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The opinion of the court was delivered by
Smith, J.:
The defendants were tried jointly and convicted in the first count of burglary in the nighttime and in the second count of grand larceny. They have appealed.
They argue first there was not sufficient evidence to prove that the burglary was committed at night. Cone and Greenway argue further there was not sufficient evidence to prove possession of the recently stolen property in them.
As to the first argument, W. D. Smith operated a store in a small town in Johnson county. He testified that he left his store as usual at the close of the day on January 19; that he barred the door; that when he came back to his store on the morning of January 20th everything was scattered about and badly misplaced and there was a hole in the wall under the window. This was all the evidence there was as to the time of entering. It will be noted he did not testify as to when he locked his store at the close of business on January 19th. For all the evidence shows there might have been several hours between that time and sundown. On this point the state asks us to assume the burglary was committed in the nighttime from the fact there was evidence the burglary was committed after the storekeeper closed his store and before 1:50 the next morning. The state argues it is only reasonable to believe that the defendants followed the usual practice of thieves and committed their crime under tihe protection of darkness. This is a case where the guilt of the defendants is being established by circumstantial evidence. In such case the circumstances must be so strong as to exclude every reasonable hypothesis except that of guilt of the defendant. (See State v. Goldsberry, 160 Kan. 138, 160 P. 2d 690.) See, also, 9 Am. Jur. § 70, where it states:
“Where there is nothing to show that the entry may not have been made, and the property taken, during the daytime, the jury is not warranted in finding that the entry was made in the nighttime.”
(See, also, State v. Gunderson, 56 Wash. 672, 166 Pac. 194.) In The State v. Rice, 93 Kan. 589, 144 Pac. 1016, we held:
“The defendant was convicted of burglary in the nighttime without evidence showing at what time the offense was committed. Burglary in the daytime being the lesser of the two offense, the presumption in favor of the appellant is that it was committed in the daytime, and for this reason the judgment is reversed and a new trial ordered.”
It follows the only offense of which the evidence on this count proved defendants guilty was burglary in the daytime, in violation of G. S. 1949, 21-521. Since that is an offense of lesser degree than burglary in the nighttime, in violation of G. S. 1949, 21-518, the defendants should have been given a new trial as to the first count.
We turn now to the argument of defendants Cone and Greenway that there was not sufficient evidence to prove their possession of the recently stolen property. This is actually an argument there was not sufficient evidence to warrant the trial court in giving an instruction as to the possession of recently stolen property. The evidence on this point was that about 1:50 in the morning of January 20th the Kansas City, Missouri police received a call that men were carrying merchandise into an apartment house. They entered the apartment house and after listening at several doors heard people talking in one apartment. They knocked and defendant Merritt opened the door. The police entered and found a great deal of property that was later identified to be property from Smith’s Grocery store. After some' questioning they took Merritt to the police station. They later came back and found Cone and Green-way fully clothed and asleep on a pallet on the floor in an adjacent apartment connected with the first apartment through a closet. Later the person who had called the police identified Cone and Greenway as being the men he had seen carrying this property into the house from a car. The court instructed the jury as follows:
“Evidence has been introduced tending to show that after the time it is claimed the property of Mr. W. D. Smith was stolen, it was found in the possession of the defendants. You are instructed that possession of stolen personal property shortly after it is stolen is prima facie evidence that the possessors are the thieves, and it throws upon the possessors the burden of explaining such possession. If such possession is unexplained, or if the explanation is not satisfactory, it is of itself sufficient to warrant a conviction of grand larceny.”
Cone and Greenway argue there was not sufficient evidence the merchandise was in their possession to warrant the court in giving that instruction as to them.
There are a number of answers to it. The first is that there was evidence tending to show that Cone and Greenway had been in possession of the property since they were identified as being among those who were seen carrying the property into the apartment house a few hours after the theft. They asked for a new trial on the ground of illegal admission of evidence; that the verdict was not sustained by sufficient evidence; that their oral motion for a directed verdict should have been sustained and that the verdict of the jury was contrary to law. The point as to this instruction being given was never presented .to the court on the motion for a new trial; neither was it mentioned in the notice of appeal. While the sufficiency of the evidence as to possession was mentioned in the specifications of error, the giving of the instruction as to possession was not mentioned.
It follows that the judgment of guilty as to the first count of the information is reversed with directions to grant defendants a new trial as to the first count, in accordance with the views expressed herein, and that of guilty as to the second count is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
The plaintiff appeals from a judgment denying a claim against decedent’s estate for merchandise furnished and services rendered to the decedent during her lifetime.
The trial court made findings of fact and conclusions of law which were:
“FmsT. That the Claimant, Carl W. Hayes, became acquainted with the deceased, Laura C. Woodford, in 1932, and became a tenant in her building in 1934 and that on many occasions from that date until the death of Mrs. Woodford the Claimant saw the deceased and ran many errands for her and looked after many things for the deceased and furnished her with medicines and other things from his drug store from time to time, all at her request, and that she seldom, if ever, paid him for any of these articles furnished or for any errands that he did for her, and that this extended over a period of at least thirteen years.
“Second. That during this time the deceased made various and sundry statements to different parties in which she stated that she would see that the Claimant was well paid for his services, and made statements such as, he wouldn’t be sorry, that he would be paid for all that he had done,’ ‘that she intended to leave him $50,000.00 when she died for what he was doing for her,’ ‘That she would make arrangements to pay Carl for all that he had done for her,’ and ‘that she intended to leave one-half of her property to him.’
“Third. That the deceased was stricken suddenly with a coronary occlusion and never was fully in control of her mental faculties after that seizure until her death a few days later.
“Fourth. That there was no promise or contract to will property in writing ever executed by the deceased in favor of the Claimant, or any agreement whereby any specific amount or any terms were ever agreed upon, or any promise by the deceased to leave any specific property or amount of money to the Claimant by will or to give him any specific amount of money or piece of property as a gift.
“Fifth. That the Claimant did not keep track of any specific amounts of merchandise furnished or of hours spent in service for the deceased by the Claimant, but that the Claimant did spend a great deal of time performing services at the request of the deceased, and that he used his automobile a great deal in running errands for the deceased at her request and in driving her places both inside and outside the State of Kansas and around the City of Hutchinson, and did at her request furnish her with a considerable amount of medicines and other items and articles from his drug store.
“Sixth. That the items furnished from his drug store to the deceased were not put down on a regular charge account and a book account kept thereof, nor was any exact evidence produced showing the services actually performed, or when or where or how much, although such articles were furnished and said services were performed with more or less regularity over this period of time.
“Seventh. That the Claimant made no claim or demand against the deceased during her lifetime, nor did he render any statement to the deceased, and in fact testified that he did not expect to be paid literally in dollars and cents, but did expect to be compensated from her estate. That no evidence was introduced to show that the deceased ever stated or showed any intention to pay this Claimant for merchandise delivered or for services rendered in any detail or with any precision as to the value of the articles furnished or services rendered.
“Conclusions of Law.
“First. That while the Claimant furnished merchandise at the request of the deceased and rendered services for her at her request over the period specified in his claim, that diere was no contract between the Claimant and die deceased for the payment for these articles furnished and services rendered, and that there were not sufficient facts shown by the evidence in this case to imply any contract on the part of the deceased to pay for the same or to constitute a claim against her estate.
“Second. That this Court cannot determine from the evidence with any exactness or by virtue of any proof offered herein, any certain amount which might be due to the Claimant from the estate of tire deceased which might be the basis for ¿ny single item or items of specific claim against the estate.
“Third. That this claim should be disallowed and appropriate journal entry drawn to that effect in conformity with these findings and conclusions.”
