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Per Curiam:
An action was brought to recover on a beneficiary certificate issued by the Ancient Order of United Workmen of Kansas. The defendant appeared, and upon proper application an order was made requiring the plaintiffs in error to interplead in the action, and notice to that effect was served on them. Thereupon, plaintiffs in error moved to set aside the order of interpleader on various grounds, which motion was overruled, and exceptions taken. After the commencement of the action, plaintiffs in error brought an independent suit against the society to recover on the same beneficiary certificate. Thereupon the defendant obtained, in the original action, an order restraining plaintiffs in error from the prosecution of such suit. A motion to set aside suoh restraining order, upon various grounds, was overruled and exceptions taken. Plaintiffs in error then brought the record in the district court to this court, and by a petition in error asked that the orders against them b6 reviewed. Afterward, the district court entered an order requiring the payment of the money due on the beneficiary certificate to the plaintiff, and barring the plaintiffs in error from any interest therein, and entered another order permanently enjoining the plaintiffs in error from the prosecution of their independent suit. Motions on the part of plaintiffs in error to set aside these orders were made and overruled, and exceptions taken. Plaintiffs in error then, by leave of this court, filed a supplemental petition in error asking that the orders overruling the motions last mentioned be reviewed, and attached thereto a bill of exceptions relating to the proceedings attacked by the supplemental petition in error.
There is nothing whatever to show that the whole record in the case is before the court. In the brief the plaintiffs in error, however, admit that the temporary restraining order has passed into a permanent injunction. With the record in-this condition, both petitions in error must be dismissed. The first order cannot be reviewed, because no final judgment in the action is shown. The granting of the temporary restraining order cannot be reviewed, because it has passed into a permanent injunction. Neither the order disposing of the fund nor the order granting the' permanent injunction can be reviewed, because of the incomplete state of the record.
The entire proceeding is dismissed. | [
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The opinion of the court was delivered by
Cunningham, J. :
By chapter 390, Laws of 1903, entitled “An act concerning criminal appeals in counties containing more than 65,000 inhabitants, in certain cases,” it is provided that any person who has been, or who shall hereafter be, convicted of murder or manslaughter in any county containing more than '65,000 inhabitants, who files with the clerk of the court in which said person was convicted his affidavit setting forth that he believes that he has a just cause for appeal, and that by reason of his poverty he is unable to pay the stenographer for a transcript of the testimony and record, and who satisfies the judge of the court that he is unable to pay for said transcript and record, shall be entitled to have such record prepared without any expense to himself and the costs thereof shall be assessed to the county. Prior to the passage of this act plaintiff herein was convicted of murder in the second degree in the court of common pleas of Wyandotte county, and after its passage applied to the defendant, the stenographer of that court, for a transcript of the testimony and record, making a showing of his inability to pay for the same, as provided for in the act. The stenographer, doubtful of the constitutionality of the act, refused to comply with the request, and thereupon this action in mandamus ivas brought in this court.
Upon its first submission, the only question raised was that indicated in the per curiam opinion reported .in 72 Pac. 225. Thereafter, upon its request, the county of Wyandotte was made a party, as being the real party iu interest, and a rehearing of the questions involved was granted. Counsel for the county now urge the invalidity of this act for the reason that it is special, class and partial legislation, and as such condemned by the spirit of the bill of rights and the terms of the constitution.
With the development of the idea of self-government, there came its necessary corollary, equal rights under the law. This corollary had a comparatively slow development and recognition, and it was the almost universal custom in the earlier legislative history of the states to carve out from the body of citizenship special individuals or-classes and to grant to them, by the enactment of special laws, privileges or immunities which should have been, in all justice, accorded by general law to all those of the class to which-the favored ones belonged. To meet this evil, there came to be engrafted into the later constitutions of nearly all of the states provisions directed in varying terms against it. In our own constitution these issues were met and principles concreted in section 17 of article 2, which reads as follows :
“All laws of a general nature shall have a uniform operation throughout the state ; and in all cases where a general law can be made applicable, no special law shall be enacted.”
The exact duplicate of this provision is not found in the constitution of any other state in the Union. In the convention which framed our constitution the committee upon which was imposed the duty of formulating the article upon “legislative department” reported this article in the following words: “In all cases where a general law can be made applicable, no special law shall be enacted.” This form is the one more generally adopted in the older states, but is much less comprehensive than the one in which it was finally cast. Clearly the words of this provision are mandatory in form. “All laws of a general nature shall have a uniform operation throughout the state.” In view of the evils which were designed to be remedied by embodying such provision in the constitution, it cannot be held that these mandatory forms of expression were simply directory, for to permit the legislature to go on bestowing special privileges upon individuals or classes where equal rights only should be conferred, which would be the result if,the constitution left the legislature to determine when laws were general and when special in their nature, would not be in any degree to limit the evil sought to be’remedied. In Ohio, where the constitutional provision was, “All laws of a general nature shall have a uniform operation throughout the state,” the supreme court, in Kelley v. The State of Ohio, 6 Ohio St. 269, held it to be
“a general unqualified and positive prohibition or limitation of legislative power, forbidding the giving of a partial operation to any law of a general nature— or in its own affirmative terms, requiring that a uniform operation throughout the state shall be given to all laws of a general nature.”
This announcement of the mandatory character of this constitutional provision has been followed in The State v. Powers, 38 Ohio St. 54, 63 ; Falk, Exp., 42 id. 638 ; State, ex rel., v. Ellet et al., 47 id. 90, 23 N. E. 931, 21 Am. St. Rep. 772 ; The State, ex rel., v. Bargus, 53 id. 94, 41 N. E. 245, 53 Am. St. Rep. 628.
In Sutherland on Statutory Construction, section 117, the same doctrine is stated, and it is recognized in all states, so far as we have been able to ascertain. Indeed, we are at a loss to know how these provisions could be construed otherwise, considering their form and the purpose for which they were put into the constitution. It cannot be said that the constitution makers thought that by this direct mandatory statement they were simply giving advice to the legislature, trusting to its own judgment as to whether the things therein apparently commanded should be observed or otherwise.
We are brought then to a consideration of the correct meaning of this provision taken as a whole. In this we have no definite help from the decisions of courts of other states, for, as we. have suggested, no like provision is elsewhere found. The section contains two clauses. The first is, “All laws of a general nature shall have a uniform operation throughout the state” ; tiiat is, all laws which in their nature are general shall have such operation. Illustration cannot add to the clearness of this language. If the subject which the legislature desires to deal with by the enactment of a law is general in its character, then the mandate comes to it that the operation of the law which deals with such subject shal'l be uniform throughout the state. But all laws which the legislature would be required to enact would not be of a general nature. Peculiar local conditions would call for the enactment of special laws to meet these conditions ; hence the second clause of this section, “and in all cases where a general law can be made applicable, no special law shall be enacted” ; that is, in providing for special cases, it is the duty of the legislature to make such provision by general law so far as it is possible so to do,-but in cases where a general law is-not found to be applicable, a special law may be en acted. The question whether in providing for special cases a general or a special law is best adapted is one for the legislature. This, and this only, is the discretion confided to it. If the nature of the law is general, which is a question for the courts,' the law in its form and operation must be general. If the nature of the law is special, its form and operation may be either general or special, as the legislature may decide. This interpretation we think to be clearly required by all of the terms of this section. While it may not be in conformity with some assumptions in a few cases decided by this court, we think it not against any, and that it it consonant with most of them.
This section was first considered in State of Kansas, ex rel. Johnson, v. Hitchcock, 1 Kan. 178, 81 Am. Dec. 503. In that case the question under advjsement was whether an act providing for an election to locate the county-seat in Franklin county was obnoxious to its provisions. It was assumed all the way through the opinion that the nature of the act was special, and the only question before the court, apparently, was as to where the discretion was lodged to determine whether the matters involved could have been met by a general rather than a special law, and upon that point the court said (pages 184 and 185) :
“We understand this section of the constitution as leaving a discretion to. the legislature ; for it would be difficult to imagine a legislative purpose (i. e., such as was under consideration) which could not be accomplished under a general law. If it be possible, as we think it is, to frame a general law under which the purpose of any special law could be accomplished, then that provision of the constitution, if literally construed, would absolutely prohibit all special legislation. Such is not its purpose. It recognizes the necessity of some special legislation and seeks only to limit, not to prohibit it.”
“There are many special acts to be done, undone, prevented, or omitted, in which the legislature could not give effect to their will through a general law without accomplishing more evil than good. It is not the purpose of the constitution to compel the legislature to accomplish an act of local or special legislation, beneficial to one person or locality only, through a general law, which might, in their opinion, result in damage when applied to other persons or localities. The legislature must judge and determine whether the object in view can be accomplished under a general law without public injury, and if it can be, they are not at liberty to seek it by enacting a special law. But if it cannot, without such public injury, then they may resort to special legislation. Any other interpretation of their duties would, in effectj prohibit special legislation, and compel the legislature to accomplish a special purpose under a general law, oftentimes to the injury of the public, thus sacrificing the spirit to the letter of the constitution.”
The matter under consideration in that case was one arising under the second clause of the section, and it is clear that what the court decided was that in such a case the legislature might determine whether the purpose could be best accomplished by a general or a special law, and not that the legislature possessed the right to determine whether a matter to be legislated upon was of a general or special nature. This was a question entirely foreign to that under consideration.
In Beach v. Leahy, Treasurer, 11 Kan. 23, following State of Kansas, ex rel. Johnson, v. Hitchcock, supra, it was held that an act authorizing a school district to issue bonds for the purpose of building a schoolhouse was not invalid under the terms of section 17. The discussion there proceeded upon the assumption that the nature of the law was special, and, as such, it might be accomplished by the passage of a general or special law, at the discretion of the legislature.
In Comm’rs of Norton Co. v. Shoemaker, 27 Kan. 77, an act regulating the salaries of certain county officers-was under consideration, and the same was held valid for the reason that there might have been special reasons for regulating the salaries in the enumerated cases and that—
“The legislature, under the constitution, has discretion to determine the necessity for such special laws, and such statute is analogous to those conferring authority by special acts upon counties, townships and school districts to issue bonds.
In City of Wichita v. Burleigh, 36 Kan. 34, 12 Pac. 332, an act to vacate streets and alleys in the city of Wichita, which was clearly a local matter, was under consideration, and the court in its syllabus there said :
“The legislature may pass a special act where a general law cannot be made applicable, and this although the special act' may to some extent affect the uniform operation throughout the state of other laws ; and generally, it is a question for the legislature to determine whether a general law can be made applicable or not.”
Of course, this language must be construed in the light of the subject under consideration. In Comm’rs of Barber County v. Smith, 48 Kan. 331, 29 Pac. 565, the validity of a law authorizing the commissioners to purchase bridges in that county was assailed. The court sustained the law, saying:
“It is doubtful whether such a condition, with reference to bridges, exists in any other'county in the state . . . Hence, this is one of the cases in which the legislature must determine whether their purpose can or cannot be accomplished by a general law.”
The'law under discussion in Elevator Co. v. Stewart, 50 Kan. 378, 32 Pac. 33, was held to be constitutional, as it was neither a general law nor a law of a general nature, relating as it did to taxes in certain enumerated counties alone. In The State, ex rel., v. Lewelling, 53 Kan. 562, 33 Pac. 425, the court, referring to and approving the case of State of Kansas, ex rel. Johnson, v. Hitchcock, supra, said, with reference to section 17, that it
“leaves a discretion to the legislature, recognizes the necessity of some special legislation, and seeks only to limit, not to prohibit it. The legislature must determine whether their purpose can or cannot be expediently accomplished by a general law.”
And further, speaking of the law there being considered, which was one defining the boundaries of a certain county, the court said :
“It is very difficult to see how the legislature could have provided for the government of this territory otherwise than by a special act, or how the boundaries of any county can ever be fixed otherwise than by special legislation.”
In Eichholtz v. Martin, 53 Kan. 486, 36 Pac. 1064, the law providing for the establishment of a high school in Labette county was under consideration. Some of the expressions there found look to the conclusion that the legislature was the judge not only of the matter as to when a general or special law was applicable to the accomplishment of a special purpose, but also as to whether the nature of .the law was general or special, yet as the question there under consideration was clearly one of a special and local nature, the language should be interpreted with reference to such, rather than as a comment upon the larger question. The legislation criticized in Chesney v. McClintock, 61 Kan. 94, 58 Pac. 993, was sustained on the ground that the matter in dispute was not of a general nature, but was local and special in its character. In the cases of Darling v. Rodgers, 7 Kan. 592, and Robinson v. Perry, 17 id. 248, the principle contended for was recognized and applied. These cases have been somewhat criticized, and perhaps properly so, for it is doubtful if the laws there held to be general in their nature are so.
Some of the state constitutions, like that of' Ohio, provide that “all laws of a general nature shall have a uniform operation throughout the state.” Concerning such, Mr. Sutherland, in his work on Statutory Construction, section 118, says:
“The injunction to pass general laws when they can be made applicable is imperative as to subjects of a general nature, where laws of a general nature are required to have a uniform operation. The questions affecting the validity of such laws are judicial; the courts must determine what are laws of a general nature, which must be so framed as to operate with uniformity.”
Very many cases could be cited holding that language such as is used in the constitution of Ohio, above quoted, is mandatory upon the legislature, and in no case that we have been able to find is it doubted that the question under such constitutions, as to whether the nature of the law under consideration is general, so as to require it to be provided for by a law having uniform operation, is one for the courts. Many cases could be cited where the courts have considered and passed upon that question.'
In our view, the mandatory character of this portion of the section is more clearly shown, and the reasons requiring the questions arising thereunder to be referred for judicial settlement intensified, by taking into consideration the remaining clause, for here is set over against the provision mandatory in form, that “all laws of a general nature shall have a uniform operation,” the antithesis, that “in all cases where a general law can be made applicable, no special law shall1 be enacted.” This language recognizes the fact that laws will be needed other than those of a general nature — laws upon special or local matters. If in such cases a general law cannot be applied, then enact a special one. Necessarily this question, arising, as it does, at the time of the passage of the l§w, must be determined by the legislature.
We will pass then to the inquiry whether the nature of the act now in question is a general or a special one. As will be seen, it is an act relating to criminal procedure and practice. It interests every person in a designated class, no matter where he may reside. To have his case reviewed in a higher court is as important and valuable a right to the poor condemned man living in one county as in another. No reason can be shown why the public should not afford this right to one residing in a county of 10,000 inhabitants as well as to one residing in a county of 65,000. The nature of this act is as general as is any step in criminal procedure, or as is any law defining crime itself. Being so, the requirement is that its operation be uniform throughout the state. We do not conceive this phrase to mean that an act, in order to have uniform operation throughout the state, must affect every community or individual alike. It is entirely competent for the legislature to adapt its laws general in their nature to general classifications, either of individuals, surroundings, or conditions, but such classification must always be a natural one, not an arbitrary or fictitious one. If the nature of the law is general, that is, generic, its operation must be as general throughout the state as are the genera. In Cass v. Dillon, 2 Ohio St. 607, 617, Thurman, J., in speaking of the provisions of the Ohio constitution corresponding to the first clause of section .17 under discussion, said:
“The origin of this section is perfectly well known. The legislature had often made it a crime to do in one county, or even township, what it was perfectly law ful to do elsewhere, and had provided that acts, even for the punishment of offenses, should be in force, or not, in certain localities, as the electors thereof, respectively, might decide. It was to remedy this evil, and prevent its recurrence, that this section was framed.”
In State v. Sheriff of Ramsey County, 48 Minn. 236, 51 N. W. 112, 31 Am. St. Rep. 650, it was held that a statute making an arbitrary classification with respect to the subjects over which it operates, based upon no reason suggested by a difference in their situation or circumstances disclosing the necessity or propriety of any different legislation in respect to them, is unconstitutional.
It was held in Wanser v. Hoss, 60 N. J. L. 482, 525, 38 Atl. 449, 64 Am. St. Rep. 600:
‘ ‘ The test of the generality of a law adopted is that it shall embrace all and exclude none whose condition and wants render such legislation equally appropriate to them as a class. It is also equally ■well settled by decisions of our courts that, although population may be made the basis of classification in statutes relating to municipal bodies, such a classification cannot be made the means of evading the constitutional interdict of local or special laws. The question whether any particular statute is local or special must be determined not upon its compliance with a legislative classification, but upon whether, having regard to the character of the legislation and the limitation upon it contained in the act, the statute is or is not a general law as defined by the courts.”
In Vermont Loan and Trust Co. v. Whithed, 2 N. Dak. 82, 49 N. W. 318, the court used this language, (page 98) :
“A ‘general law/ as the term is used in this constitutional provision, is a public law of universal interest to the people of the state, and embracing within its provisions all the citizens of the state, or all of a certain class or classes of citizens. It must relate to persons and things as a class, and not to particular persons or things of a class. It must embrace the whole subject, or a whole class, and must not be restricted to any particular locality within the state.”
In the same case the court ruled further (page 94) :
“The legislature has power to classify persons and subjects for the purpose of legislation, and to enact laws applying specially to such classes, and while the laws thus enacted operate uniformly upon all members of the class they are not vulnerable to the constitutional inhibition under consideration. But this power of the legislature is circumscribed. It is not an arbitrary power, waiting the whim of the legislature. Its exercise must always be within the limits of reason, and of a necessity more or less pronounced. Classification must be based upon such differences in situation, constitution or purposes between the persons or things included in the class and those excluded therefrom as fairly and naturally suggest the propriety of, and necessity for, different or exclusive legislation in the line of the statute in which the classification appears.”
See, also, Smith v. Judge, of the Twelfth District, 17 Cal. 547 ; Brooks v. Hyde, 37 id. 366 ; Miller v. Kister, 68 id. 142, 8 Pac. 13 ; Groesch v. The State, 42 Ind. 547 ; The State, ex rel. Hargrave, v. Reitz, Auditor, 62 id. 159, 30 Am. Rep. 203 ; Hanlon v. The Board of Commissioners of Floyd County, 53 id. 123 ; Nichols v. Walter, 37 Minn, 264, 33 N. W. 800; Ewing v. Hoblitzelle, 85 Mo. 64 ; Van Riper v. Parsons, 40 N. J. L. 123 ; State, ex rel. Richards, v. Hammer, 42 id. 435 ; State Board of Assessors v. Central R. R. Co., 48 id. 146, 4 Atl. 578; Freeholders of Hudson v. Buck, 51 id. 155, 16 Atl. 698 ; Delaware Bay & Cape May R. R. Co. v. Markley, 45 N. J. E. 139, 16 Atl. 436; Wheeler v. Philadelphia, 77 Pa. St. 338 ; Reading v. Savage, 124 id. 328, 16 Atl. 788.
We feel sure that there will be no question raised that the act in question is general in its nature. Evidently the legislature so thought, for it is couched in general terms.
We are thus brought to the question whether it has a uniform operation throughout the state, within the meaning of these words in the constitution. We answer this question in the negative. It applies to a given class within but one county. It does not afford relief to those of the same class in any other portion of the state. No reason can be shown justifying this discrimination. The classification upon which it is sought to be justified is one of population, but, as applied to the matter involved, such classification is an arbitrary one, hence invalid. (Livingston Loan and Building Association v. Drummond, 49 Neb. 200, 68 N. W. 375.) We do not m'ean to hold that a classification for any purpose based upon population would be invalid. For a great many purposes, such a classification would be most reasonable and natural, but for the classification here attempted it is not. Indeed, it is very apparent that the classification attempted was only for the purpose of avoiding the constitutional inhibition. The court takes judicial notice that Wyandotte county is the only one in the state affected, it being the only one having the specified number of inhabitants. But were there many more affected, the condition would not be changed, for the law is general in its nature and must have uniform operation throughout the state. Because it does not, it is partial, denies the equal protection of the law to all,.and is invalid under section 17, article 2, of the constitution.
The writ will be denied.
All the Justices concurring. | [
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The opinion of the court was delivered by
Price, J.:
This appeal grows out of a boundary line dispute between two neighbors in Hutchinson over the location of the lot line between their residential properties. From a judgment quieting plaintiffs’ title to and enjoining defendants from interfering with their enjoyment and possession of the property in dispute, defendants have appealed.
Plaintiffs are the owners of the west ten feet of lot 21 and all of lot 23. Defendants are the owners of lots 25 and 27. Lot 25 ad-joints lot 23 on the west. The ownership of the east several feet of lot 25 is in dispute.
Back in 1888 one Lentz became the owner of lots 23 and 25, and built two houses thereon. He erected a fence between them. Plaintiffs’ house now stands just as it was built. The fence has been maintained in its original location for over sixty years. Down through the years lot 23 passed through the hands of a number of owners, and the same is true of lot 25. In April, 1930, plaintiffs purchased the west ten feet of lot 21 and all of lot 23, including the house thereon, from one Loucks, the then owner, and moved onto the property. In 1933 the defendants moved onto lots 25 and 27, as renters, and continued to live in the house, which appears to be on lot 27, until 1945, when they purchased both lots and the house from the then owners, Clayton and Pursel. Thereafter defendants continued to occupy the propérty as owners. No question concerning the location of the fence between lots 23 and 25 was ever raised until 1949, when defendants had a discussion with their neighbors to the west about the repair of a fence between their properties. As a result of this discussion defendants caused a survey to be made to determine the proper location of the fence on the west side of their property. From this survey it developed that the fence, supposedly on the line between lots 23 and 25, owned by plaintiffs and defendants, respectively, was 5-6/10 feet west of the true line. Another survey was made which showed the fence to be approximately 4-9/10 feet west of the true line between lots 23 and 25. Assuming these surveys to be substantially correct, it was then established that the house of plaintiffs was approximately three feet across the line on lot 25, and that the water line to plaintiffs’ house was approximately two feet across the line on lot 25. A dispute arose between the parties, defendants tore down the fence in question — hence this lawsuit.
The evidence in behalf of plaintiffs wás to the following effect: A son of plaintiffs testified that he was with his parents when they purchased the property from Loucks; that they went upon and examined the property and were shown where the boundary was, namely, the fence line; that the water line was put in within a year before the survey was made, with no objection on the part of defendants; that his parents had always occupied the property up to the fence; that defendants had always planted flowers along the west side of the fence line ever since they had occupied lots 25 and 27; that in 1946 the fence was repaired by plaintiffs without objection by defendants; that no controversy had ever arisen between the parties until the survey was made; and that according to measurements made by the witness defendants still had sixty feet of ground (the lots being thirty feet in width each) even taking the fence fine as the true boundary.
Another witness, a sister-in-law of plaintiffs’ grantor Loucks, testified that she was familiar with the properties in years past; that a fence had always been maintained in its present location, and that plaintiffs’ grantor had always kept up the fence when he lived in the property.
A workman who had replaced the fence for plaintiffs in 1946 testified that there was no remonstrance from anyone about its location at the time he did the work.
Still another witness, who in 1922 lived in the house now occupied by plaintiffs and in 1923 lived in the property now occupied by defendants, testified as to the fence being in its present location at that time and that it was considered to be the boundary line between the properties.
An affidavit of the wife of plaintiffs’ grantor wás introduced in evidence, and the substance of it was that in 1919, when her husband acquired the property now owned by plaintiffs, a fence was maintained in its present location; that it was represented to her and her husband that it was on the west line of the property they were purchasing; that they claimed the fence and all ground east of it; that when she and her husband sold the property to plaintiffs all of them went upon the premises; that the fence was pointed out to plaintiffs as being the west boundary fine of the property plaintiffs were purchasing; and that affiant and her husband told plaintiffs they would own the ground extending forty feet east of the fence line.
In addition thereto plaintiffs introduced records of the office of register of deeds, probate court, and clerk of the district court of Reno County.
Defendants demurred to plaintiffs’ evidence on the grounds that it failed to make out a cause of action; that no adverse possession had been established; that no agreement as to the fence constituting the true boundary line had been shown; and that the most the evidence showed was that it merely had been the understanding of all parties concerned that the fence was the true boundary line, but that such understanding was the result of mutual mistake and therefore insufficient to constitute adverse possession within the meaning of the law.
Ruling on the demurrer was reserved; whereupon defendants proceeded with their evidence.
The only evidence on behalf of defendants was the testimony of Mr. Hartness, a defendant, and he testified that he owned lots 25 and 27; that his house was on lot 27, lot 25 being vacant; that he bought the property in about 1945, but had lived there as a renter for some twelve years before purchasing it; that he had discussed the matter with plaintiffs, told them he intended to have a survey, and that plaintiffs asked him if he would sell them enough footage so as to clear their house in the event it should develop that the true boundary ran through their house; that he replied in the affirmative and afterwards he had the survey made. He further testified that he had made no protest when plaintiffs put up a new fence in 1946, or when they had a water line installed; had never asked plaintiffs to move the fence; recognized the fact plaintiffs planted garden on the strip now in dispute and occupied everything up to the fence on their side, and admitted that he didn’t know where the true line was and didn’t inquire about it over a period of years, and that he had never claimed the strip in dispute until after the survey.
The record does not show that either side requested the court to make conclusions of fact or of law, as provided by G. S. 1949, 60-2921, but in the journal entry of judgment are certain findings and conclusions denominated as such. The court found the facts to be substantially in accord with the above summary of the evidence, and further found:
“Fourth. That the evidence conclusively shows that there has been a fence upon the place which has always been considered the boundary line between these two lots since before 1900 and probably since 1888 when the first fences were erected thereon.”
and for its conclusions of law (insofar as this appeal is concerned) held:
“FIRST. That when the plaintiffs purchased this property in 1930 from the owner of both pieces of property that they purchased all of the ground to and including the fence as it was then standing and that the plaintiffs are entitled to have their title quieted to all of Lot 23 and so much of Lot 25 as extends to the fence line and a permanent injunction against the defendants from interfering with their enjoyment and possession thereof.”
Defendants moved for additional conclusions of fact to the effect that the descriptions contained in the deeds to all parties concerned and their respective predecessors refer to lot numbers in unambiguous and certain language; that a true line between lots 23 and 25 has always been a fixed and ascertainable line; that both parties and their respective predecessors in title had always assumed and believed the fence in question was on the true fine between such lots until the time of the survey in 1949, but that such assumption and belief were a mistake; and that there had never been any agreement between the parties or between their respective predecessors in title that the fence should be regarded as the boundary line between the lots regardless of where the true boundary line actually existed.
Defendants further moved the court to set aside its conclusion of law and to find that plaintiffs had failed to establish their claim under the doctrine of adverse possession, agreement of the parties, or by estoppel.
These motions were overruled and judgment was entered in favor of plaintiffs in accordance with the conclusion of law above set out.
While defendants’ specifications of error, some of which refer to alleged trial errors such as pertain to the admissibility of evidence, are sixteen in number, yet from their brief and oral argument it is clear that reliance for a reversal of this judgment is based chiefly upon the fact there was no evidence, and the court did not find, that plaintiffs’ right to recovery was based on adverse possession, agreement of the parties, or estoppel.
On the other hand, plaintiffs, while conceding the force of defendants’ argument based on the long-established rule that adjacent landowners are not estopped to dispute the accuracy of a boundary line which by mistake they have long treated as such, and that occupancy beyond the true boundary line as the result of such mistake does not form a basis for adverse possession unless such encroachment is made with intention to claim and hold adversely (Kinne v. Waggoner, 108 Kan. 814, 197 Pac. 195), contend that here the evidence clearly showed an agreement between the parties and between their respective predecessors in title that the fence which had been in existence down through the years was the boundary line between their properties, and they rely on Blanford v. Biven, 123 Kan. 269, 254 Pac. 1030; Baker v. Jones, 141 Kan. 240, 40 P. 2d 346; Shafer v. Leigh, 112 Kan. 14, 209 Pac. 830; Schlender v. Maretoli, 140 Kan. 533, 37 P. 2d 993; Howell v. Kelly, 129 Kan. 543, 283 Pac. 500; and the early case of Sheldon v. Atkinson, 38 Kan. 14, 16 Pac. 68, in support of their position.
In the Schlender case, supra, the facts of which are somewhat analogous to those in the case at bar, it was held:
“Where two parties at different times purchase adjoining lots, which are conveyed to them separately by no other description than by number only, and there exists at the time they become such separate owners a fence, considered and regarded by both parties as being on or near the dividing line between the lots, and there is evidenc of a later agreement between the two owners that the existing fence shall be accepted and regarded by them as being on the dividing line, although it may not be exactly on the correct line, such fence becomes and is the true dividing line between the lots by virtue of such agreement even if a subsequent survey should establish a different boundary line.” (Syl.)
Applying that rule to the facts before us, we think the lower court’s judgment was correct. Notwithstanding the description contained in each of the conveyances (by lot number) under which the parties became the owners of these properties, there was ample evidence to establish that both plaintiffs and defendants, when purchasing, recognized the fence in question as being the boundary line between lots 23 and 25. Defendants knew the fence was there; knew that plaintiffs claimed all footage up to the fence, and when they purchased their property defendants certainly did not consider they were purchasing any part of the house occupied by plaintiffs. While it is true there was no direct evidence of a definite and specific agreement between the parties that the fence line was the true boundary, regardless of what a survey would actually show it to be, yet we think the evidence, taken as a whole, clearly shows, such agreement circumstantially, and the same is true of their predecessors in title down through the years. Roth parties were satisfied, and recognized and understood they were purchasing to the fence.
In passing, we take note of defendants’ complaint that in its conclusion of law the court’s language indicates that it found plaintiffs purchased their property from the owner of “both pieces of property,” meaning lots 23 and 25, when there is no basis in the evidence for such finding. We think defendants’ contention in this respect is erroneous. It was not claimed that the parties purchased from a common grantor, and we understand the language in the court’s conclusion to mean that plaintiff’s grantor owned both lots 21 and 23, rather than lots 23 and 25. We have examined and considered all other contentions made by defendants but find them to be without substantial merit. We find nothing in this record approaching reversible error.
In conclusion, we hold that the finding and judgment of the lower court are based upon substantial, competent evidence, and such being the case, will not be disturbed on appeal. The judgment of the lower court is therefore affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This action originated in the probate court of Mitchell county. Edgar Loyal Freeman died intestate. Clemie Dendy filed a petition in the probate court in the name of Clemie Dendy Freeman and sought to be appointed administratrix of decedent’s estate on the theory she was his widow and sole heir. The defendant, Elsie Collins, a sister of the decedent, contested plaintiff’s claim and asserted she was decedent’s sole heir. On final set tíement and distribution of the estate the probate court ruled plaintiff had been decedent’s common law wife, was his widow and sole heir and set aside $750.00 to her as a widow’s allowance. From that judgment the defendant appealed to the district court which reversed the judgment. Plaintiff appeals.
We shall continue to refer to the parties as plaintiff and defendant. The principal question is whether the district court erred in concluding plaintiff was not decedent’s widow and, therefore, not his heir at law. The plaintiff urges the trial court erred in the following particulars: (1) In the admission of evidence; (2) in making certain findings of fact and in its conclusions of law; (3) in refusing to make additional findings of fact and contrary conclusions of law; and (4) in overruling her motion for a new trial.
Defendant first contends there were no trial errors but if there were they are not open to appellate review for the reason plaintiff’s motion for a new trial was not filed within three days after the court filed its findings of fact and conclusions of law. We think the facts in this particular case make it unnecessary to labor defendant’s contentions. Plaintiff filed two motions on the same day the court’s findings of fact and conclusions of law were filed. One motion challenged the correctness of those findings and conclusions. The other requested additional findings of fact and contrary conclusions. Defendant’s objection to a consideration of plaintiff’s motion for a new trial on the ground it was filed too late was overruled. That ruling combined with an examination of a colloquy between counsel and the court on the day the findings of fact and conclusions of law were filed indicates the court did not consider them as final when filed but intended to, and did, first consider plaintiff’s two motions on a later day and then overruled them and also plaintiff’s motion for a new trial and rendered judgment. The motion for a new trial was filed the next day.
It was within the province of the trial court to determine whether the findings of fact and conclusions of law it filed were merely preliminary or whether it intended them to be final when filed. (Kalivoda v. Kalivoda, 148 Kan. 238, 240, 80 P. 2d 1050.)
Plaintiff’s complaints will be treated in the order previously stated. In the trial of the action plaintiff, in order to establish her capacity to enter into a marriage contract, introduced in evidence a decree of divorce obtained from her former husband, W. O. Dendy, in the same court in 1933. Thereafter the defendant introduced in evidence the files in that divorce action for the purpose of showing the divorce decree was void by reason of defective service on her husband, a nonresident. Plaintiff contends the evidence introduced by defendant was improperly admitted and the conclusion of the court in the instant case that the divorce decree was void is erroneous.
Capacity to marry is only one of the necessary elements of a common law marriage. In order to constitute a valid common law marriage there must also be a present marriage agreement rather than an agreement to be married in the future and a holding out of each other to the public as husband and wife. (Cooper v. Cooper, 147 Kan. 256, 76 P. 2d 867; Pitney v. Pitney, 151 Kan. 848, 101 P. 2d 933, and cases therein cited.) Assuming plaintiff possessed the capacity to marry did she enter into a common law marriage with Edgar Loyal Freeman? The court found she did not. We prefer to go directly to that issue. Refore doing so, however, we pause to note plaintiff contends there was also error in the admission of testimony touching other elements of a common law marriage. A careful analysis of the record convinces us no prejudicial error was committed in this respect. There was no jury to be prejudiced or confused and there was ample competent testimony on those issues. The credence to be accorded the witnesses and the weight to be attached to their testimony are something else.
The general reputation of the parties with respect to being married or single does not prove or disprove the marriage agreement itself. It is, however, evidence which may be considered in determining whether the parties held themselves out to the public as being husband and wife. (Schuchart v. Schuchart, 61 Kan. 597, 599, 60 Pac. 311; Tyner v. Schoonover, 79 Kan. 573, 576, 100 Pac. 478; Butler v. Butler, 130 Kan. 186, 190, 285 Pac. 627.) We find no reversible error in the admission of testimony on behalf of the defendant that the parties bore the reputation of being single.
In addition to the court’s findings of plaintiff’s lack of capacity to marry the record discloses:
“12. The Court further finds from all of the evidence that neither Clemmie Dendy nor the said Freeman did at any time prior to the death of Freeman hold themselves out to the public as being husband and wife.
“13. The Court further finds from all the evidence that there never was any consensual marriage entered into by and between the said Freeman and petitioner, Clemmie Dendy.”
The plaintiff did not testify. Her alleged common law husband was dead. It immediately becomes apparent the court was obliged to consider numerous facts, circumstances and inferences which reasonably might be drawn therefrom. That the court, in the light of the record, might have made findings in favor of plaintiff’s contentions is readily conceded. On appellate review that, however, is not the test. The question here is whether there was substantial, competent evidence which together with inferences that reasonably might be drawn therefrom support the findings of fact the court made. That there was such evidence is clear. It was strictly within the province of the trial court to determine the weight to which the testimony of the various witnesses was entitled. Unfortunately for plaintiff the court resolved the conflicting testimony in defendant’s favor.
In order to set aside finding No. 13 this court would be obliged to say the record is such as to compel the trial court to believe there had been a marriage agreement in addition to an agreement to cohabit. A careful review of the record convinces us the trial court easily might have concluded the parties cohabited but it was not compelled to believe they had actually entered into a marriage agreement.
But even though a reviewing court were able to say the trial court was obliged to believe such an agreement was actually made, this court would be confronted with the necessity of further concluding the evidence also compelled a finding the parties held themselves out to the public to be husband and wife. The court found they had not done so. It will serve no useful purpose to demonstrate this conclusion by encumbering our state reports with a lengthy narrative of the testimony. The record discloses numerous affirmative acts of the decedent which support the court’s findings. The record also discloses many things the decedent failed to do which indicate, or tend to indicate, the absence of a marriage. The same may be said concerning the conduct of the plaintiff.
Plaintiff argues the court was required to make additional findings she requested. We do not think so: Although the court, of course, was required to consider the evidence it was not obliged to give full credence to all of plaintiff’s or defendant’s evidence. From an examination and consideration of the entire record we would not be justified in reversing the judgment or in granting a new trial by reason of the court’s failure to make the additional requested findings.
It is not contended the findings made by the court do not support its conclusions of law.
Plaintiff contends the court erred in the following:
“It is further by the Court ordered and decreed that Henry Heidrick, administrator of decedent’s estate, is now entitled to the immediate possession of all of the assets of said estate, and upon his application that a writ of assistance or other lawful process issue to place him in the possession of all of the real estate belonging to said estate and to remove and put out any person occupying or claiming the same or any part thereof.”
The plaintiff argues the question of possession of property belonging to decedent’s estate was outside the issues of the case. We cannot agree. An examination of the pleadings filed in the district court indicates this subject was made an issue by plaintiff’s petition, her prayer and defendant’s answer. Although the administrator of decedent’s estate was not a party to the instant action the plaintiff is not in a position to complain concerning this part of the judgment. Moreover since plaintiff’s only claim was as an heir, which she failed to establish, she has no further interest in the estate.
In view of what has been said heretofore nothing further need be said with respect to the order overruling the motion for a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J. :
At Wichita, on the evening of October 26, 1897, T. J. Gaston attempted to purchase a ticket to Liberty, Kan., by way of the St. Louis & San Francisco (or “Frisco”) railroad. The agent, who was also the agent of the Atchison, Topeka & Santa Fe Railroad Company, gave him a ticket to Liberty bj; way of the road of the latter company. About ten o’clock at night Gaston took a “Frisco” train, supposing it to be that for which he had a ticket. The conductor refused to honor the ticket, and upon Gas-ton’s refusal to pay fare discharged him from the train, at Minneha station, where no depot was open at the time. Gaston walked back to Wichita, a distance of some six miles. OnDecember4,1897,he brought action against the “Frisco” company, alleging that, by reason of a cold rain’s falling at the time referred to, he had contracted a serious cold and sickness, so that he was permanently disabled from carrying on his vocation of teaching school, and asking damages in the sum of $5200. On February 28, 1898, he filed an amended petition, in which he alleged that, by reason of the matters complained of, he also contracted a cold upon his lungs from which he had not recovered, and that he had been threatened with pneumonia at. several times, and had been continuously sick. On July 1, 1898, he filed another amended petition, in. which he further alleged that, as a result of his exposure, he had become sick with pneumonia and consumption, and had been rendered a confirmed invalid and sufferer and consumptive and physically incapable of ever afterward performing any of the usual vocations of life. In this pleading he placed his damages at $15,300. The defendant having filed an answer including a general denial, a jury trial was-had, resulting in a verdict for plaintiff for $15,000, for permanent physical injury and loss of ability to earn a livelihood, on which judgment was rendered, which defendant now seeks to reverse.
Various rulings are assigned as error, including the overruling of a motion for a new trial on the ground of newly-discovered evidence. The newly-discovered evidence alleged consisted of a written statement made in connection with an application for life insurance by Gaston and also a physician’s certificate in the same matter made by Dr. T. W. Heuston, who was the principal witness of plaintiff (other than himself) upon the question of his physical condition before and after the occurrence on which the action was based. The petition of plaintiff, filed December 5,1897, stated that as a result of his exposure he had become sick and disabled from ever after carrying on his vocation. He testified that he taught school the next day after he reached his home, then was sick for a few days, and got to work again for a couple of weeks, and then was taken down again with pains in his lungs; that this kept up, off and on, he being part of the time in school and part of the time down, all through the fall and spring; that he had a doctor attending him from the time he went back to Liberty from Wichita ( a few days after the occurrence) up to some time in the following April. Doctor Heuston testified that some three to five months before October 26, 1897, he examined plaintiff for membership in an insurance order and considered him sound ; that he was called to treat him and examined him again about October 29 or 80 and found him suffering from a severe cold which had affected his lungs to a certain extent, which he diagnosed as a slight attack of pneumonia from the effects of the cold ; that he had had this trouble of the lungs ever since the witness first treated him in the latter part of October, and that he had not been a well man since ; that in the course of his attendance upon plaintiff at this time be called twice a day for five or six days; that an abscess developed in plaintiff’s lungs some ten or fifteen days later.
The matter set out in the motion for a new trial purporting to be a copy of the application for life insurance signed by plaintiff, made December 28, 1897, shows statements that he had not been confined to the house by illness for years ; that he had not consulted a physician since childhood; that he had not since childhood had any lung disease ; that he had no reason to believe that h,e was not in good health at the time of the application. The matter set out as a copy of the certificate of Doctor Heuston accompanying the application shows statements that upon a careful examination he found the lungs perfectly normal; that from his appearance and statements he believed the applicant uniformly enjoyed good health ; that he had no predisposition, hereditary or*acquired, to any local or constitutional disease, and that the doctor unqualifiedly recommended the acceptance of the risk.
The importance of this evidence under the circumstances, and in the absence of any explanation or contradiction's too obvious to require extended comment. The entire case of the plaintiff, so far as concerns the large amount of damages awarded him, depends upon the proposition that he was suffering from a permanent lung trouble occasioned by, and dating from, his exposure on the night of October 26, 1897. This is a matter upon which it is evident that it would be difficult for defendant to procure any evidence, whatever the facts might be. Plaintiff’s own written statement of his condition made two months later, and after this action was brought, while of course not conclusive, against him, is evidence so pertinent and weighty that defendant’s application for a new trial, in order that the judgment of a jury may be had upon it, comes with great force if it is made in due time and in a proper manner; and while the statements of Doctor Heuston would not be available to defendant as direct evidence, and while a new trial would probably not be granted in any case for the discovery of merely impeaching evidence, a certificate of the character indicated, made in connection with the written application of the plaintiff, by the doctor who attended him after his exposure and who was his chief witness at the trial, necessarily adds to the force to be given to the plaintiff’s own statement, and is a matter to be weighed in determining the sufficiency of the showing in support of the motion for a new trial. We think the showing was sufficient to require the granting of the motion, if that question was properly before the trial court for consideration.
Within three days after the verdict, and at the same term of court, defendant filed a motion for a new trial. One of the grounds set out in this motion was newly-discovered evidence, but the character of such evidence was not indicated, nor was the motion verified. This motion was argued some weeks later, but not decided. Several months afterward, and at a subsequent term of court, defendant filed a paper designated as a supplemental motion for a new trial, which was verified and included the matter already described. The district court overruled each motion separately. It is urged by defendant in error that the later motion could not be considered on its merits because filed after the term had ended, and it is argued that -under the several sections of the code affecting the matter a new trial on account of newly-discovered evidence can only be granted on motion when the application is made at the same term of court at which the verdict was rendered, and that after the expiration of such term the application can only be made by petition. In Schallehn v. Hibbard, 64 Kan. 601, 605, 68 Pac. 61, it was held that such a motion might be filed even after the term had expired, where a filing within the term was unavoidably prevented. But it is objected that in the present case there was no showing that plaintiff was unavoidably prevented from filing this motion before the expiration of the term at which the verdict was rendered. The allegation of the motion ,is that the matters relied on were discovered since the trial — not in set terms, however, since the expiration of the term of court at which the trial was had. But the motion was filed December 8, 1898, and recited that the new evidence was presented at the first opportunity. This is not a very explicit statement, and perhaps does not show that the filing of this motion during the term at which trial was had was unavoidably prevented, within the meaning of the statute, but taken in connection with the facts that the trial was in May and that the new term began on the first Tuesday in September, it may have, this effect, and so bring the case within the rule announced in Schallehn v. Hibbard, supra, and upon that ground require a determination of the motion upon its merits.
It is not necessary to decide this question however for there is another aspect of the matter under which the defendant was entitled to have the effect of the. newly-discovered evidence passed on. The verified supplemental motion may be considered as an affidavit in support of the motion previously filed. This is what it was in fact, and the name by which it is designated is not material, so that it is not misleading. While it was described as a motion and not merely as an affidavit in support of a motion, its designation as a “supplemental” motion connected it with the motion already on file. Although that motion had been argued it had not been decided. A copy of the affi davit or new motion was served on plaintiff’s attorney. It was filed on December 8; 1899, and the ruling of the court on the original and supplemental motions was made February 6, 1901.
The statute does not require a motion for a new trial on the ground of newly-discovered evidence to. be verified or-to be supported by affidavits filed at the time. In Werner v. Edmiston, 24 Kan. 147, 150, it was said:
“Certain of the grounds for a new trial must be sustained by affidavit. (Code, § 309.) The fact that a motion is filed including those grounds is notice to the opposite party that affidavits sustaining them will be offered. And a party making a motion is under no obligation to disclose the testimony he may have to offer on the hearing thereof.”
In that case the motion for a new trial was not verified, and named newly-discovered evidence as one of its grounds, without indicating the nature of the evidence. At the hearing of the motion an affidavit was -offered in support of the motion, b.ut the court refused to receive it on the grouqd that it had not been filed with the motion for a new trial and had not been on file a reasonable time before the hearing. It appeared that the adverse party had had no notice of the filing •of the affidavit until after the motion for a new trial was called up for decision. This court held that the rejection of the affidavit was error and ordered the granting of a new trial. In the present case the fact that the affidavit was not presented until after the motion had been argued would be important if the court had refused to consider it on that ground. But although the plaintiff was served with a copy of it the record shows no motion to strike it out or objection to its consideration as evidence or otherwise. The fact that the district court overruled the motion rather than struck it from the files justifies the inference that it was considered on its merits. (Bank v. Miller, 59 Kan. 743, 54 Pac. 1070.) This inference is perhaps strengthened by the fact that the decision was not made until more than a year after the motion was filed. It is obvious that this interval afforded plaintiff abundant time, after notice of the contents of the affidavit or motion, to present controverting evidence or additional argument.
If it were not for the peculiar character of the newly-discovered evidence alleged, the showing of the defendant would be subject to just criticism on the ground of a failure to establish due diligence and to disclose the names of the witnesses by whom it was expected to prove the new matter. But the fact that the plaintiff had made an application for life insurance after the commencement of the action, and the circumstances accompanying it, so obviously lay outside the line of ordinary inquiry that it is difficult to conceive what specific allegations in support of diligence could be expected from defendant other than that of actual want of notice. (Railway Co. v. Lovelace, 57 Kan. 195, 45 Pac. 590.) The importance of the new evidence here alleged lies in the very fact of its documentary character. The setting out of the-writings in full advised plaintiff as to what he must expect to meet. It is of little consequence by whom their authenticity might be sought to be established. The witnesses, in the sense in which it is incumbent upon an applicant for a new trial to disclose them, are the writings themselves. (Building Assn. v. McMullen, 59 Kan. 493, 53 Pac. 481.)
We'conclude that the overruling of the motion for a new trial on the ' ground of newly-discovered evT dence was error. The oiher matters -argued-' 'turn largely upon a number of special findings. At another trial the same questions may' not arise or may be presented, if at all, in a different aspect. We therefore do not pass on them at this time.
The judgment is reversed, with directions to grant a new trial.
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The opinion of the court was delivered by
Johnston, C. J. :
Clarence Bodley appeals from a conviction for the violation of a city ordinance regulating hackmen and the drivers of other vehicles at the railway depots in Ottawa. Under the ordinance, the city marshal designated the positions to be occupied by each hack and vehicle while the drivers were waiting for passengers, but Bodley, a licensed hack-man, ignored the order and went to another place, near an arriving train, where he secured a passenger in pursuance of a former appointment made with the passenger.
Ottawa is a city of the second class, and full authority is given to cities of that class to regulate depots and depot grounds. (Gen. Stat. 1901, § 1005.) A regulation of hackmen and others who solicit passengers at railway stations is in the interest of peace and good order, and obviously essential to the convenience and comfort of travelers. The placing of them under the direction and control of the city marshal is a reasonable and practical method of regulation. The power to designate the position for hackmen and solicitors of passengers must be placed in some one, and no reason is seen why it may not be properly given to the marshal, a peace officer whose duty it is to preserve order throughout the city. We think there was power to regulate hackmen, and that it has been exercised in a reasonable and valid way. (City of St. Paul v. Smith, 27 Minn. 364, 7 N. W. 734, 38 Am. Rep. 296 ; Veneman v. Jones, 118 Ind. 41, 20 N. E. 644, 10 Am. St. Rep. 100.) There can be no claim of discrimination in the regulation, and the mere fact that the defendant had a contract or arrangement to meet a passenger at a place other than that fixed by the city marshal does not enlarge his rights. The police power cannot be so limited.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
Section 1 of chapter 892, Laws of 1901, provides “that in all cases in which real estate• has been or shall be sold and bid in by the county at any delinquent-tax sale, and shall remain or shall have remained unredeemed and the certificate of sale untransferred for the period of three and one-fourth years after such sale, it shall be the duty of the county attorney of such county, when so ordered by the board of county commissioners, to institute an action in the district court, in the name of the board of county commissioners, against the owners or supposed owners of such real estate, or so much thereof 'as the commissioners may'direct, and all persons haying or claiming to have any interest therein or thereto, by filing a petition.with the clerk of such court,” etc., the purpose of such action being to determine the amount of the tax lien against the property and have it disposed of by judicial sale to satisfy the lien. The board of county commissioners of Atchison county directed the county attorney to proceed under this statute against all real estate in the county subject to its terms. Upon this authority an action was brought for the sale of certain property of Mary E. Baker. Service was made by publication, judgment was rendered, and a sale had. Defendant moved to set aside this sale for the reason that the statute referred to was unconstitutional. The motion was denied, and the defendant appeals.
The sole question presented is as to the validity of the act referred to. It is challenged on account of the words italicized in the foregoing quotation, on the grounds that it is not of uniform operation throughout the state, that the time of its taking effect was not prescribed by the legislature, that it is inconsistent with a uniform and equal rate of assessment and taxation, and that it is an attempt to delegate legislative power to county commissioners. These contentions are founded upon the conception that the legislature in effect merely submitted this statute to the various boards of county commissioners throughout the state for their acceptance or rejection ; that it does not become operative in any county until it has been passed on and accepted by such body. We do' not consider this the true interpretation of the language used. The statute, upon its publication, immediately became effective in every part of the state. It provided a new and perhaps cumulative method of dealing with the vexed problem of how to compel real estate for which no bidders can be found at the amount of taxes charged against it to bear its just part, or some part, of the expenses of government. But in order that the measure should be effective it was necessary that judgment should be employed in its application. As to some tracts an immediate sale might be advantageous. As to others a delay might increase the prospects of a good sale, or be advisable on account of a chance of payment of the full amount ultimately. In still other cases the tracts might not be worth the costs of an action. A discretion to determine when, if ever, each tract should be offered at sheriff’s sale was therefore lodged with the county commissioners.
In this respect the statute is very similar to, and at all events no more objectionable than, the familiar compromise act, authorizing the county commissioners to permit the redemption of such real estate or the assignment of the tax certificate against it for less than the amount required to redeem. That statute is applied only to such tracts as the county boards select, and only when they so decide. No doubt its actual operation is much like that of the law under consideration — the property is in effect offered for sale whenever the circumstances seem favorable. It does not require that the taxes against all tracts, within its terms shall be compromised, or that the taxes against any of them shall be, except as the commissioners may in a given case find it expedient. If both statutes are in effect, the commissioners may compromise the taxes on one tract, order another exposed to public sale, and hold a third in the hope of an ultimate redemption at full value, according to the course that business prudence may dictate in each instance.
The compromise act was upheld as constitutional against .an attack somewhat similar to that now directed against the law of 1901 in Ide, Receiver, v. Finneran, 29 Kan. 569. It is true that two of the three judges then constituting the court expressed the opinion that that act was unconstitutional so far as it related to taxes accruing subsequent to its passage, but for a very different reason from any urged here by plaintiff in error, namely, that it puts a premium upon non-payment of taxes by indulging the hope in the breast of the property-owner that by delaying payment he may have opportunity to escape a part Of his obligation to the public by some future adjustment and compromise. This consideration might seem addressed to the policy, rather than to the validity, of such acts, but we express no opinion on 'the question suggested, as it is not before us. It. may be remarked, however, that since the @ase referred to was decided the legislature has frequently passed laws in recognition of the compromise act. See section 4, chapter 110, Laws of 1893 ; chapter 122, Laws of 1901.
We do not think the statute of 1901 is open to any of the objections urged, and therefore affirm the judgment.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith. J. :
Bernard Korman died in June, 1899. His wife and a married daughter, Molly Berlau, sur vi ved him. For more than two years prior to his death his wife had been demented and confined in an' insane asylum. He left a will in which one-half of his property was devised and bequeathed to his wife, excepting $300 to buy a monument, and the remainder was left to Esther R. Lyons, in consideration of the care she had given him in his old age. H. E. Michael was named as executor in the will.
The will was executed in July, 1897, and admitted to probate June 20, 1899. On August 22, 1899, this action was brought by Molly Berlau, daughter of the testator, to set aside the will on account of mental incapacity of the testator and undue influence exercised over him by Esther R. Lyons. Joined with the cause of action to annul the will was a cause of action to set aside certain conveyances of real estate made to Mrs. Lyons by Korman in his lifetime. Of the property so conveyed it is unnecessary to take into con sideration but one parcel of land, known as “Korman’s Park,” containing about eight acres, near the city of Leavenworth. All controversy over the other real estate and the personal property was abandoned at the trial.
The case was tried on the third amended petition, filed on November 6, 1901. The executor and Esther R. Lyons at first filed demurrers to this petition, on the ground that it showed on its face that the action was barred by the statute of limitations, which demurrers were overruled. There was no error in this ruling. While the amended petition demurred to was filed more than two years after the probate of the will, the original was filed about sixty days after it was probated. The only change of consequence was the addition in the last petition of the names of Amelia Korman, the insane wife of the testator, and her guardian, who were made defendants. There was no material change in the allegations affecting the conduct of Esther R. Lyons or in the relief sought against her, and Amelia Korman, in her answer to the last petition, joined with the plaintiff below in demanding that the will be set aside. Under the circumstances of the case, we are clear that' the court below did not err in allowing the amendment, and properly overruled the demurrers. (Hucklebridge v. Railway Co., 66 Kan. 443, 71 Pac. 814.)
After the demurrers were disposed of, the executor and Esther R. Lyons answered : (1) Denying generally the allegations of the amended petition; (2) that the action was barred by the statute of limitations, for the reason that it was not commenced within two years from the probate of the will; (3) that the plaintiff had joined together several distinct .and separate causes of 'action, to wit, to set aside a will 'and conveyances of real estate, and a cause of action to recover specific personal property. The second and third defenses pleaded were stricken out of the answer on motion of the plaintiff below, on the ground that they were redundant arid irrelevant, and had been disposed of on demurrer.' There was no error in this ruling. The averment that the action was barred by limitation had already been considered on the demurrers, and the rights of the demurring parties saved by exceptions.
If there was an improper joinder of causes of action, the fact appeared on the face of the amended petition. The statute reads:
“The defendant may demur to the petition only when it appears on its face . : . Fifth, that several causes of action are improperly joined.” (Gen. Stat. 1901, §4523.)
It is further provided:
“When any of the defects enumerated in section 89 [§ 4523, supra] do not appear upon the face of the petition, the objection may be taken by answer ; and if no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to •the jurisdiction of the court, and that the petition does not state facts sufficient to constitute a cause of action:” (Gen. Stat. 1901, §4525.)
We construe these statutory directions to mean, as they read, that for misjoinder of causes of action the objection can be raised by answer only when the misjoinder is not apparent on the face of the petition. If it be so, then a demurrer must be interposed. The question of a misjoinder of causes of action is a question of law, not of fact, and ought to be presented by demurrer, the peculiar office of which is to tender an issue of law. Under like statutes the supreme court of Missouri has held that wherte a defect of parties was apparent on the face of the petition, advantage of it must be taken by demurrer, and that it would be deemed waived if defendants answer, even though they insist on the defect in their answer. (Walker v. Deaver, 79 Mo. 664.) See also Colo. Coal and Iron Co. v. Lamb, 6 Colo. App. 255, 40 Pac. 251, and Pomeroy’s Code Remedies, third edition, sections 206 and 207. In a note to section 443 of the work last cited, the author says, speaking of misjoinder :
“If the objection appears on the face of the pleading, it must be raised by demurrer, and not by answer ; and this is substantially the same as saying that it must always be raised by demurrer, because the misjoinder will always appear on the face of the pleading.”
■That the compilers of the code intended that a misjoinder of causes of action should be raised by demurrer only is apparent from a reading of section 4526, General Statutes of 1901, which provides that when a demurrer is sustained on the ground of misjoinder of several causes of action the court shall allow the plaintiff to file several petitions, and the separate actions shall proceed without further notice.
Defendants below, except the guardian of the decedent’s wife, filed motions to require plaintiff separately to state and number the causes of action contained in the second amended petition. The motion was overruled. It is now asserted by counsel for plaintiff in error that a denial of this motion was error. After this, by leave of the court, a third amended petition was filed, and it was nowise attacked by motion. We are clearly of the opinion that the ruling of the court on the motion, if erroneous, cannot be carried forward and be made to relate to a petition filed after ward, which was not in existence when the error was committed.
“The original complaint is superseded and its effect as a pleading destroyed by filing an amended complaint which is complete in itself and does not refer to or adopt the original as a part of it.” (1 Encyc. of Pl. &Pr. 625. See, also, United States v. Gentry, 119 Fed. 70, 55 C. C. A. 658.)
There is no mention in the last petition of the allegations in those that preceded it, except a reference to the will marked “A,” attached as an exhibit to the original petition.
As before stated, the action was reduced to a contest of the will, and joined with it an action to declare a trust in the “Korman Park” real estate, the legal title of which stood in Esther E. Lyons. Mrs. Berlau was permitted to testify to transactions had by her with her father, the decedent. There was much of this* testimony. It was objected to by defendants below. After the witness had concluded, the court, on motion of the party offering it, excluded the testimony. We do not think that plaintiff in error can complain of this action of the court. (11 Encyc. of PI. & Pr. 307.) There was other testimony admitted tending to show that Korman had in the absence of Mrs. Lyons made statements indicating that he, and not Mrs. Lyons, owned the land known as “Korman Park.” It is conceded in the brief of counsel for plaintiff in error that this testimony was competent under that part of the petition which attacked the validity of the will. This being so, the court would not be justified in excluding it, for the two causes of action were permitted to stand in the petition without legal objection by Mrs. Lyons. The court in the instructions clearly indicated to the jury that evidence was necessary to set aside the will and what was essential to be proved to declare a trust in the land. There was testimony tending to show that Bernard Korman, the decedent, paid for the park property with his own money, and, at his request, the vendor deeded the land to Mrs. Lyons.
It is contended by counsel for plaintiff in error that no trust in land so conveyed could be established by parol testimony, under section 7875, General Statutes of 1901, in favor of the heirs of decedent. The law reads:
“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.”
This court has distinguished cases like the present from those where the grantor himself asserted that the grantee held the land in trust for him. In the latter a parol trust was held to be void. (Morrall v. Waterson, 7 Kan. 199 ; Gee v. Thrailhill, 45 id. 173, 25 Pac. 588.) The statute relied on here reads :
‘ ‘ When a conveyance for a valuable consideration is made to one person and the consideration therefor paid by another, no use or trust shall result in favor of the latter ; but the title shall vest in the former, subject to the provisions of the next two sections.” (Gen. Stat. 1901, § 7880.)
By section 7882, following, it is provided that the-above section shall not apply—
“where it shall be made to appear that by agreement and without any fraudulent intent the party to whom the conveyance was made, or in whom the title shall vest, was to hold the land or some interest therein in trust for the party paying the purchase-money or some part thereof.”
In two cases, at'least, this court has decided, that where conveyances are made under the conditions mentioned in section 7880 of the General Statutes, supra, a trust arises by operation of law, and that the “agreement” required by section 7882, supra, need not be in writing. (Franklin v. Colley, 10 Kan. 260; Rayl v. Rayl, 58 id. 585, 50 Pac. 501.)
For the writer (speaking for himself) it is difficult to understand the reasoning which brings the mind to conclude that where an agreement is necessary to impress land with a trust such a trust can arise by operation of law, and that because it arises by operation of law the agreement to create it may be proved by parol.
There was no express agreement shown on the part of Mrs. Lyons that she held the park property in trust for Korman. This was proved by circumstances. While the proof was not strong, we think it was sufficient to justify the jury in so finding. One George Wells sold the land to Korman in 1891, although the whole consideration was not paid until 1894. Mrs. Lyons was unknown in the transaction until the deed was made to her at Korman’s request. There was some testimony to the effect that Mrs. Lyons did not have sufficient money to pay the consideration. Korman placed a sign at the entrance reading, “Korman’s Park,” and held possession of the property to the time of his death. He gave all of his attention to conducting it. In Perry on Trusts, section 137, fifth edition, it is said :
“The certainty required, however, is only such as is sufficient to satisfy the jury of the existence of the trust; and it is error to charge that the ‘ clearest and most positive proof’ must be given. For this purpose all competent evidence is admissible, as the admissions of the nominal purchaser and grantee in the deed, recitals in the deed, and other proper documents, and even circumstantial evidence, as that the means of the nominal' purchaser were so limited that it was impossible for him to pay the purchase-money.” (See, also, Newell v. Newell, 14 Kan. 202, 207.)
There was ample evidence to sustain the findings of the jury on the question of undue influence.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
James N. Pendleton was convicted of bigamy and appeals. The first assignment of error argued is based upon the admission in evidence of a paper purporting to be a marriage license issued in 1896 by the recorder of Worth county, Missouri, authorizing the marriage of Rachel Dry to defendant. The Missouri statutes showing the' recorder .to be the proper officer to issue marriage licenses were in evidence. It appears that the paper also contained a return or certificate of marriage, but all of the contents except the license proper were excluded by • the trial court. The objection urged is that there was no sufficient authentication of the document. It was produced in court by one W. F. Osman, who testified that he held the office of recorder of Worth county, Missouri, at the time it bore date. He had long before ceased to be recorder, and had no official custody of the license, nor did he explain how he.came by it. He did, however, testify that the paper produced was in fact the original license, issued by the deputy recorder. This rendered it competent evidence. Entries in public records may be proved by examined copies made by persons not having their official custody. (Cooper v. Armstrong, 4 Kan. 30; Winham v. Kline, 77 Mo. App. 36; 1 Greenl. Ev. § 485.) The original records are certainly as good evidence as any copies could be. If produced by the official custodian they are admitted without further attestation ; otherwise, there must be other evidence of their character. But there need not be a combination of the two methods of authentication ; either alone is sufficient. Where the records are identified by an unofficial witness, it is not material that his possession of them is unexplained, or even that it is wrongful. (McLeod v. Crosby, 128 Mich. 641, 87 N. W. 883 ; People v. Alden, 113 Cal. 264, 45 Pac. 327.)
The other assignments of error are founded upon the contention that there was no sufficient evidence of the first marriage alleged in the information. The position of appellant is that there can be no. conviction under a charge of bigamy unless the state shows the first marriage, either by direct evidence, as by a public record or an eye-witness, or by proving admissions of the marriage, coupled with cohabitation and reputation. In the present case there was no direct evidence of the first marriage or of the actual fact of cohabitation, the prosecution relying wholly upon testimony as to admissions and reputation and circumstantial evidence. In several states the rule has been adopted that the first marriage must be established by positive proof of the very fact of marriage, as distinguished from a marriage that may be inferred from circumstances.
This court-has already refused to follow this line of authorities in The State v. Hughes, 35 Kan. 626, 12 Pac. 28, 57 Am. Rep. 195. Appellant urges, however, that the doctrine of that case goes no further than that a concurrence of the three elements of admissions, cohabitation, and reputation, may sustain a conviction, and that it ought not to be extended further. This position likewise finds support in many well-considered decisions. The authorities upon this and other features of the question are gathered in the notes to pages 700-703 of volume 5 of the Cyclopsedia of LaWj and show a wide divergence of judicial opinion. In harmony with what we regard as the weight of authority as well as the better reason, we prefer to adopt the rule that there is nothing peculiar about an allegation of this kind requiring unusual treatment, but that it may be proved by any competent evidence, direct or circumstantial, the same as any other fact. In this view of the law, the record shows sufficient evidence to sustain the conviction.
The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
The motion for a further order in this cause upon the cross-petition in error of C. E. Sprague must be allowed. It was inadvertently overlooked when the main controversy was decided. There appears to be sufficient testimony to sustain the findings and judgment in favor of J. C. Foulks against C. E. Sprague, and therefore that part of the judgment will be affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
On September 29, 1900, an application was made to the probate judge of Kingman county for the appointment of a guardian of the person and estate of Mrs. A. C. Martin. It was alleged that she was “in feeble health, and of unsound mind and impaired physical condition, and is incapable of attending to business matters of any kind.” Upon notice given, a hearing upon the application was had on October 15, 1900. The record entry of the hearing recites that some testimony was taken on behalf of Mrs. Martin, and then says :
“Upon hearing testimony and argument of counsel, decision reserved and taken under advisement. On consultation with J. Q. Jenkins, county attorney, and the expert testimony of Doctors Cheney and Light, that Mrs. A. C. Martin is of feeble mind and body; therefore, there should be a guardian of her person and property.”
A guardian was accordingly appointed. She took an appeal from the decision to the district court of Kingman county, and later the case was taken upon a change of yenue to Sedgwick county. Motions for the dismissal of the appeal on the one side, and on the other for the dismissal of the action for lack of jurisdiction, were made. The court overruled’ the latter, but sustained the one asking for the dismissal of the appeal.
The controlling question in this proceeding is, Can the probate court appoint a guardian of the person and estate of an adult unless such person has been duly adjudged to be an idiot, a person of unsound mind, or an habitual drunkard and incapable of managing his or her affairs ? There can be no guardianship, except for infants, lunatics, and others 'under legal disabilities. The probate court has no authority to give one man the control of the person and estate of another unless it is specifically conferred by law. Power is given for the appointment of guardians for infants, persons of unsound mind, and habitual drunkards, where their status has been found and determined as the statute prescribes. Here there was no more than a summary hearing before the probate judge, without a jury, and the finding made by him was only that Mrs. Martin was in feeble mind and health. It was not determined that she was insane and incapable of managing her affairs; and, until it was so found and determined before a jury, the court was powerless to place her person and property in the control of another. (Gen. Stat. 1901, § 3945.)
It will be noted that the hearing was had before the enactment which permitted the probate court, in its discretion, to have a trial as to lunacy before a jury or a commission, in open court, at chambers, or at the house of the one .alleged to be insane. (Laws 1901, ch. 353.)
Under the statute as it then existed, no guardian could be appointed until there had been a trial, based on a written information, before a jury of six persons, one of whom was a physician in regular practice and good standing, and where it was found and determined that Mrs. Martin was of unsound mind and incapable of managing her affairs.
As the probate court was without authority, the district court should have dismissed the action, and for this purpose the judgment will be reversed and the cause reminded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J. :
The petition in this case was in the form of a common count for the recovery of the reasonable value of work and labor performed. It was not attacked by motion or otherwise, and the answer was a general denial. The plaintiff’s evidence, if true, established the fact that he had engaged to work on a farm and stock ranch owned, equipped, stocked and managed by defendant; that his compensation was to be one-third of the profits to be derived from the farm and the sale of stock; that his duties embraced all classes of services incident to farming and stock-raising, which he performed for the period of seventeen months without remuneration, when he was obliged to discontinue his work and leave the farm under an order of the defendant so to do, emphasized by threats of personal violence and a display of force ; that the order to leave had been repeated several times before it was complied with, and that on each occasion plaintiff had demanded a set- • tlement with the defendant, which the defendant declined to make. The plaintiff also proved the reasonable value of his services. The defendant’s evidence denied any contract whatever with the plaintiff and tended to show that plaintiff was working for defendant’s son, who claimed a lease of the premises on which the services were rendered.
The court submitted the claims of the respective parties to the jury, with the result that a verdict was returned for the plaintiff, which verdict was approved on a motion for a new trial, and judgment rendered accordingly. The defendant brings the case here and argues that the evidence of plaintiff was wholly outside the issue tendered by the petition, and was at fatal variance with the pleading, because it established a contract for profits and not a service to be compensated by wages.
When the defendant drove the plaintiff away from the scene of his employment it became impossible for him longer to fulfil his part of the contract. The contract was necessarily terminated by the wrongful act of the defendant. The plaintiff then had two courses open to him — he could sue upon the contract and recover for its breach, or he could abandon the contract altogether, treat it as wholly non-existent, and recover upon quantum meruit the actual value of his services. Authorities to this effect are abundant.
“Is this contract entire or separable? If the first, then the testimony offered was admissible, and the instruction erroneous. For if the contract was terminated against the will of defendants, they could have sued for a breach thereof, and recovered as damages the profits they would have made if allowed to complete the work ; or they could at their election have waived the contract, treated it as rescinded by the act of plaintiffs, aqd brought an action on the common count for work and labor generally, and recovered whatever the work done was actually worth.” (Dibol & Plank v. W. & E. H. Minott, 9 Iowa, 403, 405.)
“The result of the cases is, that if the special contract is terminated by any means other than the voluntary refusal of the plaintiff to perform the same upon his part, and the defendant has actually received benefit from the labor performed and materials furnished by the plaintiff, the value of such labor and materials may be recovered upon a count upon a quantum meruit, in which case the actual benefit which the defendant receives from the plaintiff is to be paid for, independently of the terms of the contract. The contract itself is at an end. Its stipulations are as if the/ had not existed. But this does not imply that the contract may not be put in evidence, and its terms referred to, upon the question of the real value to the defendant of the plaintiff’s labor and materials.” (Fitzgerald v. Allen, 128 Mass. 232, 234.)
“Counsel for defendant objects to that part of the above charge in which the court said the plaintiffs might recover upon a quantum meruit what their services were worth ; that this does not mean what they were worth to the defendant, but the fair value of the work and labor; and it is claimed that the true basis of recovery in such cases is not the value of the work and labor, but of the product of the work and labor. We think the circuit judge adopted the correct rule. If the plaintiffs had abandoned the work,- without being directed to do so by the defendant, and the defendant had appropriated the work to its own use, the rule contended for by defendant’s- counsel would have been correct. That rule was recognized and clearly stated by the circuit judge in his charge. But where, as in this case, the plaintiffs are prevented from performing the contract, they are entitled to recover, if at all, what their work and labor is worth, whether it was of value to the defendant or not.” (Mooney v. Iron Co., 82 Mich. 263, 265, 46 N.W. 876.)
See, also, Guerdon v. Corbett et al., 87 Ill. 272 ; Wright v. Haskell, 45 Me. 489 ; Rodemer v. Hazlehurst & Co., 9 Gill (Md.) 288; McCullough v. Baker et al., 47 Mo. 401; Carroll v. Giddings, 58 N. H. 333 ; Derby et al. v. Johnson et al., 21 Vt. 17 ; United States v. Behan, 110 U. S. 339, 28 L. Ed. 168.
The plaintiff in this case chose to treat the contract as nothing, and framed his pleading accordingly. Pleading the common counts is still sufficient in this state under the code as it was at common law. If the defendant desired a full statement of the facts constituting the plaintiff’s cause of action he should have moved to make the petition more definite and certain. (Meagher v. Morgan, 3 Kan. 372, 87 Am. Dec. 476 ; Water Power Co. v. McMurray, 24 id. 62; Barons v. Brown, 25 id. 410.) He failed to do this. Therefore the plaintiff was left at large in making his proof, and the evidence offered all supported his theory of the case.
The judgment of the district courtis affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action by the administrator of an estate, filed in the district court, for the possession of described real property alleged to be a part of the assets of the estate, the title to which was standing in the name of the defendant, and to quiet title to the property in the name of the plaintiff as administrator of the estate. Defendant filed a demurrer to the petition predicated upon the sole ground that the court has no jurisdiction of the subject matter of the action. The demurrer was considered by the trial court and overruled, and defendant has appealed.
The petition in appropriate detail alleged facts which, for our purposes, may be summarized as follows: Walter S. Goldsberry, a resident of Nemaha county, Kansas, died intestate January 4, 1948. On January 16, 1948, his sister filed a petition for the ap pointment of an administrator. A controversy arose about who had the right to designate the appointment of the administrator, which was appealed to the district court, where it was determined that Lee Goldsberry was a son of the deceased and had the authority to be appointed or suggest the appointment of the administrator, as a result of which Harry E. Lanning was duly appointed and qualified as administrator of the estate. The petition alleges further-facts tending to show that in April, 1947, Walter S. Goldsberry purchased certain described property in the city of Sabetha and. paid for it with his own money, but was induced by his brother, the defendant, to let the title be taken in the name of the defendant, who at the same time executed a deed to Walter S. Goldsberry, blank as to grantee, with authority for him to fill in the name of the-grantee. The deed from the vendor to the defendant was recorded some months later. After the death of Walter S. Goldsberry the-defendant had charge of his papers, and when the present administrator was appointed the deed from defendant which he had given to Walter S. Goldsberry could not be found. Other facts are alleged, which tend to show that Walter S. Goldsberry was an aged man. and for more than a year prior to his death had been in poor health, and that defendant, through his confidential relations with his brother, wrongfully succeeded in getting the title to the property in his name without any consideration. The administrator by this, action seeks to get the property into his possession as a part of the assets of the estate of Walter S. Goldsberry for administration and for distribution as the probate court may finally determine.
The sole question presented here is whether the district court has jurisdiction to maintain and try this action. We think our statute (G. S. 1949, 59-1401) specifically authorizes such an action, certainly when the probate court had directed the administrator to. bring it, as is shown by the brief of appellant. So- much of the statute as is specifically applicable here reads:
“The . . . administrator shall have a right to the possession of all the real property of the decedent, . . . He may by himself, . . . maintain an action for the possession of the real estate or to quiet title to the same.”
In Kininmonth v. Carson, 156 Kan. 808, 137 P. 2d 173, it was held:
“Where the probate court ordered the administrator of an estate to take possession of all the real property owned by decedent, and certain parties, were asserting that they had a right to possession and title of the real property, -it was the duty of the administrator to bring an action to quiet title, and the proper forum in which to bring it was the district court.”
See, also, to the same effect, Sheedy v. Willoughby, 157 Kan. 508, 142 P. 2d 801; In re Estate of Thompson, 164 Kan. 518, 190 P. 2d 879; In re Estate of Wright, 170 Kan. 400, 227 P. 2d 131, and the more recent case of Collins v. Richardson, 171 Kan. 152, 230 P. 2d 1018.
Counsel for appellant cites Wright v. Rogers, 167 Kan. 297, 205 P. 2d 1010. But there no administrator had been appointed. Heirs of the decedent sought to bring an action, which this court held should be maintained by the administrator of decedent’s estate. Later an administrator was appointed, and in a controversy over that appointment this court, in In re Estate of Wright, 170 Kan. 400, 227 P. 2d 131, sustained the appointment. Appellant also cites Houdashelt v. Sweet, 163 Kan. 97, 180 P. 2d 604. There the action was brought by one of the heirs after the administration was closed and this court held that it should have been brought by the administrator during the process of administration.
Appellant also cites Gebers v. Marquart, 166 Kan. 604, 203 P. 2d 125. In that case a resident of Nebraska died intestate. No proceeding for administration upon his estate was had either in Nebraska or in Kansas, where some of his real property was situated. About two months after his death his widow was adjudged incompetent and a guardian was appointed for her estate. The guardian brought an action in the district court of Kansas of the county in which some of the real property was situated, to set aside certain deeds decedent in his lifetime had made to his daughter. It was held the action was tantamount to a claim against the decedent’s estate, that an administrator should have been appointed, and the claim should have been presented there, and that the district court had no jurisdiction of the action. None of the authorities cited by appellant is in point.
The judgment of the trial court is affirmed. | [
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Per Curiam:
This is a companion case to that of The State v. Davis, ante, page 545, 73 Pac. 87. We have examined the instructions given and refused and find that the court fairly stated the law. The juror Throckmorton was not disqualified by reason of bias or prejudice. We cannot say that the trial court abused its discretion in questioning witnesses on the stand.
The judgment of the court below will be affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from an order of the trial court construing a joint will, and holding that a bequest for charitable purposes lapsed upon failure of the trustee to comply with a condition stated in the will.
The questions presented are: (1) Whether on the facts in this case the trial court erred in holding the bequest for charitable purposes in the joint will of a husband and wife was conditioned upon the building of a Catholic hospital in or within one mile of Coffey-ville, Kansas, within two years after the death of the survivor; and (2) whether the trial court erred in refusing to make the Attorney General of Kansas an additional party.
On June 4, 1930, James A. Roberts and his wife, Elizabeth J. Roberts, made their joint and mutual will. The provisions of the will pertinent to this appeal read as follows:
“HI. It is the will, direction, and desire of each of us, and the mutual desire and will and direction of both of us, that on the death of either of us, all of the property of the deceased party whether real, personal, or mixed, shall descend and become the sole and separate property of the survivor of us for his or her use and benefit so long as the survivor shall live.
“IV. It is the will, direction, and desire of each of us, and our mutual will and direction, that on the death of whichever one of us survives the other, all of our property, of whatsoever kind or nature and wheresoever situated, shall descend to and become the property of the Bishop of the Roman Catholic Church of the Diocese of Wichita, Kansas, or in the event that the Roman Catholic Church of Coffeyville, Kansas, commonly known as Holy Name Church, in Holy Name Parish, should, for any reason, not be under the jurisdiction of the Bishop of Wichita, Kansas, Diocese, then it is our will, jointly and severally, that all of our property of any kind or nature whatsoever, wheresoever situated, descend to and become the property of the Bishop having charge and jurisdiction of the Roman Catholic Church of Coffeyville, Kansas, tire Holy Name Parish, And this is our will, order, and direction, subject to the burdens, restriction, and trusts hereinafter named and reserved in this instrument of writing, our last will and testament.
“V. We, and each of us, jointly and severally, order, will and direct, that the Bishop of the Wichita Diocese, or the Bishop of the Diocese having jurisdiction of the Catholic Church of Coffeyville, Kansas, at the time of the death of tlie survivor of us, with said moneys and funds, shall build a hospital of a general nature for the treatment of the general diseases, and this the said Bishop shall do not later than two (2) years after the decease and demise of the survivor of us; that said hospital shall be built in the City of Coffeyville, Kansas, and in no event to be built at a greater distance than one (1) mile from the then corporate limits of the City of Coffeyville, Montgomery County, Kansas.
“VII. It is the will, order, and direction of each of us, and the will, direction and order of both of us, that there descend to the person or persons having the charge of said hospital or the persons having jurisdiction over the same, the sum of $500, to have and to hold unto their person in trusts, to put the same at interest in some investment or security or bonds approved by the Probate Court or in a manner approved by the Probate Court, to use the interest of same amount of money for the purpose of maintaining the keeping [of] our graves in proper, respectable, and decent repair and appearance.
“VIII. . . . It is the will, order, direction, of each of us and the will, order, and direction of both of us, that in the event a Catholic hospital is built here at Coffeyville, or within a mile of the city limits of Coffeyville, before the death of the survivor of us, that then all of said moneys, credits, properties, of whatever kind or nature, whatsoever, and wheresoever situated, shall and must on the death of the survivor of us descend to and become the property of the Bishop of the Wichita Diocese or the Bishop having jurisdiction over the Holy Name Parish of the Roman Catholic Church, of Coffeyville, Kansas, and by him and under his direction to be used for the support and maintenance of said hospital.
“X. We further order that the executors acting under this will reduce to cash, as soon as may be, without taking any unnecessary loss or losses, the property, real, personal, or mixed, which said executors shall receive under and by the terns of this will, provided, that no municipal, state, county, or United States bonds shall be sold or disposed of by the executors of this will until the Bishop aforesaid has let, or caused to be let, a contract for the building of said hospital; or in the event a hospital is built before the death of the survivor of us, then said bonds shall not be sold until the Bishop aforesaid shall give the executors 30 days notice in writing that he desires that said bonds be reduced to cash. That all properties, except municipal, state or United States bonds shall be reduced to cash by said executors, but no bonds shall be reduced to cash by the executors until they are notified in writing by the Bishop so to do.
“XIII. We, and each of us, jointly and severally, hereby mutually pledge and promise each other that this will is irrevocable on the death of one of us.” (Emphasis added.)
Changes made by two subsequent codicils are immaterial to this appeal. It is to be noted that neither the will nor the codicils contained any residuary clause providing for the disposition of the testators’ estate in the event any of the bequests therein lapsed for one reason or another.
The survivor, Elizabeth J. Roberts, died on the 15th day of July, 1958, her husband having predeceased her by some eighteen years, and the will was admitted to probate in Montgomery County, Kansas, on the 27th day of August, 1958. The First National Rank of Coffeyville, designated in the second codicil, was appointed executor.
The inventory and appraisement in the Elizabeth J. Roberts estate shows a gross estate of $98,417.12, including real estate of $46,250, “real estate sold on contract” amounting to $22,789.20, and bonds amounting to approximately $16,000.
The estate was regularly administered for a period of one year, whereupon the executor petitioned the probate court on the 21st day of September, 1959, for an order construing the will and for directions as to the disposition of real and personal property. Pursuant to said petition the order of the trial court construing the will includes the following perinent provisions:
“The Court further finds That under the joint, mutual and contractual will ... it was intended that upon the death of the survivor, all of the property of the decedents should be reduced to cash by the Executor as soon as possible without taking any unnecessary loss or losses, except for . . . bonds which shall not be reduced to cash until the Executor is notified in writing by the Bishop to do so. That a Catholic hospital had not been built in Coffeyville, or within one mile of the city limits of Coffeyville, before the death of Elizabeth J. Roberts. . . .
“It is further ordered That the . . . Executor ... be and it is hereby ordered and directed to sell all the real property described in the inventory ... as soon as the same can be sold to the advantage of said estate.” (Emphasis added.)
In August o£ 1960 the executor filed its petition for final settlement. It was stated therein that the executor had sold one of the four items of real estate shown by the inventory, but that the other three items of real estate:
“. . . which real estate is a part of the residue of said estate and which . . . Petitioner has been unable to sell without taking, what in the opinion of the Petitioner would be, unnecessary losses. And that said real estate should be assigned to such person or persons entitled thereto as the Court finds may be entitled to the residue of said estate.” (Emphasis added.)
The petition for final settlement further states:
“. . . the residue . . . was bequeathed to the Bishop ... to build a hospital of a general nature for the treatment of general diseases . . . to be built not later than two years after the death of the survivor . . . more than two years have passed . . . and . . . Executor . . . does not know and is in doubt whether the residue . . . should be distributed to the Bishop . . . or to the legal heirs of the decedent; that it is necessary that the Court construe the said will and the provisions; and determine who is entitled to the residue . . .”
One of the heirs at law of the decedent, Elizabeth J. Roberts, filed written defenses in the proceedings, and thereafter the appellants (Mark K. Carroll, Bishop of the Roman Catholic Diocese of Wichita, Kansas, and M. J. Gorges, Parish Priest of Holy Name Church of Coffeyville, Kansas) filed a written “Request for Transfer to District Court,” as authorized by G. S. 1959 Supp., 59-2402a. Whereupon the matter was transferred to the district court for interpretation and construction of the will and determination of the heirs, devisees and legatees entitled to the remainder of the estate.
Subsequently the appellants in the district court filed a motion to make the Attorney General of Kansas an additional party on the ground that the heirs asserted the charitable trust had lapsed and that the Bishop had forfeited any claim to the residuary estate. The motion alleged:
“. . . This challenge of the testamentary provisions constitutes an attack upon a public charitable legacy. The Attorney General is therefore a necessary party to this proceeding in the interests of the public.”
On the 7th day of January, 1961, the motion, after argument to the trial court, was overruled.
The facts giving rise to this controversy are not in dispute. They have been stipulated. It was agreed Holy Name Church at Coffey-ville, Kansas, at all times material to this litigation was and is a part of the Diocese of Wichita; that the Bishop of the Diocese of Wichita did not build a hospital of a general nature for the treatment of general diseases within two years after the decease of the survivor of James A. Roberts and Elizabeth J. Roberts in the city of Coffey-ville, or within one mile of the city of Coffeyville; and that no such institution was built prior to the death of Elizabeth J. Roberts.
Evidence set forth in the counter abstract of the appellees discloses that Mrs. Roberts was affiliated with the Roman Catholic Church all her life, and that Mr. Roberts did not have any affiliation; that he was a member of the Masons all of his adult life, took part in some of their ceremonies, and had some costumes and regalia which he wore on occasions. At his death funeral services were conducted at the home with a Presbyterian minister and Masonic bodies present, and that the Catholic Church did not handle the services in any way.
This evidence was argued to the trial court to show that Mr. and Mrs. Roberts were interested in building a local hospital in Coffey-ville. Evidence was introduced to show that at the time the will was executed the hospital facilities in and around Coffeyville were very meager.
The controversy was submitted to the district court upon its merits on the 31st day of March, 1961, all parties in open court having entered into a stipulation as to the issue. The matter was taken under advisement and on the 1st day of September, 1961, the trial court determined that it was the intention of the testators that the bequest to the Bishop:
“. . . was conditioned upon the existence of or the building of a Catholic hospital, . . . within one mile ... of Coffeyville, . . . not later than two years after the death of the surviving testator.”
The trial court found that more than two years had elapsed since the death of the surviving testator; that no hospital was built within one mile of Coffeyville within the two years following the death of the survivor as required by the will; that the trust created by Section IV of the will failed and lapsed by failure of the trustee to construct a hospital as required within a two-year period after July 15, 1958; and that the property which would have gone to the trust created by Section IV of the will descends to the heirs of the decedent, Elizabeth J. Roberts, as though she had died intestate.
Upon the foregoing findings the trial court:
". . Ordered and Decreed that the trust created by Section IV of the will of James A. Roberts and Elizabeth J. Roberts fails and lapses by reason of the failure of the trustee to comply with the burdens, restrictions and conditions precedent to the establishment of said trust.”
It further ordered and decreed that the property in question descended to and became the property of the heirs at law of Elizabeth J. Roberts, naming them, and the respective portion each was entitled to take. The relationship of the six heirs included one first cousin and five second cousins whose addresses indicated they were scattered all over the United States.
A motion for new trial was overruled and appeal was duly perfected to this court presenting the questions heretofore stated.
In support of the trial court’s decision the appellees argue that the charitable trust created by the will was dependent upon two conditions: (1) That the assets of the estate be used for the construction of a Catholic hospital for the treatment of general diseases within the city of Coffeyville or within one mile of the corporate limits thereof; and (2) that this building be constructed not later than two years after the death of the survivor. The appellees argue almost four years have now expired since the death of the survivor and there has been no compliance with either condition. It is argued there was nothing to prevent the letting of a contract to build the hospital. They say: “. . . The testators intended that the executor hold the funds in the estate until the contract to construct the hospital was let. In so many words, the decedents stated in Section X of the will that no municipal, state, county, or United States bonds should be sold by the executor until ‘the Bishop has let, or caused to he let, a contract for the building of said hospital.’ Thus the construction of a hospital, within two years after the death of the survivor, was a condition precedent to the vesting of the trust estate.”
In a will, a “condition precedent” exists when the performance thereof must of necessity precede the vesting of the gift, and a “condition subsequent” exists when failure or nonperformance works a forfeiture of an estate already vested. (In re Fogel’s Will, 156 N. Y. S. 2d 739, 742.) A “condition precedent” is a fact which must exist or occur before a duty of immediate performance of a promise arises. (8 Words and Phrases, 1962 Pocket Part, p. 46; and see Hawkins v. Hansen, 92 Kan. 740, 142 Pac. 280.)
Rriefly stated, the appellees’ position is that the executor had no obligation and no authority or right to deliver the estate, or cash the bonds and deliver tihe proceeds, until the Bishop had let a contract to build a hospital; and that it makes no practical difference whether the building of a hospital was a “condition precedent” or a “condition subsequent” — the facts are that no hospital has been built, no contract has been let for the building of the hospital, and the time fpr the building thereof has long since elapsed.
As usual, where the construction of a will is presented to a court, no precedent is available to give assistance upon the precise factual situation presented.
Charitable trusts are favorites of the law; they must be upheld whenever possible and, once it has been determined that the provisions of a will create a charitable trust, those provisions and others to be found in the instrument must be liberally construed for the purpose of carrying out the intention of the donor. Technical rules of construction, which have often prevented conveyances or bequests from talcing effect, are disregarded. (In re Estate of Porter, 164 Kan. 92, 187 P. 2d 520; In re Estate of Freshour, 185 Kan. 434, 345 P. 2d 689, 81 A. L. R. 2d 806; and Commercial National Bank v. Martin, 185 Kan. 116, 340 P. 2d 899.)
There is no policy in this state to keep any class of property in a favored channel of inheritance as against a will, and when there is a will the presumption is against intestacy. (In re Estate of Freshour, supra, Syl. ¶ 4.)
When a court is called upon to determine the force and effect to be given the terms of a will, the cardinal rule of construction to which all other rules are subordinate is that the intention of the testator as garnered from all parts of the will is to be given effect, and that doubtful or inaccurate expressions in the will shall not override the obvious intention of the testator. In construing a will the court must put itself as nearly as possible in the situation of the testator when he made the will, and from a consideration of that situation and from the language used in every part of the will, determine as best it can the purpose of the testator and the intentions he endeavored to convey by the language used. (Beall v. Hardie, 177 Kan. 353, 279 P. 2d 276; Johnston v. Gibson, 184 Kan. 109, 334 P. 2d 348; In re Estate of Freshour, supra; and cases cited therein.)
Other rules applicable to the construction of wills are stated in the case of In re Estate of Freshour, supra, and the authorities cited therein.
A careful analysis of the provisions of the will in question indicates that the condition imposed upon the Bishop has been impossible to perform, at all times including the present, because of the failure of the executor to turn the moneys and funds over to the trustee. The will directed the Bishop to build the hospital, within the two-year period, “with said moneys and funds” (Paragraph V). The executor was ordered by the will to:
“. . . reduce to cash, as soon as may be, without taking any unnecessary loss or losses, the property, real, personal, or mixed, which said executors shall receive under and by the terms of this will, . . (Paragraph X.)
except the bonds which the executor was directed to hold until the Bishop had let, or caused to be let, a contract for the building of the hospital. (It must be observed these bonds represented less than one-sixth of the assets of the trust estate, and it is primarily upon this clause that the appellees rely to defeat the trust.) At the end of Paragraph X the will again directed that tire executor shall reduce the properties, except bonds, to cash.
The probate court in construing the will, after the estate had been administered for one year, found it was intended by the will that the executor reduce the properties to cash, except for the bonds, without taking any unnecessary loss or losses, and thereupon extended the time of settlement to such time as may be necessary to complete the liquidation of the properties in the estate, not to exceed a period of one year. The order to sell the properties, however, was in accordance with the directions in the will — to sell as soon as the real property could be sold to the advantage of the estate.
When the petition for final settlement was filed, it was more than two years after the death of the survivor, and three items of real estate remained unsold and in the hands of the executor. This, of course, does not challenge the good faith of the executor in postponing sacrifice sales of the real estate. But the record does show the Bishop’s inaction has been beyond his control.
As the facts developed in the administration of this estate, it is readily apparent there are two conflicting provisions in the will. One is that the Bishop build a hospital with the moneys and funds within two years after the death of the survivor, and the other is that the executor reduce the properties to cash before malting distribution of the same to the Bishop, but he could not do this within two years by following the directions in the will and the orders of the probate court. Under these circumstances should the charitable bequest in trust to the Bishop fail? We think not.
A case somewhat analogous is Fourth Nat’l Bank v. First Presbyterian Church, 138 Kan. 102, 23 P. 2d 491. In that case Howard E. Case made a contract with the First Presbyterian Church for the erection of a memorial to Case’s deceased wife. He deposited $100,-000 with the bank under an agreement whereby the church was to provide an equal amount. It provided:
“ ‘It is a further condition of this gift that the funds to be raised by said church shall have been raised by funds . . . or . . . pledges . . . and work on the commencement of the building of said structure started all within fifteen months from the date of this instrument, and in case these conditions shall not have been performed within that time, then the entire sum shall be paid and turned over to the trustees of the said trust estate of Howard E. Case and Sara Blair Case, and the said gift as herein provided shall fail.’ ” (p. 104.)
