate area of a city, authorized by an act of the legislature, are not open to collateral attack in a prosecution for the enforcement of an ordinance of the city within the annexed territory so far as mere defects, informalities and irregularities, questions of good faith and good judgment, the finding of necessary facts, the determination of disputes of fact and like matters are concerned.” (Syl. ¶ 2.)
See, also, Fletcher v. Weigel, 152 Kan. 104, 102 P. 2d 1055, where it is said:
“. • . These statutes furnished the color of law and semblance of legal right ample and sufficient to sustain the annexation of the addition as against a collateral attack. Where a municipal corporation is acting under color of law, and its existence is not questioned by the state, it cannot be collaterally drawn in question by private parties. (Topeka v. Dwyer, 70 Kan. 244, 78 Pac. 417, In re Short, 47 Kan. 250, 27 Pac. 1005; Horner v. City of Atchison, 93 Kan. 557, 144 Pac. 1010.)” (p. 108.)
The Drainage District urges numerous objections challenging the validity of the order of the Eoard enlarging the boundaries of the City. Refore considering the objections it might be well to review the statute giving the right to appeal from such order. The right to appeal is provided by G. S. 1949, 12-502a, which reads:
“Any owner of land sought to be taken into the limits of a city under the provisions of this act, who shall be aggrieved by the decision of the board of county commissioners may appeal to the district court of the same county in the manner and method as now provided by section 19-223, Revised Statutes of 1923.”
G. S. 1949, 12-502, after providing for notice, states:
“. . . On the day set the board of county commissioners shall proceed to hear testimony as to the advisability of making such addition, and upon such hearing, if said board of county commissioners shall be satisfied that the adding of such territory to the city will be to its interest and will cause no manifest injury to the persons owning real estate in the territory sought to be added, they shall so find; and thereupon the governing body of such city by ordinance may enlarge the limits thereof to include the territory so added:
It would appear that the term “manifest injury” as used in 12-502, supra, refers to the injury which is legally sufficient to cause the appellant to be "aggrieved” under 12-502a, supra.
The district court in a memorandum opinion presented an able discussion of this question. We quote pertinent portions of the memorandum:
“A party is aggrieved whose legal right is invaded by an act complained of or whose pecuniary interest is directly affected by the order. The term refers to a substantial grievance, a denial of some personal or property right, or the imposition upon a party of some burden or obligation. In this sense it does not refer to persons who may happen to entertain desires on the subject, but only to those who have rights which may be enforced at law and whose pecuniary interest may be affected. (2 Am. Jur. 941, Appeal and Error, Secs. 149-152; Black’s Law Dictionary, 3rd ed.)
“In this case the appellant Drainage District is a quasi-public corporation, an arm of the State, created by the legislature to perform a function of government. In general it is authorized to sue and be sued, to make contracts, to borrow money, to issue bonds, to levy special taxes and assessments, to exercise the power of eminent domain, to own property, and to have exclusive control over all watercourses within its territorial limits for the purpose of preventing overflow and private property damage, and to do all things necessary to carry out its general powers (G. S. 1959 Supp., 24-407). But the particular powers granted to the Drainage District must be measured and limited within the purposes for which it was created. It has no authority which has not been clearly granted to it by the legislature and which is not necessary and proper to carry out the purposes for which it was created. Without discussing the question as to whether it has the authority to appeal in this case, it is difficult to see how it is aggrieved by the order complained of.
“It has no vested right to the territory under its jurisdiction except as given by statute in furtherance of the purposes for which it was created (State ex rel. v. Kansas City, 186 Kan. 190, l. c. 198); and insofar as the powers and duties conferred upon the Drainage District are concerned, they are not abridged by reason of the annexation to the City. Within the scope of the statute creating it, the Drainage District will still have the same duties, powers, and exclusive jurisdiction as it had before, and it may still enforce its reasonable orders by mandamus or otherwise, even as against the City if necessary (Drainage District v. Wyandotte County, 117 Kan. 634, l. c. 636; G. S. 1959 Supp. 24-307 [sic] [24-407] Ninth); nor will it be subjected to any tax burden or thereby be deprived of any of its revenue. For these reasons, it is my opinion that there has been no showing that the order complained of has caused any manifest injury to the appellant Drainage District, and the order of the Board of County Commissioners will be affirmed . . .”
If the Drainage District is not aggrieved it has no right to challenge the Board’s order on appeal. Appeals are permitted only to correct material errors injuriously affecting the appellant.
In Anderson v. Carder, 159 Kan. 1, 150 P. 2d 754, we said:
“Appellant was not a proper intervenor in the injunction suit; he has no personal interest in the judgment rendered; he is not prejudiced or aggrieved thereby; the defendant, the real party in interest, is not appealing and the intervenor is not a proper party appellant.”
“The question of what constitutes the necessary interest to give a person a right of appeal is often an interesting one. Ordinarily a person cannot appeal from a judgment unless he has a particular interest therein and is aggrieved or prejudiced thereby. Ordinarily his interest must be immediate and pecuniary. (McLeod v. Palmer, 96 Kan. 159, 150 Pac. 535; Cardin v. Apple, 150 Kan. 162, 92 P. 2d 32; In re Estate of Doyle, 152 Kan. 23, 30, 103 P. 2d 52; 2 Am. Jur., Appeal and Error, §§ 149, 150, 152; 4 C. J. S., Appeal and Error, § 186.) Appeals are not allowed for the purpose of settling abstract questions, however, interesting or important to the public generally, but only to correct errors injuriously affecting the appellant. (2 Am. Jur., Appeal and Error, § 152; see, also, Nicholas v. Lawrence, 161 Va. 589, 171 S. E. 673; Barriger v. Louisville Gas & Electric Co., 196 Ky. 268, 244 S. W. 690.)” (p. 4.)
Some of the objections raised by the Drainage District cover alleged grievances suffered by other parties with which the District is not concerned. A litigant on appeal cannot champion the rights of a party in which it has no interest. See Heil v. Heil, 40 Kan. 69, 19 Pac. 340, where it is held:
“Errors of the trial court, alleged as against only one of several defendants below, some of whom join in a petition in error, but the party against whom it is alleged the error was committed does not join in the petition in error, will not be considered for the benefit of those who bring the case here. If the ruling in this case was erroneous, it was prejudicial to the party solely and alone, who does not appear in this court seeking to have it reversed.” (Syl.)
See, also, syllabus 3 of Scott v. Linn, 126 Kan. 195, 268 Pac. 84, which reads:
“Parties to an action cannot complain of erroneous proceedings against the rights of an infant not a party thereto where the attention of the court is not called thereto until after judgment, and where the rights of the parties calling the attention of the court to the matter are not affected by the proceedings against the infant.”
The record discloses nothing that would indicate the order complained of has caused any manifest injury to the Drainage District, nor given it any cause to be aggrieved. This is all that is necessary to require an affirmance of the trial court’s judgment under our comparatively recent decision in City of Salina v. Thompson, Trustee of Mo. Pac. Rly. Co., 169 Kan. 579, 220 P. 2d 147, construing the involved statutory provisions (12-501, 12-502 and 12-502a, supra).
Notwithstanding the record fails to disclose any grievance on the part of the Drainage District we have, because of the seriousness with which able counsel argue their objections, carefully considered all questions raised and find nothing which would warrant the sustaining of such objections or justify our disturbing the findings of fact and conclusions of law as pronounced by the district court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J. :
An offer of employment was made by a letter in the following terms :
“Camden, N. J., April 27, 1899.
“Mr. W. A. Holcomb, care of Gable, Johnson & Jones,. Kansas City, Mo. :
“Dear Sir — We have your letter of the 23d, and we notice that you are like the old chickens in your desire to return to the original hen-roost, to perch upon a comfortable stick, placed there for the convenience of all those old sons who desire to return for the killing of the fatted calf.-
“Seriously speaking, after reading your letter we would say, that it arrived at an opportune moment, as we were about making arrangements for the working of a certain territory on the Missouri river, and your letter caused us to hesitate in the completion of our plans, and to consider you in- connection therewith.
“Now, we have talked this matter over in confidence among ourselves, and we have reached the conclusion that if you can take up this work with a positive intention of making yourself amenable to the rules and discipline in force in the conduct of our business, there is no reason why you should not be able to make for yourself a good position, and prove a valuable employee to us.
“The whole thing, however, hinges upon your determination to do as we direct and to avoid such complications as you tied us up in formerly, during your previous connection with our house. Unless this can be clearly understood, we are frank to state that we would not for one moment consider putting you on as our representative, because we believe that the disgruntlement of the trade and the dissatisfaction caused thereby hurts and hurts hard, and for a long time, the house which practically stands behind, and is morally responsible for, the actions of its salesmen.
“Now, we make you this proposition : We are willing to engage you upon a salary of $75 per month and your traveling expenses, and further state that if your connection continues with us for the period of an entire year, and the character of your business as to volume, etc.', and the manner of your conducting it is satisfactory to us, we are willing to make this salary equivalent to $100 per month by the payment of the $25 excess at the close of the year, under the conditions named. The determination of this you must leave entirely to us, and you must judge as to the honor and integrity of our house as to whether we are entitled to this much confidence from you or not.
“Another feature is that we do not desire any entanglements such as drawing money from Sauer or any one else, and having them deducting from their remittance. We will keep you properly supplied with funds for necessary purposes from this end, upon proper request from you,, with time necessary to get the money to such, points as you may name, and we shall notify Mr. Sauer as well, to the effect that we do not wish him to make any advances to you and consider us in any way responsible for the adjustment thereof.