Appellant contended at the trial and asserts here the conclusions of law are not supported by the evidence and the findings of fact. The claim was based on the theory of quantum meruit. Appellant was not a member of decedent’s family. Appellant’s contention is that under such circumstances, and in the absence of evidence the services were to be gratuitous, the law implies an agreement to pay the reasonable worth of merchandise furnished to and services rendered for another at the latter’s instance and request, citing Griffith v. Robertson, 73 Kan. 666, 671, 85 Pac. 748; Williams v. Jones, 105 Kan. 282, 182 Pac. 391; Nelson v. Peterson, 147 Kan. 507, 508, 78 P. 2d 20; In re Estate of House, 164 Kan. 610, 192 P. 2d 179; Lloyd v. Kleefisch, 48 C. A. 2d 408, 120 P. 2d 97; In re Estate of T. A. Stoll, 188 Or. 682, 217 P. 2d 595, and other decisions and similar statements from textbooks to the same general effect.
Appellant emphasizes the evidence of various witnesses who testified in harmony with the first and second findings of fact and also his own testimony that although he did not expect to be paid literally in dollars and cents he did expect to be compensated out of decedent’s estate.
Appellant especially emphasizes the rule that in the absence of circumstances indicating otherwise it will be inferred that a person who requests another to perform services for him thereby bargains to pay for the services rendered. (58 Am. Jur., Work and Labor, §§3,4.)
Although there is no serious' disagreement between counsel for the respective parties concerning these generally well established principles appellee, on the other hand, insists there are circumstances in the instant case indicating appellant did not expect to be paid, as disclosed by the fact that he kept no records whatever of the merchandise furnished or of the services rendered, and that his own testimony disclosed he kept such records when he expected to be paid for merchandise furnished to another. Appellee also argues, if anything was owing to appellant, there was evidence he was well paid out of decedent’s estate by reason of another claim he presented which was allowed by the probate court.
In view of the apparent basis of the trial court’s decision and the conclusion we have reached with respect to the disposition of this appeal we shall not unduly labor the particular circumstance on which appellee relies as indicating, or tending to indicate, appellant had been fully compensated out of decedent’s estate, if the claim was valid. In 1934 the decedent rented one room of a corner business building in the city of Hutchinson to appellant and his partner in which the partnership operated a drug store. There were tenants in other portions of the building. That partnership was dissolved in 1938 and in 1939 appellant entered into a lease contract with the decedent whereby he obtained possession of the entire building with the right to sublease portions thereof to other tenants. For present purposes the various terms of this lease contract need not be recited. The lease did in effect provide, in part, that if appellant performed all of its terms the appellant should at the death of the lessor receive title to the entire property free and clear of all claims of the estate against it for future rents and free from all other claims whatsoever. The lease contract also provided the lessor would embody the last mentioned provisions pertaining to appellant’s title to the property in her will and that the will and lease contract should be construed together. The decedent never executed a will but in November, 1944, she executed the following instrument, to wit:
“To Whom It May Concern:
“but more especially to the Administrator or Executor of my Estate.
“Whereas on or about September 1, 1939, a Lease Contract was made and entered into by and between Laura C. Woodford, lessor, and Carl Hayes, lessee, said Lease Contract referring to the following described real estate located in Reno County, Kansas, to wit:
“Lot 1, Block 1, Lee’s First Addition to the City of Hutchinson (Otherwise known as #502 and 504 East Fourth Street and extending from Fourth Street back to the alley)
“If at the time of my death the lessee, Carl Hayes, has complied with all of the provisions of the Lease Contract executed and referring to the above described real estate, then it is my desire that said described real estate be conveyed by the Executor or Administrator of my estate according to the terms of the Lease Contract without requiring further payment from the lessee.
“Dated at Hutchinson, Kansas, this 21, day of November, 1944.
“Laura C. Woodford
“Witnesses to Signature
“R. L. Guldner
“Wm. M. Ruddick”
Appellant presented the foregoing exhibit as his claim of title to the building in the probate court and it was allowed. He accordingly received a deed to the premises. Appellee stresses the income appellant received as rentals from other tenants in the building and argues that these rentals were in excess of the costs of maintenance, repairs, insurance, taxes, etc., which appellant was required to pay under the terms of the lease and that during such time he was required to pay the lessor only $200.00 per month as rental for the entire building. Appellee also argues the building was worth from $30,000 to $50,000 and that this fact discloses appellant was well cared for by decedent out of her estate for all services rendered decedent during her lifetime, if it was intended he should be paid therefor.
The 1939 lease contract itself makes no reference to merchandise delivered or services rendered by appellant during the five previous years or to be furnished or rendered in the future. Appellee, however, contends the value of this property and decedent’s written statement directing the title thereto be transferred to appellant at her death were proper considerations in determining whether decedent intended thereby to meet any obligations she might have had to the appellant.
On the other hand appellant points out there was evidence that after executing this written instrument the decedent made statements to various people that she would need to make other provisions to compensate appellant for his services and kindnesses. Whether she meant that it would be necessary to make the will and devise the real estate to the appellant, as she had agreed to do in the lease contract, or whether she meant it would be necessary to make some additional provision to compensate appellant does not appear to have been determined by the trial court.
Nothing is specifically contained in the findings of fact to indicate the trial court considered this written instrument or the deed to the property in reaching its conclusion. We, therefore, have no basis on appeal for reviewing the question whether the allowance of that claim constituted a proper consideration in determining the allowance of the instant claim. Appellee states the trial court took the position in denying the claim that it was unnecessary to consider the written instrument or deed in view of the fact that the proof of the claim was otherwise too indefinite and uncertain. The findings appear to support this contention. Appellant likewise states the trial court did not consider the written instrument or deed in reaching its conclusion.
We shall turn our attention to the question whether the claim was established by sufficiently clear and definite proof. Appellant contends it was and appellee asserts the contrary. The claim covered a period of thirteen years, from 1934 to 1947. The findings are that merchandise was furnished to and services were rendered for the decedent over that period. It is conceded no record was kept concerning either of these claimed items. No separation was made of merchandise furnished to the decedent out of the drug store while it constituted a partnership and the amount furnished after its dissolution in 1938.
It is true no value was placed by appellant on any of the separate items of merchandise furnished or on any particular services rendered. He did, however, testify he expected to be compensated, he had not been paid and that the fair and reasonable value of his total services over the thirteen year period was $15,800. That would average $100.00 per month. We find no cross-examination in the record before us testing the basis or reasonableness of the claim. Limiting our decision to the facts found by the trial court concerning the performance by appellant and the testimony of witnesses with respect to decedent’s statements that she would see that appellant was well paid and appellant’s statement that he had not been paid, we think appellant established a prima facie case entitling him to a judgment.
Appellant asks this court to remand the action with directions to grant a new trial limited solely to the question of the reasonable value of the merchandise furnished and services rendered. In the light of the entire record and what has previously been said herein concerning certain aspects of the case, apparently not ruled on or considered by the trial court, concerning which we presently express no views, we think the new trial should not be limited as requested.
The judgment is reversed and the action remanded with directions to grant a new trial generally. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action by a tenant against the landlord for reimbursement of rents paid in advance over the full period of a term lease in accordance with the provisions of the lease contract, the building having been destroyed by fire before the expiration of the term. The defendant’s answer pleaded as a defense that the fire was occasioned by plaintiff’s, the tenant’s, negligence. The defendant also filed a cross petition in which she sought recovery for the value of the building.
Plaintiff’s reply contained a demurrer to defendant’s answer based on the grounds (1) the answer failed to constitute a defense; and (2) several causes of action were improperly joined. The reply also contained a demurrer to the cross petition on the grounds (1) it failed to state a cause of action and (2) it constituted a misjoinder of causes of action.
The trial court sustained the second ground of the demurrer. From that ruling the defendant appealed. The plaintiff cross-ap pealed from the order overruling its first ground of the demurrer to the answer and to the cross petition.
Plaintiff contends the answer does not constitute a defense and its demurrer thereto should have been sustained. We shall consider that question first. In order to avoid confusion we shall continue to refer to the parties as plaintiff and defendant.