The contract and the $100,000 deposit were effected on November 13, 1930. Mr. Case died January 4, 1931. On March 30, 1931, the church certified to the bank the existence of acceptable pledges for its share of the funds. But on April 4, 1931, the bank filed an action to test the validity of the Case contract, there being a question whether it violated a trust provision under a joint and mutual will of Mr. and Mrs. Case. The litigation went to the Supreme Court, where the validity of the contract was upheld. (Fourth Nat’l. Bank v. First Presbyterian Church, 134 Kan. 643 7 P. 2d 81.) On return to the lower court new issues were made up, and, after decision, another appeal was taken from an order of the trial court holding that the failure of the church to begin the construction of the memorial within fifteen months deprived the church of the use of the money held by the bank to construct the building and barred it entirely from its use. Reversing the trial court a second time, the Supreme Court held:
“The question is presented whether the interference of appellees and the litigation has delayed the church and practically rendered performance impossible within the time stated in the contract, and whether such conduct estops them from invoking the rule of nonperformance which they occasioned. There is a well-recognized rule, ‘That one who prevents a thing may not avail himself of the nonperformance which he has occasioned.’ (McDonald v. Wyant, 167 Wash. 49.)” (p. 105.)
For general discussions of legal principles applying to conditional legacies, see 2A Bogert, Trusts and Trustees, § 420, p. 311; 3 Restatement, Trusts 2d, Appendix, § 401, p. 646; and the annota tion in 110 A. L. R. 1354. See, also, Newcom, Administrator v. Potterf, 182 Kan. 73, 318 P. 2d 1069.
The appellees rely upon Salvation Army v. Watts, 130 Kan. 714, 288 Pac. 764; and Crowley v. Nixon, 127 Kan. 178, 272 Pac. 104.
In the Watts case a bequest of $500, to assist the Salvation Army of Topeka in erecting a building {or religious services and other purposes, was made in a will upon the express condition that actual building operations be commenced within two years after the testatrix’s demise, with a gift over upon failure of the bequest. After the will was written, but before the death of the testatrix, the Salvation Army constructed a building for religious services and other purposes. Three years later the testatrix died. No building was commenced after her death. In the closing of her estate the Salvation Army contended it was entitled to the $500, but the court held, there being no compliance with an express condition of the will, the bequest failed.
Upon all the facts and conditions stated in the Watts case, we think it is distinguishable upon the ground that the Salvation Army undertook to have the gift appropriated to pay for a building erected three years before her death, and this did not fulfill the condition to commence the construction of a building within two years after her death. There the intention of the testatrix regarding the express condition was made clear by an additional provision reading: “ ‘. . . in case such building operations are not begun within two years after my demise, then this bequest shall fail and the sum bequeathed in this item become and be a part of my residuary estate.’” (p. 715.)
In Crowley v. Nixon, supra, the court struck down a devise of real estate because the devisee failed to perform certain conditions attached by the testator, that the devisee “‘shall pay within two years after my death’” (p. 178) certain sums of money to certain individuals. The court held the devisee was bound to perform within the two years, and having failed to do so, he lost title to the property. The will made other provisions for the disposition of this land in case the devisee “‘does not accept said farm upon the said terms’” (p. 178). The devisee was given his choice either to pay his own money to certain individuals or lose the devise of real estate. Since the money was not to come from the executor, the devisee was not controlled in his choice of conduct.
In the instant case it was clearly the intention of Mr. and Mrs. Roberts, a childless couple, in their joint and mutual will to provide for the survivor of the two for the remainder of his or her life, and upon the death of the survivor, to provide that the assets of their estate be used to establish a hospital of a general nature for the treatment of general diseases in Coffeyville, Kansas, or within one mile of the corporate limits of the city. No provision was made in the event the charitable trust failed for any reason. Here the will by its terms disposed of all the decedents’ property, and the presumption against intestacy prevails. It was not the intention expressed in the will to embarrass the Bishop, as trustee of the charitable trust, by requiring him to build the hospital as a condition precedent to the vesting of the trust assets. The direction and intention expressed in the will (Paragraph IV) was that all of their property should descend to and become the property of the Bishop, as trustee, immediately upon the death of the survivor of them, and with saicl moneys and funds he was to build the hospital. The reduction of the properties in the estate to cash was an administrative function delegated by directives in the will to the executor. This function of the executor was of secondary importance in the will. It was subordinate to the primary design of the will — the establishment of a hospital. Now, if the directives in the will which are secondary in nature are permitted to defeat the primary purpose of the will, clearly the intention of the makers of this will would be thwarted. Figuratively speaking, it would in substance permit the tail to wag the dog. (See annotation in 163 A. L. R. 1152, entitled “Absence of limitation over in event of nonperformance of condition as to conduct or obligation of devisee, legatee, or grantee, as affecting operation of condition.)
We therefore hold the charitable bequest to the Bishop in trust was an outright gift upon the death of the survivor, burdened with a condition subsequent — the building of a hospital with said moneys and funds, not later than two years after the distribution of said funds to the Bishop. Upon the facts and circumstances presented by the record herein the will has inconsistent provisions, and the primary purpose and design of the will cannot be defeated by a subordinate administrative provision. A reasonable construction demands that the time specified in the condition shall first begin to run after the moneys and funds, which flow from the assets that the executor was directed by the teims of the will to liquidate and reduce to cash, are distributed to the Bishop. Under these circum stances the expression “not later than two (2) years after the decease and demise of the survivor” is inaccurate, and is construed to mean “not later than two years after distribution of the moneys and funds to the trustee.” This construction does not interfere with the provision concerning the sale or disposition of the bonds by the executor, although it may require holding the estate open until such time as the executor has completed its obligations under the terms of the will.
Was the Attorney General of Kansas a necessary party to this action?
The appellants contend it is obvious that the Roberts heirs challenge an attempted charitable trust, and in so doing they sought to diminish the interests of the people of Kansas. It is said the people are entitled to be represented herein through their Attorney General. The appellants rely upon 2A Bogert, Trusts and Trustees, § 411, pp. 263, 271; 2 Restatement, Trusts 2d, § 391f, p. 280; and 4 Yale L. J. 133.
The duties of the Attorney General of Kansas, in litigation, are set out in G. S. 1949, 75-702, which provides:
“The attorney general shall appear for the state, and prosecute and defend all actions and proceedings, civil or criminal, in the supreme court, in which the state shall be interested or a party, and shall also, when required by the governor or either branch of the legislature, appear for the state and prosecute or defend, in any other court or before any officer, in any cause or matter, civil or criminal, in which this state may be a party or interested.”
Nothing can be found in the statutes of Kansas making the Attorney General of Kansas a necessary party in the probate court or the district court in proceedings relative to wills creating charitable trusts. A similar question confronted the Kentucky Court of Appeals in Commonwealth v. Gardner, 327 S. W. 2d 947, 74 A. L. R. 2d 1059. There, however, the Attorney General of the state of Kentucky sought to intervene in a will contest involving a charitable trust, but his motion to intervene was denied. The Kentucky court said:
“. . . We have no statutory enactment in this state with respect to his rights and duties concerning the administration of established charities and charitable trusts. By decisions of this court the Attorney General has power to supervise the administration of such established trusts, to prevent the mismanagement and waste of the trust fund, to remedy malfeasance by trustees, and to see that the purposes of the trusts are carried out. . . .
“. . . In addition, the imposition on the Attorney General of the duty of defending all will contests arising in Kentucky that in any way involve charities or a charitable trust would unduly augment the many duties with which he is now burdened, to say nothing of the additional cost and expense thereof to the Commonwealth. The truth of this is recognized by the Attorney General through the insistence in his brief that he is under no duty to defend such contests, but has or should have the right and election to defend only such of them as he may see fit. . . .” (pp. 948, 949.)
It has been said by this court in Troutman v. DeBoissiere, 66 Kan. 1, 71 Pac. 286, the Attorney General has the right to intervene in the event funds of a public charity are in danger of being lost or are being poorly administered to protect the estate.
We hold the Attorney General of Kansas was not a necessary party in the proceedings in the district court designed to contest the validity of the charitable trust herein.
The judgment of the lower court is reversed. | [
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|
The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action in which the appellant was tried and convicted on five felony counts as follows: (1) Burglary in the second degree of the Dr. Pepper Bottling Company, Great Bend, Kansas; (2) grand larceny of a typewriter, check protector and printed checks from said Dr. Pepper Bottling Company; (3) forgery of a check on said Dr. Pepper Bottling Company in the sum of $113.20; (4) uttering to C. O. Mammel Food Store, Ellinwood, Kansas, the forged instrument described in count No. 3; and (5) uttering to H & H I. G. A. Grocery Store, Ellinwood, Kansas, the forged instrument described in count No. 3. Originally the information contained a sixth count alleging forgery of a check on the Dr. Pepper Bottling Company in the sum of $94.15, but this count was dismissed by the prosecution prior to submission of the case to the jury.
Appeal has been duly perfected from a judgment sentencing the appellant under the habitual criminal act on each of said counts to the state penitentiary for a term of thirty years, said sentences to run concurrently.
The primary question presented is whether evidence introduced at the trial was obtained by an illegal search and seizure, and thus subject to the exclusionary rule. Other trial errors are also specified.
At the preliminary hearing on January 15, 1962, the appellant was represented by Lloyd H. Phillips, a practicing attorney in Great Bend, Kansas, who later was appointed to represent him at the trial of this action in the district court.
The material portion of the state’s evidence was, in substance, as follows:
Between the horns of approximately 5:00 p. m. on December 29, 1961, and 8:45 a. m. on December 30, 1961, the offices of the Dr. Pepper Bottling Company located at 1209 Kansas Avenue, Great Bend, Barton County, Kansas, were burglarized. Entry apparently was gained by breaking a large window in the south room of the two rooms of the office. Missing from the office were a Remington Rand typewriter, a check protector machine, and a book of numbered checks printed with the name “Dr. Pepper Bottling Company.” The numbers of the missing checks were from 241 to 400, inclusive. None of these items was returned.
The state’s exhibits numbered 1, 2, 3 and 4 are part of the checks missing as a result of the burglary. The typing which appears on these exhibits and the “check protectored” parts of these exhibits, added after the burglary, appeared to be the same as the type of the missing typewriter and the impression made by the missing check protector.
William Nay Wood (defendant-appellant) had been in the office of the Dr. Pepper Bottling Company on three or four occasions prior to December 29, 1961. On November 26, 1961, he rented the apartment above the bottling company in the same building. On the 5th day of December, 1961, he moved out of this apartment. The stairway to this apartment was located on the south side of the building but to the outside. The window broken out during the burglary was right next to this stairway.
On December 7, 1961, the appellant was in the office of the Dr. Pepper Bottling Company when Mr. John B. Weltmei-, manager, wrote him a check on a bottling company printed check. The check was in payment for a mirror which he purchased for the apartment. The appellant was present when the checkbook was taken from die bookkeeper’s desk for the purpose of writing the check. The checkbook when it was taken during the night of December 29, 1961, was in the same location. The typewriter and check protector were also located in this room.
On December 29, 1961, at about 8:00 p. m. Ellis Wright was confined in the Great Bend, Kansas, city jail for drunkenness. At that time he loaned his automobile, a 1954 Pontiac, to the appellant. The Pontiac was a four-door, light blue with dark blue top, bearing license No. PN 3811. The automobile was loaned to the appellant for the purpose of going to Ellis Wright’s brother, John, to inform him that Ellis was in jail and to tell John to make arrangements to get him out.
At about 9:30 or 10:00 p. m. on December 29, 1961, the appellant contacted John Wright at Mr. Wright’s home in Great Bend and was in the 1954 Pontiac owned by Ellis Wright.
Approximately 10:15 p. m. on December 30, 1961, Ellis Wright was released. He procured his automobile from the Barton County sheriff’s office during the afternoon of December 31, 1961. At that time the left tail light was broken out.
At approximately 6:30 p. m. on December 30, 1961, Jesse Wyatt went to the H & H I. G. A. Grocery Store in Ellinwood, Barton County, Kansas, to purchase two cartons of Pall Mall cigarettes and to cash a check. He handed an employee, Dorothy Griffin, a check in the sum of $113 and some odd cents. (The state’s exhibit No. 4 was on a Dr. Pepper Bottling Company check form written in the sum of $113.20, with the purported signature of John B. Weltner. It was payable to Jesse Wyatt and had a check protector used on it.) When Wyatt presented the check to the employee she referred him to the store manager, Mr. Secrist. Wyatt then presented the check to Mr. Secrist to be cashed, without success. Secrist testified the check Mr. Wyatt gave him to cash was just like the state’s exhibit No. 4.
At approximately 6:35 p. m. on December 30, 1961, Jesse Wyatt entered the C. O. Mammel Food Store in Ellinwood, Barton County, Kansas. He asked the assistant manager, Mr. Bieberle, for two cartons of Pall Mall cigarettes and Wyatt handed him a check. Mr. Bieberle stated he could not cash the check and Mr. Wyatt did not buy the cigarettes. Mr. Bieberle stated the check Wyatt handed him was just like the state’s exhibit No. 4.
After Wyatt left the store Mr. Bieberle sent Elmer Burgardt, one of the employees, out to get the license number. Mr. Bieberle had heard abut the checks being stolen from the Dr. Pepper Bottling Company, and he assumed this was one of them. He telephoned the Ellinwood, Kansas, police and gave them a description of the automobile just as Elmer Burgardt had given it to him; he also told the police the automobile was headed east on U. S. Highway No. 56.
Elmer Burgardt testified that on December 30, 1961, at 6:30 or 6:35 p. m. he saw Jesse Wyatt come into the Mammel Store and was told by Mr. Bieberle to secure the license number of Wyatt’s automobile. Burgardt followed Wyatt out of the store to an automobile parked one-half block from the store. The automobile drove away east on U. S. Highway No. 56. Burgardt noted the automobile was a 1953 or 1954 Pontiac, two-tone blue and had the left tail light out. He was not able to see the license tag. He reported the description to Mr. Bieberle, and the direction the automobile was headed when it left.
At about 6:50 p. m. on December 30, 1961, Jesse Wyatt entered Keith’s Food Market in Chase (Rice County), Kansas. He asked for two cartons of Pall Mall cigarettes and asked to cash a Dr. Pepper Bottling Company check in the amount of “ninety-some dollars.” The manager, Keith Laessig, testified that the state’s exhibit No. 3 was similar to the check Wyatt had, in that they both were Dr. Pepper checks and both made out to Jesse Wyatt, as he recalled. The check was not cashed and Wyatt did not buy the cigarettes.
At about 6:30 p. m. on December 30, 1961, Jesse Wyatt entered the I. G. A. Store in Chase, Kansas. He gave Lloyd W. Garrett, manager of the store, a Dr. Pepper check in the sum of “ninety four dollars, some cents” to cash. Mr. Garrett testified the check was made payable to Jesse Earl Wyatt and was “check protectored” just like the state’s exhibit No. 3. He further testified concerning exhibit No. 3 that the check presented to him to cash was one like it, although he could not identify it positively.
The sheriff of Rice County, Kansas, Paul Cline, testified that on December 30, 1961, just prior to 7:00 p. m., he received a telephone call from their radio dispatcher to the effect that the Ellinwood police had called to be on the lookout for a 1953 or 1954 two-tone blue Pontiac with the left tail light missing, which was, at last report, headed east on U. S. Highway No. 56; that an occupant of the vehicle had tried to pass a check that was reportedly taken from the burglary of the Dr. Pepper Bottling Company establishment in Great Bend, Kansas; that “they wished this car stopped and checked if we could find it.”
After receiving this report Sheriff Cline drove west of Lyons, Kansas, on U. S. Highway No. 56. Approximately four miles west of Lyons he noted an older model automobile with the left tail light out traveling east toward Lyons. The sheriff turned around and followed this automobile and radioed ahead for the Lyons police to be on the lookout for it. About three-fourths of a mile west of Lyons, when he caught up with this automobile, he wrote the license number down and asked their radio operator to run a registration check on this 1961 registration, Pawnee County 3811. At the same time he asked city car No. 4, operated by Officer Samuels, who was on duty, to stand by, that he would stop the automobile right at the west edge of tire city of Lyons, Kansas.
The sheriff stopped the vehicle at the west edge of Lyons. It was a 1954 Pontiac bearing license tag No. PN 3811. It was a blue two-tone colored automobile with the left tail light out. After stopping the vehicle Sheriff Cline determined that the appellant was driving the automobile, and the occupant in the front seat with him was Jesse Wyatt.
The sheriff testified concerning the appellant’s arrest as follows:
“Q. After you stopped the car, what, if anything did the defendant do?
“A. Well, Mr. Wood stepped out, or the defendant stepped out of the vehicle, and Mr. Wyatt stayed in the vehicle, and Mr. — the defendant was out of the car actually before I was out of the police car. He asked me what was going on, and I said there was a matter we had to investigate about some checks, and he says, ‘I don’t know anything about any checks,’ and about that time the city officer, Mr. Samuels, came up, and I directed the defendant to stay within the vicinity of the car, and to keep his hands where I could see them; and I directed Mr. Samuels to make a search of the defendant, which he did so.”
On cross examination the sheriff testified:
“Q. Sheriff, when you stopped the defendant and Mr. Wyatt, did you place them under arrest at that time?
“A. Yes, sir.
“Q. What did you place them under arrest for?
“A. Well, the defendant asked what this was all about, and I said in connection with some checks that was reportedly stolen in Great Bend, and it was not so much the arrest by taking hold of the person, but it was implied by the words and gestures, that he was under arrest.
“Q. In other words, the arrest was actually for investigation purposes?
“A. Yes, sir.”
The sheriff was present when Samuels searched the appellant, and Samuels took a check from the left shirt pocket of the appellant — a check of the Dr. Pepper Bottling Company in Great Bend. Samuels gave the check to the sheriff at that time. He made notes as to the number of the check, the amount ($113.20), and to whom it was made payable. The state’s exhibit No. 4 is the identical check taken from the appellant’s shirt pocket.
On redirect examination Sheriff Cline testified:
“Q. Would you have arrested the defendant in this matter whether or not you found the check in his possession?
“A. Yes, sir, on the basis of the information passed, the car and the information from the other agency that there had been something like this perpetrated, I would have, yes, sir.
“Q. Sheriff, was there anything else in the defendant’s possession when he was booked in at the jail?
“A. He was booked in the jail, he was relieved of his belongings, which was a purse, there was a pen involved, and to my recollection, that is all.”
The state’s exhibit No. 4 was admitted into evidence without objection by counsel for the appellant.
Sheriff Cline took the appellant from the point of apprehension to the Rice County jail in the sheriff’s automobile.
The sheriff identified the state’s exhibits 1, 2 and 3 as checks which were given to him by John Murphy of the Highway Patrol at the county jail on the evening in question.
Officer Samuels of the Lyons Police Department testified that Sheriff Cline stopped the Pontiac in question; that he searched the appellant and took the check (state’s exhibit No. 4) from him and handed it to Sheriff Cline; also that he searched Mr. Wyatt and found nothing on him.
At approximately 6:30 p. m. on December 30, 1961, Trooper John Murphy of the Kansas Highway Patrol went on duty with another trooper. He was aware of a broadcast with reference to some checks that had been stolen from the Dr. Pepper Bottling Company in Great Bend, and of an attempt to pass such checks in the vicinity of Ellinwood. He had a description of the vehicle in question when he proceeded from Great Bend toward Ellinwood. As he approached the west edge of Ellinwood he heard the police radio broadcast to the effect that Sheriff Cline and one of the city officers from Lyons had stopped the automobile in question, and that they had apprehended two subjects in the automobile. En-route to Lyons he stopped at Ellinwood to pick up Mr. Bieberle and took him from Ellinwood to Lyons to identify the person attempting to pass a check in his store.
When they arrived at Lyons between 7:30 and 8:00 p. m., they saw the subject automobile parked near the Lyons city limits. It was a 1954 Pontiac, two-tone blue, with license number PN 3811 and with the left tail light broken out. Trooper Murphy was in communication with Sheriff Cline regarding a search of the automobile. Sheriff Cline sent the keys out to him and Trooper Murphy drove it to the county jail. At the direction of Sheriff Cline he then searched the automobile looking for some of the checks taken from the Dr. Pepper Bottling Company. At the time the search was' made, he understood the appellant had been arrested and placed in jail. He did not have a search warrant. During his search he found the state’s exhibits 1, 2 and 3 (Dr. Pepper Bottling Company checks bearing numbers within the series stolen). Trooper Murphy testified that he made a thorough search of the automobile in question, and that he was searching for items connected with the burglary which had been committed in Great Bend. Under the right front seat he found one Dr. Pepper Bottling Company check that was made out, and under the floor mat on the right side he found a number of check blanks also from the Dr. Pepper Bottling Company of Great Bend. Pie did not find anything in the trunk of the automobile, nor did he find anything else in the automobile.
Counsel for the appellant objected to the introduction of state’s exhibits 1, 2 and 3 as having been obtained by illegal search and seizure. He argued:
". . Now, at the time of the search, there was only a supposition of an arrest, and really, the supposition was in regard to an alleged burglary. Now, I think that the evidence was clear, here, from the sheriff, that the alleged arrest was for the investigation of the forged check that was found in the defendant’s own possession, and was not because of an alleged burglary. So, for that reason, we move the court to suppress all evidence that was obtained through the illegal search and seizure.”
In his brief the appellant contends he has been denied due process of law under the Fourteenth Amendment of the United States Constitution, and cites Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684; and Henry v. United States, 361 U. S. 98, 4 L. Ed. 2d 134, 80 S. Ct. 168.
Prior to Mapp v. Ohio, supra, the United States Supreme Court held that in a prosecution in a state court for a state crime, the Fourteenth Amendment to the Federal Constitution did not forbid the admission of evidence obtained by an unreasonable search and seizure. (Wolfe v. Colorado, 338 U. S. 25, 93 L. Ed. 1782, 69 S. Ct. 1359.) Since 1914, however, in a federal prosecution the Fourth Amendment to the Federal Constitution barred the use of evidence secured through an illegal search and seizure, and convictions by means of unlawful seizures and enforced confessions found no sanction in the judgments of the courts. Weeks v. United States, 232 U. S. 383, 58 L. Ed. 652, 34 S. Ct. 341.) This simply meant that such evidence “shall not be used at all.” (Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392, 64 L. Ed. 319, 40 S. Ct. 182.) This is known as the exclusionary rule.
In Mapp v. Ohio, supra, the exclusionary rule was imposed upon the states as an essential ingredient of the right of a defendant under the due process clause of the Fourteenth Amendment of the United States Constitution. The court said:
". . Today we once again examine Wolfs constitutional documentation of the right to privacy free from unreasonable state intrusion, and, after its dozen years on our books, are led by it to close the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that very same unlawful conduct. We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.” (pp. 654, 655.)
It is significant to note in Mapp v. Ohio, supra, the Supreme Court of Ohio found the conviction of the appellant was valid though based primarily upon the introduction in evidence of lewd and lascivious books and pictures unlawfully seized during an unlawful search of the appellant’s home. This was officially stated in the syllabus to its opinion. State officers there, insofar as the record discloses, had no search warrant and in a highhanded manner broke into the hall leading to the apartment of Miss Mapp. The officers went to Miss Mapp’s residence in Cleveland pursuant to information that a person was hiding out in the home, who was wanted for questioning in connection with a recent bombing, and that there was a large amount of policy paraphernalia being hidden in the home. A struggle ensued following which Miss Mapp was handcuffed and forcibly taken upstairs to her bedroom where the officers searched a dresser, a chest of drawers, a closet and some suitcases. The search spread to the rest of the second floor, including the child’s bedroom, the living room, the kitchen and a dinette. In the basement of the building they found a trunk which they also searched, and the obscene materials, for the possession of which Miss Mapp was ultimately convicted, were discovered in the course of that widespread search.
In Henry v. United States, supra, the issue was whether there was probable cause for the arrest leading to the search that produced the evidence upon which the conviction was founded. There a theft from an interstate shipment of whiskey was made at a terminal in Chicago. The next day two F. B. I. agents investigated. The agents had been given information of an undisclosed nature concerning the implication of Pierotti with interstate shipments. But, so far as the record discloses, the informant never went so far as to tell the agents he suspected Pierotti of any such thefts. They saw the petitioner and Pierotti walk across a street from a tavern and get into an automobile. The agents followed the car, saw it enter an alley and stop. Petitioner got out of the car, entered a gangway leading to residential premises, and returned in a few minutes with some cartons. He placed them in the car and he and Pierotti drove off. The agents were unable to follow the car, but later they found it parked at the same place near the tavern. Shortly they saw the petitioner and Pierotti leave the tavern, get into the car and drive off. The car stopped in the same alley as before; petitioner entered the same gangway and returned with more cartons. The agents observed this transaction from a distance of some three hundred feet and could not determine the size, number or contents of the cartons. As the car drove off the agents followed it and finally, when they met it going in the opposite direction, waved it to a stop. The agents searched the car, placed the cartons in their car, and took the merchandise and the petitioner and Pierotti to their office and held them for about two hours when the agents learned that the cartons contained stolen radios. The men were then placed under formal arrest.
The prosecution conceded, and the court viewed the facts to be, that the arrest took place when the federal agents stopped the car.
The court in its opinion recognized that while evidence required to establish guilt was not necessary to effect an arrest, good faith on the part of the arresting officers was not enough. The court said the command of the Fourth Amendment was that no warrants for either searches or arrests shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Common rumor or report, suspicion, or even strong reason to suspect were not adequate to support a warrant for arrest. Probable cause was said to exist if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed. (Stacey v. Emery, 97 U. S. 642, 645, 24 L. Ed. 1035; Director General v. Kastenbaum, 263 U. S. 25, 28, 68 L. Ed. 146, 44 S. Ct. 52; and Giordenello v. United States, 357 U. S. 480, 486, 2 L. Ed. 2d 1503, 78 S. Ct. 1245.) It held upon the facts presented that the officers had no reasonable cause to believe that a crime had been committed at or before the time of the arrest. The fact that contraband was afterwards discovered was not enough. An arrest is not justified by what the subsequent search discloses. While the court recognized that Carroll v. United States, 267 U. S. 132, 69 L. Ed. 543, 45 S. Ct. 280, liberalized the rule governing searches when a moving vehicle was involved, it was said Carroll merely relaxed the requirement for a warrant on the grounds of practicality, but did not dispense with the need for probable cause.
In Carroll it was said if the officer acts with probable cause, he is protected even though it turns out that the citizen is innocent, and while a search without a warrant is, within limits, permissible if incident to a lawful arrest, if an arrest without a warrant is to support an incidental search, it must be made with probable cause.
Section 15 of the Bill of Rights to the Kansas Constitution provides:
“The right of the people to be secure in their persons and property against unreasonable searches and seizures, shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized.”
The Fourteenth Amendment of the Federal Constitution, as extended by the United States Supreme Court in Mapp v. Ohio, supra, to protect citizens of the United States from unreasonable searches and seizures by state officers, does not go beyond the prohibition in our own constitution as above quoted. In other words, the command of the Fourth Amendment in the Federal Constitution to federal officers is identical to the command of Section 15 of the Kansas Bill of Rights to law enforcement officers in Kansas.
Turning to the facts in the case at bar, it is apparent radio communications between the various law enforcement agencies of Great Bend, Ellinwood and Lyons informed the various officers involved that the crime of burglary had been committed at Great Bend, Kansas, and that certain checks of the Dr. Pepper Bottling Company in Great Bend had been stolen together with a check protector machine and a typewriter. The very nature of the items stolen during the burglary suggests, without question, the master plan or scheme of the culprit or culprits — an intention to forge instruments on the blank company forms stolen in the hope that such forged instruments would appear authentic to their unsuspecting victims and thus facilitate passing them in exchange for money.
Sheriff Cline, therefore, upon receipt of information through a law enforcement agency that an occupant in the subject vehicle had tried to pass a check in Ellinwood, which was reportedly stolen in the course of a burglary in Great Bend from the Dr. Pepper Bottling Company establishment, had probable cause to arrest the appellant when he stopped the subject vehicle. Two felonies had in fact been committed, and the sheriff had reasonable grounds to believe the appellant committed the offenses. After the initial felonies of burglary and larceny had been committed, the subsequent offenses were merely a sequence of the events which normally would' be expected to follow — all were a part of the master plan or scheme of criminal endeavor.
On the record here presented (consisting of a complete transcript supplied by the appellant) we hold the information communicated to Sheriff Cline through a law enforcement agency from Ellinwood was sufficient to warrant a prudent man in believing that felonious acts had been committed, and that there were reasonable grounds to believe the appellant committed such crimes.
On the record presented we further hold the arrest of the appellant was accomplished when the sheriff stopped the subject vehicle and gave directions to the appellant to stay within the vicinity of the automobile and to keep his hands where the sheriff could see them. This was prior to a search of the appellant or the subject vehicle which was under his control. The sheriff in his testimony considered the arrest to have been made at that time, and so did the trial court.
The function of the law enforcement officer extends beyond the mere arrest of the offender. It is not only the officer’s job to bring the arrested person to justice, but to produce for the court the articles and documents that may assist in determining the question of guilt or innocence. Thus, the law grants to die officer certain powers to search the person and the automobile in his control, if incident to a lawful arrest (either with or without a warrant), and to seize and retain those things that have value as evidence. This power is a necessary part of the process of criminal investigation and prosecution. In this respect it is well established that an officer making a lawful arrest has authority to search the person of his prisoner, even against the prisoner’s will, and to take from him any dangerous weapons and other articles that he reasonably may deem necessary to his own or the public safety, or for the safekeeping of the prisoner, as well as the instruments and fruits of the crime and such other articles as may be of use as evidence on the trial. (See, 4 Am. Jur., Arrest, § 68, and cases cited.)
Where a lawful arrest is made and the person arrested is the driver or in control of an automobile, the automobile may be searched as an incident of the arrest. This includes the whole interior of the automobile and the trunk. The keys may be taken from him to get into a locked trunk. The search of the interior of the automobile and the seizure of evidence, if incident to a lawful arrest, is reasonable, and whatever is found upon his person or in his control, which it is unlawful for him to have, and which may be used to prove the offense, may be seized and held as evidence in the prosecution. (See, Weeks v. United States, 232 U. S. 383, 392, 58 L. Ed. 652, 34 S. Ct. 341; Carroll v. United States, 267 U. S. 132, 158, 69 L. Ed. 543, 45 S. Ct. 280; and State v. Carr, 114 Kan. 442, 218 Pac. 1007.)
While a search of an automobile might be expected to take place when and where the arrest occurs, there seems to be no harm in first removing the automobile to the station where it can be more thoroughly and accurately searched, even though some time must elapse between the arrest and the search.
We hold under the facts and circumstances presented by the record herein the search of the appellant and the automobile under his control was incident to a lawful arrest and, therefore, reasonable. The seizure of the stolen checks found in the course of the search under these circumstances was proper.
The appellant did not take the stand to testify in his own behalf, but he did call a handwriting expert from the Kansas Bureau of Investigation to testify. The expert was unable to positively say from known specimens of the appellant’s handwriting that he forged the name of John B. Weltmer on the state’s exhibits No. 3 and No. 4. He testified there were dissimilarities. There was evidence on behalf of the appellant that Jesse Wyatt signed the name of John B. Weltmer to these checks. Accordingly, the appellant argues in his brief that it was Wyatt who committed the forgery and uttered the checks.
Without objection by counsel for the appellant the trial court instructed that under the laws of Kansas “any one who counsels, aids, or abets in the commission of an offense may be charged, tried, and convicted and punished in the same manner as if he were a principal” (see, G. S. 1949, 62-1016) and that “Under these provisions of law, all participants in crime are equally guilty without regard to the extent of their participation.”
The contentions of the appellant are therefore to no avail. The circumstantial evidence was sufficient for the jury to find the appellant guilty in the same manner as if he were the principal. He was charged and tried as a principal.
The appellant contends that hearsay evidence was used as circumstantial evidence and complains of the circumstantial evidence instruction given by the trial court. Nowhere does the appellant direct the court’s attention to any ruling of the trial court admitting hearsay evidence over objection. We interpret the appellant’s contention to be a complaint that the state relied in part upon the circumstantial evidence in the proof of its case.
The circumstantial evidence instruction given has been carefully examined, and it is in accordance with the circumstantial evidence instruction usually given in criminal cases. It is found to correctly state the law. It has been held in criminal prosecutions that any of the essential elements of the crime charged may be proved by circumstantial evidence. (State v. Dill, 182 Kan. 174, 319 P. 2d 172, and cases cited therein.)
The trial court instructed the jury that the state had introduced evidence tending to prove the appellant, shortly after the alleged time the property in question was stolen, had possession of a part of the property alleged to be stolen — certain printed checks. It further instructed the jury “that the possession of stolen property recently after it is stolen is prima facie evidence of guilt, and throws upon the possessor the burden of explaining the possession, and if unexplained, may be sufficient of itself to warrant a conviction.” The jury was instructed to decide from all the facts and circumstances proved upon the trial whether or not the appellant did have possession of the printed checks belonging to the Dr. Pepper Bottling Company, and whether said property in possession of the appellant was stolen from the Dr. Pepper Bottling Company.
Objection was made to this instruction on the ground that it shifted the burden of proof to the appellant. This contention is without merit. The instruction properly stated the law of Kansas, and, when read in connection with other instructions concerning the burden of proof, the trial court did not by its instructions shift the burden of proof to the appellant. This was emphasized by an instruction concerning the burden of proof in a criminal action, and by a further instruction concerning the presumption of innocence concerning an accused, which was said to continue until it had been overcome by evidence which established his guilt to the satisfaction of the jurors beyond a reasonable doubt.
The appellant contends the criminal statutes pursuant to which he was charged in this case were void as having been enacted by a “de facto malapportioned Legislature,” all contrary to Article 10, Section 2 of the Kansas Constitution. This argument was advanced in State v. Latham & York, 190 Kan. 411, 426, 375 P. 2d 788, and held to be without merit for the reasons and upon the authorities therein cited.
The appellant argues the circumstantial evidence presented on behalf of the state fails to prove that the burglary was committed in fire nighttime.
Assuming this to be true, the transcript does not disclose that the point was raised in the trial court, nor did the appellant or his counsel request an instruction on burglary in the third degree (daytime) pursuant to G. S. 1949, 21-521. Under these circumstances, this point is not here for review.
The appellant contends it was improper to sentence him pursuant to the Habitual Criminal Act. (G. S. 1949, 21-107a.)
Several attacks are made upon this statute. The ground that the legislature was malapportioned has heretofore been answered. Another ground that the statute is unconstitutional has been answered to the contrary by this court on numerous occasions and is without merit. The next point urged by the appellant is that the statute has been repealed by implication by the Postconviction Procedures Act (now appearing as G. S. 1961 Supp., Ch. 62, Art. 22).
The provisions of G. S. 1961 Supp., 62-2239, authorizing a trial court in its discretion to fix a minimum term of imprisonment, which shall in no case exceed the minimum term prescribed by law or one-third of the maximum term provided by law for the offense for. which the defendant was convicted, or seven years, whichever is less, was before this court in State v. O’Connor, 186 Kan. 718, 353 P. 2d 214. It was there held the foregoing provision conflicts to such an extent with the provisions of the first paragraph of the section, as well as those of the crimes act (G. S. 1949, Ch. 21), that it was void, and that it was so vague and indefinite as to be judicially unadministrative. The remarks of the O’Connor case were extended in State v. Lewis, 187 Kan. 221, 356 P. 2d 845. There the appellant’s contention suggested a construction of the language in 62-2239, supra, that would in effect repeal the Habitual Criminal Act, and it was said the legislature has not directly done so. This was said to indicate an additional reason confirming the soundness of the O’Connor decision. The net result is that tire Postconviction Procedures Act has not repealed the Habitual Criminal Act, either directly or by implication.
The appellant’s sentence pursuant to the provisions of the Habitual Criminal Act is also attacked on the ground that the evidence of previous convictions was insufficient..
Thirteen days prior to the trial written notice was served upon the appellant by the state that it intended to request the court to sentence under the provisions of 21-107a, supra, if the appellant was convicted of any of the offenses charged. The statute was quoted in the notice for the information of the appellant, and the request was based upon prior convictions which were enumerated as follows:
“United States District Court, Reno, Nevada, on or about May 25, 1945, of the crime of Interstate Transportation of a Stolen Motor Vehicle; In the District Court of Oklahoma County, Oklahoma, on or about October 1, 1948, of the crime of Second Degree Forgery; In the District Court of Cherokee County, Kansas, on or about November 23, 1950, of the crime of Robbery in the First Degree; In the District Court of McPherson County, Kansas, on or about February 7, 1958, of the crimes of Forgery and Jail Break.”
After the jury found the appellant guilty of the five counts heretofore indicated, three exhibits were introduced to the court as follows: (1) A certified copy of the journal entry of the appellant’s conviction for the crime of first degree robbery in the district court of Cherokee County, Kansas; (2) a certified copy of the judgment and sentence from the district court of McPherson County, Kansas, for the offense of jail break; and (3) a duly authenticated copy of the information and judgment and sentence from the district court of Oklahoma County, Oklahoma, for the crime of second degree forgery. The first two were objected to by counsel for the appellant on the ground they were not authenticated. In clarifying his position he pointed out they were not authenticated according to Act of Congress. The objection was overruled and the appellant sentenced pursuant to the Habitual Criminal Act.
As to the offenses committed in Kansas certification by the clerk of the district court was sufficient. Under the circumstances the trial court had sufficient evidence to authorize sentence on the ground that the appellant had been convicted a third time of felony. (See, G. S. 1949, 60-2853 and 60-2854.)
It is argued the sentence of thirty years imposed exceeds the statutory provision. This contention is without merit. Under G. S. 1949, 21-109, the provision for a minimum sentence of not less than fifteen years in the Habitual Criminal Act (21-107a, supra) is construed to allow sentence for life or for any number of years not less than the prescribed minimum. (Fitzgerald v. Amrine, 154 Kan. 209, 117 P. 2d 582; and State v. Fountaine, 188 Kan. 190, 360 P. 2d 1119.)
The appellant next contends the dial court erred in overruling his motion for a new trial based upon the ground of newly discovered evidence. This evidence consisted primarily of an effort to show the 1954 Pontiac in question was not exclusively within the control of the appellant on the night of December 30, 1961, and goes to an attempt to establish alibi. Nowhere in the record is it disclosed that the appellant relied upon alibi as a defense in the trial of the case. This situation was presented in reverse in State v. Cooper, 190 Kan. 101, 372 P. 2d 289. The court held:
“In a criminal action which is defended by the accused on the theory of alibi, an inconsistent defense presented at the hearing on the motion for a new trial on the ground of newly discovered evidence is unavailing, all as more particularly set forth in the opinion.” (Syl. ¶ 4.)
Furthermore, there is no showing that this evidence could not have been procured by the exercise of reasonable diligence in time for the trial of the action, and it was within the power of discretion of the trial court to overrule the motion for a new trial on the ground of newly discovered evidence. (State v. Rowland, 176 Kan 203, 270 P. 2d 211.)
In addition to the evidence of the state heretofore presented other witnesses were called to establish the chain of possession concerning the various checks introduced in evidence. In defense Jesse Wyatt was called to testify, and his efforts to explain the situation and tire circumstances did little more than to convince the jury that he and the appellant were closely associated and implicated in the offenses for which the appellant was charged. The appellant did not take the stand to testify, and the trial court properly instructed the jury with respect to the appellant’s failure to testify.
There was substantial competent evidence to support the verdict rendered by the jury and, it cannot, therefore, be disturbed on the ground that it was based on insufficient evidence, or that it was contrary to the evidence. (State v. Osburn, 171 Kan. 330, 232 P. 2d 451.)
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The opinion of the court was delivered by
Robb, J.:
This appeal in a criminal proceeding is from the verdict of the jury finding defendant guilty, under the first count in the information, of grand larceny of personal property in excess of the value of $400.00 belonging to Mr. and Mrs. Ray Payne which property had been placed in the Payne 1959 Rambler station wagon. The jury’s verdict also found defendant guilty, under the second count in the information, of attempted grand larceny of the station wagon.
In the complaint filed in the city court of Independence a third count had been included charging defendant with a misdemeanor for malicious destruction of personal property and damages thereto in the amount of $15.00 which resulted from the brealdng out of a window vent in the left front door of the Payne station wagon. Defendant had been found guilty of the misdemeanor and was sentenced to serve ninety days in the Montgomery county jail. Defendant had appealed from that conviction. The city court of Independence had bound defendant over to the district court of Montgomery county for trial on the above-mentioned two felony counts. After the appeal and the information, which had also originally included the misdemeanor charge as a third count, were lodged in the district court, the state dismissed from the information such third count based on the misdemeanor. Thus defendant stood for trial on the first and second counts charging felonies before the jury in the district court.
The Paynes, residents of Oklahoma City, Oklahoma, conducted a retail piece goods business. They purchased supplies in Kansas City and on their return trip home on the night of May 3,1961, registered at a motel near Cherryvale. They parked their station wagon with merchandise inside in a place provided for that purpose and locked it. It was and had been raining. About midnight Mrs. Delores Driskel, a co-owner of the motel, saw a blue and white Buick automobile around the motel. About 1:30 a. m. she saw that the Buick was stuck in the mud in the driveway of the motel and the Payne station wagon was in front of it. A man she did not recognize got out of the Buick. She awakened her husband, they went outside, but found no one. About thirty minutes later she was again awakened and saw a red and white pickup truck behind the Buick. She saw two men and recognized one of them as Joe Vasquez (who was originally charged as co-defendant with defendant). The two men were attempting to hook a chain onto the Buick and then onto the station wagon. She and her husband went out and told them to leave the car there until morning. However, the men were able to get the Buick out and they left the premises. About 3:00 a. m. she was again awakened and recognized Vasquez and the other man whom she did not know. They were trying to hook a chain from the pickup truck to the Payne station wagon. She ran outside. Vasquez dropped the chain and the two men jumped into the pickup truck and drove southward.
At this time Mr. Payne was awakened and he found that his station wagon had been moved some twenty or thirty feet, the vent glass on the left front door was broken, the dome light had been torn out, and twenty-nine bolts of material together with other merchandise had been removed therefrom. A log chain was found hooked over the bumper of the station wagon. He drove the station wagon back to its original parking place and the sheriff was called to the scene.
On the way over to Cherryvale from Independence the sheriff and undersheriff saw the Vasquez pickup truck and defendant’s Ruick automobile with their owners in them parked side by side on the highway south of Cherryvale. The undersheriff recognized both vehicles and both men.
Officer Kolb of the Cherryvale police department saw and recognized Vasquez and defendant in the Vasquez pickup truck as they drove out of the motel about 3:00 a. m. He followed the truck south to an intersection of the highway with a county road and the truck turned west on the county road.
Later that day the sheriff árrested Vasquez and defendant and took the pickup truck and the Ruick into custody. The sheriff found the articles of personal property taken from the Payne station wagon in an abandoned farmhouse near Cherryvale. The sheriff had plaster casts made of automobile tire tracks found in the mud around the abandoned farmhouse. Upon advice of the county attorney the sheriff removed the tires from defendant’s Ruick and also searched his car. Over the objection of defendant, a piece of white paper tape removed from defendant’s Ruick was favorably compared with tapes left on the bolts of material remaining in the Payne station wagon. Likewise the tires from defendant’s Ruick were introduced into evidence over defendant’s objection on the ground of unlawful search and seizure of defendant’s car. The plaster casts of the tire tracks were similar to defendant’s tires.
The undersheriff also testified that the point where he and the sheriff saw Vasquez and defendant parked in their respective vehicles that morning was about a mile south of Cherryvale near the intersection of the highway and an east and west county road. In their investigation later that day they followed car tracks down this county road west of the intersection and came to an abandoned farmhouse wherein they found the personal property which had been removed from the Payne station wagon.
Defendant did not take the stand to testify in his own behalf. He called Vasquez as a witness but that witness’s testimony in chief did not appear to be of too much assistance to defendant. On cross-examination his testimony of previous associations and law violations were brought out in some detail by the county attorney although they appear to have little or no connection with defendant. At the conclusion of all the evidence the jury returned its verdict of guilty on the two felony counts, as heretofore stated. The trial court received and adopted the verdict and since defendant had previously been convicted of a felony in Missouri, sentenced him as a second offender, under G. S. 1949, 21-534 and 21-107a, to a term not exceeding ten years on the first count, and on count two sentenced him to a term not exceeding fifteen years under G. S. 1949, 21-101, 21-534, and 21-107a. These sentences were assessed to run consecutively and not concurrently. Reuben E. Weatherford, Jr., and Monte Heasty, two regularly practicing attorneys of Montgomery county, were appointed by the court as counsel for defendant and represented him throughout the trial.
At the outset of the jury trial on the felony charges defendant filed a plea in abatement based on the following reasons:
“1. Both defendants herein were tried in the City Court of Independence on a complaint alleging the identical offense alleged in Count No. 3 in the information filed herein, and both defendants were convicted of said offense.
“2. In said trial in the City Court of Independence evidenoe was admitted of the offenses alleged in Counts No. 1 and No. 2 contained in the information herein, and said offenses might have been and were included in the complaint filed in said action in the City Court of Independence.
“3. Count No. 3 contained in the information filed herein could have been tried originally in The District Court of Montgomery County, Kansas, with Counts No. 1 and No. 2.
“4. Under the provisions of Section 62-1449 of the General Statutes of Kansas, 1949, the aforesaid conviction in the City Court of Independence operates as a bar to the prosecution of this action.”
The state demurred to the above plea and such demurrer was sustained by the trial court on September 16, 1961. Thereafter defendant obtained a severance and his trial, as above set out, ensued.
After the jury returned its verdict defendant moved the court to set aside the verdict and grant a new trial because the court ad mitted illegal testimony over defendant’s objections which prejudiced his rights, the sheriff remained in the courtroom after the court had ordered all state witnesses to remain outside, the sheriff was allowed to testify over defendant’s objections, and finally, that defendant had discovered new evidence which by reasonable diligence could not have been discovered and produced at the trial to the effect that a neighbor residing on the east-west county road, whose home was farther west than the abandoned farmhouse previously referred to, could testify that the tires on his automobile on the day in question were the same size and tread as those on defendant’s Buick. The motion for new trial was overruled.
The journal entry of judgment in pertinent part reflects the dismissal of count three of the information, the reading of the information to defendant, the proceeding whereby counsel was properly appointed for defendant, that time for the attorneys to confer with defendant was allowed, and the arraignment on the two counts to which defendant entered a plea of not guilty. Whereupon the county attorney served notice on defendant and his attorneys that he would ask for an increased sentence under the habitual criminal act, G. S. 1949, 21-107a, and that the cause was set for trial on October 2, 1961, approximately nineteen days after the date of arraignment.
Defendant appeals to this court from the judgment of the trial court overruling his motion for new trial, from the sentence pursuant to his conviction by the jury’s verdict, and from all further orders, decrees and judgments of the trial court.
We shall treat the specifications of error in the order in which they appear in the record. The first question is whether the trial court erred in sustaining the state’s demurrer to defendant’s plea in abatement. The present defense counsel, who did not enter this case until the notice of appeal was filed in this court, candidly admits the state’s evidence was sufficient to support the jury’s verdict if the trial was otherwise free from error. However, he contends that defendant’s plea in abatement should have been sustained because of the following provisions of G. S. 1949, 62-1449:
“When one is properly charged in one or more counts of a complaint, indictment, or information with an offense, or offenses, against any of the laws of the state, and upon the trial of the action evidence is admitted of other offenses which might have been included as other counts in the complaint, indictment, or information, or on which the state might have elected to rely in the action then being tried, a conviction or acquittal on the charge, or charges, as made in the complaint, indictment, or information, shall operate as a bar to any subsequent prosecution of the same person in another action for any act or acts for which the state could have asked for a conviction under the complaint, indictment or information in the former trial.”
While criminal statutes must be interpreted favorably to the defendant, the above statute is clear and specific and needs.no interpretation. The record discloses that defendant was tried in the city court and convicted of a misdemeanor and at the same time, as a result of his preliminary hearing, he was bound over for trial in the district court on the two felony counts. A preliminary hearing is not the proper forum for a plea of guilty or not guilty, nor can the judge, justice of the peace, or magistrate, receive such a plea. The only thing that can be determined by the preliminary hearing is whether the crime, as charged, has been committed, and that there is probable cause for charging the prisoner with the offense, or to believe the prisoner guilty. (G. S. 1949, 62-618; 62-620.)
In our present case no record was taken of the preliminary hearing but no point or discussion is predicated thereon in this appeal. From the language of 62-1449 it is apparent a preliminary hearing could not be considered as a bar to a trial on the felonies herein involved. We think the legislature made clear by the concluding words of 62-1449 that had the evidence been used prior to the trial in tire district court on the felony counts, the state would have been able to ask for a conviction in such previous proceeding. Since a conviction could not be sought in the preliminary hearing in the city court of Independence, the state cannot be charged with attempting to use the same evidence to convict defendant in the district court in violation of 62-1449.
Defendant relies on Struble v. Gnadt, 164 Kan. 587, 191 P. 2d 179, wherein the defendant was charged with rape of one girl and with attempted rape and rape of a second girl; on State v. Anderson, 172 Kan. 402, 241 P. 2d 742, where defendant was charged with murder of a woman and with felonious assault and robbery of a man; and on State v. Bethea, 184 Kan. 432, 337 P. 2d 684, wherein defendant was charged with a felony consisting of malicious destruction of plumbing fixtures in excess of the value of $20.00, and also with a previous malicious destruction of personal property with a value of less than $20.00.
We are unable to see how the Struble and Anderson cases are of any benefit to defendant, and the language relied on from the opin ion in the Bethea case is not compelling for the reason there was no contention before the court in that case in regard to 62-1449 and anything therein stated which is contrary to the above conclusion is hereby overruled.
Defendant’s second contention is that the removal of the tires from his Buick automobile as well as the taking of the piece of paper tape from the interior of the Buick were in violation of defendant’s rights and were erroneously received into evidence by the trial court because those two exhibits were obtained through an unlawful search and seizure of defendant’s Buick. It is true the record discloses no search warrant was ever obtained for the removal of the tires or the acquisition of the paper tape and at first blush this would appear to be in violation of the rule pronounced in Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, decided on June 19, 1961, as follows:
“All evidence obtained by searches and seizures in violation of the Fourth Amendment of the Federal Constitution is, by virtue of the due process clause of the Fourteenth Amendment guaranteeing the right to privacy free from unreasonable state intrusion, inadmissible in a state court.” (Headnote 3, L. Ed.)
However, let us compare the circumstances of the two cases. In the Mapp case officers were seeking a person purportedly hiding in Miss Mapp’s home who was wanted for questioning in connection with a recent bombing. Miss Mapp refused to admit the officers without a search warrant. The officers later forcibly gained admission to her home and in going through Miss Mapp’s personal effects and papers they obtained lewd and lascivious books, pictures, and photographs, possession of which was in violation of the Ohio criminal code, and it was upon such evidence that a conviction of Miss Mapp was obtained. In our present case the sheriff had taken defendant’s Buick into custody at the time he arrested defendant for commission of the crime for which he was tried herein and the Buick was properly in custodia legis at the time the tires were removed and the piece of paper tape taken from the interior thereof. We, therefore, are of the opinion this was not an unlawful search and seizure as contemplated in the Mapp case.
Defendant’s third point relates to the state’s cross-examination of defendant’s witness Vasquez. Defendant contends it was error for the trial court to allow this witness to testify with such latitude as is shown in the record. Only one objection was made by defense counsel to any of the questions and answers in the cross-examination o£ Vasquez and that was when the county attorney was attempting to show that Tiny Wainright was an agent of the Teamsters’ Union in Springfield, Missouri. Vasquez had stated that Wainright’s job was just above that of the janitor, and the following question, answer, and objection took place:
“Q. He is just above the janitor. He does some of the muscle work over there in Springfield for Jimmy Hoffa? A. Explain that muscle work.
“Q. You know what I mean muscle work, don’t you, Joe?
“Mr. Weatherford: Object to that as improper cross-examination. It isn’t within the scope of direct. Doesn’t bear on this particular witness.
“The Court: Overruled.”
The order overruling this single objection, standing alone, is not reversible error. The record shows no objections were made to any of the other questions and answers brought out by the state’s cross-examination of Vasquez and the belated objection to the admission of evidence, which is raised for the first time on appeal, is not good. In State v. Graham, 172 Kan. 627, 242 P. 2d 1067, we find the following appropriate language:
“So far as the record shows all this evidence was admitted without objection. In fact counsel for appellant, who, we pause to note, did not participate in the trial, does not even assert that objection thereto was made in the court below. Under such conditions and circumstances claims to the effect the trial court erred in the admission of evidence are not subject to appellate review.” (p. 628.)
In view of the entire record and all that has been stated herein we are compelled to conclude that defendant has failed in his duty to make it affirmatively appear his substantial rights were prejudiced or that the trial court committed reversible error.
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|
The opinion of the court was delivered by
Fatzer, J.:
This was a proceeding in habeas corpus. The petitioner-appellant is confined in the Kansas State Penitentiary pursuant to a sentence of death imposed by the district court of Wyandotte County on January 18, 1960, upon conviction by a jury on three separate counts of murder in the first degree for the premeditated killing of his father, mother and sister on November 29, 1958. Following denial of his motion for a new trial, the petitioner appealed to this court which affirmed the judgment of conviction on December 10, 1960. (State v. Andrews, 187 Kan. 458, 357 P. 2d 739.) A motion for a rehearing was denied on January 25, 1961, and pursuant to G. S. 1949, 62-2414, this court entered its order directing that the death sentence be carried out on March 9, 1961.
Thereafter, application was made to the governor for a commutation of the death sentence to life imprisonment pursuant to G. S. 1949, 62-2220, which was denied on March 6, 1961. The following day, a petition for a writ of habeas corpus was filed in the United States District Court for the District of Kansas. (Andrews v. Hand, No. 3187 H. C.) The writ was issued that day, and an order staying execution was served upon the warden. The petition was set for hearing on March. 16, 1961. At that hearing the United States District Court entered its order retaining jurisdiction of the body of the petitioner to grant counsel time in which to apply to the Supreme Court of the United States for a writ of certiorari. Such an application was sought and denied on October 9, 1961. (Andrews, Petitioner, v. Kansas, 368 U. S. 868, 7 L. Ed. 2d 65, 82 S. Ct. 80.) On November 8, 1961, the United States District Court dissolved the stay of execution, and on that same date the petitioner commenced this action in the district court of Leavenworth County. (Andrews v. Hand, No. 1361 H. C.) A writ of habeas corpus was issued, and a hearing was held on November 21, 1961. Following an adjournment, the hearing was concluded on December 4, 1961, and the matter was taken under advisement. On December 18, 1961, the district court entered an order discharging the writ and remanding the petitioner to the custody of the respondent. The petitioner duly perfected this appeal.
As preliminary to discussing the merits of this appeal, we note that a petitioner who is confined in the Kansas State Penitentiary and who seeks a writ of habeas corpus in the district court of Leavenworth County and the writ is denied, may, as a matter of right, appeal to this court from the judgment discharging the writ by complying with the adequate and easily complied-wifh method of appeal (G. S. 1949, 60-3303, 3306), but the statute does not contemplate that he is entitled to a review of every matter involved in the trial in the district court without complying with well-established rules of procedure relating to appellate review. (State v. Hamilton, 185 Kan. 101, 103, 340 P. 2d 390; State v. Burnett, 189 Kan. 31, 33, 367 P. 2d 67; Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469, 503, 73 S. Ct. 397.)
In the instant case the petitioner has wholly failed to comply with G. S. 1949, 60-3001, et seq., relating to the filing of a motion for a new trial. Before an appellant may obtain appellate review of alleged trial errors, such as the sufficiency of the evidence to support the judgment discharging the writ of habeas corpus, or other errors alleged to have occurred during the course of the trial, a motion for a new trial is required to be filed calling the district court’s attention to those specific matters, and the motion be overruled. (Marshall v. Bailey, 183 Kan. 310, 327 P. 2d 1034; State v. Hickock & Smith, 188 Kan. 473, 363 P. 2d 541.) In the absence of such a motion, alleged trial errors are not open to appellate review (Russell v. Phoenix Assurance Co., 188 Kan. 424, 362 P. 2d 430), and inquiry will not be made as to whether the evidence supports the findings of fact. (Jeffers v. Jeffers, 181 Kan. 515, 313 P. 2d 233; Andrews v. Hein, 183 Kan. 751, 332 P. 2d 278; Barclay v. Mitchum, 186 Kan. 463, 350 P. 2d 1109.)
Attention must be directed to another point. In the instant case, the petitioner did not prepare and file an abstract of the evidence introduced at the trial, but he filed a “Statement of Appellant Relating to the Incorporation of the Abstract in this case Directly into the Brief.” Counsel certified that all of the material which was referred to and quoted in the brief was admitted into evidence at the trial, and reference to the record which is abstracted in the brief consists of the following: Four volumes of the certified transcript of the trial had in the district court of Wyandotte County; tibe petitioner’s abstract on appeal to this court in State v. Andrews, supra; one volume of the certified transcript of the proceedings had in the United States District Court for the District of Kansas (Andrews v. Hand, 3187 H. C.); the depositions of Drs. Richard F. Schneider and William F. Roth taken in Kansas City and introduced in evidence in the district court, and the certified transcript of the proceedings had in the petitioner’s trial below. In preparing his abstract, the petitioner failed to comply with Rule No. 5 of this court (188 Kan. XXVII; G. S. 1949, 60-3826) requiring that the party seeking appellate review of a district court’s order or judgment shall include in his abstract specifications of error of which he complains, separately set forth and numbered. Where an appellant has made no attempt to comply with the requirements of Rule No. 5, appellate review is precluded and his appeal will be dismissed. (Quick, Receiver v. Purcell, 179 Kan. 319, 295 P. 2d 626; Rice v. Hovey, 180 Kan. 38, 299 P. 2d 45; Blevins v. Daugherty, 187 Kan. 257, 259, 356 P. 2d 852; Lemon v. Pauls, 189 Kan. 314, 369 P. 2d 355.)
Notwithstanding the petitioner failed to file a motion for a new trial raising the question of the sufficiency of the evidence to support the judgment and also failed to comply with Rule No. 5, this court will, in accordance with its fixed policy in appeals where the death penalty has been imposed and the district court’s judgment of conviction is still in force, examine the record in a habeas corpus proceeding to determine the alleged illegality of a prisoner’s restraint by the warden for any error affecting the substantial rights of the petitioner. (State v. Woodard, 7 Kan. App. 421, 53 Pac. 278; State v. Brady, 156 Kan. 831, 137 P. 2d 206; State v. Miller, 165 Kan. 228, 194 P. 2d 498; State v. Miller, 169 Kan. 1, 9, 217 P. 2d 287; State v. Lammers, 171 Kan. 668, 672, 237 P. 2d 410; Germany v. Hudspeth, 174 Kan. 1, 252 P. 2d 858; State v. Andrews, supra; State v. Wilson, 187 Kan. 486, 357 P. 2d 823; State v. Hickock & Smith, supra.)
We now turn to the merits of the appeal. The petitioner was eighteen years of age and was a very intelligent young man, he was in his second year of study at the University of Kansas. He lived with his father, mother and sister on a suburban farm in Wyandotte County. His sister was near his age and was attending a college in Oklahoma. Both were home for Thanksgiving vacation. The motive, plan, and the commission of the crimes for which the petitioner was convicted, and his designed efforts to establish an alibi and to point the finger of guilt at an unknown burglar, are detailed at length in this court’s opinion in State v. Andrews, supra, and are incorporated in this opinion by reference. It is unnecessary to reiterate those facts, none of which the petitioner has ever denied.
However, in view of the petitioner’s contentions, we note briefly the events which occurred in the early morning of November 29, 1958. At approximately 1:00 a. m. officers of the sheriff’s patrol arrived at the petitioner’s home following his call to the sheriff’s office reporting the crimes. After arriving at the Andrews home and finding the dead bodies of the petitioner’s father, mother and sister, they called for help. The officers talked to the petitioner about ten minutes before the assistant county attorney and the sheriff arrived. He denied any knowledge of the commission of the crimes and stated that the same must have been committed by a burglar. When informed that he would be given a paraffin test he stated he had discharged his rifle the previous afternoon when he attempted to shoot a hawk near the Andrews home. During the interview the petitioner wept on one or more occasions and did not appear unconcerned. When the assistant county attorney arrived the petitioner was not being questioned by any officers and he did not observe any further questioning except a question or two as to where the petitioner had been and when he discovered the bodies. The county coroner was called to come to the Andrews home, and he found the petitioner rather unconcerned about funeral arrangements for his family. Upon ascertaining the family were members of the Baptist Church of which the Reverend V. C. Dameron was the minister, he telephoned Reverend Dameron. After completing the preliminary examination of the premises, the petitioner was taken into temporary custody. The assistant county attorney and the sheriff returned to the sheriffs office, arriving about 2:30 a. m. The petitioner was taken to the courthouse in Kansas City in a separate car. At that time, taking the petitioner before a magistrate was not discussed because the prosecutor had no indication that he had anything to do with the crimes. Shortly after the officers and the petitioner arrived at the sheriff’s office they were joined by the Reverend Dameron. In response to the minister’s request for a private interview with the petitioner, the assistant county attorney said:
“Yes, of course, he is not accused of anything and we certainly don’t know whether he has had anything to do with this or not, but talk to him and any information he can tell us relative to this would certainly be helpful.”
The minister conferred privately with the petitioner and asked him about the details of the day before, Thanksgiving, and whether he committed the crimes. The petitioner admitted to the minister that he had committed the crimes. The minister then advised petitioner that he did not have to make a statement to the investigating officials; that he was entitled to consult an attorney before talking to the officers, and that he (Reverend Dameron) knew some good lawyers in town and would be happy to get one to represent petitioner before he made any statement whatsoever. Also, that as his friend and minister he would stay with the petitioner and see that his rights were protected if he chose to make a statement to the officers. In response to that suggestion the petitioner stated he desired to make a statement at that time. The minister returned to the waiting room where the assistant county attorney and the officers were, and informed them the petitioner wished to make a statement. The assistant county attorney advised the petitioner of his constitutional rights and told him that he did not have to make any statement. However, upon being advised by the petitioner that he wished to make a statement, the assistant county attorney called a stenographer who arrived in about twenty minutes, during which time the petitioner was not interrogated. No one talked to him except the minister, although someone asked him if he would like some coffee and at his request the minister got him a coke.
After the stenographer arrived, the petitioner made a free and voluntary statement to the assistant county attorney in the presence of the minister and two detectives, that he had committed the three murders. His statement was transcribed by the stenographer, and read, initialed and signed by him in the presence of the minister and the officers. After the petitioner made and signed the confession he was taken before a justice of the peace at approximately 4:00 a. m. There, able and experienced counsel was appointed to represent him, who was one of the attorneys the petitioner later employed after being granted his rights of majority by the district court of Wyandotte County.
At the trial the petitioners written confession was admitted into evidence without objection. At no time during the trial did petitioner’s able and experienced counsel intimate that the confession was anything but freely and voluntarily given.
The petitioner first contends it was denial of due process of law (1) for the district court to refuse to permit counsel to advise the jury on voir dire examination that in the event it found the petitioner not guilty by reason of insanity, the court would be required under Kansas law (G. S. 1949, 62-1532) to commit him to the state hospital for the dangerous insane “for safekeeping and treatment,” and (2) for the district court to refuse to instruct the jury on the lesser degrees of homicide. The points are not well taken. Both of the alleged errors were but elements of the trial, reviewable only on appeal. Indeed, they were fully reviewed in State v. Andrews, supra; the first being considered at page 462, and the second at pages 464 and 465.
New words are needed to restate the well-known rule of appellate practice that an application for a writ of habeas corpus will not be recognized as a substitute for a regular and timely appeal from a judgment and sentence in a criminal case, or, as here, to serve as a belated motion for a rehearing of a criminal appeal which has been regularly disposed of. (G. S. 1949, 60-2213; In re MacLean, 147 Kan. 678, 78 P. 2d 855; In re Light, 147 Kan. 657, 78 P. 2d 23; James v. Amrine, 157 Kan. 397, 399, 140 P. 2d 362; Stebens v. Hand, 182 Kan. 304, 320 P. 2d 790; Converse v. Hand, 185 Kan. 112, 340 P. 2d 874.)
The petitioner’s effort to inject a due process question into these two points must be regarded as wholly without merit. In the respondent’s brief the statement is made that when the petitioner sought review of State v. Andrews, supra, in the Supreme Court of the United States, he conceded in his petition for ceitiorari that no case has ever held that an instruction on lesser degrees of homicide is required by due process. He cites none now. Neither does he cite any authority for the proposition that he is constitutionally entitled to advise the jury of the legal consequences of its verdict. It was the duty of the jury to determine the guilt or innocence of petitioner, and if it found him not guilty by reason of insanity to so declare. It was the duty of the district court to impose the proper sentence after the verdict had been reached. As held in State v. Andrews, supra, it was no concern of the jury what penalty attached to its verdict in the event it found the petitioner not guilty by reason of insanity. While the state was allowed to advise the jury that the penalty on the conviction of first degree murder would be life imprisonment or death, that was made so by reason of our statute (G. S. 1949, 21-403). The law is well settled that, in the event a defendant is found guilty by a jury of murder in the first degree, it is the duty of the jury, and the jury alone, to determine whether the death penalty or life imprisonment shall be inflicted. (State v. Christensen, 166 Kan. 152, 157, 199 P. 2d 475.)
Both of these are matters of state law on which this court is the final arbiter, and they were decided adversely to the petitioner in State v. Andrews, supra. It is within the power of the state to prescribe the method of procedure in the prosecution for violations of its criminal laws (Bailey v. Hudspeth, 164 Kan. 600, 603, 191 P. 2d 894), and it is immaterial whether those laws are a result of a statute or whether they are decisions of this court as to what is the law in Kansas. In Brown v. New Jersey, 175 U. S. 172, 44 L. Ed. 119, 20 S. Ct. 77, Mr. Justice Brewer said:
“The state has full control over the procedure in its courts, both in civil and criminal cases, subject only to the qualification that such procedure must not work a denial of fundamental rights or conflict with specific and applicable provisions of the Federal Constitution. . . . ‘The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line. . . .’ Missouri v. Lewis, 101 U. S. 22, 31.” (p. 175.)
This court is cognizant of the rule of the Supreme Court of the United States that, in considering claims of alleged violation of the Fourteenth Amendment, it takes “account of the large leeway which must be left to the states in their administration of their own criminal justice.” (Rogers v. Richmond, 365 U. S. 534, 5 L. Ed. 2d 760, 770, 81 S. Ct. 735.) Where, as here, there was no fundamental right denied to the petitioner, we hold he was not denied due process of law on the grounds urged.
The petitioner next contends that the circumstances surrounding his arrest and his subsequent confession shocked the conscience and denied due process of law. He asserts that the principal items of evidence upon which his conviction and sentence of death were based were the testimony of the Reverend Dameron and the petitioner’s confession which it is claimed, the minister induced him to make. It is urged that the petitioner’s confession was not voluntary in light of his age and severe mental illness and the manner in which the confession was extracted from him.
In making the contention, the petitioner concedes that the presence of mental illness per se does not vitiate a confession, but argues that where the lack of mental capacity is present to the degree it was in petitioner, and where the circumstances surrounding the extraction of the statement were of the character here present, the statement was not voluntarily made. Cutting through the verbiage, it is claimed that the petitioner’s confession was not a product of his free will and that he was unable to protect his interests from the “psychological coercion” resulting from the impact of the questioning by the Reverend Dameron.
The record indicates the petitioner gave at least three separate confessions. The first was orally made to the Reverend Dameron in a private conversation in the sheriff’s office; the second was the formal written confession given to the assistant county attorney, and the third was made to petitioner’s expert witness, Dr. Joseph Satten, during the course of his observation and examinations at the Menninger Clinic in Topeka. All three were substantially identical. In addition, petitioner readily elaborated on some details in subsequent conversations with the Reverend Dameron and discussed the crimes to some extent with members of the sanity commission, three eminent psychiatrists, appointed by the district court prior to the trial to determine the petitioner’s sanity.
We think the petitioner’s contention with respect to the confessions meets two unsurmountable obstacles. First, he has never and does not now deny commission of the crimes. At the trial he deliberately chose to let one confession in without objection and put in another himself. He cannot now be heard to say that his own trial tactics deprived him of due process of law. That was no implied waiver as suggested in petitioner’s brief, but was a deliberate and conscious choice of his chosen counsel. Second, counsel’s choice also goes far to show that there is no merit to petitioner’s new-found claim of “psychological coercion” which must stand or fall on the Reverend Dameron’s conduct at a time it was alleged the petitioner suffered a mental illness to such a degree that the confessions could not have been voluntary. With respect to mental illness, the burden of proof was upon the petitioner to prove his mental incapacity to confess to the crimes, that is, his evidence must have preponderated to show that at the time of the commission of the crimes and at the time of making the confession he was incapable of distinguishing right from wrong so as to excuse him from the legal consequences of his acts. In other words, whether he had legal capacity to confess to the crimes is determined by the same standard that is applied in this state as to whether he had legal capacity to commit them. (State v. Penry, 189 Kan. 243, 245, 368 P. 2d 60.)
Coercion in obtaining a confession from an accused can be mental as well as physical. (Payne v. Arkansas, 356 U. S. 560, 2 L. Ed. 2d 975, 78 S. Ct. 844; Spano v. New York, 360 U. S. 315, 3 L. Ed. 1265, 79 S. Ct. 1202; Blackburn v. Alabama, 361 U. S. 199, 4 L. Ed. 2d 242, 80 S. Ct. 274.) The Fourteenth Amendment forbids “fundamental unfairness in the use of evidence, whether true or false” (Lisenba v. California, 314 U. S. 219, 236, 86 L. Ed. 166, 180, 62 S. Ct. 280), and the range of inquiry as to whether a confession was involuntarily obtained is broad. Whether a confession was freely or involuntarily given is based upon consideration of “the totality of the circumstances” (Fikes v. Alabama, 352 U. S. 191, 197, 1 L. Ed. 2d 246, 251, 77 S. Ct. 281), and “where there is a genuine conflict of evidence great reliance must be placed upon the finder of fact.” (Blackburn v. Alabama, supra.) It is this proposition upon which the respondent’s principal argument rests, as the jury’s verdict finding the petitioner guilty, and the judgment of the district court discharging the writ of habeas corpus, is said to be inviolable because of a genuine conflict in the evidence presented at both trials. It is urged that the findings inherent in each of those judgments were that the petitioner’s confessions were free and voluntary and that he was not legally insane, and they compel an affirmance.
The following is a summary of the evidence introduced by the petitioner and the respondent: Dr. Richard F. Schneider, Dr. William F. Roth, Jr., and Dr. Merrill Eaton were appointed members of the sanity commission. Drs. Schneider and Roth testified on behalf of the state at the petitioner’s trial and both testified in the court below by deposition. Dr. Roth testified that he regarded the petitioner as having a schizoid personality, and reaffirmed his testimony at the trial, that the petitioner knew right from wrong and knew and appreciated the quality of his act at the time of the offenses. Dr. Schneider’s testimony at both trials was that the petitioner was not insane, not psychotic, but was suffering from a schizoid personality when he was examined by the sanity commission in February of 1959; that he was competent to co-operate in his own defense and to clearly understand the charges which were brought against him; that a schizoid personality would not necessarily impair the accused’s responsibility; that his mental condition was substantially the same during the summer of 1958 when he planned the murders as it was in February, 1959, when he was examined; that such a personality would not affect the petitioner’s ability to give a free and voluntary confession a few hours after the commission of the crimes; that the petitioner was aware of the acts that he was committing at the time and knew and appreciated the nature and quality of them; that he knew there were laws against the acts he was committing and that he would be subject to punishment for the commission of those crimes, and that his schizoid personality would not prevent him from adhering to the law had he chosen to do so.
Dr. Eaton did not testify at the petitioner’s trial, but he testified in the United States District Court and his testimony was admitted in evidence in the trial below. He, like Dr. Satten, diagnosed petitioner’s condition as schizophrenic reaction, a type of psychosis, and tihat the mental illness would interfere materially with the ability of petitioner to exercise judgment and discretion and act in his own interests.
Dr. Joseph Satten, Senior Staff Psychiatrist at the Menninger Clinic, testified on behalf of the petitioner at his trial and also in the trial below that the petitioner was suffering from a mental illness described as schizophrenic reaction, simple type, at the time of his examinations at the clinic and at the time of the commission of the crimes and the giving of the confession, and that he was “not capable of making a voluntary statement at that time.” However, he testified that the petitioner had an intellectual knowledge of what he was doing when he killed his family; that he was intellectually aware of the penalties for murder; that he could have told one on the night in question tihat if he eliminated the three deceased per sons, the petitioner would be the owner of the property they possessed; that the petitioner had related to the witness the different plans and methods which he had devised over a period of months for lulling his mother, father and sister, including poison, arson, and shooting, and that the petitioner had disposed of his family in order to possess their wealth and then had devised a scheme to make it appear that the home had been burglarized and that the murders had been committed during the burglary.
Robert J. Foster, the then assistant county attorney and the present county attorney of Wyandotte County, testified on behalf of the respondent concerning the petitioner s arrest and the giving of the confession. He testified that when the petitioner gave the formal written statement he appeared to be in all respects normal and that there was nothing unusual about his statement as compared to many others he had taken as a prosecutor; that the petitioner answered the questions freely and voluntarily and did not seem at all reluctant about making a full statement concerning the commission of the crimes.
The Reverend Dameron testified for the state at the petitioner’s trial in Wyandotte County, and also at the trial in the United States District Court. At the latter trial he reaffirmed the testimony given at the former trial. He testified he had been the minister of the Grandview Baptist Church in Kansas City, Kansas, for thirteen and a half years; that he and the petitioner’s father had grown up on adjacent farms in Missouri and they were childhood friends; that he had known the petitioner’s mother since her marriage some thirty years ago; that the petitioner’s parents were active members in his church; that he had been acquainted with the petitioner during practically his entire lifetime and that he had visited in the Andrews home on many and numerous occasions and that the Andrews family had visited in his home many times; that he had conferred on numerous occasions with petitioner after his arrest; that he had asked him whether he considered any of their conversations as confidential; that he told petitioner if he considered any of their conferences as confidential or if he did not want him (Reverend Dameron) to testify to any of the matters talked about during their conferences, he would abide by the petitioner’s decision; that the petitioner at all times stated he never considered their conferences as confidential, and that he could do whatever he pleased about testifying.
Out of the presence of the jury, the court asked the minister the following questions and the following answers were made:
“The Court: What were the circumstances under which the defendant confessed to you in the first place, Reverend, when you went into the room? Reverend Dameron: I went in there. I advised him I was there not only as his minister but as his friend. And we first talked about Thanksgiving, his vacation, and school, and a few remarks like that. And then I expressed m3' regrets at what had happened out there. And I S3onpathized with him and told him that I knew he was deeply concerned about what had happened and that he was just as anxious as I and others to find who were the guilty parties. And I said, ‘Now, knowing you all your life, Lee, and your parents, I cannot believe that you had any part in this crime, but there is some question in the minds of the officers as to the fact that maybe you did have something to do with it, and I am sure that you wouldn’t object to taking a lie detector test in order to establish your innocence so that the officers can get busy and find the guilty party.’ And I said, ‘Lee, you didn’t do this, did you?’ And then it was that he said he did. The Court: Is that all he said? Reverend Dameron: Well, I asked him why, and he told me the story. The Court: Did you feel that he was confessing to you as his minister and because of his relation to you or because of the discipline of the church? Reverend Dameron: There is no such discipline in the Baptist Church, that a member confesses to the minister his crime or wrong doing. He was seemingly purging his soul of what he had done, and he was talking to me not only as a minister but as a friend, almost a member of the family, in fact.”
The minister further testified that, based on his experience as chaplain in the armed forces in counselling people with emotional and mental problems during his military service, he was of the opinion that the petitioner “was in complete charge of his faculties. He knew what he had done and why.”
The petitioner’s brief characterizes the Reverend Dameron as a “police interrogator” and as “agent provocateur . . . masquerading as a friend and a man of God” whose “cleverness” on the night in question was “more subtle than the blackjack or rubber hose, but infinitely more effective.” The assertion is unsupported in fact and wholly unwarranted. An objective reading of the record indicates that he was present in the sheriff’s office, not as a pretended friend, as the petitioner asserts, but as a friend who was almost a member of the family and who sought to give spiritual as well as moral comfort and assistance to a young man whose entire family had just been murdered. In no respect was the Reverend Dameron’s conduct in violation of his professional and Christian duties, nor did he breach his trust relationship with the petitioner. He stood by him as a friend. The record clearly demonstrates that he exerted no coercion, psychological or otherwise.
Giving the testimony of Dr. Satten the fullest credence, it is sufficient to observe that it is in internal conflict, and raises no genuine issue of fact when tested by the rule as to responsibility for criminal acts because of the defendant’s alleged insanity (State v. Andrews, supra), and to make a confession of the commission of such offenses. (State v. Penry, supra.) While he testified that the petitioner was not capable of making a voluntary statement on the morning of November 29, he also testified that the petitioner had the mental capacity of understanding what he was doing and had the power to know that his acts were wrong. It would be unreasonable in the extreme to base a determination upon those portions of the testimony in which the doctor proclaimed the petitioner was insane and had no capacity to make a voluntary confession, and ignore those portions in which he testified the petitioner was responsible for his criminal acts when he killed his family but was incapable of confessing to those murders not more than an hour and a half later.
The cases cited and relied upon by the petitioner have been carefully examined, but each case displayed an oppressive, fraudulent and schematic method used by police officers in obtaining the confessions. They bear no semblance to the case at bar.
A judgment of. conviction, especially' where it has been carefully reviewed by this court on appeal and affirmed, carries with it a presumption of regularity (Pyle v. Hudspeth, 168 Kan. 705, 215 P. 2d 157), and where one convicted of a crime attacks such a judgment by habeas corpus proceedings on the ground that his constitutional rights were violated, he has the burden of proof to establish such fact by the preponderance of the evidence. (Wilson v. Turner, 168 Kan. 1, 208 P. 2d 846.)
The judgment of the district court of Leavenworth County was that the writ of habeas corpus be discharged. That was a general finding in favor of the respondent, and such a finding determined every controverted question of fact in support of which evidence was introduced. A general finding by a trial court raises a presumption that it found all facts necessary to sustain and support the judgment. (Davis v. Davis, 162 Kan. 701, 704, 178 P. 2d 1015; Dryden v. Rogers, 181 Kan. 154, 309 P. 2d 409), which will not be disturbed on appeal if there is substantial, though controverted, evidence to sustain it (Stanley v. Stanley, 131 Kan. 71, 289 Pac. 406; Hale v. Ziegler, 180 Kan. 249, 303 P. 2d 190; Huebert v. Sappio, 186 Kan. 740, 742, 352 P. 2d 939.) Whatever conflict may be present in the evidence must be resolved in favor of the petitioner s sanity and his legal capacity to commit the crimes and to make a free and voluntary confession. That is implicit in the judgment of the district court and there is ample substantial evidence to sustain the judgment.
The petitioner contends that the rule of criminal responsibility on which the district court instructed the jury, referred to as the M’Naghten rule, was so misleading that the jury could not make a fair evaluation and reach a result consistent with due process of law. The effect of the contention is to once again ask this court to reconsider the rule of criminal responsibility in this state and to adopt a more “modern” rule. This time the plea is made in the name of due process. Were it not for the assertion of a purported constitutional issue, this court might well be content to refer to its exhaustive analysis of that argument in State v. Andrews, supra. The evidence of mental illness and the alleged ambiguities in the words “know” and “wrong” were all before the court there, and this court chose to stand with M’Naghten.
The constitutional argument was fully answered by the Supreme Court of the United States in Leland v. Oregon, 343 U. S. 790, 800, 801, 96 L. Ed. 1302, 72 S. Ct. 1002, where, in the course of the opinion, Mr. Justice Clark said:
“. . . Knowledge of right and wrong is the exclusive test of criminal responsibility in a majority of American jurisdictions. The science of psychiatry has made tremendous strides since that test was laid down in M’Naghteris Case, but the progress of science has not reached a point where its learning would compel us to require the states to eliminate the right and wrong test from their criminal law. Moreover, choice of a test of legal sanity involves not only scientific knowledge but questions of basic policy as to the extent to which that knowledge should determine criminal responsibility. This whole problem has evoked wide disagreement among those who have studied it. In these circumstances it is clear that adoption of the irresistible impulse test is not ‘implicit in the concept of ordered liberty.’” (pp. 800, 801.)
It may be conceded that this court could, at this time, if it so desired, abandon M’Naghten in favor of some other rule. Since State v. Andrews, supra, in which this court was the battleground for “Durham” against “M’Naghten,” the question has come up in several other jurisdictions. The Third Circuit adopted a new rule in United States v. Currens, 290 F. 2d 751 (1961). Elsewhere the judicial trend has been strictly pro-M’Naghten and anti-Durham.
In State v. Crose, 88 Ariz. 389, 357 P. 2d 136 (1960), it was said:
". . We are under no illusions concerning the M’Naghten Rules. They do not provide a perfect test for criminal responsibility. They may not even provide a good one. They merely provide what we believe to be, in all the circumstances, still the best that is available. We decline to abandon them. . . .’’ (l. c. 394.)
In Commonwealth v. Woodhouse, Appellant, 401 Pa. 242, 164 A. 2d 98 (1960), it was said:
“. . . Until some rule, other than ‘M’Naghten,’ based on a firm foundation in scientific fact for effective operation in the protection and security of society, is forthcoming, we shall adhere to it. We shall not blindly follow the opinion of psychiatric and medical experts and substitute for a legal principle which has proven durable and practicable for decades, vague rules that provide no positive standards. . . .” (l. c. 258, 259.)
In Chase v. State, _ Alaska _, 369 P. 2d 997 (1962) the M’Naghten rules were basically approved, and in the opinion it was said:
“We are not persuaded to adopt Durham in this jurisdiction. The ‘disease-product’ test has no real meaning to us, and we venture to say, would have none to jurors who would apply it to the facts nor to the judges who would frame instructions. The terms ‘mental disease’ and ‘mental defect’ are not defined, and hence they would mean in any particular case whatever the experts say they mean. A further difficulty is that the psychiatrists disagree on what is meant by ‘mental disease,’ or even if there is any such thing. We shall not impose upon the trial courts and jurors the formidable, if not impossible task of understanding and applying terms whose meaning is unclear to acknowledged experts.”
See, also, State v. Bannister (Mo. 1960), 339 S. W. 2d 281, and State v. Jefferds, 89 R. I. 272, 162 A. 2d 436 (1960).
The list is not intended to be exhaustive, but it serves as an apt illustration that if the application of M’Naghten violates due process, such violations are occurring in many areas of the country.
The Durham opinion (Durham v. United States, 214 F. 2d 862, 45 A. L. R. 2d 1430) determining criminal responsibility has created considerable debate. It represents a departure by the Court of Appeals for the District of Columbia from the previously existing “right and wrong” test based upon the M’Naghten rules, as modified by the irresistible impulse doctrine. But it has not been received with any universal acclaim, even in its own district. In the case of Blocker v. United States, 288 F. 2d 853 (1961), Judge Burger, in a separate opinion, thoroughly analyzed the whole subject of criminal responsibility. He pointed out that every court which had con sidered the “Durham” rule had rejected it: three Federal Courts of Appeal, the United States Court of Military Appeals, and the highest court of twenty states (see pp. 859, 860). The list of cases cited by Judge Rurger did not include Chase v. State, supra; State v. Bannister, supra, and State v. Jefferds, supra. Moreover, the effect of the Durham rule was not limited to judicial consideration. The Durham case provoked congressional re-examination of federal laws of the District of Columbia relating to the commitment of the criminally insane. “Apprehension that Durham, would result in a flood of acquittals by reason of insanity and fear that these defendants would be immediately set loose led to agitation for remedial legislation.” See Krash, The Durham Rule and Judicial Administration of the Insanity Defense in the District of Columbia, 70 Yale L. J. 905, 941 (1961), cited in Lynch v. Overholser (May 21, 1962), 369 U. S. 705, 8 L. Ed. 2d 211, 82 S. Ct. 1063.
Without further discussion we deem it sufficient to say that at this stage of scientific knowledge of mental illness, due process of law does not impose upon the state of Kansas one test of mental irresponsibility for acts resulting in homicide rather than another, and thereby displace the state’s own choice of M’Naghten no matter how backward that test may be in the light of the best psychiatric and medical knowledge. We hold that the due process clause of the Fourteenth Amendment does not require Kansas to eliminate the so-called M’Naghten or “right and wrong” test of insanity and adopt the “irresistible impulse” test or the so-called Durham rule that an accused is not criminally responsible if his unlawful act was “the product of mental disease or mental defect.” (Durham v. United States, supra.)
The petitioner lastly contends that in any case in which evidence of mental illness is clear and where it appears that the offense charged has a direct relation to the illness, imposition of the death sentence should be struck down as opposed to the fundamental guaranties of the due process clause. The contention pre-supposes that the petitioner is insane by some legally recognizable criterion. At the trial below the petitioner failed to sustain the burden of proof on that point, and it was conclusively determined otherwise by the jury’s verdict in Wyandotte County. Only if this court should now vastly revise the legal definition of criminal responsibility could there be any merit in the claim. We decline to do so. While we are fully cognizant of the great difficulty in many cases of ascertaining the mental condition of an accused and of assessing its effect on a muscular contraction resulting in a homicide, we are of the opinion that the rule presently applicable in this jurisdiction is based upon a firm foundation for the protection and security of society, and until some better rule is forthcoming, we shall adhere to it.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Schroeder, J.:
This is a negligence action based upon the doctrine of attractive nuisance. It is brought on behalf of a ten-year-old child to recover for injuries received on the defendant’s premises when the child stepped on a nail and was allegedly injured. The trial court overruled a demurrer to the amended petition, and appeal has been duly perfected from such ruling.
The only question presented is whether the pleading states a cause of action under the attractive nuisance doctrine.
The amended petition alleged that the plaintiff, Michael J. Brittain, is a minor, and at the time of the injuries complained of was ten years of age, and that the cause of action is made for and on his behalf by his father and mother. It is alleged that the defendant is a realtor by occupation and trade and the owner of certain lots, which were described, in the city of Wichita.
Insofar as pertinent to this appeal the amended petition alleged:
“3. . . . that in the Spring of 1958, the Defendant, through his agents, servants and employees, started the demolition, destruction and razing of the residence then existing upon the above-mentioned and described real estate; that in so demolishing, razing and destructing said residence thereon, the Defendant, by and through his agents, servants, and employees, left an abandoned excavation, and much debris, including remnants, parts of the demolished foundation, cement blocks, mortar, bricks, glass, nails and stacks of used lumber and planks, all of which were rotten and infected, and which had rusty nails protruding therefrom, and were exceedingly dangerous, when left unguarded by a proper fence enclosure, or unguarded and unprotected by other enclosure. Further the Defendant, then and there negligently permitted to remain the unguarded and unprotected dangerous conditions, without taking any reasonable precautions to guard against the accident liable to ensue thereon.
“4. That the abandoned excavation where the demolished residence and foundation had been situated, was attractive, alluring and inviting, and of such a nature as to invite the intrusion of children, following their natural instincts of curiosity, and as a place to play; that the debris and demolished used materials were so placed and disposed, scattered and piled so as to be readily visible to children from the immediate adjacent lots, homes and public streets, in said area; that said area was densely populated, and was frequented by children; that the dangerous existing conditions thereby created an extremely, alluring, attractive and inviting situation to children of tender years, and all of which conditions did invite, allure and attract said children of tender years from the streets, lots and surrounding homes, as a place to play.
“5. That on and prior to said date of November 1st, 1959, other children of tender years were allured, invited and attracted, and did come on said premises to play, in and about said abandoned excavation, and on said piles of debris and materials, and at frequent times, other children, within the surrounding area, received injuries by reason of the existing dangerous conditions left and maintained by said Defendant.
“6. That for several months prior to the date the Plaintiff minor child sustained injuries, as hereinafter mentioned, the Defendant knew of the existence of said dangerous conditions, and knew of the fact that children of tender-years were being invited, allured and attracted to said premises, to play, and more specifically said PlaintifE child, and in the exercise of ordinary care did know, or should have known of such conditions and circumstances in time, in the exercise of due caution, to' have remedied and corrected the dangerous existing conditions mentioned, or to have taken reasonable precaution to protect said Plaintiff child, and other children from injuries on said premises, prior to the said injury complained of herein, by fencing, guarding or patroling said premises, by proper enclosures, or by erecting proper warning signs.
“7. That at and prior to the time of the accident hereinafter complained of, Plaintiff minor child of the age of ten years, was in the exercise of ordinary care for his own safety, for one of his age, experience, intelligence, capacity and discretion, was a strong, healthy, and able bodied child, having every reason to anticipate and expect to have a fine, healthy, happy and useful life.
“8. That on or about the 1st day of November, a. d., 1959, said Plaintiff child saw said alluring and attractive conditions on said premises, and being attracted, went on said premises to play, and while playing in and around said premises, which was in the process of being tom down, said Plaintiff minor child stepped upon a remnant part of a plank or board which had rusty nails protruding therefrom and which were unnoticeable, due to the other scattered debris that was strewed and laying about, and a nail pierced through said minor child’s shoe, and through the arch and instep of his foot inflicting serious painful and permanent injuries to said child.”
The amended petition then alleged that the plaintiff developed tetanus or lockjaw and suffered painful and permanent injuries and damages, which were alleged to be the direct and proximate result of the acts of commission and omission, and the negligence of the defendant.
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 1962; Cassity v. Brady, 182 Kan. 381, 321 P. 2d 171; and Farmers & Merchants Bank v. Copple, 190 Kan. 170, 373 P. 2d 219, and cases cited therein.)
In cases of this type the court is not concerned with what the proof may show, but whether the allegations of the petition are sufficient to withstand an attack by a demurrer.
The appellant contends the amended petition has graphically portrayed the patently and obviously dangerous character of the premises, and has clearly negated one of the essential elements of the doctrine of “attractive nuisance” on which the petition is based, i. e., that the danger of the condition or instrumentality producing the injury sustained must be latent or hidden before the doctrine may be involved.
It has been said the owner of a thing dangerous and attractive to children is not always and universally liable for an injury to a child tempted by the attraction. His liability bears a relation to the character of the thing, whether natural and common, or artificial and uncommon; to the comparative ease or difficulty of preventing the danger without destroying or impairing the usefulness of the thing, and, in short, to the reasonableness and propriety of his own conduct, in view of all surrounding circumstances and conditions. As to common dangers existing in the order of nature, it is the duty of parents to guard and warn their children, and, failing to do so, they should not expect to hold others responsible for their own want of care. But, with respect to dangers specially created by the act of the owner, novel in character, attractive and dangerous to children, easily guarded and rendered safe, the rule is, as it ought to be, different. (See Tavis v. Kansas City, 89 Kan. 547, 553, 132 Pac. 185.)
The above rule was approved by reference in Gilliland v. City of Topeka, 124 Kan. 726, 262 Pac. 493, and quoted in Zager v. Railroad Co., 113 Kan. 240, 214 Pac. 107; Smith v. United Power & Light Corp., 142 Kan. 723, 51 P. 2d 976; and Galleher v. City of Wichita, supra.
Following prior decisions in the Galleher case it was held:
“The attractive nuisance doctrine prevailing in this jurisdiction is based upon the negligence of the proprietor who fails to protect young children attracted to his premises by some dangerous thing or place artificially created, and where he should have anticipated that the children would be lured into the danger.” (Syl. ¶ 3.)
An exhaustive review of attractive nuisance cases has been undertaken in the recent decisions of Galleher v. City of Wichita, supra; and Shank v. Peabody Cooperative Equity Exchange, 186 Kan. 648, 352 P. 2d 41, where the rules are stated and their application to various factual situations presented. Further discussion will proceed on the assumption that the reader is familiar with these opinions.
It is to be observed that not all artificial conditions in which danger lurks fall within the attractive nuisance doctrine under the classification of novel dangers specially created by act of an owner. Thus, the drowning of a six-year-old boy in an unguarded concrete swimming pool (Gilliland v. City of Topeka, supra), and the drowning of two boys in an unfenced and unguarded artificial pool of water held back by a culvert across a creek (Tavis v. Kansas City, supra), while attractive to boys were held not to come within the attractive nuisance doctrine.