“Now, the present territory that we would wish you to cover we would mention as follows : Leavenworth, Lawrencp, Topeka, Salina, Hutchinson, Wichita, Independence, Coffeyville, Parsons, Fort Scott, Pitts-burg, Springfield, Fort Smith, Oklahoma City, Guthrie, and then we will probably move you to Pueblo, Colorado Springs, and Denver, .and may consider sending you to the slope. All this, however, can be arranged later, as we have given you in the above-named points an ample territory to work for some little time to come.
“You are acquainted with our line — you know our soups, the sale of which has grown phenomenally, and when we tell you that in about 30 days we shipped to one point, New Orleans, about 10,000 dozen of these goods, you can form some impression of how they are taking.
“We are also packing mince-meat in 2-lb. cans, apple butter, with an attractive label, in 3-lb. cans, and are about putting on the market a new 1-lb. jar jam in place of the old Ivanhoe jar.
“Wire us at once, on receipt of this, your acceptance or rejection of this proposition, so that we may lose no time in our determination to cover the ground we have outlined to you. If you accept, we will forward expense money and trunk of samples to such a point as you may designate, so that you may get to work at once, as the business is there and should be looked after without delay.
“We trust we have been sufficiently explicit to have you understand exactly the conditions under which we offer to engage you, and we would like to hea.r from you immediately upon receipt, if it is satisfactory.
“We beg to return you herewith the Erie company’s letter. Yours very truly,
Joseph Campbell Preserve Go.
(Die. L. M. F.) ' Den M. Frailey, See'y."
The offer was accepted by telegram, as follows :
“Kansas City, Mo., April 29,1899.
“Joseph Campbell Preserve Company, Camden, N. J.:
“Accept your proposition. Send samples to Gable here. W. A. Holcomb.”
Services were performed for the period stipulated,' and the salary of seventy-five dollars per month paid. At the end of the year the additional twenty-five dollars per month was not paid. Holcomb continued in the service of the company for several months longer, receiving monthly a salary of seventy-five dollars. He then engaged in business with others, and brought suit for the balance claimed to be due for the first year’s work, at the rate of one hundred dollars per month. On the trial the plaintiff proved the performance of service, and the volume of business done by him, and introduced some evidence tending to show that the services rendered were satisfactory in January, 1900. No evidence whatever was offered to show that at the close of the year the company was satisfied with the work done. No fraud or bad faith on the company’s part was pleaded or proved. Under this state of facts no right to recover is disclosed. •
The question to be tried was not the character of business as to volume, etc., and the manner in which it had been conducted, but the company’s satisfaction therewith. The jury might believe the services to have been insufficient to warrant approval; yet if the company was satisfied it should pay. On the other hand, if the jury should esteem the services sufficient to produce satisfaction, still the company would, not be liable unless it were actually satisfied. The determination of that question the company-reserved entirely to itself. Neither the plaintiff nor the jury had the right to assume 'any part of that prerogative. The fact that plaintiff continued tó work for the company after the expiration of the year was no evidence of such satisfaction with his efforts as rendered the additional sum due. It proved nothing more than that the company was still willing to pay him seventy-five dollars per month for what he was doing. The plaintiff had a perfect legal right, if he so desired, to agree to work for seventy-five dollars per month, and leave it to his employer to say if he should receive more. Having done so, he is bound by his contract. His conduct may have been wise or unwise, but the company plainly told him it would deal with him on no other terms. He accepted the hazard and must abide the result. (Taylor v. Brewer, 1 M. & S. 290; Butler v. Winona Mill Co., 28 Minn. 205, 9 N. W. 697, 41 Am. Rep. 277; Blaine v. Knapp Co., 140 Mo. 241, 41 S. W. 787 ; Bush v. Koll, 2 Colo. App. 48, 29 Pac. 919 ; Nelson v. Von Bonnhorst, 29 Pa. St. 352 ; McCarren v. McNulty and others, 7 Gray, 139, 46 Cent. L. J. 360.)
A question of jurisdiction has been presented. The finding of the court with reference thereto, upon oral and other, evidence, is probably conclusive. But, because of the view of the case upon the merits here taken, further discussion is unnecessary.
The judgment is reversed and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
Samuel G. Miller sued Henry Baier, alleging that he was the owner of a note secured by a. real-estate mortgage, both executed by Franz and Anni Svoboda; that Baier had bought the land, and in a letter written to plaintiff on May 14, 1892, agreed to pay the mortgage debt, which was then due. The action was upon this promise for the amount of the debt,, and was begun March 26, 1900. To avoid the statute of limitations, the petition alleged that Baier had at all times referred to been absent from the state of Kansas. The defendant filed an answer which included a general denial. Upon the trial a demurrer was sustained to plaintiff’s evidence, and plaintiff appeals.
In the briefs several interesting questions are discussed growing out of the form of the letter relied on by plaintiff. It will not be necessary to determine them, however, as another consideration requires an affirmance of the judgment. Under the pleadings it was incumbent upon plaintiff to prove that Baier had be,en absent from the state, as otherwise the statute of limitations had obviously barred the claim. There was no evidence on this point. There was testimony that Baier was a resident of Illinois, but this is not sufficient. It is the personal presence in the state, not the matter of residence, that affects the running of the statute, and evidence merely of residence out of the state cannot be considered as the equivalent of evidence of continuous personal absence from it. See Investment Co. v. Bergthold, 60 Kan. 813, and cases cited. In that case the whole question to be determined was whether the running of the statute of limitations had been prevented by the absence of one Donaldson from the state. - The trial court had excluded the testimony of a witness that Donaldson “had not resided in the state since August, 1893, and was not then dn the state.” On review this court said:
“ The testimony, in our judgment, relating as it did to residence in the state, and to the fact that Donaldson was absent from the state at the time of the trial, was incompetent.”
The judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
Defendant in error brought- this action in the court below to recover his damages caused by the publication of a malicious libel by plaintiff in error. He was awarded judgment in the court below. The publication complained of was one relating to moneys collected by plaintiff below, as an agent of the company, and which imputed to him the act of embezzlement of such moneys. The only substantial claim of error is that there was no malice shown. Much evidence is found tending to disprove malice. Some is found tending to prove it. The jury heard and weighed it all, and under proper instructions found for the plaintiff. We cannot disturb the finding.
The judgment will be affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to enjoin a governing body of a city from entering into a contract for paving some of the city streets. Judgment was for defendants. The plaintiffs have appealed.
The action was brought by some twenty-two resident taxpayers of the city whose property will be liable for the cost of the paving. The contemplated paving consists of three projects. The petition first set out three resolutions, the initial steps in a paving project in a city of the third class. These resolutions provided that the designated blocks “shall be paved and graded with such excavation as may be necessary”. Resolutions 8, 9 and 10 were identical except for the streets described. Following the adoption of these resolutions the city enacted ordinance No. 222. It first recited the adoption of the resolutions; then recited that the resident owners of more than one-half of the property liable for taxation for paving had not within twenty days of the last publication of the resolutions filed with the city clerk their protest against the paving. It then provided that various blocks described in the three different projects be paved; that the improvements be carried on in accordance with plans and specifications provided by the engineer of the city and on file with the city clerk; that the improvements except for intersections and along city owned property be assessed against the lots and parcels of land liable therefor in the manner provided by law and that the cost of the improvements of intersections and abutting city-owned property be assessed against the city at large and paid from taxes levied against all taxable property in the city as provided by law. The ordinance then contained some provisions with reference to the levy and collection of taxes and the issuance of bonds, which are of no concern to us here. With reference to the foregoing resolutions and ordinances the petition then alleged that within less than twenty days from the last publication of the resolutions the resident owners of more than one-half of the property liable for taxes for the improvements filed their separate protests with the city clerk against each of them; that all the protestants had been advised by letter that the governing body intended to let a contract for the paving; that it requested in the letter that if plaintiffs intended to sue the city to prevent its proceeding that they do so before the city had incurred liability for plans and specifications.
The petition then alleged that the resolutions and the ordinance failed to confer power on the governing body to cause the improvements to be made and they were illegal and void because they failed to set out the general character of the improvement so as to enable taxpayers, who might be liable therefor, to tell the amount of their potential burdens as taxpayers, the contemplated paving was an abortive attempt to improve areas other than streets of Holyrood; it contemplated the improvement of streets bordering on the city limits; the resident owners of more than one-half of the property liable for taxation did within twenty days after June 22, 1949, file with the city clerk their protest in writing against the improvement; the resolution and ordinance were not adopted in the manner provided by law.
The petition further alleged ordinance No. 222 was void because the governing body had no authority to cause the improvements to be made; the finding in the ordinance that more than one-half the resident owners of the property liable to be taxed had not filed their protest within twenty days was made by the governing body without sufficient information so that it could have been made in good faith; the legal requirements necessary to the passage of the ordinance had not been complied with; it sought to improve areas not a part of the city; it did not describe the general character of the improvement; the contracts the city was about to enter into were not authorized and would result in the creation of a public burden and the levy of an illegal tax; the contracts would violate the cash basis law and budget law of the state; the issue of bonds which the ordinances sought to authorize would cause the city to exceed its limit of bonded indebtedness; would cause the city to assume a liability for which no funds were available and the ordinance was premature, improvident and illegal.
The petition next alleged that the plaintiffs were the owners of property abutting the streets upon which the defendants by the ordinance had attempted to lay the foundation for the levy of an illegal tax; that their property would be affected and their burden as taxpayers would be unjustly and inequitably increased by it.
The answer of defendants was a general and specific denial. The answer further alleged that the resolutions and the ordinance were enacted in accordance with the statutes of Kansas, especially G. S. 1935, 12-601 and 12-602 and all the improvements provided would be located on the land described.