There is no occasion to set forth all the allegations of the amended petition. The lease, attached to the. petition, made no provision for taking out insurance by either party and contained no reference to the rental status of the parties in the event the building was destroyed by fire. Under its terms the taxes and improvements on the property were required to be paid by the landlord. The lease also provided:
“And the said party of the second part does hereby hire the said premises for the term above mentioned and do hereby covenant and promise to keep the said premises in good repair and every part thereof, and will not release or assign this lease without the written consent of the said party of the first part, and at the expiration of the said term, yield and deliver up the same, in like condition as when taken, reasonable wear and use thereof and damage by the elements excepted. And the said party of the first part does covenant that the said party of the second part, on paying the moneys as aforesaid, and performing all the covenants aforesaid, shall and may peacefully and quietly have, hold and enjoy the said described premises for the term aforesaid.” (Our italics.)
The term of the lease was from January 1, 1950, to December 31, 1952. The building was alleged to have been totally destroyed by fire arising by accident on January 25, 1950. The petition alleged plaintiff was advised by defendant that defendant was willing for plaintiff to restore the building at its own' expense but without credit to it for tire rent previously paid in advance. Plaintiff asked judgment in the sum of $388.89 for the unused portion of the lease together with interest from February 1,1950.
The material allegations of defendant’s answer, in substance, were:
The fire was not a mere accident but was caused by plaintiff’s negligent acts. The answer detailed the alleged acts of negligence. We need not comment on those allegations except to say plaintiff’s demurrer to the answer, of course, admitted the negligence pleaded and that it caused the fire.
We are presently wholly unconcerned with the problem of defendant’s proof of plaintiff’s alleged negligence. For the purpose of reviewing the ruling on the démurrer to the answer we start with plaintiff’s admission that the building was destroyed as a result of its own negligence.
Plaintiff contends negligence of a tenant resulting in die complete destruction of leased premises does not render the tenant liable to pay rent for an unexpired term of a lease in the absence of a contract provision to that effect. The instant lease is silent on that subject. It is plaintiff’s theory that absent such a provision a tenant is hable for rent only in the event of his willful destruction of the building. No authorities are cited in support of these contentions.
Plaintiff also argues the lease contract required only that the tenant “at the expiration of the said term, yield and deliver up the same, in like condition as when taken, reasonable wear and use thereof and damage by the elements excepted.” Plaintiff asserts destruction of a building by fire constitutes “damage by the elements” and it was, therefore, expressly relieved from the duty of delivering up the building. We cannot agree to that interpretation of the phrase “damage by the elements excepted” as employed in a lease contract. In 32 Am. Jur., Landlord and Tenant, § 505, it is said:
“The term ‘elements’ as used in a provision for the relief of the tenant if the premises are rendered wholly or partially untenantable by ‘fire or the elements’ has been held to refer only to some sudden, unusual, or unexpected action of the elements, as floods, tornadoes, etc., occurring during the term, and not to the natural and ordinary results of an efficient cause existing at the time of the demise, such as the manner of construction of the building or the nature of the soil upon which it was erected. It seems that if the fire causing the destruction of the building was due to the tenant’s negligence, he will not be relieved from liability for rent under a general provision in the lease for such relief if the building is destroyed by fire.” (Our italics.)
In 51 C. J. S., Landlord and Tenant, § 408, it is stated:
“Independently of express covenant, the law imposes on a tenant the obligation to return the premises at the termination of the tenancy substantially in the same condition as when he received possession, and to restore the property to the landlord at the end of the term unimpaired by the negligence of the tenant.” (Our italics.)
See, also, Tyson v. Weil, 169 Ala. 558, 53 So. 912; Powell v. Orphanage, 148 Va. 331, 138 S. E. 637; Arkansas Fuel Oil Co. v. Connellee, (Tex. Civ. App.) 39 S. W. 2d 99; Womack v. Tripp, (Tex. Civ. App.) 137 S. W. 2d 180; Weadock v. Jewett, 39 N. Y. S. 2d 891.
In the Womack case, supra, it was held:
“A tenant is not liable for damages ensuing from reasonable use of premises, but must treat premises so that no substantial injury is done during his occupancy and must restore premises at end of term unimpaired by negligence.” (Sybiri.)
In the Weadock case, supra, the rule is stated thus:
“Where evidence warranted finding that fire was caused by tenant’s negligence, tenant could not avoid liability for damage caused by fire or for rent to date of final order of dispossess on basis of lease provision for termination thereof in event of fire.” (Syl. f 1.)
It must follow that since a tenant cannot avoid liability for rent during the unexpired term of a lease contract in the event of his prior negligent destruction of the building he cannot, under such circumstances, compel a return of rentals he has paid in advance. The result is the answer constituted a defense and the court did not err in ovérruling the demurrer thereto.
The second question is whether the court erred in overruling plaintiff’s demurrer to defendant’s cross petition based on the ground it failed to state a cause of action? In view of what already has been said we need not unduly labor that question. It may, however, be well to observe also that the only damage from which plaintiff is relieved by the lease contract, in addition to damage caused by the elements, is damage resulting from “reasonable wear and use.” Manifestly, such exemption from liability does not include negligent destruction of the building. It also should be noted this lease required the tenant to keep the premises and every part thereof in good repair. Reading and construing these provisions together it appears the tenant, except for damage resulting from exempt causes, was required to make repairs of damages otherwise caused. In no event, however, can the lease contract be construed to relieve plaintiff from liability for its own negligence.
All allegations of plaintiff’s negligence contained in the answer were made a part of the cross petition by reference. If defendant’s building was burned by reason of plaintiff’s negligence, which the demurrer admits, then plaintiff is liable to defendant to the extent of the resulting damage. It follows the general demurrer to the cross petition was properly overruled.
The third and last question involved is whether plaintiff’s demurrer to the cross petition was properly sustained on the theory defendant’s counterclaim to recover damages for the loss of the building constituted an improper joinder with plaintiff’s cause of action for the recovery of the rents alleged in the petition? For this answer we turn to pertinent statutes. The material portion of G. S. 1949, 60-710 provides:
“The answer shall contain:
“First. A general or specific denial of each material allegation of the petition controverted by the defendant.
“Second. A statement of any new matter constituting a defense, counterclaim or setoff, or a right to relief concerning the subject of the action, in ordinary and concise language, and without repetition.” (Our Italics.)
G. S. 1949, 60-711 reads:
“The counterclaim mentioned in the last section must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action. The right to relief concerning the subject of the action mentioned in the same section must be a right to relief necessarily or properly involved in the action for a complete determination thereof, or settlement of the question involved therein.”
There is no need here for a lengthy treatise on the interesting subject of what constituted a proper counterclaim under the common law prior to statutory enactments. In enacting the above statute it was the legislative intent and purpose to permit a defendant to include in his answer counterclaims on any of the three grounds designated in the statute in order to obtain a complete determination or settlement of such controversies in a single action and to thus avoid a multiplicity of suits. (See cases cited under the statute.)
There can be no doubt that the counterclaim complied with the first sentence of the counterclaim statute. A several judgment might have been rendered in an independent action by the defendant based on the allegations of his cross petition. Did the counterclaim fulfill other qualifications of the statute? In other words did it arise out of the contract or the transaction set forth in the petition as the foundation of plaintiff’s claim or was it connected with the subject of plaintiff’s action? If it falls within the legislative contemplation of any of the three conditions mentioned it was properly asserted.
Plaintiff’s action is one for the recovery of a money judgment. Although the amount sought is represented by rent paid in advance by virtue of express terms of a written lease contract pleaded plaintiff does not seek to recover possession of any particular identifiable money. Plaintiff contends the fire was accidental and it was relieved by the terms of the contract from liability to deliver up the premises in the same condition as when it took possession thereof, except if the damage resulted from willful conduct on its part. This construction of the contract the defendant denies and alleges the fire was due to plaintiff’s negligence. Defendant, therefore, seeks to recover damages for the loss of the building occupied by plaintiff under the terms of the contract.