In Brennan v. Kaw Construction Co., 176 Kan. 465, 271 P. 2d 253, the pleadings and the plaintiff’s evidence disclosed that the defendant permitted an escalator-type elevator to remain in place against a wall of a building under construction over the weekend. The elevator was unguarded and permitted easy access to.the roof of the building. It could have been easily lowered to the ground but was left elevated for the convenience of the workmen. The plaintiff, a two-year-old baby, climbed or crawled up the elevator to the roof of the building and fell to the ground. Action was brought on the theory of “attractive nuisance.” At the close of the plaintiff’s evidence a demurrer was sustained and on appeal this court affirmed, saying:
“The machine, which was the subject of this action, was one in common use where building operations are being carried on. There was nothing novel about its presence on the lot in question except the fact of its being on that particular lot at that particular week end. Actually the rule as to liability in cases of this kind is whether the danger is latent or patent, that is, stated in another way — Was there some hidden danger connected with the presence of this elevator with one end on the ground and the other on the roof of the house? . . .” (p. 469.) (Emphasis added.)
What the law considers to be a concealed or latent danger is not confined to things hidden from the eye alone. It extends to things hidden from the appreciation of the persons injured, hidden from the combination of eyesight and knowledge — hidden knowledge of the properties of the things which the eyesight observes. It may thus be said a concealed danger extends to things hidden from appreciation of persons injured, as well as to things hidden from the eye. (Montgomery Ward & Co. v. Ramirez [Tex. Civ. App.], 127 S. W. 2d 1034.)
The appellant contends debris from a razed residential building does not constitute an unusual and attractive nuisance as a matter of law. In support of this proposition he relies upon Brennan v. Kaw Construction Co., supra; Moseley v. City of Kansas City, 170 Kan. 585, 228 P. 2d 699; McGaughey v. Haines, 189 Kan. 453, 370 P. 2d 120; and Pennington v. Oil & Gas Co., 106 Kan. 569, 189 Pac. 137.
The theory of the appellee in this case is that the condition described in the amended petition was an attractive and alluring thing to a child of the plaintiff’s age, which had been allowed to exist for a long period of time, due to the appellant’s negligence, such condition causing the child to go upon said premises to satisfy his childish desires to play among interesting objects. Once on the premises, how the injury occurred is not important as long as the danger was not an obvious or a patent danger.
Restatement, Torts, Negligence, § 339, deals with “Artificial Conditions Highly Dangerous to Trespassing Children” in the following manner:
“A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if
“(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and
“(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and
“(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and
“(d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.”
An excellent summary of the law concerning the doctrine of attractive nuisance is found in 38 Am. Jur., Negligence, § 142, pp. 802-804, which reads as follows:
“. . . While the doctrine has been variously stated, courts which accept it generally are in substantial accord with the proposition that one who maintains upon his premises a condition, instrumentality, machine, or other agency which is dangerous to children of tender years by reason of their inability to appreciate the peril therein, and which may reasonably be expected to attract children of tender years to the premises, is under a duty to exercise reasonable care to protect them against the dangers of the attraction. Within the limitations hereinafter considered, the doctrine is for the benefit of a meddling, as well as of a trespassing, child. The result of such doctrine is that one is negligent in maintaining an agency which he knows, or reasonably should know, to be dangerous to children of tender years, at a place where he knows, or reasonably should know, children of tender years are likely to resort, or to which they are likely to be attracted by the agency, unless he exercises ordinary care for the protection of such indiscreet and youthful persons.”
It may be said the attractive nuisance doctrine applies only to property, conditions, appliances or instrumentalities which are per se of a dangerous character with respect to children of tender age, or are of such character that children of tender age can create danger to themselves out of them, so that they are likely to cause injury to children who are attracted to them. (65 C. J. S., Negligence, § 29 [3], p. 460.)
The amended petition alleges in substance that the plaintiff saw the alluring and attractive conditions on the premises of the appellant, and being attracted went onto said premises to play, and while playing in and around said premises which were in the process of being tom down, he stepped upon a remnant part of a plank or board which had rusty nails protruding therefrom, and which were unnoticeable due to the other scattered debris that was lying about, and a nail pierced through his shoe.
Giving the amended petition a liberal construction, the majority of the members of this court are of the opinion that the demolished residential budding with the scattered debris lying about was in itself dangerous to children of tender years, and that the nails, left for many months protruding from the lumber, and covered by other debris, constituted it a thing of danger per se; and further that such danger was hidden from the appreciation of children of tender years, thus constituting a concealed or latent danger.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This appeal is another chapter of the litigation following the death of Gertrude McCourt Shirk of McPherson county. (See Shirk v. Shirk, 186 Kan. 32, 348 P. 2d 840; In re Estate of Shirk, 186 Kan. 311, 350 P. 2d 1; In re Estate of Shirk, 188 Kan. 513, 363 P. 2d 461.)
The plaintiff has appealed from various orders of the trial court, but the principal and controlling question is whether, under the facts and circumstances, the court abused its discretion in dismissing the action under the authority of G. S. 1949, 60-3105.
In Shirk v. Shirk, above, when this case was first here, it was held that the trial court erred (1) in striking certain allegations from the amended petition, (2) in making an additional party defendant to the action, and (3) in sustaining defendants’ demurrer to plaintiff’s first cause of action of her second amended petition, and defendants were directed to answer. The opinion in that case summarizes in detail the allegations of the petition, as amended, and they will not be repeated. Following that decision the defendants filed their answer on April 5, 1960. On March 15, 1961, the case was set for trial on April 17, 1961. Rrief mention will he made of those matters leading up to the dismissal of the action.
Plaintiff first complains that it was error to set the case for trial “before the issues were made up.” After waiting almost a year for plaintiff to reply to the answer the court was fully justified in setting a trial date, and plaintiff’s contention may not be sustained.
Five days after the announcement of the trial date plaintiff moved to strike paragraphs 3 and 4 of the answer, which dealt with plaintiff’s status as a guest in a McPherson hotel. The motion was overruled, and plaintiff complains. Examining the matter in the light of allegations of the amended petition, we find no error in the ruling.
On March 16, 1961, plaintiff filed a motion for a pre-trial conference (G. S. 1949, 60-2705) and to pass upon questions of law (G. S. 1949, 60-2902) prior to trial. Arguments were had on this motion, at which time defendants moved that plaintiff be required to elect whether her first cause of action was to proceed on the theory of damages for breach of the alleged oral contract or on the theory of damages for the alleged fraud and deceit of defendants. The court ruled that plaintiff make an election within ten days and reserved its ruling on plaintiff’s motion relating to a pre-trial conference and rulings on questions of law until such election was made. Plaintiff complains of this order. It is to be noted that the corut did not refuse to rule upon plaintiff’s motion — it merely postponed a ruling until an election was made, and, under the circumstances, plaintiff’s contention is without merit.
It next is contended the court erred in ordering plaintiff to elect between proceeding on the theory of damages for breach of the alleged oral contract and her theory of damages for fraud and deceit in' inducing the contract. In so contending plaintiff relies on a statement in Shirk v. Shirk, above, to the effect that for the purposes of the demurrer it was not material to determine if the plaintiff was going to proceed in her action to recover damages for the tortious conduct of the defendants or for a breach of contract. That statement dealt only with the question whether the amended petition stated a cause of action on either or both theories when tested by demurrer. Under the facts, circumstances and issues presented here, it was not error for the court to require plaintiff to elect.
Plaintiff also contends the trial court erred in striking her demurrer to paragraphs 3 and 4 of the answer. This ruling was made because the questions presented by the demurrer were identical to those presented in the previous motion to strike the paragraphs in question, and, under the circumstances, such ruling was proper.
Some complaint also is made that the trial court erred in overruling plaintiff’s motion to continue the trial of this action until final disposition had been made of an appeal to this court in a companion case. We are advised that plaintiff later dismissed that appeal, which would render the matter now moot. But, in any event, the denial of the motion for a continuance did not constitute an abuse of discretion, and, under the circumstances, was proper.
And, finally, plaintiff contends the trial court erred in dismissing this action. As heretofore related, after plaintiff had requested rulings on questions of law, the court ordered her to elect her remedy prior to the making of such rulings. She was given ten days in which to comply. Plaintiff disregarded this order and defendants filed a motion to dismiss the first cause of action because of plaintiff’s disobedience of the order. On April 13, 1961, the motion was sustained, leaving the second cause of action for trial. Plaintiff then announced that she would not proceed to trial upon the second cause of action at the appointed time. The court therefore dismissed the second cause of action.
G. S. 1949, 60-3105, in pertinent part reads:
“An action may be dismissed without prejudice to a future action: . . . Fifth. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action. . . .”
This provision of our statute was considered and dealt with in the recent case of Fletcher v. Securities Acceptance Corp., 171 Kan. 215, 231 P. 2d 249, and it was pointed out that the obvious purpose of the provision is to authorize and permit trial courts to have and exercise control of the proceedings in actions over which they have jurisdiction, and that on appeal from such an order of dismissal this court’s province is limited to questions respecting whether the trial court abused sound judicial discretion in maldng the ruling on which it based its order of dismissal, and unless the record on appeal makes it clearly appear that action was so wrong conformance therewith would have resulted in prejudice to an appellant’s substantial rights, this court would not be justified in disturbing the order of dismissal.
Examining the entire record, it has not been made to appear that the orders which were ignored and disobeyed were erroneous to the extent that conformance therewith would have resulted in prejudice to plaintiffs substantial rights. Under the facts and circumstances shown, therefore, the trial court did not abuse its sound judicial discretion in invoking the statute and dismissing the action.
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The opinion of the court was delivered by
Greene, J. :
This was an action to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the employees of the defendants, the Metropolitan Street Railway Company and the Kansas City Elevated Railway Company, while she was a passenger on one of their cars. Plaintiff recovered judgment against the Metropolitan Street Railway Company, to reverse which this proceeding is prosecuted.
The plaintiff was a passenger upon one of the elevated lines of the defendant’s road from Kansas City, Mo., to the James street station, Kansas City, Kan. When the car in which she was a passenger arrived at the station the doors leading into the station were opened and she alighted from the car upon an elevated structure leading into the waiting-room. The entrance is through double doors, so hung that when released from their fastenings they gravitate apart; they are held together by a rope or cord, so arranged that it can be released from its fastenings by the conductor in the rear end, or vestibule, of the caE It is the duty of the conductor, when the car stops at a station, to be in the rear of the car and release the rope, which will permit the doors to open for the entrance of passengers into the station, and when all passengers have passed through it is his duty to pull the rope, thus closing the doors, which are held shut by placing a ring attached to • the end of the rope upon a peg or nail on the side of the building. On this occasion, when the car arrived at the station, the conductor was inside, and about the middle of, the car collecting fares. While at this place a passenger, without authority from the conductor, pulled the ring off the peg, thus permitting the' doors to open, and while the plaintiff was passing through the doors into the station the same passenger pulled the cord which closed the doors and caught her between them, thus inflicting the injury for which she recovered. The negligence charged is as follows:
“That-the conductor in charge of said car was not at his post of duty when said car arrived at said station, although said conductor and the defendant well knew that if he was absent from his post of duty passengers were liable to pull said rope and open and shut said door, and that it was negligence in said conductor in abandoning his post of duty, and negligence in his not being on the rear platform, when said car arrived at said station, and it was negligence in said conductor permitting passengers on said- ear to open and close said door, and it was negligence in the mo■torneer in opening the gates of said car before the conductor had got to his post of duty on the rear platform, and negligence in said motorneer in opening said gates before knowing said conductor was at his post of duty.”
It was not denied that it was the duty of the conductor to be in the rear of the car to open and close these doors ; that he was not at such place when the car arrived at the station, or that he did .not get to his place in time either to open or close the doors before the passengers had all passed into the waiting-room. The excuse offered was that a number of passengers boarded the car just before reaching the James street station, and he was endeavoring to collect the fares and get to the rear of the car in time to perform this duty ; that because of the number of passengers and the performance of those other duties he was unable to do so within time.
Errors are predicated upon the overruling of the demurrer to the evidence of plaintiff, and upon the refusal of the court to submit to the jury the question of contributory negligence of the plaintiff, neither of which is of sufficient importance to require of us more than to say that in our judgment no error was committed.
The principal contention is upon the giving of the following instruction :
“It was the duty of the conductor of the defendant, the Metropolitan Street Railway Company, in charge of the car in question to exercise the highest possible caution and prudence in the letting off passengers at the station in question — the James street station of the defendant, and it was also his duty to see and know that the plaintiff was safely off the car and through the doors of. the waiting-room ; and .having failed in his duty in that behalf , the plaintiff is enttled to í’ecover a verdict against the defendant. So that the only question for you to determine in this case is how much the plaintiff is entitled to recover for the result of the injuries sustained at the time and place in question.”
The fact that the conductor was not in the rear of the car when it arrived at the James street station was undisputed.
The defendant was a common carrier of passengers, and was granted and protected in the exercise of large privileges that it might quickly and safely transport passengers upon its lines of road. It undertook the carriage of human beings, whose lives, limbs and health are of great importance to the public, as well as to themselves. It is held to the utmost degree of care and skill in the preparation and management of the means of conveyance which may be employed under the circumstances. The authorities generally hold this to be the true measure'of duty of such corporations. (Terre Haute etc. R. Co. v. Sheeks, 155 Ind. 74, 56 N. E. 434; McCurrie v. Southern Pac. Co., 122 Cal. 558, 55 Pac. 324; West Chic. R. R. Co. v. Kromshinsky, 185 Ill. 92, 56 N. E. 1110; The Louisville, New Albany and Chicago Railway Company v. Snyder, 117 Ind. 435, 20 N. E. 284, 3 L. R. A. 434, 10 Am. St. Rep. 60; New Jersey Railroad Company v. Kennard, 21 Pa. St. 203 ; Moore v. The Des Moines & Fort Dodge R'y Co., 69 Iowa, 491, 30 N. W. 51; C. P. & St. L. Ry. Co. v. Lewis, 145 Ill. 67, 33 N. E. 960 ; Ladd v. Foster, [D. C.] 31 Fed. 827 ; Jordan v. New York &c. Railroad, 165 Mass. 346, 32 L. R. A. 101, 43 N. E. 111, 52 Am. St. Rep. 522.)
The injury occurred upon an elevated road upon which passengers, after alighting from the car, could get out of danger only by passing into the station. It was therefore the bounden duty of the company to' have some one upon the rear end of the car when it stopped at this station to open the doors for the admission of passengers into the depot, and not to close them until all passengers had passed through. To neglect these duties, or to allow passengers to undertake the performance of them, was negligence which unnecessarily endangered the lives and limbs of passengers. Whether negligence is shown is ordinarily a question for the jury ; but when the facts are undisputed, and only one conclusion can be drawn therefrom, it becomes a question for the court. (Kansas Pacific R. Co. v. Butts, 7 Kan. 308 ; U. P. Rly. Co. v. Lipprand, 5 Kan. App. 484, 47 Pac. 625; Dewald v. K. C. Ft. S. & G., 44 Kan. 586, 24 Pac. 1101; K. P. Rly. v. Pointer, 14 id. 37; C. B. U. P. Rld. Co. v. Hotham, 22 id. 41.)
The law as expressed by the court below upon the undisputed facts announced the correct rule and is amply supported by authorities.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J. :
A large number of persons entered into a contract with the Chicago Building and Manufacturing Company, of Chicago 111., for the establishing of a butter factory and ammonia cold storage at or near the city of Girard. The company agreed to erect and equip the proposed factory for the sum of $5000. The individuals associating themselves in the enterprise subscribed sums ranging in amount from $25 to $100 for the payment of the contract price of the factory, stipulating that each one should be liable to the company for the amount subscribed by him and no more.
The contract provided that any part of the price of the factory not paid when due should be settled by a satisfactory interest-bearing promissory note. It also provided that subscriptions might be made in excess of the sum of $5000, and that the total subscription should belong to the company until, the full contract price due it should be collected and paid in cash, after which the remainder of the subscriptions, or notes, should become the property of the persons signing the agreement, to be collected and used by them as working capital. The contract provided that the subscribing individuals should appoint a committee who should have full authority to represent all their interests, and the construction and equipment of the factory was made subjéct to the supervision and scrutiny of such committee. That committee, together with a special agent of the company, was to determine if the factory had been completed according to contract. When the factory was completed the subscribing individuals agreed to pay the contract price. A paragraph of the contract contained an agreement of the subscribing individuals to incorporate under the laws of this state, presumably for the purpose of operating the factory, although the corporate object was not defined. It was agreed that the capital stock of the proposed corporation should be not less than the whole amount of the subscriptions to the contract, to be divided into shares of $100 each, to be issued to each subscriber in proportion to .his paid-up interest in the contract with the Chicago Building and Manufacturing Company. Fifty-seven individuals and firms signed this contract, subscribing in the aggregate $5200. The factory was built, accepted, and placed in operation. The proposed corporation was formed under the name of the Girard Creamery and Cold-storage Company, only subscribers to the original contract becoming stockholders. The title to the factory and its equipments, after completion, was transferred to the new corporation. The sum of $922.70 of the contract price was not paid. The contract of subscription was assigned to plaintiff, who brought suit against the Girard Creamery and Cold-storage Company for the amount due.
An amended and substituted petition set forth the foregoing facts, with, however, many conclusions as to the meaning and effect of the contract, and as to the relations of parties to each other and to the new creamery company. The petition further alleged that without consideration paid by it, and with full knowledge of all the terms of the contract and of the building and equipping of the factory under such contract, and of the fact that the portion of the purchase-price of the factory sued for was unpaid, the creamery company had accepted title to the property, taken possession of it, and received and oontinued to retain all the benefits of the original agreement. A general demurrer to this pleading was sustained, and, the plaintiff declining to amend further, judgment was rendered for the defendant.
The single question for determination is whether the Girard Creamery and Cold-storage Company is liable for the debts of its incorporators. The contract set out is utterly barren of any obligation on the part of the corporation to be formed to pay debts incurred by the individual incorporators in the construction and equipment of the factory. The manufacturing company dealt with the incorporators as individuals,. Separate and not joint liabilities on their part were expressly stipulated. Special forms of security for the payment of subscriptions were agreed upon, and after the collection of the price of the factory out of the subscription list any unpaid portions and any notes taken for unpaid portions were to be returned to the subscribers for their use as working capital, and not to the corporation. Extreme care seems to have been taken not to involve the prospective corporation in any liability upon the subscription list whatever. If recourse upon it were to be had, language might easily have been framed to indicate the fact. The contract does not purport to be made in furtherance of any corporate power or purpose. Instead of that, the formation of a corporation by the subscribers to the fund for the payment of the price of the factory was merely incidental to the accomplishment of their individual desires to secure a creamery. They agreed to adopt a corporate form of management for the obvious facilitation of their affairs. In this the manufacturing company had no interest. When the factoi’y was turned over the manufacturing 'company’s identification with the enterprise ended. The subscribers did not profess or pretend to be acting in the name of any cox’poration to be formed, nor for the benefit of any such corporation. They made no representation that the corporation would become liable for their debts, gave no guaranty to that effect, and the manufactux'ing company relied on no such security. When title to the property was taken over by the corporation it was not through any provision of the contract in which the manufacturing company had any interest. Having produced the factory upon the personal and individual credit of the persons with whom it contracted, without reservation of lien, without assurance of indemnity, express or implied, and without any contemplation on the part of anybody that the corporation should be held, the manufacturing company and its assigns cannot compel the corporation which such persons afterward formed to pay the debt incurred simply because it obtained the property.
The liability of a corporation for the engagements of its promoters is discriminatingly stated in Thompson on Corporations, volume 7, section 8444, as follows :
“A corporation will be bound by an engagement entered into in its behalf by its promoters, or by persons professing to act for it before its organization, if, after it is organized and with full knowledge of the facts, it assumes the contract and agrees to pay the consideration, or accepts and retains the benefits of the contract, provided the contract is. one which the corporation itself might have made in the first instance.”
In the American and English Encyclopedia of Law, .volume 23, second edition, page 242, the limitations upon such liability are thus expressed:
“It has been pointed out that not all contracts made with promoters would be binding upon a subsequently formed company, but only those that are made upon the credit of the corporation and with a mutual expectation that the promoters would form a company, and that the company would assume the contract. No rights legal or equitable arise in favor of a corporation in respect to transactions, whether complete or inchoate, merely because entered into in contemplation of the creation of such corporation. The mere fact that a corporation formed from the members of a prior copartnership and others has received by transfer the assets of such copartnership will not charge it with the payment of the debts of the copartnership. Only those-persons who have done work directly for the proposed corporation can claim the benefit of this principle. Those who are employed by promoters must look to their employers.”
In the carefully considered case of Little Rock & Ft. Smith R. R. Co. v. Perry, 37 Ark. 164, 189, 191, it was said:
"Whilst the equity is, in all of them” (referring to English cases cited), " readily acknowledged, under the circumstances, they are all cases where the projectors were acting under a preliminary organization to obtain charters and perfect the scheme, and the contracts, though made with the projectors, were properly on behalf of the intended companies, and with the view, entertained by both parties at the time, of having them adopted by the companies, when perfected and empowered to do so. The equity is based upon the ground that, under such circumstances, it would be a fraud upon the'vendor, or the person withdrawing an opposition, if the company, which had been thus pledged in advance by its creators, and obtained its franchises through such pledges, should be allowed to violate them. None of the cases go to the extent of holding that any and all contracts made with the projectors of a road, upon their individual responsibility, and without any mutual expectation that they would, form a company, which would assume the contract, would nevertheless be binding on a company, if the persons bound should afterwards organize themselves into a corporation, and put into it the property acquired, or the results of the services rendered. Such a ruling would destroy all distinction between the liabilities of corporations and those of its individual members, and, it may be added, that so wide and sweeping an equity would be very apt to deter any new subscriptions of stock under any charter. .
‘ ‘ From all the authorities, it seems clear that, in order to recover, in.an action.at law, the plaintiff must show either an express promise of the new company, or, that the contract was made with persons then engaged in its formation, and taking preliminary steps thereto, and that the contract was made on behalf of the new ■company, in the expectation on the part of plaintiff, and with the assurance on the part of the projectors, that it would become a corporate debt, and that the company afterwards entered upon and enjoyed the benefit of the contract, and by no other title than that derived through it. From these circumstances an affirmance would be implied. Whether equities might arise under other circumstances, is a matter to be considered when duly presented in a chancery case. No authorities have gone the length of holding that 'any contract made with individuals, exclusively upon individual credit, will become the contract of any future corporation they may form, for the more convenient management and use of the benefits of it.”
The case of Davis & Rankin Building etc. Co. v. Hillsboro Creamery Co., 10 Ind. App. 42, 44, 45, 46, 37 N. E. 549, is almost identical in all its features with the one under review. In the opinion it was said :
“The appellant contends that the contract declared on was made for the contemplated corporation, that the subsequent recognition of it by the corporation after it came into existence, and accepting the benefits thereunder, makes it the contract of the corporation.
“It seems to be settled that the promoters of a corporation may make a contract in the interest of the contemplated corporation, and when the corporation shall become fully organized it may recognize .and adopt the contract, and make it the contract of the corporation. (Whitney v. Wyman, 101 U. S. 392, 25 L. Ed. 1050 ; Stanton v. New York etc. R. W. Co., 59 Conn. 272, 22 Atl. 300, 21 Am. St. Rep. 110.)
“But if the contract declared on was not made primarily for the benefit of the corporation, and if the corporation never adopted it or promised to perform it, these rules will not apply to this case. Nor will the •simple acceptance of the benefits make the corporation liable under the contract. ...
“The evident purpose of Davis & Rankin in entering into the contract was to obtain the $5000 ; while the primary purpose of the other contracting parties was to secure a factory for the manufacture of butter and cheese ; the manner in which the business should be conducted was of only secondary consideration, and a matter in which Davis & Rankin had no interest' and could have no concern.
“The appellant insists that Davis & Rankin were-interested in the stipulation for the incorporation, but-we do not think so. This was an agreement among; the promoters themselves. If, after the full amount of the stock had been subscribed, Davis & Rankin had completed the factory, the subscribers would have been liable to pay for it, whether the subscribers.ever completed the incorporation or not.”
In Davis v. Ravenna Creamery Co., 48 Neb. 471, 478, 67 N. W. 436, it was sought to charge with a lien the property acquired by the creamexy company under circumstances quite similar to those under consideration. A part of the decision was as follows :
“Is the Ravenna Creamexy Company liable for the-unpaid contract price, and can a lien be enforced against the plant in its hands? Counsel for plaintiffs argue for the affirmative of the proposition. To us it seems that the conclusion reached as to the character and scope of the contract, in effect, settles these points-adversely to the contention of counsel. If the corporation is personally liable, it is not because of any contract it entered into with plaintiffs, for it xnadenone. No intent to . bind the corporation is disclosed by the agreement set out in this opinioxx, nor does it appear from the record that it ever assumed the payments of the several subscribers. The contract being several, plaintiffs wex'e not entitled to-a mechanic's lien on the joint property for the unpaid contract price.”
Other authorities are cited in the cases from which quotations have been made.
The case of Davis v. Butter Co., 52 Kan. 693, 35 Pac. 776, does not aid in the solution of this controversy, for the reason that the petition there snstaixxed alleged that the corporation adopted the agreement of its promoters and assumed and agreed to pay the amounts due from them. No such allegation appears in the amended and substituted petition found in the record.
The judgment of the district court is affirmed.
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Per Curiam:
The brief of counsel for plaintiff in error is devoted chiefly to a discussion of the facts. We have reviewed the testimony and find it ample to sustain the judgment. If the exclusion of the rules of the company was error, we cannot review the action of the trial court for the reason that the excluded rules are not incorporated in the record.
The judgment will be affirmed. | [
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Per Curiam:
In order that the errors relied on for reversal in this case may be examined, the record must show that all the evidence had been there preserved. The only statement contained in the record tending to show such to be the fact is the following, occurring at the close of the evidence: “And thereupon the plaintiff, having no further evidence to introduce, rested his case; and the defendant, having no further evidence to introduce, rested his case, and the case was closed.” This statement is not equivalent to one that all the evidence is to be found in the case-made. The certificate of the trial judge contains the statement that the case-made contains all the evidence. This, however, is ineffectual. (Sandford v. Weeks, 50 Kan. 336, 31 Pac. 1087.)
The petition in error will be dismissed. | [
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The opinion of the court was delivered by
Mason, J.:
Dendy & Peck bought certain cattle of Paul Russell, who warranted the title. The First National Bank of Cobleskill, New York, claimed the cattle under a mortgage and brought replevin for them against Dendy & Peck in the district court of Reno county, getting possession under an order of delivery. Dendy & Peck notified Russell of the action and defended against it. The bank recovered judgment. Thereupon Dendy & Peck brought the present action against Russell upon his warranty. Russell bases his defense upon a contract which he alleges' was made between himself and Dendy & Peck, after the rendition of the judgment in the replevin suit, by which Dendy & Peck agreed not to sue upon the warranty until the replevin case should have been carried to the supreme court and a final determination there had, in consideration of which Russell agreed to carry the litigation through the supreme court at his own expense. Russell’s answer did not state the contract in these very terms, but the parties agree in considering this the substance of the defense. A petition in error was filed in this court and is now pending. The district court held that such contract constituted a good defense if proved, and the jury found that it was in fact made. Judgment followed for the defendant, from which the plaintiff prosecutes this proceeding in error.
The important question in the case is whether the contract of forbearance as stated was supported by any legal consideration. Plaintiffs contend that under it Russell only agreed to do what he was in law already bound to do. We think otherwise. Granting that plaintiffs owed no duty to defendant to carry the litigation further than the district court, and that if they cared to prosecute proceedings in error they had the right to do so at the expense of Russell, the latter was under no obligation to Dendy & Peck to institute and conduct proceedings in error. True, such proceedings would be for the benefit of Russell rather than for that of Dendy & Peck, who had their remedy against him and were therefore not personally concerned with the result, provided Russell was financially responsible. And it may-be difficult to understand why Dendy & Peck should wish to induce Russell to carry the litigation further, their claim against him being ripe. But with such questions the courts have no concern. It is not necessary to speculate upon the possible reasons for the course of Dendy & Peck. It is enough if they agreed to withhold action on the warranty in consideration of Russell’s doing an act which otherwise he was not bound to perform. See Barnes v. Gragg, 28 Kan. 51, 57, where, of a somewhat similar condition it Was said:
“It is, however, argued that ... . there could' have been no motive or purpose on the part of the bank to enter into such an agreement. Whether the contract was wise or unwise it is not for us to determine. Even if the contract was a ridiculous' and foolish one for the bank to make, if the parties thereto had capacity to make it, and such contract rested upon a valid consideration, it was valid and binding between the parties for all purposes.”
A part payment of a debt at a place different from that at which by the terms of the contract the whole is payable is a sufficient consideration for an extension of time on the balance (6 A. & E. Encycl. of L. 2d ed. 755 ) ; and it would hardly be thought competent for a court to institute an inquiry as to why the obligee should wish his debt paid at one place rather than another. However, in the present case a doubt of Russell’s.ability to respond to a judgment for damages, together with a disinclination to be themselves at the trouble of looking after further litigation, may have furnished Dendy & Peck an adequate motive for entering into the new contract.
Among other errors assigned are the setting aside of a former judgment for plaintiff, the refusal of a new trial on the ground of surprise, the sending of the pleadings to the jury to define the issues, and the permitting of improper statements in the argument to the jury. The order setting aside the first judgment was made upon evidence in part oral, and rested in the discretion of the trial court. The decision upon the matter of surprise may have been to some extent affected by the oral evidence at the trial. At all events we do not find sufficient reason for reversal on this account. While the pleadings were sent to the jury the issues were elsewhere sufficiently defined. The statements in argument complained of, whether proper or not, do not require a reversal.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an action for specific performance of an oral agreement to execute an oil and gas lease brought against the land owner individually and as guardian for his insane wife. The appeal to this court is from the order of the trial court sustaining defendant’s demurrers to plaintiff’s petition.
The petition as amended alleges in substance that the plaintiff, The Texas Company, a corporation, is duly authorized to do business in the state of Kansas; that the defendant Charles Sloan is a resident of Morton County, Kansas, and the duly acting and qualified guard ian of the estate of Lizzie Sloan, his wife, an insane person; that Charles Sloan individually was at all times mentioned the owner in fee of 240 acres of land (describing same) located in Morton County, Kansas; that about November 1, 1949, defendant Charles Sloan entered into an oral agreement with the plaintiff whereby he agreed for a stipulated bonus consideration of $2400 to execute an oil and gas lease to plaintiff to be effective March 27, 1950, upon the conditions contained in the form of lease attached to the original petition; that as part of their oral agreement defendant Charles Sloan agreed to sell to the plaintiff, in his capacity of guardian of the estate of his wife Lizzie Sloan, an oil and gas lease covering the inchoate interest of his wife in said land, and agreed that he would individually and as guardian of Lizzie Sloan execute the instrument evidencing said oil and gas lease. In consideration of the promises of defendant Charles Sloan, plaintiff agreed to pay the attorney fees and court costs incident to approval of said lease by the probate court of Stafford County, Kansas. Pursuant to said oral agreement, Charles Sloan as guardian of the estate of Lizzie Sloan, on December 14, 1949, filed his petition in the probate court of Stafford County to lease the inchoate interest of his wife for oil and gas purposes and, following the procedure required by law, defendant Charles Sloan as guardian on January 9, 1950, sold to plaintiff an oil and gas lease covering the inchoate interest of his ward for a bonus of $240 to be credited, according to the agreement •of November 1, 1949, against the total stipulated bonus of $2400. The guardians sale was on the same date duly confirmed by the probate court. In the verified petition filed by defendant guardian, in connection with the probate court approval of the sale, there appears this reference to the agreement of November 1, 1949, that defendant “as an individual is executing an oil and gas lease upon his interest in said land; that your petitioner further believes it will be to the best interest of said insane person to lease her inchoate interest in said real estate for oil and gas purposes in conjunction with the lease executed by your petitioner as an individual”; that the guardian further states: “That the purchaser of the lease hereby agrees to pay the attorney fees and court costs in connection with this proceeding” and also: “That it would be more advantageous to lease said property at private leasing than public leasing of said property, and that this can also be done more advantageously because of the fact that your petitioner must join in said' lease individually.”
In Ins report of sale, said guardian identifies the purchaser of the lease as this plaintiff. In the form of lease which was submitted to the probate court for approval, the lessors named therein are “Charles Sloan and Charles Sloan, as guardian of the Estate of Lizzie Sloan, an insane person”, and the lessee named is The Texas Company.
In reliance upon its agreement with defendant Sloan, and in confidence that Sloan would perform his obligations thereunder, plaintiff, on January 3, 1950, purchased an oil and gas lease from the owner of the East Half of the Northeast Quarter (EM of NEM) of said section 31, thereby acquiring except for the land owned by defendant Sloan involved in this action, a full oil and gas leasehold estate throughout the entire section.
Charles Sloan, both individually and as guardian, and contrary to his agreement, now refuses to execute an oil and gas lease to this plaintiff and refuses to accept the $2400 bonus consideration provided in said contract, which plaintiff tendered into the district court of Morton County, Kansas, for the benefit and use of defendants according to the terms of the oral agreement; that plaintiff has fully complied on his part with terms of the oral agreement, and has paid the attorney fees and court costs in connection with the probate sale; that in reliance upon said agreement plaintiff company has made irrevocable expenditures and changed its position, and that it is obligated under the guardians lease to perform a valid and subsisting contract. That among obligations so assumed by plaintiff were those arising from the implied covenant of orderly development of lands covered by the lease, including necessity of drilling protection wells, all enforceable by law against said lessee, plaintiff herein. That plaintiff stands ready and has at all times been ready, willing and able to pay defendants the agreed bonus consideration of $2400.
Plaintiff further alleges that by defendant’s fraudulent refusal to execute and deliver either the lease covering his vested fee interest or his wife’s inchoate interest or both, plaintiff has suffered a detriment, and its leases in section 31 have depreciated in value; that plaintiff will not be able to complete its drilling program, all of which will result in a loss to plaintiff that cannot be compensated in damages; and that plaintiff has no other leases in the area to use for development within 640-acre drilling units.
By this action plaintiff seeks to compel defendants to execute and deliver said oil and gas lease covering both the fee and the inchoate interests of Charles Sloan and his insane spouse.
Defendants first contend that the district court of Morton County had no jurisdiction to determine the issues as against the defendant Charles Sloan as guardian of the estate of Lizzie Sloan, an insane person, for the reason that the probate court of Stafford County was exercising jurisdiction over the guardian and the subject matter of the action, and invite our attention to G. S. 1949, 59-801, which provides that probate courts shall be courts of record and within their respective counties shall have original jurisdiction to appoint and remove guardians for minors and incompetent persons, and to make all necessary orders relating to their estates, to direct and control the official acts of such guardians, and to exercise such equitable powers as may be necessary and proper fully to hear and determine any matter properly before such courts.
We cannot agree with defendants’ contention that the district court of Morton County was without jurisdiction over the guardian in this action. G. S. 1949, 59-2207 provides that any fiduciary of an estate may be sued in the district court of the county in which he was appointed or in which he resides. It is disclosed by the record that service of summons was had upon the guardian in his place of residence, Morton County, Kansas. This action is one for specific performance of an oral contract to execute and deliver an oil and gas lease as hereinbefore related. Insofar as the ward’s interest in the property is concerned, the oil and gas lease was ordered executed and was approved by the probate court; this action is to compel delivery by the guardian of said lease already approved by the court.
The power of the probate court to deal with property of insane persons is not questioned here. The code contains a number of specific provisions (G. S. 1949, 59-1807, 59-1808) which safeguard the property interests of incompetents’ estates. However, the guardian herein complied fully with these provisions of the probate code by filing his petition in the probate court of Stafford County for authority to lease the inchoate interest of his insane wife in the land in question for oil and gas purposes; on January 9, 1950, pursuant to an order of the probate court made on the same day directing him to let and lease the ward’s inchoate interest in the real property for oil, gas and mineral purposes, he caused the leasehold estate to be appraised by three disinterested persons and thereafter on the same day sold at private sale said inchoate in terest of his ward in and to the property described for the sum of $240, and did execute to the Texas Company an oil and gas lease of his ward’s inchoate interest on the terms and conditions set forth in the court’s order. The oil and gas lease attached to the plaintiff’s petition was submitted for the approval of the court and contained all the provisions and terms ordered and directed by the court. Said sale was approved and confirmed and the lease was approved by the court.
The procedure in the probate court having been complied with and the report of sale approved, there was nothing further to be done in the probate court insofar as this action is concerned, and the action was properly brought in the district court of Morton County for specific performance to compel delivery of the oil and gas lease approved by the probate court.
Where statutory procedure for sale of an insane ward’s real estate was complied with by guardian’s petition for sale, court’s order for sale, appraisement, and report of sale and approval by the court, the purchasers acquired an enforceable equitable title. (Capelli v. Bennett, 357 Mo. 421, 209 S. W. 2d 109)
We held in Cockins v. McCurdy, 40 Kan. 758, 20 Pac. 470:
“An administrator having sold real estate belonging to the estate, said sale having been confirmed and a deed ordered and executed, and left in the hands of an ex-probate judge, the purchaser at said sale, or Inis assignee, was entitled to the deed on the payment of the purchase money, without reference to the intention of the administrator. The administrator could not impose any other condition to the delivery of the deed except the payment of the purchase money.”
In the instant case, the purchase price of $240 has been tendered into court. We also held in Bradford v. Larkin, 57 Kan. 90, 45 Pac. 69:
“. . . A sale of the interests of both minors was ordered to be made, and was made for an adequate consideration. This sale, upon examination of tlie court, was duly confirmed. These steps were taken in a proceeding to which the plaintiff in error was a party, and the court having jurisdicition, they are certainly sufficient to convey the equitable title of both minors. The purchaser, having obtained the equitable title, is entitled to a conveyance of the legal title, and the right to the conveyance having become complete, it may be made at any time.”
Defendant contends that the guardian had no power or authority to contract either orally or in writing with reference to the ward’s property. However, this matter was decided in Guy v. Hansow, 86 Kan. 933, 122 Pac. 879, where we said at page 936 of the opinion:
“The contract of the guardian to sell the minor’s interest was of course ineffectual, but the sale authorized and approved by the probate court was binding upon them and the defendant is to receive not only what he contracted for but all the interest the minors have in the land.”
It would serve no useful purpose to labor this question further. We conclude that the district court of Morton County had jurisdiction of the parties and the petition as amended states sufficient facts to constitute a cause of action against the guardian.
Defendants next contend that the demurrers to plaintiff’s amended petition were properly sustained for the reason that it appears from the face of the petition this was an oral contract to execute an oil and gas lease for a term of ten years on the real estate described, to commence at a future date, March 27, 1950, and that such a contract is in violation of the statute of frauds, G. S. 1949, 33-106, which provides:
“No action shall be brought whereby to charge a party . . . upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them; or upon any agreement that is not to be performed within the space of one year from the malting thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized in writing.”
Conceding that such a contract is within the statute of frauds, it is no answer to the contention advanced by plaintiff supporting his theory that the demurrers should not have been sustained. The amended petition presents a state of facts, admitted by the demurrers, by which the defendant Charles Sloan is equitably es-topped by his actions in his individual capacity and as guardian from invoking the statute of frauds. It is alleged that Charles Sloan, as guardian, in performance of his obligations under the oral agreement, filed his verified petition in the probate court of Stafford County, stating that the described property had some indication of value for oil and gas purposes and that he as an individual was executing an oil and gas lease to plaintiff on the land and that it was to the best interests of his insane ward to lease her inchoate interest in the property in conjunction with the lease to be executed by him as an individual; that the oil and gas lease was for a term of ten years and as long thereafter as oil and gas or either of them were found in paying quantities; that the plaintiff agreed to pay the expenses including attorney fees and court costs in such proceed ings; that subsequent thereto the defendant Sloan filed his verified report of sale in the probate court stating further that he did pursuant to the court’s order on January 9, 1950, sell at private sale the inchoate interest of Lizzie Sloan in and to the oil, gas and mineral rights in the described property to The Texas Company, plaintiff herein, for the sum of $240, which he received; that he had executed to the plaintiff an oil and gas lease on the inchoate interest of Lizzie Sloan upon the terms and conditions set forth in the court’s order; and requesting the confirmation of such sale by the court and authorization to deliver to the plaintiff, The Texas Company, the lease so executed to the purchaser, upon payment of the purchase price; that said report of sale and the oil and gas lease were approved by the probate court; that in further reliance upon the oral agreement, the plaintiff paid the court costs and attorney fees in the probate court as had been agreed upon. Plaintiff in further reliance upon said oral agreement and the acts and conduct of defendants has made irrevocable expenditures and changed its position in that it has obligated itself to perform a valid and subsisting contract under the oil and gas lease executed by the guardian. Moreover, the petition alleges that under the conditions existing at the times mentioned, it was economically feasible and legally permissible to develop lands herein only in 640-acre units; that at the time of the agreement in question, plaintiff contemplated formation of a 640-acre drilling unit comprising all of section 31 for the purpose of oil and gas development; that the defendants’ land was a part of said section 31; that plaintiff in reliance upon the acts and conduct of defendants secured and purchased oil and gas leases covering the remainder of said section from other owners, and expended and paid a considerable sum of money therefor; that the land obtained by plaintiff in conjunction with the land of these defendants constituted an entire section necessary for the drilling of oil and gas; that there are no other lands in the vicinity which the plaintiff can secure to complete the 640-acre tract for a drilling unit without the land of the defendants herein; that unless the oral agreement with defendants herein be specifically performed, the value of the leases will be materially reduced and plaintiff will be unable to complete its drilling program resulting in a loss to plaintiff which cannot be compensated in damages.
In short, it is alleged that plaintiff was led by the actions and conduct of defendants to perform its part of the oral agreement and to expend sums of money, obligate itself for future action and change its position to its detriment. In such a situation, to permit defendants to invoice the statute of frauds would be to permit use of that instrument for the perpetration of fraud. Only recently we stated in Hazen v. Garey, 168 Kan. 349, 359, 212 P. 2d 288:
“. . . In the early case of Rose v. Hayden, 35 Kan. 106, 10 Pac. 554, this court said that the statute of frauds was enacted to prevent fraud, not to foster or encourage it, and that the statute-should be enforced in its spirit and not merely as to its letter. This doctrine has been adhered to down through tlie years and further citation of authority is unnecessary. In 49 Am. Jur., Statute of Frauds, § 578, p. 885, the general rule is stated:
“ ‘The purpose and intent of the statute of frauds is to prevent fraud, and not to aid in its perpetration, and courts, particularly the courts of equity, will, so far as possible, refuse to allow it to be used as a shield to protect fraud, or an instrument whereby to perpetrate a fraud, or other instrument of fraud, wrong, or oppression. On the contrary, the courts will endeavor in every proper way to prevent the use of the statute of frauds as an instrument of fraud or as a shield for a dishonest and unscrupulous person, and under modem theory of practice, what a court of equity would do, law courts, under proper allegations, will no doubt also do. The courts do not tolerate the use of the statute of frauds to enable one to take advantage of his own wrong. As has been said, that principle of law or legislative enactment would be an anomaly which, while attempting to prevent fraud, would become an instrumentality for the perpetration of fraud.’ ”
In view of what has been said, we fail to see any good reason in equity and good conscience why defendant Charles Sloan, acting in his individual capacity or as guardian, should be permitted to hide behind his own wrongdoing and rely upon it as a defense under the facts as pleaded and hereinbefore related. It is our opinion that defendants are equitably estopped from relying upon the statute of frauds as a defense.
The judgment of the lower court is reversed and the case remanded with directions to overrule each of the demurrers filed by the defendants herein.
Harvey, C. J., dissents. | [
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The opinion of the court was delivered by
Greene, J.:
This was an action of forcible detention brought by George A. Fry against Alvin Boman and J. B. Boman for the possession of certain land in Allen county. The cause was tried before a justice of the peace and from there appealed to the district court, where judgment was rendered for defendants. Plaintiff prosecutes error.
It appears that in 1873 the government issued a patent to this and other lands to the Missouri, Kansas & Texas Railway Company, under a grant theretofore made. In August, 1870, the railway company sold the lands in question to Gibson. In 1888 Gibson conveyed the land to P. S. Huffman, and in 1888 Huffman ejected Boman from the land by. a judgment of the district court of Allen county. Subsequently Huffman leased the land to J. J. Boman, Alvin Boman, and J. B. Boman, and they continued in pos session as tenants of Huffman until 1899, when Huffman sold to Fry. The Bomans were holding under a lease from Huffman, which expired February 1, 1900. This lease was assigned to Fry. On January 20,1900, Fry leased the land to Alvin and J. B. Boman, from February 1, 1900, to January 31, 1901, and upon the expiration of that lease the Bomans refused to vacate the premises.
This action was commenced February 15, 1901. Alvin Boman answered that he was only a tenant of J. B. Boman. J. B. Boman answered denying plaintiff’s title and right of possession, alleging that plaintiff’s only title was derived through a grant by the United States to the Missouri, Kansas & Texas Railway Company, and a patent thereunder issued March 3, 1879 ; that by a judgment of the United States circuit court for the district of Kansas, on the 26th day of November, 1900, said patent was set aside and all conveyances by said railroad company made thereunder were held to be null and void, and the title to such land held to be in the government; that said judgment was final and all title in Fry was thereby terminated.
Plaintiff contends that the Bomans, having entered as his tenants, cannot dispute or question his title. The general doctrine that a tenant cannot dispute the title of his landlord is so well settled that the citation of authorities in support of this principle is useless; that is, the tenant is estopped to deny that which he has once admitted. An entry as a tenant is an irrevocable acknowledgment by the tenant of the title of the landlord when he entered, and cannot be denied so long as the title exists as it did when he entered. But this is the limit of the rule. If the landlord parts with his title during the tenancy, the tenant is not es~ topped to plead this fact as a defense in an action of forcible detainer by the landlord. (Horner v. Leeds, 25 N. J. L., 106; Gregory’s Heirs v. Crab’s Heirs, 2 B. Mon. 234; McGuffie v. Carter, 42 Mich. 497, 4 N. W. 211; West Shore Mills Co. v. Edwards, 24 Ore. 475, 33 Pac. 987 ; Boyd v. Auchterlonie, 40 N. Y. Sup. 1070; Newell v. Gibbs, 1 W. & S. [Pa.] 496; Hillbourn v. Fogg and others, 99 Mass. 11.)
While the tenant cannot dispute the title held by the landlord when he enters, if, however, from any cause such title terminates during the pendency of the lease, the tenant may rely thereon to defeat a recovery of possession. It was said in Farris & McCurdy v. Houston, 74 Ala. 162, 167, 168:
"The rule is well settled, and is not questioned, that a tenant cannot dispute the title of his landlord. . There are various exceptions to and qualifications of the rule which are of as much importance as the rule itself, and which must be observed in the administration of justice between landlord and tenant. . The estoppel operates only to preclude the tenant from disputing the title of the landlord at the time when the lease was made and possession given ; but not from showing that the title which the landlord then had was defeasible.or limited in its nature, and has since been defeated, or has expired by its own limitation.”
The same doctrine was announced in James N. Winn, et al. v. Gillum B. Strickland, 34 Fla. 610, 636, 16 South. 606, 614, as follows :
"While it is true that a tenant cannot dispute or gainsay the title of the landlord so long as it remains as it did at the time the tenancy commenced, and no fraud has been practiced in securing, it, yet he may show that the title under which he entered has expired, or has been extinguished by operation of law.”
In Virginia P. Robertson v. George W. Biddell, 32 Fla. 304, 13 South. 358, it was said that a sale of the landlord’s interest in the leased property puts an end to his rights under the lease. In Smith v. Crosland, 106 Pa. St. 413, it was held that when a tenant is sued by his landlord for possession he may show that the landlord’s title has been terminated by a sheriff’s sale under a judgment against him. In Lancashire, Morehead and Lowery v. Mason, 75 N. C. 455, it was held that in an action of ejectment the tenant is not estopped from setting up that the land was bought by a third party at a sale under execution against the landlord and that the title is in such third person. In Michigan it has been held that where the property has been sold under mortgage foreclosure subsequently to making the lease the landlord’s title is extinguished and the tenant is not estopped from showing this fact. (McGuffie v. Carter, 42 Mich. 497, 4 N. W. 211; Walker v. Fisher, 117 id. 72, 75 N. W. 144.) There appears to be no exception in the authorities to this rule.
In the present case it is conceded that the judgment of the United States circuit court obliterated all title in this land held by Fry; that this judgment was rendered during the existence of this lease. We are of the opinion that the court 'committed no error in permitting the defendants to show that the title of the plaintiff had been extinguished, and therefore he had no right to recover possession of the land in controversy.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J. :
The defendants in error, Bridget Allen and Mary Cunningham, commenced an action against John Sheehan, the plaintiff in error, and their co-defendants in error, to partition real estate which had been the property of Richard Collins, then deceased. It was alleged that all the parties to the suit were tenants in common of the land by virtue of being heirs of the former owner. John Sheehan answered claiming sole ownership and possession of one tract described in the petition, under a deed from Richard Collins, executed and delivered in consideration of board and washing to be furnished, and stated sums of money to be paid to him during the remainder of his lifetime. The plaintiffs replied that the deed mentioned was invalid because at the time of its execution the grantor was of unsound mind, and charged John Sheehan with fraud and undue influence in procuring it.
After a trial judgment was rendered for the plaintiffs, the court holding the deed.to John Sheehan to be null and void, “for the reason that at the time of the execution of said deed, and for a long time prior thereto the said Richard Collins was mentally incapa ble of conveying said land, because at the date.of the execution of said deed, and for a long time prior thereto, he was laboring under an insane delusion as to said land described in the deed set out in the answer of said defendant John Sheehan.” A motion for a new trial, duly filed, having been overruled, this proceeding in error was commenced to reverse the judgment of the district court.
An objection was made to the introduction of any testimony under the petition because it failed to state sufficient facts to constitute a cause of action. It did not allege that plaintiffs were in possession of the real estate sought to be partitioned, and contained no demand for the possession of any of it. Under the authority of Denton v. Fyfe, 65 Kan. 1, 68 Pac. 1074,. it was, therefore, defective.
The petition alleged the appointment of an-administrator of the estate of Richard Collins, and then contained an allegation that it would not be necessary to sell any of the real estate to pay the debts of the deceased, or funeral or other expenses. As against the objection to the introduction of any testimony this allegation should be liberally construed to mean that personal property existed belonging to the estate of the decedent amply sufficient to pay all his debts and all costs ’ of administration, on account of which it would not be necessary to sell any of the real estate for that purpose. So construed the allegation made was sufficient upon that subject. (Sample v. Sample, 34 Kan. 73, 8 Pac. 248.) Under the allegation referred to the general creditors of the estate of Richard Collins, and his administrator, as such, had not, and never could have, any interest in his real estate or right to its appropriation. Therefore, it was not necessary that the petition refer to them at all. Under no circumstance should' general creditors be made parties in an action of partition, as plaintiff in error suggests, and it is only under very exceptional states of fact that the administrator can be joined.
The reply was attacked by several motions. The various defenses contained in it were separately stated and separately numbered, and, though, some of the allegations relating to fraud and undue influence were slightly indefinite in respect to some details, the reply was sufficient in both form and substance.
John Sheehan contended that if the deed was invalid he was nevertheless entitled to reimbursement for advancements made to Richard Collins in his lifetime, by way of consideration for it; and that because no tender or offer to submit to the allowance of recompense appeared in the pleadings he was entitled to judgment. This question, however, was one which could not be decided upon the pleadings because John Sheehan was charged with fraud and undue influence, and all performance of the conditions of the deed was denied.. In Gribben, Guardian v. Maxwell, 34 Kan. 8, 7 Pac. 584, 55 Am. Rep. 233, it was said:
“We think, however, the weight of authority favors the rule that where the purchase of real-estate from an insane person is made, and a deed of conveyance is obtained in perfect good faith, before an inquisition and finding of lunacy, for a sufficient consideration, without knowledge of the lunacy, and no advantage is taken by the purchaser, the consideration received by the lunatic must be returned, or offered to be returned, before the conveyance can be set aside at the suit of .the alleged lunatic, or one who represents him.”
If a state of affairs existed making that doctrine applicable to this controversy, only the proof could disclose it.
On the trial a number of non-expert witnesses were permitted to exjpress opinions concerning the mental capacity of Richard Collins to execute the Sheehan deed. Two of these were attorneys at law, and upon examination as to the basis of their opinions disclosed ' fully the details of transactions and conversations in which Richard Collins had consulted them as attor neys. One of these attorneys justified his disclosure as follows:
“Q,ues. He consulted you asan attorney, did he not? That is your business? Ans. Yes, sir; that was my business.
“Q. And he employed you to ascertain about the patents on his lands, did he not? A. Yes, sir; he did.
“ Q,. And you consulted with him about his plan of having Sheriff Butts take charge of his land? A. Well-, I didn’t consult with him nor advise with him about that. He simply came and talked to me about it and told me about it. The fact is that after I discovered the condition he was in I never accepted any fee from him for what I had donq in getting the patent or the writing of letters, or the investigation in regard to the lands he claimed from his wife ; and I did not consider that the relation of attorney and client existed at all, for I didn’t consider that he was capable or competent to make that sort of a contract.
“Q. Well, if he had been, and had these talks with you, you would have considered the relation of attorney and client to have subsisted, wouldn’t you? A. Possibly.”
The other attorney who had at one time conducted some litigation for Richard Collins, and who, about the time of some of the transactions revealed, was in the receipt of fees from him for legal services, made the following explanation:
“Ques. He came to your law office, did he? Ans. Yes, sir ; 0,1 would occasionally meet him here. I remember of meeting him twice on the road, but generally at my law office.
“ Q. And he came there to consult you as an attorney? A. No, sir ; he never paid me any attorney fee, nor I never asked him for any, and never intended to charge him any.
”Q. He came there, I presume, with the idea that he was counseling with you? A. I think so ; yes, sir, I think that was his idea.
“Q. And you had these talks and conversations throughout that time about these matters? A. Yes.”
The statute relating to the competency of witnesses in cases of this character is as follows:
“The following persons shall be incompetent to testify : . . . Fourth, An attorney, concerning any communication made to him by his client in that relation, or his advice thereon, without the client's consent.” (Gen. Stat. 1901, §4771.)
Under this statute the relation of attorney and client must exist to make the communication privileged. But the payment of a fee is not the test of that relation. In the case of The State v. Herbert, 63 Kan. 516, 519, 66 Pac. 235, 236, it was said:
“ While the payment of a retainer or fee is the best evidence that the relation of attorney and client exists, such payment is not absolutely essential. If an attorney is consulted in his professional capacity, and he allows the consultation to proceed, and acts as adviser, the fact that no compensation was paid, or that the consultation was ended and the relation broken, would -not remove the seal of secrecy from the communications made.”
In the case of Denver Tramway Co. v. Owens, 20 Colo. 107, 128, 36 Pac. 848, 855, the rule was stated as follows :
“If a person, in respect to his business affairs or troubles of any kind, consults with an attorney in his professional capacity with the view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces in such consultation, then the professional employment must be regarded as established ; and the communication made by the client or advice given by the attorney under such circumstances is privileged.
“An attorney is employed — that is, he is engaged in his professional capacity as a lawyer or counselor— when he is listening to his client's preliminary state ment of his case, or when he is giving advice thereon, just as truly as when he is drawing his client’s pleadings, or advocating his client’s cause in open court. It is the consultation between attorney and client which is privileged, and which must ever remain so, even though the attorney, after hearing the preliminary statement, should decline to be retained further in the cause, or the client, after hearing the attorney’s advice, should decline to further employ him.”
The same principle was announced in the case of Major and William Alderman, plaintiffs in error v. The People, defendants in error, 4 Mich. 414, 9 Am. Dec. 321, the syllabus of which reads:
“A communication made to an attorney, under the impression that the attorney had consented to act as such for the party making it, is privileged, but it must be made to the- attorney as the legal adviser of the party, and for the purpose of obtaining his legal opinion upon some legal right or obligation.”
In this case Richard Collins twice sought out an attorney for the purpose of obtaining legal advice and assistance upon matters he deemed of importance. In each case the attorney consulted accepted his confidences as an attorney at law engaged in the practice of his profession, and obtained from him information imparted upon the faith of that relation. One of these attorneys conceded that Richard Collins acted upon a belief in ,the existence of such relation. The other conceded that he himself, at the time, acted in good faith upon such a belief to the extent of procuring a patent, writing letters, and investigating a title. Therefore, neither one will be allowed to profane the relation after his client’s death. Besides this, it would be a strange procedure which would permit a witness to testify outright that he believed a person to be insane at a certain time for the purpose of removing a bar to his relating certain facts without which he would not be qualified to speak at all upon the question of the person’s sanity. The very question at issue could not be conclusively decided by the witness in order to render him competent to speak upon it.
If the witnesses had founded their opinions upon observations made in common with others in a nonprofessional capacity, or upon facts which did not come to their peculiar knowledge because their professional opinions and guidance had been sought, they might have shown themselves to be competent to testify. Thus, in the case of Johnson v. Daverne, 19 Johns. 135, 10 Am. Dec. 198, the question was as to the competency of an attorney to testify to his client’s handwriting. The court said :
“The questions to the attorney and counsel were not pushed far enough. If he knew nothing but what his client had communicated to him, he could not be compelled to disclose that; but if he became acquainted with his client’s signature, in any other manner, though it was subsequent to his retainer, he was bound to answer ; for an attorney and counsel may be questioned, as to a collateral fact within his knowledge, or as to a fact which he may know, without being entrusted with it as an attorney in the cause.”
Likewise, in State v. Fitzgerald, 68 Vt. 125, 34 Atl. 429, it was determined that under certain circumstances a lawyer could testify regarding his client’s intoxication. The following is from the opinion :
“Counsel on both sides, in their briefs, have treated the knowledge that the attorney obtained in respect to the respondent’s condition as privileged. We think, however, it cannot be so held. It does not appear that Mr. Cushman learned, or had an opportunity to learn, any fact in respect to the respondent’s condition that was not observable by Buckley and by all other persons who saw him during the time of his alleged intoxication. No fact came peculiarly within his knowledge on account of his relation to the respondent as his counsel. This being the case, he was not privileged from testifying to what he observed of the respondent’s condition.”
In this case, however, it is quite clear the witnesses would not have learned the major portion of the facts which they disclosed, or held the most important conversations which they repeated on the witness stand, had they not undertaken to consult with, and act for, Richard Collins as his attorneys. This being true, they were incompetent to testify as to such facts and conversations. Without these they were not qualified to speak upon the question of Richard Collins’s sanity, and since their observations should have preceded their opinions (Baughman v. Baughman, 82 Kan. 538, 4 Pac. 1003), their testimony should have .been excluded.
Some questions relating to insane delusions are discussed in the briefs. In the absence of special findings of fact it cannot be determined what view the trial court took of the law upon that subject involved in the trial, and a discussion of such questions is, therefore, unwarranted.
The’judgment of the district court is reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
It was the duty of the Kansas City & Southwestern Railroad Company and its successors in interest fully to perform the conditions of the written contract. G. W. Yount and his representatives had a right to expect an ultimate discharge of that duty, and to treat the contract as a subsisting obligation until it was completely performed. When the contract was finally repudiated by the defendant, the plaintiffs had the right to accept the situation as it then presented itself, and to protect themselves accordingly. The defendant was in the actual possession of the land and was actually devoting it to railroad purposes. Except for the public interests involved the law would require it to be ejected. Since, however, on account of such interests, the defendant could claim the right to continue to retain and use the land for railroad purposes, the plaintiffs had the right to institute suit on the basis of a permanent appropriation of the land by the defendant for railroad purposes at that time, and to recover damages as upon a proceeding by condemnation for such purposes. (Mo. Pac. Rly. Co. v. Gano, 47 Kan. 457, 459, 28 Pac. 155.) Under this theory of the case, the petition stated a cause of action, the action was not barred by the statute of limitations, and the damages were determined as of the proper date. (Ritchie v. K. N. & D. Rly. Co., 55 Kan. 36, 38, 59, 39 Pac. 718.)
The record disclosed an obligation of the plaintiffs to convey. It did not disclose the renunciation by the railroad company of all right and duty under the contract, or the fact that the plaintiffs were no longer hampered by it. Therefore it was proper to ask a judicial determination of the fact that the contract no longer measured the rights of the parties. Full relief appropriate to the situation of the litigants could be administered in one action, and it constituted no misjoinder to seek such relief in that manner.
Clearly there was no defect of parties plaintiff. Under the foreclosure proceedings all the rights, title and interest of the first railroad company to the land under the contract passed to the defendant, and no one but the defendant could base any rights upon it. It was not necessary, therefore, to make any one else a defendant in the action.
Under the undisputed evidence the defendant suffered nothing from the instructions, and the judgment will not be reversed op. account of them.
The record being free from prejudicial error, the judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
Appellant was convicted of an assault with intent to commit robbery. The section of the statute covering the case reads :
“Every person who shall be convicted of an assault with an intent to commit any robbery, rape, burglary, manslaughter, or other felony, the punishment for which assault is not hereinbefore prescribed, shall be punished by confinement and hard labor not exceeding five years, or by imprisonment in the county jail not less than six months.” (Gen. Stat. 1901, §2026.)
The information was attacked by a motion to quash, for the reason that it did not allege that the prosecuting witness had money or other property in his possession which the defendant was seeking to take. Passing the question whether the information was lacking in the respect stated, we are clearly of the opinion that such an averment was not . necessary. The law under which the conviction was had creates a substantive and independent crime, in which an assault with intent to rob, or commit rape, burglary, manslaughter, 'or other felony, is the gravamen of the offense. If the assault and guilty intent are shown, it becomes immaterial whether the actual robbery failed because the victim had no property on his person or under his control.
It is next contended that a robbery was in fact perpetrated by the appellant. The application of section 2285, General Statutes of 1901, is invoked. It reads :
“No person shall be convicted of an assault with intent to commit a crime, or of any other attempt to commit any offense, when it shall appear that the crime intended or the offense attemptea was perpetrated by such person at the time of such assault, or in pursuance of such attempt.”
It appeared in the testimony that Roberts drew a pistol and placing it against the neck of the prosecuting witness ordered him to hold up his hands. He then took the prosecutor’s watch, which he afterward returned, saying that it was not watches he was looking for but counterfeit money. Under this testimony a jury or a court would be justified in concluding that the acts of the appellant amounted to no more than an attempt to rob. The prosecuting witness had the sum of twenty dollars in currency in one of his pockets, which was not discovered by the defendant.
There is no merit in the contention that the verdict should have designated the degree of the offense of which the defendant was convicted. As before stated, the crime charged was an independent one, created by statute, without degrees. (The State v. Adams, 20 Kan. 311.)
A large part of the brief of counsel for appellant is devoted to alleged errors committed by the trial court in giving and refusing instructions to the jury, and in overruling the motion for a new trial, based on the misconduct of the county attorney in his argument to the jury, as shown by affidavits in support of the motion. These questions cannot be considered, for the reason that neither the instructions nor the affidavits ■are preserved in the bill of exceptions. ■ They are.certified by the clerk as a part of the record. In criminal cases instructions asked for and refused do not become a part of the record unless they are incorporated in a bill of exceptions. (The State v. McClintock, 37 Kan. 40, 14 Pac. 511; The State v. Smith, 38 id. 194, 16 Pac. 254; The State v. Ratner, 44 id. 429, 24 Pac. 953.) The same rule applies to affidavits in support of a motion for a new trial. (The State v. Devine, 49 Kan. 252, 30 Pac. 522.)
We have examined the findings of the court respect ing the misconduct of the county attorney in addressing the jury, and do not think that they disclose facts tending to show that the appellant was prejudiced by anything said in the argument.
The judgment of the court below wiíl be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The appeal is from a conviction of manslaughter in the first degree.
The information charged the defendant killed deceased, a woman pregnant with a vitalized embryo, by using on her certain instruments with the intent to procure an abortion, which was not necessary to preserve her life. The facts are about as follows:
Deceased was found dead on a bed in the basement of defendant’s home; there was evidence of her having made an appointment with defendant; that she was four or five months pregnant; that her water bag and fetus were normal and her placenta showed evidence of instrumentation with the tear being ragged and with bits of tissue hanging; there was evidence of a bronchial condition; there was also evidence that defendant was at her home when deceased came there; that she called the ambulance for her; that she had expected deceased to come to her home; that she told the officers conflicting stories as to whereabouts in her house the death occurred; that she told a woman who had taken care of girls upon whom defendant had performed abortions before, that deceased was five months pregnant and would soon be wanting to stay with the witness. This witness also testified defendant called her at her home and told her deceased was sick and asked her to come to defendant’s home. A doctor testified:
“His opinion is that the tearing of the placenta was by a metal' instrument which managed to pass the water bag without puncturing it, that the result of this separation would have been an enormous gush of blood, which would be exceedingly difficult to control, that there would have been sufficient loss of blood to lead to a condition of shock. . . . His opinion is that the cause of death was loss of blood from attempted abortion, and that the bronchial condition would not be sufficient to cause death without the loss of blood and consequent shock, because a person normally would be able to cough up the material in the chest.”
Defendant was charged under G. S. 1949, 21-407. It provides as follows:
“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.”
There was no negligence charged in this case, so we shall consider the statutes as though it provided that the killing of a human being without a design to effect death, by the act of another, while the other was 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 common law, should be deemed manslaughter in the first degree.
The theory of the state was that deceased was killed by defendant while defendant was attempting to perpetrate the crime of abortion. The pertinent statutes dealing with abortion are two. G. S. 1949, 21-437, provides as follows:
“Every physician or other person who shall willfully administer to any pregnant woman any medicine, drug, or substance whatsoever, or shall use or employ any instrument or means whatsoever, with intent thereby to procure abortion or the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by a physician to be necessary for that purpose, shall upon conviction be adjudged guilty of a misdemeanor, and punished by imprisonment in the county jail not exceeding one year, or by fine not exceeding five hundred dollars, or by both such fine and imprisonment.”
The other is G. S. 1949, 21-410. It provides as follows:
“Every person who shall administer to any woman pregnant with a quick child any medicine, drug, or substance whatsoever, or shall use or employ any instrument or other means with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by a physician to be necessary for that purpose, if the death of such child or mother thereof ensue from the means' employed, shall be guilty of manslaughter in the second degree.”
The information alleged that deceased was pregnant with a “vitalized embryo.” The defendant moved that the state be compelled to make the information definite and certain by stating whether deceased was pregnant with a “quick child” at the time the acts were committed by defendant. This motion was overruled. The defendant then moved to quash the information. This motion was overruled. At the conclusion of the state’s evidence the defendant’s demurrer to it was overruled. The specifications of error are, error in overruling defendant’s motion to make definite and certain and to quash the information; in admitting evidence over objection of defendant; overruling defendant’s demurrer to plaintiff’s evidence; in refusing to give defendant’s requested instructions in the instructions given; permitting counsel for the state to make improper and prejudicial remarks in his closing argument; and in receiving the verdict and sentencing the defendant because the verdict was contrary to the law and to the evidence. The defendant’s motion for a new trial was on seventeen grounds covered by the specifications of error.
The defendant argues first the court erred in overruling defendant’s motion to make definite and certain and to quash the information. As noted, this prosecution was for a violation of G. S. 1949, 21-407. The information charged deceased was pregnant with a “vitalized embryo.” The argument of the defendant that her motion to quash the information should have been sustained is that causing an abortion of a woman pregnant with a “quick child” is a separate and distinct offense carrying a lesser penalty than that of causing an abortion of a woman pregnant with a “vitalized embryo” and the information did not with certainty apprise the defendant of the nature of the charge against her.
The prosecution is for a violation of G. S. 1949, 21-407. The abortion statutes enter this case because the information charged that this killing was by the act of defendant while she was engaged in the perpetration of an attempt to perform an abortion on deceased. Such is the offense denounced by G. S. 1949, 21-437. This is the theory upon which the prosecution was carried and upon which it was submitted to the jury.
The inclusion of the term “vitalized embryo” in the information was actually surplusage. The information need only have used the term “pregnant woman” to state the offense of manslaughter in the first degree, in violation of G. S. 1949, 21-407. Thus the act of attempting to cause an abortion would have been an attempt to perpetrate a crime, not a misdemeanor. Actually the term “vitalized embryo” is not used in any of our statutes. In G. S. 1949, 21-410, the term “pregnant with a quick child” is used, and in G. S. 1949, 21-437, simply the term “pregnant woman.” Had the information contained the term “pregnant woman” rather than “pregnant with a vitalized embryo” it would have stated a violation of G. S. 1949, 21-407, for a violation of G. S. 1949, 21-437, is such a crime not amounting to a misdemeanor as is contemplated by G. S. 1949, 21-407.
We said in State v. Patterson, 105 Kan. 9, 181 Pac. 609, that the term “vitalized embryo” used in an information meant simply endowed with life.
Surely where pregnancy has advanced to the state where the expectant mother might be said to be quick with child, the child is endowed with life.
The information we have here charged a crime that would be murder at common law. (See State v. Harris, 90 Kan. 807, 136 Pac. 264.) There the defendant was charged with a violation of what is now G. S. 1949, 21-407. The theory upon which the information was drawn was just the theory upon which the information in this case was drawn, that is, that defendant had attempted to perform an abortion in violation of what is now G. S. 1949, 21-437. We held:
“An information alleging the use of a certain instrument to procure the abortion or miscarriage of a woman pregnant with a vitalized embryo, not necessary or medically advised to be necessary to preserve her life, resulting in her death, charges a crime which would be murder at the common law, and which is manslaughter in the first degree under section 12 of the crimes act. (Gen. Stat. 1909, § 2500.)”
Defendant next argues the trial court erred in overruling her demurrer to the state’s evidence. She points out G. S. 1949, 21-410. She makes the statement that not any of the evidence introduced by the state proved or tended to prove that deceased was pregnant with a “vitalized embryo,” but conclusively showed that she was actually “quick with child” and defendant must have been guilty of a violation of G. S. 1949, 21-410, manslaughter in the second degree, rather than a violation of G. S. 1949, 21-407, manslaughter in the first degree.
We are unable to follow this argument. To the experts there is rather a shadowy zone between the time when a woman is pregnant merely with a “vitalized embryo” and the time when that embryo has advanced so far that she would be said to be “quick with child.” In common parlance, the term is used to designate the time when a woman has felt movement in her womb from'the child she is carrying. We held in State v. Hatch, 83 Kan. 613, 112 Pac. 149, the term is meant to indicate the state of development of the .unborn child. Whatever be the conclusion as to the above, we will not place upon the state the burden of proving in a prosecution for manslaughter growing out of an abortion whether the child the dead woman was carrying was a “vitalized embryo” or had developed to the stage where she could be said to be “quick with child.”
The evidence in this record demonstrates the necessity and wisdom of this rule.
One doctor testified he found a pregnancy of approximately five months; that ordinarily women feel quickening between “four and five months, but there had been cases where women had gone through repeated pregnancies without feeling quickening.” The doctors all refused to testify categorically that this woman was “quick with child.” Under pressing cross-examination one of them testified:
“Q. ‘Yes’ or ‘No’, do you? A. Well, it would be a relative type, not a positive opinion. At this stage of development is the most common stage at which the symptoms of quickening is felt, but due to the variations I am unable to say positively whether she had this quickening at this period.”
Defendant argues that under our statutes, as we have interpreted them, the crime of causing the death of a woman by attempting an abortion where the woman is pregnant with a vitalized embryo is a more serious offense than that of causing an abortion of one where she is pregnant with a quick child. From this she argues that the two offenses are separate and distinct.
We have examined the statutes and authorities upon which defendant relies and cannot give them the weight contended for by defendant. In the first place, the statutes themselves do not so provide. G. S. 1949, 21-410, is the section dealing with the abortion of a woman pregnant with a quick child. Causing the mothers death is under that section made manslaughter in the second degree. This is a felony. (See G. S. 1949, 21-421.) The section dealing with causing an abortion of a pregnant woman is G. S. 1949, 21-437. That section makes performing an abortion on any pregnant woman a misdemeanor. It is only when the prosecuting officer saw fit to prosecute under G. S. 1949, 21-407, that it might be argued it is a more serious offense to cause a woman’s death by an abortion when she is pregnant than to do such a thing when she is pregnant with a quick child. This is brought about by the provision that G. S. 1949, 21-407, speaks of killing a human being by the act of defendant while defendant is engaged in the perpetration of a crime or misdemeanor not amounting to a felony. Since by G. S. 1949, 21-410, the crime described therein is a felony, in order to state an offense under G. S. 1949, 21-407, the state must rely on G. S. 1949, 21-437, which in and. of itself makes the crime of abortion of a woman, who is merely pregnant, but mayhap in the early stages of pregnancy, a misdemeanor. We have heretofore demonstrated in this opinion that it- was not error to charge this defendant with a violation of G. S. 1949, 21-407, and to describe in the information a violation of G. S. 1949, 21-437.
The idea that under our statutes it was a less serious offense to cause the death of a woman pregnant with a quick child than to cause the death of one pregnant with a vitalized embryo was raised in State v. Harris, supra. There the state had charged the defendant with manslaughter in the first degree under G. S. 1949, 21-404, and had described the crime of abortion under G. S. 1949, 21-437. On appeal the defendant raised the question we are now considering. We did not give the argument any weight but said:
“Conceding without deciding the truth of the contention, the responsibility is upon the legislature and not upon the court, and the defendant can be given no judicial relief on the mere ground of inconsistency of penalties.”
The decision in that case actually turned on whether killing a pregnant woman while violating G. S. 1949, 21-437, was murder at common law. As has already been remarked in this opinion, we held it was.
In State v. Patterson, 105 Kan. 9, 181 Pac. 609, one of the defendants was convicted of manslaughter in the first degree because he and others performed an abortion upon a woman, causing her death. The defendants had been charged, as this defendant was, under G. S. 1949, 21-407, and the offense of violating G. S. 1949, 21-437, had been described. One of the arguments made by defendants was failure of the trial court to instruct the jury under G. S. 1949, 21-410. We simply remarked in dealing with this argument that pregnancy with a quick child had been neither pleaded or proved. Hence there was no occasion for an instruction on that statute.
In State v. Keester, 121 Kan. 167, 246 Pac. 685, the defendant was charged with a violation of G. S. 1949, 21-410, and convicted of a violation of G. S. 1949, 21-407. We held this was error. The state on appeal argued that the prosecution had already done what it has here, that is, charged the defendant with a violation of G. S. 1949, 21-407. Our opinion is actually devoted to demonstrating that the information was for a violation of G. S. 1949, 21-410. We did say at the end of the opinion there was a curious anomaly in our statutes by which one who willfully committed an. act intended to cause an unlawful abortion in the early stages of pregnancy before the quickening of a fetus was guilty of manslaughter in the first degree if the woman died as a result, while a similar act perpetrated on a woman in the later stages of her pregnancy was manslaughter in the second degree.
This statement is not authority for the position taken by defendant here, however. Furthermore, it was dictum and not necessary to a decision of that particular case. We do not question the holding in State v. Keester, supra. Had this prosecution been for a violation of G. S. 1949, 21-410, then the conviction would have been of necessity of manslaughter in the second degree. We are simply holding that where the defendant is charged with manslaughter in the first degree, in violation of G. S. 1949, 21-407, and the basis of the charge is a violation of G. S. 1949, 21-437, the state need only hold that the woman in the case was pregnant and the stage of development of the unborn child is of no consequence.
Defendant next argues that the trial court erred in refusing to give instructions requested by her. These instructions were actually given in substance by the trial court.
Defendant next argues the court erred in giving certain instructions. The trial court did tell the jury that in order to convict defendant of manslaughter in the first degree it must find beyond a reasonable doubt that deceased was not pregnant with a quick child. We have already demonstrated in this opinion that such an instruction was not correct. The instruction given was more favorable to the defendant than she was entitled to, however. She was not prejudiced by it.
The other objections to instructions have been examined and found to be without merit.
The defendant next argues that the court erred in permitting counsel for the state in his argument to the jury to make remarks that were prejudicial to her. We have examined these remarks. We find they did not affect the orderly administration of justice or the substantial rights of the defendant.
The arguments of defendant that the verdict was contrary to law and to the evidence we find to be without merit.
Defendant also argues that the trial court erred in admitting over her objection incompetent and prejudicial testimony. The testimony to which this refers was admitted during the examination of one of the doctors who performed the autopsy. After this doctor had testified to all the details of the condition in which he found the body of deceased, that is, the intact water sac, the torn placenta, the apparent loss of blood and the half-formed child, he was asked “In your opinion was this a therapeutic or a criminal abortion?” Counsel for the defendant objected on the ground the question was misleading and suggestive, and it was a question for the jury. This objection was overruled, the witness was permitted to give his opinion and stated that in his opinion it was a criminal abortion.
One of the burdens of the state was to prove the operation was not necessary to preserve the life of the expectant mother. Circumstances surrounding the case constituted substantial evidence of this. Such, amongst others, was the surreptitious manner with which the appointment was made, the fact the body was found in the basement of defendant’s home and that defendant was not a doctor. It was proper for the doctor to give his opinion on this from an examination of the body. Such is the information counsel for the state intended to elicit. There could have been no objection had the question been “Was this a therapeutic abortion?” It is perhaps unfortunate that counsel included in his question the alternative “or a criminal abortion.” It actually added nothing to the question since if the abortion was not therapeutic it must have been criminal. The defendant was not prejudiced by the admission of this testimony.
The judgment of the trial court is affirmed. | [
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|
The opinion of the court was delivered by
Pollock, J.:
It is difficult to determine the exact nature and scope of this action. It was brought by I. D. Burdick and PI. W. Burdick against the Carbon-dale Investment Company, based upon the following facts : The investment company was the owner of an eighty-acre tract of land near the city of Carbondale, upon which there were discovered mineral springs. The investment company desiring to sell this land, and plaintiffs wishing to purchase for the purpose of' utilizing these springs, developing the property, and platting it into an addition to the city of Carbondale,. but being without means to pay for the same, the property was conveyed to plaintiffs by the investment-company for the consideration of $4672, and apmortgage to secure the entire purchase-price was taken on the property, under an agreement conditioned, among other things, that plaintiffs would plat the property into lots, blocks, streets, alleys, driveways, etc., plant-shade and ornamental trees, beautify the grounds, advertise the property for sale, refrain from fencing the land or converting it into a farm, and that the investment company would release the mortgage as to any lot or lots sold, upon payment of the sum of twelve dollars per lot, containing 3750 square feet.
It was alleged in the petition that plaintiffs took possession of the property, caused a plat of the ground to be prepared and filed at a cost of $200, planted shade-trees, ornamented and improved the grounds at a further expense of $1500, and that they expended the further sum of $500 in time and money in advertising the property for sale, sold a large number of lots to divers persons, tendered the investment company the sum of twelve dollars per lot, and demanded a release of such lots from the lien of the mortgage, which demand was refused by the defendant; that defendant wholly failed and refused to comply with its contract to release the lots when sold. It was further alleged:
“That the defendant then wrongfully undertook,, contrived and designed wantonly, maliciously and wrongfully to stop all sale of lots whatever by plaintiffs- and prevent them from realizing any sum therefrom to pay said mortgage, and to annoy, obstruct and prevent plaintiffs from performing and carrying out said contract on their part, and to deprive plaintiffs of the' benefit of their bargain, and in pursuance of said wrongful purpose refused the releases, instituted the vexatious and unwarranted suits, and did the wrongful actsTiereinafter alleged, thatis to say : At the time of each such request to release the lots so sold by these plaintiffs (due demand therefor being then made by the plaintiff upon defendant) said defendant,in direct violation of its agreement, and when these plaintiffs were in no default, refused to release a single lot, and would not do so upon proper, timely and sufficient tender, and the defendant from that time continuously has refused to release said lots; and the defendant having accepted and received the first year’s interest on the note and mortgage, which was paid three days after the time it became due, the defendant and its officers having consented that there might be such delay, at a meeting of its board of directors received and accepted such payment and by resolution divided such payment into dividends for its stockholders, and then at the same meeting directed and authorized suit to be brought against these plaintiffs for the foreclosure f said mortgage, and immediately thereafter, about April 18,1890, in pursuance of said direction, a suit for the foreclosure of said mortgage was instituted against • these plaintiffs on the ground of non-payment of said interest and taxes (the defendant then well knowing that plaintiffs had previously paid such taxes), and said suit was continued in court until August, 1891, and the defendant was finally defeated in that suit for the aforesaid reasons.”
It was also alleged that defendant instituted an injunction suit against plaintiffs to restrain them from • pasturing the property, which suit finally terminated in fayor of plaintiffs, all of which damaged them in the sum of $20,000. To this petition defendant interposed by way of answer a general denial. The case was tried to the court and a jury, resulting in a general verdict for $10,500, together with interest amounting to $17,747.10. Answers to special questions were returned as follows :
' (Requested by plaintiffs.)
“1. Did the defendant wrongfully commence and prosecute an action to foreclose its mortgage on the property, which is the subject of this controversy, before it was due? Ans. Yes.
“2. Did said suit prevent the plaintiffs from making sales of lots? A. Yes.
“3. Did the defendant wrongfully refuse to release its mortgage on lots which these plaintiffs had sold.? A. Yes.
“4. Did such refusal prevent the plaintiffs from making sales of lots? A. Yes.
“5. Did the wrongful bringing of 'the first two suits and the refusal to execute releases of its mortgage deprive the plaintiffs of all opportunity to consummate sales and wholly prevent them from selling lots prior to the maturity of the note and mortgage ? A. Yes.
“6. What was the market value of the lots as a whole immediately prior to the commencement of the first foreclosure suit, on April 18, 1890 ? A. $14,000.
“7. After the bringing of such suits, and after the refusal of the defendant to execute said releases, had the property in controversy a market value as lots, or only as farming lands ? A. As lots.
“8. What was such market value ? A. $3500.”
(Requested by defendant.)
“1. Is it not a fact that the only money directly paid out in the purchase of trees by the plaintiff in 1889 was $30 for catalpas ? If they paid any more, state how much. A. No — mulberry; amount not specified.
“2.' How much damage, if any, do you allow plaintiffs for the failure of defendant to release lots for Bailey and Barnes ? State separately as to each. A. Do not know, as the refusal of defendant to release lots was one of the causes of depreciation in value of the property.
“3. How much damage, if any, do you allow for failure to release the mortgage as to one lot to Overmeyer, one lot to Gregory, and four lots to Gathercole ? State separately as to each. A. Do not know, as the refusal of the defendant to release lots was one of the causes of the depreciation in value of the property.
“4. Did the plaintiffs ever tender to the defendant, when demanding releases, either the fee to the officers, or furnish an officer to take the acknowledgment of such releases ? A. Evidence does not show that they did.
“5. Is it not a fact that the proposed release of lots claimed to have been sold to one Jordon was never presented to the defendant until March 15, 1891? If presented before, when, by whom, and to what officer of the company? A. No; a few days before, to McKee and Sto\zman, by Jordon and H.W. Burdick.
“6. Is it not a fact that the only tenders ever made before the maturity of the note in question was for one lot to Overmeyer and one lot to Gregory, after August 1, 1890, and four for Gathercole, just a few days before the maturity of the note ? If there were any others, state for whom and when made. A. No ; for Jordon and Huntoon, prior to the maturity of the note.
“7. How much do you allow, if any, because of the first foreclosure suit in 1890 f A. The entire damage.
“8. Did the plaintiffs, or either of them, ever pay any part of the principal of the note given as the purchase-price of said land ? A. Yes, we consider every twelve dollars tendered before maturity of the note as part payment on principal.”
Plaintiffs having remitted the interest, judgment was entered on the verdict. Defendant brings error.
From the allegations of the petition, it is evident that a cause of action was stated for breach of the contract made between the parties. It is also apparent that the pleader placed much reliance on the alleged wanton, wrongful, malicious and premature bringing of the foreclosure action. No motion or demurrer was leveled at the petition. An examination of the record discloses ample evidence to support a judgment of damages, in some amount, for breach of contract, but the jury found the entire damages awarded plaintiffs to have been sustained as a result of the premature bringing of the foreclosure action. ■ As a necessary consequence, all damages for the breach of the express covenants of the contract are thus eliminated from this controversy, and the entire judgment must rest alone upon a consideration of the nature of the cause of action for the wrong alleged to have been sustained by plaintiffs in the premature institution and prosecution of this foreclosure action.
While by provision of the civil code the common-law forms of action are expressly abolished, yet it is true, and ever must remain true, in any orderly administration of justice, that the precise nature of the cause of action must be determined before the rules of law applicable thereto can be ascertained and applied. Any' other method of procedure must of necessity lead to inextricable confusion. As well, and with as much propriety, might a physician attempt the treatment of a patient without a diagnosis and knowledge of the ailment from which the patient suffers. As’ was held by the court in Grentner v. Fehrenschield, 64 Kan. 764, 68 Pac. 619 :
“The plaintiff must frame his petition upon a distinct and definite theory, and upon that theory the facts alleged must state a good cause of action. If the petition is not drawn upon a single and definite theory, or there is such a confusion of theories alleged that the court cannot determine from the general scope of the .petition upon which of several theories a recovery is sought, it is insufficient.”
What legal effect may be given the allegations in relation to the foreclosure action? Do they form a part of the cause of action for breach of contract, or must they be regarded as introducing a separate cause of action? Counsel for the respóctive parties do not agree on this question. The theory of counsel for plaintiff in error, at least in this court, is that the allegations in relation to the premature attempt to foreclose the mortgage are • separate and apart from the action for breach of the contract, and must be regarded as an action for “slander of title.” We are not inclined to adopt this theory as to the nature of the action. Mr, Newell, in his work on Slander and Libel, second edition, page 203, defines the right of action for slander of title to be in case “any one who falsely and maliciously defames the title of property,, eithe'r real or personal, of another, and thereby causes him some special pecuniary damage or loss.” As defendant at all times conceded the absolute title and right of possession of the property in question to be in the plaintiff, subject to the lien of its mortgage, and did not assert to the contrary, no question of title, or the defamation of plaintiffs’ title, was alleged against defendant.
The theory of counsel for defendants in error is that the premature bringing of the foreclosure action constituted a breach of the implied terms of the contract between the parties, and hence the entire action is one for damages for breach of contract. But as the right to .a timely foreclosure of the mortgage in case of default was not contracted against, and as a premature attempt at foreclosure could not have been anticipated, the contract being silent, it cannot be. thought that the question of a foreclosure of the mortgage was in contemplation of the parties at the time of the making of’the contract. The refusal of the defendant to execute the releases for lots sold, as covenanted in the contract, and as found by the jury from the evidence, constitutes an express violation of the contract, for which breach, if damage ensued, a cause of action accrued to plaintiffs, but such damage cannot be enhanced by the intent with which defendant committed the breach. In Ice Co. v. Wylie, 65 Kan. 104, 107, 68 Pac. 1087, it, was said :
“The intent with which the contract was violated did not furnish a cause of action, but the fact of the breach, disassociated froxn the reasons for it. The wilfulness of a party in refusing to carry out a contract does not in any way change the rule of damages. It is the same whether the breach results from mistake, accident, or inability to perform it, or whether it be wilful and malicious.” (3 Par. Cont. 166; Stranahan Co. v. Coit, 55 Ohio St. 398, 407, 45 N. E. 634.)
Therefore, if the wanton, wilful, malicious and prematux’e bringing of the foreclosure action, as alleged in the petition, is to perform any office or give rise to any cause of action or right to damages in this case, it must form the basis of an independent xúght of action, not flowing from the contract but disassociated from an action on the contract, and must be governed and controlled by the rules of law apjflicable to such an action. From a consideration of the allegations of the petition, we conclude that the pleader had in mind and alleged, or attempted to allege, a cause of action for the “malicious prosecution of a civil action.” The jury having determined the entire damage suffered by plaintiffs to have been occasioned by the premature prosecution of this foreclosure action, it only remains for us to determine whether the petition alleged sufficient facts to entitle plaintiffs to a recovery for such action, and whether the proofs wex*e sufficient to support the judgment rendered.
Upon this theory of the case, it is contended that the allegation of damages found in the petition is general and must be special. In this state, contrary to the rule in many jurisdictions, an action may be maintained for the “malicious prosecution of a civil action” where the defendant in such prosecution alleges and shows that he has sustained any damage over and above the taxable costs in the case. (Marbourg v. Smith, 11 Kan. 554; 19 A. & E. Encycl. of L., 2d ed., 652.) The facts necessary to be alleged and proved in order to maintain an action for “malicious prosecution of a civil action” are the same as those required to sustain an action for malicious prosecution of a criminal case. (Wilcox v. McKenzie, 75 Ga. 73.) In this case, before plaintiffs could recover for the malicious prosecution of the foreclosure action, it was incumbent on them to allege and prove the prosecution of the foreclosure action against them, without probable cause and with malice, the termination of such action in favor of plaintiffs, and their damages, for such are' the constituent elements of such an action. (Malone v. Murphy, 2 Kan. 250 ; Marbourg v. Smith, supra; 19 A. & E. Encycl. of L., 2d ed., 653.)
Applying these principles to the pleadings and evidence in the case at bar, it is very evident a reversal of the judgment must follow. While the petition alleged the foreclosure action to have been prematurely brought and malicious, yet there was no averment of want of probable cause, and there was an entire absence of proof of malice and want of probable cause in the evidence.
It follows that the judgment must be reversed, and the cause remanded for a new trial in accordance with this opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Price, J.:
The primary question in this case concerns the power of the lower court, under the circumstances hereinafter detailed,- to make an order changing the custody of a minor child.
The parties, who will be referred to as in the court below, were residents of Butler County. In September, 1949, plaintiff wife filed an action for divorce in that county on the ground of extreme cruelty. She and the defendant were the parents of a two year old child, and her petition sought the temporary and permanent care, custody and control of the child, together with adequate provision for its support, maintenance and education.
The parties entered into an out-of-court stipulation concerning their property rights, and this stipulation included an agreement that plaintiff should have the exclusive care, custody and control of the child, subject to rights of visitation by the defendant at any reasonable time and under reasonable circumstances. It further provided that defendant should pay the sum of $150 per month for the care, support and maintenance of the child.
The divorce action came on for hearing on December 15, 1949. Both parties were present in court in person and by counsel. The defendant did not contest the action. The stipulation of the parties concerning their property rights and the custody of the minor child, including the matter of child support, was submitted to and approved by the court but was not incorporated in the journal entry of the divorce.
Mr. Gale Moss, an attorney of El Dorado, filed the divorce action for plaintiff and represented her in the cause down to and including the trial, and signed the journal entry of the decree of divorce as her counsel.
On February 21, 1950, the defendant filed a motion in the divorce case seeking to change and modify the decree and judgment previously rendered on December 15, 1949, with respect to the order of custody and payments to be made for the care and support of the child. This motion set out the stipulation of the parties with reference to the child and the payments to be made by defendant, and then alleged that shortly after the rendition of the divorce decree on December 15, 1949, plaintiff left the state of Kansas taking the child with her, and on December 31, 1949, in violation of law and the decree of divorce, married another man. It was further alleged that defendant had not seen and had had no opportunity to see the child at any time since December 15, 1949; that the acts and conduct of plaintiff in taking the child from the state of Kansas had utterly defeated the terms and provisions of the stipulation giving defendant the right to see and visit the child at any reasonable time, and that by reason of plaintiff’s conduct in the premises she was thus an unfit and improper person to have its custody.
The prayer of this motion asked that the previous custody order be changed and that defendant be given the exclusive care, custody and control of the child. In the event such request be denied the motion prayed in the alternative for the exclusive care and custody of the child during definite times and periods, but we may disregard such portions of the motion.
On the same day this motion was filed the court made an order setting it for hearing on February 25, 1950, and further ordered:
“. . . that defendant give notice of such hearing by serving a copy of this order forthwith on Gale Moss, plaintiff’s attorney of record.”
On February 24, 1950, Mr. Moss filed in the divorce case his affidavit in which he stated that as a duly licensed practicing attorney in El Dorado he represented the plaintiff in the divorce action in the filing and prosecution thereof to judgment, such judgment being rendered on December 15, 1949; that on February 21, 1950, he had been served with a copy of the motion for change of custody of the minor child; that prior to February 21, 1950, all matters relating to the divorce action had been reduced to judgment and his services for and on behalf of plaintiff had been terminated, and that the relationship of attorney and client no longer existed between him and plaintiff, and did not exist on February 21, 1950.