Plaintiffs’ motion to strike some of the above allegations, their demurrer to the answers and the motion of plaintiffs for judgment on the pleadings were overruled.
When the action was tried on its merits there was a stipulation as to many of the facts and the court made findings to the effect that the resolutions and ordinance were adopted according to law; that the determination of the ordinance the resident owners of more than one-half of the property liable for taxation for said several improvements did not within twenty days from the last publication of said resolutions file with the city clerk of said city their protests against said improvements was not arbitrarily, capriciously or otherwise wrongfully made.
The trial court then made a finding as to each of the benefit districts as follows:
“Exhibit ‘A’
Resolution No. 8: (a) Total area (b) Area owned by qualified protestants, 413,375 square feet, 200,966 square feet,
Exhibit ‘B’
Resolution No. 9: (a) Total area (b) Area owned by protestants 319,615 square feet, 127,055 square feet,
Exhibit ‘C’
Resolution No. 10: (a) 1. Area privately owned property 2. Area owned by City of Holyrood, 3. Area owned by Atchison Topeka & Santa Fe, (b) 1. Area owned by qualified protestants, 189,000 square feet, 21,000 square feet, 40,200 square feet, 116,541% square feet.”
The court further found that the area owned by the city should be included in the determination of the total area of a benefit district; that School District No. 24 of Ellsworth county owned 44,475 square feet of property liable for taxation for improvements contemplated by Resolution No. 8; that the plaintiffs failed to establish that any of the area to be taxed for the improvements was outside the corporate limits of the city; that a protest was filed as to each of the proposed improvements, the protest being incorporated by reference.
The court concluded as a matter of law that the resolutions and ordinances were worded in substantial compliance with the statute; that School District No. 24 was not eligible to protest the improvements contemplated by Resolution No. 8; that the determination in the ordinance that no sufficient protest was filed was binding on the court in. the absence of arbitrary, capricious or fraudulent conduct by the governing body; that the area owned by the city should be included in computing the total area of the benefit district.
After plaintiffs’ motion for a new trial was overruled judgment was entered in accordance with the foregoing — hence this appeal.
The specifications of error are that the trial court erred in permitting the defendants to introduce in evidence withdrawals of protests, in concluding as a matter of law that the resolutions and the ordinances were duly adopted, in concluding that the land owned by the city should be included, in determining the total area of a benefit district, in determining as a matter of law that School District No. 24 was not eligible to protest the improvement contemplated by Resolution No. 8, in determining that the resident owners of more than one-half of the property liable for taxation did not within twenty days of the publication of the resolution file their protests against the improvements, in that plaintiffs were not entitled to the relief sought, that Finding No. 3 and conclusions were contrary to the evidence, in not setting aside findings and conclusions and in not granting plaintiffs a new trial.
In their brief in this court plaintiffs argue first their demurrer to the answer and their motion for judgment on the pleadings should have been sustained because the resolution did not set out in any district the kind, character or nature of the work to be done so that a taxpayer could be able to foresee about what his tax burdens would be and thus be able to intelligently determine whether he wished to protest.
Provision for paving city streets is found in G. S. 1949, 12-601 tc 12-602. The first of these sections provides the cost of such paving shall be assessed to the property on each side of the street to the middle of the block. The next section 12-602, provides for a resolution of the governing body of the city declaring the contemplated work to be necessary. This resolution must be published for two weeks if published in a weekly paper. The section then contains a provision as follows:
“. . . and if the resident owners of more than one-half of the property liable for taxation therefor shall not within twenty days from such last publication file with the clerk of said city their protest against such improvement, the governing body shall have power to cause such work to be done or such improvements to be made, and to contract therefor and to levy taxes as herein provided. . . .”
The remaining portion of the section contains provisions for levying the tax for paving intersections and making improvements on streets running along city owned property, with which we are not here concerned. The power of cities to make property liable for special improvements is found in the statutes. Generally it is held that a substantial compliance with the requirements of the statute is sufficient. (See Newman v. City of Emporia, 32 Kan. 456, 4 Pac. 815.)
Bentley v. Gunn, 125 Kan. 784, 266 Pac. 28, was a case where resident taxpayers sought to enjoin the governing body from proceeding with a repairing job. The authorities had proceeded under the section we are considering. One of the arguments of the plaintiff was that proceedings were bad because the resolution pro vided for recurbing and reguttering where necessary without specifying where such resurveying and reguttering were necessary. We said:
“The city had authority under section 12-602 of the Revised Statutes to recurb and regutter where necessary. The failure of the resolution and of the ordinance to specify where the recurbing and reguttering were necessary did not render the proceedings so irregular as to render them subject to an injunction at the suit of taxpayers owning property along the street.”
The same reasoning would apply to this case, that is, in neither instance did the resolution or the ordinance contain information that would advise the taxpayers of the probable cost of the improvement contemplated. The answer in each case is that such failure did not render the proceedings bad because the statute did not require such information to be in the resolution.
Plaintiffs next point out that the project covered by Resolution No. 8, School District No. 24, owned 44,475 square feet of real estate. The school district board filed, along with others, a protest against the project. If the board had authority to do this, then this protest, along with others, would have been more than fifty percent of the real estate in that project. The trial court held it had no such right. We have held in analogous cases that a county was not a resident of the county seat where there was paving in front of the courthouse square. (See Osborne County v. City of Osborne, 104 Kan. 671, 180 Pac. 233.) There we placed the decision on the question of whether the county was a resident of the county seat. We quoted the statute, now G. S. 1949, 77-201, subsection 23, as follows:
‘The term “residence” shall be construed to mean the place adopted by a person as his place of habitation, and to which, whenever he is absent, he has the intention if returning.’
Then we said:
“This definition cannot well be applied to a county, and a majority of the court holds that, in the absence of statutory authority, express or implied, it cannot be held that a county is a resident owner with the right to promote or obstruct the making of improvements within a city in which it may happen to own .property.”
Dunsworth v. City of Hutchinson, 109 Kan. 538, 199 Pac. 89, was an action to enjoin paving under a statute which provided that in cities of the first class having a population of over 25,000 no resolution to pave a street should be valid without a petition asking such improvement signed by the resident owners of not less than half of the feet fronting or abutting on such street. The petition met that requirement if the board of education of the city of Hutchinson was classified as a “resident owner” and by counting its signature to the petition. We referred to Osborne County v. City of Osborne, supra, and held:
“Under a statute requiring a petition for the paving of a street to be signed by the resident owners of one-half the property fronting upon it, the board of education, whose jurisdiction covers the city and certain attached territory, is not made a competent signer by virtue of one of its school sites abutting thereon.”
In that case the board had signed a petition for the paving. In this case they had signed a protest against it. The same reasoning applies to each case. The question is whether the school district is a resident owner.
(See, also, Bentley v. Gunn, supra.)
Plaintiffs next point out that the city owned 14,000 square feet of real estate in the project described in Resolution No. 8. This project contemplated an improvement involving 413,374 square feet of real estate, including 14,000 square feet owned by the city. Protests were filed by the owners of 200,966 square feet in this project. Plaintiffs argue that the 14,000 square feet owned by the city should be deducted from 413,375 square feet in the entire project and if this were done there were protests from resident owners of more than fifty per cent of the real estate to be affected. We dealt with this question contrary to the argument of plaintiffs in Palmer v. Munro, 123 Kan. 387, 255 Pac. 67. There we said:
“The other contention made by plaintiffs is that the protest filed was sufficient to bar further steps towards the making of the improvement. That depends on whether the properties owned by the city and a school district are to be considered in determining whether the resident owners of more than one-half of the property subject to assessment for the proposed improvement have protested. It is conceded that if the grounds owned by the city and school district are to be counted, the protest was insufficient and on the other hand if they are not to be considered, the protest was adequate to stop the paving of the street.
“Whether public grounds like those belonging to counties, school districts and cities and used by them for public purposes are liable for special assessments for the improvements of streets, is not a new question in this state. In the early case of Commissioners of Franklin Co. v. City of Ottawa, 49 Kan. 747, 31 Pac. 788, the question was carefully considered and it was held that such grounds were subject to be assessed for street improvements the same as the property of other owners. That rule has been consistently recognized and followed since it was announced, a period of about thirty-five years.”
Plaintiffs argue that some of the property sought to be taxed was: not shown to be wholly within the city limits. The trial court found as a matter of fact that none of the area sought to be taxed, for the improvement was outside the corporate limits. There was. substantial evidence to sustain this finding and it will not be disturbed on appeal.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is an appeal from an order of the district court dismissing an appeal from an order of the probate court adjudging appellant guilty of a direct contempt of court.
On October 14, 1950, appellant was cited for and adjudged to be guilty of direct contempt of court by the probate court of Harvey County and was sentenced to confinement in the county jail “for a period of 30 days or until he is discharged according to law.” A commitment was issued forthwith but on the same day execution of the judgment was suspended.
On October 16, 1950, appellant, in attempting to appeal to the district court from the judgment of the probate court, filed his appeal bond in the amount of $500. This bond was approved by the probate court.
No written notice of appeal was served upon anyone and none was filed in the probate court.
After the files of the case were transmitted to the district court the county attorney filed a motion to dismiss the appeal on the grounds (1) the district court had no jurisdiction to hear an appeal from an order of the probate court on the subject of contempt, and (2) the appeal had been improperly perfected and did not comply with the criminal statutes for appeals.
The record is silent concerning just what questions were argued to the district court, but on December 7, 1950, that court sustained the motion to dismiss the appeal on the grounds that (1) an appeal in such a case is from the probate court direct to the supreme court, (2) the district court was without jurisdiction, and (3) the appeal was not properly perfected as provided by law.