As previously indicated herein plaintiff, except for damage-caused by reasonable wear and use and damage by the elements, was required to keep every part of the premises in good repair. Under these circumstances there is some room for the contention the counterclaim arose out of the contract set up by the plaintiff or out of the over-all transaction alleged by it. It is, however, unnecessary here to determine the correctness of defendant’s contention in this regard. In order to meet the requirements of the statute the first two grounds thereof may be entirely ignored if the counterclaim meets the requirement of the third qualification, which is that it must be connected with the subject of plaintiff’s action.
The first question that intrudes is, therefore, what constitutes the subject of plaintiff’s action? In Pomeroy’s Code Remedies, 5th ed., § 651, is contained a discussion of various views of courts with respect to this question. The author treats those views, recognizes they are not in complete harmony, and then proceeds to state his views which we regard as sound. He says:
“It seems, therefore, more in accordance with the nature of actions and more in harmony with the language of the statute to regard the ‘subject of the action’ as denoting the plaintiff’s principal primary right to enforce or maintain [that for] which the action is brought, than to regard it as denoting the specific thing in regard to which the legal controversy is carried on.”
So iii the instant case the subject of plaintiff’s action was not confined to the narrow limits of the particular- thing, namely, “rentals” which it sought to recover. The real subject of its action was its principal primary right to recover a money judgment represented by rentals previously paid. That alleged right the counterclaim denied and expressly alleged the destruction of the building by fire was the result of plaintiff’s negligence. It would, therefore, appear the counterclaim was directly connected with the “subject of the action”, namely, plaintiff’s right of recovery.
That is the interpretation of the counterclaim statute adopted early in this state. (Deford v. Hutchinson, 45 Kan. 318, 328, 329, 25 Pac. 641.) It has not been restricted or modified in our later cases. (General Refrigeration Sales Co. v. Roberts, 145 Kan. 333, 337, 65 P. 2d 269.)
Under G. S. 1949, 60-102 the provisions of the code of civil procedure and all proceedings thereunder must be liberally construed with a view to promote their object and assist the parties in obtaining justice. This command, of course, includes proceedings under the counterclaim statute, (United States Hoffman Machinery Corp. v. Ebenstein, 150 Kan. 790, 96 P. 2d 661; affirmed on rehearing, 152 Kan. 198, 103 P. 2d 788.)
Plaintiff, in substance, contends the connection between the counterclaim and the subject of plaintiff’s action must be of a character that the parties could be supposed to have foreseen and contemplated in their dealings. There is authority for that contention. (Pomeroy’s Code Remedies, 5th ed., § 652.) The doctrine also has been considered and approved in some ably written opinions. Would its application defeat the instant counterclaim?
Plaintiff contends destruction by fire was not contemplated for the reason the lease contract contained no provision for the carrying of insurance by either party. It is true it did not but is that a conclusive reason for deciding no damage to or impairment of the building by plaintiff’s negligence was within the contemplation of the parties? We cannot think so. As previously indicated, the lease contract relieved plaintiff only from liability for damages resulting from ordinary wear and use and damages by the elements, none of which exemptions from liability are here involved. Furthermore, the lease contract, as also previously indicated, expressly required the plaintiff-tenant to “keep the said premises in good repair and every part thereof.” Surely it must have been contemplated by such a provision that, except for damages caused by the limited exemptions, plaintiff should be liable for other damages caused by it and that it would be required to repair the same.
If plaintiff, for example, by its negligent operation of a stove caused some woodwork or other portion of the building to be burned could it reasonably be argued such damage was not within the contemplation of the parties and that plaintiff would be under no contractual obligation to repair the damage so caused? We think not. Upon what theory then can it logically be argued plaintiff is not liable for the negligent destruction of the entire building? We are aware of none. Moreover in this view of the problem it also may be said the counterclaim arose out of the over-all transac tion alleged in plaintiffs petition, if in fact not out of the lease contract itself.
There is another interesting aspect of the propriety, if not of the necessity, for filing the counterclaim not mentioned by the parties. If defendant failed in this action to assert the counterclaim would such failure constitute res judicata under our decisions in the event she later filed an independent action for the same relief? Obviously that question is not directly before us now and we shall not pursue it. It is sufficient now to say it was proper to assert it in this action.
It is true that under the old common law doctrine and under some of the early decisions of courts construing the same or similar counterclaim statutes it was held a counterclaim grounded in tort could not be joined with an action filed by a plaintiff based on contract. This narrow interpretation of the statute has long since been abandoned by most courts (anno. 68 A. L. R. 451) and it does not obtain in this state, if the tort is connected with the subject of plaintiff’s action. (Miller v. Thayer, 96 Kan. 278, 282, 150 Pac. 537; United States Hoffman Machinery Corp. v. Ebenstein, 150 Kan. 790, 96 P. 2d 661; affirmed on rehearing, 152 Kan. 198, 103 P. 2d 788; Rush v. First Nat. Bank, 71 Fed. 102, 105.) We think the instant counterclaim clearly fulfills that requirement, if it does not in reality also qualify under each of the other two provisions of the statute. It follows the order sustaining the demurrer to the counterclaim on the ground of improper joinder of causes of action cannot be sustained.
The rulings on plaintiff’s demurrer are, therefore, affirmed in part and reversed in part in accordance with the views herein expressed. | [
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Per Curiam:
George Reich was injured while he and Ireland, another section man, were placing a hand-car on the railroad. They carried the hind wheels upon the track, and each taking a corner of the front end carried it around, and while standing upon the stone ballast and endeavoring to pull it up on the track a small stone in the ballast upon which Ireland was standing rolled under his feet, causing him to lose his balance and to loosen his hold on the car. This threw the full weight on Reich and caused the injury. A demurrer to plaintiff’s evidence was sustained, and an examination of the evidence does not disclose culpable negligence on the part of Ireland. The car was loaded in the usual way; both knew that the track was covered with stone ballast, and both were walking over it while placing the car on the track. The suggestion that the injury was due to a jerk or a failure to give notice of a jerk, made to bring the car up on the rails, is not borne out by plaintiff’s testimony. The injury was not due to a jerk, but to the rolling of the stone under Ireland’s foot, which occurred without his fault. It being shown that the rolling of the stone under Ireland’s foot was accidental, and something for which he was not to blame, there is no liability by the railroad company for the result of the accident. The admission of papers identified by plaintiff’s witnesses on cross-examination was not material error.
The judgment will be affirmed. | [
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The opinion of the court was delivered by
Smith, J. :
Dr. T. E. Taylor was a member of Circleville camp of the Modern Woodmen of America. He held a benefit certificate in the’ order for the sum of $2000, payable to his father, which was assigned to defendant in error, wife of the deceased, after his death. Taylor died on March 8, 1900.
In October, 1899, Taylor tendered to the clerk of Circleville camp the amount of the assessment payable on or before November 1, necessary to keep in force' his benefit certificate, but the tender was rejected on the ground that the insured was intemperate and addicted to the use of cocaine or opiates.
In his written application for membership, and for indemnity in case of death to the amount of $2000, Doctor Taylor stated:
“I agree to make punctual payment of all dues and assessments for which I may become liable, and to conform in all respects to- the laws, rules and usages of the order now in force, or which may here- . after be adopted by the same.”
The application also contained the following:
“If I shall fail to comply with and conform to any and all of the laws of said Modern Woodmen of America, whether now in force or hereafter adopted, that my benefit certificate shall be void.”
In the benefit certificate issued to Doctor Taylor in September, 1895, is found the following provision :
“This certificate is issued in consideration of the warranties and agreements maqle by the person named in this certificate in his application to become a member of this fraternity,” etc.
Another clause in the certificate is to the effect that, if the member shall become so far intemperate in the use of alcoholic drinks or the use of opiates as permanently to impair his health, or to produce delirium tremens, the certificate shall be null and void.
The following by-laws of the order were in effect during the time of Doctor Taylor’s membership : the clerk. Such appeal shall be heard and determined in the same manner as a trial in the local camp.”
“Sec. 276. Shall not receive dues or assessments from intemperate members.- — He (the camp clerk) shall not receive or collect dues or assessments from a member whom1 he knows to be addicted to the intemperate use of intoxicants or opiates to such an extent as to be frequently under the influence thereof or intoxicated, or use drugs to such an extent as to injure his health.”