On February 25, 1950, the motion came on for hearing. The defendant was present in court in person and by counsel. Plaintiff was not present in person. Mr. Moss appeared in person at the request and suggestion of the court. Following a colloquy between the court and counsel for defendant, Mr. Moss made a statement reiterating the substance of his affidavit, stating that the purpose for which he had formerly been employed by plaintiff had been concluded; that he had been paid for his services; that he had not been employed for the purpose of the motion under consideration; that the time for appeal from the divorce decree had expired, and that he was not appearing on behalf of plaintiff. Upon being questioned by counsel for defendant it appears that Mr. Moss’s statement to the effect he no longer represented plaintiff was based on the fact “of the conclusion of his employment” rather than on any “formal discharge” of him by plaintiff. The matter was argued pro and con and the court then announced that it would go ahead and hear the motion, stating that if plaintiff later should come into court and attack any order made she would have the right to do so.
Evidence was introduced on behalf of defendant in support of his motion for an order changing custody of the child and the provision for its support and maintenance.
At the conclusion thereof the court found that plaintiff had violated the terms of the original decree and the laws of the state of Kansas; that on account of her acts and conduct the absolute custody of the child should be given to defendant, and that all payments for its support and maintenance previously ordered to be made by defendant should cease immediately.
The journal entry covering the court’s order is quite lengthy and recites the facts relative to Mr. Moss’s connection with the case; sets out the substance of his affidavit and oral statements in support thereof, heretofore referred to, and then recites that:
“. . . the Court finds it unnecessary to determine whether, under the circumstances, such notice so served on Gale Moss was notice to the plaintiff.”
The journal entry then contains a recital and finding by the court to the effect that since all proceedings were had during the November, 1949 term of court the court had absolute control of its judgments during the term at which they were rendered, including full power to alter, change or set them aside, during the term, in its discretion, and that plaintiff, as a matter of law, had notice of the fact that the judgment of December 15, 1949 was subject to being altered, changed or set aside, during the term, by the court, either on its own motion or that of the opposing party, and that the court had jurisdiction to hear and determine the motion for change of custody.
Then follows a finding to the effect that defendant had not seen and had had no opportunity to see the child since December 17, 1949; that since such date defendant had not known the whereabouts of plaintiff or the child; that in violation of law and the terms of the divorce decree plaintiff had married another man on December 31, 1949, in the state of New Jersey, and that by reason of such acts and conduct on the part of the plaintiff custody of the child should be granted to defendant and payments previously ordered by way of child support should cease. The order made was to that effect. •
The record is silent as to what may or may not have transpired following the making of this order but the next chapter of this litigation arose on November 4, 1950, at which time plaintiff, by special appearance, through an attorney of Wichita (now deceased), filed a motion to vacate and set aside the order made on February 25, 1950, for the reason that she had no notice of any kind or character of the motion upon which the order was based, and therefore that the order was void.
This motion was heard on November 25, 1950. The parties appeared only by counsel. The motion was overruled, and that is the order from which this appeal is taken.
While the specifications of error are five in number, yet the all conclusive question in this case is whether, under all the facts and circumstances heretofore related, the lower court had the power and authority to render its order of February 25, 1950, changing the custody of the child. In considering this question we are not concerned with the wisdom and propriety of the original divorce decree pertaining to custody, and neither are we concerned with the wisdom and propriety of the subsequent order changing custody— no appeal was taken from either order and the fitness of the parties is not in issue. We are concerned only with the validity of the subsequent order changing custody.
In support of the lower court’s judgment defendant relies upon two main propositions: (1) That service of the notice upon Mr. Moss was notice to plaintiff, and (2) the court had authority, during the same term of court at which the judgment of December 15, 1949, was rendered, to change or modify such judgment with or without notice.
With reference to the first proposition our attention is called to G. S. 1949, 60-723, which provides that notices of motions shall be served on the party or his attorney of record, and to National Bank v. Dry Goods Co., 45 Kan. 510, 26 Pac. 56, and it is argued that for all practical intents and purposes Mr. Moss certainly must be considered to have been plaintiff’s “attorney of record” at least until the expiration of the term of the court at which the original divorce judgment was rendered. With reference to the second proposition, defendant relies upon the long-established general rule and authorities in support thereof to the effect that during the term at which a judgment is rendered the court has absolute power and control over it, and under such circumstances may modify, vacate or set the same aside at its pleasure.
On the other hand, plaintiff contends the record clearly discloses the fact that Mr. Moss no longer represented plaintiff — thus the notice to him was of no force or effect, and that the court proceeded on the erroneous theory it had the power during the same term to change or modify the previous custody order without notice of any kind or character.
It is conceded that the divorce decree, which included the original custody order, was rendered during the November, 1949 term of court in Butler County; that the next regular term commenced on the first Monday in March, 1950 (G. S. 1949, 20-1013), and therefore the questioned order of February 25, 1950, was made during the term.
It is also conceded that under G. S. 1949, 60-1510, the court has a continuing jurisdiction over the custody of minor children involved in a divorce action and may modify or change any order relating to the same whenever circumstances render such change proper, at or after the term at which a previous order was made.
Further, all parties to this appeal recognize the well-established general rule that a court has full control over its orders or judgments during the term at which they are made and may, upon sufficient cause shown, in the exercise of its sound discretion, amend, correct, revise, open or vacate such judgments. (Burnham v. Burnham, 120 Kan. 90, 242 Pac. 124; Isenhart v. Bowers, 135 Kan. 111, 9 P. 2d 988; and Rasing v. Healzer, 157 Kan. 516, 142 P. 2d 832.)
In our opinion the court was without power and authority to make the order of February 25, 1950, changing the custody of the child. From the record before us there is no doubt but that the court proceeded on the theory it had the power to make the order during the term, irrespective of notice. As heretofore stated, the journal entry contained a recital that the court found it unnecessary to determine whether, under the circumstances, the notice served on Mr. Moss was notice to the plaintiff, and in addition thereto, in a recital of appearances, stated:
“. . . and plaintiff appeared not, either in person or by attorney."
From the foregoing it is clear the court considered the matter of notice or opportunity to defend to be immaterial, during the term.
It must be kept in mind that this motion for change of custody was based upon new evidence, that is, alleged wrongful acts and conduct of plaintiff occurring subsequent to the rendition of the divorce decree of December 15, 1949. By this motion the court was not called upon merely to reconsider the wisdom and propriety of its original custody order, based only on the facts before it at the time that order was made, but was called upon to change its judgment, based on new evidence, that is, of alleged subsequent conduct on the part of plaintiff to establish her alleged unfitness. Under such circumstances we think it is an overstatement to say that a court, particularly in a child custody case, has the power, even during the term, to change or set aside a judgment without notice to the opposing party and opportunity to defend. The power of a court to modify or set aside its judgments during the term is not without its limitations with respect to proper notice, when, as here, the motion for such modification or vacation is predicated upon new evidence or evidence of facts occurring subsequent to the original judgment. To say that a court has power, during the term, to modify or set aside its judgments, is one thing — but to say that it has power to do so under all circumstances, irrespective of notice, is another.
On the question of requirement of notice in change of custody proceedings we are unable to state the general rule with more clarity than was done in the recent case of Bailey v. Bailey, 164 Kan. 653, 192 P. 2d 190, where it was said:
“Where in an action for divorce and custody of a minor child the trial court made its order fixing such custody, and at a later date a proceeding is instituted to change such custody, the court may make such an order only where the person having custody or right to custody of the child under the original order has had notice of the proceeding to change custody and an opportunity to defend.” (Syl. 1.)
It is true the change of custody proceedings in that case were at a subsequent term, yet the rule there announced is sound and we adhere to it, and particularly where, as here, even though all proceedings were had during the term, the motion was based on entirely new facts and evidence.
A number of other propositions are discussed in the briefs of both parties. All have been noted and considered but in our view of the case a discussion of them is unnecessary.
From what has been said it follows that the lower court had no power or authority to make the order of change of custody and support of February 25, 1950, and erred in its order of November 25, 1950, denying plaintiff’s motion to vacate and set aside such former order.
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The opinion of the court was delivered by
Parker, J.:
This was an action by a real estate agent to recover compensation from the owner for procuring a purchaser who was ready, willing, and able to purchase land in accord with the terms of an oral listing agreement. The plaintiff recovered and the defendant appeals.
With issues joined by pleadings not in question this cause came on for trial by a jury which, after the trial court had denied defendant’s request for an instructed verdict, returned a verdict in favor of plaintiff. Thereafter, the trial court overruled defendant’s motion for a new trial based upon grounds, among others, the refusal to submit the instruction for a directed verdict as requested was erroneous and that the verdict was not sustained by sufficient evidence and was contrary to the evidence. It then rendered judgment in accord with the verdict. Thereupon defendant perfected this appeal wherein he seeks a reversal of the judgment under specifications of error charging that the trial court erred in refusing to instruct the jury to return a verdict in his favor and in denying him a new trial.
Factual features of the case not in dispute can be briefly summarized and stated thusly:
Sometime in the fore part of 1949 L. W. Milford who was a resident of Finney county and owned a section of land located in Kearny county listed such property with E. D. Krehbiel, and several ' other real estate dealers of the community, for sale at a price of $48,000. Krehbiel had a daughter, Mildred Gustad, who was associated with him in his business as a realtor. She contacted Mrs. E. B. Beiderwell of Garden City as a prospective purchaser on the morning of Friday, January 13, 1950. Mrs. Beiderwell indicated she was interested in purchasing the land. Later in the afternoon of the same day Mrs. Gustad called Milford and advised him she had a prospective purchaser and asked if he would be available for an appointment on Monday. Upon receipt of an affirmative answer she said “Well I’ll see you Monday,” but made no definite appointment at that time. On the afternoon of Sunday, January 15, Mrs. Gustad, who in the meantime had had no further contact with Mrs. Beiderwell, had a second telephone conversation with Milford. At that time she advised him it was going to be necessary for her to be out of town on Monday and suggested an appointment for Tuesday. Mrs. Gustad then left Garden City for Wichita returning to Garden City about 4 o’clock on the afternoon of Monday, January 16. She immediately called Milford and was informed the land had been sold to another buyer earlier in the day. She then called Mrs. Beiderwell who advised her to the same effect.
So much for the undisputed evidence. Mrs. Gustad’s testimony to the effect she notified Milford in their second telephone conversation that the people she had contacted were not fooling around but were going to buy is controverted. However, she so testified and the trial court approved the verdict. Therefore, under the established rule (See West’s Kansas Digest, Appeal & Error, §§ 1002 and 1005[3]) a verdict on conflicting evidence will not be disturbed on appeal, that fact must be regarded as established for present purposes.
We turn now to evidence touching the status of Mrs. Beiderwell as a prospective purchaser who was ready, willing, and able to buy the land in question at the listed price. As we do so it should be noted that during the trial the parties stipulated she was able to buy. Thus we come to the only serious conflict between the parties regarding the facts disclosed by the evidence. Appellee contends the record discloses evidence establishing that he had procured a purchaser who was ready and willing to buy at the listed price and that appellant had been notified of that fact. On the other hand appellant insists there is nothing whatsoever in the evidence to sustain that contention. Let us see. A review of the record touching , matters pertinent to a decision of the wholly irreconcilable positions of the parties on the point in question reveals that Mrs. Beiderwell did not testify as a witness and that the only evidence with respect thereto is to be found in statements made by Mrs. Gustad and in what the appellee seeks to construe as admissions made by appellant.
In answer to a question respecting the nature of her first conversation with Mrs. Beiderwell, Mrs. Gustad replied:
“A. I called Mrs. Beiderwell and asked her if she was still interested in land. I had talked to her about property at different times. I had an idea that she was interested in some that was close to her property, to her land. She said ‘Yes, I am, if it is close to my land.’ I said ‘Well, this is very close.’ She said ‘Where is it?’ I gave her the legal description and she said ‘Well, now, where is it?’ I said 1 will come up to the house and bring an ownership map and I can show you better’, so I went up to her house. I showed her on the map where it was located. She wanted to know the price and I told her. She said ‘I know where that land is; that is a mighty good section, and I sure would like to have it.’ She said ‘Well, I am familiar with it but I want the doctor just to look it over.’ I left my map so they could fly over and look at it. I told her ‘Well, to make sure, now, that it hasn’t been sold I will call Mr. Milford and find out if it is still seventy-five dollars an acre and if it is still available’ and that was about the extent of the conversation with her, other than personal conversation.”
It will be recalled this witness testified she had a telephone conversation with Milford following the foregoing conversation with Mrs. Beiderwell. When asked to relate that conversation she said:
“Well, I called Mr. Milford and told him that I have a very good' — -I asked him first, ‘Is your land still available to sell’ and he said ‘Yes, it is.’ I said ‘Well, is the same price still on it?’ He said ‘Yes’ because it had been changed one time and I wanted to be sure that I knew exactly what I was doing, and he said ‘Yes, it is,’ and I said ‘I have a party that is going to go to Lakin and fly over it over the week-end. She wanted her husband to see it. He is a doctor and they are very busy and I didn’t want them to go over there if the land was not available.’ I asked him if he would be available for an appointment on Monday, if he would be in town Monday, and he said ‘Yes, as far as he knew he would be.’ I said, ‘Well, I’ll see you Monday.’ ”
This same witness stated that in the conversation she had with Mrs. Beiderwell, after the land had been sold, Mrs. Beiderwell told her that she had made an appointment with Milford for 1 p. m. on Monday, January 16th and that she had taken her checkbook with her and was going to close the deal but that after reaching the place fixed by him for the appointment she was informed by his wife the land had been sold and did not see him. Witness also testified that she told Milford in their first conversation that her customer wanted to fly over the land and see it. In addition she stated Mrs. Beiderwell did go and look at the land on Sunday and admitted that she did not see her after she flew over the land until around 4 o’clock on the afternoon of Monday, January 16th.
The evidence respecting so-called admissions on the part of appellant is not lengthy and can be briefly stated. Appellee testified that after he had commenced this action appellant told him that when the parties who finally purchased the land were hesitant about closing the deal he told them if they did not give him what he was asking he had an appointment with another party that would take it. One Atherton, who made the sale, stated that before the deal was finally closed appellant said he had someone else that was looking at the land and if he did not sell it he was going up at 1:30 o’clock and talk to the other — next—prospect.
The record of appellant’s testimony discloses nothing susceptible of being construed as an admission that he had ever been told that appellee had a purchaser who was ready and willing to buy. In fact not once but on several occasions during his examination he stated that Mrs. Beiderwell in requesting an appointment told him that she would like to have a talk with him regarding the section of land in Kearny county that Mrs. Gustad had told her about.
With evidence in substance as heretofore related the court submitted the cause with its instructions as to the applicable law. One of these instructions, No. 7, reads as follows:
“If the defendant prior to the plaintiff’s notifying him that he had a purchaser ready, able and willing to buy, in good faith sold the land to another customer, the plaintiff cannot recover. In order for the plaintiff to recover, the burden is upon him to prove that he obtained a customer who was ready, able and willing to meet the terms offered by the defendant prior to the sale of the land to another, and so notified the defendant of that fact. One giving a real estate broker authority to sell his property upon terms stated, but not expressly agreeing that such real estate agent shall have the exclusive right to sell, retains the right to effect a sale personally or through another agent, and the owner may enter into an agreement to sell which will be effectual at any time before he has actual notice that a purchaser has been procured by the agent who is ready, able and willing to purchase under the terms of the listing.” (Emphasis supplied.)
We are inclined to the view the foregoing instruction was proper and correctly states the law of this state. (See White v. Turner, 164 Kan. 659, 192 P. 2d 200; Helling v. Darby, 71 Kan. 107, 79 Pac. 1073; Haggart v. King, 107 Kan. 75, 190 Pac. 763.) However, we need not labor that point. There was no objection to instruction 7 as given in the court below and, under our decisions (Burns v. Hunter, 126 Kan. 736, 271 Pac. 398; Montague v. Burgerhoff, 152 Kan. 124, 102 P. 2d 1031; Sowers v. Wells, 154 Kan. 134, 136, 114 P. 2d 828; Cruse v. Dole, 155 Kan. 292, 298, 124 P. 2d 470; Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 139 P. 2d 859), it became the law of the case. Nor is there any occasion, after setting forth all the testimony touching on the point, to enter into an extended discussion as to the import to be given the evidence. It suffices to say that when carefully analyzed the evidence adduced at the trial and presented in the record before us fails to disclose that, prior to its sale, appellee had notified appellant he had procured a purchaser who was ready and willing to buy the land in question under the terms of his listing agreement prior to its sale but also fails to reveal that he had actually procured such a purchaser. Under the instruction to which we have referred, evidence to sustain both points, was a necessary prerequisite to the return of a verdict or the rendition of judgment against appellant in the action.
It follows the trial court should have sustained appellant’s motion for a new trial. The judgment is reversed with direction to grant a new trial. | [
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The opinion of the court was delivered by
Burch, J. :
In the sale of an insurance business, involving the transfer of agencies from the vendors to a vendee, a renunciation of further activity in such business on the part of the vendors, and the future patronizing of the vendee with such business of that character as they might have at their disposal, a written contract between the parties provided as follows :
“Said first party further agrees to turn over to said second, party the expiration register owned by the firm of Winne & Winne, and to defend any suits that may be instituted by any person for the recovery of same, should litigation ensue.”
The negotiations concluded with a bill of sale in the following terms :
“Know all men by these presents, that in consideration of three thousand and J}g dollars, the receipt of which is hereby acknowledged, we do grant, sell, transfer and deliver unto John M. Kinkel, heirs, executors, administrators, and assigns, the following goods and chattels', viz. :
“One expiration register and the good-will and fire-insurance business of the firm of Winne & Winne..
“To have and to hold all and singular the said goods and chattels forever; and the said grantors hereby covenant with the said grantee that they are the lawful owners of the said goods and chattels ; that they are free from all encumbrances; that they have good right to sell the same as aforesaid, and that they will warrant and defend the same against the lawful claims and demands of all persons whomsoever.”
Part of the consideration was the promissory notes of the purchaser. In a suit upon certain of them in default, a failure of consideration was claimed because the expiration register had been wholly or extensively copied, whereby a rival agency became possessed of the information it imparted. It was not contended that the vendors were in any way privy to such copy or had any knowledge of it at the date of sale. To prove damages, the purchaser offered a witness to show the value of the expiration register of the insurance business of Winne & Winne, as an exclusive list, and the value of such register with a copy thereof extant. The court sustained an objection to the proposed proof and withdrew the defense from the jury. Was this error ?
It is said by plaintiff in' error that the title to the expiration register partially failed because the book had been inspected and its entries transcribed. This, however, presents a flagrant non-sequitur. The reason is wholly inadequate as a guaranty of the assertion. The ownership of a book does not depend upon whether or not it has been read or duplicated. Dominion over it may be complete and absolute even though it may have informed the minds of multitudes. So in this case plaintiff in error owns the book and holds possession of it unvexed by the assertion of any hostile interest in it or title to it whatever.
It is next urged that the quality of the article is not what plaintiff in error assumed it to be, namely, an exclusive record of the matter exhibited by the book. To recover on this ground it is necessary to read into the written contract an agreement that the register contained the sole list of the Winne & Winne insurance expirations. Plainly this cannot be done. Express covenants are written out in full in the instruments of sale and these define the limits of the vendor’s liability. Without some representation as to the quality or character of the register or as to the privacy of the information to be imparted by it, on which the purchaser relied and by which he was deceived, and without an express warranty, the rule of caveat emptor applies. There is no relation of trust and confidence between buyer and seller. The purchaser takes at his own risk as to quality and fitness. When title passes he has all the vendor engaged to give him and the courts cannot make another contract for him.
Plaintiff in error, however, seeks to interpose an implied warranty of fitness for a specific purpose, that of prosecuting the business of insurance, which was in the contemplation of the parties at thq time of the sale, and Shaw v. Smith, 45 Kan. 334, 25 Pac. 886, 11 L. R. A. 681, is cited in support of his right soto do. In that.case the purchaser applied to a dealer to furnish him flaxseed for the purpose of raising a crop. The vendor had no flaxseed on hand and undertook to supply the purchaser’s requirements. When the seed was delivered it appeared to be good, and was believed to be good by both parties, but, in fact, had lost its germinativo power. It was therefore held that under the circumstances a warranty might be implied that the seed should be sufficient for the purposes of sowing and raising a crop from it. That case, however, was merely one of a familiar' class in which the vendor undertakes to exercise his skill and judgment in the selection of an article appropriate to the vendee’s needs, after the latter has trusted him to do so. The underlying principle of the decision is expressed in the following language from the opinion :
“The purchaser had to rely upon the seller’s furnishing to him the kind of seed agreed upon, and the seller in effect agreed that the seed furnished should be the kind of seed agreed upon.”
In Leake on Contracts, second edition, 404, this rule is stated in a very luminous way :
“If an order be given for the manufacture or supply of an article to satisfy a required purpose, that purpose, and not any specific article, being the essential matter of the contract, the seller is then bound, as a condition of the contract, to supply an article reasonably fit for the purpose, and is considered as warranting that it is so. If an order be given for a specific article of a recognized kind or description, and the article is supplied, there is no warranty that it will answer the purpose described or supposed, although intended and expected to do so.” (See Goulds v. Brophy, 42 Minn. 109, 111, 43 N. W. 834, 6 L. R. A. 392.)
To the same effect is the classification of Mellor, J., in Jones v. Just, L. R. 3 Q. B. 196, 202:
“First, where goods are in esse, and may be inspected by the buyer, and- there is no fraud on the part of the seller, the maxim caveat emptor applies, even though the defect which exists in them is latent and not discoverable on examination, at least where the seller is neither the grower nor the manufacturer : Parkinson v. Lee, 2 East, 314. The buyer in such a case has the opportunity of exercising his judgment upon the matter ; and if the result of the inspection be unsatisfactory, or if he distrusts his own judgment, he may, if he chooses, require a warranty. In such a case, it is not an implied term of the contract of sale that the goods are of any particular quality or are merchantable.
“Secondly, where there is a sale of a definite existing chattel specifically described, the actual condition of which is capable of being ascertained by either party, there is no implied warranty: Barr v. Gibson, 3 M. & W. 390.
“Thirdly, where a known, described and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still, if the known, described and defined thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer : Chanter v. Hopkins, 4 M. & W. 399 ; Ollivant v. Bailey, 5 Q. B. 288 (E. C. L. R., vol. 48).
“Fourthly, where a manufacturer or a dealer contracts to supply an article which he manufactures or produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is in. that case an implied'term or warranty that it shall be reasonably fit for the purpose to which it is to be applied : Brown v. Edgington, 2 Man. & G. 279 (E. C. L. R., vol. 40) ; Jones v. Bright, 5 Bing. 533 (E. C. L. R., vol. 15). In such a case the buyer trusts to the manufacturer or dealer, and relies upon his judgment, and not upon his own.
“Fifthly, where a manufacturer undertakes to supply goods manufactured by himself, or in which he deals, but which the vendee has not had the opportunity of inspecting, it is an implied term in the contract that he shall supply a merchantable article: Laing v. Fidgeon, 4 Camp. 169, 6 Taunt. 108 (E. C. L. R., vol. 1).”
So in Mason v. Chappell, 15 Grat. 572, 583, a purchaser ordered 150 barrels of a manure called “Chappell’s fertilizer,” which proved defective. In an action for breach of warranty against the vendor, the court said :
“If the plaintiff, relying on.the defendant’s skill And judgment, had applied to him to furnish a manure which would produce such effects as are attributed to ‘Chappell’s fertilizer,’ withóut specifying what particular kind of manure he wanted, and the defendAnt had accordingly furnished an article which, instead of producing such effects, proved to be entirely worthless, there would be good ground for the proposition that there was an implied warranty from which liability would arise. ...
“But where a specific article i-s ordered and furnished, the law is well settled that, although the purchaser states the purpose to which he intends to apply it, there is no implied warranty on the part of the vendor that it is suitable for the purpose ; and he will not, in the absence of fraud or an express warranty, be held liable, however unfit and defective it may turn out to be.”
See, also, Deming v. Foster, 42 N. H. 165 ; Bartlett v. Hoppock et al., 34 N. Y. 118, 88 Am. Dec. 428; Mc- Donough v. Jolly Bros., Appellants, 165 Pa. St. 542, 30 Atl. 1048 ; Wisconsin Red Pressed-brick Co. v. Hood, 54 Minn. 543, 56 N. W. 165 ; McQuaid v. Ross and another, 85 Wis. 492, 55 N. W. 705, 22 L. R. A. 187, 39 Am. St. Rep. 864.
In the present case the purchaser did not apply to the vendors for the talisman of a successful insurance business, or for a magic weapon or device with which to confound and rout his rivals and competitors, nor did he depend on them to furnish him with such a-precious piece of property. He simply bought a fire-insurance business as it then stood, including the records pertaining thereto as they then presented themselves. The proposition was not: “Sell me a. list of expirations knqwn to no other living'person ” it simply was: “Sell me this list now open before us.” The case therefore falls within the principle of Lukens v. Freiund, 27 Kan. 664, 51 Am. Rep. 429, in which a vendor had on hand an article which he desired to sell. The purchaser finding it there bought it. There being no representation or express warranty relating to character or quality, the vendor was not liable.
Nor was the expiration register a part of the goodwill of the Winne & Winne business, as plaintiff in error suggests. It was a specific item of personal property, distinguished from good-will by the terms of the contract. But if it were comprehended under the term “good-will” the purchaser has it. There was no representation or warranty as to the extent of the good-will bargained for. The expiration register was designed to point out the source of possible business in the future. This office it continues to perform.
A question of damages argued in the brief of plaintiff in error was determined adversely to him by the jury upon sufficient evidence. It therefore needs no further . consideration; and, because of the view here taken of the right of plaintiff in error to recover at all, it is not necessary to examine the method adopted by him in the proof of damages.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
A. J. Holmquist sought to enjoin the officials of the city of Salina from making certain improvements and imposing the cost upon the property affected. A demurrer to his original petition was properly sustained because the action was brought before th§ cost was apportioned or any amount was laid against the plaintiff’s property. (Mason v. Independence, 61 Kan. 188, 59 Pac. 272; Kansas City v. Smiley, 62 id. 718, 64 Pac. 613.) Afterward, during the pendency of the action, the amount due against his property was ascertained, and more than thirty days later plaintiff filed a supplemental petition setting out this fact. The commencement of tbe cause of action stated in the supplemental petition dates from the filing of that pleading and not from the filing of the original petition (A. T. c& S. F. Rld. Co. v. Schroeder, 56 Kan. 731, 44 Pac. 1093), and this action was therefore brought too late. (Glen. Stat. 1901, §1016; Wahlgren v. Kansas City, 42 Kan. 243, 21 Pac. 1068.)
The judgment, is affirmed. | [
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The opinion of the court was delivered by
Cunningham, J. :
The day following the death of President McKinley, in September, 1901, plaintiff, in the presence of several citizens of Freeport, Harper county, used language relative to the president which angered those who heard it and the members of the community to whom it was communicated. Soon thereafter a notice, signed by the defendants, was served on the plaintiff, the same being as follows :
“notice.
“September 15th.
“The person in this township who made remarks this morniug derogatory to our late beloved president is invited to pack his grip and leave this township at once, as we will tolerate no one among us who re joices in the death of our president by assassination, or any one who sympathizes with anarchists.”
Damage was sought in this action for defamation of character by reason of the language, employed in this notice. The jury found in favor of the defendants, and judgment was rendered against plaintiff for the costs of the action.
The first assignment of error arises upon the overruling of plaintiff’s demurrer to that part of defendants’ answer pleading justification. The plaintiff, in stating his cause of action, set out said notice with innuendoes as follows:
“The person (meaning thereby this plaintiff) in this township (meaning thereby Silver Creek township, referred to in the first cause of action above set forth) who made remarks this morning derogatory of our late beloved president is invited to pack his grip and leave this township at once, as we will tolerate no one among us who rejoices in the death of our president by assassination (meaning thereby to charge and publicly declare that this plaintiff was or lately had been triumphing and rejoicing in the assassination of President McKinlej?), or any one who sympathizes with anarchists (meaning thereby to charge that this plaintiff was a sympathizer with anarchists, and especially with that detestable anarchist who had then but recently assassinated our lamented president).”
The material portions of the defendants’ answer pleading justification were as follows :
“The language used, and the matter contained in the paper attached to the plaintiff’s petition in this action, which said language and matter is charged in said second cause of action to be defamatory to the plaintiff, is true, in this : That on or about the 15th day of September, 1901, the same being the day following the death of William McKinley, late president of the United States, the plaintiff, in the presence of and against the protests of a large number of the citizens of Freeport and vicinity, in Silver Creek toivnship, in said Harper county, in answer to and in connection with expressions of grief on the part of the said citizens of Freeport and vicinity over the death of William McKinley, spoke and uttered the following words : ‘ I’d as lief vote for a damned dog as for McKinley. He was no better than a damned dog. Any man who sympathizes with his family has n’t any ■ sense ’; and made use of other words and expressions of like character, and by his demeanor and conduct, as well as by the language that he used, plaintiff showed that he did not in any manner sympathize with the grief felt by the people of Freeport and vicinity as aforesaid, and that in fact he rejoiced in the death- of William McKinley at the hand of the assassin.”
It is now insisted that by reason of the innuendo laid in the petition the defamatory matter set out was that the plaintiff rejoiced in the assassination of the president and sympathized with the anarchist who had committed the crime; that the justification must be coextensive with this charge ; and further, as only the quoted words are counted upon as justification and no facts pleaded which would justify the conclusion laid by the innuendo, that the matters stated in the answer were not coextensive with the matters charged in the petition, and hence were not sufficient to constitute justification. It must be noticed, however, that, in addition to pleading specific words, there was the further averment that by his demeanor and conduct, as well as by his language, the plaintiff showed' that he did not sympathize with the grief of the public upon the assassination of the president, and that as 'a matter of fact he rejoiced therein. No motion to make more definite and certain by stating what these acts were was filed. We are not intimating that one should have been sustained if filed.
Many indescribable, but very expressive, acts may be committed, serving to emphasize and give character to one’s words, that cannot adequately be put upon paper. A look of the eye, a toss of the head, a gesture or posture might give very much of added meaning to a phrase and real import to a word, which would more easily be determined by seeing the speaker and his actions at the time the word was uttered than merely by reading the same from cold type or irresponsive writing. A phrase with one inflection or with one expression might carry to its hearer one meaning, while the same phrase with another inflection and expression might carry to its hearer an altogether different meaning. Here, the sting of the defamatory matter charged is found in the innuendo ; that is to say, in the allegation that by the use of the language in the notice the defendants intended to charge that the plaintiff entertained the reprehensible sentiments mentioned in the innuendo. The justification is that those who heard the words understood them, by reason of the demeanor and conduct of the plaintiff, in the way the innuendo alleged the defendants used them. With this view, it seems to us that the justification pleaded was as broad as the libelous matter contained in the notice, as explained by the innuendo. To be sure, the defendants did not plead in words that would justify the conclusion that plaintiff rejoiced in the death of the president or sympathized with the assassin, yet they did plead that, accompanying the words which he uttered, were acts and conduct such as warranted those hearing the words in believing that he did so rejoice and sympathize. We think the demurrer was properly overruled.
It is next claimed that there was not sufficient in the proof, and this because the defendants did not, prove all of the language which their answer claimed the plaintiff used. Upon this point the principal witness for the defense testified concerning what plaintiff said: “I heard some one making the remark, ‘I would just as soon vote for a God damn dog as William McKinley.’” Whereupon witness replied to the plaintiff: “Young man, you ought not to use such language at this time, with our president lying dead.” To which plaintiff replied : “By God, I said it, and I am here to back it up.” Witness answered : “You ought to be drummed out of the county, to use such language.” Plaintiff replied: “By God, there are not enough men in town to do it.” Witness replied : “You insult every man, woman and child in the United States, using such language at this time.”' Whereupon plaintiff madé the remark: “Any man that would be insulted at that was a damned fool, and did n’t have any sense.”
Another witness testified that he was told by this same witness in the presence of the plaintiff that plaintiff had said: “I would as soon vote for a damned black dog' as vote for William McKinley.” There was considerable other evidence as to the violent character and tone of these expressions by the plaintiff, and his unseemly conduct on that occasion. In view of the fact, as we have already noted, that the gravamen of the defamatory matter consisted in as-scribing to the plaintiff a condition of mind that - caused him to rejoice at the death of the president and to sympathize with his assassin, rather than in the utterance of the words exactly as charged in the answer, we are satisfied that the proof approached near enough to the allegations of the answer to be submitted to the jury.. It was for them to say, upon all of the evidence, both as to the words used, the conduct, acts and looks of the plaintiff, whether he entertained the sentiments ascribed to him by the defendants as alleged in the answer.
Complaint is made that the defendants filing sepaate answers were permitted to exercise each for himself peremptory challenges in the making up of the jury. The record shows that defendants each and all demanded that they be permitted to challenge three jurors-peremptorily, and the court ruled:
“Thereupon it is decided by said court that said defendants Louis Pohl and H. A. Thomas be permitted to challenge three jurors peremptorily, and that the remainder of said defendants as a body be entitled to challenge three additional jurors peremptorily, in the impaneling of the jury/’
This ruling was excepted to by the plaintiff, but we find no indication anywhere in the record that defendants availed themselves of the privilege to which the court thought they were entitled ; in other words, if the court erred in the matter, which we do not decide, it is not shown that the error was availed of by defendants.
It seems that after the commencement of the action plaintiff, then being in Illinois, wrote to one of the defendants offering to settle the matter for $260. This letter the court permitted defendants to introduce in evidence. This action is alleged as a ground of error. We hardly see the relevancy of the letter, or why the court permitted it to go to the jury, but we are equally at a loss to see how it affected the plaintiff deleteriously. To be sure, the general rule of evidence is that an offer to compromise, if it appears, that the- same was made and received as such, may not be put before the jury to the prejudice of the one offering, as the law desires to promote the adjustment'of difficulties without resort to the courts. Here, however, it does not appear that defendants understood this to be an offer of compromise. If they had, the introduction o‘f the letter could not have served to reduce the amount of plaintiff’s damages, inasmuch as he was given no damages, not even the amount he offered to accept, and, hence, it was not prejudicial to him.
Complaint is made that the court copied the pleadings practically verbatim in its instructions, and committed error under the rule announced in Meyer v. Reimer, 65 Kan, 822, 70 Pac. 869, and Stevens v. Maxwell, 65 id. 835, 70 Pac. 873. But we find that in addition to thus copying the pleadings he did also what is recommended in the cited cases — summarized the issues made by the pleadings, and directed the attention of the jury to the material questions involved. Probably the copying of the pleadings in extenso was unnecessary, but not harmful.
We do not think that any useful purpose will be served by a discussion of the questions raised upon the instructions given and refused. The disposition already made of the questions herein largely dispose of the queries thus raised.
There are two causes of action contained in the plaintiff’s petition — one for the frightening away from his home by means of the notice served on him, and one for defamation of character. The court, in submitting the case to the jury, permitted the defendants to request separate findings as to the amount of damages awarded in each of these causes of action and give the amount for each separate item. It is claimed that this was error. Without stopping to discuss whether or not it might have been, had any damage been awarded, it is very clear that plaintiff suffered no prejudice from this action, for the jury were not called upon to make any separation of the items of plaintiff’s damage because they found he was entitled to no damages whatever.
Upon the whole case we find no prejudicial error; hence the judgment, will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, G. J.:
The first contention is that there was error in the holding that the plaintiffs were under legal obligation to secure an extension of the Bowman note and mortgage in behalf of John J. Kunkel. In the covenant agreement incorporated in the deed made by- the Leises to Kunkel, they recited an assurance that they were the owners of the property conveyed, and were seized of a good and indefeasible title, free and clear from all encumbrances, except the Bowman mortgage. As to that, it was stipulated: “Which mortgage they hei'eby guarantee may and shall be extended, if desired by said party of the second part, at a rate of interest not to exceed six per cent, per annum, any excess of said rate to be paid by the first, party.” In the mortgage given at the same time by Kunkel to Leis for the unpaid portion of the consideration for the property, the guaranty was referred to as follows: “And it is also subject to the guaranty made by said Lillian R. Leis and George Leis, her husband, in their warranty deed of said property of even date herewith, made to said J. J. Kunkel.”
It is argued, first, that the agreement to extend is so ambiguous and uncertain as to be unenforceable. It is definite as to the parties and the subject-matter. It positively fixes the rate of interest to be paid by Kunkel in case of the extension, and definitely provides that all excess of that rate must be paid by the Leises. The only uncertainty of the agreement is as to the time of extension. Some time was manifestly within the contemplation of the parties, an'd as the right of extension was at the option of Kunkel, it is not unreasonable to infer the intention to have been that the duration of the extension should be likewise at his option, within a reasonable time. In Atwood v. Cobb, 16 Pick. 227, 26 Am. Dec. 657, where no time was fixed for performance, Chief Justice Shaw remarked :
“As to the uncertainty of the time at which the agreement is to be executed, the case is c ear, that wh9re on an executory contract a party stipulates to do some act, and no time is limited, it is to be done within a reasonable time, and, therefore, the want of any stipulation to that effect does not render the instrument void.”
Ambiguous terms and doubtful stipulations may be interpreted by courts in the light of extrinsic and surrounding circumstances, but, of course, no testimony can be received which will alter or contradict the terms of an agreement. Testimony was received explanatory of the purposes and objects of the parties in executing it, and some of it may have trenched on the rule admitting parol testimony to affect a written agreement. However, if it were assumed that the agreement was so uncertain as to be defective, it was not necessary to support it by parol testimony in order to make it effective. The defects, if any, were cured by the action of the parties in recognizing and ratifying it. They contended in the court below, and are contending here, that they complied with this part of the agreement. Aside from an ineffectual attempt to obtain an extension through H. C. Bowman, it was shown in the testimony, and found by the court, that after Kunkel had himself obtained an extension and had brought it to the attention of plaintiffs, the latter paid the excess of interest in accordance with the stipulation in the agreement challenged. In that way they ratified and confirmed the agreement and cured whatever of invalidity there was in it.
The next contention is that there was error in the finding that the Leises had not complied with their contract to procure an extension of the Bowman debt. When Kunkel notified George Leis that he desired an extension or renewal of the note for five years, the latter opened negotiations with H. O. Bowman, the original mortgagee, for an extension, and did secure from him a verbal agreement to extend the note for a short time at eight per cent, interest. This action, however, was not effectual and cannot be regarded as a compliance with the agreement. Aside from the fact that it was a verbal arrangement, it was made with one who no longer owned the note and who had no right to extend it. More than that, the arrangement, such as it was, was not brought to the attention of Kunkel, who for his own protection procured Sinclair to take care of the paper for a short time at ten' per cent, interest. Later it passed into the hands of W. C. Beardsley, of New York, and he was induced to renew the paper for five years, at six per cent, interest, upon the payment to the agent of a commission of $350. Nor can we say that the offer of Leis to purchase the note from Sinclair, and the refusal of Sinclair to assign it, operated as a compliance with the agreement to extend, or as a release of the Leises. Sinclair was willing to accept payment of the debt, but not to assign it. He was under no obligation to make an assignment or transfer of the note ; and, aside from these considerations, the Leises recognized the continuing force of the agreement by later paying the excess of interest on the extension which had been obtained.
Under the reciprocal agreements between these parties, their conduct in confirming the agreements and in acknowledging their obligations, there is no room for the application of the doctrine of suretyship or to claim a release of plaintiffs’ liability because an extension was obtained without their-consent. Nor is there ground for reversal in the deduction of the amount paid by Kunkel as commission on the extension. Plaintiffs specifically bound themselves to obtain an extension, and as they failed in that respect Kunkel was justified in obtaining it, and the cost or charge incurred in procuring an extension in excess of six per cent, per annum was properly chargeable against the plaintiffs. The terms of the extension may not have been the most advantageous that could have been obtained, but it was found that Kunkel acted in good faith and made what he believed to be the best contract he could make in the matter of extension. It appears that an extension could have been obtained through Bowman at a rate of eight per cent, per annum , but if the charge designated as commission is added as interest and distributed through the fiyeyear period, it will be found to be less than the eight per cent, which might have been obtained through Bowman. Under the circumstances, we think it was equitable to require the payment of this charge, which was no more than the extra cost of the use of the money which plaintiffs had agreed to pay.
The statute of limitations referred to is not properly in the case and requires no attention.
We find no errors in the rulings of the trial court, and therefore its judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
It is first contended that the action should have been brought by Frank J. Nicholson, the creditor, instead of by the administrator de bonis non; that section 181 of the act in relation to executors and administrators (Gen. Stat. 1901, §2987) expressly provides for such action by a creditor upon the bond of a defaulting administrator, and that that provision in effect excludes the theory that it can be brought by the administrator de bonis non. The action was brought under section 26 of the act on executors and administrators, which is as follows ;
“An administrator appointed in place of an exocu tor or administrator who has resigned, been removed, ■or whose letters have been revoked, shall be entitled to the possession of all the personal effects and assets •of the estate unadministered, and may maintain an action against the former executor or administrator and his sureties on the administration bond, and for all damages arising from the maladministration or ■omissions of the former executor or administrator.” .(Gen. Stat. 1901, §2831.)
In this section there appears to be express authority for the bringing of the present action by the administrator de bonis non. Under section 181, each creditor whose claim has been allowed and not paid upon demand may bring an action on the bond of an .administrator who has neglected to pay the claim, and this whether such administrator is in or out of office, while section 26 allows the administrator de bonis non to maintain an action on the administration bond to recover the unadministered assets and also •damages for the maladministration and omissions of his predecessor. The latter action may be brought •only when the former administrator has resigned, nr been removed, and his letters have been revoked, •and it is brought by the administrator de bonis non for the benefit of all creditors and of every one else interested in the estate.
It is argued, however, that there were no unadministered assets in the hands of Leonard when he absconded ; that such assets are cbnfined to goods which remain in specie and to money received and kept by itself; that it does not include money derived from •the sale of assets and mingled with the administrator’s own money, and that, as there was no property •on hand and Leonard had no money except such as was mingled with his own, there was nothing which the administrator de bonis non could recover in this action.
The common-law rule on which the surety company insists is not applicable under our statutes and the modern doctrine of administration. A mere change in the form of the assets made by an administrator does not bar his successor from acquiring possession of the assets and proceeding with the administration. As a general rule, property of every kind and form in the hand's of the former administrator, including the proceeds of property sold, passes to his successor, y?ho may maintain an action to recover the same, or upon the official bond of the predecessor. The question was considered in Musick v. Beebe, Adm’r, 17 Kan. 47, where it was held that an administrator is chargeable with the value of the use of property belonging to the estate and used by him for his own benefit, and also with money received by him on the sale of property of the estate; and that an administrator de bonis non, in pursuance of the authority of section 26, may recover therefor against such former administrator and his sureties.
This section of our statute is similar to an Ohio statute, and is said to have been borrowed from that state. The supreme court of Ohio gave an early interpretation to the provision, holding that personal effects and assets of an estate unadministered included the indebtedness of a resigned administrator on account of assets received and converted to his own use, as well as such effects and assets that remained ,in specie, and that the same could be recovered by an administrator de bonis non in an action on the administration bond. It was further held that “the assets of an estate are not regarded as administered until they have been collected and applied as required by law or the will of the testator.” (Slagle v. Entrekin, 44 Ohio St. 637, 10 N. E. 675, and cases cited.) We think the action was rightly brought under section 26, and that a recovery could be had for the unadministered assets and for maladministration.
The next contention is that the district court erred in assuming jurisdiction in the case, there having been no final accounting by Leonard in the probate court, and reference is made to Stratton v. McCandless, 27 Kan. 296, and Hudson v. Barratt, 62 id. 137, 61 Pac. 731. Those cases, in effect, hold that where an administrator is still acting,' the estate is unsettled, and the probate court has complete and ample jurisdiction over the administrator and the estate, no occasion exists for resorting to the equitable jurisdiction of the district court and that parties should proceed to a conclusion in the probate court. These authorities do not apply here. Leonard is no longer acting as administrator. He absconded with the assets of the estate and is beyond the jurisdiction of the probate court and the reach of its process. He has been removed for unfaithfulness, and by an order has. been required to turn over all assets of the estate not administered and applied as the law requires. Under these circumstances an accounting with him in the probate court is impossible, and an adequate remedy could not be had in that court. It was only by invoking the equitable jurisdiction of the district court that the remedies provided for in section 26 in the act relating to executors and administrators could be had.
Complaint is made that there was no allowance by the court for the amounts paid out by Leonard on demands against the estate. Some claims were paid by him out of the proceeds of the property, but it was done without the authority or approval of the probate court. The assets of the estate which he sold for $404 were covered by Nicholson’s mortgage. It was Leonard’s duty to pay this claim before paying any other, and his failure properly to apply the money as the law requires is maladministration, for which he and the sureties on his bond are liable. As has been already said, “the assets of an estate are not regarded as administered until they have been collected and applied as required by law.” His failure and default required the appointment of an administrator de bonis non, and the expense of the further administration occasioned by his default is something for which he and the sureties on his bond are liable. The amount of this additional expense cannot be known until the closing up of the administration. The trial court gave judgment against the sureties for the full amount received by Leonard for the mortgaged property, together with the accumulated interest thereon. To that extent, at least, there was a liability upon the bond; and if for any reason the money misapplied and improperly paid out and the expenses of administration made necessary by the default should not equal the amount of the recovery upon a final adjudication in the probate court, that tribunal can order the return of the balance to the surety company.
The final contention is that by the refusal of Piatt to allow the surety company to prosecute error from the judgment in the Nicholson case such judgment is not conclusive on the surety company, and operates to release it from liability. It is a rule of law that where a party is responsible over to another, as, for instance, where the relation of indemnitor and indemnitee exists, and such responsible party is notified of the pendency of a suit and requested to take upon himself the defense of it, he has the right to appear and defend, and where there is such notice and he has been given an opportunity to participate and de fend, the judgment rendered will be conclusive upon him. It does not appear that any notice of the pendency of the Nicholson suit was given by Piatt to the surety company, nor is it shown that the company employed an attorney to defend the Nicholson case or furnish any money towards the defense of that action in the district court. There was a demand made, it is true, after judgment was rendered in the district court for permission to prosecute error from that judgment ; but there is a dispute in the testimony as to the negotiations between the parties in respect to the proposed review. There is nothing, however, to show any fraud or bad faith in the refusal to take the case to a higher court. In view of the proceedings in this case, the question of demand for a review is no longer material. Such demand can only go to the question of whether the judgment rendered in the Nicholson case is conclusive upon the surety company in this case, or whether it is only deemed to be prima facie correct and subject to attack by the surety company. There has been in fact no attack upon the validity of the judgment, and besides, all the evidence-produced in the Nicholson case, showing the rights-of Nicholson and the liability of Leonard, the defaulting administrator, was introduced in this case at the-instance of the surety company. That evidence abundantly proved that Nicholson had a lien on the property of the estate and fully established the validity and binding force of the judgment.
Finding no error, the judgment of the district court will be affirmed. •
All the Justices concurring. | [
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Per Curiam:
One of the justices being disqualified to hear this cause, and the six others being divided in opinion, the judgment of the court below will be affirmed.
Cunningham, J., not sitting, having been of counsel. | [
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Per Curiam:
There are no complaints to the giving or refusing of instructions nor to the admission or rejection of evidence. The only error complained of is that the evidence does not support the general finding. Our attention is not directed to any particular fact upon which the evidence is essentially weak, and it appears that there is some competent evidence tending to prove the material facts nec'essary to entitle the plaintiff to recover.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
The present appeals present the single question whether the trial court erred in denying a motion for a new trial in two actions consolidated for trial and arise out of the following.
All of the lands here mentioned are in Range 35 in Kearny County. There is a drainage canal at some undisclosed location north of the southeast corner of Section 29, Township 23. From that canal a lateral ditch, referred to as lateral 9, extends south along the east side of Section 32, in Township 23, and the east side of Section 5, in Township 24. At the southeast corner of Section 5 is a diversion box and water is conducted south along the west side of the North Half of Section 9 to irrigate the Southwest Quarter of Section 9, and there is also a lateral along the north side of Section 9 extending east about three-fourths of a mile and then south to irrigate the Southeast Quarter of Section 9. Charles Bentrup owned Section 5 and the North Half of Section 9, in Town ship 24, and August Kettler owned the Southwest Quarter and Armin Kettler owned the Southeast Quarter of Section 9. It is here noted that Bentrup’s right to irrigate his land in Section 9 is not involved in the actions mentioned.
In view of the contention of error the pleadings are much summarized.
Bentrup commenced an action against the Kettlers alleging his ownership of lands as above set forth, the construction of lateral ditch 9 and that for more than twenty years he had used the lateral to irrigate his lands; that in October, 1947, while he was using water from the lateral, the Kettlers, at a point near the northeast corner of Section 5 turned all of the water in the lateral onto their own lands and deprived him of the use, and now assert a right to cut off the water from Bentrup at that point and unless restrained, would continue to take water belonging to him and he prayed that they be enjoined from interfering with his use of the lateral. For present purposes, it may be said the Kettlers denied generally.
Sometime after Bentrup commenced the action above mentioned, the Kettlers commenced an action against Bentrup, alleging their ownership of the lands as above noted, the construction of irrigation ditches and lateral ditches, and that Bentrup had built a drainage ditch along the north line of Section 5 about two years prior to the bringing of the action and drained seepage waters from Section 5 into lateral ditch 9 along the east side thereof and had unlawfully cut the banks of lateral ditch 9, and that the Kettlers had repaired the banks; that Bentrup had again cut the banks to permit seepage waters to drain into lateral ditch 9; that Kettlers had requested Bentrup to desist from damaging the banks of the lateral ditch 9 and he refused; that the irrigation season was about to start and in order to keep alive and raise crops now seeded and growing on their lands they must irrigate the same with waters transported through lateral ditch 9 and it was necessary that the ditch be cleaned, repaired and made ready, which could not be done by reason of Bentrup’s cutting the banks of lateral ditch 9 and permitting seepage waters to run into the lateral ditch; that if Bentrup persisted in so doing, the Kettlers would be unable to irrigate their lands and would suffer irreparable damage and they prayed that Bentrup be restrained. Bentrup’s answer was a denial of the Kettler claims.
On April 5, 1950, by agreement of the parties the two actions were consolidated for trial, a jury was waived and trial was by the court. Subject to the contention later treated, it may be said that each party offered evidence in support of his cause of action, or in defense to that of the other, which evidence we need not review. At no time during the trial did Bentrup make any claim of surprise or that he had other or further evidence nor did he ask for any continuance for any reason. At the conclusion of the trial the court found generally in favor of the Kettlers and against Bentrup and enjoined Bentrup from in any manner interfering with the Kettlers in cleaning, repairing and using lateral ditch 9, and from injuring, damaging or destroying the ditch or any part thereof or from using the ditch for the purpose of conducting waters for use upon and irrigation of Section 5 and from allowing or permitting drainage of surface or seepage waters from Section 5 into the lateral ditch.
Following the judgment Bentrup filed a motion for a new trial on eight grounds, including accident and surprise which ordinary prudence could not have guarded against; that Bentrup was not afforded a reasonable opportunity to present his evidence; and for newly discovered evidence.
On September 20, 1950, this motion was heard, Bentrup produced affidavits of witnesses in support, and upon consideration by the trial court, the motion was denied. On September 27, 1950, Bentrup perfected his appeal to this court from the ruling on his motion for a new trial.
The gist of Bentrup’s contention the trial court erred in denying his motion for a new trial is that he never suspected that the Kettlers would contend that he had not used water from lateral ditch 9 to irrigate a part of Section 5 ever since he had acquired it in 1919, and that he never suspected they would contend seepage water should not run into the lateral ditch. Neither of these contentions is good in view of the record. Our review of the pleadings shows that the issues presented the very questions which Bentrup says surprised him. Insofar as diligence in procuring evidence is concerned, as distinguished from surprise, there is no showing there was diligence. It would only be a waste of space to review here the evidence as originally offered and to demonstrate that there was evidence for and against the claims of each party. We have examined the affidavits offered on the motion for a new trial and the .testimony therein set forth is merely cumulative of that received on the trial of the action. The only decision called to our attention by Bentrup is Turner v. City of Wichita, 139 Kan. 775, 33 P. 2d 335. In that case, where some of our authorities are collected, it was held:
“The granting of a motion for a new trial rests in the sound discretion of the trial court, and in order to entitle a party to a new trial on the ground of newly discovered evidence, it must be shown that it could not have been produced by reasonable diligence, it must not be merely cumulative, and such newly discovered evidence must be such as, with reasonable probability, would produce a different result.” (Syl. ¶ 2.)
Under the rule there stated the trial court did not err and its judgment is affirmed. | [
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Per Curiam:
Barbara Tauer presented a claim to the probate court of Shawnee county, Kansas, against the estate of Sarah Ann Sells, for services rendered to the deceased as companion, nurse, housekeeper, secretary, seamstress and servant from November 1, 1891; until April 25, 1901, under a promise and agreement that the said Sarah Ann Sells would compensate the plaintiff for such services by an adequate provision in her will, which she failed and neglected to do. The case was tried in the probate court to a jury, and after verdict and judgment there appealed to the district court, where it was retried and a verdict and judgment rendered for the plaintiff. In the district court new pleadings were required lo be filed, and a ■ motion to make the plaintiff’s petition more definite and certain was overruled. In view of the fact that a trial had already been had upon the issues presented by the petition in the district court, no prejudicial error was committed in overruling the motion.
In the district court the answer of the defendant admitted the fact that .the will of Mrs. Sells contained no * provision whatever for the benefit of the pláintiff. Upon the trial the will was admitted in evidence, over seasonable objection. Since no issue was made upon its provisions, it was not necessary that this be done, but the proof of a fact admitted by the pleadings is harmless error. (Consaul v. Sheldon, 35 Neb. 247, 52 N. W. 1104; Fitzgerald v. School District No. 20, 5 Wash, 112, 31 Pac. 427; Stepp v. National Association, 37 S. C. 417, 16 S. E. 134; School District v. McComb, 18 Colo. 240, 32 Pac. 424; Benton v. Nicoll, 24 Minn. 221; Chadron Banking Co. v. Mahoney, 43 Neb. 214, 61 N. W. 594; Hawkins v. Pocatello Water Co., 3 Idaho, 766, 35 Pac. 711, 712.)
Unless, therefore, some positive prejudice be shown, the judgment will not be reversed for the admission of the will in evidence. Nothing of the kind appears. The argument that the failure of the Will to make provision for certain persons, supposed to be natural objects of the testatrix’s bounty, might have led the jury to increase the compensation of the plaintiff is purely conjectural and even fanciful. While the will. disclosed to a certain extent an estate of considerable magnitude, it gave no certain evidence of its amount and value, and, even if it did, it was proper for the plaintiff to prove the nature and extent of the interests over which at times she had at least partial supervision in the discharge of her duties. Besides this, the court instructed the jury that the fact that Sarah Ann Sells .may have left a large estate should not control their verdict.
The evidence relating to the plaintiff’s opposition to Mrs. Sells’s marriage to Simon Greenspan, and the latter’s treatment of her, had <a direct bearing upon the controversy in that it furnished a reason why no provision was made for her in the will, thereby tending to overcome the reasonable presumption that Mrs. Sells would have provided for her in the will had she agreed to do so.
The court correctly instructed the jury upon the matter of services which might have been rendered for Allan Sells in the Sells hotel, thereby withdrawing from consideration any testimony which might be construed as relating to services which might have been performed for any one except the plaintiff’s employer.
The fact that Mrs. Sells’s husband might be liable for necessary services rendered to her did not preclude the latter from making any contract which she saw fit in respect to those matters to be compensated out of her own estate.
Statements made by Mrs. Sells to others as to what she proposed to do for the plaintiff by will tended to prove the contract sued upon, concerning which the plaintiff herself was an incompetent witness.
The fact that the jury might be influenced in their verdict because they might not approve the disposition of property made by the will was too remote to require a special instruction. '
No material error was committed in proving the value of plaintiff’s services, or in respect to other matters complained of, and the judgment of the district court is affirmed. | [
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Per Curiam:
This case cannot be considered for two reasons. First, the bill of exceptions does not properly show that it contains all of the evidence submitted, and the questions brought here can only be determined on all of the testimony. (Brown v. Johnson, 14 Kan. 377.) Another reason is that the record brought here shows on its face that the contest court had no authority to allow and Sign a bill of exceptions when it was done. The case was decided on January 12, 1901, in favor of the contesten. An adjournment was then taken until January 19, for the purpose of allowing and signing a bill of' exceptions. At that time the court met, and, the contestee not being ready with his exceptions, another adjournment was taken until January 26. At that time the contestee presented a bill which was found not to be true, and the court directed that certain amendments be made, but the contestee^peremptorily and positively refused to make any amendments, and the court adjourned without day. Later, and on February 9, the court met in- obedience to a writ of mandamus issued by the district court; for the purpose of allowing and signing a bill of exceptions. One was presented by the contestee, and the court, after examining it, required that it be amended in certain particulars, and thus made to speak the truth. The contestee, however, refused to make the amendments, and the court then asked to take the document, so that it could make the amendments for itself; but the contestee took possession of it, declaring that he would not permit the court to make amendments, and he left the court-room, taking the document with him. The court thereupon adjourned without day. After that time, at least, the court was without power to sign a bill of exceptions, and one which has not been allowed and authenticated as the law requires cannot be considered. Either ground mentioned prevents a consideration of the case, and hence the proceeding will be dismissed. . | [
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Per Guriam:
This is an action in the nature of quo warranto to determine whether plaintiff is entitled to hold the office of councilman in the city of Kansas City, Kan. The question involved.is, Does the charter act of ’cities of the first class passed in 1903 (Laws 1903, oh. 122) authorize the election of councilmen in such cities having more than 50,000 inhabitants ? In view of the conclusion reached in Gilbert v. Craddock, ante, page 346,72 Pac.869, we deem it unnecessary to enter into a lengthy discussion of the matter here involved. We are persuaded from all the considerations that it is necessarily inferable from the terms of the act that it was the intention of the legislature thereby to make the office of councilman an elective one. The plaintiff having received a majority of the votes cast for councilman in his ward at the election held on April 7, 1908, is therefore entitled to hold that office.
Judgment will be entered in his favor.
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The opinion of the court was delivered by
Wertz, J.:
This action in replevin was commenced by plaintiffs B. H. Poteet and the Superior Insurance Company, a corporation, against defendant Charles Simmons. Plaintiffs allege in their petition as amended' against defendant Simmons that B. H. Poteet is the owner and entitled to immediate possession of a 1949 Mercury automobile (describing same) and that plaintiff Superior Insurance Company has a special ownership or interest in the vehicle by reason of payment to plaintiff Poteet of the value of the vehicle under its policy of theft insurance covering the automobile; that the described vehicle is wrongfully withheld from plaintiffs by defendant Simmons; and that plaintiffs’ demand for return of the property has been refused by defendant Simmons. The amended petition asks for a return of the property and for damages for its unlawful detention or for the value thereof as alleged. There is attached and made a part of the petition a Texas certificate of title to the automobile issued to plaintiff Poteet indicating the automobile was purchased by plaintiff Poteet from United Auto Sales Co., Dallas, Texas.
The action was commenced in Sedgwick County and appellant McCann Motor Company, Inc., was not made a party by the plaintiffs. The sole defendant Charles Simmons filed an answer in which he alleges that one Jay Brown purchased the automobile from appellant on May 4, 1949, and secured a certificate of title from the state of Kansas, and that on July 7, 1949, the said Jay Brown sold the car to Harry McCandless and Ralph J. Dunn, registered second-hand automobile dealers in Wichita, Kansas; that the said Jay Brown endorsed the original certificates of title in blank to said dealers; that this defendant purchased the car from McCandless and Dunn and the certificate of title was assigned to the defendant and that by reason thereof, the defendant is the owner of said automobile.
Defendant’s answer to plaintiffs’ amended petition was filed on March 22. On April 6, 1950, the defendant filed a motion to make McCann Motor Company, Inc., a party, alleging that said company was a necessary party, and on April 20 the court made an order making the said company a party defendant. On May 3, 1950, defendant Charles Simmons filed what he denominates a supplemental petition in which he seeks damages against the appellant in the event plaintiffs are successful in their suit against him. Defendant’s supplemental petition against appellant alleges that appellant sold the automobile in controversy to Jay Brown on May 4, 1949, and gave an original bill of sale to the purchaser, upon which bill of sale Jay Brown procured a valid Kansas title which was later assigned to the defendant through McCandless and Dunn at Wichita; that the appellant executed an additional bill of sale to the same Jay Brown on the same car on May 7,1949, the only difference being that the address was shown as Dallas, Texas, on the bill of sale dated May 7, and Coffeyville, Kansas, on the bill of sale dated May 4; that on the second bill of sale Jay Brown secured a title from the state of Texas, which title he assigned to the United Auto Sales Co. of Dallas, Texas, which in turn assigned it to the plaintiff, B. H. Poteet. The defendant also states that the Texas title is void but in the event the case is decided against said defendant, that said defendant should be given judgment against McCann Motor Company, Inc., for whatever loss said defendant sustains and in addition for the costs, expenses and attorneys’ fees in the amount of $1,000.00. There is no allegation that the issuing of more than one bill of sale to the same purchaser for the same car was done by appellant for the purpose of misleading or defrauding anyone.
On the so-called supplemental petition for a contingent judgment against McCann Motor Company, Inc., one summons only was issued out of the district court of Sedgwick County to the sheriff of Montgomery County notifying the McCann Motor Company that it had been sued by B. H. Poteet and the Superior Insurance Company; that the suit was brought for recovery of money and that the amount claimed was $2,000.00 and damages in the sum of $1,000.00. The summons was served on the appellant in Montgomery County, Kansas.
Appellant appeared specially and moved to quash the pretended service of summons for the reasons that any action by the defendant Charles Simmons against the appellant must be brought in Montgomery County, Kansas; that the appellant was not a necessary or proper party to the action in Sedgwick County, and the court had no jurisdiction over the appellant in Montgomery County, Kansas; that the appellant was neither plaintiff nor defendant; and that the pretended service of summons was void. This motion was overruled, after which the appellant filed a demurrer on the grounds of lack of jurisdiction, misjoinder of causes of action, and that the supplemental petition did not state facts sufficient to constitute a cause of action against appellant. This demurrer was overruled and the appeal followed.
No special circumstances requiring the aid of equity have been disclosed in this case. The case appears to consist of two separate actions, one brought by the plaintiffs against defendant Simmons to replevin an automobile to which Simmons filed an answer and joined issue by claiming he was the owner. The second action is set forth in a supplemental petition filed by defendant Simmons seeking to recover damages against appellant, who had been made a party defendant on Simmons’ application, apparently on a breach of warranty conditioned on defendant Simmons losing his suit in replevin with plaintiff.
Appellee invites our attention to G. S. 1949, 60-411 and 60-416, which are as follows:
60-411. “Any person may be made a defendant who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of tire question involved therein.” 60-416. “The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, by saving their rights; but when a determination of the controversy cannot be had without the presence of other parties the court or judge must order them to be brought in.”
The petition states no cause of action against appellant, McCann Motor Company, which would make it a necessary party defendant to a complete determination of the controversy involved in this action in replevin. McCann Motor Company claims no right, title or interest in the automobile sought to be replevined, and defendant’s so called supplemental petition against appellant McCann Motor Company does not claim that appellant has any right, title or interest in the automobile sought to be replevined. It is apparent that, appellant not being a necessary or indispensable party to the determination of the issue involved in this action in replevin, it is not material that a cause of action based on the judgment in the replevin action might later accrue to defendant in an action for damages against appellant. (In this connection see Pleifke v. Cline, 149 Kan. 9, 14, 85 P. 2d 996) The rule is stated in 39 Am. Jur. 902, § 35, as follows:
“Necessary parties defendant include those who have such an interest in the controversy that a final decree cannot be made without either affecting that interest or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience — those who are classed as indispensable parties, without whom the court wall not proceed to final decision. . . . Persons may be necessary parties in the sense that their presence in a suit is necessary to the rendition of a judgment or decree which will finally determine all rights and interests involved in the controversy, but if their rights or interests are so separable and severable that a final and just judgment can be rendered settling the right of those who are made parties, then such persons are not indispensable parties. . . . On the other hand, it may be stated as a broad rule that a person may not be made a party defendant against whom no relief is sought and who has no interest that may be affected by any decree or judgment rendered in the controversy.”
In the case of Beeler and Campbell Supply Co. v. Warren, 149 Kan. 135, 86 P. 2d 482, the plaintiff filed an action for the recovery of money against the five defendants. One of the defendants filed a cross-petition seeking affirmative relief against the plaintiff only on a breach of contract between the plaintiff and the one defendant. This court held that as the other defendants had no interest in this part of the controversy, the cross-petition constituted a misjoinder of causes of action; that the transaction was in no manner related to the subject matter contained in plaintiff’s petition and was not in the nature of a defense thereto and was equivalent to a petition brought by the answering defendant against the plaintiff; that the defendant could not have joined the other defendants in an independent action and as the other defendants were not proper parties under the cross-petition, the attempt to join the separate actions constituted a misjoinder of causes of action, and the demurrer thereto was sustained.
As between plaintiffs and defendant Simmons in the replevin action before us, the issue was the ownership and right to possession of the automobile in question. There is no provision in the code of civil procedure, nor any rule of pleading, which would require the court to permit defendant to enlarge the issue so as to recover against a third person the amount of any judgment which might be rendered in favor of plaintiffs and against him, especially where the determination of such an issue requires proof of a series of transactions by such third party in which plaintiffs have no interest. (Smith v. Kagey, 146 Kan. 563, 73 P. 2d 56; Hall v. Hall, 124 Kan. 466, 260 Pac. 645, and cases cited therein)
Defendant Simmons’ cross-action against appellant in which affirmative relief is sought against appellant alone in damages contingent upon plaintiff’s recovery against defendant, which cause of action was entirely unrelated to the plaintiffs’ cause of action to try title and right to possession of the automobile, constituted misjoinder of the causes of action, and appellant’s demurrer to such cross-action was improperly overruled.
The judgment of the lower court is reversed with directions to sustain appellant’s demurrer to defendant’s supplemental petition. | [
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The opinion of the court was delivered by
Pollock, J.':
This is a proceeding byW. H. Stevenson against A. Henley as a stockholder in the Consolidated Barb-wire Company, a Kansas corporation, upon motion to procure an order permitting execution to issue against such stockholder on a judgment recovered by Stevenson against the corporation. The facts, as shown by the record, are that on February 25, 1900, Stevenson procured a judgment against the corporation in the sum of $2875 and costs of action, taxed at $636.45. The nature of the litigation out of which this judgment arose, or the character of the.demand upon which this judgment was obtained, is not disclosed by the record. An execution was issued on this judgment against the corporation and returned nulla bona. This motion for execution against Henley as a stockholder in the corporation was filed April 9, 1901: The matter was heard on an agreed statement of facts, from which facts the court found Henley to be a stockholder in the corporation owning $7000 of the capital stock, and concluded as a matter of law that execution should issue against him for the collection of the judgment and costs. It was so ordered. To review such order this proceeding in error is brought.
The sole question for our determination is, Was Stevenson, as judgment creditor of the corporation, entitled to proceed by motion for order of execution of such judgment against Henley, a stockholder in the corporation, upon his individual liability as a stockholder? If so, the order must be affirmed. The constitution, section 2, article 12, provides:
“Dues from corporations shall be secured by individual liability of the stockholders to an additional amount equal to the stock owned by each stockholder, and such other means as shall be provided by law ; but such individual liabilities shall not apply to railroad corporations, nor corporations for religious or charitable purposes.”
This constitutional provision is not self-executing, but requires legislative action to provide a remedy for its enforcement. (Woodworth v. Bowles, 61 Kan. 569, 60 Pac. 331.) In 1868 the legislature provided the following remedy for the enforcement of this constitutional liability of shareholders in a corporation :
“If any execution shall have been issued against the property or effects of a corporation, except a railway or a religious or charitable corporation, and there cannot be found any property whereon to levy such execution, then execution may be issued against any of the stockholders, to an extent equal in amount to the amount of stock by him or her owned, together with any amount unpaid thereon; but no execution shall issue against any stockholder, except upon an order of the court in which the action, suit or other proceeding shall have been brought or instituted, made upon motion in open court, after reasonable notice in writing to the person or persons sought to be charged; and, upon such motion, such court may order execution to issue accordingly; or the plaintiff in the execution may proceed by action to charge the stockholders with the amount of his judgment. (Gen. Stat. 1868, §32, ch. 23.)
This remedy remained in force until 1898,. when .it was amended, by section 14, chapter 10, Laws of 1898, and the original section was repealed. The act, as amended, reads as follows :
“That section 32, chapter 23, of the General Statutes of 1868, be and the same is hereby amended to read as follows : Sec. 32. If any execution shall have been issued against the property or effects of a corporation, except a railway or a religious or charitable corporation, and there cannot be found any property upon which to levy such execution, such corporation shall be deemed to be insolvent, and upon application to the court from which said execution was issued, or to the judge thereof, a receiver shall be appointed, to close up the affairs of said corporation. Such receiver shall immediately institute proceedings against all stockholders to collect unpaid subscriptions to the stock of such corporation, together with the additional liability of such stockholders equal to the par value of the stock held by each. All collections made by the receiver shall be held for the benefit of all creditors, and shall be disbursed in such manner and at such times as the court may direct. Should the collections made by the receiver exceed the amount necessary to pay all claims against such corporation, together with all costs and expenses of the receivership, the remainder shall be distributed among the stockholders from whom collections have been made, as the court may direct; and in the event any stockholder has not paid the amount due from him the stockholders making payment shall be entitled to an assignment of any judgment or judgments obtained by the receiver against such stockholder, and may enforce the same to the extent of his proportion of claims paid by them.”
By the act of 1898, section 44, chapter 23, General Statutes of 1868, giving creditors of a corporation a right of action against its stockholders, was also repealed. This act came into operation January 11, 1899, and since said date has constituted the sole and only remedy by which judgment creditors of corporations in this state may enforce their claims against the shareholders in such corporations under the liability imposed by the constitution. (Waller v. Hamer, 65 Kan. 168, 69 Pac. 185.)
As the j udgment against the corporation in the case at bar was not rendered until February 15, 1900, or more than a year after the remedy by motion for order awarding execution against stockholders in corporations for the collection of corporate judgments was repealed, and as the record in this case is silent as to any contractual liability existing between Stevenson and the corporation prior to the taking effect of the act of 1898, it follows, of necessity, that the order made was without authority of law, is erroneous, and must be reversed.
All the Justices concurring. | [
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|
McAnany, J.:
Officer Brandon Huntley followed a northbound automobile driven by Fred L. Ross on Interstate 135 near Newton for about 2 miles when he observed Ross’ automobile cross over the fog line, the solid white line at the right edge of the outside lane. This occurred only once. Huntley pulled Ross over for this infraction.
Huntley explained to Ross that he stopped him because, although it was not “any real big deal,” his vehicle had crossed the fog line a little. The officer assured Ross that he would not receive a ticket because it was a little windy. When the officer requested identification, however, Ross provided only an out-of-state identification card. Ross informed the officer that his license had expired, and the officer confirmed Ross’ statement through dispatch. The officer then arrested Ross for driving without a valid driver’s license. While Ross was handcuffed, the officer searched Ross’ pockets, locating a ratchet socket and $642. The socket contained a piece of Brillo pad and some white residue. When Ross was taken to jail, a further search of his person yielded a cellophane wrapper containing white rocks which, along with the residue in the socket, later proved to be cocaine.
The State charged Ross with possession of cocaine; possession of drug paraphernalia; driving with a canceled, revoked, or suspended license; and failing to maintain a single lane. Ross moved to dismiss the charges at the prefiminary hearing, arguing that the traffic stop was not supported by reasonable suspicion of criminal activity. His motion was denied. He renewed the motion at trial, and again it was overruled. Following a bench trial Ross was convicted on all but the license charge. He received a sentence of 13 months in prison but was granted 12 months’ probation.
Ross now appeals. He challenges the district court’s determination that the traffic stop was justified by reasonable suspicion that he violated K.S.A. 8-1522(a) by crossing tire fog line. He argues that his conduct under the circumstances did not constitute a violation of K.S.A. 8-1522(a). If he is correct, his conviction for violating K.S.A. 8-1522(a) must be reversed, along with his convictions for possession of cocain and drug paraphernalia since all the evidence that supports these drug convictions was obtained as a result of the traffic stop.
In reviewing the district court’s ruling we look to see if there is substantial competent evidence to support the court’s factual findings and then examine anew whether the facts require the suppression of evidence at trial. See State v. Green, 32 Kan. App. 2d 789, 792, 89 P.3d 940, rev. denied 278 Kan. 849 (2004). When the issue turns on the interpretation of a statute, a matter of law over which our review is unlimited, we seek to determine the legislature’s intent. When the language of a statute is unambiguous, we give effect to the legislature’s intent as expressed. In doing so, we give words not otherwise defined their common, ordinary meanings. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights prohibit the government from conducting unreasonable searches and seizures. Courts determine reasonableness in this context by balancing the State’s interest against the individual’s interest to be secure from unwarranted governmental intrusion. Terry v. Ohio, 392 U.S. 1, 20-21, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). K.S.A. 22-2402, which codifies Terry, requires a showing of reasonable suspicion of criminal activity before a law enforcement officer can conduct a stop. State v. Field, 252 Kan. 657, 659, 847 P.2d 1280 (1993). Because the stop of a vehicle on a public roadway always constitutes a seizure, an officer must have specific articulable facts and reasonable inferences that criminal activity has occurred, is occurring, or is about to occur to justify the stop. State v. McKeown, 249 Kan. 506, 510, 819 P.2d 644 (1991).
Ross was stopped for a claimed violation of K.S.A. 8-1522(a). The statute, in relevant part, provides:
“Whenever any roadway has been divided into two (2) or more clearly marked lanes for traffic, the following rules in addition to all others consistent herewith shall apply.
“(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” K.S.A. 8-1522.
Ross argues that because the statute only requires a driver to maintain a single lane “as nearly as practicable,” his failure to maintain a single lane does not necessarily constitute a violation of K.S.A. 8-1522(a). We agree. “As nearly as practicable” connotes something less than the absolute. Automobiles are not railway locomotives. They do not run on fixed rails. Obviously, K.S.A. 8-1522(a) does not prohibit a vehicle from changing lanes. A driver is permitted to exercise, rather is required to exercise, discretion in deciding when and whether to change lanes. We need not drive through a pothole in the road and damage our vehicle in the process when we may safely avoid it by changing lanes or moving partially onto the shoulder of the roadway. K.S.A. 8-1517 permits us to leave our regular lane of travel to pass a slower moving vehicle when we overtake it. A stalled automobile or a fallen tree limb in the roadway ahead does not require us to wait for its removal. We drive around it. In doing so, the essential gravamen of K.S.A. 8-1522(a) comes into play. We may move from our lane of travel only after first determining it is safe to do so.
The issue is whether Officer Huntley, under the circumstances presented, had reasonable suspicion of a violation of K.S.A. 8-1522(a) to justify a traffic stop. When a defendant moves to suppress evidence based upon a claimed illegal stop, tire burden shifts to the State to establish that the officer had reasonable suspicion to effect the stop. See State v. Shelton, 278 Kan. 287, 292, 93 P.3d 1200 (2004). In the context of an alleged violation of K.S.A. 8-1522, this requires more than a showing by the State that a defendant moved from the regular lane of travel, since it is not illegal to change lanes when it is not done in violation of some other statute and it is safe to do so. Thus, in articulating reasonable suspicion that a traffic offense has occurred in order to justify the traffic stop, the totality of the circumstances must make it appear to the officer that not only did the defendant’s vehicle move from its lane of travel, but it left its lane when it was not safe to do so.
The present case stands in interesting contrast to United States v. Cline, 349 F.3d 1276 (10th Cir. 2003). Cline dealt with the legality of a traffic stop for crossing the fog line in violation of the same Kansas statute. However, in Cline the trooper observed the defendant’s vehicle cross the fog line and almost strike a bridge rail. “He further testified . . . that nearly striking a bridge abutment was a dangerous driving violation.” 349 F.3d at 1287.
In United States v. Gregory, 79 F.3d 973 (10th Cir. 1996), the officer observed the defendant’s van cross 2 feet onto the right shoulder of the emergency lane on an interstate highway in Utah. The Utah statute was identical to the Kansas statute now before us. The officer testified that the defendant’s conduct could indicate he was sleepy or intoxicated. One of his reasons for stopping the defendant was “to see if the driver was awake.” 79 F.3d at 976. The court in Gregory observed:
“The road was winding, the terrain mountainous and the weather condition was windy. Under these conditions any vehicle could be subject to an isolated incident of moving into the right shoulder of the roadway, without giving rise to a suspicion of criminal activity. The driver may have decided to pull over to check his vehicle and then have a sudden change of mind and pulled back into the traffic lane. Since the movement of the vehicle occurred toward the right shoulder, other traffic was in no danger of collision. These facts lead us to conclude that the single occurrence of moving to the right shoulder of the roadway which was observed by Officer Barney could not constitute a violation of Utah law and therefore does not warrant the invasion of Fourth Amendment protection.” 79 F.3d at 978.
In the present case, Ross was proceeding northbound on 1-135 near Newton. We presume that the right shoulder of the highway was paved, as is the normal situation, since there is no evidence to the contrary. There was no testimony that there was any obstacle or barrier on the shoulder that presented an immediate danger. There was no testimony that sand, gravel, or debris on the shoulder presented a hazard to a motorist who directed his or her vehicle onto the shoulder. There was no testimony that Huntley was concerned that the driver might have been falling asleep or was intoxicated. Ross’ vehicle was not weaving back and forth on the roadway. He was not using the paved shoulder as a regular lane of travel. He crossed the fog line only briefly, for only a short distance, and only once. In short, there was no reasonable suspicion that Ross was engaged in the conduct that is at the heart of the statute: moving a vehicle from its lane of travel without first ascertaining that it could be done safely. Absent any such concern on Huntley’s part, there was no reasonable suspicion to warrant stopping Ross and, therefore, insufficient evidence to support his convictions. The district court erred in not suppressing the evidence obtained by this unsupported governmental intrusion.
Reversed. | [
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McAnany, J.:
Scott D. Zeckser challenges his conviction for speeding on jurisdictional grounds. He claims Officer Mark Falk, who stopped him and issued the speeding citation, had no authority to do so because the claimed infraction occurred outside the city limits of Alma where Falk was employed as a city police officer. We conclude, as did the district court, that since Falk was also a Wabaunsee County deputy sheriff and the offense occurred in Wa baunsee County, Falk had the authority to stop Zeckser and issue the citation. Accordingly, we affirm Zeckser s conviction.
The case was tried in the district court on stipulated facts. The parties stipulated as follows:
“1. A citation for speeding was issued to [Zeckser] for 72 mph in a 55 mph zone on September 9, 2005 by the Ama City Marshal Mark Falk in Wabaunsee County, Kansas.
“2. That, at the time the Ama City Marshall issued a Wabaunsee County Sheriffs Department Uniform Notice to Appear and Complaint to the defendant, he was practicing law enforcement on state highway 99, which was outside of the city limits of Ama, Kansas.
“3. Ama City Marshal’s Radar and Tuning forks certifications and Doppler certification were current and in proper working order on September 9, 2005.
“4. The Ama City Marshal Mark Falk is a licensed law enforcement officer in the State of Kansas and employed by the City of Ama, a municipal corporation.
“5. Marshal Mark Falk holds a ‘Reserve Deputy’ card issued to him by Doug Howser, Wabaunsee County Sheriff.
“6. The Wabaunsee County Sheriff has granted the Alma City Marshall the authority to take law enforcement action as defined by applicable statutes at his discretion as a deputy anywhere within Wabaunsee County. (See attached letter from Sheriff Doug Howser.)
“7. A Kansas Open Request to Sharon K. White, Ama City Clerk, confirms that a search of the City’s official records was conducted and that no document was found which authorizes the Ama City Marshal to practice law enforcement outside the City’s jurisdiction and the city has no contract with the Wabaunsee County Sheriffs office pertaining to the Ama City Marshal. (See attached letter of Sharon K. White.)”
In Sheriff Howser s letter, which is included as part of the stipulation, he stated that Falk had been a deputy sheriff at least since the mid-1990’s. Falk served as a deputy sheriff under the administration of at least four Wabaunsee County Sheriffs. Most recently, he was sworn in as a deputy sheriff by Howser in January 2005, about 8 months before Falk stopped Zeckser.
The district court found that Falk was a special deputy, as defined in K.S.A. 19-805(a), who was acting within his lawful jurisdiction as a Wabaunsee County special deputy at the time he issued the speeding citation to Zeckser. The court also found Zeckser guilty of the speeding charge.
Zeckser relies on K.S.A. 2006 Supp. 22-2401a(2). K.S.A. 2006 Supp. 22-2401a states:
“(1) Law enforcement officers employed by consolidated county law enforcement agencies or departments and sheriffs and their deputies may exercise their powers as law enforcement officers:
(a) Anywhere within their county; and
(b) in any other place when a request for assistance has been made by law enforcement officers from that place or when in fresh pursuit of a person.
“(2) Law enforcement officers employed by any city may exercise their powers as law enforcement officers:
(a) Anywhere within the city limits of tire city employing them and outside of such city when on property owned or under the control of such city; and
(b) in any other place when a request for assistance has been made by law enforcement officers from that place or when in fresh pursuit of a person.”
Zeckser argues that while K.S.A. 2006 Supp. 22-2401a(l) permits a deputy sheriff to operate anywhere in the county, K.S.A. 2006 Supp. 22-2401a(2) limits that jurisdiction to a city’s boundaries if the deputy sheriff is also employed as a city law enforcement officer, unless the officer is in fresh pursuit or is responding to a request for assistance from another jurisdiction. From this Zeckser concludes that since his stop was the result of neither fresh pursuit nor a request from the county for assistance, Falk had no jurisdiction to effect the stop.
Resolution of this issue requires us to interpret K.S.A. 2006 Supp. 22-2401a. This is an issue of law over which our review is unlimited. Our task is to determine the legislature’s intent in enacting K.S.A. 2006 Supp. 22-2401a. We presume the legislature expressed its intent through the language it employed in the statute. We also presume that absent special or technical words or phrases, the legislature intended the ordinary meanings of the words it employed. We do not read into the statute words that are not there, nor do we ignore words that are there. If the statute is plain and unambiguous, we will give effect to the legislature’s intent as expressed rather than substituting our own views on the matter. See State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
First, we note that K.S.A. 19-805(a) clearly grants county sheriffs the power to appoint deputies. Zeckser argues that the “Reserve Deputy” card that was issued to Falk does not constitute an agreement between the City of Alma and Wabaunsee County so as to invoke the “request for assistance” provision found in K.S.A. 2006 Supp. 22-2401a(2)(b). Nonetheless, there seems to be no dispute that Falk was a duly deputized Wabaunsee County deputy sheriff at the time of the stop. The sole issue is whether Falk’s jurisdiction as a Wabaunsee County deputy sheriff is limited under K.S.A. 2006 Supp. 22-2401a by the fact that he is also employed as an Alma city law enforcement officer.
In United States v. Parada, 289 F. Supp. 2d 1291 (D. Kan. 2003), the arresting officer, who was on the Junction City police force, had been assigned to the Junction City/Geary County Drug Operations Group at the time of the arrest. The issue of his territorial jurisdiction focused on the fact that as a member of the Operations Group the city police officer was deputized as a Geary County deputy sheriff. Thus, the court concluded the arresting officer
“wore two hats: one of a city police officer and one of a deputy with the Geary County Sheriffs Department, having been sworn as a deputy under K.S.A. 19-805 on November 4, 1999. Accordingly, as a deputy, the officer had authority to be operating outside the city limits pursuant to K.S.A. 22-2401a(l)(a), which provides ‘[l]aw enforcement officers employed by consolidated county law enforcement agencies or departments and sheriffs and their deputies may exercise their powers as law enforcement officers: (a) anywhere within their county.’ Thus, Officer Oehm had authority to stop the defendants on 1-70.” 289 F. Supp. 2d at 1298.
We find Varada to provide a logical, common-sense reading of the statute.
On the other hand, Zeckser relies on State v. Sodders, 255 Kan. 79, 872 P.2d 736 (1994), to support his position. We find this reliance to be misplaced. Sodders predates the 1994 amendment to K.S.A. 22-2401a(4), now K.S.A. 2006 Supp. 22-2401a(5), which allows police officers in certain urban areas to execute search warrants anywhere in their county. In Sodders, Overland Park police officers executed a search warrant at an apartment in Lenexa without the active involvement of the Lenexa police. Evidence obtained in the search was suppressed because of the extra-territorial activities of the Overland Park police. The officers in Sodders, unlike Officer Falk here, did not wear two hats. Unlike Falk, they had not been deputized so as to give them extended territorial jurisdiction throughout the county.
Zeckser argues that the internal conflict he perceives within K.S.A. 2006 Supp. 22-2401a must be resolved in his favor because criminal statutes are to be strictly construed against the State. Thus, if one class of law enforcement officers has territorial jurisdiction defined as “X” and another class has territorial jurisdiction defined as “2X,” the jurisdiction of any officer falling into both classes is confined to the more limited territorial jurisdiction: X. In oral argument Zeckser asserts that this interpretation would even apply to a deputy sheriff who later decides to moonlight as a part-time city police officer. According to Zeckser, in that instance the deputy sheriff loses county-wide jurisdiction (2X) and is reduced to the more limited jurisdiction (X) of the city where the deputy moonlights. We are not persuaded that this is what the legislature intended.
More importantly, this argument is predicated upon the existence of an internal conflict in the statute. We see none. If a city law enforcement officer effects a traffic stop inside the county in which the city is located but outside the city limits, the officer has jurisdiction to do so if (1) the officer is in fresh pursuit, (2) the officer s assistance has been requested by the county, or (3) the officer also serves the county as a deputy sheriff. There is no internal conflict in the statute’s definition of territorial jurisdiction. The jurisdiction of a person whose jurisdiction is defined as X can be expanded to 2X if that person takes on the additional attribute of being deputized as a deputy sheriff of the county. A lawyer admitted to the state courts of Kansas may also seek admission to the bar of a sister state. Such a lawyer faces no dilemma as to which state court he or she may practice in. The lawyer may practice in either, the range of the lawyer’s jurisdiction to practice having been expanded.
K.S.A. 19-805(a) permits persons to be deputized in writing as deputy sheriffs to do particular acts. The statute also permits a sheriff to appoint deputies assist in the regular duties of the sheriff. There is no dispute that Falk was duly deputized to assist in the regular duties of the Wabaunsee County Sheriff. Once deputized, a city law enforcement officer does not lose whatever authority to act he or she previously had, but rather now has the added au thority of a deputy sheriff. Thus, the limited jurisdiction afforded a city law enforcement officer may be expanded to the entire county in which the city is located under K.S.A. 2006 Supp. 22-2401a when that officer has been deputized as a deputy sheriff of the county.
The district court did not err in convicting Zeckser based upon Falk’s stop outside the Alma city limits.
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Green, J.:
Gary Williams appeals from the trial court’s judgment accepting his guilty plea and from the trial court’s judgment denying his dispositional and durational departure motion. Before we address the merits of this case, we must first determine if we have jurisdiction. The question posed by this criminal appeal is a recurring one: Does this court have jurisdiction to consider a direct appeal from a guilty plea when the defendant has failed to move to withdraw his or her plea? Our answer is no. Accordingly, we dismiss this appeal.
On August 9, 2004, Williams pled guilty to two felony counts of burglary in violation of K.S.A. 21-3715(a), four felony counts of burglary in violation of K.S.A. 21-3715(c), two counts of battery on a law enforcement officer in violation of K.S.A. 2006 Supp. 21-3413(a)(1) (misdemeanors), three felony counts of theft in violation of K.S.A. 21-3701(a)(l) and (b)(2), two counts of theft in violation of K.S.A. 2006 Supp. 21-3701(a)(l) and (b)(4) (misdemeanors), and one felony count of possession of methamphetamine in violation of K.S.A. 2006 Supp. 65-4160(a).
Paragraph 2 of Williams’ plea agreement contained the State’s sentencing recommendation:
“Contingent upon a successful plea of guilty as charged in 04CR183, 04CR591, 04CR903, 04CR905, 04CR1085 and 04CR1086 the State will recommend that the Court impose the mid number on each Count in each case and that the Counts run internally concurrent within each case. Further, the State will agree to Consolidate for sentencing, 04CR591, 04CR903, 04CR905 and 04CR1086. The State will recommend that 04CR183, 04CR1085 and the consolidated cases (04CR591, 04CR903, 04CR905 and 04CR1086) run consecutive to one another. The State will ask the Court follow the presumption of prison. The defendant is free to argue for any alternative disposition.”
In September 2003, Williams moved for dispositional and durational departures claiming 25 substantial and compelling reasons supporting departure. The sentencing court found Williams guilty of the charged offenses and denied his dispositional departure motion, holding that there were not substantial and compelling reasons to depart from the sentencing guidelines. The court withheld judgment on Williams’ durational departure motion and ordered a psychological evaluation. After reviewing the psychologist’s report and briefs by counsel, as well as hearing counsel’s arguments, the sentencing court denied Williams’ durational departure motion. Following the plea agreement, the court sentenced Williams to a total of 98 months’ imprisonment. Each of Williams’ sentences was within the presumptive sentencing ranges for the crimes charged under the Kansas Sentencing Guidelines.
Does this Court Have Jurisdiction to Review Williams' Guilty Plea?
Williams maintains that the trial court’s reading of the charges as listed in the complaint was insufficient to establish a factual basis for his guilty plea as required by K.S.A. 2006 Supp. 22-3210(a)(4). Williams argues that there was no evidence presented to establish whether he intentionally and knowingly possessed methamphetamine or whether his intoxication prevented him from specifically intending to commit burglary and theft.
Nevertheless, the right to an appeal is purely statutory and is not contained in either the federal or Kansas Constitutions. Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken as prescribed by statute. State v. Legero, 278 Kan. 109, Syl. ¶ 2, 91 P.3d 1216 (2004). An appellate court has a duty to question jurisdiction on its own initiative. If the record shows there is no jurisdiction for an appeal, the appeal must be dismissed. State v. Wendler, 280 Kan. 753, 755, 126 P.3d 1124 (2006). Whether jurisdiction exists is a question of law subject to unlimited appellate review. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006).
The Plea
K.S.A. 2006 Supp. 22-3602(a) provides in relevant part:
“No appeal shall be taken by the defendant from a judgment of conviction before a district judge upon a plea of guilty or nob contendere, except that 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 and amendments thereto.”
Although this statute appears to prohibit any appeal from a plea, our Supreme Court has held that K.S.A. 2006 Supp. 22-3210(d) gives the trial court some discretion to vacate the judgment and withdraw the plea. The court may set aside a conviction before sentencing for good cause shown or after sentencing to prevent manifest injustice. K.S.A. 2006 Supp. 22-3210(d); see State v. Solomon, 257 Kan. 212, 217-19, 891 P.2d 407 (1995). If the trial court denies this motion, the defendant may appeal the denial to the appellate courts despite K.S.A. 2006 Supp. 22-3602(a). The proper procedure for challenging the sufficiency of the factual basis for a plea is to file a motion to withdraw plea in the district court. 257 Kan. at 218-19; see State v. Thorpe, 36 Kan. App. 2d 475, 141 P.3d 521, rev. denied 282 Kan. _ (2006).
In Thorpe, Thorpe pled guilty to one count of involuntaiy manslaughter and two counts of aggravated battery. Thorpe appealed his convictions and his sentences. This court dismissed the appeal, holding that it did not have jurisdiction because Thorpe had pled guilty and had failed to move to withdraw his guilty plea. The Thorpe court further held that “[a] defendant may not file a direct appeal from a guilty plea unless the defendant first files a motion to withdraw tire plea and the trial court denies the motion.” 36 Kan. App. 2d at 477.
As in Thorpe, Williams did not move to withdraw his plea. Because Williams did not move to withdraw his plea in the trial court, this court lacks jurisdiction to review Williams’ guilty plea.
Does the Court Have Jurisdiction to Review the Trial Court’s Denial of Williams’ Dispositional and Durational Departure Motion?