Appellant specifies as error each of those three rulings, together with the order of dismissal.
In this court various arguments are made concerning the inherent power of courts to punish for contempt; the right, or lack thereof, to have such orders reviewed by higher courts, and the procedure to be followed in order to secure such review. We have noted these contentions but in our opinion they require no discussion, and neither are we concerned with the question whether an appeal would lie direct to this court from a court inferior to the district court. Under the facts of this case the entire matter is covered by statute.
G. S. 1949, 59-302, provides:
“The probate courts, in addition to their general jurisdiction, shall have power:
“(10) To punish for contempt.”
G. S. 1949, 59-2401, provides:
“An appeal to the district court may be taken from any of the following orders, judgments, decrees, and decisions of the probate court: . . . (16) An order adjudging a person in contempt.”
G. S. 1949, 59-2405, provides:
“To render the appeal effective: (1) The appellant shall serve upon the adverse party or his attorney of record, or upon the probate judge for the adverse party, a written notice of appeal specifying the order, judgment, de cree, or decision appealed from, and file such notice of appeal in the probate court with proof of service thereof verified by his affidavit. . . .”
Appellant frankly admits that no written notice of appeal was served upon anyone and that none was filed with the probate court, but he argues that under the facts of this case none was necessary, and that when the probate judge, who was the only “adverse party” involved, approved the appeal bond he, the probate judge, thus had actual notice of appellant’s intention to appeal and therefore the purpose and intent of the statute were complied with.
We find no such exception or distinction in the statute. Its mandate is plain and unambiguous, and to render the appeal effective it was necessary to comply with its provisions. Here tire probate court had power to punish for contempt. Its order was appealable to the district court, but on account of appellant’s failure to comply with the statutory requirement relating to service and filing of a written notice of appeal such appeal was ineffective and was properly dismissed. The judgment of the district court is therefore affirmed. | [
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Per Curiam:
Thomas Brooks foreclosed a mortgage on real estate belonging to William H. Fithian. The property was sold to plaintiff, subject to redemption, and after the expiration of eighteen months a sheriff’s deed was made. Fithian claimed, however, that the property had been redeemed from the sale, and made a motion to set aside the deed. The district court sustained the motion, and made an order that the plaintiff reconvey the property, and that upon his failure to do so within ten days the court’s order stand as a conveyance. Brooks brought this proceeding in error to reverse such order. During the pendency of the ease in this court the plaintiff in error died, and by consent of defendant in error the action was revived in the name of the administratrix. The heirs or legatees of Brooks are not in court.
The effect of the sheriff’s deed, if valid, was to vest tho title to the .real estate in Brooks. The effort of Fithian was to divest the title from Brooks and restore it to himself The question in dispute was whether a valid redemption had been effected. The controversy was over the title to the real estate, each contestant trying to hold or obtain it. The dispute was not as to the amount or validity of any lien asserted by Brooks, but whether the full title had finally passed to him. The persons directly concerned in this controversy after the death of Brooks were his heirs or legatees. It may be that, for a complete adjustment of all the incidents to the litigation, the administratrix would be a proper, or even a necessary, party, but the real parties in Interest are the heirs or legatees, and in their absence this court has no jurisdiction to determine the matter. (Iams v. McKanna, 8 Kan. App. 856, 55 Pac. 502.)
The proceeding in error is therefore dismissed. | [
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The opinion of the court was delivered by
Greene, J.:
This is.a proceeding in error to reverse an order of the district court of Leavenworth county refusing to set aside a temporary injunction theretofore granted,, restraining the board of education of the city of Leavenworth from issuing bonds to purchase a site and erect a high-school building thereon.
In 1879 the board of education of the city of Leavenworth refunded its then bonded indebtedness, under chapter 81, Laws of 1879. The plaintiff is the owner of one of such unmatured bonds. In 1903, the school board of said city, having complied with all the preliminary statutory requirements provided in chapter 196, Laws of 1891, for the issuance of bonds for the purpose, above stated, this proceeding was commenced challenging the power of the board to issue such bonds before payment of the refunding bonds issued under the act of 1879.
Plaintiff contends that under the provision of section 5, chapter 81, Laws of 1879, and especially the following sentence therein; “said board shall issue no bonds hereafter, except the refunding bonds provided for by this act,” no other bonds can be issued'by said board until such refunding bonds shall have been paid in full; that this provision is a part of the contract between the board and the purchasers of these' bonds, and that the act of 1891 authorizing the board to issue additional bonds before the refunding bonds shall have been paid in full is an'impairment of the plaintiff’s contract, and within the inhibition of section 10 of article 1 of the constitution of the United States, which declares that “no state shall pass any law impairing the obligation of contracts.” Chapter 196 of the Laws of 1891 fully authorizes the board to issue the bonds in question, and unless it falls within the inhibition of said section 10 of the federal constitution the injunction should not have been granted.
Admitting the contention of the plaintiff, however, that the act of 1879, prohibiting the future issuance of bonds by the board of education until its refunding bonds shall have been paid, entered into and became a part of his contract, and that to permit the issuance of the present bonds would in some degree be an impairment of his contract, the question arises whether one legislature has the power to prohibit a subsequent legislature from changing, altering or annulling existing laws when, in the judgment of the latter, the public interests require it, although such change may impair the obligation of some contracts. The answer to this question depends, we think, entirely upon the subject of legislation and the subject-matter of the contract. In determining the application of this principle to the present case, it must be borne in mind that the maintenance of public schools is an exercise of governmental power in the interest of public morals and the general welfare of the people, and is as necessary for the self-preservation of a republican form of government as the maintenance of insane hospitals, reformatories, and penal institutions. In fact, one of the objects of the former is to decrease and eliminate as nearly as possible the necessity for the latter.
The duty of a state in respect to its public-school system is ever increasing and recurring. New or changed conditions arise which demand immediate relief ; conflagrations and destruction by the elements must be met when they arise, if the system is to be maintained. These recognized emergencies demand not only that the state reserve the power to perpetuate itself in this respect, but also that the doors of expediency be left open. The fact that authority to carry on this department of government has been delegated to minor governmental functionaries, such as school ■ districts, cities, and boards of education, make the ob ligation for their maintenance none the less the duty of the state. The power to .carry on this department of government, or to perform any other strictly governmental duty, cannot be contracted or legislated away. All parties dealing with a sovereign power, or one of its functionaries in the exercise of governmental power, the. subject of which pertains to government, do so’ knowing it cannot contract away the power conferred for self-protection or self-preservation. '
The rule, therefore, that the legislature can pass no law impairing the obligation of contracts does not apply to parties dealing with a department of government concerning the future exercise of powers conferred for public purposes by legislative acts, where the subject-matter of the contract is one which affects the safety and welfare of the public. In such cases “the presumption is that when such contracts are entered into it is with the knowledge that parties cannot, by making agreements on subjects involving the rights of the public, withdraw such subjects from the police power of the legislature.” (Chicago &c. Railroad v. Nebraska, 170 U. S. 57, 72, 18 Sup. Ct. 513, 42 L. Ed. 948.)
Controlled as we are by these fundamental principles of government, we are led to the conclusion expressed in B. E. S. R. R. Co. v. B. S. R. R. Co., 111 N. Y. 132, 140, 19 N. E. 63, 2 L. R. A. 284:
“The same authority which confers upon one body the power of legislation authorizes its successors, in the exercise of their duty, to change, alter and annul existing laws when, in their judgment, the public interest requires it. In the performance of their duty of legislating for the public welfare, each successive body must, from necessity, be left untrammeled except by the restraints of the fundamental law.”
The principle was stated in Butchers’ Union Co. v. Crescent City Co., 111 U. S. 746, 753, 4 Sup. Ct. 652, 28 L. Ed. 585, in the following language :
“No legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. The supervision of both these subjects of governmental power is continuing in its nature, and they are to be dealt with as the special exigencies of the moment may require. Government is organized with a view to their preservation, and cannot divest itself of the power to provide for them. For this purpose the legislative discretion is allowed, and the discretion cannot be parted with any more-than the power itself.”
Notwithstanding the provisions in the refunding act of 1879,.that “said board shall issue no bonds hereafter, except the refunding bonds provided for by this act,” the plaintiff in purchasing the bonds did so knowing that the board could not contract away its power to exercise in the future the authority conferred upon it by the state for the administration of its public affairs.
It is urged by the defendant that this question was settled by this court in Board of Education v. The State, 26 Kan. 44. An examination of that case will show that the question involved in the present one was not presented to the court in that case. The only contention there made was that the title of the act contained two distinct subjects, and it was upon that ground that the case was determined. Whatever else was said in that opinion was dictum.
The decisions in the case of Smith v. The City of Appleton, 19 Wis. 492, to which our attention has been called, is only the construction of the court of a special act passed authorizing the city of Appleton to refund its bonds, which seems to have contained many stringent provisions to secure their prompt payment. The construction of that special act can have no application to the question presented in this case.
The judgment of the court below is reversed, and it is ordered that the judgment awarding a temporary-injunction be set aside and the injunction refused.
Johnston, C. J., Cunningham, Pollock, Bukch, Mason, JJ., concurring.
Smith, J., dissenting. | [
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The opinion of the court was delivered by
Cunningham, J. :
Appellants were convicted under that portion of section 2221 of the General Statutes of 1901 which reads as follows:
“Every .man and woman (one or both of whom are married, and not to each other) who shall lewdly and lasciviously abide and cohabit with each other, . . . shall on conviction be adjudged guilty,” etc.