“Sec. 279. Appeal from the ruling of clerk.— Any member of the society aggrieved by the ruling of the clerk in refusing or accepting dues or assessments under any of the provisions of the preceding sections of this chapter may appeal from his decision to the camp within thirty days from the date of the refusal or acceptance of dues or assessments by said clerk by serving notice of said appeal on the consul. The local camp shall thereupon proceed to try the question in the same manner and under the same rules as are prescribed in these by-laws for other camp trials.”
“ Sec. 329. Appeals from decision of olerk of camp.— Any member of this society aggrieved by the decision of the clerk of the local camp upon any ruling made in accepting or refusing dues or assessments under the provisions of chapter 43 hereof may appeal to his local camp from such decision. Said appeal shall be perfected by filing with the consul notice of the taking of such appeal within thirty days from the ruling of
By another section of the by-laws an appeal is provided for from the local camp in any such trial to the executive council, which is composed of the seven highest officers in the order, and an appeal is also allowed from the executive council to the head camp, the highest legislative body. Section 332 of the bylaws reads:
“All rulings of the clerk of the local camp, as referred to in section 329, and all decisions of local camps and of the head consul, as provided in sections 330 and 331, shall be final and conclusive unless appeals therefrom are perfected in the manner and within the time prescribed by these laws.”
Section 47 of the by-laws provides:
“Sec. 47. What suspended members may do. — A suspended member is not entitled to any of the benefits of this society, either fraternal or beneficial. . . .”
As before stated, the clerk of the camp to which Doctor Taylor belonged refused, in October, to receive the assessment required by the by-laws to be paid by November 1. There is no allegation in the petition, nor was there any showing made, that Taylor appealed from the ruling of the clerk. The court below instructed the jury that the appeal authorized by the by-laws was permissive only, and did not obligate Taylor to resort thereto. From a verdict and judgment for the amount of the benefit certificate, plaintiff in error has brought the case here for review.
In Reno Lodge v. Grand Lodge, 54 Kan. 73, 37 Pac. 1003, 26 L. R. A. 98, the grand lodge of Odd Fellows, to which Reno lodge was subordinate, levied an assessment of one dollar on each member of the order in Kansas for the purpose of paying an indebtedness on property held in trust for the order, conveyed by one De Boissiere, and fifty cents additional per capita to maintain the same as an orphans’ home. Reno lodge and ninety-one other lodges in the state refused to pay the assessment, and. brought suit against the grand lodge to enjoin it from collecting the same. It was contended by the plaintiffs in that action that the grand lodge had no power to levy the tax; that the real estate conveyed by De Boissiere to trustees was not subject to the control of the grand lodge, and that it had no title thereto. There was provision made in the constitution and by-laws of the Odd Fellows’ order for an appeal from the decision of the state grand lodge to the sovereign grand lodge of the United States concerning all matters relating to the purposes of the order. No appeal was taken. It was held that the suit could not be maintained. The court said:
“The mode in which the orders of the grand lodge of the state are threatened with enforcement is by severing connection with and by the expulsion of the subordinate lodges which refuse to pay the assessments., There are many authorities which hold that, where a mode is pointed out for redressing grievances in an association of this kind by a charter or by-laws, members of the organization are bound to pursue that remedy before resorting to the courts, and that where a right of appeal is given to a tribunal provided by the society, the members must pursue that remedy. (Nibl. Mut. Ben. Soc. §§79, 130; Bac. Ben. Soc. §94; Harrington v. Benevolent Association, 70 Ga. 340; Chamberlain v. Lincoln, 129 Mass. 70; Lafond v. Deems, 81 N. Y. 507 ; Osceola Tribe v. Schmidt, 57 Md. 98 ; Oliver v. Hopkins, 10 N. E. 776.)”
In Supreme Lodge Knights of Pythias of the World v. Wilson, 66 Fed. 785, 787, 14 C. C. A. 264, 266, the court said :
“The right of the defendant in error (the plaintiff below) to recover must rest upon the ground that her husband was at the time of his death a member in good standing of the endowment rank of the order of Knights of Pythias, the defendant below. Before his death he had been suspended from his lodge, and from the time of such suspension his membership in the endowment rank ceased. The defendant in error claims that the proceedings against her husband were irregular and illegal, and did not conform to the laws and regulations of the order. Under the laws and rules of the society, to which he voluntarily subscribed, he had an appeal to the grand lodge, to which he could have resorted. He failed to take any appeal from the decision of suspension, and must be held to have acquiesced in it.”
Again, in Jeane v. Grand Lodge A. O. U. W., 86 Me. 434, 436, 30 Atl. 70, 71, the court said:
“The plaintiff must recover, if at all, upon the . ground that her husband died while a member of the ' defendant corporation in good standing. Before his death he had been expelled from membership. It is said that- the proceedings leading to his expulsion , were irregular, and did not conform to' the rules of the order. Suppose they were ; the laws of the order give an appeal to a supreme tribunal constituted for the very purpose of correcting such errors, and they provide that each member failing to take such appeal ‘ shall be deemed to have thereby agreed to abide by such decision or enforcement of the laws or rules of the order.’ ”
To the same effect see The Supreme Sitting Order of the Iron Hall v. Stein, 120 Ind. 270, 22 N. E. 36; Canfield v. Knights of Maccabees, 87 Mich. 626, 49 N. W. 875, 13 L. R. A. 625, 24 Am. St. Rep. 186; Loeffler v. Modern Woodmen of America, 100 Wis. 79, 75 N. W. 1012 ; Robinson v. Templar Lodge, I. O. O. F., 117 Cal. 370, 59 Am. St. Rep. 193, and note at pp. 203, 204.
The rights' of members in beneficial societies like the Modern Woodmen rest in contract. The point made by counsel for defendant in error is that the refusal of the clerk to receive or collect dues from a member for the reason that he is addicted to the use of intoxicating liquors or opiates is oppressive and unreasonable, and therefore void. If there were no provision in the by-laws for a review of the action of the camp clerk in refusing to receive assessments from a member, we might agree with the contention made. (Supreme Lodge v. Raymond, 57 Kan. 647, 47 Pac. 533, 49 L. R. A. 373.) The provision allowing an appeal is a protection to a member whose rights have been denied by an arbitraiy act of the clerk. There being within the order itself a procedure laid down for the correction of unjust and improper rulings of that officer, the authorities are almost unanimous to the effect that the courts will not interfere until the remedies provided within the order have been exhausted. The court below instructed the jury that the right of appeal was a mere privilege granted to the insured. In this we cannot concur. By section 332 of the by-laws above set out, it is provided that the rulings of the clerk shall be final and conclusive unless appeals be taken therefrom. In The Supreme Council of the Order of Chosen Friends v. Forsinger, 125 Ind. 52, 25 N. E. 129, 9 L. R. A. 501, 21 Am. St. Rep. 196, this question was considered, and decided against the view taken by the trial court. It was there held that the right to apx>eal was not a mere privilege but a duty imposed. It was also decided that, until the claimant had done what his contract required, or shown some valid excuse for not doing so, he could have no standing in court. The case referred to is pertinent and instructive.
We do not think that the requiting of proofs of loss after the death of Taylor constituted a waiver by the order of any of its rights under the' certificate or bylaws.
The judgment of the court below will be reversed, with directions to proceed further in accordance with this opinion.
Johnston, C. J., Cunningham, Greene, Mason, JJ., concurring. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from an order of the lower court sustaining a motion to discharge a garnishment.
From a very inadequate abstract, we glean the following facts. On October 14, 1949, appellant Rachel Andrews was divorced from appellee Arvey Andrews in the district court of Wyandotte County. The decree of divorce among other things provided:
“It is further considered, ordered, adjudged and decreed: That defendant [appellee] be and he is hereby ordered and directed to pay the plaintiff as and for support money for said minor children the sum of $15.00 per week, commencing this date and continuing until the further order of this court.”