Williams also argues that the trial court abused its discretion by denying his motion for a downward durational and dispositional sentencing departure. Williams asserts that despite the language in K.S.A. 21-4721(c)(l), he may appeal his presumptive sentence because the plain language of the statute does not preclude an appeal from the denial of a departure motion where the court imposed the presumptive sentence. Because Williams’ assertion is inconsistent with our Supreme Court’s interpretation of K.S.A. 21-4721, his argument is without merit.
K.S.A. 21-4721(c) provides that an appellate court shall not review on appeal a sentence for a felony conviction that (1) is within the presumptive guidelines sentence for the crime, or (2) is the result of a plea agreement between the State and the defendant which the trial court approved on the record. When a trial court imposes a sentence within the presumptive guidelines for that crime, an appellate court lacks jurisdiction to consider an appeal even when a trial court denies a motion for departure. K.S.A. 21-4721(c); State v. Flores, 268 Kan. 657, 659-60, 999 P.2d 919 (2000).
Here, Williams received the presumptive sentences for the felony convictions to which he pled guilty. Moreover, the court followed the State’s recommendation and imposed 98 months’ imprisonment. Because die sentencing court followed the plea agreement and imposed the presumptive sentences, this court is without jurisdiction to consider whether the trial court abused its discretion by denying Williams’ departure motion.
Appeal dismissed. | [
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The opinion of the court was delivered by
West, J.:
A. C. Fiss, one of the defendants, was on June 11, 1903, appointed guardian of the plaintiff, Pretzel, who had been found of unsound mind. October 27, 1903, Pretzel was by the probate court adjudged restored and Fiss was ordered removed and directed to make settlement of his account as guardian, which he claims to have done, apparently in October, 1903. July 13, 1907, Pretzel sued Fiss and the sureties on his bond for $4744.45, the value of the property alleged to have been unaccounted for and to have been wrongfully converted. The case was referred, and upon consideration of the final report the trial court entered judgment for Fiss, holding the action barred by the three-year statute of limitations.
It is insisted by the plaintiff that this is an action on the bond and should be barred only when five years had elapsed from the time the cause of action accrued. The statute is as follows:
“Second. — Within three years: An action upon contract, not in writing, express or implied; an action upon a liability created by statute, other than a forfeiture or penalty.
“Third. — Within two years: . . . An action for taking, detaining or injuring personal property. . . . An action for injury to the rights of another, not arising on contract, and not hereinafter enumerated.
“Fifth. — An action upon the official bond or undertaking of an executor, administrator, guardian, sheriff, or any other officer, or upon the bond or undertaking g'ven in attachment, injunction, arrest, or in any case whatever required by statute, can only be brought within five years after the cause of action shall have accrued.” (Civ. Code, § 17.)
It is urged that the fifth clause only applies and that decisions holding the prior clauses applicable can and should be distinguished from the case at bar for the reason that here a common-law right to sue existed and that neither the right nor the liability was created by statute. But sections 3949, 3978, 3981, and other sections of article 1 of chapter 60 of the General Statutes of 1901 (Gen. Stat. 1868, ch. 60, §§ 9, 38, 41 et al.), in force during the time covered by the guardianship, and ections 4824, 4844, 4845, and other sections of chapter 2 of the General Statutes of 1909 (Laws 1907, ch. 247, §§ 6, 26, 27 et al.), in force when the action was brought, indicate that the entire matter of the guardianship is statutory.
In Ryus v. Gruble, 31 Kan. 767, it was held that an action on a sheriff’s bond to recover for a breach arising ou.t of a levy under a void execution was barred within two years, being an action for “taking, detaining or injuring personal property.” (Civ. Code, § 17, subdiv. 3.) Answering the argument that it was an action upon an official bond the court said that the wrong committed by the sheriff furnished the real and substantial foundation for the cause of action, and hence the two-year statute was applicable even though it were in form an action upon the bond.
“The bond does not give the cause of.action; the wrongs or delicts do; and the bond simply furnishes security to indemnify the persons who suffer by reason of such wrongs or delicts; and while the statute cited by plaintiff operates to bar every action brought upon the bond to enforce a cause of action which accrued more than five years prior to the commencement of the action, yet such statute does not operate to suspend the operation of the other statutes of limitations, or to continue in force or revive a cause of action which had already been barred by some one of the other statutes of limitations. Whenever a cause of action is barred by any statute of limitations, the right to maintain an action therefor upon a bond which simply operates as a security for the same thing, must necessarily cease to exist.” (p. 770.)
(To the same effect are Comm’rs of Graham Co. v. Van Slyck, 52 Kan. 622, an action upon the official bond of a county clerk to recover fees not accounted for; Provident Loan Trust Co. v. Wolcott, 5 Kan. App. 473, an action on an abstracter’s bond; Cloud County v. Hostetler, 6 Kan. App. 286, an action upon the official bond of a clerk of the district court; Davis v. Clark, 58 Kan. 454, an action on an administrator’s bond; and Hawk v. Sayler, 83 Kan. 775, an action for a balance claimed to be due from a guardian to his ward.)
Counsel suggest that this ruling renders the fifth clause of the statute meaningless, and ask what combination of circumstances will provide a case for its operation. This is a question we are not now called upon to answer, for the reason that the settled doctrine in this state and the rule of stare decisis preclude the application of the fifth clause to this case.
It is also argued that plaintiff had a right of action upon a common-law liability — a liability not created by statute. But the statute provides for the appointment of the guardian, prescribes the bond, the duties of the guardian and the manner of their performance, and expressly requires that upon discharge of the ward from custody “the guardian shall immediately settle his accounts, and restore to such person all things remaining in his hands belonging or appertaining to. him.” (Laws 1907, ch. 247, § 27, Gen. Stat. 1909, § 4845.) If he fails to do this it may be said (without deciding the point) that his liability for such failure might with some degree of accuracy be called a liability created by statute, for the statute furnishes the conditions, and creates the duty, neglect of which creates the cause of action, so that but for the statute the conditions could not arise and the duty could not be required. A liability created by statute means “a liability which would not exist but for the statute.” (Hawkins v. Furnace Co., 40 Ohio St. 507, 515.) But if the plaintiff had a common-law right of action when would it be barred ? . The petition on which the case was tried alleged not only a refusal to account, but a conversion of the property therein described, and that plaintiff “has suffered damages by reason of such wrongful conversion of the said property in the sum of $4744.45,” and prayed judgment for that sum. Therefore, if it be an action for an injury to the rights of another, not arising on contract, it was barred in two instead of three years. (Civ. Code, § 17, subdiv. 3; Ryus v. Gruble, 31 Kan. 767; Hunt v. Jetmore, 9 Kan. App. 333.) Certainly the trial court committed no material error in holding the action barred, for barred it must have been, either under the two-year or under the three-year statute.
The judgment is, therefore, affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The sole question involved is whether the district court erred in setting aside a tax deed that had been of record more than five years. The deed was issued September 16, 1901. It recited that the land, being delinquent for the taxes of 1897, was sold to the county September 6, 1898, for $17.78; that on September 14,1901, the certificate was assigned for $56.59. It then continued:
“And whereas the subsequent taxes for the years 1898, 1899- and 1900, amounting to the sum of thirty-eight and Uloo dollars, has been paid by the purchaser as provided by law.”
No taxes accrued between the assignment of the certificate and the issuance of the deed, and the reference to the payment of the “subsequent” taxes for 1898, 1899 and 1900 can only mean that the purchaser from the county paid the taxes for those years as a part of the amount charged him for the assignment. The deed therefore distinctly shows that the amount for which the certificate was assigned ($56.59) was made up of the taxes of 1898, 1899 and 1900 ($38.81), added to the flat amount of the original sale ($17.78), and consequently did not include the interest on the selling price, which amounted to about $7.90. It follows that the deed is invalid because its recitals show affirmatively that the certificate was assigned by the county for less than the amount required to redeem. (Douglass v. Lowell, 60 Kan. 239.)
The recital concerning the taxes of 1898, 1899 and 1900 was obviously the result of the draftsman filling in blanks in a printed form that were required to be filled only where taxes had accrued and been paid after the assignment of the certificate by the county. Or dinarily matter appropriate to a different situation, which is retained in a tax deed through inadvertence, may be rejected as surplusage. (Baughman v. Harvey, 76 Kan. 767, 777.) But the unnecessary matter here inserted was in a way pertinent. In reciting the amount of the taxes that accrued between the sale to the county and the assignment to an individual the deed merely went into greater detail than the statute required. With needless particularity it stated the items of which the amount received by the county was made up. In doing so it revealed the fact that the total was too small, and thereby disclosed a fatal error in the proceedings. Consequently the deed was vulnerable to attack even after the lapse of five years.
“A statement in a tax deed of a fact showing that it was improperly issued is fatal to its validity, although occurring in the course of a recital not required by the statute.” (Price v. Barnhill, 79 Kan. 98, syl. ¶ 2.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by Mattie Crelly to recover damages from the Missouri and Kansas Telephone Company for injuries resulting from a. violent assault made upon her by E. S. Casen, the local manager of the company at Pittsburg, Kan.
She alleges that Casen was local manager, with, authority to supervise and control the business of the company at Pittsburg, including authority to employ and discharge the servants of the company in that:' office, including herself, as chief operator, and that-on October 25, 1907, while she was in the employment. of the company, Casen came into the office and commanded her to sign a salary voucher, which she declined to do until she could figure out the amount actually due her, and that after another demand and refusal he struck her upon the chest with great force and violence, then shoved her seven or eight feet and ordered her from the room; that as she left the room he struck her several blows on the back and shoulders, and would have pushed her down the stairway leading to the street but for the interference of other employees of the company.
The answer of the company was a general denial, and also that Casen was not authorized to do the acts complained of, and that °if such acts were committed he did not act as its agent or servant. The averment that Casen was not acting for the company in assaulting and beating appellee, or with its authority, was verified.
The testimony of appellee, in a general way, sustained the- allegations of her petition. It appeared that she had learned from the district manager at Joplin that she was to be discharged, and that shortly afterward, while she was preparing to leave, Casen asked her to sign the voucher. When she refused he struck her with his fist, and then she struck him with her umbrella, and following this he violently shoved her through a door, and she in turn kicked him. He continued to push and strike her until another employee •interfered.
Among other special findings the following were •returned:
“Ques. Did Casen assault Miss Crelly because she refused to sign the voucher ? Ans. He did.
“Q. Were the plaintiff’s injuries due to the assault ■occasioned and caused by' her refusal to sign the voucher? A. Yes.”
In a general verdict the jury awarded damages to appellee in the sum of $1470.
The telephone company appeals, .and raises the question whether on the pleadings and the plaintiff’s own testimony it can be held responsible for the assault of Casen upon appellee and liable for the resulting injuries. It is argued that, accepting her testimony as true, the assault of Casen had no necessary or legal relation to his authority from the company or his duty to it. The contention is that the assault, whatever may have been the occasion or provocation, did not tend to further any business or purpose of the company and was not one of the methods or things which came in the line of Casen’s duty or any interest which he was employed to promote, and that the assault was a personal wrong of Casen, for which he alone is responsible.
The general rule is that the master is responsible for the acts of his servants done in the execution of the master’s business and within the scope of his employment. It is not enough to exempt the master that the act is willful or malicious or in excess of the authority expressly conferred. If the tortious act is done while the servant is acting in behalf of his master and within the scope of his employment the master will be responsible, although the act may be willful and wanton. The act, as in this instance, may have been done while the servant was in the master’s service; but, unless it was expressly or impliedly authorized, or within the scope of the employment, the servant alone is responsible. The question of difficulty is whether the wrongful act is within the scope of the employment, and the contrariety of judicial opinion in cases brought to our attention arises largely from the application of this test. Here Casen was in the employ of the company, and was acting for it when he asked appellee to sign the voucher; but did the obtaining of the signature to the voucher contemplate the use of any force, or can it be said that an assault had any natural or necessary relation to the authority conferred at the time of his employment? The case is quite similar in its facts to Hudson v. M. K.
& T. Rly. Co., 16 Kan. 470. The third paragraph of the syllabus of that case reads:
“Where it appears that plaintiff was authorized to receive freight for certain parties, and in pursuance thereof went to the depot of defendant and there demanded the same of the agent who was in charge of the depot and authorized to receive and deliver freight, and while so demanding it the said agent made an assault upon him, and it does not appear that the said assault was made in ejecting or attempting to eject plaintiff from the depot, or in preventing or attempting to prevent him from committing any injury' to the property of the defendant, or from transgressing any rules for the regulation of its depot and the transaction of its business, held, that it did not appear that the company was liable for the assault, and that only the agent who actually made it was liable.”
In the course of the decision Mr. Justice Brewer tersely stated that “Trotter was employed to deliver freight; plaintiff came and demanded freight'; Trotter replied to his demands with an assault. Was such assault in the course of Trotter’s employment? Did it grow out of any services he was engaged in, or was it in the line of his duty? It seems to us that it was clearly disconnected therefrom, and a mere volunteer assault. ■ True, the employment may have ■ given the opportunity and occasion, but it was not an act which in any fair sense the company could have been said to have employed him to do, or to have anticipated that he would do, nor an act which was the act of the company.” (p. 474.)
The assault of Casen did not grow out of the service he was employed to perform, and was not an act 'which the company or anyone else would have anticipated that he would do. It was not a case of enforcing discipline or preserving order in the office, and was not one which contemplated the use of force. The jury found that the assault was made by Casen because appellee refused to sign the voucher. No circumstances indicate that the company contemplated the use of force to obtain signatures to vouchers, nor was there anything to show any connection between the assault and any duty which' devolved on Casen. In the Hudson case the court used this illustration:
“A party goes into a store to purchase goods, and is therefore rightfully there. He makes an inquiry as to the price of an article of a clerk behind the counter, who in reply takes a weight and knocks him down with it. Can this be said to be an act which the proprietor contemplated when he employed the clerk? That it was in the line of the clerk’s employment, and that therefore the employer was responsible? ' But the cases are parallel. The employment in each furnishes the opportunity and the occasion; but in each the .act is not one the agent was employed to perform, nor within the scope of his employment.” (16 Kan. 475.)
In Mirick v. Suchy, 74 Kan. 715, it was held that the master is not liable for acts of a servant outside the scope of his employment, although the act was intended to promote the master’s interest. In 26 Cyc. 1526 it is said:
“The test is not the character of the act, nor whether it was done during the existence of the servant’s employment; but whether the injury complained of was committed by the authority of the master expressly conferred or fairly implied in the nature of the employment and the duties incident to it.”
The case of Collette v. Rebori, 107 Mo. App. 711, involved the liability of one who sent another to collect a bill and the collector assaulted the debtor because he refused to pay. It was said:
“The best-considered cases hold that the master is liable to third persons for the negligent, fraudulent or tortious acts of his agent or servant when it is shown that the agent or servant was acting within the scope of his employment and that the act complained of was done as a means or for the purpose of doing the work assigned him by the master. To assault and beat a creditor is not a recognized or usual means resorted to for the collection of a debt, nor is it one likely to bring about a settlement of a disputed account.” (p. 720.)
And so we might say here that to assault or beat a. telephone operator is not a recognized or usual way of procuring her signature to a voucher on which to draw the wages due to her. There are many cases bearing upon the question involved, and the following are a few of those which tend to support the view that the assault did not. pertain to the duty of Casen nor come within the scope of his employment: Sachrowitz v. A. T. & S. F. Rld. Co., 37 Kan. 212; Laird v. Farwell, 60 Kan. 512; Clark v. Folscroft, 67 Kan. 446; Dolan v. Hubinger, 109 Iowa, 408; Henry v. Railroad Co., 139 Pa. St. 289; McCann v. Tillinghast, 140 Mass. 327; Stone v. Hills, 45 Conn. 44; Chicago City Ry. Co. v. Mogk, 44 Ill. App. 17; Holler v. Ross, 68 N. J. Law, 324; Sagers v. Nuckolls, 3 Colo. App. 95; Vanderbilt v. The Richmond Turnpike Company, 2 N. Y. 479; Searle v. Parke, 68 N. H. 311; Waaler v. Great Northern Railway Co., 18 S. Dak. 420; Rounds v. Del., Lack. & West. R. R. Co., 64 N. Y. 129; Mali v. Lord, 39 N. Y. 381; Meehan v. Morewood, 5 N. Y. Supp. 710, 126 N. Y. 667; Jones v. The St. Louis, N. & P. Packet Co., 43 Mo. App. 398; Cobb v. Simon, 124 Wis. 467; The Little Miami Railroad Co. v. Wetmore, 19 Ohio St. 110; Wood, Mas. & Serv., 2d ed., §§ 286, 307; 2 Labatt, Mas. & Serv. § 537; 1 Thomp. Com. L. of Neg. § 527; 20 A. & E. Encycl. of L. 167.
The cases are not uniform as to what acts fall within the implied authority conferred on servants or agents, but most of those cited in behalf of appellee were where the business or employment contemplated the enforcement of discipline or implied the use of some force, and the rule is that where the master authorizes force he is liable for excessive force or the abuse of the authority given. In this case the use of force did not pertain to the business intrusted to Casen by the company. It was not an incident of the authority vested in him to compute what was due operators and to procure their signatures to vouchers, and we find no basis in the pleadings or the evidence which would justify a holding that an assault upon an operator who refused to sign a voucher came within the implied authority of Casen or can in any sense be regarded as. within the scope of his employment.
The demurrer to the evidence should have been sus- • tained, and the judgment is therefore reversed, with the direction to sustain the demurrer to the evidence-of appellee and enter judgment in favor of the appellant. | [
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The opinion of the court was delivered by
Smith, J.:
The parties to this action were contestants before the probate court of Cheyenne county for the right to purchase a tract of school land. From the decision of the probate court the defendant appealed to the district court, and the appeal in the district court was dismissed on motion of the plaintiff.
The only question here involved is the sufficiency of the appeal bond, the body of which reads as follows:
“Now, we, the undersigned, residents of said county and state, bind ourselves to said appellee, Lawson Cook, in the sum of three hundred dollars, and further to the payment of all damages and costs that may be adjudged against him, the said appellant, Joseph Andriano. And we further bind ourselves that the 'said appellant, Joseph Andriano, will prosecute his appeal to effect, and without unnecessary delay, and satisfy such damages, judgment and costs as may be rendered against him therein.”
The only error assigned is the ruling of the court on the motion to dismiss on the ground of the insufficiency of this bond, and this assignment of error is fairly made in the abstract. There is no merit in the application of the plaintiff to dismiss the case for want of an assignment of errors.
Section 7651 of the General Statutes of 1909 (Laws 1909, ch. 218, § 6) prescribes the requisites of an appeal bond in an action of this nature. It provides for the filing of a bond “conditioned that he will prosecute the appeal and pay all damages and costs that may be adjudged against him.”
It appears that the court dismissed the appeal in this case on the authority of Guess v. Letson, 9 Kan. App. 106, in which it was held that the recital of the amount limits the liability upon the bond, which was the only issue therein. The language of the bond in this case is quite different from that of the bond-in the Letson case.
We are inclined to think that the bond in this case is sufficient. It does not technically conform to the requirement of the statute, however. In any event the bond is sufficient to give the district court jurisdiction of the-case and to protect against the costs of the appeal. If the bond was objectionable, the proper remedy In the district court was to require an additional bond conditioned according to the statute and not to dismiss the case. If the defendant fails to comply with such order his appeal may be dismissed.
The abstract in this case is much more extended than is necessary to present the question at issue. The cost of the abstract will be taxed to the defendant.
The judgment is reversed and the case is remanded. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this action J. B. Bertrand asked and recovered damages from the Kansas City, Mexico & Orient Railway Company for striking and killing his mare and injuring two of his colts on the right of way of the railroad. The animals escaped from the owner and went upon an adjoining farm, belonging to Stephens, through which the railroad was built. The railroad was fenced through Stephens’s land, but the animals passed through an open gate and out upon the railroad, where they were run down and injured. The recovery is based upon the insufficiency of the gate and its fastenings. It is insisted by the railroad company that the findings and verdict are not supported by the testimony.
The jury found that the gate was opened by the wind, that it had been open five hours, and that it did not have a proper fastening. The gate was at a private crossing, put in for the accommodation of the landowner, and was a regulation gate such as is used on appellant’s railroad system. It was a five-board gate, with braces. One end of the gate was placed between two posts, one slightly behind the other, through which a bolt passed, and on this bolt the stationary end of the gate rested. There were two posts at the other end, tied together with a bolt, and the swinging end of the gate was passed between these posts and rested on the bolt. To open the gate the swinging end is pulled back off the bolt and from between the posts, and is then lifted and carried around until it is open. The gate does not swing on hinges, and if the swinging end were pulled off the bolt and from between the posts that end would drop upon the ground of its own weight • and remain there unless carried around by some person or force.
The gate, as we have seen, was at a private crossing, and was put in by the railroad company for the convenience and benefit of the landowner. Having been put there for his use, it devolved on him to see that it was kept closed. The law requires a railroad company to fence its tracks, and, failing in that, it is made liable for animals killed on the track, although there may be proof of no other negligence on its part. To meet the requirements of the law the railway company whose line passes through a farm must make private cross ings where it is practicable, and build gates in the fences, so that the landowner can pass from one part of his farm to the other. The landowner, for whose benefit the private crossing is maintained and gates are built, and who may open and close them at his own convenience, must of necessity keep watch over them and keep them closed. As to the adjoining owner, the company has done its duty when it provides crossings and gates. In such a 'case it has been said:
“As he may use them at will, in the absence of the employees of the railroad company, the gates are within his control, and the duty of keeping them closed must rest on him. To place upon the railroad company the responsibility of keeping the gates closed would require that an employee of the company should be stationed at every crossing to see that the landowner performed the implied obligation resting upon him of closing a gate provided for his special benefit. This would be an impracticable and unreasonable burden, and was manifestly not within the contemplation of the legislature.” (Adams v. A. T. & S. F. Rld. Co., 46 Kan. 161, 164.)
The rule here is that if the animals of a third person trespass upon the premises of the adjoining owner, and pass through a gate left open and are killed, the owner of the trespassing animals occupies no better position than the one for whom the gate was put in. (Adams v. A. T. & S. Rld. Co., supra.) The evidence in this case tends to show that the gate, instead of having blown open, had been allowed to stand open for a considerable time. What the rule would be if the gate stands open so long that the company knew, or should have known, that the inclosure was incomplete, and in a case where there was no negligence of a third party, does not require decision here.
Appellee’s animals escaped from his control the night before they were injured. He tried to recover them, but darkness came on and he gave up the search until the next morning, and early in the mom ing they were struck by the train. He contends, however, that the gate was in fact closed, and that by reason of an insecure fastening it was blown open by the wind and had been open only five hours When his animals passed through the gate. Special findings were returned to this effect, but we think that the testimony does not warrant findings that the gate was closed prior to a storm which occurred the night before the accident or that it was opened by the wind. There may be some reason for a dispute as to the plan of the gate — whether the fastenings were such as to make an efficient inclosure. It was of the same design as all the gates of appellant, and if properly closed it would seem that it should be reasonably secure. The theory of appellee is that the gate in question was lower at one end than at the other, and that when the wind blew hard and shook the gate it would naturally slip back on the iron bolt and from between the posts, and that when the fastened end was released and settled down to the ground it could be blown open by a strong wind. It appears that it was only an inch, or at most an inch and one-half, out of level, but the testimony does not support the theory that the gate was closed the night before the accident, nor yet that it Was opened by .the wind because of an insecure fastening. The testimony in behalf of appellee tends to show that the gate was not closed and had not been for some time before the night of the accident. His own testimony was that it had been open for some time. Another of his witnesses said he had not seen it closed until after the accident, and still another witness, who had an opportunity to know, stated that it had been standing open for a long time before the animals were struck. This testimony was not contradicted, and yet the jury stated, in answer to questions, that the gate was opened by the wind and that it had been open for about five hours. The fact that there was a storm during the night does not tend to show that the gate was closed before the storm, nor overcome the testimony that it had been standing open for days before the injury and loss. There is no sufficient basis for the answer that the gate had been open for five hours, nor that the loss resulted from the fact that there were no proper fastenings on the gate. These were important findings, and as they were made in disregard of the testimony and are without support the verdict must be set aside.
The judgment is reversed and the cause remanded for .a new trial. | [
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The opinion of the court was delivered by
West, J.:
In May, 1908, an information was filed charging certain persons with libel. At the following September term the case was tried and resulted in a failure of the jury to agree. (First term.) At the January term, 1909, no trial was had, and on the last day of the term the bond was ordered forfeited. (Second term.) At the September term, 1909, no trial was had, and on the last day of the term the bond was again ordered forfeited. (Third term.) After this term had closed application was made for dismissal, apparently under section 221 of the criminal code, which application was granted. The county attorney filed an affidavit stating that he had been ready and anxious to try the case, that it had never been continued upon his application nor at his request, and that he had requested it to be set for trial but had not been able to bring it to trial; that he believed one reason why it had not been set for trial was on account of the great volume of business coming before the court. Mr. McNary, who had been assisting the county attorney, made a similar affidavit; and Mr. P. H. Coney, who had also been assisting, made an affidavit that he knew the state was ready for trial at every term of court since the complaint was filed, and at no term made application for a continuance, and the county attorney and the state were ready at each term. The court took the matter under advisement, and, on March 5, 1910, dismissed the case and ordered that the defendants be not further prosecuted therein.
From this order the state appeals and says that, as the evidence showed that the state had done everything possible to bring the case to trial, the discharge was erroneous. The defendants suggest that the order was equivalent to an acquittal, and, as the state does not pretend to come up on a question reserved, it has no standing in court; and, further, that within the rule of The State v. Dewey, 73 Kan. 739, the order or discharge was proper.
If, as testified by Mr. Coney, the state was ready for trial and the county attorney was also ready at every term, it does not appear why a trial was not had. Certainly the state could have required the presence of the defendants before the last day of the terms as well as then, and if they did not appear a bench warrant would have compelled their attendance.
In The State v. Dewey, supra, no trial was had at either term. Here the defendants were brought to trial at the first term — the result being a failure of the jury to agree. This eliminates the first term from-the computation. (Ex parte Ross, 82 Cal. 109; The State v. Campbell, 73 Kan. 688.) It is quite clear that practically nothing was done in the case during the second and third terms, and the trial court in the exercise of its discretion ordered a dismissal, which was proper, for such matters should not continue to cumber the docket unless for some purpose. It is not incumbent upon us now to decide what the effect of the order, worded as it was, may be in case further proceedings by the state are attempted. “Sufficient unto the day is the evil thereof.”
The order of the trial court dismissing the case is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
Chapter 198 of the Laws of 1895 (amended by Laws 1905, ch. 352, § 1, Gen. Stat. 1909, §§ 7160-7162) provides that whenever it may be necessary for any or all of the officers or men of the Kansas national guard or Kansas reserve militia to travel upon any railroad of the state, under orders from competent, authority to perform military duty, the transportation shall be furnished at the rate of one cent per mile for the distance traveled by each person. Orders for transportation issued by the adjutant general must be honored in lieu of fare, and then be presented to the military board, to be audited and paid at the fixed rate. Willful refusal on the part of the agent of a railroad company to observe the terms of the act is punishable by fine. In June, 1909, the petitioner, as agent of the Union Pacific Railroad Company at Topeka, refused a requisition duly made for the transportation of Major Arthur Mills, of the Kansas national guard, at the statutory rate. The petitioner was arrested, convicted and fined, and ordered committed to the jail of Shawnee county until the fine and costs should be' paid. After the time for an appeal had expired he instituted this proceeding in habeas corpus to secure his release from custody under a commitment issued upon the judgment. The principal question raised upon the sheriff’s return to the writ of habeas corpus is whether the statute denies the railroad company the equal protection of the laws guaranteed by the fourteenth amendment to the constitution of the United States.
In 1883 (Laws 1883, ch. 124, § 1; see Gen. Stat. 1909, § 7198) the legislature fixed three cents per mile as the maximum rate for carrying adult passengers, and this rate has not since been changed by law. In 1907 the board of railroad commissioners issued an order fixing the maximum rate at two cents 'per mile. The order is still in force, and at all times material to the controversy was being observed by the railroad companies. These measures were adopted pursuant to the power of the state to regulate rates and protect the traveling public from unjust exactions, and they reflect the judgment of the constituted authorities as to what is reasonable for the railroads to charge and for the people to pay. Presumably two cents per mile is a reasonable rate for all adult passengers, or it would not have been promulgated and would not be maintained.
Ordinarily, when the ratemaking power of the state has been exercised and a reasonable maximum fare for people generally has been established, it is not then competent for the legislature to -compel the railroad companies to make exceptions in favor of certain individuals. The legislature of the state of Michigan amended the general railroad law of that state so that it required the sale of one-thousand-mile tickets at a reduced rate, required such tickets to be issued on request to the purchaser, his wife and children, and made them valid for two years from the date of purchase. The supreme court of the United States held this law to be in violation of that portion of the constitution of the United States which forbids the taking of property without due process of law and which secures the equal protection of the laws. (Lake Shore &c. Railway Co. v. Smith, 173 U. S. 684.) The views of the court are indicated in the following extracts from the opinion:
“The power of the legislature to enact general laws-regarding a company and its affairs does not include the power to compel it to make an exception in favor of some particular class in the community and to carry the members of that class at a less sum than it has the right to charge for those who are not fortunate enough to be members thereof. This is not reasonable regulation. ... If the general power exist,' then the legislature can direct the company to charge smaller rates for clergymen or doctors, for lawyers or farmers or school-teachers, for excursions, for church conventions, political conventions, or for all or any of the various bodies that might desire to ride at any particular time or to any particular place.
“If the legislature can interfere by directing the sale of tickets at less than the generally established rate, it can compel the company to carry certain persons or classes free. If the maximum rates are too high in the judgment of the legislature it may lower them, provided they do not make -them unreasonably low, as that term is understood in the law; but it can not enact a law making maximum rates-, and then proceed to make exceptions to it in favor of such persons or classes as in the legislative judgment or caprice may seem proper. . . . The legislature having fixed a maximum rate at what must be presumed, prima facie, to be also a reasonable rate, we think the company then has the right to insist that all .persons shall be comne-lled to pay alike, that no discrimination against it in favor of certain classes of married men or families, excursionists or others, shall be made by the legislature. If otherwise, then the company is compelled at the caprice or whim of the legislature to make such exceptions as it may-think proper and to carry the excepted persons at less than the usual and legal rates, and thus to part in their favor with its property without that compensation to which it is entitled from all others, and therefore to part with its property without due process of law. The affairs of the company are in*this way taken out of its own management, not by any general law applicable to all, but by a discrimination made by law to which the company is made subject. Whether an act -of this nature shall be passed or not is not a matter of policy to be decided by the legislature. It is a matter of right of the company to carry on and manage its concerns subject to the general law applicable to all, which the legislature may enact in the legal exercise of its power to legislate in regard to persons and things within its jurisdiction. ... In this case there is not an exercise of the power to fix maximum rates. There is not the exercise of the acknowledged power to legislate so as to prevent extortion or unreasonable or illegal exactions. The fixing of the maximum rate does that. It is a pure, bald and unmixed power of discrimination in favor of a few of the persons having occasion to travel on the road and permitting them to do so at a less expense than others, provided they buy a certain number of tickets at one time. It is not legislation for the safety, health or proper convenience of the public, but an arbitrary enactment in favor of the persons •spoken of, who in the legislative judgment should be carried at a less expense than the other members of the community. There is no reasonable ground upon which the legislation can be rested unless the simple ■decision of the legislature should be held to constitute such reason.” (pp. 692-698.)
This court is not inclined to the view that the power of the legislature is completely exhausted by a maximum-rate regulation, and does not so interpret the decision quoted. But members of the national guard can not be segregated from the body of the state’s citizens and made a preferred class, unless they sustain some relation to transportation by rail which, in the nature of things, indicates they should have the benefit of an ■exceptional rate. Classification, to be valid, must be based upon differences in character, condition or situation which lead to that difference in regulation which the statute undertakes to make. Thus, in the case involving a reduced rate for school children on street cars (Commonwealth v. Interstate, &c. Street R’y, 187 Mass. 436), the considerations which moved the court to sustain the rate were, among others, that pupils go to and from the public schools at hours when other persons make little use of the cars; that they are of such a size and age that they occupy much smaller spaces than other passengers; and that the difference in rate was of so much importance to parents that twice as many pupils would ride at half rate as at full rate, so that the revenues of the carrier would not be materially reduced. This court neither approves nor disapproves the conclusion reached in that case, but the method employed for testing the classification upon which the rate-was based is sound. In accordance with the principle recognized, the legislature might no doubt require that precedence be given to the transportation of troops over other traffic, that special facilities for the movement of troops be supplied, that special schedules be adopted and that other exceptional services be rendered whenever the public interest demands them. But the law in question has no such basis for the discrimination which it makes. Major Mills stood upon precisely the same footing, so far as the expected service to him was concerned, as any other individual. The times when members of the national guard will travel are as uncertain as for other people. The number who will travel at any particular time is wholly indefinite. They come to the railroad stations singly, in groups or in larger bodies, just as other citizens come singly, in groups or in crowds sufficient to load the cars of one or more trains.. They occupy the same space and have the same privileges as other persons. Their movements are controlled by duty and not by special inducements, and the matter of rate can have no effect upon the volume of traffic. They are taken up, carried and set down without any mark or circumstance whatever to distinguish them from the general public, or to distinguish the subject of their transportation from that of the general public, except that they carry orders for transportation without payment of fare and at reduced rates. Without any ground, therefore, for the classification, • and without any regard to the reasonableness or unreasonableness of the regulation, the state simply demands that its troops be transported by rail at a purely arbitrary rate, which, so far as the principle involved is concerned, might be one cent per hundred miles or nothing at all. No other corporation or individual in the state is obliged to conduct business upon any such partial and unequal conditions or to make any such sacrifice for the support of the national guard or any other public institution or purpose. Therefore the act denies the railroads the equal protection of the laws.
So far the act in question has been regarded as one relating in some way to the subj ect of railroad regulation. That is not its true character. It is a revenue .measure, which seeks to protect the treasury and keep down the rate of taxation upon the general property of the state by levying a special assessment upon railroad companies for the maintenance of the military department of the government. Viewed from this standpoint, the statute selects railroad companies from among other common carriers, corporations and property owners- of the state, places them in a class by themselves, and imposes upon them a specific burden, supposedly for the public welfare. In many instances this may be done, but it can not be done where the exaction is made to defray an expense having no more relation to the business of railroading than it has to any other business enterprise conducted within the state. This limitation was clearly stated by Mr. Justice Field in the case of Charlotte &c. Railroad v. Gibbs, 142 U. S. 386. The state of South Carolina created a board of railroad commissioners charged with a variety of duties respecting the conduct of railroad affairs, and assessed the expenses and salaries of the members of the board to the railroad companies. The court held that the existence and presence of the railroad companies and their property in the state and the exercise of the privileges and franchises which they enjoyed created the necessity for the supervisory board; that the services of the board were rendered for the benefit of the railroads as well as for the public, and consequently that the cost of the service might lawfully be imposed upon the railroads. But the opinion reads:
“If the tax were levied to pay for services in no way connected with the railroads, as for instance, to pay the salary of the executive or judicial officers of the state, whilst railroad corporations were at the same time subjected to taxation upon their property equally with other corporations for such expenses, and other corporation's were not taxed for the salaries mentioned, there would be just ground of complaint of unlawful discrimination against the railroad corporations, and of their not receiving the equal protection of law.” (p. 391.)
The principle involved has been applied. in many cases. A railroad company may be required to build fences and cattle guards (Missouri Pacific Railway Co. v. Humes, 115 U. S. 512), to erect gates, plank crossings and maintain flagmen (Chicago, Burlington &c. R’d v. Chicago, 166 U. S. 226), and to bear the whole cost of making changes of grade at crossings (N. Y. & N. E. Railroad Co. v. Bristol, 151 U. S. 556), because the expenditure is necessary for the protection of persons and property otherwise endangered by the operation of the road, and because the company itself is specially benefited by the greater security which it obtains for the prosecution of its business. Examinations of railway employees may be required and the fees therefor be charged to the railway companies. (Nashville &c. Railway v. Alabama, 128 U. S. 96.) Fees for quarantine inspection are regarded as compensation for services rendered to the vessel. (Morgan v. Louisiana, 118 U. S. 455.) Fees charged for the inspection of mines may be charged to the owner. (St. Louis Cons. Coal Co. v. Illinois, 185 U. S. 203.) The salaries and expenses of -a board of commissioners of' electrical subways may be charged to the companies whose business renders the creation of the board a necessity, and for whom, as well as the public, the sex-vices of the board are performed. (New York v. Squire, 145 U. S. 175.) In all such cases, and many more might be cited, there is no denial of the equal protection of the laws. It can scarcely be claimed, however, that the national guard is maintained because of anything occasioned by the existence or operation of railroads in the state, or that the railroads derive any benefit from the existence of the national guard which is not shared by every other person in the state. The presence in the state of this body of men is beneficial'to the railroads just as the government of the state, the various municipal governments, the courts and the whole body of public functionaries are beneficial to them, and in no other way; and the equal protection of the laws requires not only that all persons brought within the influence of a statute shall be treated alike but-that a classifying statute must bring within the equal influence of its provisions all persons who are under the same conditions.
An effort is made to justify the statute as an exercise of the military power of the state to preserve peace, to suppress riot's and insurrections and to repel invasion. These are ends which every sovereignty must have the power to attain, and every citizen holds his property upon the implied condition that it must be surrendered when needed for the preservation of the government. Fields and farms may be traversed and occupied, sub sistence, stores and other movables may be appropriated and transportation lines may be seized and operated, under the stress of due occasion, just as city blocks may be demolished to arrest the progress of a fire. Doubtless in cases where neither the power of taxation nor the credit of the government would avail a forced loan could be effected by the seizure of money itself. The power exercised in such cases is lawful, although not derived from constitutions or statutes. It rests upon the principle that every sovereignty may, in time of peril, adopt such extreme measures as may be necessary for its existence and perpetuity. But it is limited to emergencies which can not wait upon due process of law. The law governing military impressment of private property was well stated by Mr. Chief Justice Taney in the case of Mitchell v. Harmony, 54 U. S. 115, as follows:
“There are, without doubt, occasions in which private property may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy; and also where a military officer, charged with a particular duty, may impress private property into the public service or take it for public use. Unquestionably, in such cases, the government is bound to make full compensation to the owner; but the officer is not a trespasser.
“But we are clearly of opinion that in all of these cases the danger must be immediate and impending, or the necessity urgent for the public service, such as will not admit of delay, and where the action of the civil authority would be too late in providing the means which the occasion calls for. It is impossible to define the particular circumstances of danger or necessity in which this power may be lawfully exercised. Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified.
“In deciding upon this necessity, however, the state of the facts, as they appeared to the officer at the time he acted, must govern the decision; for he must necessarily act upon the information of others as well as his own observation. And if, with such information as he had a right to rely upon, there is reasonable ground for -believing that the peril is immediate and menacing, or the necessity urgent, he is justified in acting upon it; and the discovery afterward that it was false or erroneous, will not make him a trespasser. But it is not sufficient to show that he exercised an honest judgment, and took the property to promote the public service; he must show by proof the nature and- character of the emergency, such as he had reasonable grounds to believe it to be, and it is then for a jury to say whether it was so pressing.as not to admit of delay; and the occasion such, according to the information upon which he acted, that private rights must for the time give way to the common and public good. . . . The case mentioned by Lord Mansfield, in delivering his opinion in Mostyn v. Fabrigas, 1 Cowp. 180, illustrates the principle of which we are speaking. Captain Gambier, of the British navy, by the order of Admiral Boscawen, pulled down the houses .of some sutlers on the coast of Nova Scotia, who were supplying the sailors with spirituous liquors, the health of the sailors being injured by frequenting them. The motive was evidently a laudable one, and the act done for the public service. Yet it was an invasion of the rights of. private property, and without the authority of law, and the officer who executed the order was held liable to an action, and the sutlers recovered damages against him to the value of the property destroyed.
“The case shows how carefully the rights of private property are guarded by the laws of England; and they are certainly not less valued nor less securely guarded under the constitution and laws of the United States.” (pp. 134-136.)
When, however, the government is in no extremity in fact which requires the suspension in whole or -in part of the civil laws, contributions- to its support can not be levied upon private persons or corporations except pursuant to laws which prescribe the occasions, modes, conditions and agencies for the appropriation and which bear equally upon all those who are similarly situated.
The petitioner is discharged. | [
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Per Curiam:
The errors assigned in this case relate to the conduct of the court below in reference to the admission and exclusion of testimony concerning the validity of a deed of real estate assailed by plaintiff in error, in refus ing to submit the case to the jury, and in rendering judgment in favor of the defendant in error. The case was correctly disposed of, for the reason that the pleadings and undisputed evidence established the fact that plaintiff in error was barred from questioning the validity of the instrument in question and the transfer effected by it, and no longer occupied the position of a creditor with an enforceable lien upon >the property.
(74 Pac. 242.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J :
In August, 1895, A. Jacobitz became surety for George T. Donaldson on a note to H. M. Thorp for $3000. This note was renewed at intervals of several months by new notes signed by Donaldson as principal and Jacobitz as surety until June 2,. 1899, when such a note was given for a balance of $1068.63. This note not being paid, Thorp sued Donaldson and Jacobitz, and on December 10,1900, obtained a judgment against both. On February 18, 1901, Jacobitz paid the judgment, and by proper notice under section 480 of the code (Gen. Stat. 1901, §4926) preserved the judgment for his benefit in enforcing repayment from Donaldson. On March 30, 1897, a tract of land was conveyed to Arminta E. Donaldson, the wife of George T. Donaldson, by a deed which was recorded on the same day. On October 22, 1901, Jacobitz brought an action to subject this land to the payment of his judgment, alleging that it had been bought and paid for by George T. Donaldson; that the title had been taken in his wife for the purpose of defrauding plaintiff and other creditors, and that plaintiff did not discover the fraud until the summer of 1900. Upon a trial, judgment was given for plaintiff, which defendants now seek to reverse.
The only serious question involved is whether the statute of limitations had barred the action. Plaintiff in error maintains that the recording of the deed was constructive notice to plaintiff, and that the statute of limitations began to run from the time it was recorded, citing Black v. Black, 64 Kan. 689, 68. Pac. 662, as decisive of the question. Defendant in error contends, first, that constructive notice is not sufficient in such a case; that the right of action did not accrue until actual notice of the fraud, and relies on Duffitt v. Tuhan, 28 Kan. 292 ; and second, that, the action being in the nature of a creditor’s bill, it could not be brought until the claim was reduced to judgment, and that the statute of limitations did not begin to run until then.
The case of Laird v. Kilbourne et al., 70 Iowa, 83, 30 N. W. 9, cited in Black v. Black, supra, holds that in an action to' set aside a fraudulent conveyance of real estate the fraud is conclusively presumed to be discovered when the conveyance is filed for record. This rule, which is followed in several later Iowa cases, is exceptional only in that it makes the recording of the deed notice of the fraud as well as of the mere fact of the making of the deed. The usual rule is that the recording of the deed is notice of its execution and contents, but not of the fraud. (14 A. & E. Encycl. of L., 2d ed. 355, note 2; Black v. Black, supra, and authorities there cited ; Lewis v. Duncan, 66 Kan. 306, 71 Pac. 577; Gillespie v. Cooper, 36 Neb. 775, 55 N. W. 302; Hughes v. Littrell, 75 Mo. 573.) In the present case the circumstances are such that notice of the terms of the deed would necessarily be notice of the fraud, since plaintiff testifies that he knew of the purchase of the property and supposed that the deed was made to his debtor. The alleged fraud consisted in having the deed name Donaldson’s wife as grantee, and showed upon the face of the deed.
There is no conflict in principle between the decision in Black v. Black, supra, and that in' Duffitt v. Tuhan, supra. In the latter case it was said, the language being adopted almost literally from McMahon v. McGraw, 26 Wis. 622 :
“In a case like this the statute does not begin to run until the fraud is discovered. For this purpose there is no constructive discovery. If'an'agent or tenant should fraudulently allow the lands of his principal or landlord to be sold for taxes, and take the deed himself and put it on record, this would not be notice to the principal or landlord that would set running the statute that would bar him from an action for relief against the fraud.”
This statement that there is no constructive discovery must be construed with reference to the facts of the case in which it is used. It is as though the sentence read: ‘ ‘ There is no constructive discovery through the mere record of a tax deed fraudulently taken .by the agent of 'the owner.” • The fiduciary relation between the parties in such case would be sufficient to relieve the owner from any obligation to watch the records for a tax deed to his agent, if the record of such a deed would otherwise be notice to him. Constructive discovery resulting merely from a statute, under such circumstances that the aggrieved person, although actually diligent, has'no reasonable opportunity to learn of the facts constituting the fraud, may not be sufficient to set the statute in operation, but constructive discovery resulting from his failure to be diligent when diligence would have disclosed the fraud practiced upon him will always do so. In the present case we hold that Jacobitz is deemed to have discovered the fraud when the deed was recorded, not merely because of the statute making the record notice, but because he was dealing with Donaldson as one interested in his financial standing, becoming his surety month after month and year after year, while the record, being open at all times to his inspection, would upon examination have disclosed the fact that the deed in question was not made to Donaldson. (Teall v. Slaven, 40 Fed. [C. C.] 774.)
Defendant in error cites a number of cases holding that the record of a conveyance is not notice to the world, but only notice to those who are bound to search for it. One of the cases cited, Ward v. Thomas, 81 Ky. 452, applies this rule to an antecedent creditor. But the same court, in Poynter v. Mallory, 45 S. W. (Ky.) 1042, made a decision indicated by a paragraph of the syllabus reading as follows :
“An action brought by creditors to set aside a deed as fraudulent’, more than five years after it was recorded, is barred by limitation, it appearing that plain'tiffs, who resided in the town where the deed was recorded, and who were from time to time becoming the sureties of the grantor, might, by reasonable diligence, have discovered the deed at any time after it was recorded.”
With regard to the second point raised by plaintiff in error, that the statute of limitations did not begin to run until the claim was placed in judgment, it is sufficient to say that while the present action could not have been begun until a judgment had been obtained (Taylor v. Lander, 61 Kan. 588, 60 Pac. 320), the case falls within the rule that one cannot indefinitely postpone the running of the statute of limitations by delay in taking some preliminary action incumbent upon him. (Bank v. King, 60 Kan. 733, 57 Pac. 952, and cases cited ; Mickel v. Walraven, 92 Iowa, 423, 60 N. W. 633; Stubblefield v. Gadd, 112 id. 681, 84 N. W. 917.) As soon as Jacobitz had notice of'the fraud (which in legal effect was when the deed was filed for record), or at all events as soon thereafter as the then existing note matured, he could have paid the debt and begun action against Donaldson for repayment. Probably the statute would have been suspended between the beginning of the action and the rendition of judgment, provided the action had been diligently prosecuted, but a failure to begin such pro ■ceeding for more than two years resulted in a complete bar against the action to set aside the deed.
The judgment is reversed, and the cause remanded for further proceedings in accordance with this opinion. .
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The opinion of the court was delivered by
Fatzer, J.:
The defendants were convicted of murder in the first degree as defined in G. S. 1949, 21-401, and the jury assessed the death penalty pursuant to G. S. 1949, 21-403. Post-trial motions were filed, including a motion for a new trial, which were overruled, and the defendants have appealed.
A chronological statement of the proceedings had is essential to a proper understanding of the questions involved, hence those matters are detailed as follows: The defendants were apprehended and taken into custody by the sheriff and his deputies in Tooele County, Utah, on June 10, 1961. On June 16, 1961, agents of the Kansas Bureau of Investigation returned them to Wallace County, Kansas, where they had been charged jointly on June 12, 1961, with the deliberate and premeditated murder of one Otto Ziegler on June 9, 1961.
Shortly after their return to Kansas and on June 16, 1961, the defendants were taken before the county court of Wallace County for a preliminary examination as provided in G. S. 1949, 62-805. The complaint and warrant, the statutes under which the arrest was made and on which the complaint and warrant were based, the penalty imposed by statute for murder in the first degree, the purposes of a preliminary examination, that the defendants had the right to employ counsel to represent them at a preliminary hearing and that they could insist the state produce evidence in support of the crime of murder in the first degree as alleged in the complaint and warrant, were all fully explained to them in open court. Being so advised, the defendants executed a written waiver of a preliminary hearing and consented to being bound over to the district court of Wallace County to await trial at the first day of the next regular term of court. As examining magistrate, the judge of the county court found that the offense charged was not a bailable offense -under the laws of Kansas.
Thereafter, the judge of the county court determined that the jail of Wallace County was not of sufficient security to guarantee to defendants a place of safekeeping; that Wallace County did not have sufficient facilities to protect the defendants, and that the public safety and welfare required a change of custody. Accordingly, and on the same day, the county court made an order that the defendants be confined in the Kansas State Industrial Reformatory at Hutchinson, Kansas, to await trial.
On July 14, 1961, the county attorney filed a verified information in the district court of Wallace County charging the defendants with the deliberate and premeditated murder of Otto Ziegler in Wallace County on June 9. On July 17, 1961, the deputy warden of the State Reformatory delivered to each defendant personally a certified copy of the information as is required by G. S. 1949, 62-1302.
On July 20, 1961, the defendants were brought before the district court of Wallace County at Sharon Springs, Kansas, for arraignment. The transcript of proceedings discloses that Jesse I. Linder, an able and experienced lawyer practicing law in Sharon Springs, was appointed to represent the defendant James Douglas Latham. Wallace County has but three practicing attorneys, and for good cause, the third practicing attorney of the county declined appointment. Thereupon, Bernard E. Whalen, of Goodland, likewise an able and experienced attorney of Sherman County which is located approximately 30 miles north of Sharon Springs, was appointed to represent George Ronald York. The question of inconvenience of counsel to confer with the defendants in Hutchinson was raised and the district court stated that while it might be inconvenient for anyone to represent the defendants, any other attorney appointed would of necessity be a nonresident of Wallace County.
After their appointment by the court, counsel conferred with their clients in separate rooms. The county attorney furnished each defendant with copies of all papers on file at that time. After consultation with counsel and in open court, each defendant was arraigned by a reading of the information separately. Each defendant stood mute, and a plea of not guilty was entered by the court for each.
The suggestion of possible insanity was made and the court, at the request of all attorneys, appointed a sanity commission pursuant to G. S. 1949, 62-1531, “to determine whether or not said defendants or either or both of them are insane . . . and unable to comprehend his position and to make his defense.” The commission consisted of William Wilks, M. D., of the Larned State Hospital; G. A. Chickering, M. D., and DeMerle E. Eckart, M. D., both of Hutchinson. Dr. Chickering is a psychiatrist.
The district court fixed the time of trial for September 18, the first day of the September 1961 term, and ordered the defendants returned to the State Reformatory.
The court and court appointed counsel discussed the matter of taking depositions outside the state and the court advised counsel they could incur reasonable expenses and would be paid their statutory per diem by Wallace County in taking the depositions and in conferring with the defendants in the State Reformatory.
The sanity commission examined the defendants at Hutchinson, and on August 24, 1961, filed separate reports stating that each defendant “is sane and that he is able to comprehend his position and to make his defense.”
On August 10, 1961, York filed a motion for change of venue on the ground that he could not obtain a fair and impartial trial because the minds of the inhabitants and residents of Wallace County were prejudiced against him. A supplemental motion was filed August 31, to which was attached articles appearing in some twenty-one different newspapers.
On August 29, 1961, Latham filed a plea in abatement, a motion for change of venue, a motion for separate trials, a request for addresses and occupations of witnesses endorsed on the information, and to appear in court without handcuffs or leg irons. Articles from three different newspapers were attached to the motion.
On September 14, 1961, in the presence of counsel and the defendants, the district court heard the defendants’ several motions. At that time photostatic copies of the defendants’ purported confessions given to agents of the K. R. I. were furnished the defendants and their counsel and they were also furnished the names, addresses and occupations of the witnesses endorsed on the information. Separate trials were ordered for each defendant. Latham’s plea in abatement was overruled. The motions for change of venue were sustained as to each defendant and the case was transferred to Russell County, the farthest east county in the 23rd judicial district, being some 150 miles east of Wallace County. A transcript of all proceedings was certified to Russell County with the exception of copies of the newspaper clippings attached to the motions for change of venue. At the conclusion of the hearing the district court ordered the defendants returned to the State Reformatory and further ordered that upon the filing of the transcript in Russell County the sheriff of that county take custody of the defendants and transfer them to the Russell County jail there to await trial. The district court also examined and approved the findings of the sanity commission and fixed the date of trial in Russell County for Monday, October 23, 1961.
On a date not disclosed, the defendants were permitted to withdraw their request to have separate trials and they consented to be tried jointly. Through their counsel they gave notice to take depositions in the state of Texas. Commencing on October 17, 1961, depositions of John W. Roper, M. D., Robert Nodine, M. D., John G. Higgins, M. D., Evan Katz, M. D., and Harris M. Hauser, M. D., were taken at Brooke Army Medical Center, near San Antonio, Texas, and at other points in Texas. The deposition of each doctor was filed with the clerk of the court in Russell County. As hereafter indicated, the depositions of Dr. Roper and Dr. Nodine were introduced in evidence at the trial.
On October 5,1961, the defendants were transferred to the Russell County jail. On October 23, 1961, the day set for trial, court appointed counsel for the defendants made application for change of venue, or in the alternative for the appointment of local counsel to assist them in the trial. The district court overruled the motion for change of venue, but sustained the motion for the appointment of local counsel and appointed Marvin E. Thompson to represent York and Richard M. Driscoll to represent Latham to assist previously appointed counsel. Both Thompson and Driscoll are able and experienced lawyers and regularly practice law at Russell.
Following their appointment, Thompson and Driscoll advised the court that they were not prepared for trial and orally moved that the trial be continued to the January 1962 term of the court to enable them to make adequate preparation. The motion was overruled, but the court continued the trial until the following morning. On October 24, 1961, Thompson and Driscoll filed their verified motion for continuance of the trial until the January 1962 term of the court. Among other things, counsel stated that they ascertained that a reasonable doubt existed as to the mental capacity of the defendants on June 9, 1961, to have committed, or be held responsible for committing, the acts charged in the information and alleged that as late as March, 1961, the defendants underwent psychiatric examinations by Army Medical doctors at Brooke Medical Center, Fort Sam Houston, Texas, who were capable psychiatrists, who determined that the defendants were suffering from chronic, severe and unimproved anti-social personalities to a marked degree of psychiatric impairment for military service; that a thorough and comprehensive psychiatric examination of the defendants would disclose a reasonable doubt as to their mental capacities to deliberate, or act wilfully, or with premeditation on June 9, 1961, and that a continuance of the trial was necessary to secure an examination by staff members of the Menninger Clinic at Topeka or staff members of the Larned State Hospital, or by other competent psychiatrists. The motions were argued to the court on October 24, 1961, and overruled.
Approximately 275 jurors were examined on voir dire which consumed the first week of trial. Sixty jurors were duly qualified and in each instance the defendants and each of them stated that they passed the juror for cause, or “we pass for cause.” Thereafter the defendants and the state struck the statutory number of peremptory challenges (G. S. 1949, 62-1402, 1403). Two alternate jurors were chosen and peremptory challenges waived. Upon the selection of the twelve jurors and the two alternates the trial commenced.
The state’s evidence established the following facts: On the afternoon of June 9, 1961, the body of Otto E. Ziegler, a roadmaster for the Union Pacific Railroad Company, was found by two fellow employees about three or four miles east of Wallace, Wallace County, Kansas. The body was found on the north side of the Union Pacific railroad tracks where they cross a fill about four feet high. South of the tracks and below the fill was a four-strand barbed wire fence. Highway 40 is immediately south and parallel to the railroad tracks but the two are separated by the fence, grass and weeds. The body could not be seen from the highway or at any point as one approached its location from the south.
When the body was discovered, there were three apparent bullet holes in the head. South of the railroad tracks and across the barbed wire fence southerly, two empty .38 caliber cartridge cases were found. The decedent was clothed in a white shirt, a straw hat that had two holes in it, and beside his body was found a billfold or pocket book, and a pass case, also some other papers.
A yellow pickup used by the decedent in the performance of his duties for the Union Pacific was found along Highway 40, headed in an easterly direction some distance east of the point where the body was found.
G. B. Secavec, M. D., of Oakley, performed an autopsy on the decedent’s body. The autopsy showed four wounds caused by a penetrating object of some kind, one in the left chest and three head wounds. Doctor Secavec removed a projectile bullet from the body and at a later autopsy he removed two other objects, both projectiles of bullet type. His opinion was that the first bullet to enter the body was the one through the chest, and “that each bullet that entered the body caused the fatal wound.” The testimony disclosed that it was the doctor’s opinion that one bullet failed to enter the body but glanced off the head.
On June 10, 1961, the day after Ziegler was killed, the defendants were apprehended by the sheriff of Tooele County, Utah, at a roadblock on U. S. Highway 40 in a 1960 red Dodge Dart with whip antenna bearing a 1961 Russell County, Kansas, license plate. When apprehended, the sheriff told the defendants he was arresting them on a federal charge of stealing an automobile. Two guns were found in the glove compartment of the car, a .38 caliber Colt and a .22 caliber Eig, which were turned over to agents of the Federal Bureau of Investigation. Also two pair of workman’s gloves, .22 and .38 caliber ammunition, a 100-foot Evans tape, and other items were found in the glove compartment.
The defendants were in the sheriff’s custody until approximately 6:00 p. m. on June 10, when he surrendered them to agents of the F. B. I. The agents returned the defendants to Salt Lake City the same day, took them before a United States commissioner and charged them with the interstate transportation of a stolen motor vehicle. The commissioner advised each defendant he could have an attorney appointed to represent him but neither defendant availed himself of that right. They were then taken to the Salt Lake City jail.
The state offered in evidence certain written statements and/or confessions of the defendants and oral conversations had between them and F. B. I. agents and K. B. I. agents at Salt Lake City and at Sharon Springs following their return to Kansas. The statements and/or confessions were given to the F. B. I. and K. B. I. agents separately and at different times.
After hearing evidence, out of the presence of the jury and in the presence of the defendants and their counsel who made extensive cross-examination of the F. B. I. and K. B. I. agents, the district court found that the defendants’ oral and written statements were freely and voluntarily given, that they met constitutional requirements, and were admissible in evidence.
The following is a résumé of the defendants’ written and oral statements given to the F. B. I. and K. B. I. agents in Salt Lake City and Sharon Springs: On May 24, 1961, the defendants deserted from the United States Army and escaped together from the stockade at Fort Hood, Texas. Later, they stole a 1960 red Dodge Dart automobile with a whip antenna in Illinois and came into Kansas from the east on Highway 40-Interstate 70. After going some distance they met a highway patrol car which slowed down, and they turned off Interstate 70 at the next exit and continued west on Highway 40. About 9:00 o’clock p. m. they came to a small town on the south side of the highway where they decided to get a different license plate. They drove into the town, took a license plate from a parked 1959 Chevrolet, and drove west to a town which they thought was Russell. West of Russell they turned off the highway, drove north across the railroad tracks, removed and threw away the Illinois license plate and and replaced it with the Kansas license plate taken from the Chevrolet. They drove back toward the highway and slept until about sunup on June 9, 1961, and continued west on Highway 40.
The defendants, running short of money, looked for a small out-of-the-way service station to rob, but found none. Farther west they stopped twice and opened the car hood on pretense of car trouble, but no one stopped; they drove on west until they saw a man (identified by the state’s evidence to be Ziegler) clothed in a white shirt talking with a man on a handcar on the railroad tracks. They noticed a yellow pickup truck on the highway near the fence, south of where the two men were talking. Since Ziegler was wearing dress clothing they thought he would have more money than the average railroad worker, and he looked like a good man to take. They drove west a short distance but kept the pickup in view. In a short time Ziegler got into the truck and drove west and the defendants got out, propped open the car hood and waived him down. Ziegler asked them what their trouble was and York told him the gas line was broken and asked for a lift to the next town and Ziegler said “get in.” The defendants got into the pickup and after traveling west a short distance both pulled their guns. York was carrying a .38 Colt and Latham had a .22 Eig. They told Ziegler they wanted his money, and he said, “Oh, that’s the kind of boys you are.” They directed him to follow orders, and they continued on west looking for an out-of-the-way place, a clump of trees, or some place to take him. About three miles west they noticed a fencerow and the railroad tracks back some distance from the highway. They thought that would be a good place to take Ziegler because if anyone came along they would figure it was a railroad man working. They had Ziegler drive the pickup close to the fence and then had him give them his money. Ziegler gave them $51 from his billfold and said, “I’ll see that you boys are gotten for this,” and York said, “You said the wrong tiling. Now you son of a bitch, we are going to have to kill you.”
The defendants ordered Ziegler out of the pickup and as he got out he started to run toward the highway and York told him he would have to follow orders or they would kill him there. Ziegler said, “I don’t want you to kill me.” The defendants directed him through the fence and across the north side of the railroad tracks and there asked him, “Have you given us all of your money?” Ziegler said he had, and got his billfold to show them and as he opened it some papers feU to the ground. He was very nervous and he started to stoop over and as he stooped York shot him through the heart with his .38. Ziegler fell face down and did not struggle. York shot him once more through the right side of the head to be sure he was dead. Latham shot him twice in the head with his .22; once through the center.
After shooting Ziegler the defendants returned to the pickup and Latham got in to drive; before York got in on the right side, he removed two empty .38 cartridges from his gun and threw them on the ground and then reloaded his gun. Latham drove the pickup back to their Dodge and parked it on the south side of the ditch where they searched it for something of value. They found two pair of gloves and a 100-foot steel tape in the glove compartment. They wiped the pickup clean of fingerprints, locked it, and Latham threw the keys in a field nearby. They then continued west on Highway 40 and left Kansas.
Following their return to Wallace County, the defendants, accompanied by the K. B. I. agents and the sheriff, returned to the scene of the crime and pointed out where they left the pickup and the location of the keys. The Illinois license plate was found in a roadside ditch just west of Russell on a road north of the railroad tracks.
An employee of the Union Pacific Railroad testified that the keys found by one of the defendants fit the locks in decedent’s company pickup. Another employee identified the 100-foot steel tape as belonging to Ziegler, being the same tape taken from the car driven by the defendants at the time of their apprehension.
At the close of the state’s evidence the defendants’ motions to withdraw the first degree murder charge from the jury, motions for discharge, and to withdraw certain of the state’s exhibits, were considered by the court and overruled.
After making their opening statement to the jury, the defendants offered the deposition of John W. Roper, M. D., taken by defendants’ counsel at Brooke Army Medical Center near San Antonio, Texas. Dr. Roper identified himself as Chief of the Mental Hygiene Consulting Service at Fort Hood, Texas. He identified defendants’ Exhibits 1 and 2 as a psychiatric evaluation of Latham and York, respectively, made on April 11, and April 12, 1961, by Dr. R. C. Nodine, a Medical Corps psychiatrist of the Mental Hygiene Consulting Service. When interviewed, both defendants were confined in the stockade following a period of AWOL. Exhibits 1 and 2 were admitted in evidence pursuant to stipulation of the parties. The diagnosis was that Latham was “Passive-aggressive reaction, chronic, severe; manifested by AWOL, theft, poor educational history, extremely poor motivation, and poor work history.” The diagnosis was that York was “Passive-aggressive reaction, chronic severe; manifested by previous AWOL’s, poor educational history ambivalent motivation, and excessive concern about his relations with his parents.” Both exhibits further showed as to each defendant, that they were “mentally responsible to distinguish right from wrong, adhere to the right and co-operate in his own defense if such is necessary. There are no psychiatric contradictions to any administrative action deemed appropriate.”
The deposition of Robert Nodíne, M. D., who signed defendants’ Exhibits 1 and 2 was admitted in evidence. He testified that he interviewed Latham and York in April of 1961; that neither manifested any unusual tendencies; that they were “ordinary run of the mill stockade prisoners.” When asked whether he noticed anything about the defendants that might cause them to go out and attack people or kill people or do anything unusual, his answer was “no,” and that he did not have “any suspicion that there was anything like that.”
Dr. William Wilks, a member of the staff of the Lamed State Hospital and a member of the sanity commission, testified that as a result of his examination of the defendants and his examination of defendants’ Exhibits 1 and 2, his diagnosis of York was “Sociapathic personality with paranoid traits,” and that as to Latham his diagnosis was “Schizoid personality with sociapathic features or traits.” He further testified that each defendants’ mental illness, if any he had, “pertained to personality problems and that was a different field of mental illness and was not a psychotic disorder that caused people to be legally insane.”
The testimony of John D. Munns, Sr., Superintendent of the State Reformatory, related to his knowledge of the defendants while they were detained in the State Reformatory at Hutchinson after their return to Wallace County on June 16, 1961, and that he had not known them prior to that time.
Three other witnesses testified for the defendants. Betty Rhoddy, a sister of Latham, testified to his early life; his family life and the number of his brothers and sisters; his service overseas in the Army, and that she had no knowledge of the commission of the crime itself. Mrs. R. T. Stewart, an aunt of Latham, testified about his early youthful days; family disagreements that led to a divorce; the members in his family and number of relatives; his service with the armed forces and that so far as she knew he had been a law-abiding citizen. Mrs. Horace York, mother of York, testified in his behalf. Her testimony related to his early life, his school through the tenth grade; that he had done well in school; that he had qualified for an electrical course in the communications department of the Army, and that he was receiving treatment for nervous and emotional upsets and that the Army doctor had recommended his discharge.
No rebuttal testimony was offered by the state at the close of the defendants’ testimony.
At the request of the court, instructions were submitted by both the state and the defendants. The number of instructions requested by the state is not disclosed but the defendants requested 46 instructions. In denying and refusing to give requested instructions, the court stated that any and all instructions submitted and requested by the state and the defendants which were not given in the form requested were refused by the court in the form requested, but as hereafter indicated, the instructions given by the court correctly stated the law applicable to murder in the first degree under the evidence. Thereafter, the jury returned its verdict finding the defendants guilty of murder in the first degree and assessed the death penalty as to each defendant.
The defendants first contend that Sec. 21-403 under which they were sentenced to death, violates two basic concepts of our federal and state constitutions: First, that it delegates the legislative power to prescribe punishment to the judiciary to be exercised by the jury in violation of Art. 2, Sec. 1 of the constitution of Kansas, and second, that it constitutes a denial of equal protection of the law in violation of the Fourteenth Amendment to that class of persons who are found guilty of murder in the first degree. The contentions will be discussed separately.
In support of the first contention the defendants argue that the statute fails to lay down any rules or standards by which the jury may choose between the two alternative punishments — life imprisonment or death, and assert that the delegation of legislative power exists when both punishments are provided without any standards or basic conditions of fact upon which the jury may choose between the punishments provided. In making the contention the defendants concede there are no Kansas cases which have decided the point, and they cite no cases from other jurisdictions on the precise question. The pertinent portion of the statute reads:
“Every person convicted of murder in the first degree shall be punished by death, or by confinement and hard labor in the penitentiary of the state of Kansas for life. If there is a jury trial the jury shall determine which punishment shall be inflicted. If there is a plea of guilty the court shall determine which punishment shall be inflicted, and in doing so shall hear evidence. . . .” (G. S. 1949, 21-403.)
As preliminary to discussing the contention, we note rules pertinent to its consideration. First, the sole power to provide for punishment of offenders belongs to the legislature. It alone has the power to define offenses and affix punishment. Courts are empowered only to ascertain whether an offense has been committed, and if so to assess punishment, within the terms of the law, for its commission (State v. Page, 60 Kan. 664, 667, 57 Pac. 514; State v. Tyree, 70 Kan. 203, 78 Pac. 525; 16 C. J. S., Constitutional Law, § 107, pp. 493-495; 11 Am. Jur., Constitutional Law, § 192, p. 892).
Second, it is a well-settled concept of constitutional law that in distributing the power of government, the constitution of Kansas creates three distinct and separate departments; the legislative, the executive, and the judicial. Their separation is not merely a matter of convenience or of governmental mechanism. Its object is basic and vital, namely, to preclude a commingling of these essentially different powers of government in the same hands. The doctrine of separation of powers of government is to enable the government to control the governed; and also to oblige it to control itself. The latter is as important as the former and more difficult. Its object is the protection of the liberties of the people from the accumulation of too much power in the hands of any person or factions and is essential to the survival of our government. Hence, it is imperative that each department should be kept completely independent of the other — independent not in the sense that they shall not co-operate to the common end of carrying into effect the purposes of our constitution, but in the sense that the acts of each shall never be controlled by, or subjected, directly or indirectly, to the coercive influence of either of the other departments (State v. Johnson, 61 Kan. 803, 60 Pac. 1068; Rutland v. City of Augusta, 120 Kan. 42, 242 Pac. 456; State, ex rel., v. Anderson, 180 Kan. 120, 299 P. 2d 1078; State, ex rel., v. State Office Building Commission, 185 Kan. 563, 345 P. 2d 674). See, also, Myers v. United States, 272 U. S. 52, 71 L. Ed. 160, 47 S. Ct. 21, and O’Donoghue v. United States, 289 U. S. 516, 77 L. Ed. 1356, 53 S. Ct. 740.
Third, the constitutionality of a statute is presumed and all doubts must be resolved in favor of its legality and before it may be stricken down it must clearly appear the statute violates some express or implied provision of the constitution (State, ex rel., v. Fadely, 180 Kan. 652, 659, 308 P. 2d 537, and cases cited). Under such circumstances it is the court’s duty to uphold the legislation rather than defeat it and if there is any reasonable way to construe the statute as constitutionally valid, that should be done (State, ex rel., v. Board of Education, 137 Kan. 451, 453, 21 P. 2d 295; State, ex rel., v. City of Pittsburg, 188 Kan. 612, 364 P. 2d 71).
Fourth, this court is neither authorized nor does it have any disposition to debate the question of the wisdom of capital punishment. The legislature determines the policy of the state in that regard and enacts statutes which the courts and other officials with respect thereto are bound to follow, which duties they are not privileged to ignore (State v. Miller, 165 Kan. 228, 194 P. 2d 498; State v. Andrews, 187 Kan. 458, 357 P. 2d 739; State v. Wilson, 188 Kan. 67, 68, 360 P. 2d 1092; State v. Hickock & Smith, 188 Kan. 473, 485, 363 P. 2d 541).
Does Sec. 21-403 delegate legislative power to a jury? We think not. It is clear from a consideration of the statute that the legislature determined that the punishment for those convicted of murder in the first degree shall be life imprisonment or death. Under the statute and our decisions construing it, where a defendant is found guilty by a jury of murder in the first degree it is the duty of the jury, and the jury alone, to determine whether the death penalty or life imprisonment shall be inflicted (State v. Christensen, 166 Kan. 152, 157, 199 P. 2d 475; State v. Hickock & Smith, supra; Andrews v. Hand, 190 Kan. 109, 115, 372 P. 2d 559).
The legislative power was exercised when the legislature fixed the punishment for murder in the first degree. The statute does no more than empower a jury, upon a consideration of all the evidence and the court’s instructions, to assess the extent of punishment prescribed beforehand in accordance with the heinousness or gravity of the homicide. In performing that duty, the jury in no sense exercises legislative power. In The People v. Roche, 389 Ill. 361, 59 N. E. 2d 866, it was held that an act of the legislature empowering a court or jury to assess punishment within the limits prescribed, is valid as against the claim that it is a delegation of legislative power to prescribe punishment. The court reached this same result in The People v. Reid, 396 Ill. 592, 72 N. E. 2d 812. We conclude the statute can in no sense be said to be a delegation of legislative power to prescribe punishment for a criminal offense.
With respect to the second contention that 21-403 constitutes a denial of equal protection of the law to that class of persons found guilty of murder in the first degree, the defendants assert the denial is effected in two ways; first, the statute permits the imposition of different punishments upon persons found guilty without establishing any circumstances under which one punishment or the other may be imposed thus permitting persons convicted of the same crime to be punished differently, and second, that the statute has been continued in force by a legislature which has refused and continues to refuse, despite the constitutional mandate of Art. 10, Sec. 2, to effect a reapportionment every five years, based upon the census of the preceding year.
With respect to the first point, it is argued that there was only one homicide and that while each defendant was convicted and sentenced to death, it cannot be denied the jury could have imposed the death sentence on one and life imprisonment on the other, and that nothing in the statute would have prevented such an unequal application of the alternative punishments. Further, that the possibility of unequal punishment is not obviated by the fact that each was sentenced to death, since it is the possibility of unequal application of a statute that is recognized and condemned by constitutional safeguards. The point is not well taken.
Viewing the statute as here construed, the fact that a jury could impose life imprisonment in one case and death in another, or different punishments in the same case, does not result in the possibility of unequal punishment to that class of persons convicted of murder in the first degree. The legislature has a very great latitude in prescribing and fixing the punishment for crime (State v. Woodman, 127 Kan. 166, 272 Pac. 132; In re Skinner, 136 Kan. 879, 18 P. 2d 154; 12 Am. Jur., Constitutional Law, § 562, p. 254). In McGowan v. Maryland, 366 U. S. 420, 6 L. Ed. 2d 393, 81 S. Ct. 1101, it was stated that the Fourteenth Amendment permits the states a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. In Collins v. Johnston, 237 U. S. 502, 59 L. Ed., 1071, 35 S. Ct. 649, it was said that the establishment of appropriate penalties for the commission of crime and to confer upon the judicial tribunals a discretion respecting the punishment to be inflicted in particular cases, within the limits fixed by the law-making power, are functions peculiarly belonging to the several states. See, also, Oyler v. Boles, 368 U. S. 448, 7 L. Ed. 2d 446, 82 S. Ct. 501; Lisenba v. California, 314 U. S. 219, 226, 86 L. Ed. 166, 62 S. Ct. 280.
The statute prescribes the punishment beforehand which forms a constituent part of the sentence of conviction and it is not a denial of the equal protection of the law clause for a jury in assessing the extent of the punishment prescribed, to determine which of the alternative punishments shall be imposed by the court upon a verdict of guilty. The statute rests upon grounds relevant to achieve the state’s objective and it is not objectionable as urged by the defendants that different punishments may result for different persons convicted of murder in the first degree. There is nothing to support the contention that the statute under which the sentences were imposed violates the provisions of the Fourteenth Amendment in depriving the defendants of their liberty without due process of the law or in denying them the equal protection of the law (Collins v. Johnston, supra). See, also, Berger v. Hand, 190 Kan. 220, 223, 373 P. 2d 175.
We turn now to the second point, that the statute denies equal protection of the law because it has been continued in force by a legislature which has refused to effect a new apportionment every five years as required by Art. 10, Sec. 2. The defendants make no claim that Sec. 21-403 was invalid at the time of its enactment in 1937 (Laws of 1937, Ch. 210, Sec. 1), or that it violates any provision of our constitution. It is argued instead that this court may take judicial notice that the state senate has not been reapportioned since 1947, and contend that the continuation of the statute by five subsequent unconstitutional legislatures has denied them equal protection of the law in that they have been denied any opportunity for the statute to be repealed, amended or modified to either abolish the death penalty or provide the circumstances under which a jury or court could choose between alternative punishments provided. They cite and rely upon Baker v. Carr, 369 U. S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691, in which it was held that a complaint by certain state voters containing allegations that a state statute effected an apportionment that deprived them of equal protection of the laws presented a justiciable constitutional cause of action, and if discrimination was sufficiently shown, the right asserted was within the reach of judicial protection under the Fourteenth Amendment. The decision is no authority that all enactments of a legislature elected without complying with the constitutional mandate requiring periodic reapportionment are invalid, or that such enactments become invalid because not re-examined, repealed, amended or modified by subsequent legislatures elected under the apportionment statute.
Assuming that the legislature has failed to effect a new apportionment of the districts of its members as required by Art. 10, Sec. 2, nonetheless the acts of such legislative body would be those of a de jure legislature and the members thereof are de jure officers. All the reported decisions sustain the proposition that the fact a legislature has not reapportioned in accordance with the state constitution does not preclude it from making any law or doing any act within the legislative competence. A few of those decisions are: Groves v. Board of Education, 367 Ill. 91, 10 N. E. 2d 403, 405; City of Cedar Rapids v. Cox, 252 Iowa 948, 108 N. W. 2d 253; Leonard v. Maxwell Comr. of Revenue, 216 N. C. 89, 3 S. E. 2d 316; Fruit v. Metropolitan School District, etc., 241 Ind. 621, 172 N. E. 2d 864; Everglades D. League v. Napoleon B. Broward D. Dist., 253 Fed. 246, appeal dismissed 251 U. S. 567, 64 L. Ed. 418, 40 S. Ct. 219; State v. Bomar, 209 Tenn. 567, 345 S. W. 2d 763; State v. Tahash (Minn. 1962), 115 N. W. 2d 687; State v. Doggett (Okla. 1956), 296 P. 2d 185. Any other conclusion would result in the destruction of state governments.
In State v. Bomar, supra, the supreme court of Tennessee held:
“Failure of legislature to reapportion had no bearing upon the validity of rape conviction of petitioner sentenced to death by electrocution, where crime had been punishable by death in state continuously from 1871, even though provision for electrocution was enacted at time when General Assembly had not reapportioned itself in compliance with Constitution.” (Syl. ¶ 7.)
In State v. Doggett, supra, the criminal court of appeals of Oklahoma said:
“To sustain the contention of the petitioner would result in creating a state of chaos-and confusion. Probably 95 percent of the prisoners now confined in penal institutions oij the state have been committed for violating some statute enacted subsequent to what the petitioner claims was the last valid apportion ment act of the Legislature and they would be entitled to their discharge. Property rights have been created pursuant to statutes enaced by the legislative assemblies, marriages have been contracted and divorces granted pursuant to legislative enactment. Public offices have been created and appropriations made to pay the salaries of such officers. To hold for the petitioner would result in the abolition of the Highway Patrol. It would result in the rescission of the laws authorizing the creation of turnpikes and toll roads. The appropriations under which every department of state government now operates would be illegal and the very functions of government would cease. . . .” (pp. 186, 187.)
The question of the failure of the legislature to reapportion itself in accordance with the mandate of Art. 10, Sec. 2, could have no possible bearing upon the validity of the defendants’ convictions.
Defendants sought to introduce the testimony of John D. Munns, Sr., Superintendent of the Reformatory in Hutchinson, to show the general good character of the defendants and their amenability to prison routine while in the Reformatory, and to give the jury the benefit of the witness’ expert opinion on the subject of punishment, that life imprisonment is a more effective punishment as a deterrent to the crime of murder in the first degree than the death penalty. It was excluded by the court on the ground of immateriality. It is contended the testimony was material on the important issues of (a) the character of the defendants and their amenability to prison routine and regulations in the event they were sentenced to life imprisonment, and (b) as a material aid to the jury in determining which punishment to impose.
We are of the opinion the proffered testimony was not admissible, and the district court committed no error in excluding it. The testimony of good character pertained to the time while the defendants were in the Reformatory and not to the time of the commission of the offense or prior thereto. Character evidence, to help prove and evaluate, and to be admissible, must be confined to a time not too remote from the date of the commission of the offense. The general rule is that evidence of the defendant’s character after the commission of the crime with which he is charged, is inadmissible (20 Am. Jur., Evidence, § 331, p. 309). And the rule is well settled that when a defendant in a criminal action undertakes to establish good character as an element of his defense to the offense charged, he is limited in his proof to testimony regarding his general reputation for possessing the traits involved, in the community where he resides (State v. Frederickson, 81 Kan. 854, 106 Pac. 1061; State v. Howland, 157 Kan. 11, 138 P. 2d 424). In State v. Kirby, 62 Kan. 436, 63 Pac. 752, it was said:
“. . . When character is in issue, the law limits the inquiry to general character, and not to specific acts; not the estimate of a few, nor the opinion of a part of the community; but it can be shown only by common report, general reputation and opinion generally entertained of the party in the community where he lives. . . .” (l. c. 445.)
While Munns’ views on capital punishment would be proper before a legislative committee, they were wholly irrelevant before the jury. The penalty for murder in the first degree has been fixed by the legislature. The wisdom or deterrent effect of that penalty is for the legislature to determine and therefore is not a justiciable issue. A jury in a capital case cannot become legislators ad hoc and Rials on the issue of penalty cannot be converted into legislative hearings (People v. Love, 56 C. 2d 720, 336 P. 2d 33).
It is next contended the disRict court erred in denying the defendants’ request for psychiaRic examinaüon on October 24, 1961, to determine their mental capacity on the date of the homicide, and that the court abused its discretion in denying local counsel appointed to assist previously appointed counsel additional time in which to prepare for Rial and to obtain psychiaRic testimony. The contention presupposes the defendants were entitled, as a matter of statutory right, to an examination to determine their mental condition on the date of the killing. That was not the case. They were afforded the examination they were entitled to under our statute (G. S. 1949, 62-1531) and which was required under the circumstances (State v. Badders, 141 Kan. 683, 686, 42 P. 2d 943). The question of then lack of mental capacity at the time of the alleged commission of the crime, is to be determined by the jury empaneled to Ry the case, upon the evidence inRoduced bearing upon the issues, and not by a commission (G. S. 1949, 62-1532; State v. Eye, 161 Kan. 69, 166 P. 2d 572; State v. McBride, 170 Kan. 377, 226 P. 2d 246; State v. Andrews, supra; State v. Hickock & Smith, supra).
Did the disRict court abuse its discretion in denying local counsel’s motion for continuance? In considering this point we refer to the long standing rule that the matter of a continuance in a criminal case is largely in the discretion of the disRict court. Unless the ruling prejudices the defendant’s substantial rights in the Rial of his case it will not be disturbed (State v. Hickock & Smith, supra, and cases cited). Counsel appointed at Sharon Springs were active and diligent in preparation for the trial. They filed numerous motions, and were successful in having the venue changed from Wallace County to Russell County. Prior to the commencement of trial, they served notice to take the depositions of five Army medical doctors at Brooke Medical Center, who knew the defendants and who had made psychiatric examinations of them, and each doctor’s deposition was filed with the clerk of the court at Russell. Immediately before the trial commenced, they filed another motion for a change of venue or in the alternative for the appointment of local counsel to assist them in selecting a jury and to aid in the trial. The vigor and industry displayed by originally appointed counsel is the best proof that defendants suffered no prejudice through the refusal of a continuance. Although the record does not clearly indicate the number of times counsel conferred with the defendants at Hutchinson, it does reveal that conferences were had; that counsel made necessary investigations to obtain evidence, and did obtain it before trial. Moreover, the first week of the trial was given in selection of a jury; no evidence was introduced until October 30. In arguing the admissibility of the defendants’ confessions and/or statements, one of the court appointed counsel at Russell stated ‘We have the entire law of Kansas on it.” Inexcusable delay in the enforcement of our criminal law is one of the grave evils of our time, and delays incident to motions for continuance have come in many cases to be a distinct reproach to the administration of justice. Prompt disposition of criminal cases is to be commended and encouraged. But in reaching that result a defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to confer with counsel and to prepare his defense. Those rights were afforded the defendants. A careful reading of the record compels the conclusion that the four court appointed attorneys vigorously represented the defendants at the trial. They showed great zeal, industry and resourcefulness, and displayed exceptional talents in protecting the rights of the defendants at each and every step of the trial. It cannot be said that the denial of local counsel’s motion to continue constituted an abuse of the court’s discretion.
Nor do we think the district court abused its discretion in denying the motion to obtain psychiatric testimony. Two depositions taken at Brooke Medical Center were introduced in evidence by the defendants, and showed that each defendant was “mentally respon sible to distinguish right from wrong, adhere to the right and cooperate in his own defense if such is necessary.” Likewise, Dr. Wilks, a staff psychiatrist at the Larned State Hospital and a member of the sanity commission, testified for the defendants that they might have some mental impairment in the way of sociapathic personalities with paranoid traits but that was a different field of mental illness and was not a psychotic disorder that caused people to be legally insane. This court is firmly committed to the M’Naghten rule, or “right and wrong” test of insanity (Andrews v. Hand, supra, and cases cited), and there was no showing in the affidavits for continuance or in any of the motions asking for additional time, that the defendants were not able to distinguish between right and wrong or that any psychiatrist would have testified they were incapable of distinguishing right from wrong at the time of the killing so as to excuse them from the legal consequences of their act.
The defendants contend they were not afforded their constitutional right to counsel. In view of what has been heretofore said it seems unnecessary that the question be further discussed. However, the defendants cite and rely upon Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158, 53 S. Ct. 55, which holds in effect that in a capital case it is the duty of the court to assign counsel for defendant as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case. It is approximately 280 to 300 miles from Hutchinson to Sharon Springs and Goodland, and the defendants contend that their right to due process of law was violated since originally appointed counsel “were under such circumstances” because of the distance, and local counsel were appointed “at such a time” as to preclude the giving of effective aid in the preparation of the trial of the case. They refer to G. S. 1961 Supp., 62-1304, which provides in substance that counsel employed or appointed for an accused shall have free access to him at reasonable hours for the purpose of conferring with him concerning the charge against him and advising him with respect to his plea and to prepare his defense if one is to be made. Also, to G. S. 1949, 62-1304a, which provides in effect that any person held in confinement shall be permitted upon request to immediately confer privately with an attorney of his choice. The contention is without merit.
The removal of the defendants to the State Reformatory was for the defendants’ protection and because the facilities in Wallace County were not sufficient. Counsel for the defendants knew where they were and had freedom of access to confer with them at all times. Despite the distance, originally appointed counsel conferred with the defendants at Hutchinson and made necessary investigations to obtain evidence and did obtain it before trial. In so doing, counsel for Latham spent 17 days of preparation and counsel for York, 24 days of preparation before trial for which they claimed their expenses and statutory per diem. Moreover, the order of the court changing the venue to Russell County was done at their request. While no motion was made for appointment of local counsel until October 23, originally appointed counsel could have moved for such appointment on October 2, 1962, the first day of the regular October term. In considering the contention that local counsel was appointed “at such time” as to preclude giving effective aid in the preparation and trial of the case, we refer to the record which indicates the extent of preparation of counsel when, in arguing the admissibility of the defendants’ confessions and/or statements, one stated, “We have the entire law of Kansas on it.” We here reiterate what has been said concerning the zeal, industry, resourcefulness' and talents displayed by counsel for the defendants. While it is the duty of district courts in the administration of the law to see that the accused, however guilty he may be, shall have a fair trial according to the due and orderly course of the law, and this duty is emphasized in a capital case, it cannot be said that the defendants were denied their right to due process of law upon the grounds urged.
The defendants next contend the district court erred in overruling their objection to a question propounded to jurors on voir dire examination. The state’s attorneys asked the jurors the hypothetical question: “If you believe the facts so warrant, after hearing the evidence from the witness stand and the instructions of the court, is there any reason why you could not return a sentence of death in this first degree murder case?” This was followed by routine questions as to whether the juror could return a sentence of death or if he had any religious or conscientious beliefs that would prevent him from doing so. The defendants argue the question prejudiced the jury against them, and hence destroyed their right to learn who should be disqualified or challenged.
As previously indicated, 60 jurors were qualified for cause before any peremptory challenges were exercised. In the selection of each of the 60 jurors from whom the jury was finally selected, each defendant solemnly stated that he “passed for cause.” Peremptory challenges were thereafter exercised. The defendants concede the scope of a voir dire examination must be left virtually to the sound discretion of the district court, and we think no error was committed in permitting the state’s attorneys to ask the question complained of. In the first place, having passed each juror for cause, there was no one on the jury to whom the defendants objected (State v. Springer, 172 Kan. 239, 245, 239 P. 2d 944). In the second place, pertinent statutes read:
“If the offense charged be punishable with death, any person entertaining such conscientious opinions as would preclude his finding the defendant guilty shall not serve as a juror.” (62-1404.)
“No person who believes the punishment fixed by the law to be too severe for the offense or entertains any opinion that would preclude his finding the defendant guilty, shall be sworn as a juror.” (62-1405.)
The question was in conformity with the statutes and did not prejudice the defendants’ rights to a fair and impartial trial. It was proper to determine whether, if the facts introduced in evidence and under the instructions of the court, and the jury agreed upon a verdict of guilty, the juror could impose the death sentence, if the facts so warranted (State v. Curtis, 108 Kan. 537, 540, 196 Pac. 445; State v. Butler, 131 Kan. 680, 682, 293 Pac. 756; State v. Williams, 182 Kan. 468, 471, 322 P. 2d 726).
The defendants further contend that the written and oral confessions and/or statements given to F. B. I. and K. B. I. agents during the period from their arrest to arraignment were involuntary; that they were gained by psychological tactics, and were erroneously admitted into evidence. It is argued that the defendants were only 18 years of age; that they were questioned repeatedly for two days by Utah police officers and by F. B. I. and K. B. I. agents, and that the confessions were extracted in one of the more “sophisticated manners of police enforcement, which destroys their voluntariness just as surely as if the defendants had been beaten or subjected to other abuses.”
As previously indicated, the defendants were taken to the county jail in Salt Lake City on the evening of June 10, 1961. There, after identifying themselves as F. B. I. agents, Olson and Paxman interviewed Latham and Shepherd and Pleasant interviewed York separately. and advised them each was a possible suspect on a federal violation for car theft. The interview with Latham lasted approximately 30 minutes, from 8:21 to 8:55 p. m., and the interview with York lasted about 50 minutes. Each defendant was advised he did not have to talk, and if he did any statement he made could be used against him in court, and that each had a right to the services of an attorney, which each defendant declined. Neither wanted to notify his parents.
Olson testified that Latham did not appear to be scared, nervous or afraid, but he did not talk freely. Shepherd testified that York would not discuss anything except his education; that he was bom in Florida on February 6, 1943; about his family and military service, and that he had walked away from Fort Hood, Texas, on May 24, 1960.
The agents interviewed the defendants separately at the same place the following morning, and again advised each of his constitutional rights. After ten or fifteen minutes had elapsed, Latham, accompanied by Olson, came into the room where York, Shepherd and Pleasant were, and after two separate conversations between the defendants in a corner of the room outside the hearing of the agents, the defendants related their activities from May 24, 1961, to the date of the interview, and voluntarily told the agents about killing a man in Kansas. Until then all the information the agents had about a crime committed in Kansas had been received from other sources, and not until the defendants talked about it was it mentioned at the interviews. The following is a part of Olson’s cross-examination:
“Q. How did you know what to put in this statement when you typed it up the next morning? A. They furnished the information. . . . Q. The statements were based on information furnished by them. A. Yes. Q.. But yet you had never discussed it with this boy Latham? A. During our conversation prior to the time the statements were prepared Mr. Latham and Mr. York had given us the information concerning the crime in Kansas. Q. But you hadn’t discussed it with them? A. We didn’t have to. Q. You didn’t have to? A. No. When they started to tell us about their travel from May 24, 1961, up until June 10 out of Grantsville, they told us what they had done.”
The interview on the morning of June 11, 1961, lasted for an hour or so, and the defendants stated they would sign a written statement concerning their robbing and shooting Ziegler in Kansas. It was a “we” type statement where the defendants talked back and forth. During the interview the agents made notes and from the notes Olson prepared a typewritten statement for Latham, and Shepherd prepared a typewritten statement for York. The statements were presented to the defendants during the late afternoon of June 11, 1961, and before signing them, each defendant wrote in his own handwriting that he had read the statement consisting of two pages and that it was true to the best of his knowledge. Both agents testified they treated the defendants with courtesy, were friendly to them and attempted to gain their confidence; that they gave them cigarettes and may have given them cokes, and that they learned each defendant had been subjected to psychiatric examination and treatment.
K. B. I. agents Duntz and Ford interviewed the defendants in the Salt Lake City jail on the evening of June 11. They introduced themselves, and told the defendants they were investigating the murder of Otto Ziegler near Wallace, Kansas; that they did not have to tell anything, and if they did it could be used as evidence in court, and that they were entitled to an attorney. The agents knew the defendants had been questioned by F. B. I. agents, and suggested that they might be tired and perhaps they (the agents) should return later, but the defendants stated “they were not hungry or tired and would prefer to make a statement at that time.” They stated they wanted to make a joint statement, not separate statements. The interview lasted about 30 minutes. Ford testified to oral statements made by York relating to activities of the defendants in Kansas, and of conversations between the defendants and Ziegler not incorporated in their subsequently signed joint statement. He further testified that he originally prepared the statement in pencil, but upon defendants objection that such a statement could be changed, he then printed the statement signed by the defendants; that the joint statement was in his hand printing except the last paragraph which was in the handwriting of York as dictated by Latham, which reads: “We have read the above statement consisting of three pages, this being the last page. This being to the best of our knowledge is a true statement.” The defendants signed the statement about 7:00 p. m. after which Ford got hamburgers and cokes for them. Ford and Duntz then visited with the defendants about 15 minutes and learned their homes were in the South and that they were members of the United States Army. He further testified that oral statements which he attributed to York, were entirely from memory; that he had not made notations during the interview concerning them.