It appeared that Mrs. Pearce, although married, was not living with her husband. She lived on a farm owned by her. Cassida was employed by her as a farm hand the year round and paid regular monthly wages as such. They lived together in the same house and for a great part of the time without any other persons living with them. It was shown that early one morning in the month of May, 1901, and before they had arisen, a neighbor called at Mrs. Pearce’s house for the purpose of borrowing a lister. The inmates being aroused, Cassida was seen coming from the ’direction of Mrs. Pearce’s bedroom in a' partially undressed condition, and after the transaction with the neighbor he returned to her room and, engaged in conversation with her. On two different occasions early in August, 1902, at the usual evening retiring time, Mrs. Pearce and Oassida were seen to go to Mrs. Pearce’s bedroom, undress themselves in each other’s presence and go to bed together, and were heard to engage in conversation about familiar and every-day topics after having retired. It was further shown that Oassida had indicated to one witness that he was entirely satisfied with his position at Mrs. Pearce’s, for, beside his monthly wage, he was obtaining other favors. Mrs. Pearce’s account with Oassida, introduced by herself, showed that she was procuring for him articles of apparel and daily need, such as tobacco, when she went to town, in much the same manner as would occur between those occupying the relation of husband and wife. The defendants denied all acts of immoral conduct.
It was appellants’ theory upon the trial, and now urged here, that the object of this statute is not to punish secret acts of unchastity, immorality, or lasciviousness, but rather to prohibit and punish acts going to the dishonoring of the marital relation; that the relationship of husband and wife, the rearing of children, and the institution of the home and family founded thereby, are essential to society, and acts to be punished under the quoted provisions of the statute must be shown to be inimical to this relationship; that single and isolated acts of sexual commerce are not punishable thereunder; that the gravamen of the offense is that such acts must take place between the parties named under such circumstances,as they ordinarily do where the relation of husband and wife exist ; in short, that a man and woman, one or both of whom are married, and not to each other, must live together as though they were husband and wife ; that because Cassida was the hired man of Mrs. Pearce, and as master and servant might properly live together under the same roof without invoking public scandal, or causing the marital relation to be brought into disrepute, therefore the parties in this case were. not guilty of the offense charged, although three acts of sexual commerce were shown between them.
There is no question as to the correctness of appellants' theory, and that it would apply here if the facts were not such as authorized the jury in finding that, in addition to the relationship of mistress and servant, there existed the other apparent relationship of husband and wife. The mere fact that Cassida was receiving a monthly wage from Mrs. Pearce, and living in the same house with her as her hired man, does not foreclose all question, nor render them immune from conviction under this statute, nor relieve them entirely from legal inquiry as to the quality of their acts.
Illicit cohabitation is a crime at common law, and our statute seeks but to recognize it in the catalogue of statutory crimes. It is not committed by a single act, or even occasional acts, of intercourse. There must be a living together. This living together need not be for any particular length of time — even a single day has been held sufficient. (Hall v. The State, 53 Ala. 463.) But there must be a cohabitation — an abiding together. There must be that familiar and easy relationship between the parties which characterizes the relation of husband and wife. If this relationship be shown, the parties are guilty, regardless of other existing relations. The question always is, upon all the evidence, whether the relationship was such as to induce the belief that they were dwelling together as husband and wife, each receiving from the other such sexual privileges as usually arise from that relationship. In this case the state’s evidence reasonably led to the belief that sexual commerce had habitually taken place between the parties, and that under circumstances which usually characterize such acts between husband and wife. They were •shown to have behaved themselves in each other’s presence in the familiar manner of husband and wife. The facts that they disrobed even to nakedness in •each other’s sight and that after they had retired to bed together they engaged in conversation relative to the ordinary affairs of life strongly indicate that their action was not for the express and single purpose of •sexual intercourse, but in accordance with the ordinary method of their lives. In short, we are of the ■opinion that there was enough evidence in the case to warrant the jury in finding that their manner of living together was such as ordinarily characterizes the associations of husband and wife.
The fact that Gassida was a hired man and the relation of master and servant existed between the parties was proper to be shown and to be considered by the jury, but that relationship did not necessarily exclude the existence of the relationship denounced by the statute. While the relation of master and servant might exist, there could also exist the other relationship of lewd and lascivious cohabitation. In this case, suppose Gassida had not been hired and the parties had lived as they were shown to have lived, there can be no question as to their guilt under the ■statute. It cannot fairly be claimed that the fact that he was paid a monthly wage — a fact known only to the parties except as they told it — should necessarily overwhelm and. render innocent all of the other notorious and observable facts.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
Oscar Lewis was arrested on a warrant issued April 2, 1903, charging him with having, on June 1, 1902, obtained illicit connection, under promise of marriage, with Nellie Meador, she being of good repute and under twenty-one years of age. Upon a preliminary examination he was held to answer the charge. It is shown that on November 27, 1902, he was married to said Nellie Meador, and he now asks his discharge upon habeas corpus on the ground that such marriage is a complete bar to the prosecution. The state claims, and the claim is supported by the evidence, that the defendant abandoned his wife on the morning after the marriage, but this does not affect the legal aspect of the matter.
In the following cases it has been held that a subsequent marriage is a bar to a prosecution for seduction : Commonwealth v. Eichar, 4 Pa. L. J. Rep. 326; People v. Gould, 70 Mich. 240, 38 N. W. 232, 14 Am. St. Rep. 493 ; The State v. Otis, 135 Ind. 267, 34 N. E. 954, 21 L. R. A. 733. The law is so stated in Wharton on Criminal Law, 10th edition, volume 2, page 1760, and Lawson’s Criminal Defenses, volume 5, page 780. These statements of the text-writers, however, are based solely upon the cases just cited, and therefore add little to their authority. The Michigan and Indiana cases, moreover, merely followed the reasoning in Gommomvealth v. Bichar, supra, so that the soundness of the doctrine in principle can be determined from an examination of the opinion in that case. Its full text upon this point is as follows:
"The evidence fully establishes the fact that, six months previous to the finding of this indictment by the grand jury, the defendant was legally married by the Rev. Mr. Rugan, of the Lutheran church, to the ' female whom he is charged with having seduced. She is by the laws of God and man his wife, and as such is entitled to all the rights which are incident to that relation. Can he now be convicted and punished for her seduction before marriage ? It is not the carnal connection, even when induced by the solicitation of the man, that is the object of this statutory penalty, but it is the seduction under promise of marriage which is an offense of so grievous a nature as to require this exemplary punishment. What pro'mise ? One that is kept and performed ? Clearly not, but a false promise, broken and violated after performing its fiendish purpose. The evil which led to the enactment was not that females were seduced and then made the wives of the seducer, but that after the ends of the seducer were accomplished his victim was abandoned to her disgrace. An objection to this 'construction is that it places within the power of the seducer a means of escaping the penalty. So be it. This is far better than by a contrary construction to remove the inducement to a faithful adherence to the .promise which obtained the consent.”
Our attention has not been called to any actual adjudication against this doctrine, nor have we discovered any. However, in State v. Bierce, 27 Conn. 319, 324, in considering the question whether it could be shown in defense that the promise of marriage was made in good faith, and broken only by reason of the subsequent misconduct of the complaining witness, the court said:
“Even if he had performed his promise to marry hei’, we do not perceive how it could plausibly be -urged that it would be any answer to the charge of the previous seduction ; however, such partial reparation might be viewed as a circumstance to mitigate the punishment. As to the claim founded on the misconduct of the female, subsequent to the illicit connection between her and the defendant, it is a sufficient answer that the offense was committed and complete before .such misconduct took place, and that, whatever effect it might have upon a claim by her upon him for the breach of his promise of marriage, or however it might be considered by the court in affixing the punishment for the offense charged upon the defendant, it could not relate back to render legal or innocent a violation of the statute for which he had already become amenable.”
In State v. Wise, 32 Ore. 280, 282, 50 Pac. 800, it was said:
“But, as we take it, the gravamen of the offense is the act of seducing and debauching an unmarried female, of previous chaste character, under or by mean's of a promise of marriage ; and the crime is complete as soon as the act is accomplished, although a subsequent marriage is by statute a bar to a prosecution.”
In People v. Hough, 120 Cal. 538, 52 Pac. 846, 65 Am. St. Rep. 201, the court held :
“When a man induces an unmarried female of previous chaste character to submit her person to him by-reason of a promise of marriage upon his part; the seduction has taken place — the crime has been committed. The succeeding section, which provides that the marriage is a bar to a prosecution, clearly recognizes that the crime has been committed when the promise has been made and the intercourse thereunder has taken place. There may be incidental references in some cases indicating that a refusal upon the part of the man to carry out the promise is a necessary element of the offense. (People v. Samonset, 97 Cal. 448, 32 Pac. 520; State v. Adams, 25 Ore. 172, 35 Pac. 36, 22 L. R. A. 840, 42 Am. St. Rep. 790.) But such is not the fact.”
In Clark and Marshall’s Law of Crimes, page 1122, the authors say:
“By express provision of the statutes in most states, the subsequent intermarriage of the parties is a bar to a prosecution for seduction. But this is hot the case in the absence of such a provision, for, as was shown in another place, the person injured by a crime cannot prevent a prosecution by afterwards condoning the offense.”