Subsequent to the decree, appellee made some weekly payments due thereunder, but on occasions payments were missed. On October 27, 1950, appellant through her attorneys filed an affidavit in garnishment which stated among other things the amount due on a judgment rendered in a decree of divorce on the above date. Apparently this amount referred to unpaid installments due under the divorce decree. Garnishment summons was issued and served on the garnishee and on October 31, 1950, appellant secured an order directing the garnishee to pay all money in its hands due appellee into the office of the clerk of the district court of Wyandotte County. The court found that at the time garnishment was served $159.94 was due appellee from his employer and that appellee was indebted to appellant in excess of $100. Subsequent thereto appellee filed a motion for release of this money so paid. On hearing the motion, the court made certain findings, the pertinent ones being as follows:
1. That the $15.00 weekly child support payments which were past due at the time of issuing the garnishment summons were not reduced to judgment; and
2. That no execution was issued prior to filing the affidavit in garnishment or the issuance of the garnishment summons thereon.
The court ordered the garnishment discharged and the funds in the possession of the district court paid to appellee.
Appellant brings the case here assigning as error the finding of the court that the support money order made in the divorce decree entered on October 14, 1949, was not a final judgment as to each installment when it became due and payable.
We have consistently held that installment payments decreed in a divorce for support and education of the minor children of a marriage become final judgments as of the dates due and may be collected as other judgments. (Haynes v. Haynes, 168 Kan. 219, 212 P. 2d. 312; Sharp v. Sharp, 154 Kan. 175, 117 P. 2d. 561; McKee v. McKee, 154 Kan. 340, 118 P. 2d 544). It follows that the trial court was in error in holding that it was necessary to reduce to judgment the past due installments payable under the divorce decree before initiating garnishment proceedings.
It is appellee’s contention the court properly found that no execution had been issued prior to filing the affidavit in garnishment nor prior to issuance of the garnishment summons, and the motion to dissolve the garnishment was properly sustained. We are in harmony with this contention.
G. S. 1949, 60-940 provides in substance that any creditor shall be entitled to proceed by garnishment in the district court of the proper county against any person, . . . and so forth . . . upon the conditions and in the manner prescribed by statute. It may be noted from a reading of this section of the statute that a proceeding in garnishment is a special and extraordinary remedy granted by statute and can be resorted to only at the times and upon the conditions expressly authorized and imposed by statute. (Hutchinson v. Nelson, 63 Kan. 327, 65 Pac. 670; State Bank of Dodge City v. McKibben, 146 Kan. 341, 344, 70 P. 2d 1; Porter v. Trapp, 160 Kan. 662, 664, 165 P. 2d 591).
G. S. 1949, 60-941 provides the times when and the conditions upon which a proceeding in garnishment may be resorted to:
“Either at the time of the issuing of the summons, or at any time thereafter before final judgment in any action to recover damages founded upon contract, express or implied, or upon judgment or decree, or at any time .after the issuing in any case of an execution against property and before the time when it is returnable, the plaintiff, or some person in his behalf, may file with the clerk an affidavit stating the amount of the plaintiff’s claim. . . .”
This statute is exclusive and conclusive on the right of a party to resort to proceedings in garnishment to enforce and compel payment of his judgment and by its express terms denies the right of vising this extraordinary remedy after judgment except where execution has issued on the judgment and before its return. Inasmuch as in the instant case no execution had been issued on the judgment, appellant’s attempt to resort to garnishment proceedings was of no avail. (Hutchinson v. Nelson, supra; Septer v. Boyles, 147 Kan. 364, 366, 76 P. 2d 771). We find no statutory authority for granting this extraordinary remedy for collection of an outstanding judgment in the district court unless an execution has been issued thereon.
In view of what has been said, it is not necessary to determine other questions raised in this appeal. The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action by the state on relation of the attorney general to enjoin.defendant Govan Mills from maintaining certain levees constructed parallel to the Medicine Lodge River as well as other levees across the valley and overflow plane of said river, and to compel removal and leveling of such levees. Pertinent portions of the allegations of the petition are that Govan Mills owns and occupies a certain portion of section 19, township 31 south, range 13 west, in Barber county, Kansas. The Medicine Lodge River flows over, across and through this real estate in an easterly direction, the river being subject to overflow. Subsequent to 1929, defendant Mills constructed certain levees in section 19 along the south bank of the Medicine Lodge River near the east-west half section line of said section, with the upstream end of said levees veering away from said river and stream and extending southward a distance of about 500 feet at approximately right angles to the channel of said river and parallel to a small stream flowing into the Medicine Lodge River, and with a portion of said levees extending downstream approximately parallel to said river and stream a distance of about 1,300 feet; that in the southeast quarter of said section 19, defendant Govan Mills constructed another levee along the bank of said river and approximately parallel thereto to a distance of about 900 feet; that the upstream end of said levee veers westward at a tangent from the channel of said stream for a distance of approximately 400 feet, said tangent being at approximately a right angle to said stream; that a portion of said levees in said section 19 obstruct the flow of surface waters which are the overflow from said river and stream to the damage of upper landowners. It is further alleged that the Mills levees in the southeast quarter of section 19 obstructed, collected and discharged with increased force and volume the flow of surface water which was the overflow from the river to the damage of the adjacent upper landowner, towit, the C. E. Vanderplas Estate; that the said upper landowner had not constructed or maintained any levees along the bank of said stream and watercourse to prevent such overflow; that the levees constructed by defendant Govan Mills, as aforedescribed, repel and change the flood waters of said river and stream and cause the flow of said waters to be repelled and deflected to the damage of the adjacent upstream landowner and to the damage of the public highway adjacent to sections 19 and 20.
None of the defendants made any application to the chief engineer, division of Water Resources, for approval of any levees, improvements, or other structures on, along or near the bank of the Medicine Lodge River in Barber county, Kansas, for the purpose of repelling surface water which is the overflow of said river and watercourse, either on the premises of said defendants or which overflowed from the premises of adjacent upper landowners. The adjacent upper landowners have not constructed or maintained any levees on their lands. The chief engineer of the state division of water resources requested the attorney general of the state of Kansas to file suit seeking to enjoin the defendant from maintaining or causing to be maintained, the aforementioned levees when he had not obtained approval of said engineer to so construct and maintain the levees. The petition closes with a prayer that defendant Mills be required to remove all levees and to restore the elevation of the land as it existed prior to the construction of such levees.
Defendant Mills filed an answer admitting the construction of the levees but denying that the levees so constructed on his own land divert the flow of surface water to the damage of any adjacent owner; that the levees constructed by him required any approval by the chief engineer; that the state has any authority to enjoin him from constructing or maintaining such levees or cause htm to remove such levees; and specifically denying that the state has any right or authority under Kansas laws to maintain this action.
Plaintiff for reply generally denies all allegations of new matter contained in the answer.
The issues having been framed by the pleadings, the trial court held a brief pretrial conference (G. S. 1949, 60-2705) wherein the parties entered into various stipulations, the following being pertinent to this controversy:
1. That none of the land involved in this case is within any drainage or levee district organized under the laws of the state of Kansas.
2. That the provisions of G. S. 1935, 82a-301 to 305, inclusive, pertaining to obstructions to streams, were not applicable in this action.
3. That the division of water resources, state board of agriculture, has not completed any general plan for drainage or flood control in the Medicine Lodge River area.
Subsequent thereto plaintiff filed a motion for determination of certain questions of law in advance of trial (G. S. 1949, 60-2704, 60-2902). Five questions were submitted to the court, the answers to two of which were stipulated by the parties. The three remaining were decided by the court, and from the court’s decisions thereon, the plaintiff has appealed to this court. The questions will be considered in order.
1. We will first determine whether the state on relation of the attorney general has a legal right to maintain this action. That question was raised by defendant’s answer.