Over the defendants’ objections, Duntz testified at length that he heard the defendants make statements concerning the killing in Kansas, not in their written statement, which he called admissions. He further testified to conversations with the defendants on June 16, at the jail at Sharon Springs when York stated he would go with him to find the keys to the pickup.
The procedure followed by the district court in hearing evidence in the absence of the jury and deciding as a preliminary matter whether the oral and written statements and/or confessions of the defendants were freely and voluntarily made without force or coercion, was in conformity with the established rule of this court (State v. Seward, 163 Kan. 136, 181 P. 2d 478; State v. Stubbs, 186 Kan. 266, 349 P. 2d 936). With exceptional care and patience the district court considered all evidence offered by the state, and after vigorous cross-examination of the state’s witnesses, it concluded the statements and/or confessions were freely and voluntarily given. That finding was amply supported by the evidence. No threats were made and there was no coercion or misrepresentations. On the contrary, the defendants freely discussed and voluntarily gave detailed statements to the F. B. I. and K. B. I. agents of the robbing and killing of Ziegler. No other conclusion could be reached by the district court, or by this court upon appellate review, but that the defendants’ oral and written statements and/or confessions were freely and voluntarily given, and that they were admissible in evidence. Moreover, instruction No. 16 correctly informed the jury that if it found that an admission of guilt was brought about in whole or in part by threats, duress, promises, intimidation, artifice, or coercion, it could reject the same. Also, that the jury was the sole judge of the weight and credibility of any admission of guilt or confession the same as it was with respect to any other evidence in the case, and that it was at liberty to reject any part which it did not believe and to accept any part which it believed.
The contention is made that substantive due process was denied the defendants because an attorney was not present when the oral statements were made and the written statements were signed. The absence of counsel under such circumstances does not render a confession inadmissible (State v. Seward, supra; 2 Wharton’s Criminal Evidence, 11th Ed., § 628, p. 1055; 20 Am. Jur., Evidence, § 503, p. 434). The defendants cite McNabb v. United States, 318 U. S. 332, 87 L. Ed. 819, 63 S. Ct. 608. The case is not in point. That was a federal prosecution for violation of a federal law and the rule there announced is not applicable to state procedure. Further, it is argued that the defendants were not brought before a magistrate and arraigned on a first degree murder charge until they were returned to Kansas on June 16, 1961. The argument is not impressive. As soon as the defendants were returned to Sharon Springs they were taken before the judge of the county court where their rights to a preliminary hearing were fully explained to them, and they waived the right to such a hearing in writing.
We have carefully examined Rogers v. Richmond, 365 U. S. 534, 5 L. Ed. 2d 760, 81 S. Ct. 735, and Spano v. New York, 360 U. S. 315, 3 L. Ed. 2d 1265, 79 S. Ct. 1202, cited by the defendants. The facts in each case bear no semblance to the casé at bar. The evidence is clear that no coercion, psychological or otherwise, was exerted.
The defendants complain of the refusal of the district court to give numerous requested instructions, and in the giving of certain instructions. We have carefully examined the various contentions on this point and it would unduly extend an already lengthy opinion to detail and discuss each of them. It is sufficient to say that the court’s instructions as a whole correctly stated the law of murder in the first degree under the facts and circumstances of the case. Several of the requested instructions contained the essential legal principles covered in the court’s instructions in substance, if not in the exact form. However, one point requires attention. In instructions Nos. 7 and 9 the court instructed the jury it would first consider the offense of murder in the first degree as applied to each of the defendants and that before it could find them guilty, the state must prove to the satisfaction of the jury beyond a reasonable doubt the following essential elements (1) that the defendants on the date and place charged, did shoot and cause the death of Ziegler without lawful excuse, and (2) that the killing was committed in the perpetration or attempt to perpetrate robbery or a felony by the defendants, or that the killing was committed with willful intent, and that it was deliberate and premediated and committed with malice. The defendants argue the instructions were erroneous and prejudicial, and contend that there was no evidence that the homicide was committed while in tire perpetration of a felony. We do not agree. The homicide occurred as a part of a continuous assault upon Ziegler to rob him and the court was fully justified in instructing the jury that if the state proved beyond a reasonable doubt that the killing was committed in the perpetration or attempt to perpetrate a robbery or felony by the defendants, it should find the defendants guilty of murder in the first degree (State v. Roselli, 109 Kan. 33, 198 Pac. 195; State v. Jella, 132 Kan. 509, 296 Pac. 350). Moreover, the evidence was sufficient to warrant the court in instructing the jury that if it found the killing was willful, deliberate, premediated, and committed with malice, it should find the defendants guilty of the offense. The court committed no error in giving instructions 7 and 9.
The defendants insist that there was misconduct on the part of counsel for the state in their closing argument to the jury. To detail the remarks of counsel would serve no useful purpose. The argument abstracted tended to refer to a statement that a sentence for life does not necessarily mean the defendant will serve the full term of his natural life in prison. The defendants made no objection to the argument nor did they request that it be withdrawn and the jury admonished to disregard it. It is well settled that reversible error cannot be predicated upon a complaint of misconduct on the part of counsel for the state in the closing argument to the jury where the defendant makes no objection to the argument nor requests the court to withdraw the remarks and admonish the jury to disregard them. (State v. Hobl, 108 Kan. 261, 194 Pac. 921; State v. Curtis, supra.)
Counsel for the defendants have been diligent in advancing claims of error which we have meticulously examined to determine whether any possible error prejudicial to the rights of the defendants occurred. In addition to the brief of counsel, the defendants filed their handwritten joint supplemental brief pro se as amici curiae. The handwritten brief has likewise been carefully examined and no points are raised which were not raised and briefed by their counsel.
Our review of the record compels the conclusion that the defendants were given a fair and impartial trial and no grounds exist, specified or not, which would necessitate a reversal. The judgment rendered by the district corut againt each of the defendants in conformity with the verdict of tire jury is affirmed.
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The opinion of the court was delivered by
Jackson, J.:
This appeal is one from the order of the trial court sustaining the defendant’s demurrer to the plaintiff’s second amended petition and rendering judgment for the defendant for its costs.
The appellant filed his petition in the district court of Shawnee county against the Sisters of Charity of Leavenworth and St. Francis Hospital. The plaintiff seeks to recover the sum of $122,000.00 from the defendant due to an alleged breach of an oral contract for lifetime employment which the plaintiff contends was made between him and Sister Mary George acting within her apparent authority as administrator and agent of the defendant, Sisters of Charity.
To the second amended petition the appellee-defendant, Sisters of Charity, demurred for the reason and upon the ground that said amended petition does not state facts sufficient to constitute a cause of action. Essentially, the facts alleged are as follows:
At the time in question, February 23, 1953, it is alleged Sister Mary George was acting under apparent authority as administrator and managing agent of St. Francis Hospital for the defendant Sisters of Charity of Leavenworth. She handled all employer-employee relationships, hired and dismissed employees, paid and settled all obligations of the hospital and appeared to have full authority thereto. At all times the plaintiff alleges to be relying upon apparent authority of the administrator.
On or about February 21, 1953, plaintiff was an employee of the hospital and, while acting in said capacity, was allegedly injured severely and permanently as a result of a fall from a ladder.
It is alleged that two days later the plaintiff, in reliance on the apparent authority of the administrator, did orally contract with the defendant that if the plaintiff would refrain from prosecuting a claim against said hospital by reason of his injury, he could continue all the duties that he was physically able to perform for as long as he would desire to work and in the same capacity as chief maintenance engineer. He could remain employed for the rest of his Me at a salary comparable to that paid employees of similar institutions. The hospital, it is alleged, agreed to pay all of the plaintiff’s medical expenses arising out of said injury and also agreed to continue the plaintiff’s wages during such times as he might be unable to perform his duties as a result of such injury.
The plaintiff now asserts that, acting on reliance of this agreement, he has refrained from suing the defendant, has continued in the employ of the hospital according to the terms of the oral contract and is now unable to assert Ms claim as the statute of limitations has run. He alleges that the defendant also acted according to the terms of the agreement, making periodic adjustments in Ms wages, paying medical expenses of the plaintiff, and continuing to pay plaintiff his wages at times when he was unable to work due to the injury.
However, on January 12, 1960, the plaintiff alleges his employment was wrongfully terminated, breaching the contract to the injury and damage of said plaintiff.
The plaintiff asserts that he has been injured by this breach and has damages amounting to loss of earnings in the amount of $110,000.00 and prospective medical expenses in the amount of $12,000.00.
This appeal is from the ruling of the trial court sustaining a demurrer to the petition and it is incumbent on the court to draw all favorable inferences that may be drawn and to construe the petition most favorably to the pleader. When a demurrer is lodged against a petition, it is to be liberally construed in favor of the pleader, all well-pleaded allegations are to be taken as true and admitted, and pleader is entitled to all favorable inferences that may be drawn from the facts pleaded (Dugger v. State Highway Commission, 185 Kan. 317, 342 P. 2d 186; In re Estate of Shirk, 186 Kan. 311, 350 P. 2d 1; Shirk v. Shirk, 186 Kan. 32, 348 P. 2d 840; Adams v. City of Arkansas City, 188 Kan. 391, 362 P. 2d 829).
In the light of the facts aforementioned, this court has little difficulty finding the consideration for the contract, as alleged, to be sufficient, although the appellee would seem to assert the contrary.
There is no requirement that a legal obligation be pleaded and proved. The fact that the substance of a forbearance to sue need not be a legal claim is well established (Snuffer v. Westbrook, 134 Kan. 793, 8 P. 2d 950; Froelich v. Froelich, 155 Kan. 17, 21, 122 P. 2d 759; Brent v. McDonald, 180 Kan. 142, 152, 300 P. 2d 396).
Forbearance to sue can be good consideration for a promise, regardless of the actual validity of the claim, if the one who forbears has a reasonable and sincere belief in its validity.
“The view is taken that a reasonable and sincere belief in the validity of the claim is necessary and sufficient. It is sometimes stated that if an intending litigant bona fide forbears a right to litigate, he gives up something of value. The reality of the claim which is given up must be measured, not by the state of the law as it is ultimately discovered to be, but by the state of the knowledge of the person who at the time has to judge and make the concession.” (12 Am. Jur. p. 581, sec. 87.)
Construing the petition most favorably for the plaintiff, it can be said that some sincere right was forborne and that in reliance of such, the defendants acted accordingly.
We now come to the question of the apparent authority of the administrator of the hospital. Although we would agree that the contract made by the plaintiff with the hospital and the Sisters is probably unusual and one which the administrator might not be thought to have apparent authority to make in the first instance (Townsend v. Railway Co., 88 Kan. 260, 128 Pac. 389), that is not the whole story. In paragraphs V and VI of the petition it is alleged that the Sisters and the hospital carried out the contract for seven years as did the plaintiff. Certainly when plaintiff was off work as he alleges he was and when the hospital paid for his medical care at times, it would come to the attention of the managers of the corporation that plaintiff had a special contract. Thus, it must be thought that the Sisters have acquiesced in the making the contract by Sister Mary George and have ratified it.
This theory, of course, smacks of estoppel and the defendant immediately argues that the plaintiff has not pleaded estoppel. Plaintiff has not used the word “estoppel” in the petition, but paragraphs V and VI contain all the facts amounting to a claim of estoppel. It is even alleged that plaintiff has changed his position to his detriment in rebanee on the existence of the contract.
This pleading of a change of position is not generally necessary where the doctrine of estoppel is asserted because the defendant has acquiesced to a proposition. In the case of Bank v. Jesch, 99 Kan. 797, 163 Pac. 150, where the plaintiff bank claimed a mortgage upon the share of wheat of a former tenant of land on the basis that defendant had acquiesced in the fact that the tenant had such an interest in the wheat. The court said:
“The plaintiff contends that by his conduct at this time the defendant was precluded from afterwards denying its claim. The defendant maintains that no estoppel could have resulted, because the plaintiff’s position was in no way changed for the worse by reason of anything that had been said. . . . “Whether the principle is described as equitable estoppel, quasi-estoppel, waiver, ratification, election, or as a requirement of consistency in conduct, is not very important.’ (Powers v. Scharling, 76 Kan. 855, 859, 92 Pac. 1099.) “The doctrine of equitable estoppel is frequently applied to transactions in which it is found that it would be unconscionable to permit a person to maintain a position inconsistent with one in which he has acquiesced.’ (10 R. C. L. 694.) The courts properly look with favor upon a claim to a crop reasonably made by or under him who planted it. ‘If possible, the law allows the one who sows to reap.’ (Smith v. Frantz, 59 Ind. App. 260, 270.) Here the defendant not only acquiesced in the bank’s assertion of an interest in the wheat, but also exacted an enforceable promise that it would pay the expenses. Upon this ground we sustain the decision of the trial court.” (pp. 799, 800.)
Attention may also be drawn to 19 Am. Jur., Estoppel, Sec. 62, page 678 where it is said:
". . Estoppel by acquiescence is, obviously, closely related on the one hand to estoppel by consent and, on the other hand, to estoppel by silence or inaction, or by delay. In fact it is often impossible to distinguish clearly between such estoppels, and the courts in many instances use the term ‘acquiescence’ as covering or including all the others. ‘Acquiescence,’ as the term is here used, however, refers to an implied consent and need not involve anything in the nature of a positive affirmation; and while, as has already been pointed out, silence or inaction may, under some circumstances, amount to acquiescence, it does so only where the circumstances are such as to afford some ground for believing that acquiescence was intended. The rule is well recognized that where a party with full knowledge, or with sufficient notice or means of knowledge, of his rights and of all the material facts remains inactive for a considerable time or abstains from impeaching a contract or transaction, or freely does what amounts to a recognition thereof as existing, or acts in a manner inconsistent with its repudiation and so as to affect or interfere with the relation and situation of the parties, so that the other party is induced to suppose that it is recognized, this amounts to acquiescence and the transaction, although originally impeachable, becomes unimpeachable.”
See further Stark v. Meriwether, 99 Kan. 650, 657, 163 Pac. 152; Lillard v. Johnson County, 102 Kan. 822, 172 Pac. 518; Wilson v. Stephenson, 143 Kan. 91, 53 P. 2d 874; Rogers v. Dumas, 166 Kan. 519, 203 P. 2d 165.
Even if it is admitted that the contract sued upon be classed as unusual, still there is enough in the amended petition to indicate that the managers of the corporation acquiesced in the contract. That is sufficient on a demurrer.
In the brief defendant lays great stress on the section of the statute now appearing as G. S. 1961 Supp. 17-1725. This section was passed as Laws of 1959, ch. 127, Sec. 1. The section provided that corporations such as plaintiff who own and operate hospitals shall have certain benefits. It provides:
“. . . and such property, income or proceeds shall not be subject to attachment, garnishment, execution, or other forced disposition or process except . . . for obligations contractually assumed by such corporation for the purpose of rendering its services, and performing its functions, for such beneficiaries.” (Emphasis supplied.)
Defendant makes the claim that the legislature has exempted defendant from the rule of Noel v. Menninger Foundation, 175 Kan. 751, 267 P. 2d 934; however, we do not need to pass upon that question at the present time.
Plaintiff’s cause of action is one sounding in contract — a contract which engaged an employee for the hospital. On its face the contract would not appear to be made in contravention of the statute. It is of course true that the contract involved in the case at bar did involve the settlement of a tort claim, but certainly the statute would not be urged as making such a contract void if defendant honestly entered into it.
Further plaintiff has alleged that the pertinent contract was in existence for six years prior to the time of the passage of the statute. Certainly, the legislature had no constitutional power to abrogate a binding six year old contract by simply passing a statute. (Douglass v. Loftus, Adm’x, 85 Kan. 720, 119 Pac. 74.)
Defendant has included a cross appeal attached as a counter abstract to its brief. Defendant complains that the trial court did not sustain parts of the motion to make definite and certain leveled at the plaintiff’s petition. We do not believe that the cross appeal is well taken. Most of the material asked for in the motion and now urged on appeal is defensive matter which can be pleaded in defendant’s answer and concerning which there would seem no duty on plaintiff’s behalf to plead in the petition.
Moreover, motions to make definite lie so much in the discretion of the trial judge that this court rarely considers them on appeal. We are confident that the petition was not so indefinite as to be uncertain of the charge (G. S. 1949, 60-741; Marshall v. Duncan, 182 Kan. 540, 322, P. 2d 762).
We believe that the plaintiff’s petition does state a cause of action for breach of contract, and that the learned trial judge erred in sustaining the demurrer. Whether plaintiff will be able to prove his case is another question, but we believe he should have a chance to try to do so.
The judgment and orders appealed from should be reversed. The cross appeal is affirmed. It is hereby so ordered.
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The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action in which appeal has been duly perfected from a conviction of grand larceny and burglary in the second degree. Conviction was based upon evidence of possession of stolen property by the appellant shortly after the theft.
The sole question presented on appeal is whether evidence admitted at the trial over the appellant’s objection was in fact obtained by an unlawful search and seizure.
Sometime between the hours of 6:00 p. m., December 16, 1961, and 1:30 a. m., December 17, 1961, the Mann Automatic Transmission Company, Inc., in Johnson County, Kansas, was burglarized. Entry was gained by breaking a back window. Property stolen by reason of such entry consisted of blank checks bearing the transmission company’s name, a check protector, and money belonging to said corporation. The money was taken by breaking open a cash drawer inside the premises.
The appellant, Harold Wayne Blood, and Bemie Herndon were charged with the crime. Blood was tried alone, and Herndon at the time of trial was in lie Missouri State Penitentiary.
At approximately 1:30 a. m. on December 17, 1961, Trooper Price of the Missouri State Highway Patrol was on duty near Harrisonville in Cass County, Missouri. While on regular patrol he received a dispatch from the Lee’s Summit radio on a 1954 Oldsmobile bearing license No. CP-2907. The dispatch gave the description of the automobile; said that it was leaving the junction of 150 and 71 bypass; and that the occupants had stolen a watch from a service station at the junction.
Approximately five minutes after Trooper Price received this radio dispatch he stopped the vehicle described. It was bearing a Missouri registration tag. Upon asking the appellant, who was driving the vehicle, for a registration certificate on the vehicle, he produced a Kansas registration certificate from his wallet.
The occupants of the automobile were the appellant, Herndon, and a sixteen-year-old boy by the name of Robert Ray Smith. Upon questioning they denied any knowledge concerning a stolen watch, and at the trooper’s direction they drove back to the service station at the junction described, where they parked partially on the shoulder of the highway leading into the service station.
Upon further questioning by Trooper Price at the service station Herndon produced the watch. He had it on his arm at the time.
Trooper Meyer of the Missouri State Highway Patrol met Trooper Price at this location.
As a result of questioning it was ascertained that the appellant owned the vehicle. Upon investigation it was disclosed the Missouri license plate on the vehicle was issued to a Jane Draper of Kansas City, Missouri. Trooper Meyer looked into the automobile from the outside using a flashlight and saw several credit cards lying on the front seat and several on the floor board on the right-hand side. He also observed a green metal box behind the left front seat. After seeing these things he questioned the appellant and Herndon about them. The appellant stated he did not know where they came from, and that they did not belong to him. Herndon likewise denied any knowledge about these items. Trooper Meyer then testified:
“Q. All right. Then what did you do with reference to this defendant and the other two men?
“A. We placed them all under arrest at that time and searched the car.”
As a result of the search the appellant’s Kansas license registration tag was found in the trunk of the automobile. Blank check forms bearing the Mann Automatic Transmission Company name were found in a coat pocket lying on the rear seat; a check protector was found inside the green metal box which had been observed from outside the vehicle; and the credit cards seen from the outside of the vehicle, numbering eighteen in all, were identified as credit cards of tibe Commercial Cartage Company in Kansas City, Missouri. The coat on the back seat was ascertained to belong to the appellant.
Investigation early on the morning of December 17, 1961, disclosed the blank checks and the check protector to have been taken from the Mann Automatic Transmission Company, Inc., which had been burglarized in Johnson County, Kansas, and the credit cards to have been taken from the Commercial Cartage Company in Kansas City, Missouri, which had also been burglarized during the night.
Trooper Meyer testified that he arrested the appellant actually on two charges — “on investigation of theft for the watch and also for a stolen license plate on the car.”
At tire time of the arrest both the appellant and Herndon stated the items which had been seen through the window did not belong to either of them. When Trooper Meyer opened the green box which had been seen through the window of the automobile he said “I had reasons to believe that possibly there was stolen — ;” that he was not just fishing, because he saw the credit cards lying in the car, and the explanation given by the appellant gave him reason to believe the credit cards and the contents of the green metal box had been stolen.
At no time did either of the troopers arrest the appellant for possession of stolen property.
Counsel for the appellant moved the trial court to suppress the testimony of Trooper Meyer before it was given on the ground that it was obtained by an illegal search of the appellant’s automobile. Counsel for the appellant also moved to suppress the evidence “of anything that the police officer testified to in the trunk of the car or in the box,” after the testimony was in, for the reason that it violated his constitutional rights. These motions were overruled by the trial court without giving any reason. The foregoing question was reserved by proper objections and motions throughout the trial and is properly presented on appeal.
Our task on appeal is to determine if the evidence was admissible under any theory of the law, consistent with the ruling of the trial court that the evidence was admissible on constitutional grounds. The decision of the trial court in favor of the state on this point necessarily encompassed a general finding on the facts in favor of the state. The facts heretofore stated have therefore been given in accordance with the state’s evidence. (See, Davis v. United States [1946], 328 U. S. 582, 90 L. Ed. 1453, 66 S. Ct. 1256.)
The appellant first contends the highway patrol officers lost the ordinary peace officers’ power of search and seizure when the appellant’s automobile left the highway and stopped on the ramp of the service station. The provisions of R. S. Mo. 43,200, as amended, read:
“1. The members of the patrol shall not have the right or power of search nor shall they have the right or power of seizure except to take from any person under arrest or about to be arrested deadly or dangerous weapons in the possession of such person, and except that the members of the patrol shall have the power of search and seizure on a public highway of this state.”
Prior to 1959 the wording of this statute did not include the last exception which now gives highway patrol officers the power of search and seizure on public highways of the state of Missouri. No cases have been cited on this point by the appellant except State v. Jones [1948], 358 Mo. 398, 214 S. W. 2d 705, which was decided before the amendment.
The appellant’s contention on this point is without merit. The appellant was originally stopped on a Missouri highway as a result of a radio dispatch describing the vehicle and informing the troopers that an occupant of the vehicle had stolen a watch. The appellant was thereupon directed to return to the service station located on the highway, after it had been ascertained that the registration tag on his vehicle did not correspond with the registration certificate in his pocket. The fact that a portion or all of the appellant’s vehicle may have been off the highway right of way when the subsequent events occurred is immaterial.
The appellant next contends:
“The protection of the Fourth Amendment [to the Federal Constitution] has to do with the right of a citizen to be secure in his private property. The ‘search and seizure’ herein, to be upheld, must of course, have been made subject to a lawful arrest. In addition, the search must be bona fide for articles connected with the arrest.”
The objects alleged to have been stolen in this case are: (1) A check protector of the Mann Transmission Company, Inc.; (2) blank check forms of the Mann Transmission Company, Inc.; and (3) an undetermined amount of cash of approximately $50. At the time of apprehension the appellant had $41.64 on his person and Herndon had $69.27.
The Fourth Amendment to the Constitution of the United States reads:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Missouri Constitution (Art. 1, § 15) and the Kansas Bill of Rights (§ 15) contain similar language.
The Kansas Supreme Court has consistently held heretofore that even though evidence was obtained in violation of this constitutional provision, it was nevertheless admissible. (State v. Johnson, 116 Kan. 58, 226 Pac. 245; State v. Fiske, 117 Kan. 69, 230 Pac. 88; State v. Kelley, 125 Kan. 805, 265 Pac. 1109; and others.)
The federal exclusionary rule announced in Weeks v. United States [1914], 232 U. S. 383, 58 L. Ed. 652, 34 S. Ct. 341, was extended to states by the decision in Mapp v. Ohio [June, 1961], 367 U. S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684. This case and others were discussed in State v. Wood, 190 Kan. 778, 378 P. 2d 536, decided this date. In Mapp the Fourth Amendment’s right of privacy was declared enforceable against the states through the Due Process Clause of the Fourteenth Amendment, and was made enforceable against them by the same sanction of exclusion as is used against the Federal Government. Cases of the United States Supreme Court relating to unreasonable searches and seizures under the Fourth Amendment are therefore material in determining whether the exclusionary rule is applicable in a state prosecution.
While Kansas is now obligated to embark on a new course, the Supreme Court of Missouri apparently anticipated Mapp by thirty-seven years in State v. Rebasti [1924], 306 Mo. 336, 267 S. W. 858, and Missouri law presumably has developed consistent with Mapp.
Since the search and seizure concerning which complaint is made occurred in the state of Missouri, we shall look to the Missouri law to determine whether the evidence should have been suppressed. However, it must be determined in the light of Mapp v. Ohio, supra, and other federal decisions which now overshadow the law of the several states. Missouri cases have been accumulated in 29 U. Kan. City L. Rev. 242, by Professor John Scurlock, in an article entitled “Searches and Seizures in Missouri.”
The Fourth Amendment to the Federal Constitution denounces only such searches or seizures as are unreasonable, and it has been construed in the light of what was deemed an unreasonable search and seizure when the constitution was adopted, and in a manner which was intended to conserve public interests as well as the interests and rights of the individual citizens. Under the common law, and agreeably to the Constitution, search may in many cases be legally made without a warrant. The Constitution does not forbid search, but it does forbid unreasonable search.
In Carroll v. United States [1925], 267 U. S. 132, 69 L. Ed. 543, 45 S. Ct. 280, it was said:
“On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.” (p. 149.)
A distinction is made between the search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, and a man’s private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. Laws which provide for the search and seizure of articles and things which it is unlawful for a person to have in his possession for the purpose of issue or disposition, such as counterfeit coin, lottery tickets, implements of gambling, etc., are not within the category of private books and papers. (Carroll v. United States, supra; Davis v. United States [1946], 328 U. S. 582, 90 L. Ed. 1453, 66 S. Ct. 1256; and State v. Pigg [1925], 312 Mo. 212, 278 S. W. 1030.)
The foregoing distinction was clarified by language in Harris v. United States [1947], 331 U. S. 145, 91 L. Ed. 1399, 67 S. Ct. 1098, as follows:
“. . . This Court has frequently recognized the distinction between merely evidentiary materials, on the one hand, which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest, and on the other hand, those objects which may validly be seized including the instrumentalities and means by which a crime is committed, the fruits of crime such as stolen property, weapons by which escape of the person arrested might be effected, and property the possession of which is a crime. . . .” (p. 154.)
A difference is recognized between a man s dwelling house and an automobile on the highway as indicated by the following language in Carroll, supra:
“We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” (p. 153.)
Carroll was quoted and the arrest of a motorist on a highway without a warrant was discussed in State v. Padgett [1926], 316 Mo. 179, 289 S. W. 954.
It is fundamental that a search without a warrant is, within limits, permissible if incident to a lawful arrest. Rut if an arrest without a warrant is to support an incidental search, such arrest must be made with probable cause. Probable cause is said to exist if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed. (Stacey v. Emery [1878], 97 U. S. 642, 645, 24 L. Ed. 1035; Director General v. Kastenbaum [1923], 263 U. S. 25, 28, 68 L. Ed. 146, 44 S. Ct. 52; Giordenello v. United States [1958], 357 U. S. 480, 486, 2 L. Ed. 2d 1503, 78 S. Ct. 1245; State v. Green [Mo. 1956], 292 S. W. 2d 283; State v. Edwards [Mo. 1958], 317 S. W. 2d 441; and State v. Wood, supra.)
Where a lawful arrest is made and the person arrested is the driver or in control of an automobile, the automobile may be searched as an incident of the arrest. This includes the whole interior of the automobile and the trunk. (State v. Jonas [Mo. 1953], 260 S. W. 2d 3; and State v. McNeece [1927], 317 Mo. 304, 295 S. W. 737.) The keys may be taken from him to get into a locked trunk. (State v. Howard [1929], 324 Mo. 145, 23 S. W. 2d 11.) The search of the interior of the automobile and the seizure of evidence, if incident to a lawful arrest, is reasonable, and whatever is found upon his person or in his control, which it is unlawful for him to have, and which may be used to prove the offense, may be seized and held as evidence in the prosecution. (State v. Edwards, supra; State v. Green, supra; and see, Weeks v. United States, supra; and Carroll v. United States, supra.)
The seizure of stolen goods is authorized by the common law. (Boyd v. United States [1886], 116 U. S. 616, 29 L. Ed. 746, 6 S. Ct. 524.)
Summarizing the rules with which we axe concerned in this case it may be said that without a warrant no search for evidence-may be made of an automobile, unless there is probable cause on the part of the officer to believe that the automobile contains contraband or stolen property, or unless an arrest has been made upon probable cause, in which event the search must be incidental to the arrest. As to the former it was said in Carroll, “The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.” (pp. 158, 159.)
Turning now to the facts in the case at bar, it is apparent Trooper Price had reasonable grounds to stop the vehicle in question, and reasonable grounds to believe that a crime had been committed. After he stopped the automobile, he questioned the appellant, who was driving, concerning its registration and found that it was improperly registered. As to the registration it was apparent a misdemeanor had been committed in his presence. The record does not disclose whether the theft of the watch was a felony or a misdemeanor. As to this point the burden is upon the appellant to show error. Therefore, we shall assume that the offense was a felony.
For either of the foregoing offenses, a warrant to arrest the appellant was not necessary. After the appellant and his companions were returned to the scene of the watch theft, Trooper Meyer saw the credit cards through the window of the automobile with the assistance of a flashlight. It has been held that the eye cannot commit a trespass condemned by the Fourth Amendment. (See, McDonald v. United States [1948], 335 U. S. 451, 93 L. Ed. 153, 69 S. Ct. 191.) Observation of that which is in plain view is not a search. (State v. Campbell [Mo. 1953], 262 S. W. 2d 5; State v. Hawkins [1951], 362 Mo. 152, 240 S. W. 2d 688; and State v. Harre [Mo. 1955], 280 S. W. 2d 41.)
In Ellison v. United States [1953], 206 F. 2d 476, the United States Court of Appeals for the District of Columbia Circuit, said:
“. . . Nor were they guilty of any impropriety in allowing their eyes to wander while they were waiting on the porch. The bottles and cigarettes were not covered or hidden, though it may have been necessary to bend over the porch rail to see them. There was no intrusion into appellant’s privacy. Nor did mere observation constitute a ‘search.’ If an officer sees tire fruits of crime — or' what he has good reason to believe to be the fruits of crime — lying freely exposed on a suspect’s property, he is not required to look the other way, or disregard the evidence his senses bring him. Law enforcement is difficult enough, without requiring a police officer to free his mind of clues lying flatly before him.” (p. 478.)
After Trooper Meyer observed the credit cards he asked the appellant and his companions about them, and they denied any knowledge of them even though clearly visible in the automobile. At this point the trooper had probable cause to believe the automobile contained stolen property. At this time the theft of the watch had been confirmed to the trooper, and the vehicle was bearing stolen license plates. (See, Joe Bell Games, Inc. v. Wilson [1959], 192 N. Y. S. 2d 465; Ellison v. United States, supra; and State v. Padgett [1926], 316 Mo. 179, 289 S. W. 954.) When an officer upon lawfully stopping an automobile on the highway perceives that it probably contains stolen property, he has the power to search it independently of the arrest, and there is no need to go through the formality of a rearrest.
An officer lawfully on the premises or in a public place can always seize property which is open to his view, if he has reasonable cause to believe it is being kept or used in violation of the law. (Ellison v. United States, supra.) There is no contention that the troopers were not officers or that they were not in a public place or lawfully on the premises where the search was made.
It must be recognized that vehicles are protected against unreasonable searches and seizures. (State v. Cuezze [Mo. 1952], 249 S. W. 2d 373; and State v. Jones [1948], 358 Mo. 398, 214 S. W. 2d 705.) But because of their mobility different standards of reasonableness are employed in judging whether the search of automobiles is lawful. (State v. Pigg [1925], 312 Mo. 212, 278 S. W. 1030.)
It is argued by the appellant the search of the automobile in the instant case was not made as an incident of a lawful arrest; that it was unnecessary to search the vehicle to find the stolen watch, since it had been produced. Assuming this to be correct for purposes of argument, the officers under the circumstances were still entitled to search the vehicle for weapons, and a Kansas license plate corresponding to the registration certificates produced by the appellant. The Kansas license plate registered to the appellant was subsequently found in the trunk during the search. Wholly inde pendent of the arrest, however, the officers had probable cause to search the vehicle for stolen property.
In Harris v. United States [1947], 331 U. S. 145, 91 L. Ed. 2d 1399, 67 S. Ct. 1098, the court emphasized that it was only unreasonable searches and seizures which come within the constitutional interdict; that the test of reasonableness could not be stated in rigid and absolute terms; and that each case was to be decided on its own facts and circumstances, citing Go-Bart Co. v. United States [1931], 282 U. S. 344, 357, 75 L. Ed. 374, 51 S. Ct. 153. In Harris a warrant had been issued for the petitioner s arrest charging violations of the Mail Fraud Statute and the National Stolen Property Act. Upon arrival at the petitioner’s apartment he was arrested in the living room, and without a search warrant an intensive search followed for two canceled checks and other means by which the crimes charged might have been committed. In the course of this search a sealed envelope, marked “personal papers” of the accused was found and torn open. It contained several draft cards which were property of the United States, and the possession of which was a federal offense. Thus, an arrest for one felony which was followed by a search, produced evidence of another felony. It was held that the evidence found in the search was not obtained in violation of the provisions of the Fourth Amendment against unreasonable searches and seizures, nor did its use violate the privilege of the accused against self-incrimination under the Fifth Amendment. In the opinion the court said:
“. . . Nothing in the decisions of this Court gives support to the suggestion that under such circumstances the law-enforcement officials must impotently stand aside and refrain from seizing such contraband material. If entry upon the premises be authorized and the search which follows be valid, there is nothing in the Fourth Amendment which inhibits the seizure by law-enforcement agents of government property the possession of which is a crime, even though the officers are not aware that such property is on the premises when the search is initiated.” (p. 155.)
The state of Missouri has similar decisions. In State v. Padgett [1926], 316 Mo. 179, 289 S. W. 954, a motorist was arrested for reckless driving, and in arresting the motorist for such misdemeanor the officer discovered the presence of other things which disclosed the motorist was also in the act of committing a felony. The court held the officer was authorized without a warrant to make the arrest, and to hold the motorist for the felony; further, that the evidence seized was admissible.
In State v. Howard [1929], 324 Mo. 145, 23 S. W. 2d 11, an officer made an arrest of a motorist on a public highway without a warrant upon probable cause that the person arrested had committed a felony. Following the arrest a search disclosed evidence tending to show that the person arrested was guilty of another felony. Upon trial for the second felony it was held the evidence could not be suppressed as having been obtained by an unreasonable search and seizure. (See, also, Gray v. State [1943], 243 Wis. 57, 9 N. W. 2d 68; and 1959 Wis. L. Rev. 347, “Search and Seizure — Search Incident to Arrest for Traffic Violation.”)
We hold under all of the facts, conditions and circumstances disclosed by the record herein that the Missouri Highway Patrol Officers had probable cause to search the vehicle in question on the ground that it contained stolen property, part of which was in plain view prior to any search having been conducted. Thus, the trial court did not err in refusing to suppress the evidence which the appellant contends was seized unlawfully and in derogation of his constitutional rights, and in overruling the appellant’s motion for a new trial.
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The opinion of the court was delivered by
Fatzer, J.:
These are appeals by the defendant from orders overruling his motion to abate the criminal action on a worthless check under G. S. 1949, 21-556, upon a showing that he has been discharged in bankruptcy. The facts are not in dispute.
On March 21, 1961, complaint was made in the county court of Ness County charging the defendant with giving a worthless check to the Ransom Farmer’s Coop Union in the amount of $563.50, drawn upon the Farmers and Merchants State Bank of Macksville. The defendant waived preliminary hearing, and was bound over to the district court for trial.
Following the filing of an information in the district court, the defendant filed his application to abate the action and for stay of proceedings, and alleged that on August 23, 1961, he was adjudged a bankrupt in the United States District Court for the District of Kansas, but that he had not as yet received his discharge in bankruptcy. The prayer was that the action be abated and that all proceedings be stayed in the district court of Ness County until the bankruptcy proceeding was determined.
On September 7, 1961, a hearing was had on the application to abate at which the defendant offered evidence that he had an account in the Macksville bank 30 days next prior to the giving of the check to the Ransom Coop; that he and his wife conducted a trucking operation in the name of the Breitenbach Trucking Company of Belpre consisting of 24 outfits: 9 tractors and 21 trailers; that other truckers owning tractors pulled some of his trailers; that he would sign about 100 blank checks a week which were used by his drivers for trucking expense, gasoline and to buy grain; that the check in question was given by one of his drivers to the Ransom Coop for grain; that his drivers bought grain all over the country, and that he did not know when or how many of the checks would be negotiated at any given time. He further testified that he did not know the check to the Ransom Coop would overdraw his account at the bank.
The district court found that the defendant had an account in the bank 30 days next prior to the giving of the check, and that it was given without intent to defraud the Ransom Coop. Accordingly, the court entered its order that the defendant had the right to abate the action by paying the check and the costs, and overruled the application to stay proceedings. Appeal No. 42,859 is from the orders overruling defendant’s motion for a new trial and to stay proceedings, and from that portion of the order where the court “ordered the defendant to abate said proceedings by paying said check upon determination by said court of the defendant’s right to abate as provided by G. S. 1949, 21-556.”
On November 15, 1961, the defendant received his discharge in bankruptcy, and thereafter filed a motion to dismiss the worthless-check action alleging his discharge in bankruptcy. Upon the hearing of the motion to dismiss, the district court found that it had entered its order on September 7, 1961, finding the defendant had shown the right to abate the action by paying the check and the costs pursuant to G. S. 1949, 21-556, and upon his failure to pay the check and costs, the motion to dismiss was overruled. The defendant filed a motion for a new trial, which was overruled, and appeal No. 43,017 is from that order. Upon application of the parties, the appeals were consolidated.
The sole question presented is whether a discharge in bankruptcy may be pleaded by an offender under the worthless-check statute (G. S. 1949, 21-554) as payment of the check in a proceeding authorized by G. S. 1949, 21-556, and thereby secure an abatement of the criminal action and obtain his discharge. Section 21-556 reads:
“That in any case where a prosecution is begun under this act, the defendant shall have a right, upon application made for that purpose before trial, to have said action abated by showing to the court or judge that he has had an account in said bank upon which said check or draft was drawn, thirty days next prior to the time said check or draft was delivered and that said check or draft was drawn upon said bank without intent to defraud the party receiving the same, and if the court shall so find, said action shall be abated and the defendant shall be discharged upon paying into court the amount of such check and the costs in said case.”
The defendant argues that since the district court found he had a right to abate the action, the showing of his discharge in bankruptcy of all his debts was the equivalent of payment of the check and such discharge may be pleaded as payment of the check in an abatement proceeding authorized by G. S. 1949, 21-556, and he relies upon In re Myers, 119 Kan. 270, 237 Pac. 1026. In support of his argument the defendant contends that since the Coop did not file its claim in the bankruptcy court and secure a determination that the check was a debt incurred to obtain property by false representations and was not dischargeable under Sec. 17a (2) of the Bankruptcy Act (11 U. S. C. A. § 35 [a] [2]), the discharge in bankruptcy constituted payment of the check. He asserts that had such a claim been made and the bankruptcy court determined that the check was the instrument by which grain was obtained by the false representations of the defendant, the debt represented by the check would not have been discharged and the district court would have been permitted to determine whether tibe defendant had the right to abate the check, and if it found that he did, to require payment of the check and costs as a prerequisite for his discharge from the criminal action.
We first consider the applicability of In re Myers, supra. That was an original proceeding in habeas corpus in which the petitioner sought release from the sheriff of Ellis County after being bound over to the district court for trial on a worthless-check charge. The abstracts and briefs on file in the State Library (Vol. 12, Briefs 119 Kan.) show the petitioner alleged that he was arrested for issuing a worthless check in Haskell County for apples purchased in Ellis County and that no crime had been committed in Ellis County; that prior to his arrest he had filed a voluntary petition in bankruptcy; that he had been adjudicated a bankrupt and had surrendered his assets to the court in bankruptcy; that the vendor-payees of the check had filed their claim with the referee in bankruptcy, which was allowed; that the referee in bankruptcy advised the petitioner not to pay the check and that payment of the same within four months prior to the adjudication of the bankrupt would result in a preference to the payees; that the allowance by the referee of a claim based on the check removed the check from the purview of the criminal statute and resulted in a bar of the action, and that a payment of $15 on the check destroyed the right to make a demand on the bank and also removed it from the prohibition of the statute. The transcript of the evidence taken at the preliminary hearing was attached to the petition and showed the petitioner attempted to abate the criminal action before the examining magistrate.
As the opinion indicates, the writ of habeas corpus was denied, it being held that although the check was given in Haskell County and mailed to the vendors in Ellis County, jurisdiction of the crime was in either county; that the fact the worthless check had been allowed by the referee in bankruptcy was not alone of vital consequence with respect to the criminal action; that the attempt to abate the criminal action before the examining magistrate was premature since jurisdiction of such a proceeding is vested in the district court, and the fact that bankruptcy proceedings had been precipitated did not bar the petitioner from exculpating himself under the worthless-check statute (21-556) “which sanctions an abatement and dismissal of the prosecution under certain conditions.”
While the opinion contains language that, and paragraph 5 of the syllabus so holds, a discharge in bankruptcy is the equivalent of payment of the defendant’s civil liability to the payee of the check and may be pleaded as payment of the check in a proceeding to abate the action, such a holding overlooks the mandatory requirements of 21-556 to abate the defendant’s criminal liability and secure his discharge from the criminal action. We have no quarrel with the holding that a discharge in bankruptcy is the equivalent of payment of the civil liabilities of all the bankrupt’s provable debts (11 U. S. C. A. § 35; G. S. 1949, 60-3601, 3602; Failor v. Wehe, 98 Kan. 325, 158 Pac. 74; Bank v. Hoffman, 102 Kan. 465, 171 Pac. 13). Rut the language that a discharge in bankruptcy may be pleaded as payment of a worthless check in a proceeding under 21-556 to abate a criminal action must be regarded as a mere gratuitous expression in the form of dicta on a point not an issue for decision, and we are compelled to hold that paragraph 5 of the syllabus and the corresponding portion of the opinion must be overruled.
The right to abate a criminal action afforded an offender under 21-556 is a right which he may or may not invoke. It is a privilege given by law to permit such an offender to correct an innocent mistake in issuing an insufficient fund check (State v. Morris, 190 Kan. 93, 372 P. 2d 282). If the right is invoked, the offender must bring himself clearly within the terms of the statute, that is, he must show to the satisfaction of the court or judge that he has complied with the three statutory requirements: first, that he had an account in the bank 30 days next prior to the giving of the check; second, that the check was given without intent to defraud the party receiving it, and third, if the court shall so find, “said action shall be abated and the defendant shall be discharged upon paying into court the amount of such check and the costs in said case” G. S. 1949, 21-556; State v. Morris, 190 Kan. 93, 372 P. 2d 282).
While grain may have been obtained from the Coop by the false representations of the defendant’s worthless check within the meaning of Sec. 17a (2) of the Bankruptcy Act (1 Collier on Bankruptcy, 14th Ed., § 17.16, p. 1612), that offense is not the crime the defendant is alleged to have committed (State v. Avery, 111 Kan. 588, 207 Pac. 838), and such a fact becomes immaterial where the defendant seeks to abate the criminal action under 21-556. The criminal prosecution is a matter in which the state alone is interested, and it is wholly unrelated to the proceedings in the bankruptcy court. It is elementary that there is a difference between a criminal action and a civil proceeding such as one in bankruptcy. Where the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is not merged in the other (G. S. 1949, 60-109). The state is not here seeking to enforce the Coop’s civil remedy. On the contrary, the defendant is seeking to abate the criminal action and obtain his discharge. That may be done only in the manner provided by the statute. While his discharge in bankruptcy is the equivalent of payment of his civil liabilities to his creditors, his payment of the check and costs to abate his criminal liability would not now constitute a preference of his creditors. Nor does the fact that the bankruptcy court made no de termination that the debt represented by the check was not dis-chargeable under Sec. 17a (2) preclude the state from asserting that the defendant comply with the clear and unambiguous terms of the statute.
The defendant’s right to abate the action has been established, but he has only complied with the first two statutory requirements. Upon his compliance with the third requirement, that is, by forthwith paying into court the amount of the check and the costs of the case, the criminal action will be abated and he is entitled to his discharge, otherwise the case should proceed to trial upon the information.
Our examination of the record discloses no error and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This action stems from a dispute over the amount to be paid for the loss of a leg under the accidental injury provisions of an automobile insurance policy.
The facts material to the issues, all of which were stipulated, may be summarized as follows:
The plaintiff, Harold E. Taylor, carried automobile insurance with the defendant, State Farm Mutual Automobile Insurance Company. The policy contained a special provision designated “Insuring Agreement IV” which made available coverage of “Automobile Accidental Death Indemnity, Specific Disability and Total Disability Insurance.”
Insuring Agreement IV was divided into two types of coverage. “Coverage S” covered death, or specific loss (loss of sight or dismemberment). “Coverage T” covered total disability to be paid on a weekly basis but in no event to extend beyond a period of 260 consecutive weeks.
The insured contracted for “Coverage S” but did not contract for “Coverage T.” The fact that “Coverage T” was available to the insured but not contracted for by him eliminates such coverage as an issue in this case except as it reflects on the cases cited by the insured in support of his contention. As “Coverage S” presents the policy contract which determines the rights and liability of the parties its provisions will be considered in detail.
Under “Division 1” of “Coverage S” the insurer agrees:
“To pay the principal sum stated as applicable in the exceptions of the declarations in event of the death of each insured which shall result directly and independently of all other causes from bodily injury caused by accident and sustained by the insured while occupying or through being struck by an automobile, . . .”
It is stipulated that the principal sum mentioned in the above quotation was $5,000.00.
Under “Division 2” of “Coverage S” the insurer agrees:
“To pay the highest amount stated as applicable in the Schedule, for loss as enumerated therein, in the event of bodily injury caused by accident and sustained by the insured while occupying or through being struck by an automobile, . . .”
“Division 2” provides further:
“The company’s limit of liability shall not exceed the applicable amount as stated in the schedule for each insured who sustains bodily injury in any one accident.”
The schedule provides for payments as follows:
“For Loss of If Applicable Principal Sum in the Exceptions of the Declarations Is $5,000.00 $10,000.00
“Both hands or both feet or sight of both eyes..... $5,000.00 $10,000.00
One hand and one foot ..................... 5,000.00 10,000.00
Either hand or either foot and sight of one eye.... 5,000.00 10,000.00
Either hand or either foot................ 2,500.00 5,000.00
Sight of one eye....................... 2,500.00 5,000.00
Thumb and index finger of any three fingers of same hand ............................ 1,500.00 3,000.00
Any two fingers of same hand............. 1,000.00 2,000.00”
The policy contains the following definitions:
“Loss — means with regard to 'hands and feet, actual severance through or above wrist or ankle joints; with regard to eyes, entire and irrecoverable loss of sight; with regard to thumb and fingers, actual severance through or above metacarpophalangeal joints.”
The insured was injured in an automobile accident resulting in the amputation of his left leg approximately midway between the hip and knee. The policy was in force and effect at the time of the accident and there was compliance with all necessary requirements as to notices and proof of loss. The insurer tendered the insured the sum of $2,500 before the action was commenced and the tender was continued. The insured contended that the loss of a leg above the knee is not the same as the loss of a foot and that he was therefore entitled to the “principal sum” of $5,000.
The controversy was submitted to the district court on an agreed stipulation, which die court adopted as its findings of fact and concluded as a matter of law:
“1. Plaintiff can only expect to recover under Coverage S. This was the contract made between plaintiff and defendant.
“2. There is no ambiguity in the contract.
“3. Judgment is for plaintiff for $2,500.00. Costs are taxed to plaintiff.”
Thereupon the insured perfected the instant appeal.
In this court appellant continues his contention that the loss of a leg is not the same as the loss of a foot and that he is therefore entitled to the principal sum. He also contends that the policy is ambiguous.
Appellant makes no independent argument in support of his contention but relies on quotations from three decisions. The cases do not support his contention. Their distinguishing features will be discussed later.
There appear to be no decisions interpreting the provisions of an insurance policy such as we have before us. However, the terms of the policy appear to be clear and unambiguous. The appellant seeks to recover the principal sum ($5,000) because of the dismemberment. There is no provision in the policy justifying such a construction. The term “principal sum” as used in “Coverage S”, “Division 1” is payable only on the death of the insured. It has no application to “Division 2” except to determine which of the two columns in the Schedule will be applicable to the scheduled losses. It serves no other function and has no other application to loss by dismemberment.
The appellant’s right to recover must be governed by the schedule. The schedule covers the loss of a foot. There was no additional coverage for loss of a leg. The loss of the leg carried the loss of a foot. The principal sum was $5,000.00. The plaintiff’s recovery was limited to $2,500.00 under the clear and unambiguous terms of the policy.
The case of Federal Life Ins. Co. v. Bollinger, 100 Ind. App. 222, 193 N. E. 681, pertaining to the loss of an arm, covers issues similar to those in the present case except additional coverage for total loss of time was involved. In so far as here material the court stated:
“Clause (b) Part III of the policy sued upon, which we have heretofore set out, clearly covers the loss described in the second paragraph of the complaint, to-wit: The loss of either hand, provided the loss was sustained as the result of an accident as specified in said clause (a) of Part III as provided in the policy. The substance of the demurrer addressed thereto has been heretofore set out. We think the allegations of the said paragraph of complaint bring it within the policy provisions. There was no error in the ruling on the demurrer filed thereto.” (pp. 230 and 231.)
The appellant’s argument' in support of his contention consists of quotations Rom the cases of Borglund v. World Ins. Co., 211 Or. 175, 315 P. 2d 158; National Life & Accident Ins. Co. v. Davies, 34 Ala. App. 290, 39 So. 2d 697, Certiorari to Court of Appeals denied in 252 Ala. 107, 39 So. 2d 703; Nelson v. Great Northern Life Ins. Co., 253 Mich. 351, 235 N. W. 180.
The cases just cited are clearly distinguishable from the case at bar on the facts and issues presented.
In the Borglund case the schedule contained a provision for loss of “either foot.” The insured sustained a loss of a leg. The same situation existed in the Davies case. In the Nelson case the schedule contained a provision for the loss of a hand. There the insured sustained a loss of the arm. In all three cases the policy contained additional coverage for total disability.
In neither case did the court permit additional recovery under the schedule coverage because of the loss of the limb. Recovery was allowed under the total disability provision. Had the appellant in this case contracted for total disability coverage as permitted by “Coverage T” of the policy the cases cited would be in point.
Since the appellant contracted for no coverage except death or, as material here, the loss of a foot, there can be no additional allowance for the loss of a leg. The enumerated loss does not vary with the distance above the anide where the severance occurred.
We find nothing in the record to warrant or permit a reversal of the trial court’s judgment. Therefore such judgment must be affirmed and it is so ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This case involves trial errors in a damage action for personal injuries sustained by the plaintiff in an automobile accident.'
The questions presented are (1) whether the trial court erred in its failure to declare a mistrial after the plaintiff (appellee) in his own testimony injected the subject of appellants’ insurance, and in failing to admonish the jury by instruction or otherwise to disregard such testimony, and (2) whether the trial court erred in permitting the appellee’s counsel, in closing argument, to display a chart itemizing damages for future pain and suffering, and permanent disability on a mathematical formula basis.
The appeal was first heard in December, 1961, and on January 20, 1962, our opinion affirming the judgment of the lower court was filed. (Caylor v. Atchison, T. & S. F. Rly. Co., 189 Kan. 210, 368 P. 2d 281.)
A rehearing was granted and the case was reargued at the June, 1962, session.
Upon further consideration of the case, the court is convinced that the former decision is incorrect as to the mathematical formula argument (question No. 2 above). As to that portion of the opinion filed it should be and is hereby withdrawn, vacated and set aside. The decision of the court on the insurance feature (question No. 1 above) and the opinion thereon is in all respects affirmed.
Reference is made to the former opinion for the facts and general discussion on the use of the “per diem” argument to the jury concerning the allowance of damages for future pain and suffering and permanent disability. (189 Kan., pp. 215 to 221.) This has been referred to as the mathematical formula argument or “formula technique.”
The most recent decisions from other jurisdictions on this point are also divided.
The Supreme Court of Illinois on March 23, 1962, in Caley v. Manicke, 24 Ill. 2d 390, 182 N. E. 2d 206, reversed the Appellate Division (Caley v. Manicke, 29 Ill. App. 2d 323, 173 N. E. 2d 209) holding the portions of a prepared chart reflecting a mathematical formula for pain and suffering to be improper. On the same date the Supreme Court of Illinois in Jensen v. Elgin, Joliet and Eastern Railway Company, 24 Ill. 2d 383, 182 N. E. 2d 211, on the authority of Caley v. Manicke, supra, held it to be reversible error for counsel to use a mathematical formula in his argument to the jury.
The Supreme Court of South Carolina on the 7th day of February, 1962, in Harper v. Bolton, 239 S. C. 541, 124 S. E. 2d 54, 59, held it reversible error to permit counsel to endorse on a blackboard his own personal opinion as to the per diem value of pain and suffering in final argument to the jury. The court adopted the reasoning in Appliance Company v. Harrington, [1959] 201 Va. 109, 109 S. E. 2d 126. In the opinion the South Carolina court said:
“In allowing counsel for the respondent to endorse on a blackboard his own opinion as to the per diem value of pain and suffering was to permit him to make an argument that had no foundation whatever in the evidence. Though wide latitude and freedom of counsel in arguments to the jury are and ought to be allowed, such arguments cannot be based on facts not in the record, or inferences based on or drawn from facts which are not even admissible in evidence.”
On January 24, 1962, the Appellate Court of Indiana in Evansville City Coach Lines, Inc. v. Atherton, 133 Ind. App. 304, 179 N. E. 2d 293, held the mathematical formula argument to be proper. (See, also, Kindler, etc. v. Edwards, [1956] 126 Ind. App. 261, 130 N. E. 2d 491.)
The Supreme Court of Montana on February 13, 1962, in Wyant v. Dunn, _ Mont. __, 368 P. 2d 917, held a mathematical argument for damages for the loss of love, affection and companionship in a wrongful death case on a per diem basis should be left within the sound discretion of the trial court.
In Evening Star Newspaper Company v. Gray, [Mun. C. A., D. C.] 179 A. 2d 377, it was held that the per diem argument and the use of a chart were permissible by plaintiff’s counsel.
Actually, it serves no purpose to enumerate the decisions in the various jurisdictions to determine what may be the numerical weight of authority. The scales of justice are not tipped by numerical balances.
In this jurisdiction there is no valid objection to counsel, in argu ment, telling the jury what, under the evidence, counsel considers a fair compensation for the injuries received. It is customary for counsel in argument to suggest a total monetary award for pain and suffering. This, however, is far less misleading than the mathematical computation of the value of pain and suffering — the display in argument of a formula — in which time units of life multiplied by price of pain per unit equals value. In mathematical terms it is a supposition multiplied by a variable which equals an unknown.
The rationale of the supporters of the per diem argument is that the jury must arrive at a total monetary value of the plaintiff’s pain and suffering, and since this is inexact, counsel should be allowed to suggest the parts which make up the whole for the guidance of the jury. The procedure starts with a supposition that the plaintiff will not only live to the expectancy shown on the mortality tables, but that the pain will prevail throughout life. Then follows an assumption that the pain may be valued in dollars per unit of life, be it the year, the month, the day, hour or minute. Next, that the value of each unit is equal — that is, the pain is constant, uniform and continuous. And presto, the mathematical magic and we arrive at the whole sum. Admitting the ingenuity, it is beyond credence that accuracy can be increased or the truth served by such alchemy. This is not supported by the weight of human experience. It is a clever syllogism from an erroneous premise. No credit whatever is given for the gradual elimination of pain, the accommodation to it and the distraction from it by the events, change in circumstances and by other unconnected illnesses and injuries to which in the normal course a person is subjected. And no credit is given for the variations in pain between different individuals or the impossibility of recognizing or of isolating fixed levels or plateaus of suffering.
The purpose of this technique is blatantly to achieve “the more adequate award,” a synonym to all but the naive for “the more than adequate award.”
The reasoning assigned by courts which disapprove the “formula technique” in arguing damages to a jury has been summarized in the former opinion. (189 Kan., pp. 218 and 219.) It is incorporated herein by reference and adopted as sound.
Pain and suffering is recognized in this state as a material element of damages on which recovery may be based. Damages for pain and suffering are unliquidated and indeterminate in character, and the assessment of unliquidated damages must rest in the sound discretion of the jury. In Domann v. Pence, 183 Kan. 135, 325 P. 2d 321, the subject was discussed in the following language:
“. . . Pain and suffering have no known dimensions, mathematical or financial. There is no exact relationship between money and physical or mental injury or suffering, and the various factors involved are not capable of proof in dollars and cents. For this very practical reason the only standard for evaluation is such amount as reasonable persons estimate to be fair compensation for the injuries suffered, and the law has entrusted the administration of this criterion to the impartial conscience and judgment of jurors, who may be expected to act reasonably, intelligently and in harmony with the evidence. . . .” (p. 141.)
In view of the above quoted language we think the discussion of the “per diem” argument in Caley v. Manicke, supra, by the Supreme Court of Illinois is particularly illuminating. It was there said:
“. . . While the question is a close one, as evidenced by the divergence of opinion on the matter, we feel that such technique transcends the bounds of proper argument.
“Those courts that have allowed counsel to use a formula and figures in argument generally do so because they feel (1) that a jury’s determination of reasonable compensation for pain and suffering is arrived at by ‘a blind guess’ and (2) that the jury needs to be guided by some reasonable and practical consideration. We do not take such a dim view of the jury’s reasoning processes.
“Pain and suffering has no commercial value to which a jury can refer in determining what monetary allowance should be given to a plaintiff for the pain and suffering he has experienced and is reasonably certain to experience in the future. This determination, like many others that a jury must make, is left to its conscience and judgment. While a jury cannot translate pain and suffering into monetary units with the precision that it would in converting feet into inches, we do not believe that its determination of reasonable compensation for pain and suffering can be characterized as a “blind guess.’ To reduce the aggregate into hours and minutes, and then multiply by the number of time units involved produces an illusion of certainty, but it is only an illusion, for there is no more precision in the one case than in the other. A determination reached by a subjective process which is easier to comprehend than to define and upon which just and wise men may not agree does not indicate that it is a ‘blind guess.’ The divergence of opinion among the many able jurists who have fully and thoroughly considered the very issue here presented illustrates the point.
“It begs the question to say that the jury needs to be guided by some reasonable and practical consideration. A formula by definition is a ‘conventional rule or method for doing something, especially when used, applied, or repeated without thought.’ (Webster’s New Twentieth Century Dictionary, 2 ed. (1958).) It would appear that a formula, rather than encouraging reasonable and practical consideration, would tend to discourage such consideration.
“Furthermore, even if the presentation of a formula and figures were permitted for purposes of illustration, the contention that the court’s instruction would dispel their use by the jury as evidence ignores human nature. (See Allendorf v. Elgin, Joliet and Eastern Railway Co., 8 Ill. 2d 164, 173, 133 N. E. 2d 288, 79 A. L. R. 2d 241.) Nor would the fact that opposing counsel could use his own formula and figures remedy the situation because this would only emphasize the improper argument and would further mislead the jury into relying on the formulae and figures rather than the actual evidence of damages.
“Jurors are as familiar with pain and suffering and with money as are counsel. We are of the opinion that an impartial jury which has been properly informed by the evidence and the court’s instructions will, by the exercise of its conscience and sound judgment, be better able to determine reasonable compensation than it would if it were subjected to expressions of counsels’ partisan conscience and judgment on the matter.”
Upon a premise similar to that above quoted from Domann v. Pence, supra, the Virginia Supreme Court in Appliance Company v. Harrington, supra, when confronted with the use of a mathematical formula to determine damages for pain and suffering set forth on a blackboard in argument to a jury, said:
“To permit plaintiffs’ counsel to suggest and argue to the jury an amount to be allowed for pain, suffering, mental anguish and disability calculated on a daily or other fixed basis, allows him to invade the province of the jury and to get before it what does not appear in the evidence. Since an expert witness would not be permitted to testify as to the market value of pain and suffering, which differs in individuals and the degree thereof may vary from day to day, certainly there is all the more reason for counsel not to do so. The estimates of counsel may tend to instill in the minds of the jurors impressions not founded on the evidence. Verdicts should be based on deductions drawn by the jury from the evidence presented and not the mere adoption of calculations submitted by counsel.
“We are of opinion that the use by plaintiff’s counsel of a mathematical formula setting forth on a blackboard the claim of pain, suffering, mental anguish, and the percentage of disability suggested by him on a per diem or other fixed basis, was speculation of counsel unsupported by evidence, amounting to his given testimony in his summation argument, and that it was improper and constituted error. . . .” (pp. 114, 115.)
In Crum v. Ward, 146 W. Va. 421, 122 S. E. 2d 18, the Supreme Court of West Virginia said:
“In our view, the mathematical formula argument is based wholly on speculation, or imaginary inferences, not supported by facts, in reality by supposed facts which could not be received in evidence if offered. No effort, perhaps, would succeed in pointing out the almost innumerable variables necessarily existing or involved in such speculation. For illustration, however, it may be suggested that any attempt to place a money value on pain for any definite unit of time is impossible of any sound basis, for no two persons, it is believed, bear the same sensitivity to pain. The severity or duration of pain, though resulting from the .same cause, varies as to different individuals so greatly that the most experienced and learned physician finds no method of measuring it, but, to a very large extent, must rely on representations of the patient. . . .”
In Henne v. Balick, 51 Del. 369, 146 A. 2d 394, the Supreme Court o£ Delaware said:
“It has long been the rule in this State and elsewhere that the determination of the amount of plaintiff’s damage for pain and suffering shall be determined by the trier of facts based upon the evidence submitted. This is so because any specific yardstick based upon the evidence presented is entirely lacking and courts generally do not favor the determination of damages based upon speculation or fancy. It is only in comparatively recent years that the use of a mathematical formula has been permitted in any of our courts for consideration by the jury in ascertaining the amount of plaintiff’s damage. . . . There is no testimony in this case — and none would have been received if offered — in support of these figures.
“. . . As we view this evidence, plaintiff was permitted by means of a blackboard demonstration of plaintiff’s counsel to put in the record evidence which he would not otherwise have been permitted to introduce. It seems to us that if such evidence is to be permitted, it would be equally logical to permit expert witnesses to testify before the jury as to the reasonableness of the figures submitted for pain and suffering. No one would deny that to permit such a procedure would not only be fantastic but would be casting aside entirely the rules of procedure long followed in this country and England of permitting a jury to determine the amount to which a plaintiff would be entitled as damage for pain and suffering or other unliquidated damage based solely upon the evidence submitted.
“. . . We are also clearly of the opinion that in many cases at least the purpose of such use is solely to introduce and keep before the jury figures out of all proportion to those which the jury would otherwise have had in mind, with the view of securing from the jury a verdict much larger than that warranted by the evidence.” (pp. 375, 376, 377.)
The point was considered by the Supreme Court of Missouri in Faught v. Washam, [1959], 329 S. W. 2d 588, and in rejecting the “formula technique,” it said:
“. . . Only within the past few years have resourceful and ingenious counsel developed the ‘trial techniques’ of appealing to the jury to follow a matematical formula in admeasuring damages for pain and suffering. . . .
“To us, the considerations advanced by the authorities disapproving the mathematical formula argument are more persuasive. Whatever may be the cold logic or academic theory of the matter, the ungilded reality is that such argument is calculated and designed to implant in the jurors’ minds definite figures and amounts not theretofore in the record (and which otherwise could not get into the record) and to influence the jurors to adopt those figures and amounts in evaluating pain and suffering and in admeasuring damages therefor. If an argument of this character is permissible and proper, it would be just as logical, and equally as fair, to permit expert witnesses’ to evaluate pain and suffering on a per diem or per hour basis- — -a revolutionary innovation which, so far as we are advised, not even the most ardent zealots of the mathematical formula technique have (as yet) proposed. . . . The contention of its advocates that the mathematical formula argument is nothing more than that and is not evidence and that the fancied danger of its being mistaken for or accepted as evidence is greatly magnified and exaggerated by the timorous is a contention sound and plausible without but hollow and specious within. . . .” (pp. 602, 603, 604.)
The foregoing considerations advanced by the authorities disapproving the mathematical formula argument are, to us, persuasive.
In our opinion the use by appellee’s counsel of a mathematical formula, setting forth on a blackboard the claim of future pain and suffering and permanent disability on a per diem or other fixed basis, in argument to the jury was speculation of counsel unsupported by evidence. It amounted to the giving of testimony by counsel in his summation argument. We therefore hold such argument was improper and constituted reversible error — prejudice is conclusively presumed as a matter of law and a new trial must be granted.
The facts in the instant case are a graphic example of the impact of the “per diem” argument made upon the jury. During their deliberation the jury requested that they be permitted to have and see in their jury room the chart used and referred to by counsel for the appellee in argument. It is readily apparent they viewed the chart as evidence.
The judgment of the lower court is reversed with directions to grant a new trial. | [
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The opinion of the court was delivered by
Jackson, J.:
The appellant is at present an inmate of the state penitentiary and brought a proceeding in habeas corpus before the district court of Leavenworth county. The district court considered the complaints of appellant and then denied his petition. Appellant was allowed to bring his appeal to this court without expense to himself.
Appellant has raised only one question as to his sentence for grand larceny which occurred on the 27th day of March, 1961, in the Cherokee County district court. This question involves G. S. 1959 Supp., 62-1304, relating to the sentencing of the appellant when he was not represented by counsel. The above statute has long provided for certain findings to be made and shown in the journal entry where defendant in a criminal case is unrepresented by counsel.
The fault found by appellant is not with the journal entry but with the copy of the transcript of the appellant’s conversation with the judge of the district court. The transcribed report of tihese proceedings does not reflect that the court at that time expressed his finding that it would not be to the defendant’s advantage to appoint counsel for him. However, the journal entry contains the following finding:
“Defendant states orally and in writing that he does not desire the services of an attorney and the Court finds that it will not be to the defendant’s advantage to have an attorney appointed for him. . . .”
Thus, the finding missing from the transcript of the judge’s conversation with White is found in the journal entry. Much the same question came before this court in the case of Ramsey v. Hand, 185 Kan. 350, 343 P. 2d 225. It was held there that the finding need not be in the transcript so long as the judge reported his finding in the journal entry. Similar decisions are to be found in Tafarella v. Hand, 185 Kan. 613, 347 P. 2d 356; Goetz v. Hand, 185 Kan. 788, 347 P. 2d 349, certiorari denied 362 U. S. 981, 4 L. Ed. 2d 1016, 80 S. Ct. 1068; Tibbett v. Hand, 185 Kan. 770, 347 P. 2d 353. And see further, Hardman v. Hand, 190 Kan. 148, 373 P. 2d 178.
As noted in the Hardman case, section 62-1304 is broader than the requirements of the federal constitution and therefore, the question of due process and violations of the Fourteenth Amendment are not pertinent to the interpretation and requirements of tihe Kansas statute. Attention may be directed to the federal cases on that point cited in Hardman v. Hand, supra, p. 149.
From the above authorities it must be amply apparent that the judgment of the district court was entirely correct.
The said judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This was an action to recover for the alleged breach of an oral contract.
Because of our disposition of the appeal, the allegations of the pleadings need be mentioned only briefly.
According to the petition, plaintiffs and defendant construction company entered into an oral agreement whereby defendant agreed to furnish the labor and materials and to construct the foundation of a house which plaintiffs were building in Wyandotte county. It was agreed that the construction of the foundation piers and footings was to be done by defendant in a first class workmanlike manner in accordance with the custom and in the manner necessary to provide good and sufficient support .for the house to be placed thereon.
It was further alleged that for' several years prior thereto there had existed in Wyandotte county a “custom” among persons engaged in the construction business that in the event it developed the ground upon which the foundations were placed was soft or not of sufficient firmness to prevent settling or sinking, the foundation builder would notify the owner of such conditions and would not proceed with the construction of the foundation until the owner had an opportunity to inspect the ground upon which the foundation was to be constructed, and given an opportunity to decide what additional work was to be done in order to remedy the situation; and that such “custom” was well known to plaintiffs and defendant and had been acted upon by them in construction of foundations at other times.
It was further alleged that defendant was fully aware of the fact that the soil and earth on which the foundation in question was to be constructed was not of sufficient firmness to support the building to be placed on such foundation, and that it carelessly and negligently failed to notify plaintiffs of such fact. Then follow other allegations not here material, setting forth the damages allegedly sustained by plaintiffs due to the faulty construction on the part of defendant company.
Issues were joined by the filing of an answer and a reply.
The record then discloses that a pre-trial conference was held to determine the question whether at the trial of the action plaintiffs should be permitted to introduce evidence of the “custom” among persons engaged in the construction business, as alleged in the petition and heretofore referred to.
At the conclusion of the pre-trial conference the court ruled:
“After consideration of such question, the Court concludes that no evidence as to the custom should be received in the trial of the above entitled action. . . .”
Plaintiffs appealed from that order and their notice of appeal reads that they appeal:
“From the order of the Court holding that no evidence as to the custom pleaded by the plaintiffs in the original and amended petitions filed in this cause should be received in the trial of the above entitled action.”
The order in question is specified as error.
In their briefs the parties cite and discuss numerous cases dealing with the question of the admissibility of evidence of “custom.” (See Jukes v. North American Van Lines, Inc., 181 Kan. 12, 20, 21, syl. 5, 309 P. 2d 692.)
Our examination of the record, however, compels us to conclude that the order appealed from is not an appealable order and therefore the appeal must be dismissed. This court must always inquire as to its own jurisdiction to entertain an appeal even though the question is not raised by the appellee. (In re Estate of Hilliard, 170 Kan. 617, 618, syl. 1, 228 P. 2d 536; Kimel, Executor, v. Briggs, 183 Kan. 315, 317, syl. 1, 328 P. 2d 746; Klepikow v. Wilson, 189 Kan. 66, syl. 1, 366 P. 2d 800.)
G. S. 1949, 60-3302, provides that this court may reverse, vacate or modify a final order.
G. S. 1949, 60-3303, defines a final order as being an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment.
In no sense of the word may it be said that the order here in question, made at a pre-trial conference, determines the action and prevents a judgment. It therefore is not a final order as defined by G. S. 1949, 60-3303, and at this stage of the case is not an appeal-able order. (See Borgen v. Wiglesworth, No. 42,270, 190 Kan. 365, 375 P. 2d 600.)
The appeal is therefore dismissed. | [
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The opinion of the court was delivered by
Jackson, J.:
The appellants as plaintiffs in the court below brought an action against the church known as St. Paul’s Mission of Marysville, Marshall County, Kansas, a corporation, to recover damages for the wrongful death of their son. It is agreed that there is but one corporate defendant in the action and none other.
It might be said that as we understand the use of the word “Mission” in the name of the church, it means that the church has not been self supporting and is, in a sense, a missionary church.
It was alleged that plaintiff’s son had tripped over a rock or other obstruction on the walk along the rear of the church cabin and had fallen over into the unguarded stairway of the cabin and that his death resulted from this accident; that the cabin was a place set aside for the entertainment of the town’s young people.
The church pleads in its answer that it is a corporation devoted to the maintenance of religion and that it is not responsible for the torts of its agents. In one paragraph of the answer is found language which might be treated as a demurrer. Although plaintiffs filed a reply to the answer of the church putting all facts in issue, the parties agreed that the trial court should first pass upon the demurrer contained in the answer. Thereafter, the trial court sustained the demurrer holding the church not responsible for its torts.
Before leaving the lower court, we should note it was alleged in plaintiff’s reply that the church was possessed of an insurance policy which covered any liability of the church due to its fault in this matter. During the argument in this court, it was admitted that the church did possess such a policy.
Of course, the controlling authority in Kansas upon the question of tort liability of charitable institutions is the case of Noel v. Menninger Foundation, 175 Kan. 751, 267 P. 2d 934. We note that the parties to this case do not seem to argue the Noel case a great deal. The Noel case set a new rule in this state — as the courts of a number of other states have done — by holding that a charitable hospital was responsible for the torts of its agents and employees. We would note that the case dealt with the fallacy of the trust fund theory.
Evidently, the defendants do not read the case as broadly as this court does. The author of the opinion was careful to set out a number of specific cases which were overruled by the Noel case, see the ninth paragraph of the syllabus. If it be thought that religious corporations were not to be covered by the rule of the Noel case, we might point out that two cases, which are set out in paragraph nine of the syllabus, dealt with The Salvation Army—Webb v. Vought, 127 Kan. 799, 275 Pac. 170, and Leeper v. Salvation Army, 158 Kan. 396, 147 P. 2d 702.
It would not do at all to say that the Salvation Army was not as great a religious organization as any of the other churches of the land.
We cannot avoid pointing out that in Webb v. Vought, supra, two of the members of the then court seemed to think that a religious corporation should be responsible for its torts and dissented from the opinion in that case.
It is of some wonder how the church in this case would believe that it was not responsible for its torts and yet have insurance covering such a loss. On the other hand, we are pleased that they have the insurance.
The order of the district court sustaining the defendant’s demurrer to the plaintiff’s petition must be reversed, and the court directed to overrule the demurrer. It is so ordered.
Price, J., concurs in the result. | [
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Tbe opinion of the court was delivered by
Jackson, J.:
This appeal concerns a most unfortunate conflict of jurisdiction which has arisen in this case between the district courts of Harvey and Sedgwick counties.
This divorce case is between parties who as husband and wife lived on a farm in Harvey county for some nineteen years.
On January 3, 1961, the appellant-wife filed her petition for divorce and custody of the four children alleging the statutory grounds for divorce of extreme cruelty and gross neglect of duty.
In due time, the appellee-husband filed his answer denying the charges of his wife and alleging as against her the same statutory grounds asserted by the wife and further pleading that the wife had condoned any cruelty or neglect of which the husband might have been guilty. The husband did not ask for a divorce. The pleadings were put at issue by the wife’s reply.
The case came on for trial and was tried to the district court on several days during April and May, 1961. The court then rendered judgment denying a divorce to the wife but reserved the question of custody of the children to a later date. The wife filed a motion for new trial and later filed motions for separate maintenance and for custody of the children. All such matters were taken under advisement by the court but the motion for new trial was overruled and a temporary order made in which the wife was given rights of visitation with the children who were ordered to live at the farm home. It was further provided that the wife might on occasion take the children with her in the day time but was ordered to return them to the home each night.
On July 10, 1961, the wife’s counsel called the husband’s attorney and advised him that he understood the parties had become reconciled and that he was filing a motion to dismiss the case. The husband’s attorney said he was glad to know of that fact and that he would approve the order if it were left at the court house.
Early on the morning of July 11, 1961, the husband called his counsel to report that the wife had left the home the night before and had taken the children with her. She had not returned them as she had been ordered to do by the court. The husband was apprehensive that the wife intended to file a suit in some other county and on being advised that the wife had filed a motion to dismiss the suit in Harvey county, suggested that counsel file a new suit for divorce and custody of the children which could be dismissed if the wife returned home that day.
Counsel for the husband proceeded to carry out these instructions. He approved the order of dismissal in accord with the agreement with the wife’s attorney but immediately filed a new suit for divorce and for custody of the children. At the time of the filing of the new suit, a summons was issued to the sheriff of Harvey county for the wife. The wife’s relatives resided in Harvey county and it was thought she might be located at their home. This summons was not served but an alias summons directed to the sheriff of Sedgwick county was personally served upon the wife in that county on July 27,1961.
The suspicions of the husband were correct and he was served with summons on July 13, 1961 in a suit brought by the wife in Sedgwick county. The petition in this Sedgwick county action had been filed on July 11, 1961. This petition seems to have been filed at 10:54 a. m. which, it may be noted, was subsequent to the filing of the second suit by the husband in Harvey county.
On July 29, 1961, a motion was filed to vacate the order of dismissal entered in the first suit in Harvey county which had been dismissed on July 11 under the order reciting that the parties were reconciled. Counsel for the parties came before the court in Harvey county upon this matter on August 16, 1961. The wife was represented by her present counsel — Mr. Lelus Brown, her former counsel, having withdrawn from the case. After careful consideration of the matter, the district judge entered his order which read in part in the journal entry as follows:
“Thereupon, the motion to vacate judgment comes on for hearing and the Court having heard the various statements and arguments of counsel on the preliminary matters, which related to an action having been filed by plaintiff in the Sedgwick County District Court, for divorce from the defendant herein, on July 11, 1961, the same day the Court had made its order dismissing plaintiff’s motions in this case, and having examined the files herein, including plaintiff’s exhibits attached to her applications for injunction, does on its own motion set aside and vacate its order and judgment herein made on July 11, 1961, pursuant to Section 60-3007, G. S. Kansas, 1949, and states that his previous order concerning child custody is effective.”
It will be noted that the judgment denying the wife’s divorce was first announced on the first day of the May term in Harvey county. (G. S. 1949, 20-1009a.) It will be seen in the statute that the May term of court continues in Harvey county until October so all of these orders made by the district court were made during the same term.
The principal question raised by the wife on this appeal is the power of the court to vacate the order dismissing the case on July 11, 1961. In arguing the question, the wife would contend that the court was acting entirely under G. S. 1949, 60-3007, Fourth, because of the fraud of the wife. She would point out that, if this be true, the party seeking relief must file a petition and serve a summons. But we cannot agree with the appellant.
The court did refer to section 60-3007, and particularly to that part of the section in which it is said that the court “shall have power to vacate or modify its own judgment or orders at or after the term.” Thereupon the court made it clear that he was setting aside the order of July 11 upon the court’s own motion because that order stated the parties were reconciled when, in fact, on that day it now appears they were not reconciled.
There can be no doubt concerning the power of the district court to control its judgments or orders within the same term in which they were issued. As has been said, the order or judgment is deemed to be within the breast of the court during the term, and the court may set it aside if the court becomes dissatisfied with the holding. The court may act at the suggestion of one of the parties or upon its own motion.
In State Investment Co. v. Pacific Employers Ins. Co., 183 Kan. 229, 326 P. 2d 303, at page 231, it was said:
“Following the overruling of the motion, the district court had absolute control over that order to modify, alter, change or vacate it in whole or in part and error may not be predicated upon the mere fact the district court first announced its decision in favor of the defendant by overruling plaintiff’s motion, and within the same term of court vacated and set aside that order and granted plaintiff a new trial (Sylvester v. Riebolt, 100 Kan. 245, 164 Pac. 176; Burnham v. Burnham, 120 Kan. 90, 242 Pac. 124; Eckl v. Brennan, 150 Kan. 502, 95 P. 2d 535; Rasing v. Healzer, 157 Kan. 516, 142 P. 2d 832; Smith v. Smith, 171 Kan. 619, 237 P. 2d 213). The fact the district court at a subsequent time, but within the same term of court, reconsidered its ruling and reached a conclusion that its order of May 24, 1957, was erroneous or that the plaintiff had not obtained or received substantial justice did not prevent it from entering its order of October 4, 1957, notwithstanding notice was not given to the parties affording them an opportunity to be heard. The rights of the parties were safeguarded by the hearing on May 17, 1957.
“The absolute power which a district court has over its orders, decrees and judgments has been referred to as,
“ ‘. . . a wholesome provision of the law and necessary to the administration of justice. In the hurry of business, and confusion incident to a term of court, it often becomes necessary to correct during the term the mistakes that have been made, and tírese can be corrected at any time during the term. . . .’ (Cornell University v. Parkinson, 59 Kan. 365, 371, 53 Pac. 138.)
“In Federal Land Bank v. Richardson, 146 Kan. 803, 73 P. 2d 1005, this court said:
“ Independent of the code, it is well recognized in this state that a district court has jurisdiction of its judgments and orders during the term of court at which they are rendered, and in the exercise of its judicial discretion on motion of an interested party, or on its own motion, the court may set aside or modify the judgment or order . . .’ (l. c. 806.) (Emphasis supplied.)”
Attention is further directed to King v. King, 183 Kan. 406, at p. 411, 327 P. 2d 865; and see further Hatcher’s Kansas Dig. Judgments § 186 and West Kan. Dig. Judgment § 341.
Since the order of dismissal has now ceased to be effective, we believe the prior jurisdiction as to the questions of division of property and custody of children remain with the Harvey county district court. It would also appear that the judgment denying the divorce to the wife would be res judicata as to all matters to the date of that judgment.
Although the parties do not argue the question of the jurisdiction obtained by the district court of Harvey county in the filing of the suit for divorce by the husband on July 11, 1961, nevertheless, the abstract of the wife in this case contained the record of the pleadings and issuance of summons in both the Harvey county and the Sedgwick county actions. The husband’s petition was filed early in the morning of July 11, 1961, and an immediate summons was issued to the sheriff of Harvey county at 8:38 a. m. We are informed that the wife’s petition in Sedgwick county was not filed until 10:54 a. m. on July 11, 1961, and summons was issued later. It is true that valid service of summons was not obtained in the Harvey county suit until after service in the Sedgwick county suit had been had. But it will be remembered that the wife was personally served on July 27,1961, in the Harvey county action.
It should be observed that under G. S. 1949, 60-301, this court has held that the time of the filing of the petition is controlling where issuance of summons has been made and valid service is obtained within sixty days of filing of the petition. Attention is directed to Bannister v. Carroll, 43 Kan. 64, 22 Pac. 1012, and Jones v. Warnick, 49 Kan. 63, 30 Pac. 115.
Although no actual valid service was made in the case of Vann v. Railway Co., 110 Kan. 799, 205 Pac. 607, the opinion is instructive. On page 801, after quoting from the case of Bannister v. Carroll, supra, Mr. Chief Justice Johnston, the author of the opinion, said:
“The time of filing a petition may be controlling where there is a question as to which of two courts acquires first and paramount jurisdiction in actions brought relating to the same subject matter. The one in which a petition is first filed and a summons issued upon which service is afterwards duly made, will gain paramount jurisdiction as against the other in which the petition is filed at a later time but its summons was first served. However, the earlier filing of the petition and issuance of the summons will be without effect if the summons is not served within the prescribed time. That is illustrated by the case of C. K. & W. Rld. Co. v. Comm'rs of Chase Co., 42 Kan. 223, 21 Pac. 1071, where the petition was filed in and process issued by the supreme court one day earlier than the filing of a petition in and issuance of a summons from the district court of Chase county, but the process from the latter court was first served. On the question of which had gained paramount jurisdiction it was held to be in the supreme court because of the earlier filing of the petition and issuance of the summons, but this precedence can only be given where timely service of the summons is afterwards made. If service is made upon the earlier petition, then by the doctrine of relation the action is deemed to have been commenced when the petition was first filed and summons issued. If no service is made and there is no appearance by the defendant, these preliminary steps will be nullities and cannot be regarded as die commencement of the action. In the case just cited it was said:
“ ‘Although actual jurisdiction of a defendant cannot be obtained without service of summons or original process upon him, nor until the service is actually made, yet when the service is actually made the case must then be considered as having been commenced at the date of the process served upon the defendant; (citing authorities) and by relation, the date of such process will determine the time from which the right of .the court to take jurisdiction to hear and determine the case, must be computed.’ (page 227.)”
Since good service was in fact obtained in tbe divorce suit first filed by the husband in Harvey county on July 27, 1961, and since that date is much less than sixty days from July 11, 1961, and since the husband’s suit for divorce in Harvey county was more than two hours prior to the time of filing of the wife’s suit in Sedgwick county, it would appear the district court of Harvey county does now have primary jurisdiction over the question of the divorce as well as the matter of custody of the children.
We have considered all other questions suggested by the parties, but believe that the above rules do not need further elaboration. The orders appealed from are affirmed. It is hereby so ordered. | [
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The opinion of the court was delivered by
Price, J.:
This was an action on an oral contract for the recovery of money. Plaintiff prevailed under its petition. Defendant prevailed under its cross petition in a less amount. The two amounts were set off against each other and judgment for plaintiff was rendered accordingly. Plaintiff has appealed.
The question involved concerns the right of defendant to assert its cross-petition as a “pure defense” to plaintiff’s action.
Plaintiff company is a wholesale candy and tobacco dealer at Great Bend. Defendant company is a wholesale distributor at Dodge City. In 1954 plaintiff and defendant entered into an oral agreement whereby defendant was to purchase cigarettes from plaintiff at a stated price per carton. The parties further agreed that plaintiff would pay to defendant a refund of one cent per carton of cigarettes so purchased. Thereafter defendant ordered cigarettes from plaintiff weekly. The agreement was not to run for a definite period of time and was considered terminable at the will of either party. Plaintiff paid defendant a total of not more than $400 under the one cent per carton refund agreement, the final payment being made in December, 1956, in the sum of $150. The sale and purchase arrangement continued until May, 1961, at which time plaintiff filed this action to recover the sum of $4,535.06, based on defendant’s indebtedness for cigarettes and other merchandise so purchased. Defendant cross-petitioned for the sum of $2,962, based on 336,238 cartons of cigarettes purchased by it from plaintiff from August, 1954, to May, 1961, at the rate of one cent per carton refund, less the sum of $400 previously paid by plaintiff.
At a pre-trial conference the court ruled that defendant was entitled to be heard on the “pure defense” as pleaded in its answer and cross-petition. The parties stipulated to the number of cartons of cigarettes purchased by defendant from plaintiff over the period in question, and also to the correctness of the amounts claimed by the parties, if found to be due.
Three special questions were submitted to the jury:
“1. Do you find that the original agreement between the parties contained, as a part of the consideration therefor, an agreement to the effect that defendant was to make payment with each week’s order for the previous week’s purchases of cigarettes before he would be entitled to a refund of 1$ per carton of cigarettes purchased?”
This was answered “no.”
“2. Do you find by a preponderance of the evidence that the original agreement was that defendant was to pay his account at his convenience, and that plaintiff was to make refund periodically on all cigarettes purchased regardless of the date of payment by defendant?”
This was answered “yes.”
“3. Do you find that on or about December 19, 1956, plaintiff told defendant in effect that the agreement for refund was no longer in effect, and that defendant was not entitled to further refund; and that defendant either expressly or by his actions or conduct impliedly agreed to rescinding said contract insofar as it pertained to refund of 1$ per carton of cigarettes purchased?”
This was answered “no.”
From the stipulations and special findings the court found that defendant was indebted to plaintiff in the amount of $4,535.06, and that plaintiff was indebted to defendant in the amount of $2,962. Accordingly, judgment was entered in favor of plaintiff for $1,573.06, that being the difference between the two amounts.
Plaintiff has appealed, and although it asserts five specifications of error, and a like number of questions — an examination of its brief indicates that so far as it is concerned the determinative question in the case concerns the right of defendant to assert, by way of answer and cross-petition, as “pure defense,” the amount allegedly owed to defendant by plaintiff arising out of the one cent per carton refund agreement.
In support of its theory plaintiff contends that defendant’s claim matured more than three years prior to the date plaintiff’s claim came into existence and, having arisen out of an oral contract, was therefore barred by the three-year statute of limitation (G. S. 1949, 60-306, Second), and that under the provisions of G. S. 1949, 60-715, defendant’s claim was unavailable as a cross-demand. The last-mentioned statute reads:
“When cross demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim or setoff could have been set up, neither can be deprived of the benefit thereof by the assignment or death of the other or by reason of the statute of limitations; but the two demands must be deemed compensated so far as they equal each other.”
This statute was construed in O’Neil v. Eppler, 99 Kan. 493, 162 Pac. 311, in which it was said:
“Under the provision the cross-demands must coexist; that is, they must subsist in such a way that if one party had brought suit on his demand the other could have set up the demand he held against that of the plaintiff. There must be an overlapping of live demands in point of time. If the demand of one party becomes barred and is not subsisting as a cause of action when the demand of the other party comes into existence, the former demand is not available. On the other hand if the demand of a party is a subsisting claim upon which he could maintain an action when and after the demand or cause of action arises in favor of the other party, the demand of either is available in an action brought against the other and the two demands must be deemed compensated so far as they equal each other.” (p. 496.)
The difficulty, from plaintiff’s standpoint, is that here the jury found that defendant was to pay his account at his convenience; that plaintiff was to pay the one cent per carton refund periodically on all cigarettes purchased regardless of the date of payment by defendant; that the agreement for refund was not rescinded in December, 1956, as claimed by plaintiff — the effect of such findings being that defendant was entitled to a continuing refund of one cent per carton on all cigarettes purchased. Under the facts, therefore, it is clear there was “an overlapping of live demands in point of time,” as spoken of in the O’Neil case, above.
The instructions are not abstracted and therefore the presumption is that the jury was properly instructed on all matters in issue.
Concerning the question of the right of defendant to assert its claim as “pure defense” to the claim of plaintiff, we call attention to another section of the code. G. S. 1949, 60-313, reads:
“When a right of action is barred by the provisions of any statute, it shall be unavailable either as a cause of action or ground of defense.”
This statute was construed in Muckenthaler v. Noller, 104 Kan. 551, 180 Pac. 453, as follows:
“Section 24 of the code of civil procedure, which declares that, ‘When a right of action is barred by the provisions of any statute, it shall be unavailable either as a cause of action or ground of defense,’ is construed to mean that a barred right of action cannot be used as a setoff, or counterclaim, or for the purpose of obtaining affirmative relief, but not to apply to matters of pure defense.” (Syl. 4.) (Our emphasis.)
In Collins v. Richardson, 168 Kan. 203, 212 P. 2d 302, it was held:
“The statute making barred demands unavailable as a cause of action or a ground of defense (G. S. 1935, 60-313) has no application to matters of pure defense.” (Syl. 3.)
In Malcolm v. Larson, 158 Kan. 423, 148 P. 2d 291, it was held:
“In a case where a cross demand is pleaded as a matter of pure defense, it must be connected with and grow out of the same transaction or matter which forms the basis of the plaintiffs claim. (Syl. 2.)
Under the facts found by the jury defendant was, under the provisions of G. S. 1949, 60-715, above, as interpreted in the O’Neil case, above, entitled to assert its claim against that of the plaintiff — that is to say, it was entitled to have its indebtedness to plaintiff offset by the amount plaintiff owed defendant arising out of the refund agreement. On the other hand, and assuming, for the sake of argument, defendant’s claim be considered as having been barred by the three-year statute of limitations, it appears to be equally clear that under the language of G. S. 1949, 60-313, above, as construed in the Muckenthaler and other cases cited, above, defendant was entitled to assert its claim as a matter of “pure defense,” for it is certain that it was connected with and grew out of the same transaction which formed the basis of plaintiff’s claim — the sale of cigarettes and the agreement for refund.
So, under either theory, a correct result was reached.
We see nothing wrong with the outcome of this lawsuit. Defendant owed plaintiff for cigarettes purchased. Plaintiff owed a less amount to defendant arising out of the refund agreement. The end result was that plaintiff’s indebtedness was deducted from the amount of defendant’s indebtedness — and judgment was entered in favor of plaintiff for the difference — all of which was fair, just and equitable.
Other matters urged by plaintiff in its brief have not been overlooked, but, in view of what has been said, require no discussion.
We find no error in the record and the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J. :
This was an action brought by the Mutual Home and Savings Association against Felix Worz and his wife to recover on a certain bond and mortgage executed by them for the sum of $900, on which there was alleged to be due $762.56, with interest at the rate of six per cent, from March 1, 1899. The loan was alleged to have been made to. Felix Worz as a shareholder in the association. He denied that he was a shareholder, and alleged that if any stock was issued to him in the association it was not done in good faith, but for the sole purpose of making the loan. It was also alleged by the defendants that they were induced by false and fraudulent representations to borrow the money, and that the contract under.which the loan was made was usurious, and that by reason of that fact and the payments already made there was nothing due to the association. A trial before a jury resulted in favor of the defendants.