Notwithstanding the authorities cited in support of the contention of defendant, we ’are not disposed to yield assent to it. Being based upon the Pennsylvania case, they depend for their force, as it does, upon the soundness of the reasoning by which it is supported, and this reasoning is ba'sed less upon the language of the statute than upon considerations of public policy, and the decision borders upon judicial legislation. N
While the-following language of Mr. Justice Johnston in The State v. Newcomer, 59 Kan. 668, 54 Pac. 685, was used in a case of statutory rape,it is equally applicable here, and is a satisfactory refutation of every argument advanced in the opinion in the Eichar case :
“In behalf of the defendant it is argued that the evil consequences of the unlawful act have been averted by the marriage ; that when the parties to the act voluntarily, and in good faith, entered into the marriage relation, the offense was condoned, and that the welfare of the parties and their offspring requires and the interests of the public will be best sub-served by the ending of the prosecution.
“The difficulty with this contention is that the law does not provide that the offense may be expiated by marriage or condoned by the injured female. Her consent to the sexual act constitutes no defense, and neither her forgiveness nor anything which either or both will do will take away the criminal quality of the' act or relieve the defendant from the consequences of the same. The principle of condonation which obtains ’in divorce cases where civil rights are involved has no application in prosecutions brought at the instance of the state for the protection of the public and to punish a violation of the law. It is true, as stated, that society approves the act of the defendant, when he endeavors to make amends for the wrong done the injured female, by marrying her, and usually a good-faith marriage between the parties to the wrong, prevents or terminates a prosecution ; ' but the statute which defines the offense and declares punishment therefor makes no such provision. If the defendant has acted in good faith in marrying the girl, and honestly desires to perform the marital obligation resting upon him, and is prevented from doing so by the influence and interference of persons other than his wife, it may constitute a strong appeal to the prosecution to discontinue the same, or to the governor for the exercise of executive clemency, but as the law stands it furnishes ho defense to the charge brought against the .defendant.”.
Moreover the doctrine of the Pennsylvania, Michigan and Indiana courts, if accepted as sound, would not necessarily control here, since it has arisen under statutes for the punishment of offenses that include the element of seduction, properly so-called, and the decisions supporting it are based to some extent upon that fact. The Kansas statute here involved (Gen. Stat. 1901, §2021) does not use the word “seduce,” and, while the offense it creates is commonly and conveniently called “seduction,” this does not imply that the term is technically correct. It makes criminal the act of obtaining illicit connection under promise of marriage with any female of good reputation under twenty-one years of age. This does not constitute seduction as the word is used in the statutes of other states. In State v. Reeves, 97 Mo. 668, 676, 10 S. W. 841, 10 Am. St. Rep. 349, the trial court gave this instruction :
“If the jury believe beyond a reasonable doubt that the defendant, at the county of Callaway, Missouri, and within three years of the finding of the indictment, promised Zerelda Hall to marry her if she would permit him to have sexual intercourse with her, and if she did so on the faith of that promise, and she was at the time under the age of *twenty-one years, and unmarried and of good repute, they will find defendant guilty.”
This we conceive would be a good instruction under the Kansas statute. Yet of it under the Missouri statute, which reads, “If any person shall, under, promise of marriage, seduce and debauch any unmarried female of good repute,” etc., the supreme court of Missouri said:
“The vice of that instruction consists in not requiring the female in question to be ‘seduced,’- to be drawn aside from the path of virtue, but simply that if without any such arts and wiles as are calculated to operate upon a virtuous female and to lead her astray, the defendant made to the prosecutrix a plain business offer that he would ‘marry her if she would permit him to have sexual intercourse with her, and . if she did so on the faith of that promise,’ that then he was guilty. No one can, with any degree of plausibility, contend that a virtuous female could be seduced without any of those arts, wiles and blandishments, so necessary to win the hearts of the weaker sex. To say that such a one was seduced by simply a blunt offer of wedlock in futuro, in exchange for sexual favors in prsesenti, is an announcement that smacks too much of bargain and barter, and not enough of betrayal. This is hire, or salary, not seduction. Any construction of the statute which would sanction the fifth instruction aforesaid would strike from the statute the word ‘seduce,’ and render any one guilty of a felony who should, under promise of marriage, debauch any unmarried female.”
The substance of the foregoing excerpt is quoted with approval in Putnam v. The State, 29 Tex. App. 454, 16 S.W. 97, 25 Am. St. Rep. 738. The case is cited in the definition of the word “seduction” in Bouvier’s Law Dictionary. So, in Wilson v. State, 58 Ga. 328, 330, it was said :
“Where consent to criminal intercourse is part of the original betrothal, and is procured solely by the undertaking to marry, the transaction may be mere coarse and corrupt traffic ; but where consent is given,, pending a virtuous engagement, in consequence of a repetition of a promise to marry already made and accepted, the woman yielding in reliance on the plighted faith of her lover, and he intending that she shall trust and be deceived^ the case is one of seduction.” (See, also, Merrell v. The State, 42 Tex. Crim. Rep. 19, 57 S. W. 289.)
We are not advised as to the origin of the Kansas statute; It was not a part of the original crimes act, nor was it adopted from the laws of any other state, so far as we have discovered. It is worthy of note that at the time of its adoption the statutes of man} states, including New York, Wisconsin, Texas, Georgia, Iowa, and Oregon, provided in express terms that subsequent marriage should be a bar to prosecutions for seduction. This fact makes it reasonable to suppose that the Kansas legislature did not intend that this rule should obtain here, or such a provision would have been embodied in the act. __
We hold that a subsequent marriage to the injured female is not a bar to a prosecution under section 2021 of the General Statutes of 1901.
The petitioner is remanded.'
All the Justices concurring. | [
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|
The opinion of the court was delivered by
Cunningham, J. :
his is an original proceeding in quo warranto to determine who is entitled to the office of mayor of Kansas City, a city of the first class having more than 50,000 inhabitants. The plaintiff was a candidate for that office at an election held April 7, ■1903, and, out of 12,986 votes cast, he received 7735, a majority of 2484. The defendant was elected mayor in April, 1901, and has served since that time. He now claims that he is entitled to continue in office because there was no warrant of law for the election of a mayor in April, 1903 ; that in the newly revised charter act of cities of the first class, adopted by the 1 gislature at its session of 1903 (Laws 1903, ch. 122), there is no provision for the election of a mayor in such cities having more than 50,000 inhabitants. This calls for an examination of the law and the provisions of the charter act and an inquiry into the proper construction of the same relative to this matter. The sections of the new act bearing most immediately upon the question involved read as follows :
“Sec. 12. All elections for city officers shall be held on the first Tuesday in April of each year.”
“ Sec. 16. In each odd-numbered year there shall, in all cities having less than fifty thousand inhabitants, be elected a mayor, city attorney, city clerk, city' treasurer, police judge, and one councilman from each ward, who shall hold their offices for two years and until their successors are elected and qualified. In all cities containing more than fifty thousand inhabitants, the mayor shall appoint a city counselor, who shall be confirmed by the council, and who shall hold his office for a period of two years, unless sooner removed, and said city counselor may be removed at any time by the mayor .without cause, and whose authority shall be superior to and whose duties shall be coextensive with those of the city attorney, together with such other duties as the mayor and council shall prescribe. . . . The mayor shall also appoint a police judge, who shall be confirmed by the council, and who shall hold his office for a period of two years, unless sooner removed, and said police judge may be removed at any time by the mayor without cause. . . . City clerk, city treasurer and city attorney shall be elected as herein provided for other cities of the first class. . . . The mayor may appoint such other officers as are created by ordinance, who shall hold their offices for a period of two years unless sooner removed, and such officers may be removed at any time by the mayor without cause.”
“Sec. 19. The term of all elective or appointive officers shall be two years and until jbheir successors are elected and qualified.”
Article 4 enjoins many and varied dutiss upon the mayor, and makes him, in connection with the council, the legislative department of the city, while article 5 defines the duties of the mayor in connection with the executive department. Section 77, being one of the sections of article 5, is :
“When any vacancy shall happen in the office of mayor by death, resignation, absence from the city, removal from office, refusal to qualify, or otherwise, the president of the council for the time being "shall exercise the duties of the office of mayor, with all the rights, privileges and jurisdiction of the mayor, until such vacancy is filled or such disability is removed, or, in case of temporary absence, until the mayor shall return; and in case of such vacancy, other than temporary absence or disability, the .person exercising the office of mayor shall forthwith cause a new election to be held, giving ten days’ notice by proclamation.”
Now it is claimed by the defendant that because the word “mayor” is left out of the third paragraph of section 16, which provides for the election of city clerk, city treasurer and city attorney in cities of the first class having more than 50,000 inhabitants, and because there is not elsewhere in the act found any provision explicitly providing for the election of mayor in such cities, there was no authority under the law for the people to elect a mayor on the 7th day of April, 1903, and therefore the defendant, who is the incumbent of the office by reason of his election in 1901, is entitled to hold over indefinitely. The question put concisely then is, By the omission of the word “mayor” from the list of officers to be elected as indicated in the third clause of section 16, did the legislature intend that that officer should no longer be regularly elected by the people, and that the mayor found in office upon the taking effect of this act should hold over indefinitely — for life, maybe — or is there authority, express or implied, to be found in the act, or elsewhere in the law, for the election, of mayor in cities of the first class having over 50,000 inhabitants, at stated intervals ? Plaintiff claims, first, that there is express authority in the statute, elsewhere than in the new charter act, for holding the election ; and, second, that implied authority for holding such election is found in the express provisions of that act.