This action is predicated on G. S. 1949, 24-105, pertinent provisions of which are as follows:
“A landowner . . . shall not construct or maintain a . . . levee for the purpose of obstructing . . . the flow of surface water to the damage of the adjacent owner; . . . but nothing herein shall be construed as preventing an owner of land from constructing a dike or levee along the bank of a natural watercourse to repel floodwaters from such natural watercourse . . . Provided further, That where such surface water is the overflow of a watercourse on the premises of an adjacent upper landowner and such upper landowner has not constructed or maintained a levee along the bank of such watercourse to prevent overflow, any landowner may make application to the chief engineer of the division of water resources stating . . . and requesting permission to build a levee on his own land to repel such flood water. The chief engineer [after hearing and finding] . . . may then grant permission for its construction. . . .”
It is alleged in the petition that the levees constructed by defendant repel and change the flood waters on the Medicine Lodge River and stream and cause the flow of said waters to be repelled and changed to the damage of adjacent upstream landowners and to the damage of the public highway adjacent to defendant’s land. It may be conceded that if the levees constructed by defendant were causing damage as alleged to the public highway adjacent to his land, thereby becoming a nuisance to the general public, it was the duty of the attorney general to bring an action in the name of the state to abate such alleged public nuisance. However, the attorney general in the name of the state of Kansas has no authority in the absence of a statute to assume the burden of conducting an action for injunctive relief on behalf of an individual adjacent upper landowner. The allegations of the petition to the effect that the adjacent upper landowner was damaged by defendant’s action in constructing the levees was merely surplusage insofar as the state’s action was concerned and not pertinent to the injunction action, and opened a field of controversy not contemplated by the statute. (State, ex rel., v. Ross, 159 Kan. 199, 152 P. 2d 675; State, ex rel., v. Vandyne, 159 Kan. 378, 155 P. 2d 458.)
2. Plaintiff states that the law question of the applicability of the statement “operating under any of the drainage or levee laws of the state of Kansas” as it appears in G. S. 1949, 24-126, should be determined. Said section insofar as applicable to the question provides as follows:
“From and after the taking effect of this act it shall be unlawful for any person, corporation, drainage or levee district, operating under any of the drainage or levee laws of the state of Kansas, without first obtaining the approval of plans for the same by the chief engineer of the division of water resources, to construct, cause to be constructed, maintain or cause to be main tained, any levee or other such improvement on, along or near any stream of this state which is subject to floods . . .”
Plaintiff contends that the legislature in using the word “person” intended the statute to apply to individuals as well as to drainage and levee districts, and that the comma after the word “district” and preceding the clause “operating under any of the drainage or levee laws of the state of Kansas” in said statute should be deleted to more clearly show the actual legislative intent, and further contends that it is within the province of this court to so determine. Appellee contends that taking this statute as written and adopted, it applies to individuals only if such individuals are operating under any of the drainage or levee laws of the state of Kansas. It was stipulated between the parties that none of the land involved in this action was within any drainage or levee district organized under the laws of Kansas. Moreover, there is no allegation in the petition contending that defendant was operating under any of the drainage laws of Kansas. The statute in controversy has been in force in this state for a number of years and has been before this court on several occasions. In view of our decisions, the legislature has not seen fit to delete the comma after the word “district” and change the meaning of the statute to conform with what appellant contends was its intent in framing the statute. It is the function of this court to interpret statutes and not to rewrite legislation. (59 C. J. 995, 50 Am. Jur., Statutes, §§231, 358.) We do not believe that section 24-126 is ambiguous or uncertain as written and punctuated, but that it has reasonable meaning as written, and applies only to persons, corporations and drainage districts operating under the drainage laws of the state of Kansas. Inasmuch as defendant does not fall within this class, the mentioned statute has no application in this case.
As to the second question, plaintiff seeks to avoid this statement contained in section 24-105, “but nothing herein shall be construed as preventing an owner of land from constructing a dike or levee along the bank of a natural watercourse to repel floodwaters from such natural watercourse . . .,” and contends that such provision does not exempt the defendant from the requirements of section 24-126 as to that portion of his levees which are parallel to the banks of a natural watercourse. As heretofore stated, section 24-126 has no application in this case, inasmuch as defendant was not operating under any of the drainage laws of Kansas. This contention of appellant is in direct conflict with our holding in the case of Jensen v. Buffalo Drainage Dist., 148 Kan. 712, 84 P. 2d 961, where it was held that a landowner not in a regularly organized district and who had not obtained the approval of the chief engineer, has a right to build a dike or levee to repel flood waters from such natural watercourse as prescribed and related in said section 24-105. And again in Horn v. Seeger, 167 Kan. 532, 207 P. 2d 953, we stated in connection with the rights of the landowner not in a drainage or levee district and who had not obtained approval of the chief engineer to build a levee, had the right to construct a levee along and practically parallel with the banks of a natural watercourse. Again in the most recent opinion, Krause v. Strong, 170 Kan. 459, 227 P. 2d 93, we held that under the mentioned statute a landowner may construct a dike or levee on his own land along the bank of a natural watercourse so as to repel flood waters from such natural watercourse. We agree with the trial court when it stated in answer to the question as related that it had been fully determined and answered in the cases of Jensen v. Buffalo Drainage Dist., supra, Horn v. Seeger, supra, and now in Krause v. Strong, supra. In the opinion last mentioned, we said at page 461:
“. . . From a reading of the statute it is obvious that defendant had the right to construct a levee on bis own land along the bank of the creek in question to repel flood water from such natural watercourse. The latter portion of the statute has reference to surface water which is the overflow of a watercourse on the premises of an adjacent upper landowner where such upper landowner has not constructed or maintained a levee along the bank of such watercourse so as to prevent overflowing. It is in such latter instance that the lower landowner must obtain consent of the chief engineer of the division of water resources to build a levee on his own land to repel flood water coming down from above . . .”
3. Plaintiff contends that section 24-126 is in conflict with section 24-105. Inasmuch as this action was brought under section 24-105 and we have held that section 24-126 is not applicable in this case, plaintiff’s third question becomes moot.
It may be stated that the allegations of the petition are much broader in scope than the questions of law presented for review in this appeal. With this in view, we are determining in this case only the questions of law as submitted and are not considering facts which may be disclosed by the evidence on the trial of the issues involved as between the state of Kansas and the defendant with reference to whether the levees as constructed caused damage to the public highway to such an extent as to constitute a public nuisance.
The case is remanded fo the lower court with instructions to proceed with the trial at the instance of the state to determine whether the levees constructed as alleged are causing damage to the public highway so as to constitute a public nuisance. As so modified, the judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The imprisonment of petitioner is based on section 4966, General Statutes oí 1901, the material part of which reads :
“The judge may order any property of the judgment debtor not exempt by law, in the hands either of himself or any other person or corporation, or due to the judgment debtor, to be applied toward the satisfaction of the judgment, and may enforce the same by proceedings for contempt, in case- of refusal or disobedience.”
The principal point, relied on by counsel for petitioner is that when she was attached and brought before the judge to answer ,for contempt in failing to pay the money in her possession to the clerk for the benefit of the judgment" creditor she made a claim to the amount in her hands, and in her verified answer asserted that it belonged to her and not to S. M. Lewis, the judgment debtor.
We think that the question of ownership of the money, raised by petitioner when she appeared to answer in the contempt proceedings, was presented too late. We must presume that the judge on the original hearing would not have ordered Mrs. Lewis to pay over the money had she asserted a claim to it at that time. In Freeman on Executions, volume 3, third edition, section 418, it is said :
“Thus, if he denies the debt, or claims the property, or some interest therein, or some right to retain possession thereof, as against the judgment debtor, he has the right to have any issue which he may present relating to his liability tried in the regular, ordinary way, rather than by a.summary proceeding, and to have the protection of a trial by jury.”
• This language of1 the text, however, is subject to the qualification that the disputed right to retain possession is substantial, and asserted in good faith. (Waldron v. Walker, 18 N. Y. Supp. 292.)