The principal errors brought to our attention are raised on the instructions given and refused by the trial court. There was testimony introduced tending to show that the transaction between the parties was a mere loan and that the issuance of stock to Worz was no more than a matter of form and fiction. If it was no more than a loan/and the membership arrangement was made as a guise to the obtaining of-a usurious charge for. the use of the money, the only relation between the parties was that of creditor and debtor. (Building Association v. Thompson, 19 Kan. 321; Savings Association v. Kidder, 9 Kan. App. 385, 58 Pac. 798.)
Passing, however, the sufficiency of this evidence or the right to insist upon this defense, and assuming that Worz actually became a member at the outset, we will take up the charge of usury. The corporation, was organized under the laws of Missouri, and, having failed in 1897, it is closing up its business. The statute under which it was organized prescribes the manner in which money may be loaned as follows :
“The directors of the corporation shall hold stated ■meetings, at which such sums of money as they may determine shall be offered for loan to all the members in open meeting. The shareholder who shall bid the highest for preference, or priority of loan, shall be entitled to receive a loan,” etc.
The premiums, dues and extra charges cannot be brought within the protection of the building and loan association privilege and exempted from the charge of usury unless there is free and open competition between the borrowing shareholders. The rule is that if there was no bid and no competitive sale at an open meeting there can be no lawful premium. It has also been held that any attempt to establish and enforce a provision as to a fixed minimum premium, determined bjT arbitrary rule instead of by competition, cannot be enforced against the borrower. The proof here shows that there was no competitive bidding at an open meeting, such as the statute requires, and the courts of Missouri, in passing upon that statute, have expressly ruled that the loaning of the money without competitive bidding at an open meeting of the shareholders, and the fixing of an arbitrary rate or premium, below which the borrowing shareholders cannot obtain the money, are in. violation of the statute and are, therefore, subject to the usury law. (Brown v. Archer, 62 Mo. App. 277, 289: Moore v. Building & Loan Ass’n, 74 id. 468; Price s. Empire Loan Ass’n, 75 id. 551; Sappington v. Loan Co., 76 id. 242. See, also, Building Associations v. Thompson, supra; Endl. Build. Assoc., 2d ed., 376.)
Aside from the fact that there was no open compe tition for the loan as the law required, the association had a by-law which provided that “loans may be made at any time by the secretary and cashier, at a premium not less than the- average premium for the last three months,” thus authorizing and fixing arbitrarily a minimum premium at which loans could be made by those officers. In Moore v. Building and Loan Association, supra, it was expressly held that a by-law fixing a minimum premium at which loans will be made is illegal and the premiums thereunder are usurious. It follows that the contract made between these parties was not exempt from the operations of the usury law, and the question remaining is as to «whether the payments made were sufficient under the law to discharge the obligation.
On the part of the association, it is claimed that there was no proof as to the statute law of Missouri relating to interest or usury. The testimony tends to show that the contract was made in Kansas, and, as has already been seen, the mortgage given to secure the debt was on real estate situated, in Kansas; and being enforceable in Kansas, the laws of the state would ordinarily apply. Assuming, however, that it is a Missouri contract and governed by Missouri law, we must, in the absence of proof, presume that the laws of Missouri are similar to those of this state. Measuring, then, the excess charges of the contract and the payments made by the debtors thereon by our usury statute, the debt appears to have been fully discharged.
The objections based on the refusal of instructions requested are not available here, as the requests were not signed by the party asking them, as required by the code. The instructions given in the"'case fairly presented the law, and the views herein expressed fairly dispose of the material questions raised on the charge of the court.
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
Smith, J.:
This was an action brought by the administratrix of the estate of Martin L. Gordon to recover damages from the plaintiffs in error for his death, caused by the alleged wrongful and negligent acts of a superintendent of the company.
O. L. Rains and three others were partners, under the firm name of the Good-eye Mining Company, engaged in mining lead and zinc ore. The deceased was in their employ. While working in one of the ■drifts or chambers of the mine he was killed by a boulder which fell from the top or roof of the drift. •John Gordon, a brother of the deceased, was superintendent of the mine. It was shown that it was his ■custom, with the assistance of another person, to inspect the roof twice every day and to test its safety by prodding. A witness named Everett, who testified for plaintiff below, was working near Gordon, the deceased, at the time of the accident. In the afternoon of the day Gordon was killed the witness talked with the superintendent concerning the safety of the roof. He called his attention to the condition of the particular place from which the boulder fell. The superintendent stated that he had tried it, or examined it, the day before and could not budge or feeze it. The witness testified : “He says, ‘Everett, I could not prod that down yesterday,’ and he was a bigger man than I was, and I thought if he could not feeze it there was no use of my going up there and trying it, and so it was left there.” Again, the witness saw the superintendent go out of the mine a short time before Gordon was killed. He said: “‘Everett, I will go out; the gasoline has come;' I will come down and we will inspect the roof again ’; and when he got out the gasoline had not come and he went to fixing a tub, and while he was up there-Martin was killed.” John Gordon testified for the-plaintiff below that he was superintendent of the ground, and that his duties were to take care of the-mine, look it oyer, and to protect the men the best he-knew how ; that he directed them where to work, and had full- charge and control of the ground and the men working in the mine; that he hired and discharged them. From a verdict and judgment against them,, plaintiffs in error have come here by proceedings in error. •
■ The plaintiff below filed with her petition a poverty affidavit in lieu of a cost bond, as allowed by sections. 5067 and 5068, General Statutes of 1901. The plaintiffs in error, on a motion made by them to require plaintiff to give security, for costs, showed that she had contracted to give her attorneys forty per cent, of the amount of any judgment which might be recovered. The motion was overruled. It is argued that the attorneys, having a beneficial interest in the case, shpuld have been required to give security for the costs. This court is required by statute to disregard any error or defect in the proceedings which do not affect the substantial rights of the parties. (Gen. Stat. 1901, §4574.) In the present case the judgment was entered against the defendants below, which carried with it all costs of the action. As the judgment of the court below will be affirmed, the fact that no cost bond was required of the plaintiff, if the ruling was erroneous, becomes immaterial now, since plaintiffs in-error have nowise suffered thereby. The deprivation of a legal right which subsequently results' in no harm- or prejudice to the complaining party will not justify a reversal of the judgment.
On the point raised, that the poverty affidavit was insufficient in not showing that the minor children of the deceased were unable to give security for costs, we approve the case of Coal Co. v. Britton, 3 Kan. App. 292, 45 Pac. 100, where the administrator was permitted to sue in forma pawperis, and to make the affidavit in his representative capacity.
It is contended by plaintiffs in error that the proof failed to show that they or their superintendent knew that the mine was in a dangerous condition. There is little ground for contention on this question. The testimony of Everett, above referred to, from which we have quoted, was sufficient to justify the jury in finding that the superintendent had notice of the defective condition of the roof, which was conveyed to him by the witness. At the time of Gordon’s death the superintendent had left the dangerous place with the expressed intention of returning and making another inspection, which, if he had not postponed it, might have averted, the accident.
Many cases are cited in the brief of counsel for plaintiffs in error in support of their contention that John H. Gordon, the superintendent of the mine, was a fellow servant of the deceased, and that there could be no recovery, under the fellow-servant rule of the common law applicable in such cases. Whatever may be said in the decisions of other states, the law is well settled in Kansas against the claim of counsel. In A. T. & S. F. Rld. Co. v. Moore, 29 Kan. 632, the second paragraph of the syllabus reads :
“In all cases, at common law, a master assumes the duty toward his servant of exercising reasonable care and diligence to provide the servant with a reasonably safe place at which to work, with reasonably safe machinery, tools and implements to work with with reasonably safe materials to work upon. . . . And at common law, whenever the master delegates to any officer, servant, agent, or employee, high or low, the performance of any of the duties above mentioned, which really devolve upon the master h'imself, then such officer, servant, agent or employee stands in the place of the master, and becomes a substitute for the master, a vice-principal, and the master is liable for his acts or his negligence to the same extent as though the master himself had performed the acts or was guilty of the negligence.”
It must be remembered that the superintendent, Gordon, did no work in the mine beyond that of overseeing the men and inspecting the walls to insure their safety. He had power to hire and discharge. It was the duty of the mine-owners to provide a safe place for their servants to work, and this duty was delegated to Gordon who represented the m aster for that purpose.
“Since the duty of providing his servants with a reasonably safe place in which to work is another of those absolute duties which are imposed by law upon every master, an employee who is charged with that duty is a vice-principal, for whose negligence in its discharge the master will be liable.” (12 A. & E. Encycl. of L., 2d ed., 954; see, also, H. & St. J. Rld. Co. v. Fox, 31 Kan. 586, 3 Pac. 320.)
Several minor errors are alleged to have been committed by the trial court. We have considered them, but find nothing of a prejudicial character requiring a reversal of the judgment.
The judgment of the court below will be affirmed
All the Justices concurring. | [
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal by respondent and its insurance carrier from the modification of an award in a workmen’s compensation case.
That appellee suffered an accidental injury to the right side of his head and neck on October 28, 1948, as a result of being struck by some tongs which also caused some deafness was not disputed in the original hearing and is not in controversy now. The only issues at the original hearing were the extent of his disability and the amount of compensation to which he was entitled. Neither of those questions is at issue on this appeal. The questions now presented pertain solely to the subject of appellee’s right to a review of the award before the workmen’s compensation commissioner, which appellants contest.
The original award of the commissioner was made June 8, 1949. His findings were:
“It is found, in addition to the admissions of the parties, that claimant suffered personal injury by accident resulting in 38 compensable weeks temporary total disability and 24.85 percent permanent partial loss of hearing of both ears, being 24.85 weeks, making a total of 62.85 compensable weeks for which he is entitled to compensation at the rate of $20 per week in the sum of $1257, of which amount $460 has been paid, leaving a balance of $797, of which amount $140 was due as of June 2, 1949, and should be paid in one lump sum, leaving a balance of $657, to be paid at the rate of $20 per week for 32.85 weeks thereafter.
“It is further found that the respondent and insurance carrier should pay for the medical treatment furnished to date, and should furnish additional medical treatment, including the denistry necessary, in all not to exceed the statutory maximum of $750.”
The award was made in accordance with the findings. No appeal therefrom was taken by either party. The total compensation period under the award for both compensated injuries ended January 21, 1950. Respondent’s insurance carrier made and appellee accepted all installment compensation payments made by check or draft except the last one. The last installment payment in the sum of $97.00 was made by draft on January 25, 1950. It was returned. A second draft therefor was received by appellee on or about February 9, 1950, and it was returned on March 2, 1950. On March 16 or 17 appellee received a check in the same amount which he likewise returned. On April 13,1950, claimant filed a petition for review and modification of the award on the ground his disability had increased. A hearing on this petition May 9, 1950, was continued to June 6 and July 11.
At the conclusion of claimant’s evidence respondent and its insurance carrier, after having objected to some of the testimony, presented their motion to dismiss the petition on the following grounds:
“1. That the commission is without jurisdiction and power to review and modify the award heretofore made.
“2. That there has been sufficient or equivalent payment of the full award sought to be reviewed and modified.
“3. That claimant’s petition was not timely filed for a review to be had as to the award for temporary total disability.
“4. That no review or modification is authorized or may be had for that part of the award pertaining to scheduled injuries.”
The motion was overruled and the commissioner modified the award to increase the period of disability and the amount of compensation on both injuries. From that order respondent and its insurance carrier appealed to the district court. Except for a clerical error in the computation of the award by the commissioner, which the district court corrected, it approved the modified award and adopted it as its own. The judgment, insofar as material, was as follows:
“Wherefore, it is hereby ordered that the award heretofore made on June 8, 1949, should be and the same is hereby modified to 107 compensable weeks temporary total disability, and 41.37 per cent permanent partial loss of hearing of both ears being 41.37 weeks, making a total of 148.37 weeks at the rate of $20.00 per week, in the sum of $2967.40, of which amount $1150.00 has been paid, leaving a balance of $1807.40, of which amount $1160.00 was due January 25, 1951, and is hereby ordered paid in one lump sum, leaving a balance of $647.40 which is ordered paid at the rate of $20.00 per week for 32.37 weeks thereafter.
“It is further ordered that the respondent and insurance carrier pay the medical benefits as heretofore ordered and pay direct to Dr. A. E. Bence the sum of $42.76 and Dr. Frost the sum of $17.14, being the pro rata amounts of the balance ordered under the former award.
“The written contract of employment between claimant and his attorneys for 25 per cent of the amount of the award is hereby approved and made an enforceable hen on the award made herein.
“It is further ordered that the costs incurred before the Commissioner of Workmen’s Compensation, and the costs incurred in the District Court of Barton County, Kansas, be taxed against, and assessed to the respondent and insurance carrier.”
From this modified award respondent and its insurance carrier have appealed.
The evidence adduced on the review hearing pertaining to increased disability was sharply conflicting. Appellants, however, recognize the established rule that this court does not disturb findings of fact made by the district court where there is competent evidence to support them. These findings, as such, are therefore not a subject of controversy now.
Appellants first contend the petition for review was filed too late with respect to the award for temporary total disability of thirty-eight weeks. They direct attention to the following facts: The original award made June 8, 1949, was based on two separate classes of injury, to wit: One resulting in temporary total incapacity for thirty-eight weeks and the other in 24.85 percent partial permanent loss of hearing of both ears, which was fixed at 24.85 weeks; compensation was awarded for each injury for the period indicated; the injury occurred October 28, 1948, and the thirty-eight week period, excluding the first week thereafter, for which temporary total disability was allowed, expired in the first week of August, 1949; the thirty-eight week period extended eight weeks beyond the date of the award; appellee was paid and accepted payments at the rate of $20.00 per week beyond that period, in fact, until in January, 1950.
Appellants argue, under the foregoing circumstances, appellee cannot claim he has not accepted full and final payment of the award for thirty-eight weeks temporary total disability. They contend no review can be had on that part of the award in view of the provisions of our review statute, G. S. 1949, 44-528, which provides:
“At any time before but not after the final payment has been made under or pursuant to any award ... it may be reviewed by the commissioner. ...”
Although it is true compensation was awarded for two classes of injury we think for purposes of the review statute the original award for both injuries should not be separated but should be regarded as a unit award for 62.85 weeks, that being the total number of weeks for which compensation was allowed. All of the injuries resulted from a single accident. There is nothing to indicate the injury to appellee’s hearing was not a part of the cause of his temporary total disability and undoubtedly it was. The injury to his hearing although only partial continued and remained permanent. '
Appellants, however, further assert that irrespective of the foregoing contention the petition for review was filed too late as to both injuries for two reasons, the first being there was no appeal from the original award and it became a finality when the total compensable period of 62.85 weeks as to both injuries had expired and no petition for review and modification had been filed during the period of adjudicated disability. Their second contention is appellee could not arbitrarily refuse to accept three tenders of the final payment on the total award of 62.85 weeks after such total compensable period had expired and then file an initial petition for review approximately three months after the expiration of the award.
In support of the first of these last two contentions they rely on Williams v. Lozier-Broderick & Gordon, 159 Kan. 266, 154 P. 2d 126; Larrick v. Hercules Powder Co., 164 Kan. 328, 188 P. 2d 639; and Hardin v. Beck Mining Co., 166 Kan. 95, 199 P. 2d 186. It is true the opinion in the Hardin case contains some language indicating the review statute is available to a party at any time before the expiration of the period of disability for which compensation is allowed. The opinion, however, also states that under the review statute a review may be had at any time before final payment. Actually the review statute was not an issue in that case. The real questions were whether the evidence was sufficient to support the trial court’s findings of claimant’s disability and lack of earning capacity and' whether the injury was so extreme as to warrant the allowance of $750.00 for medical and hospital treatment.
In the Larrick case the original award was made for past disability on which the compensation was past due and was ordered paid in a lump sum at the time of the original award. There was no award for future disability. There had been no appeal from the award. It was held the award having become final and the period of incapacity having ended before the workman filed her petition for review and modification, the petition was filed too late. The Williams case is analyzed in the Larrick case and we need not repeat that analysis here. The substance of these opinions cited by appellants is that a review may be had when the award determines disability continues into the future but not when the award determines all disability had ended prior to the award and all compensation therefor was ordered paid.
In support of appellant’s last mentioned second contention that the petition for review was filed too late they assert it is unreasonable to assume the legislature intended by providing a review might be had before final payment that a claimant may fail to appeal from an award, may fail to file a petition for review with the commissioner before the award of future disability expires, may arbitrarily refuse to accept repeated tenders of final payment and thereafter be permitted to file a petition for review on the ground final payment has not been made. They contend if a review may be had under these circumstances a claimant may prevent all finality of an award for future disability by keeping it open for review so long as he desires to do so.
Appellee’s answer to this contention is that this court has held a claimant may have a review at any time before final payment is accepted, citing Corvi v. Crowe Coal & Mining Co., 119 Kan. 244, 237 Pac. 1056; De Millsap v. Century Zinc Co., 123 Kan. 570, 256 Pac. 136; Chikowsky v. Central Coal & Coke Co., 124 Kan. 471, 260 Pac. 620; Farr v. Mid-Continent Lead & Zinc Co., 150 Kan. 292, 92 P. 2d 124; Bailey v. Skelly Oil Co., 153 Kan. 378, 110 P. 2d 746; Everett v. Kansas Bower Co., 160 Kan. 712, 165 P. 2d 595. It would not be accurate to say the cited cases are so similar factually as to be controlling in the instant case. This will readily appear from an examination thereof. They and others that might be cited are, however, authority for the contention a review may be had before final payment but not thereafter. In the instant case final payment was not accepted by appellee and we have concluded his right to review was not barred. An able and exhaustive analysis of many Kansas cases on the subject of payment may be found in an annotation at 165 A. L. R. 429-444.
There is a division of authority with regard to the meaning of the word “payment” as employed in compensation acts. See annotation 165 A. L. R. 9. Appellants contend the word “payment” should be and properly has been construed by courts to mean a valid or sufficient tender, citing Harris v. International Motor Co., 9 N. J. Mis. R. 208, 153 A. 97, and Imperato v. Lowe, 123 F. 2d 1001, and cases therein treated. Our decisions, however, require acceptance of payment.
Were both injuries covered by the award reviewable? Appellants contend that portion of the award pertaining to permanent partial loss of hearing is a scheduled injury and as such is not reviewable. Under the express provisions of G. S. 1949, 44-528 the last sentence of that statute reads:
“Provided, That the provisions of this section shall not apply to an award of compensation provided for in the schedule of specific injuries in section 44-510 of the General Statutes Supplement of 1943.”
G. S. 1949, 44-510 expressly provides compensation for permanent partial loss of hearing. (3c-19.) In Stanley v. United Iron Works Co., 160 Kan. 243, 160 P. 2d 708, this precise problem was presented. The court carefully reviewed many of our former scheduled injury cases and in conformity therewith held:
“The record in a compensation case examined, and held, there was substantial competent evidence to support the factual findings of the trial court that an accidental injury suffered by a workman to his head and brain directly resulted in his sustaining permanent partial loss of sight in his left eye and permanent partial loss of hearing in both of his ears.
“Permanent partial loss of the sight of an eye and of hearing in the ears comes within the purview of G. S. 1943 Supp. 44-510 (3c-19) and such disabilities are compensable as scheduled injuries.” (Syl. f 2, 3.)
It is unnecessary to again narrate the facts of the various former cases reviewed in the Stanley case.
Appellee contends partial permanent loss of hearing is not pro vided for “in the schedule of specific injuries” within the contemplation of G. S. 1949, 44-528, the review statute. We have already indicated the present scheduled injury statute specifically covers permanent partial loss of hearing. Appellee cites Consolidated Cement Co. v. Baker, 129 Kan. 845, 284 Pac. 415, in which it was said:
“For the loss of a leg, compensation is fixed by the statute. The loss of the use of a leg is not a scheduled injury.” (Our italics.) (p. 848.)
The italicized portion of the above statement was expressly overruled in the Stanley case, supra, p. 253.
Appellee also discusses the legislative history of sections of the compensation act here involved and reasons therefrom that it was not intended an award for an injury to a scheduled member which extends into the future should be unreviewable. We think there is merit in the contention that such an injury should be reviewable. That, however, is a subject of wisdom and policy which must be addressed to the legislature.
It follows only that part of the original award which pertained to temporary total disability was reviewable and the order made on review is affirmed. That part of the award pertaining to increased disability of hearing is reversed.
The cause is remanded to the district court with directions to enter judgment in conformity with the views herein expressed.
Harvey, C. J., is of the opinion that the judgment of the trial court should be affirmed in its entirety. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover damages alleged to have been sustained when an oil tank located partly under plaintiff’s hotel, exploded. The appeal is from orders sustaining demurrers of both defendants to plaintiff’s third amended petition.
We shall refer to the third amended petition as the petition. It alleged first that plaintiff operated a hotel and Olson was an oil dealer and Mahaffey a plumber; that an explosion on August 5, 1948, damaged plaintiff; that before August 5, 1948, plaintiff asked Olson to drain and clean a fuel oil tank located partly under the hotel and partly under the sidewalk; “That the Hotel Kansan Operating Company was at the time a regular purchaser of fuel oil from said Olson Oil Company and that said Olson promised to drain and clean the tank as requested.” The petition then alleged that Olson entered into a contract with Mahaffey, the details being unknown to plaintiff, whereby he was to do certain parts of the work and on August 5, 1948, Mahaffey sent Peterson, his regular employee, with a truck, a pump and other equipment to the hotel and instructed him to report to Olson and do whatever he should direct. The petition then alleged that Topeka Township had a contract with Olson and Mahaffey to use the oil and sludge taken from the tank on its roads, and its employee, one Thompson, appeared at the hotel and proceeded to assist Peterson under the direction of Olson and ‘Roth Peterson and Thompson acted under the direction and supervision and in the presence of, and with Olson, in removing covers, inserting a hose into said oil tank, and pumping oil and sludge therefrom.” The next paragraph alleged that Peterson and Thompson, “with the knowledge and consent, and in the presence of Olson, and on Olson s direction, went to the Hotel Kansan boiler room and picked up an ordinary electric light extension cord, with an electric light bulb and metal shield on the end thereof, which said cord belonged to the plaintiff and was customarily used in the boiler room, and dropped said cord into said oil tank, for the purpose of ascertaining how much oil and sludge still remained in the tank.” The petition then alleged that as Thompson was pulling the cord, bulb and shield from the tank it created a spark and caused a series of explosions. The petition then contained three paragraphs, as follows:
“That at the time and place of said explosion and fire, Peterson and Thompson were assisting defendant Olson, in accomplishing the job that Olson had agreed to do, and were on business for and under the supervision, direction and control of Olson. That plaintiff does not know where defendant, Olson, was at the particular moment of said explosion.
“That at the time and place of said explosion and fire, Peterson was a regular servant and employee of T. J. Mahaffey d/b/a Mahaffey Plumbing Company, was on business for Mahaffey, and under his direction and control, in that Peterson was carrying out the instructions of Mahaffey, as stated in paragraph 5.
“That the explosion and fire and resulting damage to plaintiff’s property, were proximately caused by the negligence of Peterson and Thompson, in putting into a fuel tank an ordinary electric light extension cord, or any land of light other than a Vapor proof’ light; and by the negligence of defendant Olson, in directing and permitting said electric light extension cord to be put into said tank, when each of them knew or should have known that to do so might ignite vapors and cause an explosion.”
The balance of the petition was a statement of and a prayer for damages in the amount of $74,295.04.
Mahaffey demurred to the petition on the ground it did not state facts sufficient to constitute a cause of action.
Olson filed a motion that the plaintiff be directed to make its petition more definite and certain by stating where Olson was at the time Peterson and Thompson secured the light cord and bulb and by stating what direction Olson gave Peterson and Thompson concerning the light. On a hearing of this motion counsel for plaintiff stated he could give no further information, whereupon Olson withdrew his motion. Olson then demurred to the third amended petition on the ground it failed to state a cause of action against him. The demurrers were each sustained — hence this appeal.
We shall consider first the appeal as to the demurrer of Olson. On this appeal Olson states the rule that negligence must be pleaded and proven and a judgment for damages cannot be predicated alone on the fact that an injury and damage occurs unless it was the result of some negligence on the part of the person claimed to be liable. Many authorities are cited to sustain this rule. It is undoubtedly the law. Here, however, the petition alleged that Thompson and Peterson were working Under Olson’s supervision and orders and that they on Olson’s direction procured the light which caused the explosion and that the use of such a light was negligence. A reasonable interpretation of this pleading when taken in its entirety is that Peterson and Thompson were both employees of Olson for this particular job. At least it cannot be said that the petition does not allege any negligence on the part of Olson, Peterson and Thompson. Olson insists there is no specific allegation that he directed Thompson or Peterson to put an electric light bulb in the tank. The allegation is first that Olson undertook the work; then an allegation that Peterson and Thompson were under his direction; then an allegation that they with the knowledge and consent and in the presence of Olson procured the light and cord; then an allegation that they were assisting Olson and under his supervision, direction and control; then an allegation that the explosion was caused by the negligence of Peterson and Thompson in putting that sort of a light into the tank and by the negligence of Olson in directing and permitting such a cord to be put into the tank when each of them knew, or should have known, that to do so might ignite vapors and cause an explosion.
Olson points out six deficiencies in the petition on account of which he argues the trial court ruled correctly in sustaining his demurrer.
First
“There is no allegation that Olson was to furnish or did furnish the cord, bulb and shield, which the petition alleges was defective and caused the explosion.”
As to this alleged deficiency, the petition alleged that Peterson and Thompson procured the light with the knowledge and consent and in the presence of Olson and it alleges that they were at all times under his direction and control.
Second
“There is no allegation that Olson knew or should have known that the cord, bulb and shield, which the petition alleges belonged to the appellant company and which was in the boiler room and furnished by employees of the appellant company to Thompson, was defective.”
As to this alleged deficiency, the theory of the petition is that the explosion was caused by the use of an ordinary light rather than a vapor proof light. It is nowhere claimed that it was defective, only that it was the wrong kind of a light. This is sufficient statement of negligence to go to the jury.
Third
“There is no allegation that Olson was even in or about the boiler room or in the vicinity of the oil tank at the time the bulb was placed in the oil tank by Thompson, or at the time of the explosion.”
As to this alleged deficiency, the petition alleges that every act of Peterson and Thompson was in the presence of Olson.
Fourth
“There is no allegation that Peterson and Thompson were assisting in the ' portion of the work which Olson was to do in connection with cleaning out the tank and removing the sludge therefrom, the allegation being that Thompson was an employee of the township and Peterson was an employee of Mahaffey at the time of the explosion, which would suggest they were at that time performing the portion of the work of removing the sludge from the tank which was delegated to Mahaffey, and not to Olson as alleged in the fifth paragraph of the third amended petition.”
As to this, the petition clearly alleges that Olson undertook to do all the work and procured Mahaffey to help him. The petition is not drawn under any theory that there was a division of the work to be done between Olson and Mahaffey, but the plain allegation is that Olson was in charge of all of it.
Five
“There is no allegation in the petition that Olson was paid or was to be paid anything for his service in doing the part of the work in removing the oil from the tank, which was delegated to him.”
As to this alleged deficiency, there is an allegation Olson agreed to drain and clean the tank and that plaintiff was a regular purchaser of oil from Olson.
Six
“The statement made by Mr. Beatty, counsel for the appellant, at the time of the hearing of Olson’s motion to make the third amended petition more definite and certain by stating in what respect Olson was guilty of negligence, practically exonerated Olson from any negligence by stating it was impossible for appellant to state any negligence not mentioned in the third amended petition.”
As to this alleged deficiency, the third amended petition alleges that Olson was guilty of negligence by directing and permitting Thompson to use the sort of a light they did use.
Olson argues the petition should be strictly construed against plaintiff because plaintiff successfully resisted his motion to make the third amended petition more definite and certain by stating where Olson was when Peterson and Thompson procured the light cord. This motion was not good for the reason that the third amended petition alleged that this was done in the presence of Olson. A more definite statement was not necessary. Therefore, it is not necessary to give the third amended petition a strict interpretation.
Olson states that plaintiff is attempting to rely on the doctrine of res ipsa loquitur and then proceeds to demonstrate that the petition does not state a good cause of action under that theory. This petition is not drawn under the doctrine of res ipsa loquitur but on the theory of specific negligence of defendants in using the wrong type of a light.
We hold that the third amended petition stated a good cause of action against Olson and Olson’s demurrer to the petition sho.uld have been overruled.
We consider now the demurrer of Mahaffey.
The plaintiff argues the petition alleges that Mahaffey agreed to do certain parts of the work and Olson certain parts and Mahaffey sent Peterson, his employee, to do this work under Olson’s direction —hence it states a cause of action against Mahaffey.
The trial court sustained Mahaffey’s demurrer on the theory that Peterson was Mahaffey’s servant loaned to Olson and acting under Olson s control and direction when the explosion occurred. Mahaffey relies in the main on what we held in Moseman v. Penwell Undertaking Co., 151 Kan. 610, 100 P. 2d 669. This takes us to a critical examination of the petition. A reasonable interpretation is that the only person with whom the plaintiff dealt was Olson. Such is the meaning we give the allegation “Olson promised (the plaintiff) to drain and clean the tank.” “Olson contacted T. S. Mahaffey.” “Olson and Mahaffey entered into an agreement.” The petition does not say that Mahaffey sent Peterson, one of his regular employees, to the hotel. It is clear and explicit, however, in its allegations that Peterson was to report to Olson and do whatever Olson ordered. From then on the petition states a situation not that Olson and Mahaffey had undertaken a job and were doing it together, but rather one where Olson had undertaken to do the work and had made a contract with Mahaffey, whereby Mahaffey furnished Peterson to him.
Such is the only meaning to be had from the ninth paragraph, which reads:
“That at the time and place of said explosion and fire, Peterson and Thompson were assisting defendant Olson, in accomplishing the job that Olson had agreed to do, and were on business for and under the supervision, direction and control of Olson.”
True the next paragraph alleges that Peterson was the servant and employee of Mahaffey and at the time of the explosion was on business for Mahaffey and under his direction and control. This allegation must be construed, however, in connection with the other allegations of the petition that Mahaffey had directed Peterson to report to Olson and to do whatever Olson should direct.
We dealt with such a situation in Moseman v. Penwell Undertaking Co., supra. There the action had been brought against the undertaking company, in whose interest the employee of a florist had been transporting flowers to the country in a truck. It was analogous to what we would have here if the plaintiff had sued Olson alone and had alleged negligence of Peterson while he was working for Olson. We cited several authorities to the effect that a general servant of one party may be loaned by his master for some special purpose so as to become for that service the servant of the party to whom he is loaned and to impose on him the usual liabilities of a master. We said the defendant had contracted to furnish the Wood family a complete funeral. So here the petition alleged “the plaintiff asked Olson to drain and clean the tank.” “Olson promised to drain and clean the tank as requested.” “No mention so far of either Mahaffey or Peterson.” Appellant points out that Olson and Mahaffey entered into a contract “whereby Mahaffey was to do certain parts of the work.” The fact remains, however, that Olson had agreed with the hotel to do the work and as far as this petition states the hotel knew nothing about Mahaffey. The rule in such a case is that the most satisfactory test is under whose control was the servant working. (See Hurla v. Capper Publications, Inc., 149 Kan. 369, 87 P. 2d 552.) If we apply that test here we find that in just about every paragraph of the petition the plaintiff put Peterson under the direction and control of Olson.
The petition did not state a cause of action against Mahaffey and his demurrer was correctly sustained.
It follows the judgment of the trial court is reversed as to Olson, and affirmed as to Mahaffey. | [
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Per Curiam:
This is a proceeding brought to reverse an order of the district court refusing to vacate a temporary injunction granted under the provisions of section 2463 of the General Statutes of 1901. This court has recently decided that the section referred to was repealed by implication by section 1 of chapter 282 of the Laws of 1901 (Gen. Stat. 1901, §2493). ( The State v. Estep, 66 Kan. 416, 71 Pac. 857.) Our attention has not been called to any reason why that authority does not‘require a reversal of this case, and we infer from the fact that the defendant in error has filed no brief that error is practically confessed. The order of the district court is reversed, and the cause remanded for further proceedings in accordance with the views expressed in the case cited. | [
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The opinion of the court was delivered by
Mason, J.:
Ingalls X. Lee sued the Missouri Pacific Railway Company for injuries received in alighting or falling from a fiat car of a freight-train on the road of that company. His claim was that the defendant was responsible on account of the refusal of an employee to protect him from injury, after discovering him in a place of danger. The trial court sustained a demurrer to the evidence, and the plaintiff brings this proceeding to reverse such ruling.
Plaintiff testified in his own behalf. He was at the time eleven years of age. Upon cross-examination defendant’s attorney inquired regarding his understanding of the nature of an oath, and moved to strike out his entire testimony on the gro'und that his answers-showed that he was incompetent as a witness. The court overruled the motion, the defendant excepting. The defendant in error contends that in passing upon the sufficiency of the evidence in behalf of plaintiff this court should disregard plaintiff’s own testimony, notwithstanding the trial court admitted it. It is clear that without this testimony the demurrer should have been sustained. ' If this testimony is to be considered the demurrer should have been overruled. The two questions for our determination, therefore, are whether the plaintiff was a competent witness, and, if not, whether this court should consider his testimony in reviewing the decision upon the demurrer to the evidence. The entire testimony of plaintiff with regard to his competency was as follows, the last question being asked by his own attorney:
“Ques., Ingalls, do you know what an oath is? Ans. No.
“Q. You don’t know what it means when you hold up your hand and are sworn?' A. No.
“Q. You have no idea what the obligation is which is required of you when you hold up your hand? A. No.
“Q. You don’t know what would happen to you. if you would tell an untruth, do you ? A. No.
“Q. You have n’t the least idea? A. No.
“Q,. And then when you tell this story here, you don’t know if you would tell a lie what they would do with you? A. No.
, “Q. You have n’t the least idea? A. No.
“Q. You don’t know whether they would put you in the penitentiary or not, do you ? A. No.
“Q,. Don’t you know that if you should tell a lie they would put you in prison ? A. No.
“Q. You don’t know that ? A. No.
“Q,. So you would just as soon tell the truth as lie about it, so far as the punishment is concerned, would you? A. Yes.
“Q. When you say you don’t know the nature of an oath, Ingalls, when you told this to this man, were you telling the truth or not ? A. Yes.”
In support of the proposition that the witness was competent, plaintiff in error argues that the decision of the trial court is conclusive and not subject to review by this court. If the objection to his competency were that he vwas lacking in general intelligence or capacity this contention would be sound. As to this matter the trial court,.in seeing and hearing the witness, had means of reaching a just decision that are wholly wanting here. ' Moreover, the character of the boy’s testimony relating to the facts of the case was such as to lead to the conclusion that he was not mentally deficient. But the objection made is a very different one, namely, that he showed that he had no conception of the significance! of an oath. His testimony in this regard was plain and unambiguous, and warrants no other conclusion than that he was entirely ignorant not merely as to the character of the obligation assumed by a witness in taking an oath, but practically as to the fact that there was any such obligation. . But plaintiff in error further contends that this does not disqualify him from testifying, the argument being that our statute has entirely superseded the common law- in this regard. The statute in point (Gen. Stat. 1901, §4771) reads:
“The following persons shall be incompetent .to testify : . . . Second, children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined or of relating them truly.”
In State v. Scanlan, 58 Mo. 204, decided under a statute framed in the same words, a girl of nine or ten years of age was held competent, although she said at one time that “she did not know the nature or obligation of an oath, nor what would be the consequences of false swearing.” This statement was made while she was frightened and embarrassed, but was not in terms contradicted. The second paragraph of the syllabus reads :
“The only test of competency in a child under ten years of age to be a witness is whether it appears incapable of receiving just impressions of the facts, or of relating them truly.”
This decision seems to support the contention of plaintiff in error, but the language quoted is broader than required by the facts of the case, and if it had not appeared that the testimony referred to was given under the influence of fright and embarrassment, a different result might have been reached. Moreover, in the case at bar, the witness could not be disqualified within the literal terms of the statute. He was eleven years of age and, even if found incapable of receiving just impressions of facts or relating them truly, would still not be disqualified unless by implication. In this respect his case is very similar to that of an Indian who was held to be a competent witness in Smith v. Brown, 8 Kan. 608, 618, with this important distinction, that here the plaintiff showed that he had no knowledge that he might be punished in any way if he testified falsely. In the opinion in that case it was said :
“The objection urged to this witness was not a want of sufficient age, or that he was an idiot, or insane, or of weak mind; but that he did not understand the natui'e and obligation of an oath. He was an uneducated Indian, not deficient in understanding, but uninstructed as to the nature of an oath, and mistaken as to the punishment for perjury, an act which by that name he did not know; yet he knew that it was wrong to speak falsely, and that he would be punished for so doing. Whether he believed that he would be punished in another life was a matter that could not be inquired into under our constitution.”
The decisions on the question of the competency of children and other persons whose understanding of the nature of an oath is doubtful are many and conflicting. A numerous list is collected in a note to State v. Michael, 19 L. R. A. 605, 16 S. E. (W. Va.) 803, to which later cases are added in the American Digest, 1899 B, 4621 and 4622. It is not necessary for the purposes of this case to review these authorities in detail. We hold that there is by necessary implication a class of persons incompetent to testify, in addition to those expressly defined in the statute, namely, those who have no understanding that the taking of an oath imposes any new obligation to speak the truth. We reach this conclusion less froxn any application of the principles of the common law than from the consideration of the statute itself. It is required that a witness be sworn before testifying, and this requirement is xnandatory. (Mayberry v. Sivey, 18 Kan. 291.) In order that the ceremony of swearing the witness may be effective at alb, it is certainly necessary that he understand something of the meaning of it. If he has no such understanding whatever the form is idle ; under such circumstances the witness is not sworn at all,in any reasonable sense, or in contemplation of law. If he1 merely holds up his hand and nods his head in response to the formula propounded him, not understanding that in doing so he has assumed any additional obligation to tell the truth, or risk of punishment should he fail to do so, he has no more bound himself than if he were of unsound mind. The assent he yields, to be effective, must be an intelligent assent, and it cannot be 'intelligent if he has no idea of the meaning of what he is doing. In The State v. Jehlik, 66 Kan. 301, 71 Pac. 572, it was held that a woman who is an imbecile cannot institute a proceeding in bastardy. In the opinion it was said:
“ The statute, if is true, provides that ‘any unmarried woman/ etc., may institute an action, and such terms without qualification are broad enough to include idiots and lunatics. There is language, however, employed in the same connection which clearly implies that only rational beings were within the contemplation of the legislature. As already indicated, she only can begin the prosecution, and that she is to do by making a written complaint oh oath. Only those who understand the binding force of an oath and are capable of giving testimony are within the spirit and intent of the act. . . . Having no mind or understanding, there was, in fact, no complainant.”
In order that one may be competent as a witness, it is not necessary that he have a definite or accurate knowledge of the difference between his duty to tell the truth after being sworn and that already existing; still less that he should be able to state it; but it is necessary that he should be conscious that there is a difference. As said in Hughes v. D. G. H. & M. Ry. Co., 65 Mich. 10, 31 N. W. 603, “ a witness must be under some pressure," arising out of the solemnity of the occasion, beyond the ordinary obligation of truth-telling.” In the present case the witness said that he did not know what an oath was ; that he did not know what it meant when he held up his hand and was sworn, and had no idea of what the obligation was which this act required of him; that he had not the least idea of what would happen to him if he told an untruth, and that so far as punishment was concerned he would just as soon tell the truth as a lie. Nothing in the record tends to detract from the force of these statements. We think they show that the witness had no just appreciation of the fact that he was under any legal or moral restraint by reason of having taken an oath, and that, therefore, his testimony should have been stricken out and disregarded.
It remains to determine whether the evidence of this incompetent witness should be considered by this court in reviewing the ruling sustaining the demurrer to the evidence, the trial court having refused to strike it out. In Duveneck v. Kutzer, 17 Tex. Civ. App. 577, 43 S. W. 540, and in several cases there cited, it was held that a demurrer waives all objection to.the admissibility of the evidence to which it is addressed. The cases of Bank v. Loar, 51 W. Va. 540, 41 S. E. 901; Megrue et al., Receivers, v. Lennox, 59 Ohio St. 479, 52 N. E. 1022, are to the contrary. This court has, however, definitely determined the question in Gillett v. Insurance Co., 53 Kan. 108, 36 Pac. 52, where a decision sustaining a demurrer was affirmed, although incompetent evidence, sufficient (except for its incompetency) to complete a prima facie case for plaintiff, had been admitted by the trial court and not formally stricken out. The second paragraph of the syllabus reads
“Where incompetent testimony is received over objection, it is within the province of the court to correct such error at any time before the final disposition of the case, and, upon a demurrer to plaintiff’s evidence, it is not improper for the court to strike out or to disregard such incompetent testimony.’’
It is obvious that this rule imposes something of a hardship upon a plaintiff in that it requires him to judge at his own risk of the competency of evidence that he offers, instead of permitting him to rely upon rulings in his favor. But the issue raised by the demurrer is one of law. The evidence is passed on by the court. The jury are for the time eliminated. It is a familiar fact that, especially in matters presented for the determination of a court, evidence is often admitted tentatively, the decision being held subject to reconsideration upon the submission .of the whole matter. ' In such a case it is not essential to a review of the result that a definite final ruling be indicated upon each objection made: The court is supposed to consider so much of the testimony as is competent and to disregard the rest. The situation is not materially different when a demurrer to the evidence is presented. The .trial court, at least in the absence of a distinct and affirmative recital in the record to the contrary, must be deemed finally to have left out of consideration any evidence that ought not to have been admitted or that ought to have been stricken out.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
The Ottawa Mutual Loan and Savings Association is a corporation organized under the laws of Kansas, having for its object “the accumulation and loan of funds, the erection of buildings and the purchase of real estate for the benefit of its members.” Its organization conforms in general to the usual’ building and loan association plan, some of its features, however, being peculiar. Geo. O. Merriman, a resident of Michigan, paid to the association at various times from 1890 to 1897 sums amounting in all to $4500, receiving for each $100 so paid an instrument in the following form, made out upon a printed blank, the only written portions being indicated in the copy by italics:
The association paid Merriman each year the amount due under the terms of, these instruments until 1900, when it notified him to withdraw his money, contending that thereby it severed all connection with him, except that it held $4500 of his money, which it stood ready to pay. jMerriman, however claimed to be a member of the association, and as such entitled to continue to share in its earnings. In June, 1901,he brought action against it to recover $337.50, the amount due him as one year’s return upon his investment if his relations with the association remained unaffected by the notice referred to. He recovered judgment, which the defendant now seeks to reverse.
The claim of plaintiff is that he was a stockholder in the association and that it could not, without his consent, deprive him of the continued enjoyment of the benefits of that relation. The association claims that he was in fact not a stockholder, but a depositor, to whom it might return his money at will; or, if he was technically a stockholder, his stock was matured and his relations to the association merely that of a creditor ; and that at all events the association could redeem or pay off his claim at any time. It is true that one portion of the instrument issued to plaintiff was labeled a certificate of deposit, and the annual payment to be made him was therein referred to as interest. But this payment, by the terms of the writing and in practice, was made to depend upon the earnings of the association and might more appropriately be called a dividend. And it is further worthy of note, as a practical construction given to an ambiguous contract by the parties, that holders of such certificates were permitted to participate in the management of the company’s business. Moreover, the language of the other portion of the document seems too explicit to require interpretation. It declares the holder to be the owner of a share of stock and a member of the association. This fixes his status as such, at least, unless there is some provision of the charter or by-laws which absolutely forbids such relation’s being established in the manner here followed. Defendant claims to find such provision in various parts of the by-laws. Section 1 of article 5 says that each share of stock issued shall be payable in weekly instalments. Section 16 of the same article contains the words “full-paid certificates of stock shall hereafter not be issued. ’ ’ This section in full is as follows :
“All shares of stock that are full paid-up or become full paid-up shall be and are regarded as deposits, and the secretary is authorized and instructed to transfer the same on the book of the association from the stock to the deposit account, and full-paid certificates of stock shall hereafter not be issued. The owners of outstanding paid-up certificates of stock may exchange them for paid-up certificates of deposit, and such certificates of stock be canceled. With each paid-up certificate of stock issued there shall be issued a certificate of stock with registry fee credited thereon, and subject to the rule applied by section 15 of this article to certificates of stock, issued under authority of that section.”
The exact meaning of this is not clear. The by-law seems to have been adopted at the organization of the company. The reference to “shares of stock that are full paid-up,” as distinguished from such as become paid up, in a by-law existing before any stock had been issued, points to an intention to issue stock of that character in the future. The word “hereafter” may be a misprint for “thereafter,” just as in the last sentence the phrase “certificate of stock” where it first occurs is obviously intended for “certificate of deposit.” If so, the meaning would seem to be that, when stock became fully paid up, fully paid certificates of stock should not be issued in lieu of the original certificates, but the owners might exchange them for paid-up certificates of deposit. However, this matter is not material. The by-laws authorized the form of certificate that was issued to plaintiff. Section 15 of article 5 reads:
“Certificates of deposit of $100 each, to be worth $100 when that amount has been paid in or credited to them upon the books of the association, shall be issued, and such deposits shall be redeemable by the ■association as provided by section 2 of this article, with interest at the rate of six per cent, per annum on the average amount paid in for the time specified, and upon deposits on hand on the 1st day of April in each year such rate per cent, of interest from date of such deposits to said April 1st shall be paid, not to exceed the rate of dividend on unloaned shares, as the board of directors shall determine. Deposits of $13 or larger sums may be made by members of this association to begin a deposit account, which may be increased by deposits of any amount, so that the total of the amount shall not exceed $100, and such deposit shall be credited upon book accounts of the association, and upon such certificates of deposit when presented for that purpose, until the sum total of each deposit shall, unless sooner canceled by withdrawal or held by the association under sections 5 or 11 of this article, amount, with credits of accrued interest, to $100, when such deposit shall be entitled on surrender of the original certificate, if one has been issued, to a certificate of deposit of $100, the original certificate to be then cancelled. There shall be issued in connection with each certificate of deposit a certificate of stock on which a registry fee of twTenty-five cents shall be collected, but payment of instalments on such share may be suspended at option of the holder until the deposit is withdrawn or otherwise canceled, at which time the certificate of stock, unless one or more instalments have been paid thereon, shall with the certificate of deposit be surrendered and canceled. When one or more instalments have been paid on such certificate of stock it shall immediately become subject in all respects to section 1 of this article.”
It is not difficult to discover the theory and purpose of the machinery devised by this section. Evidently it was thought desirable to provide that, in addition to receiving payments upon shares by instalments, according to the usual method followed by such societies, the association might accept considerable sums of money to be invested for the benefit of the association, the payor to receive returns based upon the earnings of the entire enterprise. Because the'statute (Gen. Stat. 1889, ¶1426) required such a corporation to conduct its business exclusively with-its members, it was considered necessary that such investors be expressly declared to be members. Instead of providing in terms for a distinct class of membership, the framer of the plan reached this result by a provision that such investor, in addition to what is called a certificate of deposit, should receive a certificate of stock, on which he should be relieved from payment so long as he did not withdraw the money he had paid in. But if he withdrew the money the certificate of stock was canceled, unless he should see fit to begin the payment of instalments, which would make him a member regardless of the deposit. Either the payment of instalments or the holding of the deposit certificate was alone sufficient to make him a 'stockholder. It was not necessary that these conditions unite. The very purpose and the actual efeffect of these provisions is to declare the holder of the so-called certificate of deposit a member of the association. The two sections quoted make the rights of the holder of such a certificate the same as those of the owner of paid-up stock.
It was said in Eversmann, Receiver, v. Schmitt, 53 Ohio St. 174, 184, 41 N. E. 139, 141, 29 L. R. A. 184, 53 Am. St. Rep. 632 :
“When the aggregate dues with the credited earnings equal in amount the par value of a share of stock, 4t is paid up, and the owner, for that share, ceases to be a stockholder. He is entitled to the par value of his stock, but can no longer participate in the earnings of the association. His relation, then, becomes simply that of a creditor, until he is paid.”
But this is applied to an association not issuing any paid-up stock, being preceded by the words :
' ‘ It is contrary to the purpose and genius of a building association that a share in it should be paid up at the.time of the subscription.”
It frequently has been held that, in the absence of statutory prohibition, building and loan associations may issue paid-up stock, and that the holders are members and not merely creditors. (Johnson v. National Building & Loan Association, 125 Ala. 465, 28 South. 2, 82 Am. St. Rep. 257; Coltrane v. Blake, 51 C. C. A. 457, 113 Fed. 785 ; Leahy v. The National Building & Loan Association, 100 Wis. 555, 76 N. W. 625, 69 Am. St. Rep. 945 ; Towle v. American Building & Loan Ass’n, 75 Fed. C. C. 938; Thorn. & Black. B. & L. Assoc. § 148.)
The inquiry remains whether the association can at its pleasure compel such members to withdraw. It seems obvious that this cannot be done unlesss authorized by some provision of the by-laws. If an authority to this effect is needed, it may be found in Bergman v. St. Paul Mutual Building Association No. 1, 29 Minn. 275, 13 N. W. 120. We discover nothing in the bylaws as originally adopted permitting such action. In 1900 an amendment was added to section 2 of article 5, reading as follows :
“If by reason of a large accumulation of funds on hand or from any other cause it shall be deemed advisable, the board of directors shall have the right in their discretion to compel the holder of instalment or deposit shares of stock to withdraw such shares and receive the amount found to be due thereon ; provided, that a written notice shall be given such shareholder at least thirty days before the time- set at which such shares will be paid ; and provided further, that interest on such shares shall cease at the time set for such payment.”
Under color of the power assumed to be granted by this section the association notified plaintiff to withdraw his stock. Such request was not made of all members occupying the same relation to the company and no attempt was made to treat all of the members alike in the matter. Nor was an effort made to reduce the total amount of deposit stock proportionately, or upon any fixed or equal basis. But the directors designated such stockholders as they saw fit and ordered their withdrawal. The trial court found (and the finding was supported by the evidence) that plain tiff *was so selected because he was a non-resident and a large stockholder. It is obvious that a by-law permitting this cannot be upheld. Plaintiff’s ownership of- stock vested in him a valuable right — the right to continue to share in the earnings of the enterprise — a right of which he could not be deprived by the arbitrary act of the directors or of the other stockholders. If the association, finding itself embarrassed by having on hand more funds than it could profitably invest, had adopted' a plan for the retirement of stock upon some equitable basis, under which members of the same class would be given the same treatment, a very different question would be presented. It is sufficient for the purposes of this case to say that, as applied to plaintiff, the new by-law was unreasonable and inoperative.
'The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
A plaintiff brought suit on an insur-
ance policy containing a provision that if the assured should have at the date of the policy, or should thereafter obtain, any other policy or agreement for insurance, whether valid or not, on the property covered, or any part thereof, the policy should become void, unless consent to such additional insurance should be indorsed in writing by the company on the policy. It was issued by a mutual company, organized under the laws of this state, and the by-laws thereof attached to the policy contained the following provision :
“Property insured in this company shall not be insured in any other fire insurance company without the permission of the board of directors and it be so noted in the policy. Any violation of this rule shall render the policy null and void.”
The company answered that these provisions of the policy and by-laws had been violated.. The plaintiff replied, admitting the additional insurance, and alleging as a waiver that due notice thereof had been given to the company, but that no objection to such additional insurance had been made, and no steps taken to cancel or terminate the policy by the company. On the trial the plaintiff produced the testi mony of two witnesses to the effect that notice of the 'additional insurance had been given by a postal card, duly stamped, mailed, and directed to the defendant’s secretary at his official post-office address. The secretary denied the receipt of this card. The court instructed the jury that if it should find from the evidence that after the additional insurance was obtained the plaintiff wrote and mailed the card, as claimed, then, in the absence of evidence to the contrary, it should be presumed the card was received by the defendant at its place of business. At the request of the defendant special questions were asked, and answers returned as follows :
“Did the plaintiff before the fire notify the defendant that he had taken out other insurance on the wheat? Ans. Yes.
“If you answer question 1 that plaintiff notified the defendant, what did the plaintiff do to notify the defendant ? A. Sent postal card.
“Did the defendant ever receive the notice before the fire ? A. Yes.
“If you answer that the defendant received the notice prior to the fire, state the name of the person who received it, and where it was received. A. Goodholm, secretary Swedish American Insurance Company, at Lindsborg, Kan.”
The company claims that since the officer in charge of the company’s business at Lindsborg, the place to which the card was addressed, testified that he did not receive it,' there was evidence contradicting the receipt of the card, and the jury were not authorized to find that the card had reached its destination from presumption alone. However this may be, the jury were not left to rely on presumption. The secretary himself testified that he did have information that the additional insurance had been taken out. He gave as the source of such information a certain letter which he produced, but 4the letter contained no reference to the matter of additional insurance, and nothing whatever from which any information relating thereto could, by any possibility, be derived. Therefore, the jury were authorized to find that the secretary had been notified in the manner claimed by the plaintiff from the testimony of these two men, without the aid of the presumption.
The company claims that, even though it received proper notice of the additional insurance, it did not indorse its consent thereto upon the policy, and hence-that the policy was void. Some two months elapsed from the giving of the notice until the loss occurred. Upon receiving the notice the company had a right to take advantage of the provisions of its policy and bylaws. The provisions quoted therefrom were inserted for its sole benefit. When it assumed to remain passive the assured was deprived of any opportunity to protect himself if the policy were to be forfeited. The-term “void/’ as used in the contract, is to be regarded as meaning that the insurer had, at its exclusive option, the right to treat the policy as a nullity. It was put to its election whether or not it would do so upon receipt of the notice, and having failed to act within a reasonable time, it is estopped to claim a forfeiture-when it became to its advantage to do so, after loss had occurred. (The Home Insurance Company of New York v. Marple, 1 Ind. App. 411, 27 N. E. 633 ; Phœnix Ins. Co. v. Holcombe, 57 Neb. 622, 78 N. W. 300, 73 Am. St. Rep. 532; Phœnix Ins. Co. v. Spiers & Thomas, 87 Ky. 285, 8 S. W. 453; Ins. Co. v. Lyons, Lindenthal & Co., 38 Tex. 253 : Grubbs v. Insurance Company, 108 N. C. 472, 13 S. E. 236, 23 Am. St. Rep. 62; Pelkington et al. v. Nat'l Ins. Co., 55 Mo. 172; Wilson to Use, Appellant, v. Ins. Co., 174 Pa. St. 554, 34 Atl. 122 ; Phœnix Ins. Co. v. Johnston, 143 Ill. 106, 32 N. E. 429 ; Orient Ins. Co. v. McKnight, 197 id. 190, 64 N. E. 339; Wakefield and others v. The Orient Ins. Co. of Hartford, 50 Wis. 532, 7 N. W. 647.)
It is claimed, however, that because the company is organized on the mutual plan it is not estopped by the conduct of its officers. The better rule is that there is no distinction between mutual and stock companies in respect to the power of officers and agents to waive the provisions of their policies and by-laws. (Pratt v. D. H. M. F. Ins. Co., 130 N. Y. 206, 29 N. E. 117 ; Conductors’ Benefit Ass. v. Tucker, 157 Ill. 194, 42 N. E. 398; Wilson to Use, Appellant, v. Ins. Co., 174 Pa. St. 554, 34 Atl. 122; Susq. M. F. Ins. Co. v. Elkins, 124 id. 484, 17 Atl. 24, 10 Am. St. Rep. 608; Pedstrake v. Cumberland Ins. Co., 44 N. J. L. 294; Towle v. Insurance Co., 91 Mich. 219, 51 N. W. 987.)
The proof was ample that under the peculiar organization of the defendant company the secretary to whom the notice of additional insurance was mailed was so far entrusted with the management of its business that his conduct was binding upon it. The question of his authority was submitted to the jury, under a proper instruction, and the verdict thereon is conclusive.
The court instructed the jury that, should they find for the plaintiff, he was entitled to recover the full amount of the insurance on the property covered by the policy. The policy contained a provision that it should prorate with other insurance, and hence it is claimed the instruction given is erroneous. The answer was framed on the theory that the policy was utterly void, and neither disclosed the amount of the subsequent insurance nor asked that the policy in suit prorate with it. The reply admitting the subsequent insurance did not disclose the amount of it. It is true that on the trial the amount of the subsequent insurance was incidentally shown to be $1000, but to the end of the trial the theory of the defense, so far as the record discloses, was that there could be no recovery whatever. The instructions asked by. the defendant, and the special questions which it propounded to the jury, were framed on that theory. No instruction or finding whatever was asked relating to the prorating of the two policies. Hence the record utterly fails to show that the question now raised was brought to the attention of the court at any time during the progress of the trial. The court was not bound to search some thirty-five provisions of the policy and • by-laws printed in small type to find a provision beneficial to the defendant which was not referred to in the pleadings, and to which attention was not directed by a proper request for an instruction. Failure to do so was not error. And even though the matter may have been presented upon the motion for a new trial, that motion related merely to errors occurring at the trial, and hence the question was raised too late.
It is very earnestly contended that the court erred in submitting other questions of waiver to the jury and in its instructions relating to them. Even if this be true, the judgment cannot be reversed on that account, since by the special findings of the jury one substantial ground of waiver was properly established, and that is sufficient to uphold the action of the trial court.
Other assignments of error are unsubstantial, and the judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
This was an action brought by Henry Gimber, a boy thirteen years of age, against the Ferd. Heim Brewing Company to recover for injuries received while crossing a street by being run over by a teám driven by a servant of the company. The petition alleged negligence in fast driving. The defense was principally based upon a claim of contributory negligence. Plaintiff in error contends that the trial court should .have sustained a demurrer to plaintiff’s evidence and that an erroneous instruction was given relative to the degree of care required of plaintiff. We think that there was sufficient evidence of negligence on the part of defendant to require the submission of the issue to the jury, and that the question whether plaintiff was guilty of contributory negligence was likewise a matter for their determination. Under the circumstances of the case, we do not find that the instruction complained of, considered as a whole, was erroneous,
It is argued by plaintiff in error that as the injury occurred in Missouri the instructions should have conformed to the law as declared by the supreme court pf Missouri, rather than by that of Kansas. Conceding the correctness of this contention, it was necessary for the defendant, in order to derive any advantage from it, to produce evidence that the rule of law invoked in fact existed in Missouri. The rule is the same in the case of a judicial decision of a sister state as in that of a statute. Neither is judicially noticed except for- the purpose of construing our own laws or determining what they are. (Hunter’s Adm’r v. Ferguson’s Adm’r, 13 Kan. 462.) No evidénce having been introduced on this proposition, the question sought to be raised is not before us.
The judgment is affirmed. | [
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Per Curiam:
Defendant, tried and convicted of selling intoxicating liquors and maintaining a nuisance, appeals to this court. A careful examination of the case discloses nothing new and no question of sufficient importance to merit separate consideration or the writing of an opinion.
The judgment is affirmed. | [
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Per Curiam:
Plaintiff’s action was one for alimony. The defendant filed his cross-petition praying for a divorce. The court refused to grant alimony pending suit. The case having been called for trial, plaintiff’s motion for a continuance was overruled. Thereupon plaintiff dismissed her action and the case proceeded upon the cross-petition of the defendant, and he was granted the relief prayed for.. In this proceeding in error plaintiff’s complaint is principally upon the rulings of the court refusing to grant temporary alimony and overruling the motion for a continuance. No error is claimed in the granting of the divorce, and as-to that she does not seek a reversal. What she desires to-have reviewed are the orders made relative to alimony and continuance. Suppose they are such orders as, under the-statute, might now be reviewed and reversed, how could such action benefit the plaintiff in error ? She has dismissed her action and nothing is left to try in the court below.
The j udgment will be affirmed. | [
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The opinion of the court was delivered by
Smith, J. :
On July 8,1891, John B. Vance, trustee of the United Society called Shakers, of New'Gloucester, Maine, obtained a decree of foreclosure in the district court, based on a note and mortgage given by Henry H. Taylor. Plaintiffs in error are his successors in the trust. After the mortgage lien attached, Taylor sold the land to H. L. Frishman, who assumed and agreed to pay the incumbrance. An order of sale was sued out in May, 1894, but withdrawn by order of the plaintiff below. No other execution or order of sale was issued. After this, Frishman promised to make payments on the judgment, and did make payments annually until 1899.
This action was begun on May 1, 1900. The petition sets out a copy of the note and mortgage with an allegation that judgment was rendered on the note, and a decree entered foreclosing the mortgage, together with an averment that Frishman 'made payments on the judgment annually as above stated. The prayer of the petition asks for a foreclosure of the mortgage; that the sums found due the plaintiffs be declared a first lien on the land ; that the same be sold and the proceeds applied to the plaintiff’s debt, after payment of the costs and taxes ; and that the sheriff make a deed to the purchaser.
It is evident from the petition of plaintiffs below that the indebtedness referred to, evidenced by the note, was merged in the decree of foreclosure-of July 8, 1891. (Price v. Bank, 62 Kan. 735, 64 Pac. 637, 84 Am. St. Rep. 419.) It is urged, however, that while the indebtedness may be so merged, the lien of the mortgage is not. Oases are cited from other states holding this view. Whatever the rule may be elsewhere, the question is no longer an open one in this state. See Price v. Bank, supra ; Swenson v. Plow Company, 14 Kan. 387; Kulp v. Kulp, 51 id. 341, 32 Pac. 1118, 21 L. R. A. 550. See, also, The People v. Beebe, 1 Barb. 379 ; Gage v. Brewster et al., 31 N. Y. 218, 226.
Counsel for plaintiffs in error states in his brief: “This action is, therefore, an action upon the original note and mortgage revived, continued and kept alive by the payments, promises and acknowledgments in writing of the defendant.” As before stated, whatever payments were made or promises given were made and given after the decree of foreclosure was entered, and related .thereto. After the merger of the mortgage lien into the judgment the former was extinguished, and could not be made the basis of another action to foreclose it a second time.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Parker, J.:
Defendant was tried, convicted, and sentenced on two criminal charges of robbery in the first degree, and appeals.
The undisputed facts are that the Cronin Liquor Store, located at 1527 Gabriel in the City of Parsons, was held up and robbed by an individual, armed with a revolver, on May 18, 1950, and again on August 23, 1950. Defendant was arrested and charged with commission of the robberies. In due course he was brought before a magistrate, given a preliminary examination and bound over to the district court. In the district court an information was filed against him charging him in two counts with robbery in the first degree. The record does not disclose but we are told, and therefore assume it to be the fact, that when the case came on for trial in the district court defendant, who was represented by counsel, waived formal arraignment and entered a plea of not guilty. In any event it shows that at that time counsel for both the state and the defendant announced that all parties were ready for trial. Thereafter a jury which had been empaneled and sworn to tried the cause, returned a verdict finding defendant guilty of robbery in the first degree as charged in the information and the trial court, after overruling a motion for new trial, sentenced him to the state penitentiary for the period of time prescribed by law for the commission of such crimes.
In view of the issues raised on appeal nothing would be gained by a detailed recital of the evidence adduced at the trial. For that reason, we turn directly to the errors assigned by appellant as grounds for reversal of the judgment and will refer to portions of the testimony essential to their disposition as they are given consideration.
The first and perhaps the most important error assigned is that the verdict of the jury was based upon insufficient evidence and is contrary to the evidence. With respect to this claim the record discloses that appellant flatly denied that he had been in, was near the vicinity of, or had robbed, the establishment in question on either of the dates set forth in the information. On the other hand one Otto Ader, who was in charge of such establishment on both of the occasions when it was robbed, positively identified appellant as the person who entered the store on the dates in question and, at the point of a gun, took from him money belonging to his employer amounting to $57.70 on the first occasion and $36.89 on the second. There was little if any other evidence of identification. Notwithstanding the jury saw fit to disbelieve the appellant and give credence to the testimony of the employee of the robbed establishment and the court approved its verdict. In the face of such a record there is no sound ground upon which appellant’s contention on this point can be upheld.
This court has long been committed to the rule it is the function of the jury, not that of the court of appellate review, to weigh the evidence and pass upon the credibility of witnesses, and that where there is any substantial competent evidence to support it a verdict will not be disturbed on grounds of insufficiency of the evidence. See State v. Smith, 158 Kan. 645, 648, 149 P. 2d 600, and cases there cited, also State v. Greer, 163 Kan. 592, 184 P. 2d 991 and State v. Berry, 170 Kan. 174, 223 P. 2d 726.
Neither can it be said, as appellant suggests, that the evidence is insufficient simply because' the verdict with respect to the identity of an accused, is based upon the testimony of a single witness. In State v. Whalen, 163 Kan. 8, 179 P. 2d 942, the defendant was charged with grand larceny and convicted. On appeal to this court one of his claims was that the verdict was not sustained by the evidence because it was based solely upon testimony of the victim, denied by the defendant, to the effect the former looked back over his shoulder and observed his pocketbook which had been in his left hip pocket in the defendant’s hand and that later, when seized by the victim, the defendant dropped the pocketbook to the ground. In affirming the judgment we said that such evidence, standing alone, was sufficient to sustain the verdict. Another statement of like import is to be found at page 175 of the opinion in State v. Berry, supra.
The next two matters relied on as grounds for reversal of the judgment are raised by several specifications of error. The first of these is that the trial court erred in rulings which permitted the appellee to introduce improper evidence to the prejudice of appellant’s rights and the second that it erred in excluding a portion of appellant’s evidence necessary to the full and proper presentation of his defeiise. We shall treat these claims in the order in which they are stated.
The claim erroneous evidence was admitted is based upon the premise appellant, after having taken the stand as a witness in his own defense, was interrogated on cross-examination, regarding the number of times he had been arrested. Specifically the complaint is that the trial court, over objection of his counsel, not only allowed questions of that character to be asked but permitted the answers made thereto to go to the jury. This testimony, it should here be stated, was not admitted until after the trial court had inquired as to the purpose of such interrogatories and had been advised by counsel for the state that the sole purpose thereof was to test the veracity and credibility of the appellant as a witness.
In this jurisdiction there can be no question about the status and rights of a defendant in a criminal action where he elects to take the stand as a witness in his own defense. When he does so he places his character and credibility in issue and, when questioned in good faith, he may be cross-examined with the view of impairing his credibility concerning previous offenses and subjects involving him in degradation and disgrace although they do not pertain to the charge for which he is then on trial. More than that the extent of the cross-examination touching his credibility is a matter which rests in the sound discretion of the trial court and rulings with respect thereto will not be disturbed in the absence of a clear showing that discretion has been abused. Our early decisions establish the foregoing principles beyond all peradventure of doubt but we need not burden this opinion by their citation. They are referred to and relied on in our more recent decisions of State v. Pfeifer, 143 Kan. 536, 56 P. 2d 442 and City of Wichita v. Hibbs, 158 Kan. 185, 146 P. 2d 397, which reiterate and adhere to such principles as there and here announced.
Appellant does not seem to question the principles of law heretofore announced so much as he does their application. In an attempt to avoid their force and effect he relies on three propositions. First he contends that for purposes of testing his credibility a defendant cannot be interrogated on cross-examination respecting prior arrests. Our decisions are to the contrary. See State v. Bigler, 138 Kan. 13, 23 P. 2d 598; State v. Nossaman, 120 Kan. 177, 243 Pac. 326; The State v. Rhoades, 113 Kan. 455, 215 Pac. 291; State v. Story, 144 Kan. 262, 58 P. 2d 1090. All of such decisions contain statements, in one form or another, to the effect that on cross-examination a defendant may be questioned regarding prior arrests and that his answers with respect thereto are admissible in evidence for what they may be worth in determining his character and credibility.
Next it is argued that even if testimony of a defendant on cross-examination as to prior arrests is admissible it is limited to arrests for felonies only. There is no merit to this contention. The opinions in each of the two cases last cited clearly reveal that a defendant may not only be interrogated on cross-examination regarding prior arrests for misdemeanors but that his admissions concerning such arrests are just as admissible as admissions relating to prior arrests on felony charges.
Finally it is urged the information regarding appellant’s previous arrests was elicited and admitted in evidence for the purpose of establishing his guilt as to the offenses charged and not for the purpose of testing his credibility. The answer to this contention is to be found in instruction No. 9 of the trial court which in clear and unequivocal terms instructed the jury that the inquiry as to appellant’s prior arrests was permitted not for the purpose of proving the offenses charged but for the sole purpose of testing the veracity and credibility of the appellant as a witness and advised that such testimony should not be considered by it for any other purpose whatsoever. In connection with this last point it is charged that attorneys for the appellee were guilty of misconduct in that they misrepresented their purpose in introducing such evidence. We fail to find anything in the record to sustain this claim. Even so it need not be labored. In view of instruction No. 9, the purpose of the state in procuring admission of such evidence did not result in prejudice to appellant’s substantial rights and hence under the statute (G. S. 1949, 62-1718) affords no ground for reversal of the judgment.
Error assigned in the exclusion of testimony is based upon the trial court’s refusal to permit appellant to introduce evidence in the nature of an alibi. There are two sound reasons for rejection of appellant’s claim the trial court’s action in this respect constituted error.
Under our code of criminal procedure (G. S. 1949, 62-1341) the conditions under which an alibi may be proved are set forth and it is provided that a defendant purposing to offer evidence of an alibi must serve a specific notice on the county attorney. It is conceded that was not done. We have held that compliance with the requirements of this section of the statute is a prerequisite to the admissibility of the testimony of alibi witnesses. See Burns v. Amrine, 156 Kan. 83, 121 P. 2d 884 and State v. Leigh, 166 Kan. 104, 111, 199 P. 2d 504.
The second reason why this claim of error is not good springs from the fact that the excluded evidence was not offered or brought into the record on the hearing of appellant’s motion for a new trial as required by the pertinent statutes, G. S. 1935, 60-3001 to 3004, and 62-1414. The result is there is nothing open to a review under this assignment. See State v. Thomas, 157 Kan. 526, 142 P. 2d 692, State v. Riner, 143 Kan. 520, 54 P. 2d 990, and cases there cited, also State v. Berry, 170 Kan. 174, 176, 223 P. 2d 726.
In conclusion, we are constrained to note a claim advanced by appellant’s counsel in oral argument even though it is not actually here for purposes of appellate review because of failure to raise it in the court below. Summarized, it is that appellant did not have a preliminary examination on the charges which were filed against him in district court and on which he was tried and found guilty by the jury, hence the judgment should be reversed. This contention comes too late. Appellant waived arraignment, pleaded not guilty, and went to trial on the information. Thereafter, under our decisions, the subject of preliminary examination (The State v. Perry, 102 Kan. 896, 171 Pac. 1150 and State v. Wallgren, 144 Kan. 10, 11, 58 P. 2d 74) was no longer material.
We find nothing else of importance in the case. It follows the judgment of the district court must be and it is hereby affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This is an appeal from a judgment of the district court reversing action of the probate court of Atchison county in approving the final accounting of executors and directing such fiduciaries to account for certain funds found to be assets of an estate.
The dispute between the parties is over property belonging to Edgar R. Hawk in his lifetime, who died on March 16,1947, leaving a last will and testament which was admitted to probate on March 27, 1947, iii the probate court of Atchison county. By the terms of his will, the deceased left his property, with one minor exception, to his sons and daughters in equal shares. J. Eulalie Beyer, one of his daughters, and, her husband, Roscoe Beyer, the appellants herein, were named in the will of the decedent as executors of his estate and were appointed by the probate court to serve in that capacity. It is conceded that immediately prior to his death decedent had a savings account on deposit in the Denison State Bank at Holton in the amount of $687.11 and that subsequent thereto the executors drew the amount on deposit in the account from the bank and placed it in their own personal account under a claim that just a few days before his death the deceased father had made a gift of the savings account to Eulalie, his daughter. Shortly after their appointment the executors filed an inventory which did not mention or list the amount of the savings account as an asset of the estate. Subsequently, the executors filed an intermediate accounting and a petition for additional time in which to settle the estate. Thereupon other children of the testator countered with a petition to require an immediate closing of such estate. At a hearing on these two petitions, which were heard at the same time, all parties except Irving B. Hawk, a son of the decedent and an appellee herein, were present and/or represented by counsel. The money in controversy was not included in the intermediate accounting filed by the executors and no action was taken by anyone to require such inclusion. There is some controversy as to whether it was discussed at that hearing and the record does not disclose any action by the probate court with respect to the intermediate accounting. It does, however, reveal that at this hearing the probate court found the estate should be settled and closed in due course and that the executors were given thirty days in which to file a petition for final settlement.
Subsequently, on a date of no importance to the issues, the executors filed a petition for final settlement including a final accounting, attached to the petition, which did not include the funds in question. All parties except Irving B. Hawk were again present and/or represented by counsel at the hearing on this petition. At this hearing, and on September 24,1948, the probate court approved the final account as made by the executors.
On October 25, 1948, Irene E. Hawk Phillips, one of the heirs and devisees of the decedent, filed notice of, and perfected, an appeal from the order and judgment of the probate court allowing the final account of the executors. The executors moved to dismiss this appeal when it reached the district court upon the specific ground it was not filed within the time prescribed by statute and therefore gave the district court no jurisdiction of the matters and things therein involved. This motion was argued in district court and overruled.
Following the overruling of the motion to dismiss the appeal the cause came on for trial in district court without any additional pleadings. However, prior to commencement of trial the parties had stipulated the only matter in controversy between them was the savings account which was on deposit in the Denison State Bank at the time of the testator’s death. Thereupon the court proceeded to try the cause. During the course of the trial the parties adduced evidence in support of their respective positions and it is clear from the record, although there is disagreement as to when the ruling was made, the trial court ruled that the burden of proof was on the fiduciaries to sustain their position their final account as filed in probate court should be allowed and approved. After consideration of all evidence adduced by the parties and arguments of their counsel the district court, as heretofore indicated, found that the final account, filed by the fiduciaries in probate court should not be approved and directed that they account as such fiduciaries for the further sum of $687.11 the exact amount of the savings account in question. It then rendered judgment accordingly. A motion for new trial was filed and overruled. Thereupon the executors perfected this appeal and, under proper specifications of error, seek to reverse the judgment of the district court on grounds which will now be considered and determined.
The first claim advanced by appellants is that the trial court erred in overruling their motion to dismiss the appeal. It is based on the fact the thirtieth day after the decision approving the final account was rendered was a Sunday and that the appeal was not filed until Monday, October 25, 1948, which was the thirty-first day, after the rendition of such decision.
In support of their position on this point appellants direct our attention to G. S. 1949, 59-2404, providing that an appeal from an order or judgment, such as is here involved, may be taken from probate to district court within thirty days after its rendition by a person aggrieved and insist that since the probate code contains no express provision relating to the computation of time for the taking of such an appeal when the last day of the thirty day period falls on Sunday such day is not to be excluded, hence the appeal was not taken by appellees within the time required by its terms and the district court acquired no jurisdiction. They then rely on our recent decision of In re Estate of Fast, 170 Kan. 352, 225 P. 2d 1056, wherein we held (1) the probate code fixes its own procedure and (2) the code of civil procedure pertaining to the filing of pleadings in civil actions in the district court has no application to the filing of pleadings to a demand against an estate in the probate court and, outlining their position by specific reference to what was there held, state “our facts here are different but our argument is exactly that — that the Code of Civil Procedure has no application.”
Conceding the probate code as enacted in 1939, or as subsequently amended, contains no express provisions of the character referred to by appellants and giving the decision relied on by them exactly the same force and effect they give it, we are nevertheless constrained to hold appellant’s position on this particular point cannot be upheld. Some four years after such code became effective the legislature enacted chapter 216 of the Laws of 1943. The first section of this Act amended a section of our statute (G. S. 1935, 60-3819) then and now a part of our code of civil procedure. The second section dealt with computation of time generally and contained the following language:
“Sec. 2. That where any law of this state or any rule or regulation lawfully promulgated thereunder prescribes the time within which an act is to be done, if not otherwise specifically provided, the time within which such act is to be done shall be computed by excluding the first day and including the last; if the last day be Sunday or a statutory holiday, it shall be excluded: Provided: That if the time within which an act is to be done is one week or less, Sundays and statutory holidays shall be excluded.”
Resort to the title of the Act reveals the subject is computation of time generally, applicable to all situations. The mere fact that in the Act the legislature saw fit to amend a section of the code of civil procedure does not detract from its over-all effect. Thus it appears we now have a valid statute which provides in clear and unequivocal language that where any law of this state, including the probate code, prescribes the time in which an act is to be done, and the last day for the performance of that act comes on Sunday, such day is to be excluded and the party seeking to perform the act in question has until the following day to perform it. The result is the notice of appeal even though it was filed on Monday, which as has been stated was thirty-one days from the date of the rendition of the probate court decision, was filed in time and the district court properly overruled the motion to dismiss the appeal.
Many of the arguments advanced by appellants in support of their claim the appeal was not perfected in time are sound in principle and would be persuasive if, as they insist, all of the provisions of chapter 216, Laws of 1943, were to be regarded as limited to proceedings coming within the purview of the code of civil procedure. The same holds true of our decision in the Fast case on which they place so much weight. The trouble is neither these arguments nor the decision relied on have any application where — as here — the scope of the statute in question, now G. S. 1949, 60-3819(a), prescribes the method and manner of computing time under any law of this state where the law in question contains no specific provision to the contrary. This we may add is true even though as must be conceded the Revisor of Statutes in arranging the material in the General Statutes for 1949 saw fit in the performance of his ministerial duties to list the second section of chapter 216, Laws of 1943, under general provisions of the code of civil procedure as section 60-3819 (a) notwithstanding its status as a general law applicable, under the conditions therein specified, to any law of the state. The clear intent and purpose of a statute as enacted by the legislature cannot be circumscribed in that manner.
Appellants next urge the appellees pursued an erroneous course in their efforts to require an accounting by an individual by appealing from an order approving an executor’s accounting. We doubt that the commencement of a proceeding such as is here involved, where it is conceded that a savings account standing in the name of a testator at a bank on the date of his death was cashed and appropriated by an executor, under a claim of gift, sometime after his appointment as a fiduciary, can be regarded as an attempt on the part of the persons commencing such proceeding to compel the person who has obtained the money to account as an individual. Under such conditions it seems clear the proceeding is instituted to compel the latter to account in his fiduciary capacity. However, we need not labor the question. The short and simple answer to this claim is to be found in the provisions of G. S. 1949, 59-2401(10), which provide that an appeal to the district court may be taken from an order allowing, or refusing to allow, an accounting of a fiduciary or any part thereof. It is crystal clear from our decision In re Estate of West, 169 Kan. 447, 219 P. 2d 418, facts of the character here involved when asserted in either probate or district court constitute a defense to a petition for final settlement.
In connection with this point it is suggested the appellees made no defense in probate court respecting the phase of the account in controversy and that therefore they are precluded from contesting the decree of final settlement in district court. There is no merit to this suggestion even though it be assumed, which is by no means clear from the record, appellees made no objection to the order of final settlement in probate court. G. S. 1949, 59-2404, expressly provides the right of appeal from orders designated as appealable under the provisions of 59-2401, supra, which, as we have indicated, includes an order allowing the accounting of a fiduciary, shall not be denied nor abridged for failure of the party appealing to present his defense in the probate court. Moreover, G. S. 1949, 59-2408, makes it clear that on appeal from such an order to the district court the trial is to be de novo and the issues to be therein determined are not to be restricted by failure of the parties to appear, or by the evidence introduced, or the absence or insufficiency thereof, in the probate court.
The gist of the next claim relied on as a ground for reversal of the judgment is that the trial court erred in finding the savings account had not been given to one of the executors as claimed and that it was actually an asset of the testator’s estate on the date of his death. We are not disposed to labor this contention. It is conceded the evidence on this subject was highly conflicting and an examination of the record reveals ample testimony to support the trial court’s conclusion. In such a situation its finding in that respect will not be disturbed.
Next it is argued the trial court erred in placing the burden of proof on the executors. Under our decisions this claim cannot be upheld. See In re Estate of Park, 151 Kan. 447, 99 P. 2d 849, where we held:
“In making his final settlement in the prohate court, the burden of proof is on the administrator of a decedent’s estate to show the correctness of his final account.” (Syl If 1)
And at page 452 of the opinion said:
“. . . As a condition to his discharge, the administrator had to establish the correctness of his account. The fact some of the heirs filed objections did not relieve him. Nor did the fact the matter was being tried on appeal alter the situation. There was no provision of the probate code in effect at the time the final account was filed in the probate court that made any ruling of that court as to its correctness prima facie evidence on an appeal to the district court. The trial in the district court is a trial de novo. (G. S. 1935, 22-1107; Darnell v. Haines, 110 Kan. 363, 203 Pac. 712; In re Estate of Woodworth, 145 Kan. 870, 881, 67 P. 2d 553.) The trial court ruled correctly on the burden of proof to establish the amount. . .
Finally it is urged the trial court erred in refusing to admit an affidavit of appellees’ former attorney on the hearing of the motion for new trial on the ground such affidavit was not filed with the cleric of the district court within the time (10 days) prescribed by G. S. 1949, 60-2835. The burden of appellants’ argument on this point is that tire ten days notice required by this statute applies only to affidavits to be used on trial of an action. We are inclined to agree with this contention. However, that does not mean the trial court erred in overruling the motion for a new trial or compel a reversal of its judgment. Under our repeated decisions the assertion by the trial court of a wrong reason for a correct result does not make a judgment reversible (See West’s Kansas Digest, Appeal & Error, §854). Moreover, the rule is well established (See West’s Kansas Digest, Appeal & Error, § 901) that before this court will set aside a judgment of the trial court the party seeking its reversal must make it affirmatively appear there has been an error which affects his substantial rights. Examination of the affidavit in question, which this court has the same opportunity to examine as the trial court, discloses that the major portion thereof relates to the failure of the appellees to make a defense in probate court. This as we have seen, if accepted as true did not deprive appellees of the right to appeal from the order of final settlement or make their defenses thereto on appeal in the district court. At the most other portions of the affidavit can only be regarded as offered in the form of newly discovered evidence which was cumulative and impeaching in character and there is nothing about the facts as therein set forth warranting a conclusion that if they had been presented at the trial of the case on its merits they would have lead to a different result. Under such conditions we are convinced the trial court did not err in overruling the motion for a new trial and it certainly cannot be said the appellants have made it affirmatively appear the overruling of that motion, even on the ground on which it was specifically based, was such an error as affected their substantial rights.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Smith, J.:
The defendant was convicted of murder in the first degree in two counts. The jury fixed the punishment at death. He appeals.
The defendant does not bring any of the facts with reference to the commission of the offense here. He only attacks some proceedings that occurred during the trial. The facts as to those are briefly as follows:
During the presentation of the defendant’s evidence his brother testified that defendant had been a dull student in school; had never improved very much; only reached the fifth or sixth grade; he wrote very little and was slow in his reading; that in his opinion the defendant had the mentality of an eight or nine or ten year old child. He also testified that in his opinion the defendant did not understand to the full extent the desperateness of his situation.
An uncle of defendant testified to about the same effect.
Also another acquaintance.
The sheriff of Atchison county, Kansas, where the defendant had been incarcerated after his arrest, testified to about the same effect.
A Catholic priest testified that he was experienced in educational work and had visited with defendant in jail and in his opinion the mentality of defendant was that of a nine-year-old child.
At this point the county attorney filed a motion in which he called attention to testimony that had been given to the effect that the defendant was unable to comprehend his position and to make his defense. He moved that the court appoint a commission or another jury for the purpose of determining the question of whether defendant was insane, an idiot or an imbecile and unable to comprehend his position and to make his defense, all in accordance with G. S. 1949, 62-1531.
The court proceeded to appoint a commission of three practicing physicians in Doniphan county. The court instructed that commission as follows:
“You are now officers of the court. You have been appointed by the court to examine James Lammers in the above entitled case, under Section 62-1531, Revised Statutes of Kansas, 1949, to ascertain, after a thorough examination of the said James Lammers, whether he be insane, an idiot or an imbecile and unable to comprehend his position and make his defense. A person may be illiterate, have a low degree of competency and a low I. Q. rating as relates to scholastic matters but he may have a normal or high degree of competency through native or natural ability. You will not be justified in finding that the defendant James Lammers is unable to comprehend his position and make his defense unless you also find he is insane, an idiot or an imbecile.”
After the hearing the commission made the following report:
“We, the Commission, heretofore appointed and sworn to examine the defendant James Lammers, after careful examination of the said James Lammers, on our oaths, state and find that the said James Lammers is not insane, an idiot or an imbecile and that he is able to comprehend his position and to make his defense.”
Upon the return of that report the trial proceeded with the result that the defendant was found guilty on both counts and the jury fixed his penalty at death by hanging as to each count.
Upon the above verdict being returned counsel for the defendant announced that he was ready to have the prisoner sentenced. Thereupon the court inquired of the defendant and his counsel if the prisoner had any reason to give why sentence should not be pronounced. The defendant said he did not understand. The court repeated the question and he still said he did not understand, whereupon the court made a finding; that the defendant stood mute. The court then found the defendant was without legal reason why sentence should not be pronounced, and pronounced sentence that defendant shoud be punished by death by hanging on the 18th day of May, 1951, between the hours of six a. m. and twelve noon.
At the time of the appointment of the commission and after the oath had been administered to the members the following colloquy occurred:
“Mr. Reeder: On behalf of the State I would request that the doctors be permitted to engage in their examination of the defendant in the presence of counsel, either for the State or the defense.
“The Court: That is all right with you, Mr. Delaney?
“Mr. Delaney: Oh, I assume it is.
“Mr. Guier: Will the doctors be permitted to make any other examinations other than the mental examination?
“The Court: That, of course, is up to the doctors. If, during their examinations, they are of the opinion his mental condition shows any relationship to his physical condition, they may inquire into the cause of that mental condition in his physical condition. It is hard to separate the two, so if it becomes necessary to do so, you may examine him physically. I take it then you want everyone here present to withdraw from the doctors and the defendant. The officers will have to remain.
“Mr. Guier: They may remain, possibly, out of range.
“Mr. Delaney: If counsel withdraw, everybody withdraws except the officers of the Court?
“Mr. Reeder: The officers, I think, can stand at the door.
“Mr. Delaney: The bailiff, court reporter and everybody withdraws, is that right?
“The Court: That is right. Everybody retire.”
While the jury was deliberating it was returned to the courtroom and the following colloquy occurred:
“The Foreman: We have a question whether or not he would have a chance of a parole for killing his wife.
“Thereupon, the Court answered:
“The Court: That is a matter which is entirely up to the clemency of the Governor and the Pardon Board and the Board of Administration. As a direct answer to your question, this court will have to say that they do have that power and I think it is only fair to add that that is a matter that is in the wise discretion of the Governor, the Pardon Board and the Board of Administration. Does that answer your question, sir?
“The Foreman: Yes, sir.”
The trial court in this case saw fit to have the investigation made by a commission. In this the court acted correctly. (See State v. Badders, 141 Kan. 683, 42 P. 2d 943.)
The defendant argues first the court erred because the doctors who were appointed on the commission to examine the mental condition of the defendant were doctors of the ordinary practice of medicine and no trained psychiatrist was appointed on the commission and also that the court erred in denying him the right to have his attorney before the commission with him, and in failing to appoint a guardian ad litem to represent him before the commission.
G. S. 1949, 62-1531, provides as follows:
“Whenever any person under indictment or information, and before or during the trial thereon, and before verdict is rendered, shall be found by the court in which such indictment or information is filed, or by a commission or another jury empaneled for the purpose of trying such question, to be insane, an idiot or an imbecile and unable to comprehend his position, and to make his defense, the court shall forthwith commit him to the state hospital for the dangerous insane for safekeeping and treatment; and such person shall be received and cared for at the said institution until he shall recover, when he shall be returned to the court from which he was received to be placed on trial upon said indictment or information. If in the judgment of the medical superintendent of the state hospital for the dangerous insane, any person committed under this section is not in such condition as warrants his return to the court but is in a condition to be paroled under supervision, the superintendent shall report to the department and the committing court his reasons for his judgment and the plans which have been made for such parole. If the court does not file objection to the parole within sixty days of the date of the report, the superintendent may, with the approval of the department, parole him to a legal guardian or other person, subject to the rules and regulations of the department. (L. 1911, ch. 299, § 4; R. S. 1923, § 62-1531; L. 1949, ch. 323, §3; June 30.)”
The above statute, G. S. 1949, 62-1531, contemplates the determination of the defendant’s mental condition by the court where trial is being held, a commission or another jury empaneled for the purpose of trying such question.
The defendant argues here that the trial court erred in not having at least one trained psychiatrist on it rather than having the commission composed of three regular practicing doctors. This argument might be disposed of by pointing out that defendant and his counsel stood by while this commission was being appointed and made no objection to the manner in which it was selected nor its personnel nor to the qualification of its members. Neither defendant nor his counsel made any request that any person of any particular qualification be on the commission. Under such circumstances it might be held that the defendant had waived his right to raise the point. This is a case where capital punishment has been assessed, however, and on that account we have concluded to examine the question with meticulous care.
At the outset, it may be remarked G. S. 1949, 62-1531, does not provide in what manner a commission shall be selected or another jury empaneled. The question of how to handle cases of persons charged with crime when it appears they are for some reason unable to conduct their defense has received the attention of our legislature from time to time. We will examine our statutes past and present.
In re Wright, 74 Kan. 409, 89 Pac. 678, was a case where it was made to appear that a person charged with felony was insane. Before his preliminary hearing was had he was taken before the probate court where a verdict and judgment was reached that he was insane. This was called to the attention of the examining magistrate and it was contended that the examining magistrate had lost jurisdiction on account of the verdict and judgment of the probate court. The magistrate overruled the plea in abatement and proceeded to bind the defendant over. This action was attacked in a petition for a writ of habeas corpus. We denied the writ. We said, however, in the absence of any statute on the subject:
“It is the law of this country, independent of any statute, that a defendant shall not be compelled to answer to, or defend against, a criminal charge if mentally or physically unable at the time to do so in a rational manner, when such disability has developed after the alleged commission of such crime; but, in the absence of a statute to the contrary, the duty of determining whether or not such disability exists rests with the court whose duty it is to hear such answer or defense.”
At the time this case was decided Laws 1901, ch. 353 provided for a trial of a sanity case by a jury of four, one of whom should be a doctor in good standing. This opinion was handed down at the July term in 1906. The legislature of 1911 enacted chapter 299. It first provided for a state asylum for the dangerous insane on the grounds of the state penitentiary. Its sections 4 and 5 provided as follows:
“Sec. 4. Whenever any person under indictment or information, and before or during the trial thereon, and before verdict is rendered, shall be found by the court in which such indictment or information is filed, or by a commission or another jury empaneled for the purpose of trying such question, to be insane, an idiot or an imbecile and unable to comprehend his position, and to make his defense, the court shall forthwith commit him to the State Asylum for the Dangerous Insane for safe keeping and treatment; and such person shall be received and cared for at the said institution until he shall recover, when he shall be returned to the court from which he was received to be placed on trial upon said indictment or information.
“Sec. 5. Whenever during the trial of any person on an indictment, or information, and evidence is introduced to prove that he was insane, an idiot or imbecile or of unsound mind at the time of the commission of the offense and such person shall be found to have been at the date of the offense alleged in said indictment or information, insane, an idiot, or an imbecile, and is acquitted on that ground, the jury or the court, as the case may be, shall so state in the verdict and in said case it shall be the duty of the jury to pass specially on the question of the sanity of the defendant, and the court shall thereupon, forthwith commit such person to the State Asylum for the Dangerous Insane for safe keeping and treatment, and such person shall be received and cared for at said institution. No such person so acquitted shall be liberated therefrom, except upon the order of the court committing him thereto and until the superintendent of the said Asylum for the Dangerous Insane shall certify in writing to such committing court that in his opinion such person is wholly recovered and that no person will be in danger by his discharge.”