By the charter act of cities of the first class passed in 1868, the legislature provided that, commencing with the first Tuesday in April, 1869, and each alternate year thereafter, “an election shall be holden by the authorities of each city governed by this act, for mayor, . . . who shall be elected for the term of two years, and shall hold their respective offices until their successors are elected and qualified.” Here is found specific authority for the election of a mayor by the people. In 1874 the legislature passed an act, probably designed to cover the entire field concerning the government of cities of the first class, which specifically provided the manner for the election of councilmen but made no such provision in the case of mayor. It did, however, direct that all existing laws not inconsistent with this act should remain in full force. Thereby the law for the election of mayor found in the statute of 1868 remained in force. In 1875 an amendment to the act of 1874 was adopted, whereby provision was made for the election of a mayor on the first Tuesday of April, 1877. This act, however, contained no direction for such election in any subsequent year. The repealing clause again went only to such acts or parts of acts as were inconsistent with its provisions. In 1881 the legislature again undertook to enact a complete charter for cities of the first class, which provided for an election of mayor on the first Tuesday in April, 1881, but made no provision for Ms election in any year thereafter, although it did make specific provision for the election of councilmen in subsequent years. Again, by this act only such acts and parts of acts theretofore enacted and in conflict therewith were repealed. It, however, specifically repealed the acts of 1874, 1875, and 1877, but did not repeal the law of 1868. It would seem by the usual rules of construction that, by this careful enumeration of all other provisions and acts except the law of 1868, the legislature designed to save this general act of 1868. Without further change the law thus stood until 1895, when the legislature directed that on the first Tuesday of April, 1895, there should be elected a mayor and certain other officers in all cities of the first class, but made no provision for the election of mayor in any subsequent year. Again, the repeal was limited to acts and parts of acts inconsistent therewith. This brings the history of legislation in respect to this matter up to the charter act of 1908. This act is very full, but it provides in express terms : “All existing laws and ordinances not inconsistent with the provisions of this act shall remain in full force and effect.”
It was under the provisions of the law of 1895 that the defendant was elected mayor of Kansas City in 1901, and if his election was legal and his holding now is justified under the law it must be either by concluding that the-specific direction for continuing the election of mayor of cities of the first class on the first Tuesday in each alternate year after 1869, as contained in the law of 1868, authorized it, or, that under the act of 1895, which was in force in 1901, and in which no more specific provision is found on this subject than in the law of 1903, was implied authority to elect a mayor in cities of the first class. In other words, the de jure title of the defendant is affected with as great infirmity as he claims the title of the plaintiff to be. It is suggested, however, by the defendant that the acts of 1874, 1881, and 1895, purporting as they do to cover the entire ground of the subject, may repeal by implication all of the provisions of the act of 1868. If these acts cover the entire ground, then they require by implication the election of mayor — else they would not serve to repeal the 1868 act — and this would be sufficient answer to the contention of the defendant. If they do not cover the entire ground, then the provision of the law of 186S specifically requiring the election of mayor remains in force. The defendant is therefore empaled upon one or the other of the horns of this dilemma.
We think there are very cogent reasons for the conclusion that the provision for the election of mayor found in the act of 1868 is yet in force. Certain it is that it has never been specifically repealed. If repealed at all, it is by implication. But such repeals are not favored by the courts, and to be permitted they must be plainly so intended, and if by an act concerning the same subject-matter, the entire subject must be covered. Clearly in this case the later acts did not cover the entire subject, as one of the most important matters — according to defendant’s contention — to wit, the election of mayor, was omitted.
Assuming, however, that the effect of the passage of the subsequent charter acts was entirely to wipe out the provisions of the law of 1868, we will pass to the inquiry whether there is found in the express provisions of the present act. read in the light of the former acts, which are in pari materia, sufficient implied authority for the election of mayors of cities of the first class having more than 50,000 inhabitants. It is admitted that such authority may arise by implication. To be sure, the implication must be a necessary one. It may be drawn from public policy; past acts ; the entire terms, purposes and scope of the act to be considered; the inconvenience, inconsistencies^ and absurdities involved in the contrary consideration — indeed, from all things found in the act, the conditions surrounding it, the history antedating it, the purposes to be accomplished by it, and the policy dictating it. ,An act of the legislature is like any other writing in this respect. Its purposes are to be gathered from all of its terms. (Suth. Stat. Const. §239.) A necessary implication does not mean to shut out every other possible or imaginary conclusion, from which there is no possible escape, but means one leading to such a conclusion as, under the circumstances, a reasonable view impels us to take, the contrary of which would be improbable or absurd. Speaking upon the matter of implications in the consideration of statutes, it is said in Black on Interpretation of Laws, page 62 :
“This doctrine does not empower the courts to go to the length of supplying things which were intentionally omitted from the act. But it authorizes them to draw inferences, from the general meaning and purpose of the legislature, and from the necessity of making the act operative and effectual, as to those minor or more specific things which are included in the more broad or general terms of the law, or as to those consequences of the enactment .which the legislature must be understood to have foreseen and intended. This is not the making of lat? by the judges. It is educing the will of the legislature by the logical process of inference. ‘It is a rule of construction that that which is implied in a statute is as much a part of it as what is expressed.’ And as a statute must al ways be construed with reference to the preexisting law, it will often happen that- many details are to be inferred from the general language of the act, which are understood as necessarily involved in it though not enumerated.”
On the same subject it is said in Sutherland on Statutory Construction, section 336
“A necessary implication means not natural necessity, but so strong a probability of an intention that one contrary to that which is imputed to the party using the language cannot be supposed.”
Let us then turn to a consideration of the general scope and some of the particular terms of the act in question. Nowhere in the act is the office of mayor specifically created^. That it exists is recognized in numerous instances. The functions and duties of the mayor in his various relationships are specified and-defined. The clear implication exists that the office of mayor is created by the act. If the office is created and duties imposed upon the one occupying it, it follows of course that the legislature intended that such officer should be selected in some manner. There are but three suggested ways in which this could be done : (1) By appointment; (2) by electioii; (3) by the continuance in office of the one holding it at the time of the taking effect of the act — for life, or until he should resign or be removed. As no provision is found in the act by the remotest implication for the appointment of mayor, we are shut out of the conclusion that he^is to be appointed. It must therefore be that he is either to be elected at the time of the election provided for by the statute to hold for the term indicated, or that the one holding the office at the time of the taking effect of the act was to hold over in that office for an indefinite length of time, terminated only by death, resignation, or removal from office. This last conclusion is contrary to, and inconsistent with, the provisions-of section 19, which limits the term. It is inconsistent with the practice that has always heretofore, obtained in this country and, so far as we are informed, in all other countries. It is inconsistent with the entire theory of our government. Running through our entire system is the principle that legislative and executive officers must at stated intervals have their acts reviewed at the polls by the body of the electorate. That the legislature intended to give anyone of-these officers a life or indefinite tenure of office passes the bounds of belief, in the face of all our traditions, and in the face of section 2 of article 15 of our constitution, which directs that the legislature shall not create any office the tenure of which shall be longer than four years.
Now let us see what we find in the act implying a purpose that the office should be filled by election. In section 77 it is provided that when a vacancy shall happe'n in the office of mayor, by death or resignation, a new election shall be held for the purpose of filling such vacancy. This is a clear implication that a former election had been held. No new election could be held unless an old one had been had. A new election in this connection means another election and presupposes a prior election. That this implication arises from this language is admitted by the defendant, but he limits it to elections which are elsewhere in the act especially provided for; that is to say, that when section 77 speaks of a vacancy in the office of mayor and provides a new election to fill such vacancy it means a vacancy occurring in the office of mayor in cities of the first class containing less than 50,000 inhabitants, because elections in such cities are only provided .for. To our minds this is doing violence to the language of the section, and is reasoning in a circle ; it excludes from the operation of the section a class of mayors which are not excluded by its terms. We think this language applies to all mayors of all cities of fhe first class.
Again, section 12 provides when elections, that is, general elections, shall be held — on the first Tuesday in April of each year. Section 16 directs that the election of general officers be held in the odd-numbered years. Section 19 limits the term of office of all elective or appointive officers. Reading all these sections and provisions together, and we discover, by inference, that the office of mayor is thereby created (by inference from section 77); which office shall be filled by election (section 12) at the regular election held on the first Tuesday in April (section 12) in each odd-numbered year (section 16) ; that he shall hold his office for the term of two years and until his successor is elected and qualified (section 19). ‘ ‘ When any vacancy shall happen in the office of mayor by death, . . . the person exercising the office of mayor shall forthwith cause a new election to be held " (section 77). -Implications much similar to the ones here made were invoked to give coherency and effect to statutory and constitutional provisions in The State of Kansas, ex rel. Crawford, v. Robinson and others, 1 Kan. 17; The State, ex rel. Watson, v. Cobb, 2 id. 32 ; The State, ex rel. Goodin, v. Thoman, 10 id. 191.
Section 16 specifically provides that councilmen in office at the time of the taking effect of the act shall continue to hold until their terms expire. Had the legislature designed to continue the incumbent mayor in office, would not some similar language appropriate to that end have been used ? No such language was used. Defendant's contention rests upon. an implication arising from an omission and not upon express provision. Is it not highly probable that if the legislature had intended to introduce so strange, inconsistent, unprecedented and revolutionary an innovation into our form of government, it would have done so in unmistakable and express terms, and not left it to an implication derivable only from an omission ? Certainly an implication much less strong will be required to uphold a construction maintaining the consistence and uniformity of our law than to introduce so grea’t an anomaly as that upon which the claim of the defendant rests.
■ The fact remains that since 1874, with the exception of the elections in 1877 and 1895, the law has been as questionable as now, yet all this time the legislature, by its various revisions, and the people, by a quarter of a century of elections held under it, have given a construction such as we deduce therefrom, a construction never before questioned, and upon the correctness of which rests, not only the validity of the defendant’s de jure title now and 'during his entire term, but even his claim to hold over; for, under section 19, which is the only section, upon which such a claim can be made, it is only as an elective officer that he can claim that right.