It will be noted these are the forerunners of G. S. 1949, 62-1531, and 62-1532. One applied to a case where the mental condition of the defendant at the time of trial was the question to be determined, and the other his mental condition at the time the offense for which he was being tried was committed. In effher event in case the defendant was found to be insane, an idiot or an imbecile he was to be committed to the asylum for the dangerous insane. Section 4, which as amended is G. S. 1949, 62-1531, provided for a determination of the question by the court, a commission or another jury empaneled for the purpose of Lying such question. This is the first time such a provision appears in our statute books and there is no provision for the manner in which the commission shall be selected nor the qualification of its members. Neither is there any such provision for the jury.
At that time chapter 353, sections 54 and 55, Session Laws of 1901, later appearing as R. S. 1923, 76-1207 and 76-1208, were in effect. R. S. 1923, 76-1207, provided that lunacy inquests should be by a jury or commission at the discretion of the probate court. R. S. 1923, 72-1208, provided when no jury was demanded the probate court could appoint a commission of two qualified physicians to make a personal examination. The Session Laws of 1919 dealt with the question of procedure as to feeble-minded and insane people. (See Session Laws of 1919, ch. 299.) Later R. S. 1923, 39-236, 39-237 and 39-238 was enacted. It referred to chapter 70 of the General Statutes of 1915 and to chapter 165 of the Session Laws of 1917. These two chapters provided procedure relative to insane people, idiots and imbeciles. The first section provided that where no jury was demanded the court could appoint a commission of two qualified physicians or one qualified physician and a clinical psychologist who should make a personal examination of the person whose mental condition was being inquired into.
Sections 2 and 3 of the chapter provided as follows:
“That whenever in a court of record, during the hearing of any person charged with a misdemeanor or crime, it shall be made to appear to the corut that the person is feeble-minded, the court shall summarily remand such person to the probate court of the county for examination under the provisions of this act. (L. 1919, ch. 299, § 2; June 17.) (39-237.)
“That whenever any person is found and adjudged to be feeble-minded in accordance with the provisions of this act, it shall be the further duty of the court to investigate and determine whether it is necessary to commit such person to the state training school, and if the court shall find, either at the time of trial or at any time thereafter, that the continued presence of such person in the community is a menace to himself or others or that the welfare of such person would be promoted thereby the court shall order such person committed to the state training school for detention and care. (L. 1919, ch. 299, § 3; L. 1920, ch. 66, § 1; Feb. 6.)” (39-238.)
It must be remembered what is now G. S. 1949, 62-1531 and G. S. 1949, 62-1532 were in effect when the above statutes were enacted and remained in effect after they were repealed in 1939 by the enactment of the probate code. It should be noted that R. S. 1923, 39-236 provided for a commission of two doctors but it was within the discretion of the probate court whether one should be a clinical psychologist.
With the statutes as above, the case of The State v. Ossweiler, 111 Kan. 358, 207 Pac. 832, was decided. There the defendant had been convicted of murder in the second degree. We pointed out evidence in the record indicating defendant was insane at the time of his trial. We pointed out section 4 of chapter 299 of the Laws of 1911, now G. S. 1949, 62-1531, also section 2 of chapter 299 of the Laws of 1919 and remarked that the effect of the statutes of 1919 was to'take feeble-mindedness out of the statutes of 1911. We said:
“Should the court find the defendant to be suffering from mental defect other than feeble-mindedness, he should be committed to the hospital for dangerous insane; should he be suffering from feeble-mindedness, he should be remanded to the probate court.”
Also
“Trial on the merits is, of course, no substitute for the preliminary investigation. The question of capacity to commit crime on August 1 bears no relation to the question of capacity on December 15 following to defend against a charge of crime.”
This opinion simply held the inquiry should be made. It pointed out no procedure.
State v. Brotherton, 131 Kan. 295, 291 Pac. 954, sheds some light on our problem. There the defendant was convicted of murder. During her trial some evidence was introduced tending to show she was feeble-minded at the time of the trial. The trial court suspended the trial and summarily remanded her to the probate court for determination of her mental condition. This was the procedure provided for by section 2 of chapter 299 of the Laws of 1919. The probate court first announced five days notice to her would be necessary, then proceeded to have her examined before a commission of two physicians and she was found not to be feeble-minded to the extent that she was unable to comprehend her position. Following this she appealed to the district court. When the district court before whom the prosecution was pending was advised of this appeal he proceeded to hear and determine her mental condition and found her not to be feeble-minded and proceeded with the trial with the result she was convicted. The main question urged on the appeal was that the trial court erred in going ahead with the trial of defendant’s appeal from the probate to the district court pending. Even though the remanding of defendant to probate court was made pursuant to section 2, chapter 199, Laws of 1919, we discussed both that section and G. S. 1949, 62-1531. On the question of whether she had the right to appeal from the judgment of the probate court we said:
“Did the defendant have a right of appeal from the judgment of the probate court finding her not to be feeble-minded? The issue for determination in the examination conducted before the probate court was whether she was or was not feeble-minded. So far as the proceeding before the probate court was concerned it was not trying the issue in the criminal case.”
We further said:
“A proper administration of justice makes no such procedure necessary or advisable. Can it be said that defendant was ‘aggrieved’ by the result of the proceeding in the probate court? The hearing there terminated with a decision in favor of her mentality. She could not have been aggrieved thereby so far as the decision of the probate court is concerned. The fact that she might be prejudiced by being obliged to defend herself in the criminal proceeding does not furnish a sufficient basis for a showing that she was aggrieved by the decision of the probate court. Furthermore, R. S. 39-237 provides ‘whenever . . . during the hearing . . .’ The legislature intended to prevent any miscarriage of justice by providing for such an emergency as arose in this case. It had in contemplation the interruption of the trial to determine whether or not the defendant ‘is feeble-minded.’ It did not see fit to provide expressly for an appeal. What it had in mind, no doubt, was just what was done in the case at bar, namely, that when the attention of the trial court is challenged to the situation, the trial should stop and the defendant be promptly remanded for determination of the question of mentality.
“It follows logically that if the probate court finds a person is feeble-minded, jurisdiction of the person is retained for the purpose of making disposition of the feeble-minded person as contemplated in R. S. 39-238. It likewise follows that if the probate court determines the person is not feeble-minded then the decision should not act as a discharge of the accused, but the judgment of the probate court should be reported back to the district court, and trial of the criminal case should then proceed. We conclude, therefor, that the defendant was not aggrieved by the decision of the probate court in her favor and was not entitled to take an appeal from the decision. The district court did not err in failing to proceed to try out the appeal from the probate court.”
This is of interest to us here because it puts an inquiry such as we have here in a class by itself and holds that a defendant whose mental condition is the subject of investigation is not entitled to any rights and immunities not provided for in the statute pursuant to which the inquiry is being conducted.
The court also considered whether a five days notice of the hearing was required. We pointed out that chapter 299 of the Laws of 1919 did not provide for any notice and the procedure was summary — hence the defendant was not entitled to any notice even though the other statutes providing for the determination of a person’s mental condition did provide for five days notice.
This brings us up to the present. Chapter 299 of the Laws of 1919 has been repealed. (See chapter 180, section 280, Laws of 1939.)
Section 62-1531, G. S. 1949, is still in effect just as enacted in 1911 except the procedure to be followed if the defendant should be found to be insane, an idiot or an imbecile and unable to comprehend his position and to make his defense has been changed somewhat. We are not concerned with that here.
As to the method of conducting a hearing where one is suspected of being insane, that is covered by G. S. 1949, 59-2257 to 59-2270. G. S. 1949, 59-2264 provides as follows:
“Unless a jury shall have been demanded, the court shall appoint a commission of two duly licensed doctors of medicine to assist at the hearing. The commissioners and the court shall make and file a report of their findings. In case the hearing is for the commitment of an insane person, the report shall be in duplicate and on such forms as may be prescribed by the state department of social welfare, one of which shall be filed with the court and the other shall be transmitted to the department of social welfare.”
The above statute does not provide for any psychiatrist or other specially trained person being on the commission. Thus we see it has been the settled policy of this court and our legislature to treat the inquiry into the mental competency of a defendant as a distinct thing from his trial for the crime charged. We have also held the proceedings were summary and he was not entitled to any safeguards or rights not provided for in the statutes including notice. The statutes have never required that any member of the commission be anything more than a doctor of medicine. The provision in G. S. 1949, 62-1531, that the inquiry may be made by a commission does not require that the members of the commission should have any qualification other than that of a qualified doctor, nor is there any constitutional provision for such.
Defendant relies on what this court said in In re Timm, 129 Kan. 126, 281 Pac. 863. That opinion is not in point here. The court was there considering a statute which provided in cases where a defendant had been acquitted by a jury on the ground he was insane at the time he was alleged to have committed the offense, he should be committed to the ward for the criminally insane and that no such person should be liberated except in pursuance of an order made by the board of administration after a full hearing and a finding and determination by the board that the defendant was fully recovered and restored to his right mind and that no person would be endangered by his discharge. The petitioner had been acquitted on the ground of being insane at the time he was alleged to have committed the offense. He later sought to be released after a hearing pursuant to the above statute. The board found him to be recovered but the warden refused to release him on the ground the statute was unconstitutional. We discussed the various amendments to similar statutes. Among other things we said:
“It is further urged that the revised section is invalid because it does not pro vide for a notice to be given to all interested parties. It does require the board to give ‘a full hearing,’ which would be the one affording a reasonable opportunity to all interested parties to appear and be heard.”
Defendant next argues that the trial court erred in a certain oral instruction it gave the jury. That came about this way. After the jury had been deliberating the jury then returned to the courtroom and asked the court the following:
“We have a question whether or not he would have a chance of a parole for killing his wife.”
Whereupon the court said:
“That is a matter which is entirely up to the clemency of the Governor and the Pardon Board and the Board of Administration. As a direct answer to your question, this court will have to say that they do have that power and I think it is only fair to add that that is a matter that is in the wise discretion of the Governor, the Pardon Board and the Board of Administration. Does that answer your question, sir?”
Whereupon the foreman answered, “Yes, sir.”
Defendant simply makes the statement that this statement was erroneous and prejudicial. Presumably the basis of that argument is that the instruction given was not in writing as required by statute. That point is not good. (See State v. Howland, 157 Kan. 11, 138 P. 2d 424.)
Defendant makes a point of the fact that the answer of the court did not correctly state the law. As a matter of fact we cannot see very much wrong with the answer.
The judgment of the trial court is affirmed. | [
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The opinion of'the court was delivered by
Pollock, J.:
J. Q,. Hughes, the owner of a city lot, encumbered it by a mortgage. This mortgage was assigned to Thomas Hinds, who applied to, and procured from, the assurance company a policy of insurance, with mortgage clause attached providing for payment of loss under the policy, if any, to him as his interest might appear. At the expiration of this policy Hinds applied for, purchased and procured a second policy, with a like mortgage clause attached. Before the date of the issuance of this policy Hughes had transferred the property to Almira H. Emrick. However, by a mistake of 'the agent of Hinds, this second policy named one Ida J. Fisher as owner of the legal title to the property. Before the expiration of this last policy the property was burned. This action is brought by Hinds, as mortgagee, against the assurance company, upon the contract made by the mortgage clause, to recover the loss to his security occasioned by the fire. The body of the policy, among other things, contained the following condition:
“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the prdperty be not truly stated herein ; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.”
The defense interposed by the assurance company was based upon this condition in the policy, it being contended that the name of the owner of the property was a material matter. There was judgment for plaintiff. Defendant brings error.
This is not a controversy between the 'owner of the property and the assurance company based upon the terms of the policy, but is a dispute between a mortgagee of the property and the assurance company, founded upon the mortgage clause attached to the policy. The indemnity from, loss in this case was applied for, secured, and paid for, not by the owner of the property, for his protection, but by the mortgagee, for the protection of his interest under his mortgage upon the property. Among other provisions found in' the mortgage clause is the following :
“It is hereby agreed that this insurance, as to the interest of the mortgagee only therein, shall not be invalidated by any change of ownership, or exposures, or any act, or neglect of the mortgagor or owner of the property insured nor by the occupation of the premises for purposes more hazardous than, are permitted by this policy.
“It is further agreed that the mortgagee shall notify said company of any change of ownership or increase of hazard which shall come to his knowledge. . . .
“The foregoing provisions and agreements shall take precedence over any provision or condition conflicting therewith contained in said policy.”
It is not contended that there was any fraud, concealment or intentional misrepresentation made by the mortgagee or his agent to secure the policy or induce the making of the contract contained in the mortgage clause. On the contrary, it was amply shown that' the insertion of the name of Fisher in the body of the policy as the owner of the legal title to the property, instead of Emrick, the true owner, was done upon information given the agent of the mortgagee that Hughes had conveyed the property to Fisher, which information was in good faith by the agent of the mortgagee communicated to the agent of the assurance company, and thus made the foundation for the insertion of the name of Fisher as the owner of the property in the policy. While the above-quoted provisions of the mortgage clause, by a literal construction of terms, are made applicable to changes in ownership of the property after the execution and delivery of the policy, yet we are inclined to the opinion that in such a case as this, where the indemnity is procured and paid for by the mortgagee, and the action is founded upon the contract made by the mortgage clause, the terms of which are expressly made to supersede the condition^ of the policy itself, and by mistake, innocently and unintentionally made, a wrong name is inserted in the body of the policy as the holder of the legal title to the property, such mistake is not so material to the risk assumed as to avoid the contract made between the parties to the mortgage clause. As tending to support the conclusion' reached, see Hanover Fire Ins. Co. v. Bohn, 48 Neb. 748, 67 N. W. 774, 58 Am. St. Rep. 719 ; Liverpool & London & Globe Ins. Co. v. Davis, 56 id. 684, 77 N. W. 66.
Complaint is made of evidence offered and received for the purpose of showing what representations were made to the agent of plaintiff and by him communicated to the agent of the assurance company as to the ownership of the property at the time the policy was written. We think this evidence was proper in this case as tending to show the good faith of the agent in the communication made by him to the assurance company as to the ownership of the property.
It follows that the judgment is right and must be affirmed.
All the Justices concurring. | [
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Per Curiam:
The plaintiff in this action filed a petition containing two counts, the first exhibiting a cause of action under sections 595 and 597 of the code (Gren. Stat. 1901, §§5082, 5084), and the second a cause of action for partition. The prayer was for both kinds of relief. The defendant answered, first, denying generally, and second, admitting possession and pleading full title in himself. Before the trial plaintiff dismissed his second cause of action. The allegations of the first cause of action in the petition, though plainly not made for that purpose, were sufficient to warrant relief by way of partition, and the prayer was not amended. After a trial judgment was rendered for the defendant, whereupon the plaintiff demanded another trial in due form, which demand was allowed and a second trial awarded as a matter of right.
This order is assigned as error, but, under the authority of Kennedy v. Haskell, ante, page 612, 78 Pac. 913, the ruling of the district court was right, and its judgment is affirmed. | [
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The opinion of the court-was delivered by
Pollock, J :
These two cases are separate appeals from several judgments convicting defendant of assaulting and beating one Samuel P. Burnett and Fidelia Burnett, his wife. Upon the trials defendant admitted the assault and battery charged, but made the attempt to justify his conduct on the ground that it was done in forcibly ejecting the parties assaulted from a tract of land to the possession of which he was lawfully entitled and of which possession he had been wrongfully deprived by the parties assaulted ; that in driving the wrong-doers from his premises he had used no more force than was necessary to accomplish his purpose. The records are voluminous, the principal controversy at the trial being who was legally entitled to the possession of the land from which the assaulted parties were driven.
The state objects to the consideration of these appeals for the reason that the time of settling and signing bills of exceptions was extended under the provisions of section 4753, General Statutes of 1901, and the bills were not signed and allowed by the trial court within the time given. An examination of the record shows that the time was extended to a day certain, to wit, “ to the fifth day of the regular June, 1902, term of court.” On that day, at the place designated in the order, the bills of exception were duly allowed and signed. This was sufficient.
Coming now to the merits, the question arises, Was the defense sought to be interposed available to defendant in these prosecutions? Certainly not. The trial court and counsel seem to have proceeded at the trial upon the theory that if defendant was legally entitled to the possession of the land and the parties assaulted eptered and possessed themselves of the premises, the defendant might forcibly eject them therefrom, care being used to exert no more force than was reasonably necessary to accomplish such purpose. While one rightfully in possession of property may defend his possession against an attack, and while one lawfully entitled to the possession of real property may, if he can, enter and take peaceable possession, yet, no matter what lawful right to possession one out of the actual possession of real property may have, he will not be justified in making a forcible entry and committing a breach of the peace in ejecting by force an actual occupant. Such unlawful method of testing legal rights is unknown to the law. There-are authorities in support of this self-evident proposition. (Commonwealth v. Haley, 4 Allen, 318; Parsons v. Brown, 15 Barb. 590.)
In this case the commission of the offenses charged-against defendant stand admitted. All else is wholly immaterial, so far as the question of the guilt or innocence of defendant is concerned, and no error prejudicial to defendant can or did arise upon the trial of wholly immaterial matters.
It follows that the conviction must be upheld.
All the Justices concerning. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was a workmen’s compensation case. The trial court made an award of compensation and the employer has appealed.
The legal question presented is whether the claim for compensation was made in time under our statute (G. S. 1949, 44-520a), which so far as here pertinent reads:
“No proceedings for compensation shall be maintainable hereunder unless a written claim for compensation shall be served upon the employer by delivering such written claim to him or his duly authorized agent, or by delivering such written claim to him by registered mail within one hundred twenty days after the accident, or in cases where compensation payments have been suspended within one hundred twenty days after the date of the last payment of compensation; . . .”
The facts disclosed by the record may be summarized as follows: The employer was operating under our workmen’s compensation act as a qualified self-insurer. Claimant testified that he went to work for the employer in October, 1949, as a dump truck driver. While so working and on December 5, 1949, he received an accidental injury to the lower part of his back. He saw Doctor Sutter several times in the next few days, but beginning on December 8 he was treated by Doctor Anderson of the Wichita clinic. On January 9, 1950, Doctor Anderson performed surgery on his back and removed a ruptured disc, and continued to treat him until March 6, at which time he permitted the claimant to return to work; that about May 22 he reported to Doctor Anderson because of increased pain in his back and legs caused by lifting a heavy object; that the doctor had him stay in bed with a heating pad for a few days; that he again saw Doctor Anderson on June 29, and received diathermy treatments and exercise, and on that date Doctor Anderson told him to take his work "very easy.”
Doctor Anderson testified:
"Mr. Moore was treated from December 8, 1949, (surgery performed on January 9, 1950) until March 6, at which time he was permitted to return to work but was not released from our care. Mr. Moore reported on May 22, 1950. He was placed on brace, heat and bedrest. On May 29, 1950, he was allowed to return to work, but was cautioned to avoid anything which would require much strain to his back, such as heavy lifting. He was checked again on June 29, 1950, and placed on rather vigorous exercise in our physical therapy department. He called on the telephone on July 5, 1950, and was again cautioned that heavy work would not be advisable.
“Q. . . . Wasn’t your restriction on light work in effect from March, 1950, to September 15, 1950? A. Yes, sir.
“Cross Examination. Q. From the outset, after the completion of this operation and every time you saw Mr. Moore, you would caution him about heavy lifting? A. Yes, sir.
“Re-direct Examination. Q. Dr. Anderson, you have no notes nor independent recollection of what you said to Mr. Moore on June 29, 1950, other than that you told him that he had to indulge or engage in light work only; is that correct, sir? A. That is right.
“Q. You do, however, have a recollection and some memoranda that you talked to him by phone on July 5, 1950, and that you then after listening to his recital of his then existing condition, prescribed continuation of light work; is that right? A. Yes, sir.
“Q. And you do likewise have a recollection and some written memoranda to show that on September 15, 1950, he was in your office and once again you said ‘You must engage in light work only.’ You prescribed that; is that correct? A. Yes, sir.
“Re-cross Examination.- Q. Now, one more thing I would like to clear up. Mr. Morton, in asking you relative to your telling Mr. Moore to stay off heavy work would use the term that you prescribed light work. You, of course, answered, ‘Yes, sir.’ You did not mean to answer by that that you prescribed light work for Mr. Moore in the sense that work would help his injury? A. Yes, sir; I do. . . .
“Q. When you told Mr. Moore to do light work, it wasn’t with the idea that going out and doing fight work would make his condition better, would do it good? A. Yes, sir; I did. Many times going back to work, doing some activity will help stimulate these muscles and help build up a back much faster than anything we can do with medication or physical therapy, as far as that is concerned.
“Q. As I understand it, your admonition to him was to stay ofi of heavy work? A. Yes, sir.
“Q. More than to do light work; is that correct? A. Yes, sir. My caution to him has always been to work, doing what he can, but to avoid stooping, lifting, or any type of work which required strain to his back.
“Q. That is true whenever you talked to him about the type of work he wants to do? A. Yes, sir.”
Claimant returned to work for respondent in March, 1950, and continued to work until November 26, 1950. Compensation had been paid from the time of his injury in December, 1949, until his return to work in March, 1950, when payments for compensation ceased. He served upon his employer a claim for compensation on January 2, 1951. At the hearing before the examiner of the compensation commission the only questions at issue were whether the claim was filed in time and the amount of compensation due, if any. All other pertinent facts were stipulated. The examiner found the claim was filed in time and allowed compensation. That was approved by the compensation commissioner. The employer appealed to the district court. The district court, after due hearing and consideration, entered a judgment in which it found that the claimant was working for respondent who was operating under the workmen’s compensation act as a qualified self-insurer; that on December 5, 1949, claimant suffered personal injury by accident arising out of and in the course of his employment; that the employer paid compensation in the aggregate sum of $240 up to March 6, 1950, and furnished medical attention in the sum of $835.15. The court found the average weekly wage of claimant, that he had suffered and sustained permanent partial disability, made an award and affirmed and concurred in the award of the compensation commissioner. With respect to the time of the filing of the claim the court found:
“That claimant served upon respondent a written claim for compensation on January 2, 1951; that Dr. Anderson had prescribed light work as treatment for claimant upon and following his return to work for respondent after the accident, for the reason that such light work might make claimant’s condition better, as shown in Dr. Anderson’s testimony at page 49 and 50 of the transcript of evidence before the Examiner; that said prescription was in effect up to and including September 15, 1950; and that therefor said written claim was made within the statutory period prescribed by the Statutes of the State of Kansas and was not barred thereby.”
The employer has appealed from the award and judgment of the district court and submits for our determination the following question:
“Does the fact that the doctor prescribed light work as treatment for claimant upon and following his return to work for respondent, for the reason that such light work might make claimant’s condition better, toll the running of the statutory period within which a claimant must make a written claim for compensation?”
Answering categorically the question propounded, we feel compelled to say that such a prescription, for the purpose stated, would or would not toll the time of making a claim for compensation depending upon the time and circumstances of the giving of the prescription considered in connection with the pertinent sections of our statutes. We have previously quoted G. S. 1949, 44-520a, which requires the written claim for compensation to be served within 120 days after the accident, or where compensation payments have been suspended, within 120 days after the date of the last payment of compensation. In this case the claim for compensation was served almost thirteen months after the accident and almost ten months after the date of the last payment of compensation, hence would be too late under the specific terms of that statute. However, under our statute (G. S. 1949, 44-510) compensation includes the treatment and care of injured employees. The pertinent portion of this section of our statute reads:
“The amount of compensation under this' act shall be (1) Treatment and care of injured employees. It shall be the duty of the employer to provide the services of a physician or surgeon and such medical, surgical and hospital treatment, including nursing, medicines, medical and surgical supplies, ambulance, crutches and apparatus, as may be reasonably necessary to cure and reheve the workman from the effects of the injury; but the cost thereof shall not be more than one hundred dollars, nor shall the period of time during which same are to be provided exceed one hundred twenty days from the date of accident: Provided, That in extreme cases the commissioner may, after proper showing, require the employer to provide medical, surgical and hospital treatment in an amount not in excess of seven hundred fifty dollars: . . .” (Amended by Chap. 305, Laws 1951, so as to authorize the payment in extreme cases to be as much as $1,500.)
In Richardson v. National Refining Co., 136 Kan. 724, 18 P. 2d 131, we held that,
“The furnishing of medical aid to an injured employee constitutes the payment of compensation within the meaning of R. S. 1931 Supp. 44-520a, . . .” (now G. S. 1949, 44-520a).
This has been followed in several cases, including Larrick v. Hercules Powder Co., 164 Kan. 328, 188 P. 2d 639.
We have also held that the statutory limitation upon the amount of medical aid required of an employer to be furnished, or the time within which the employer is required to furnish the same, are not controlling if in fact the employer does go further and furnish medical aid in a larger sum or to a later time than required by statute. (See Billings v. United Power & Light Corp., 125 Kan. 370, 263 Pac. 779; Ketchell v. Wilson & Co., 138 Kan. 97, 23 P. 2d 488, and Wells v. Eagle-Picher M. & S. Co., 148 Kan. 794, 85 P. 2d 22.) In this case the compensation commissioner had not found this to be an extreme case, nevertheless the employer paid a sum in excess of what the commissioner could have required him to pay. In the case before us, whether the employer had provided treatment and care of the claimant to a period within 120 days prior to January 2, 1951, is a question of fact to be determined by the trial court and not a question of law to be determined by this court.
Appellant’s specific complaint is, the trial court did not find that on September 15, 1950, the respondent furnished treatment for the claimant, and points out that what the court found was that Doctor Anderson prescribed light work as a treatment for claimant “upon and following his return to work,” which would mean upon March 6, 1950, and subsequently, and that the prescription “was in effect up to and including September 15, 1950.” We regard this too narrow a construction of the language used and point out that the court in its findings and judgment “affirmed and concurred in” the award of the compensation commissioner.
If the findings and judgment of the trial court should be construed to mean that when the claimant was reléased for work in March, 1950, among the prescriptions given was that he should perform only light work, and that the claimant had followed that prescription to a time within 120 days prior to his filing a claim for compensation, even though medical services had not been furnished by the employer within such time, our authorities cited by appellee (Rupp v. Jacobs, 149 Kan. 712, 88 P. 2d 1102, and Bishop v. Dolese Brothers Co., 155 Kan. 288, 124 P. 2d 446) would not sustain the judgment of the trial court. Neither have we been able to find other authorities that would do so. In the Rupp case, where a doctor had prescribed light work, the employer agreed to give the claimant light work and paid him his regular wages, although it was known to both of them that the wages paid were in excess of what claimant earned. This court held that the excess was in fact a payment of compensation. The syllabus reads:
“Notice and demand for compensation is timely if given within ninety days [now one hundred and twenty] after employer suspends voluntary and informal payments of compensation.”
There is no claim that such a situation existed in this case. In the Bishop case the claimant testified that he visited the doctor and was treated by him about every two weeks from May 7, 1939, to February 22, 1940. The claim for compensation was filed on March 4, 1940. The compensation commissioner apparently believed claimant’s testimony and awarded compensation.- This court affirmed.
We find no material error in the case and the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
The state appeals from an order of the district court discharging a defendant in a criminal action.
On March 31, 1951, an information was filed in the district court containing five counts charging the defendant with manslaughter in the first degree, with driving a motor vehicle while under the influence of intoxicating liquor, with reckless driving and with two other misdemeanors. The defendant’s motion that he be tried separately on the last two counts was allowed. Later he was arraigned on the first three counts, waived the reading of the information, entered a plea of not guilty and a trial was had. At the close of the state’s evidence defendant moved the court that the state elect upon which of the three counts it sought conviction and the state elected to rely upon the first count charging manslaughter in the first degree and dismissed the action as to the second and third counts. The record discloses that the defendant then moved that he be discharged for the reason the evidence produced did not prove the charge, which motion the trial court sustained. The word “demur” or any synonymous word was not used, but a journal entry later filed stated that the defendant “demurred” to the state’s evidence and moved for his discharge for the reason the state’s evidence did not prove and was not sufficient to constitute the crime charged in count 1 of the information or any inferior crime, and that the court sustained the demurrer and the motion and discharged the defendant, and that the state excepted to the rulings.
Directing attention to State v. Keenan, 7 Kan. App. 813, 55 Pac. 102, the state contends that a demurrer is unknown to the criminal practice and the trial court erred in considering it. In the above case the defendant urged that the trial court erred in not sustaining his demurrer to the state’s evidence and the court rather abruptly held there was no error as a demurrer was not a proper practice and there was no authority for it in the criminal code. While the journal entry in the instant case does mention a demurrer, it also mentions the motion to discharge. Both were sustained, and error will not be predicated on the fact the demurrer may have been ruled on.
We take up whether the trial court erred in discharging the defendant. If the evidence tended to disclose that the offense charged was committed and that defendant committed it, the question was for the jury to decide even though the evidence was weak. See The State v. Truskett, 85 Kan. 804, Syl. ¶ 3, 118 Pac. 1047, and corresponding part of opinion.
In substance, the manslaughter count charged that on October 29, 1950, the defendant willfully, wantonly, feloniously, without design to effect death, and with culpable negligence, drove a pickup truck on a designated highway on the left-hand side of the highway and ran against and struck an automobile occupied by one Christina Zerr, whereby she was then struck with great violence and received divers mortal wounds, which were caused by the act, procurement and negligence of the defendant while he was “engaged in the perpetration of a misdemeanor not amounting to a felony, contrary to the form of the statutes Section 21-407 G. S.” in such case made and provided. If there was any motion to quash the information, or any contention otherwise that it did not state an offense the record as abstracted, including the journal entry, does not disclose it.
The question presented by the motion to discharge was whether the state’s evidence proved or tended to prove the acts charged in the information. In this connection we note that appellee has not seen fit to file any counter-abstract or brief to advise us of the reasons asserted by him to procure the trial court’s ruling in his favor. In the state’s brief reference is made to remarks apparently made by the trial court when hearing argument on the motion to discharge but none of which are set forth in the record as abstracted. Under the circumstances, we shall ignore these remarks and confine our discussion to the record as abstracted.
Insofar as is necessary here, it is noted that by G. S. 1949, 21-407, it is provided that 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 of any misdemeanor not amounting to a felony, in cases where such killing would be murder at the common law, shall be deemed manslaughter in the first degree. Was the evidence introduced by the state sufficient to support the information charging the above crime? It is unnecessary that we detail at length the evidence of individual witnesses, or recite their testimony. An examination of the record as abstracted discloses that on the day in question one Heier was driving his motor vehicle north on a designated road being followed by the defendant who was driving a pickup truck; that he passed Anton Zerr who was driving a motor vehicle south; that he saw defendant had had a wreck and he turned and went back and Mr. and Mrs. Zerr were still in their car which was headed south. A highway patrolman testified to a conversation with the defendant in which the defendant stated he was traveling north on the highway at a speed between 45 and 50 miles per hour, that he was racing out to the Goetz farm with Heier, that due to the dust he could not see where he was going, that he was on the wrong side of the road, and that the defendant said he didn’t remember just exactly what happened or who or what he had hit. He also testified that he visited the place of the collision and that oil spots and broken glass were on the west side of the road. There was other evidence as to the defendant’s vehicle being on the west or left-hand side of the highway and striking the one driven by Zerr. This evidence was sufficient to prove a violation of G. S. 1949, 8-537, regulating driving upon the right side of the highway, and of G. S. 1949, 8-531, pertaining to reckless driving, the violation of the latter being denounced as punishable as provided in the section. There was also some evidence that defendant was operating a motor vehicle while under the influence of intoxicating liquor, an act denounced by G. S. 1949, 8-530, and punishable as therein provided. We note also that under G. S. 1949, 8-503, that it is unlawful, and unless otherwise declared in the act with respect to particular offenses, it is a misdemeanor for any person to do any act forbidden or to fail to perform any act required in the act. Misdemeanors are punishable as provided by G. S. 1949, 8-5,125. See also G. S. 1949, 62-104 and 105, defining felonies and misdemeanors. That driving on the left-hand side of the highway, reckless driving and driving while under the influence of liquor, are misdemeanors needs no further elucidation.
The evidence above referred to was sufficient to prove that defendant was engaged in the perpetration of a misdemeanor as required by G. S. 1949, 21-407.
The next question pertains to the killing. The evidence is that immediately after the two vehicles struck other persons came to the scene. Anton Zerr was severely injured and did not testify at the trial. Other evidence was that immediately after the collision there was a woman in the Zerr automobile who was motionless, and an undertaker testified as to removing the dead body of Mrs. Zerr from the automobile. We think that in the absence of evidence from which a contrary conclusion might be drawn, all of the evidence heretofore detailed was sufficient to establish that (Mrs.) Christina Zerr was killed in the collision of the two motor vehicles.
Under the facts, would the killing have been murder at the common law?
In Craft v. The State of Kansas, 3 Kan. 450, 481, where the charge was murder in the first degree, murder at the common law is defined as being:
“Where a person of sound memory and discretion unlawfully kills any reasonable creature in being, and in the peace of the state, with malice prepense or aforethought, either express or implied.”
In The State v. Estep, 44 Kan. 572, 574, 24 Pac. 986, where the charge was murder in the first degree, the court approved an instruction containing the same definition.
In The State v. Ireland, 72 Kan. 265, 83 Pac. 1036, where the charge was assault with a deadly weapon, it was held:
“Neither murder nor manslaughter is defined by the statutes of Kansas. These terms, as used in the crimes act, have the same meaning as at common law. Murder is the unlawful killing of a human being with malice aforethought. Manslaughter is the unlawful killing of a human being without malice.” (Syl. §2.)
In the later case of The State v. Rumble, 81 Kan. 16, 105 Pac. 1, 25 L. R. A. (ns) 376, where the charge was murder in the second degree, in discussing whether a person too drunk to commit an offense could be guilty of an offense where intent was necessary, it was said:
“At common law murder may be committed without any actual design to take life (21 Cyc. 712), and therefore drunkenness can be no defense to that charge. (12 Cyc. 174, note 77.) Under some statutes which divide murder into degrees an involuntary homicide may be murder in the second degree. (12 Cyc. 174, note 78.) In Craft v. The State of Kansas, 3 Kan. 450, it was inaccurately said that to constitute murder at common law an intention to take life must precede the killing, and that whatever act would have been murder at common law is murder under the Kansas statute, being classified as first or second degree according to whether or not it was done deliberately and with premeditation.” (1. c. 21.)
In The State v. Wimer, 97 Kan. 353, 356, 155 Pac. 7, a prosecution for murder in the first degree, it was said:
“Malice aforethought has been held to be nothing more than an unlawfwul or wicked intention. (The State v. White, 14 Kan. 538; The State v. Fooks, 29 Kan. 425.)”
In 40 C. J. S. 860 (Homicide, § 14) it is said that:
“It is difficult to explain clearly what the law means by malice. Generally speaking, it signifies a condition of the mind and heart at the time of the fatal act. Malice is tire deliberate intent unlawfully to take away the life of a fellow creature, but it does not of necessity import ill-will toward the individual injured or toward any particular person . . . and malice has been frequently substantially so defined as consisting of the intentional doing of a wrongful act toward another without legal justification or excuse.”
We need not discuss further what constitutes malice or malice aforethought, for giving the words a meaning most favorable to the defendant, they would import a meaning that his act was intended unlawfully to take away the life of another. Such a construction would not be in harmony with the observation of this court in The State v. Rumble, supra, where the charge was murder, nor consistent with the statute under which the defendant was charged, the language there used being: “The killing of a human being without a design to effect death . . . shall be deemed manslaughter in the first degree.” It would seem the very language of the statute would eliminate from “murder at the common law” as that phrase is used, malice as including an intent to kill as a necessary element in proving manslaughter in the first degree. On the other hand, if malice aforethought be defined as nothing more than the intentional doing of a wrongful act toward another, .not necessarily against the person injured, then the meaning of the statute becomes clearer. Put another way, if malice as an essential ingredient includes intent to kill, the charge should be murder and not manslaughter.
Rut even if the proof did not fully sustain the charge of manslaughter in the first degree, but did support a lesser included offense such as manslaughter in the fourth degree (G. S. 1949, 21-420) or negligent homicide (G. S. 1949, 8-529), the defendant should not have been discharged. See G. S. 1949, 62-1023, 1441, 1444, 1447, 1502. The question of sufficiency of instructions as to lesser degrees, or included offenses, also the sufficiency of evidence, in cases where the charge was manslaughter in the fourth degree received attention in State v. Spohr, 171 Kan. 129, 230, P. 2d 1013, and in cases therein mentioned, and attention is directed thereto by way of analogy.
In our opinion the trial court erred in discharging the defendant. That order is reversed and the cause is remanded for further proceedings. | [
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The opinion of the court was delivered by
Parker, J.:
This appeal arises from a proceeding commenced in the probate court to establish a claim against the estate of a deceased person.
Harvey J. Lasswell, a resident of Pottawatomie county, died intestate on September 27, 1948, from injuries received in a motor vehicle accident. Shortly after his death the Pacific Intermountain Express Company, a corporation, commenced proceedings in the probate court of Pottawatomie county for administration of his estate by filing a petition wherein it asked for the appointment of an administrator and stated that it intended to prosecute a claim against such estate for damages sustained to its truck and trailer by reason of decedent’s negligence, while driving his automobile, which was the cause of the accident in which it sustained injuries to its property and the decedent met his death. This petition was granted and Clyde Lasswell was duly appointed as administrator of such decedent’s estate. Thereafter, in accordance with its announced intention, the corporation exhibited its demand against the estate by filing a petition in the probate court wherein it sought to recover damages sustained by it to its property as the result of the collision. This claim was heard and denied by the probate court and the claimant took an appeal from such decision to the district court.
After the appeal reached the district court the claimant filed an amended petition and later, on the sustaining of a motion to make that pleading more definite and certain, filed a second amended petition. It is conceded that both of these pleadings were filed within 9 months after the date of the first published notice to creditors and that the second amended petition contains facts sufficient to constitute a cause of action for negligence against the estate of the decedent if it had been filed in the probate court instead of the district court.
Following the filing of the second amended petition, and more than 9 months after the date of the first published notice to creditors, the administrator of the decedent’s estate moved to strike that pleading from the files and demurred thereto on the theory such pleading showed upon its face that the claim therein set forth was a claim against the estate of a deceased person which, under existing provisions of the probate code, must have been presented in the probate court of Pottawatomie county within 9 months from the date of the first published notice to creditors and that since it was not filed in such court within that period of time the petition showed upon its face the claim was barred by G. S. 1947 Supp. 59-2239 (now G. S. 1949, 59-2239) and that the district court had no jurisdiction of the person of the defendant (administrator) or the subject of the action. After a hearing the district court sustained the motion to strike the second amended petition from the files as well as the demurrer to such pleading. Thereafter, and in due time, the claimant perfected an appeal from the district court’s rulings on such matters and now contends that its action with respect thereto was erroneous.
Assuming, without deciding, that when tested by the somewhat technical rules to be applied in determining the sufficiency of a petition under our code of civil procedure, the original claim as filed in the probate court failed to state a cause of action based on the decedent’s negligent operation of his automobile the instant appeal presents but one question and, with what has been heretofore stated, does not even require a recitation of the factual averments to be found in any of the pleadings filed by the appellant. That question can be stated thus: After an appeal from an order of the probate court denying a claim against an estate upon its merits has been taken to the district court can the claimant amend his petition for the allowance of the claim in district court, provided he does so before expiration of the 9 months’ period within which claims can be filed against the estate, when such amendment states a cause of action in tort against the decedent where the original petition failed to state facts sufficient to constitute a cause of action for actionable negligence?
Resort to our decisions reveals the foregoing question was answered in the affirmative shortly after the enactment of the new probate code in Roberts v. Setty, 154 Kan. 505, 119 P. 2d 539. In that case it was contended the original claim, although timely filed in the probate court, did not state a cause of action and that when the district court granted leave to amend after the time within which claims must be exhibited under the provisions of G. S. 1939 Supp. 59-2239 had expired, the amendment could not then lift the bar of the statute. This particular question was not passed upon due to the fact we agreed with the trial court in its conclusion the petition as originally filed stated a cause of action in terms sufficient to toll the statute and hence was subject to amendment. However, it is to be noted that in deciding the case we did deal with the identical question here involved and held that even if the petition there in question had failed to state a cause of action in probate court it could have been amended in district court to state one since it did not appear from the record the time for filing such claim under the provisions of the nonclaim statute had expired. At pages 506 and 507 of the opinion in that case, after calling attention to the fact that upon appeal from probate court the district court was clothed with broad general powers under then existing provisions of the probate code (G. S. 1939 Supp. 59-2408) to allow or require pleadings to be filed or amended, we said:
“We note, in passing, that the record submitted is defective in that it does not disclose the date upon which the nine months’ period for exhibiting demands expired in this case. The period begins to run on the date of the first published notice to creditors (G. S. 1939 Supp. 59-2239), but the record does not show what that date was. Therefore, strictly on the record before us, we could not say, even if the original claim had failed to state a cause of action, that there was not yet time t.o do so by amendment. . .
At the time of the rendition of our decision in the foregoing case the provisions of G. S. 1939 Supp. 59-2408, relied on as a basis for what there was said and held, read as follows:
“Upon the filing of the transcript the district court, without unnecessary delay, shall proceed to hear and determine tire appeal, and in doing so shall have and exercise the same general jurisdiction and power as though the controversy had been commenced by action or proceeding in such court and as though such court would have had original jurisdiction of the matter. The district court may allow or require pleadings to be filed or amended. . . .”
In 1949 (See L. 1945 Ch. 237, § 5, now G. S. 1949, 59-2408) the legislature enlarged and expanded the provisions of the section of the probate code just quoted by adding thereto the following provision which reads:
“. . . The right to file new pleadings shall not be abridged or restricted by the pleadings filed, or by failure to file pleadings, in the probate court; nor shall the trial in, or the issues to be considered by, the district court be abridged or restricted by any failure to appear or by the evidence introduced, or the absence or insufficiency thereof, in the probate court. . . .”
If, as in Roberts v. Setty, supra, to which we adhere, under provisions of the probate code then in force and effect, a petition for the allowance of a claim in probate court which stated no cause of action could be amended to do so after appeal to the district court as long as that amendment was made within 9 months after the date of the first published notice to creditors there can be no question that with the probate code expanded, as heretofore indicated, the rights of claimants to file amended pleadings in district court on appeals from the probate court are as great if not greater than they were prior to the enactment of the amendment. Of a certainty those rights have not been restricted or abridged. It necessarily follows the trial court erred in sustaining the demurrer to appellant’s second amended petition and in striking such pleading from the files.
The judgment is reversed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action on a policy of insurance which provided indemnity for accidental death. A trial by the court resulted in judgment for plaintiff. Defendant has appealed.
The pertinent facts may be stated briefly as follows: In November, 1944, the Rev. Joseph N. See, and his wife, Florence C. See, were residents of Mentor, Kansas. About that time he received from defendant — an Illinois corporation with headquarters in Chicago, which was not then authorized to do business in Kansas but obtained such authority about a year later — some literature pertaining to an accident and sickness policy which defendant was writing. Among the literature was the form of an application. The wording of this is not shown by the record. The Rev. Mr. See filled out the application, signed it and sent it to the defendant company with one dollar, which was the premium on the policy for one month. Under date of December 5, 1944, the defendant issued the policy and mailed it to the Rev. Mr. See, in which the Rev. Mr. See was named as the insured and his wife named as the beneficiary. It containd a provision that if the policy was not satisfactory to the insured he might return it within ten days and his premium would be returned. The insured kept the policy and continued to pay the premium thereon until his death, November 22, 1948. He and his wife continued to be residents of Kansas during that time and she is still a resident of the state. On September 30, 1948, the insured, while traveling on one of the highways in the State and driving his own automobile, collided with another automobile, causing him to sustain accidental injuries from which the trial court found his death was the direct result. The policy was in several parts. We are concerned here primarily with Parts I and II.
“Following the name and address of the insurance company in large capital letters, appears in ten point, light face type, the following [preceded by the words ‘Does Hereby Insure’ in capital letters]:
‘NAME Joseph N. See whose address is Mentor, Kansas whose beneficiary is Florence C. See, wife of the insured (hereinafter referred to as the Insured), subject to the provisions and limitations herein contained from twelve o’clock noon, Standard Time at the place where the insured resides, on the day this policy is issued up to January 5th, 1945, twelve o’clock noon, against (1) loss resulting directly and independently of all other causes from bodily injuries sustained during the term of this policy and effected solely through accidental means, which bodily injuries or their effects shall not be caused wholly or in part, directly or indirectly, by any disease, defect or infirmity and which shall from the date of the accident result in- continuous and total disability, hereinafter referred to as “such injuries” and also against (2) loss resulting directly and independently of all other causes from disease or sickness contracted after thirty days from the date of issue during the term of this policy, subject to the provisions, conditions and limitations herein contained, as follows: Here follows in bold face ten point capitals, “Part I. DEATH, DISMEMBERMENT AND LOSS OF SIGHT BENEFITS— TRAVEL ACCIDENTS SPECIFIC LOSSES:” under which, in bold ten point type, is listed 8 specific losses in a column, with the amounts specified for each such loss, among which is, “For Loss of Life Value First Year Under Part I $5,000.00 Annual Increase under Part I $500.00 Value After Fifth Year under Part I $7,500.00.” Then follows in ten point light face type, “resulting within thirty days from the date of accident solely from such injuries, but only when ‘such injuries’ are sustained WHILE ACTUALLY RIDING AS A FARE PAYING PASSENGER in a place regularly provided for the transportation of passengers, only within a RAILROAD CAR, INTERURBAN RAILROAD CAR OR ELECTRIC STREET CAR, provided by a common carrier for passenger service and only when such loss shall be caused by the wrecking of any such car.’
“PART II. (In bold, face capitals) ‘AUTOMOBILE ACCIDENTS,’ and under this ‘Section (A) $500.00 ACCIDENTAL DEATH INDEMNITY’ (in ten point capitals) followed in ten point lower case, light face, the following:
“If tlie Insured shall sustain ‘such injuries’ as described in the Insuring Clause and not hereinafter excepted, which are caused solely by the collision or upset of any passenger automobile or motor truck (Tractors and/or Trailers excepted) while the Insured is driving or riding therein and which result in the loss of life within thirty days from the date of the accident, provided the automobile or motor truck is not being used for the carrying of passengers for hire, the Company will pay in lieu of all other indemnity the sum of FIVE HUNDRED DOLLARS ($500.00) for such loss.”
Another part of the policy provided that if the insured was sixty years of age at the time he took out the policy his benefits would be one-half of those specified in Parts I and II. Also, standard provision 20 provided the policy should not cover any person under the age of fifteen years or over the age of seventy-five. On May 25, 1948, defendant issued a rider, which was attached to the policy and which amended standard provision No. 20 so as to provide that it should not cover any person under the age of sixteen years or over the age of seventy-seven, and amended another provision of the policy so that after the insured reached the age of seventy-five all benefits should be further reduced ten per cent per attained year until his seventy-seventh birthday.
The action was brought as a travel accident under Part I of the policy and judgment was allowed as claimed but computed by the provisions of the policy in the sum of $2925.00 with interest at six per cent since November 22, 1948; and also for an attorney fee for plaintiff. The policy is to be construed under the pertinent provisions of our statute (G. S. 1949, 40-1109), which reads:
“(a) No stock or mutual insurance company or association or other insurer shall issue or deliver any policy of insurance against loss or damage for the sickness or the bodily injury or death of the insured by accident to any person in this state, . . . (4) unless every printed portion thereof and of any endorsements or attached papers shall be plainly printed in type of which the face shall be not smaller than ten point; nor (5) unless a brief description thereof be printed on its first page and on its filing back in type of which the face shall be not smaller than fourteen point; nor (6) unless the exceptions of the policy be printed with the same prominence as the benefits to which they apply: Provided, however, That any portion of such policy which purports, by reason of the circumstances under which a loss is incurred, to reduce any indemnity promised therein to an amount less than that provided for the same loss occurring under ordinary circumstances shall be printed in bold-face type and with greater prominence than any other portion of the text of the policy.
“(i) A policy issued in violation of this section shall be held valid but shall be construed as provided in this section, and when any provision in such a policy is in conflict with any provision of this section the rights, duties and obligations of the insurer, the policy-holder and the beneficiary shall be governed by the provisions of this section.”
In this court appellant first contends it is not liable since the insured did not die within thirty days from the date of the accident, and contends that our statute [G. S. 1949, 40-1109 (a) (6)] contains the word “exception,” and that the language in the insuring clause, printed in black face type, “resulting within thirty days from the date of accident,” is not an exception but a condition precedent to any recovery under Part I of the policy. Counsel recognize our holding in Owen v. Mutual Benefit Health & Acc. Ass'n, 166 Kan. 525, 203 P. 2d 196 (adhered to on reargument, 168 Kan. 10, 210 P. 2d 232), is contrary to their contention. They assert the policy involved in the Owen case is considerably different than we have here, and for that reason it is not controlling, but point out no difference which would render it not controlling. We take note of the fact that the courts of Illinois, in which defendant has its place of business, are in harmony with our ruling on this point in the Owen case. (See, Mowery v. Washington Nat. Ins. Co., 289 Ill. App. 443, 7 N. E. 2nd 334, citing the earlier case of Porter v. Continental Casualty Co., 277 Ill. App. 492.)
Appellant contends the policy here involved is more like the policy before the court in Hildebrand v. Washington National Ins. Co. 155 Kan. 220, 124 P. 2d 510. The contention is not well taken. In that case the plaintiff relied on a statement on the filing back of the policy in 18 point bold face type. This was evidently done in compliance with the statute (G. S. 1949, 40-1109 (a) (5), which requires a brief description of the policy be printed on the first page and on its filing back in type in which the face shall not be smaller than 14 point. That was never intended to be a part of an insurance clause, but simply a general description of the type of the policy. In that case the insurance clause (set out at page 223 of the opinion), with all of its exceptions and limitations, was printed in the same size type. So, the case is not in point here. Appellant also cites Ewins v. Washington Nat. Ins. Co., 295 Mich. 602, 295 N. W. 329, as sustaining the view that the clause in question is a limitation as distinct from an exception. In fact the court did not decide the question in that case, but based its ruling upon the view that the difference in the type of the policy before it was “acceptable and substantially accorded with the requirements of the statute,” a view in which we do not concur. The result is that appellant’s contention on this point is not well taken.
Appellant next contends that the evidence is insufficient as a matter of law to sustain the burden of proof that the insured’s death resulted directly and solely from bodily injuries sustained by accidental means, as required under the insuring clause of the policy. We have examined the evidence and find the best that can be said for appellant is that there was some conflict in the testimony of the witnesses on that point. This conflict was for the trial court to determine. There is positive evidence that the death of the insured was the direct result of the injury.
Appellant contends this was an Illinois contract and that the Illinois statute, set out in the answer, pertaining to an allowance for an attorney’s fee should govern. The trial court held the contract was a Kansas contract. We agree with that holding.
These legal questions presented by appellant, and our holdings thereon, are the same whether recovery was computed under Part I or under Part II of the policy. In the trial court it was the contention of plaintiff that the computation should be made under Part I of the policy, and as we have seen, the trial court followed that view and so computed the amount of recovery. The defendant in the trial court contended that any recovery allowed should be computed under Part II of the policy. We are inclined to agree with that view. One of the material findings made by the trial court reads:
“That on September 30, 1948, the insured, Joseph N. See, while driving his own automobile, collided with another automobile, causing him to sustain accidental injuries from which he died as a result thereof on November 22, 1948.”
And the beginning of the first conclusion of law made by the trial court reads:
“Having reached the conclusion that the insured met his death from injuries received in an automobile accident, the next step is to determine whether such death came within the provisions of the policy on which this action is based, and if so, to what extent. . . .”
So the court’s legal conclusion was that the death resulted from injuries received “in an automobile accident,” which brings it under Part II rather than Part I of the policy. After full consideration this court concurs in that view. Hence, the computation of the judgment should have been made under Part II of the policy. The insured was past his seventy-sixth birthday at the time of his death. The computation of the judgment under Part II should be one-half of $500, less ten per cent, or $225. The result is that the judgment of the district court must be modified by reducing the judgment to $225, to bear interest at the rate of six per cent per annum from November 22, 1948, and for costs and for the attorney’s fee as allowed by the court.
It is so ordered. | [
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Per Curiam:
In 1899 a part of the territory of school district No. 22 of Shawnee county was added to the city of Topeka for school purposes. There were at the time outstanding bonds of the district issued to build a schoolhouse located in the territory so attached to the city. There was considerable money in the hands of the school-district treasurer, and more was afterward paid him as the proceeds of taxes levied upon all of the original district. In 1893 the legislature passed an act (Laws 1893, ch. 128) providing a method for effecting a property and money adjustment between the municipalities affected by such a transaction. One step in this method was the determination by the county superintendent of the value of the school property of the district and the moneys due to or in the hands of the district treasurer, and the apportionment of the amount equitably due to the district or to the city board of education, as the case might be. Nothing was done or attempted under this act until after the decision of Board of Education v. The State, 64 Kan. 6, 67 Pac. 557, which involved the same state of facts, and in which it was held that the board of education was liable for the payment of such bonds. On May 19, 1902, a proceeding in mandamus was begun in the district court in the name of the state as plaintiff, on the relation of the county attorney, to require the county superintendent to act under such statute and make such valuation and apportionment. On motion, the alternative writ was quashed, and plaintiff ap plaintiff in error now seeks to reverse this order.
This whole matter is merely a business or property controversy between the board of education of the city of Topeka and the school district. Any action by the board against the district is obviously barred by the statute of limitations and by laches. This mandamus was probably brought in the name of the state to avoid the force of this consideration. The duty of the superintendent under the statute was to the municipalities, and not to the state or to the public, except in the sense in which the board and the district represent the public. The state had no real interest in the matter.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is an appeal from orders of the lower court overruling plaintiffs’ motion to strike defendant’s second amended answer and counterclaims, and overruling plaintiffs’ demurrer to the second amended answer and to each counterclaim contained therein, in an action commenced September 30, 1949, to recover the rental value of certain pasture lands based on an alleged quasi •contract.
The allegations of the numerous pleadings filed will not be summarized in detail, but, in the main, the petition alleges that on or about May 1,1946, by oral contract, plaintiffs rented from the owner thereof certain pasture land in the state of Oklahoma for the term of one year; that on or about May 1, 1947, they again orally rented the same land for the period ending May 1, 1948, their purpose being to secure pasture land for the grazing of their own cattle and to utilize excess grazing by taking in cattle owned by others. It is then alleged that, without contract, defendant used the pasture land in question for grazing of his own cattle from May 1, 1946, to May 1, 1948, and that by reason thereof defendant is indebted to plaintiffs in the amount of $8,000, none of which has been paid.
Defendant filed a verified answer in the nature of a general denial, and further alleged that by an oral agreement with one of the plaintiffs, made on about April 1, 1945, defendant rented the pasture land in question for a specified annual rental; that pursuant to such agreement he continued to occupy the land from about April 1, 1945, to May 1,1948, as the tenant of such plaintiff, under the terms of the original oral agreement. These allegations were followed by certain alleged setoffs and counterclaims, by reason of which it was alleged plaintiffs were indebted to defendant.
Shortly thereafter defendant filed an amended verified answer and counterclaim in which he alleged his oral lease from plaintiffs was for one year from April 1, 1945, to April 1, 1946; that he continued to occupy the premises with the assent of plaintiffs from about April 1, 1946, to May 1, 1948, under and by virtue of an Oklahoma statute which was pleaded.
Later, and twenty-five days out of time, over the objections of plaintiffs, defendant was granted leave to and filed a second amended answer and counterclaim. Plaintiff’s motion to strike this pleading was overruled, as was their demurrer to it, and it is from those rulings this appeal was taken.
Plaintiffs’ first argument is based upon the proposition the court had no authority to permit the filing of an amended answer and counterclaim which, they contend, substantially changed the de fense and claims for affirmative relief, their argument being that the original answer alleges the oral lease was for three years, that defendant claimed to hold for that period under its terms, whereas the second amended answer merely alleges an express oral lease for one year and a holding over as a tenant at will for the remaining two years, and it is claimed this is such a “departure” as materially changes the defense and claim for affirmative relief.
We are convinced that no good purpose would be served, and that nothing would be added to the body of our law on the subject, by unduly extending this opinion with a detailed analysis of each of these answers and counterclaims in controversy. From the pleadings and the arguments contained in their briefs, there can be no doubt but that each party is fully aware of the claims of the other. We think that, taken altogether, the allegations are subject to the interpretation that the oral agreement was for a term of one year and that defendant held over the remainder of the time as a tenant at will, but upon the same terms and conditions as contained in the original oral agreement. Both answers allege that at all times defendant claimed to hold possession of the land as a tenant of plaintiffs. We cannot say, as a matter of law, there is any so-called departure so as to preclude the court from permitting the amendment to be filed under the provisions of G. S. 1949, 60-759.
In Dalton v. Hill, 169 Kan. 388, 219 P. 2d 710, it was said:
“Under our liberal civil code there is no departure unless the facts alleged in the amended petition so contradict the allegations of the petition that it can be said there has been a material change in the cause of action first pleaded (Armstrong v. Lough, 128 Kan. 167, 277 Pac. 51).” (p. 894.)
See also Kolich v. Travelers Ins. Co., 154 Kan. 458, 119 P. 2d 498.
Concerning the complaint the court erred in permitting defendant to file the second amended answer twenty-five days out of time, the record does not show and we are unable to see where there was any abuse of discretion. G. S. 1949, 60-727, gives a trial court a wide latitude in such matters and unless a clear abuse of discretion is shown its rulings will not be disturbed.
Plaintiff’s further contention, that the allegations of the answers are susceptible of bringing the oral contract within the statute of frauds, is also without merit, if for no other reason than that the issues here concern a completed contract and therefore the statute would have no application.
We have examined the allegations of the second amended answer, including the counterclaims, and have given consideration to all arguments advanced by counsel, but have no difficulty in concluding that the lower court correctly overruled the demurrer thereto. The judgment of the lower court is in all respects affirmed.
Harvey, C. J., not participating. | [
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Per Curiam:
The modified decree of the district court ' changing the custody of the two minor children from the mother, Maude Gibson, to the petitioner, their father, is not binding on this court. The welfare of the children is still open to consideration. (In re King, 66 Kan. 695, 72 Pac. 263.)
It appears that the mother is affectionately attached to the children; that she has kept them at school and dressed them as well as her financial circumstances will allow. She has sent them to Sunday-school during her residence in Kansas City. The petitioner has contributed nothing toward their support in the past four years. After considering all the evidence, we think that the welfare of the children does not demand a change of custody.
The writ of habeas corpus will be denied. | [
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The opinion of the court was delivered by
Burch, J : The questions arising from the record in this cause relate to the right of one railway company to take the land of another for a right of way, and their solution depends upon the construction to be given to the statutes granting the power of eminent domain to railway corporations. Such statutes are sections 47, 81, and 87, chaper 23, General Statutes of 1868, and section 14, chapter 286, Laws of 1901 (Gen. Stat. 1901, § 5974), whicD reads as follows :
“Any railroad company authorized to operate a railroad in this state desiring to cross or unite its track with any other railroad upon the grounds of such other railway corporation shall make application in writing to the board of railroad commissioners, stating the place of crossing or intersection ; whereupon the board of railroad commissioners shall fix a day for the hearing of such application, and notify the railway corporations interested, at which time, unless further time be granted by the board, the corporations interested shall be heard in regard to the necessity, place, manner and time of such crossing or connection ; and upon such hearing either party’ or the board may call and examine witnesses in regard to the matter ; and thfe board shall, after such hearing and a personal examination of the locality where a crossing or connection is desired, determine whether there is a necessity for such crossing or not, and, if so, the place thereof, whether it shall be over or under the existing railroad, or at grade, and in other respects the manner of such crossing and the terms upon which the same shall be made and maintained; provided, that no crossing shall be made through the yards or over the switches or side-tracks of any exist ing railroad, if a crossing can be effected at any other place that is practicable."
Plaintiff in error contends that the Orient company should have proceeded in its attempted condemnation under the provisions of the act of 1901; that the board of railroad commissioners have special jurisdiction over cases of this character, and that the statute creating that tribunal supersedes all others relating to the same subject-matter. It will be observed, however, that section 14 of that act refers only to crossings of one railroad by another and to the uniting of tracks. A railway-crossing is said to be “an intersection of railway-tracks.” (5 Cent. Diet. 4942.) The word “track," as applied to a railroad, is defined to be “the two continuous lines of rails on which railway-cars run" (6 Cent. Dict. 6413) ; and “tocross” means “to pass from side to side of." (2 Cent. Dict. 1362.) In order, therefore, to unite tracks their rails must be joined, and one railroad cannot be said to cross another unless the rails of one extend over that rail of the other which is farthest from the side of approach. In this view, the phraseology of the law does not include the impinging of the right of way of one railroad upon the grounds of another in a manner not involving their tracks, and the broad construction necessary to sustain the claim of plaintiff in error is forbidden.
The sections of the act in juxtaposition with section 14, relating to switch connections and systems of interlocking or automatic signaling apparatus, further seem to some extent to confine the operation of the law within the limits stated.
But the crossings and connections provided for are to be upon the grounds of the railroad which is already established. Its proprietorship is not to be destroyed or its use of the place of contact cut off. Such, however, was not the purpose of the Orient company’s proceeding. It sought no connection and desired no common crossing with the Santa Fe railway. It desired to condemn and appropriate to its own exclusive use the land located as its right of way and to oust the Santa Fe company fropa such territory altogether. No mutuality of occupation was intended to remain, and hence the act appealed to could have no room for application. This interpretation of the law is supported by the judgments of other courts. In Pittsb. Junction R. Co.’s Appeal, 122 Pa. St. 511, 528, 9 Am. St. Rep. 128, in the opinion it was said:
“Upon exceptions to the master’s report, the court below held that the act of 1871 had no application, for the reason that it referred to railroad-crossings alone, while this was not á case of crossing at all in the proper sense of the term. In this we think the learned judge was clearly right. The act of 1871 relates ‘ to crossings of lines of railroads by other railroads.’ There was no attempt here to cross the line of plaintiff’s road. It was an attempt to run through the plaintiff’s yard, and the crossing of some of its yard tracks and switches, which were merely incident to the use of its main line. As was well observed by the court below: ‘ The attempt is not simply to cross the yard and tracks with a common use, but absolutely to take from plaintiff a portion of their yard for the sole use of the defendant. The issue is not in what mode the defendant should cross plaintiff’s property, but solely whether it can cross at all.’ ”
In the case of A. T. & S. Railroad v. D. & N. O. Railroad, 110 U. S. 667, it was held :
“The provision in the constitution of Colorado that ‘every railroad company shall have the right with its road to intersect, connect with or cross any other railroad,’ only implies a mechanical union of the tracks of the roads so as to admit of the convenient passage of cars from one to the other, and does not of itself imply the right of connecting business with business.”
In State v. New Haven & Northampton Co., 45 Conn. 331, it was decided that the location of a railroad for two miles close beside a turnpike, the traveled path of which was in some plapes changed to make room for the road, did not constitute an “intersecting” of the highway by the railroad, that term applying only to the case of a railroad• crossing a highway. (See, also, Railroad Co. v. City of Belleville, 122 Ill. 376.) Hence the board of railroad commissioners had no jurisdiction to determine the rights of the parties to this suit.
It is further argued by plaintiff in error that the general law of eminent domain did not authorize the taking by the Orient company of the property sought to be condemned, because it was already devoted to an equally urgent public use by another railroad company, and was necessary to such use. In Lewis on Eminent Domain, second edition, volume 1, section 267, it is said :
“The general authority to locate and construct a railroad from one point to another does not authorize the taking-of property already devoted to railroad uses. In one of the cases cited the court says : ‘A charter to build and maintain a railroad between certain points, without describing its course and direction, but leaving that to be determined and established by the corporation, as provided by the general laws, does not prima facie give any power to lay out the road over land already devoted to and within the recorded location of another railroad. It is not to be presumed that the legislature intended to allow land thus devoted to one public use to be subjected to another, unless the authority is given in express words or by -necessary implication. And such implication can only be found in the language of the act, or from the application of the act to the subject-matter; so that the railroad could not be laid, in whole or in part, by reasonable intendment, on any other line.’ The 'legislature may authorize one railroad to take the property of another, and, as indicated in the opinion just quoted, this may be done by express words, or by necessary implication. These general rules are undoubted b.ut their application to particular cases is often attended with much difficulty, as will appear from the following sections.”
But the mere fact that land is owned by one railroad company does not forbid its acquisition by another. Exclusiveness of right must depend upon reasonable requisiteness. One occupation justly may be reduced to the subservience of another paramount in its importance. Hence the character and extent of the use of its real estate by one railway company are always open to inquiry when sought to be taken by another under the power of eminent domain. In the same section of the work quoted, the author says:
“The general rule above stated does not apply to prevent one railroad taking the property of another, which is not in use for railroad purposes and not necessary to the proper exercise of the corporate franchises.”
It follows from this that, in all cases in which an appropriation , of land for the purposes of a railroad about to be constructed is desired, it may proceed to take any real estate necessary for its own use, not already absorbed in the necessary satisfaction of similar wants.
The condemning company must, in the first instance, determine the relative requirements of the two roads for itself. It does this by laying out its road, procuring an assessment of damages, and proceeding to build. If obstructed in its operations it may invoke the aid of a court of equity, and if the company through whose land the new road passes feels aggrieved, it may resort to the same forum for redress. The issues in such cases lie within the realm of fact, and the judgment of the trial court upon them is conclusive to the same extent as in other cases. In the case at bar issues of the precise character described above were framed by the pleadings. Upon the hearing the district court had before it all the facts which each party could urge in its own favor. Enough having been produced to sustain the judgment rendered, this court cannot interfere.
The writer is of the opinion that the views expressed in the foregoing discussion relating to the scope of the act of 1901 are too narrow. Separating the most pregnant parts of the first sentence of section 14 by punctuation marks, the law reads as follows :
“Any railroad company authorized to operate a railroad in this state desiring to cross, or unite its tracks with, any other railroad, upon the grounds of such other railway corporation, shall make application in writing to the board of railroad commissioners, stating the place of crossing or intersection.”
In construing this language it is not necessary that a railroad should be reduced to a track. The title of the act reads, “An act concerning railroads and other common carriers,” and if the same condensing process were applied to the word as used there the law would fail. In the Century Dictionary, volume 5, page 4942, under the title “Railway,” the following description is given:
“The parts of an ordinary passenger and freight railway proper are the road-bed, ballast, sleepers, rails, rail-chairs, splices, spikes, switches and switch mechanism, collectively called permanent way, and the signals ; but in common and accepted usage the meaning of the terms railway and railroad has been extended to include not only the permanent way, but everything necessary to its operation, as the rolling-stock and buildings, including stations, warehouses, roundhouses, locomotive shops, car shops, and repair shops, and also all other property of the operating company, as stocks, bondg, and other securities.”
Therefore, the legitimate meaning of the statute properly may be held to be : Any railroad company authorized to operate a railroad in this state desiring to cross another railroad’s grounds, or unite its track with any other railroad upon the grounds of such other railway corporation, shall make application, etc.
At the time of the passage of the act of 1901, the law of 1868 was the only one in force upon the statute-book. Section 47 of that law, which left the conduct of contending railway companies to be governed, in the first instance, by the “golden rule,” was evidently deemed to be insufficient. Whenever one railway company desired to enter upon the grounds of another it usually selected “seeling night” or the Sabbath day as the time for its operations. The approach of one railroad to another led to a system of fortification and depredation, raid and reprisal, born probably of other motives than simple zeal for the public good. Every railroad company is as tenacious of its grounds as it is of its track. These may be crossed from point to point without an intersection of tracks. Roundhouses, coal-trestles and other structures are as important to the company as tracks themselves, and may be interfered with, and no good reason appears why the jurisdiction of the board of railroad commissioners should be forbidden to attach until two tracks are about to cross. The same evils arise in each case, and require the same remedy. The board of railroad commissioners is better equipped than a court of equity for the determination of all such controversies. The questions thenjselves are really administrative in character and not judicial, though involving the exercise- of sound and expert judgment. The procedure prevents trespass by determining the question of necessity before any entry is made, and the award can do substantial justice to all the interests of both roads, general and local, and thereby to the public as well. All this was in the purview of the legislature with respect to tracks, and why not with respect to the ground a few feet from the ends of the ties as well as to that between the rails ? I am satisfied the legislature used the word “railroad,” in the section under consideration, in a sense large enough to include grounds used for railway purposes, and that the board of railroad commissioners were intended to have jurisdiction over all conflicts arising from the crossing of one company’s property by another road.
(73 Pac. 899.)
SYLLABUS BY THE COURT.
1. Railroads — Condemnation of Railroad Property. One rail way corporation cannot, under the general statutes of eminent domain of this state, condemn for right of-way purposes the land of another railway corporation already in actual and necessary use for railway purposes.
Mr. Justice Johnston concurs with me in these views. However, the majority of the court being of a contrary opinion, the judgment of the district court is affirmed.
Dostkr, C. J., Smith, Cunningham, Greene, Pollock, JJ., concurring. | [
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Per Curiam:
There was no prejudicial error committed in the trial of this cause, and no questions presented that require special consideration. The judgment of the oourt Delow is affirmed.' | [
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The opinion of the court was delivered by
Cunningham, J. :
The clainris made that the referee made no sufficient findings upon the issues between the parties. This objection was made to the referee without either specifically pointing out the deficiencies or requesting more specific or additional findings. The same objection was brought to the notice of the district court. It was overruled in both instances. We think there was no error in this.
The main and only meritorious question raised in the case is whether the rendering of the account of September 1, 1899, and its reception without subsequent objection by Henderson, constituted, as a matter of law, an account stated, and whether, as such, Henderson could in this action dispute the correctness thereof. An account stated is an agreement, express or implied, between parties who have had previous transactions with each other, fixing and determining the amounts due in respect to, such transactions, and, when made, such account stated becomes a new agreement and takes the place of the obligations resting upon either party by reason of the prior account. The doctrine is said to have been founded originally on the practice of merchants, but has been gradually expanded, principally to embrace actions between traders in mercantile matters, but is not excluded from operation in any matters wherein any kind of accounts are involved. Of course, where the adjustment and agreement as to the amount due upon such account are expressed, no trouble arises. In this case, however, while Harrison testified that Henderson received the account, and' after examination made no objection thereto, Henderson denied that he made any such examination, so that, if its rendition and reception amount to making it an account stated, it must be by implication and not by express agreement.
It may well be doubted whether the answer sufficiently sets out and counts upon an account stated. It nowhere identifies or refers to an account of any amount as being the one so relied on as an account stated. But granting that the allegations are sufficient to raise the issue, there is also beyond question the original account fully pleaded, fully set out, and relied on, for the defendant therein pleads that “the services so rendered were reasonably worth the items and sums as therein stated and charged and that said amount is correct." The issue thus tendered was not upon the question of an account stated, but upon the reasonableness and correctness of the account for services rendered, and upon this issue a great amount of evidence was offered by both parties without complaint from either. Indeed, the defendant claimed on one item of service which had been charged in his account at $105, and which was included in his statement of September 1, 1'899, at that figure, that there was due him thereon $1000, and he was allowed $150 by the referee. So, if there had been an account ■ stated, the same was abandoned and disregarded by both parties upon the trial of the issues before the referee. We are quite clear, however, that the circumstances of this case are not sufficient to warrant the implication that there was an account stated.
The account was not rendered by Harrison upon his own motion. He was not seeking to have the same ascertained and adjusted. Large sums of money had come to his hands by virtue of his employment as an attorney- and had been retained by him, if not without advice to his principal, at least without adequate accounting. Plenderson made repeated demands upon him for the rendition of an account, and finally came to Topeka with the expressed determination to remain until an account was given to him. So that it is apparent that the rendition of this account by Harrison was not for the purpose of having his claim against Henderson ascertained, adjusted, and agreed upon, but was for the purpose of informing Henderson at his own request of the condition of this trust fund. It is well settled that the binding force of an account stated will not be given to the mere furnishing of an account, which was not given with a view to ascertaining the claim, establishing the balance due, or finally adjusting the matters of account between the parties. (1-Oyc. 367.) In this case, instead of the circumstances’ implying the meeting of the minds of the parties so as to create a liability as upon an account stated, it is quite obvious that no such purpose existed and no such result was attained.
Many cases are cited in the brief of plaintiff in error to the effect that the rendition of an account by the creditor to a debtor and its retention for an unreasonable length of time without objection will raise the implication of assent thereto by the debtor and create an account stated. We find no fault whatever with this general doctrine, but find no case where such rule has been applied where the facts are at all analogous with those of the case at bar. On the contrary, many cases might be cited disapproving it. But, in any event, the rendition of an account, with its retention by the debtor without objection, is but a circumstance, to be submitted with all other circumstances surrounding the transaction to the trier of fact to determine the ultimate question. In this case, upon consideration cf all these circumstances, the referee decided adversely to the contention that there was an account stated between the parties, and this ruling was approved by the district court.
A claim of error is made in that the referee refused to permit an amendment by way of a supplement to the answer, so as to bring into the case an account accruing after this action was commenced. This request was made to the district court after the referee reported, and it was denied by the court. This was clearly a matter of discretion, and in the action of the court upon it we find no abuse.
. We discern no error in the entire case, and hence affirm the judgment of the district court.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
Summarizing those findings of the jury which were most favorable to the plaintiffs below, it appears that the train was coming east, and that Devine, the foreman, when he warned the men to leave the track, was standing about 300 feet west of the deceased. The men east of Hamlin did not hear Devine’s warning, and did not leave the track when he shouted. Hamlin stood on the north side of the track facing south. The engine struck him on the right side. The track ran nearly east and west. The wind and the noise of the men at work on the track between him and the train prevented Hamlin from hearing the blasts of the whistle or the rumbling of the train as it approached. Devine,.the foreman, did not shout loud enough for a man in the exercise of ordinary care and prudence to hear at the distance Hamlin was from him. All the men, except Hamlin, did not clear the track in the usual and ordinary way. "The train was running from twenty-five to thirty-five miles an hour.
The findings on which the railway company relied to defeat a judgment for plaintiff below were in substance as follows : Train No. 2 was expected by the men laying the rails. They had taken out half of the spikes on each rail and left the others in place, so that the train might pass safely. The engine whistled at Partridge, five or six miles west of the place of accident. It was heard by a part of the men at least. 'The whistle was again sounded at a road-crossing about one-half mile west of the steel gang. Devine, the foreman, signaled the train on its approach toward the men in his charge by what is called in railroad parlance the ‘high-ball’ signal, indicating that it was safe for it to come on. The engineer acknowledged the signal by two blasts of the whistle when he was 450 feet from the working gang and 750 feet west of Hamlin. The blasts of the whistle could be heard about five miles. The foreman, when 300 feet west of Hamlin, warned the men once or twice to clear the track before the train reached them. All the men left the track except Hamlin. The bell was ringing. The rumbling of the train could be heard before it reached Hamlin. The deceased had good eyesight and hearing. There is a ringing sound of the rails when a heavy train is approaching, which can be heard 300 or 400 feet in front of the engine by one standing over or near the rail. The foreman gave the signals to the men in the usual and ordinary way. A man standing near the track at the time of the acci dent, who was paying reasonable attention, could hear the rumbling of the train 600 feet.distant. The engineer and Devine, the foreman, performed their duties in the usual and ordinary manner. The morning when the accident happened was clear and bright, and some of the men saw the smoke of the train five miles off. Nine to twelve trains passed the steel gang every day. The deceased had been working about a month relaying track. He was familiar with the manner in which trains passed the men, and was familiar also with the time when train No. 2 went east. There was nothing to obscure an approaching train except the men at work.
Conceding that the foreman in charge of the men working on the track was negligent in not making his warnings understood above the noise made by the workmen and the blowing of the wind, the fact remains that he gave such warnings in the usual and ordinary manner, and nine to twelve trains passed the men in his charge every day. Beyond this, it was established that when the engine whistled five or six miles west of the place of accident some of the men heard it. It again whistled at a road-crossing one-half mile to the west. Upon its nearer approach, it answered the signal of Devine by giving two blasts of the whistle within 750 feet of Hamlin, and within. 450 feet of some of his coemployees. All the men left the tráck except Hamlin. This last circumstance is entitled to special consideration.
The deceased, when he saw his fellow workmen, thirty-five or forty in number, leaving tb.e track, was certainly apprised that there was a necessity for all of them suddenly to stop work. A step or two would have removed him to a place of safety. He gave no heed to this abandonment of the work by all' the others, but remained in his. place until struck. The jury said that the men did not leave the track in the usual and ordinary way. If their manner of leaving was different from what it commonly was when a train passed, this of itself ought to have excited his attention. Again, knowing the frequency with which trains passed, and expecting this particular train, Hamlin was bound to take reasonable care for the preservation of his own safety, and the finding was that, with reasonable attention, a man standing near the track could have heard the rumbling of the train 600 feet distant.
It is true that in finding No. 53 the jury answered that Hamlin was prevented by the wind and the noise made by the other workmen from hearing the rumble of the train, yet, taking the two findings together, the fact remains that with reasonable attention a man situated as he was could have heard the rumbling of the train 600 feet distant, notwithstanding the wind and the noise. The element of “reasonable attention” was lacking in finding No. 53. The two findings can be harmonized only by concluding that Hamlin was not paying reasonable attention to his surroundings. In finding No. 5, the jury said that the train which struck the deceased was expected by the steel gang. The word “expect” is defined: “To look for (mentally) ; to look forward to, as to something that is believed to be about to happen or come.” With his mind prepared for that which occurred, namely, the coming of the train, and his indifference to the actions of those around him, who left the track on its approach, coupled with his familiarity with the running of the trains which passed him from nine to twelve times a day during his thirty days' service, we think the deceased was guilty of such contributory negligence as to prevent a recovery by plaintiffs below. In Railway Co. v. Judah, 65 Kan. 474, 476, 70 Pac. 346, it was said :
“A signal by whistle or bell in such cases is to give warning of an approaching train. When a traveler, about to cross a railroad-track, has notice of that which a whistle or bell signifies, the giving of such warnings is a work of supererogation as to him.”
It is inconceivable that the deceased alone, of all the men, thirty or forty in number, did not hear the warnings or see the train. It is difficult also to give credence to the finding that the deceased could not see the approaching train, there being nothing to obscure it except the men at work. Some of the men saw the smoke of the engine and heard it whistle five miles distant. The day was clear and bright. Many of the findings are inconsistent with one another, and others evasively answered. It is evident that the jury did not answer the particular questions of fact without any reference to their effect on the general verdict. The answers returned affecting the question of Hamlin’s contributory negligence, excusing his presence on the track when all the others had moved out of danger, were strained and irrational.
The judgment of the court below will be reversed and a new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was a divorce case. The present appeal is from an order of the district court finding defendant guilty of contempt for his failure to pay the balance of alimony, attorneys’ fees and costs allowed plaintiff. Counsel for appellant raises two points: First, the decree for the payment of these items is not such that a contempt proceeding will lie to enforce payment. Second, that the evidence upon the hearing for contempt was insufficient to support the order made from which the appeal is taken.
The pertinent facts may be stated briefly as follows: Plaintiff and defendant were married in 1943. It was the second marriage for each of them. Plaintiff had two children by her first marriage and defendant had one. The ages of these children are not stated, but apparently they were adults at the time the order appealed from was entered. After they were married the parties lived on a farm for about five years, but their relations were not congenial, to the extent that there was a separation. Early in 1948 defendant contracted to sell his farm for $25,000 and give possession March 1st. About February 20th of that year he was conducting a sale of his livestock, farm machinery and other farm property. Plaintiff brought this action on February 20, 1948, and by a procedure, not now complained of, had the proceeds of the sale, amounting to a little over $6,000, impounded in the Easton State Rank to await the further order of the court. The trial was delayed because of the illness of Judge Wendorff, the presiding judge of the district court of Leavenworth county, and the Hon. Lawrence F. Day of Atchison, judge of the district court of the second judicial district of this state, was duly selected as judge pro tem to try the action. Defendant filed an answer and cross petition and set up an alleged antenuptial agreement which he asked to have enforced. On one occasion Judge Wendorff permitted defendant to withdraw $500 or $600 of the funds impounded and on another occasion Judge Day permitted defendant to withdraw $300 additional from the impounded funds. Apparently the case was vigorously contested and there were as many as three hearings for the taking of testimony and the court was requested to make findings of fact and conclusions of law.
On June 9,1949, the court filed its findings of fact and conclusions of law and rendered its decree. The court set aside the antenuptial agreement for the reason it was not freely,' fairly and knowingly entered into; that plaintiff was fraudulently induced to execute it; that it was unreasonable, inequitable, against public policy and was so drawn as to invite and encourage a separation, to defendant’s profit. The court found that defendant had been guilty of gross neglect of duty and extreme cruelty and granted a divorce to plaintiff upon those grounds. The court further found that at the time of their separation defendant had as much as $45,000 in cash from the sale of his farm and other property. The court further found that plaintiff was entitled to a “separate division of property and as permanent alimony of and from the defendant the sum and amount of $7,500.00, payable in a gross sum,” and that the funds impounded and held by the Easton State Bank should be paid into court to apply upon the payment. The court further decreed that the defendant should pay the costs in the action, including a fee to plaintiff’s attorney of $1,000. The remainder of the fund held by the Easton State Bank, in the sum of $5,277.47, was paid into court and by the clerk of the court delivered to plaintiff’s attorney. This left a balance due of $2,222.53, plus the attorneys’ fee, and costs. Counsel for plaintiff endeavored, without success, to find property belonging to defendant and also to find defendant, and two previous citations for contempt had been issued which the sheriff was unable to serve. Finally a citation for contempt was issued on July 21, 1950, which directed the sheriff to bring defendant before the court on August 3,1950, to show cause, if any he had, why he should not be punished for contempt.
On August 3, 1950, the parties appeared in court with their respective counsel, being the same as represent them now. The plaintiff and the clerk of the court were called as witnesses for plaintiff. Their testimony disclosed the judgment entered for alimony, attorneys’ fees and costs, the amount that had been paid thereon, and the amount still due and unpaid. The trial court thought they should have gone further and showed defendant’s ability to pay, and because plaintiff had not done so made an order discharging the defendant. This ruling of the court was erroneous. In 27 C. J. S. 1049 the rule is stated thus:
“A prima facie case is made against the contemnor by producing the order for alimony and proof of his failure to make payment according to its terms, and the burden is then on him to prove any legitimate excuse he may have for nonpayment.”
The same rule is stated in 17 Am. Jur. p. 510, and was held in our case of Ott v. Ott, 129 Kan. 541, 283 Pac. 918.
Plaintiff filed a motion for rehearing and showed authorities to the court which convinced the court it had erred, and the court granted a new hearing, setting the date for September 25, 1950. Prior to that time defendant’s attorney, by leave of court, withdrew from the case. Defendant did not appear in court on September 25 and an order was gotten out for his arrest. On October 17, 1950, he was apprehended and brought into court. He had no attorney. The court painstakingly explained to him the situation and why a rehearing had been granted and that it would be his duty to go forward and show what excuse, if any, he had for not paying the balance in harmony with the order of the trial court. In the' colloquy between the court, the attorney for plaintiff and defendant he complained about the court changing his ruling. The court recommended that he have an attorney, and the case was continued until October 23. At that time he appeared without an attorney. In colloquy with the court and counsel for plaintiff he complained bitterly about the judgment rendered on July 6, 1949, and talked about the prenuptial contract which the court on that date set aside. There had been no appeal from that judgment and decree and the court advised him that it could not be gone into then, but had to stand as the judgment and the decree of the court. He complained that he “got a raw, yellow deal to start with,” and stated, “I have been getting a raw deal all the way through, and everybody knows it,” and asserted that he knew the whole circumstances better than the court did. The court explained the situation in detail and offered to give him time to get a lawyer. He said he didn’t want one. The court stated:
“The only question before me is this: Is your failure to pay this balance of the judgment wilful? Are you just wilfully refusing to pay her the amount the Court ordered? Now, the law places the burden of proof on-you to show this Court that your failure to pay is not wilful. It is up to you.”
After further colloquy defendant stated:
“I am going to stick up for my rights. I never got justice, and I will stay right where I am at. . \ . . If I had anything, you wouldn’t ask me, or you wouldn’t have me in this Court; you would go and swipe it; you would grab it. That’s what you people would do. You are all money hungry. That’s what you are.”
The defendant was sworn as a witness in his own behalf. The attorney for plaintiff, after stating to defendant that the burden was upon him to establish his inability to pay, asked questions to which defendant gave answers as follows:
“Q. If you refuse to tell the Court anything, then you stand in contempt, and that’s the end of it. There is no question you are in contempt because the burden is on you.
“A. Why do you suppose I have the burden? I never murdered anybody. Why should I be here in contempt of Court. You fellows had two and a half years to go and get what you want. You don’t have to come here and have me up here in Court every few days because somebody is going to pay for all of it some day. You can just mark that on your list.
“Q. What do you mean by that?
“A. Never mind what it means; you just take what it means yourself.
“Q. Are you making threats here in the Court?
“A. I am not threatening you. I am telling you. I am telling you I want 'you to keep out of my tracks. You are just one of these lawyers that wants to hang around and bother innocent people. . . .
“A. And the one before was just as bad, and a whole lot worse. That may seem a little cruel in criticizing, but that’s the truth.
“Q. Mr. Kemmerle, did I request you to pay this balance?
“A. I haven’t got it.
“Q. Did I ask you in my office to pay this?
“A. Did you what?
“Q. Did I ask you in my office to pay this money?
“A. Yes.
“Q. When you came in to see me?
“A. Yes, you did, and so what?
“Q. What did you tell me?
“A. I told you that I was through a long time ago.
“Q. You weren’t going to pay it?
“A. That I didn’t have it, and I told you so.
“Q. You told me you weren’t going to pay it?
“A. I might have said both.”
Answering questions by the court as to how he was making his living, defendant testified he was not farming, that he was not working. “I have money, and it has been two and a half years; a lot of it goes away. I have been doing á lot of traveling.” That he had been from coast to coast, north and south, east and west. Answering further questions by plaintiff’s attorney he was asked if he used all the money he had in traveling. He said: “I have a little left. Do you think I want to go begging?” He further testified that he expected to go to work “after you fellows let me alone”; that he had no intention to go to work to pay plaintiff. He further testified he had bought an automobile, but later sold it; that he had bought a house in Leavenworth, but had sold that — “Sold the house on account of my ex-wife.” He testified that he had married again and that he and his wife and daughter were living in the house. He said he had no bánk account and that he carried no money with him. He was asked why he did not pay the plaintiff when he had the money, and he answered: “Well, because there wasn’t no use of paying it.” And at another time he stated: “Well, I didn’t see where I should do it, because I never got a fair decision.” There was much other evidence of this character, although defendant several times stated, “I can’t pay; I haven’t got it,” or words to that effect. The trial court found defendant was in contempt of court in that he knowingly and willfully refused to pay and had violated the orders made by the court on June 6, 1949. The court further decreed the defendant was guilty of contempt, as charged, and that he was committed to the custody of the sheriff, to be placed in jail for a period of six months, or until he purged himself of contempt by paying the sum of $2,222.53 due plaintiff and the $1,000 attorneys’ fees and the court costs.
We turn now to the legal questions argued on behalf of appellant. It is first contended that the decree of the court which allowed plaintiff alimony, payable by defendant in a lump sum, and also requiring defendant to pay plaintiff’s attorney’s fee and costs, is not such a judgment as may be enforced by contempt proceedings. Counsel points out that no execution had ever been issued for the collection of these items; cites 33 C. J. 1053, which distinguishes between judgments, rules and orders; cites our statute, G. S. 1949, 60-3101, which defines a judgment; cites Hummer v. Lamphear, 32 Kan. 439, 4 Pac. 865, where it was held that a domestic money judgment may be sued upon; also, Stauffer v. Remick, 37 Kan. 454, 15 Pac. 584, where it was held that a verdict in an action in tort does not become a debt until it is merged into a judgment; and Cunningham v. Mortgage Co., 57 Kan. 678, 47 Pac. 830, in which plaintiff sued to recover a specific sum, already accrued, for attorneys’ fees and for an accounting, and an additional sum for commissions, in which defendant answered contending plaintiff was indebted to defendant in a specific sum, and succeeded in getting a motion sustained for an order from the trial court that plaintiff pay the sum alleged to be due defendant and prohibiting plaintiff from proceeding further in the action until the sum was paid. This order was promptly set aside on appeal. We think none of the authorities cited by counsel for appellant is controlling here. The controlling rule was laid down in the case of In re Peters, 124 Kan. 455, 260 Pac. 975, where it was held:
“A court of general jurisdiction has power to enforce the payment of alimony previously decreed to a wife by an attachment for contempt where the husband willfully or contumaciously refuses or seeks to evade payments of alimony theretofore adjudged, and this may be done after the expiration of the term at which a decree for alimony was granted.”
In the opinion (pp. 456 and 457) it was said:
“Granting that judgments awarding alimony may in some instances be enforced by execution or other ordinary process, that does not deprive the court rendering the decree of authority to attach a party for contempt for willful disobedience or evasions of the order requiring payments of alimony. It is a recognized method for enforcing the provisions of a decree for alimony and the power to employ it inheres in a court of general jurisdiction since it is essential to a due administration of justice. It is not necessary that there should be a statute specifically providing that this remedy may be employed. The silence of a statute in this respect does not deprive the court of the power. It has been held that a lien or execution is illy adapted to enforcement of such an order, and that an attachment for contempt is always available (citing Scott v. Scott, 80 Kan. 489, 103 Pac. 1005; In re Groves, 83 Kan. 238, 109 Pac. 1087, and other authorities). . . . Nor can the order to pay alimony be treated as an ordinary judgment for debt. It does not arise upon contract, but is based on the duty of the husband to support the wife, an obligation which he owes not only to his wife, but to the public as well. . . .”
Appellant next argues that the testimony was not sufficient to support the finding of the court that appellant knowingly and willfully refused to pay the sums he was directed to pay by the decree. We have set the evidence out quite fully and it need not be repeated further than to say the testimony disclosed appellant had approximately $45,000 in cash at the time of the separation of the parties. Therefore he had ample money to pay all items required of him by the court. Instead of doing that he did not place the money in the bank, or anywhere that plaintiff or her counsel could locate it, and proceeded to carry out a wish he had long entertained to travel all over the country from coast to coast, east to west and north to south. He bought a residence property in Leavenworth and “Sold the house on account of my ex-wife.” The testimony shows that he did have money at the time of the hearing. He thought he “had a raw deal” and that there “was no use” in paying. On this point appellant cites the case of The State v. Dent, 29 Kan. 416, where it was held:
“Where an attachment is issued in a proceeding as recited above (for contempt in refusing to obey an order to pay temporary alimony and suit money), the defendant is entitled to be discharged if he shows his disobedience is not willful, but solely on account of his pecuniary inability or some other misfortune over which he has no control.”
Clearly the case is not in point here.
A case much more nearly in point is Johnson v. Johnson, 148 Kan. 682, 84 P. 2d 888, where the syllabus reads:
“On the hearing of an accusation for indirect contempt in a divorce action, where the defendant admits he has not paid anything on the alimony or toward the support of the infant child for more than eleven months, during which time he, a healthy young man, was being supplied with food and clothing by his parents, his brothers and sisters, and was out of the state most of that time, it is held: (1) that his testimony that he was unable to get employment or furnish anything for the support of his infant child during those eleven months may not need contradictory evidence in order to be wholly disregarded; (2) his failure to do or say anything during that time to show his inability to comply with tlie order, and his willingness to do so as soon as possible, is the strongest kind of evidence to establish a willful and contemptuous disobedience of the order; and (3) a commitment to the county jail until he purge himself of such contempt is not an indefinite imprisonment.”
The opinion refers to many authorities supporting the holding of the court. The case is cited in the recent case (May, 1950) of Lusty v. Lusty, 70 Ida. 382, 219 P. 2d 280, 283, where the trial court had excused defendant for his failure to pay on evidence much like the defendant presented to the trial court in this case. The supreme court reversed on the authority of our Johnson case and other authorities.
In 27 C. J. S., at page 1051, our Johnson case is cited in support of the text, which reads:
“. . . The husband’s failure to do or say anything during the time he failed to make payments to show his inability to comply with the order and his willingness to do so as soon as possible is the strongest kind of evidence to establish a willful and contemptuous disobedience of the order. Where the circumstances do not indicate a willingness on the part of the husband to comply with the order for alimony, his testimony that he was unable to get employment or furnish anything for the support of his wife and child may not need contradictory evidence in order to be wholly disregarded. . . .”
We find no error in the record. The judgment of the trial court is affirmed. | [
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