We are of the opinion then that warrant for'holding the election of April 7, 1903, is found in the express terms of the unrepealed provisions of the law of 1868, and also in the implied provisions of the new charter act of 1903. We find no inconsistency in thus holding as to both. Indeed, beyond doubt the implications found in the later act are such because of the existence of the former. The various acts coming on down from 1868 recognize that one, and are based upon and referable to it, and the last is explained and made efficient by it.
Defendant further contends that the plaintiff should hot prevail because he has neither pleaded nor shown that he has qualified himself to hold such office by taking the oath and giving the bond required by the statute. The petition inferentially shows that he has filed no bond, as it alleges that “he is ready, able and willing to file his official bond as mayor of said city, with the clerk of said city, to be by him presented to the mayor and council of said city for their approval.” As no demurrer was filed or objection made to the introduction of evidence, the question is really whether the evidence shows a right to recover, and not as to the sufficiency of the allegations of the petition. This evidence shows that the city council met as a-canvassing board at the time required by the statute to canvass the vote cast on April 7, and did canvass it for all'officers except mayor. As to that the defendant, as presiding officer, entertained, put, and declared caraied, a resolution to the effect th&t the board refused and declined to canvass the vote for the reason that there was no law authorizing or providing for the election of mayor at that election. In obedience to the order of a peremptory writ of mandamus, the board convened on the next day to canvass the vote. The defendant again presided. After having passed a resolution protesting against such canvass, alleging the same reason as they did in the resolution of the day before, the board made the canvass and directed a record of the vote to be made. There is no evidence to show that any declaration of the result was made, or that any certificate of election was given to’the plaintiff. Under these conditions, is it necessary that the plaintiff should have taken the oath, of office and given bond prior to his bringing this action ? It is true that these prerequi sites are necessary before the plaintiff would be entitled to hold the office. It is further true that, should he neglect or refuse for more than ten days after being entitled to hold office to qualify him self by doing so, he would be deemed, under the provisions of the statute and ordinance, to have declined and forfeited the office. Until the board, whose duty it was to determine the fact, had declared him elected and had issued a certificate evidencing the same, he was not called upon or indeed entitled to take the oath of office, or give the required bond. It would have been an idle ceremony for him to do either under the circumstances of this case. The defendant and a majority of the council were saying to him : “You are not elected; you are not entitled to hold the office.” How useless it would have been, to say nothing more, to have tendered to such body the oath and bond of office ? It would seem, under the provisions of our statute, that this action, when prosecuted by one claiming a right to an office, is for the purpose of determining the plaintiff’s right to the certificate of election, which carries with it the right to qualify and hold, for the statute provides : “If judgment.be rendered in favor of the plaintiff or person entitled, he shall proceed to exercise the functions of the office after he has been qualified as required by law.” (Gen. Stat. 1901, § 5152.) The supreme court of Michigan, in The People v. Miller, 16 Mich. 56, 58, said: '
“. . . Was the latter bound, before he could maintain this proceeding, to test the right to the office, to tender his bond, or to take or offer to take the oath of office ? This is the only remaining question. We think the statute requiring the oath and bond must be construed to apply only to persons holding the certificate of election, those whose rights are admitted by the person holding it, and those’who, with out having the certificate, have obtained a judicial determination establishing their right to the office. The certificate of election, whether rightfully or wrongfully given, confers upon the person holding it the prima facie right of holding for the term. And this prima facie right is subject to be defeated only by his voluntary surrender of the office, or by a judicial determination of the right.
“We find nothing in any of our statutes warranting the inference that the legislature ever contemplated requiring any person, claiming to have been elected to an office, to take the oath or file the bond, while another person, holding the certificate of election, is in possession of the office under the certificate, refusing to yield to the claim, and the right has not yet been tried.”
In State v. Frantz, 55 Neb. 167, 171, 75 N. W. 546, where the respondent was in the possession of the office having a prima facie right to it by reason of his holding a certificate of election, and where the relator had no certificate, his election being denied by the respondent, it was held:
“We know of no case holding that there is any right given or duty imposed on any officer or board to approve an official bond offered by one who possesses no competent evidence whatever of his election or appointment. Had the relator presented his bond as treasurer to the county board of Saline county, that body would have no right to approve it and thereby recognize his title to the office. Mr. Frantz held the certificate of election, and that was to them conclusive evidence of his right until the conflicting claims of the parties should be judicially determined in a proper proceeding. Consequently nothing would have been gained — no useful purpose would have been served— by the execution and presentation of an official bond. (People v. Miller, 16 Mich. 56.) The logic of respondents' contention, therefore, is that the relator lost his right to the office by failing to have that done which, under the circumstances, was legally impossible of performance. We do not think the statute should receive so narrow an interpretation. We think that the failure of Barton to have his bond executed and approved within the statutory period was not the result of his neglect, and that section 15 aforesaid has no application to cases of this character. Such failure, according tó the averments of the information, was entirely due to the negligent or wilful omission of the precinct boards to discharge the duties imposed upon them by law. It seems to us that the act in relation to proceedings by quo warranto governs the case. Section 711 of the code of civil procedure provides that if judgment be rendered in favor of one claiming an office he shall proceed to exercise its functions after he has qualified.as required by law. This provision evidently contemplates that the successful claimant shall qualify after judgment of ouster and proceeds on the assumption, of course, that he did not qualify before.
“Our conclusion is that the relator may prosecute this action without having qualified as treasurer of Saline county, and that if he shall be successful he may be inducted into office upon giving, and having approved, his official bond with the oath of office indorsed thereon.” '
(See, also, People v. Scannell, 7 Cal. 432 ; People v. Potter, 63 id. 127; Pearson v. Wilson, 57 Miss. 848 ; State, ex rel. Attorney-general, v. Steers, 44 Mo. 223; State, ex rel. Heath, v. Kraft, 18 Ore. 550, 23 Pac. 663 ; The State, ex rel. Ackerman, v. Dahl, 65 Wis. 510, 27 N. W. 343.)
It could hardly be expected that plaintiff wbuld take the oath and file a bond to qualify him for the exercise of the duties of an office out of which he was being kept, and which he was uncertain he would ever be permitted to occupy. At least, this question can hardly be raised by one keeping him out of the-office and wholly denying his right thereto. It is proper to add that the evidence shows that the plain tiff cIM take and leave with the city clerk an oath of office before this action was commenced, and also'that-an official bond is in the hands of the clerk, but when-left with him is not exactly shown.
The -plaintiff was elected as one of the councilmen-bf the city at the election in 1902. His term as such-would not expire until April, 1904. The defendant urges as an additional reason why the plaintiff should not prevail that, as he cannot hold the offices of mayor and councilman at the same time, he cannot-resign his office as councilman unless his resignation be accepted by the body which is called upon to fill the vacancy, to wit, the mayor and council; and that that body, by resolution, has declared “that we and each of us do hereby refuse to consent to said Thomas-B. Gilbert’s resigning, vacating or abandoning his said office as councilman, and declare him, by reason-of the incompatibility of the office of mayor and councilman, to be ineligible to take or hold the office of mayor of the city of Kansas City, Kan.” Granting-that the office of mayor and councilman are incompatible, and that the duties of both may not be exercised by the same person at the same time, a-councilman is not thereby rendered ineligible to election to the office of mayor. Granting, further, that the resignation of an pfficer is not completed until it-is accepted by the body empowered to appoint a successor, still the contention of the defendant would not be sound. There are ways plaintiff may lay down the office of councilman other than by resignation. One of these is by the acceptance of an incompatible office. (23 A. & E. Encycl. of L., 2d.ed.,. 427.) This would not require the concurrence of the-mayor and council. When he shall be inducted into-the office of mayor, he thereby vacates the office of councilman. He cannot hold both at the same time, but he may carry on the necessary legal proceedings to obtain the adjudication of his right to assume tlm office of mayor while he is yet councilman, just as he may carry on the effort to be elected as mayor while he is yet councilman ; they are both means to the end of actually becoming mayor.
After, the election and before the council convened as a canvassing board, and with the knowledge of his election given to him by common report, the plaintiff sat and voted with the city council, "and it is claimed that by so doing he waived his right to claim the office of mayor and elected to continue in the incompatible office of councilman. We find no merit in this contention. He did not know, as a matter of law, that he was elected mayor. It required the official canvass of the vote to establish that fact. He had not received his certificate of election, which was the official evidence of it. He had no legal right to enter upon the office of mayor at the time he was exercising the duties of councilman. There was therefore no adverse election by such exercise.
Judgment must be entered for the plaintiff.
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|
Per Curiam:
This is a proceeding in error to reverse the judgment of the district court in overruling a motion for a new trial, filed nearly sixty days after the trial, because of misconduct of certain members of the jury and newly-discovered evidence. A motion for a new trial because of the misconduct of the jury should be filed at the term at which the cause is tried and within three days after the verdict or decision was rendered, unless unavoidably prevented. (Gen. Stat. 1901, §4756.) There is no showing that the plaintiff was unavoidably prevented from filing hi& motion within the time prescribed by the statute.
The evidence introduced at the trial by the plaintiff is not before this court, and it is impossible to say that tbe newly-discovered evidence was not merely cumulative. This court, in Kirby v. Childs, 10 Kan. 639, said:
“ Where a motion for a new trial is made on the ground of newly-discovered evidence, and none of the testimony offered on the trial is preserved, it is impossible for this court to say that such newly-discovered evidence is not merely cumulative.” (See, also, Clark v. Hall, 10 Kan. 80.)
The judgment is affirmed. | [
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