The evidence heard on the petitioner’s examination is not before us. We must presume that; she did not lay any claim to the money in her hands, and may assume, to uphold the ruling and order of the judge, that she admitted her bare possession of it, and that it belonged to the judgment debtor. If an issue had been tendered on that question and determined adversely to her, she had a remedy by appeal. (R. & B. Supp. Proc., 3d ed., 458 ; Bronzan v. Drobaz, 93 Cal. 647, 29 Pac. 254; Vanfl. Coll. Att. 590; Gen. Stat. 1901, §5027.)
. Counsel for petitioner say in their brief: “The judge at chambers had no jurisdiction'to try and de termine the ownership of the property in controversy ■as against a third party claimant who denied that it belonged to the judgment debtor.” If we should agree with them that there was lack of jurisdiction in such case, how can we determine that there was a denial that the money belonged to the judgment debtor? No relief can be afforded the petitioner on habeas corpus unless the proceedings under which she is restrained are absolutely void. (In re Morris, Petitioner, 39 Kan. 28, 18 Pac. 171, 7 Am. St. Rep. 512; Teats v. Bank, 58 id. 721, 51 Pac. 219.) Gross and flagrant irregularities may be committed without divesting the court of jurisdiction. (Brown, Juris., 2d ed., § 105.)
The question involved is reduced to this: If a ■third party having money or property in his possession belonging to the judgment debtor be cited into •court in proceedings supplemental to execution, and upon examination admit the bare custody of the money or property and its ownership by the judgment debtor, has the court jurisdiction to coerce a ■payment or delivery by such custodian to the judgment creditor? We think the statute is plain on the subject and confers authority on the court so to do. A payment by.Margaret Lewis of the money she was ■ordered to pay to the clerk would be a complete defense to an action by S. M. Lewis, the judgment •debtor, against her to recover the amount. (Bostwick et al. v. Bryant, 113 Ind. 448, 16 N. E. 378.)
The point raised that the petitioner was not summoned in the original proceeding cannot avail her here. (Bank v. Security Co., 65 Kan. 642, 70 Pac. 646.)
Minor points are discussed by counsel for petitioner, but they relate to mere irregularities in the proceed ings which did not affect the jurisdiction of the trial court. (The State, ex rel., v. Pierce, 51 Kan. 241, 32 Pac. 924.)
The petitioner will be remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action of replevin brought to recover the possession of certain personal property that had been mortgaged by Charles Whited to S. P.. French to secure an indebtedness of $600. He had also mortgaged the same property to H. F. Pinney as security for a debt of $1000. French held the prior mortgage and he also, held an unsecured debt against Whited. A payment of $200 was made by Whited to French, and the proper application of that payment is the > only question involved in the litigation. The case was submitted to the trial court upon a concise stipulation of facts, and the proceeding brought here is very brief and free from the superfluous matter so frequently found in records. As to the application of payments, it was stipulated:
“Subsequent to the execution of said_ notes and mortgages, the said Whited paid to the said S. P. French the sum of $200, which was applied in part payment of one of the notes secured by the mortgage to the defendant. •
“Some five months after this payment of $200 had been made and applied as aforesaid, French and Whited mutually agreed that this sum of $200 should not be considered as applied to the note where it had been applied when paid, but that they would consider the payment as applied on another note held by French against Whited that was not secured by either of the chattel mortgages above mentioned. ”
The trial court held that the application of payment could be, and was-, changed by the mutual agreement of these parties.
It was competent for Whited and French, at the time the payment was made, to fix the application of it, and nQ one else could interfere or compel a different application from that agreed on by them. Ordinarily, a debtor and creditor can, by mutual agreement, change an application of payment previously made, but they can never do so where such a change would affect or invade the rights of others. The application was in fact made in this case ; there was an express stipulation that it should be applied on the secured note. When that application was made the secured note was to that extent extinguished and the lien of the mortgage securing it was to that extent discharged. From that time French only held priority over the second mortgage to the extent of the secured note not extinguished, which was about $400. If there had been a payment of ,$600, and it had been applied to the payment of the secured debt, the second mortgage would have become the first and only lien upon the property. When the partial payment was made and applied, Pinney’s mortgage was moved up to the place of the discharged lien, and thereafter he had a right to assume that French’s mortgage debt was extinguished to the extent of the sum paid, and to proceed on the theory that his own mortgage had been to that extent substituted for that of French. Whited and French could not revive the extinguished lien without the consent of Pinney any more than they could have given a new and later mortgage priority over that of Pinney’s. (Miller et al. v. Montgomery, 31 Ill. 350 ; Harding v. Wormley, 8 Baxt. [Tenn.] 578 ; Thayer & White, plaintiffs in error, v. Denton, defendant in error, 4 Mich, 192; Bank of North America v. Meredith, 2 Wash. [U. S. C. C.] 47, Fed. Cas. No. 893; Smith et al. v. Wood, 1 N. J. Eq. 74; 2 A. & E. Encyl. of L., 2d ed., 471.)
It follows that the judgment must be modified, and. the cause remanded with instructions to enter judgment in favor of the plaintiff in error, on the matter in controversy.
All the Justices concurring. | [
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Per Curiam:
John Garvin and Joseph Clyne prosecuted the above actions against O. N. Waters, as treasurer of Stafford county, to enjoin the collection of certain taxes which they claimed were illegally assessed against them. Demurrers were sustained to defendant’s answers and judgment for costs rendered thereon for plaintiff in each cause. Thereafter the clerk of the district court certified to the board of county commissioners of Stafford county the cost bill in each case for all costs which had accrued, which were allowed by the board of county commissioners and an order made that the county clerk draw a warrant on the general fund of the county for their payment. It appears that the board of county commissioners allowed said bills and ordered their payment upon the condition that if the cases should be reversed in the supreme court and the costs paid by the plaintiff they should be repaid to the county.
The board of county commissioners of each county has charge of all litigation in which the interests of the county are involved, and in civil actions a county is liable in case of defeat for all costs. If the board of county commissioners had intended to preserve the rights of the county to prosecute proceedings in error to this court, it should not have complied with the judgment of the court by paying the costs in the actions. After having done so there is no question open for dispute between the parties. The judgment of the court below having been complied with, nothing is left to litigate in this court. The conditions under which' the costs were paid, that if the cases should be reversed and the costs collected from plaintiffs that they should be repaid to the county, does not serve the purpose of keeping the causes' pending nor the judgments, the validity of which the board recognized by complying therewith, open.
The proceedings in both cases in this court are dismissed. | [
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The opinion of the court was delivered by
Smith, J. :
The American Engineering and Construction Company contracted with the plaintiff in error railroad company to build a second track for it between Merriam and Olathe, in Johnson county. No bond conforming to the statute was taken by the railroad company from the contracting company for the protection of laborers, mechanics, material-men, and others,' as required by section 5864, General Statutes of 1901. That section reads :
“That whenever any railroad company shall contract with any person for the construction of its road or any part thereof, such railroad company shall take from the person with whom such contract is made a good and sufficient bond, conditioned that such person shall pay all laborers, mechanics and material-men, and persons who supply such contractor with provisions or goods of any kind, all just debts due to such persons, or to any person to whom any part of such work is given, incurred in carrying on such work ; which bond shall be filed by such railroad company in the office of the register of deeds in each county where the work of such contractor shall be. And if any such railroad company shall fail to take such bond, such railroad company shall be liable to the persons herein mentioned to the full extent of all such debts so contracted by such contractor.”
Defendant in error sold corn, oats and bran to the construction company to the amount of $280. This action was brought against the railroad company to recover that amount, founded on the liability imposed by the statute above set out, for a failure to take a bond from the contractor. The plaintiff below had judgment.
Counsel for plaintiff in error contend that as the supplies furnished consisted of corn, oats, and bran, such articles are not comprehended within the words “provisions or goods.” It is argued that corn, oats and bran are feed for horses, and that the term “provisions” can apply to food for mankind only.
We think the definition contended for is too narrow. Doctor Johnson in his dictionary defines oats: “A grain, which in England is generally given to horses, but in Scotland supports the people.” The Century Dictionary in defining the word quotes from Milton :
“Provisions laid in large Por man and beast.”
In the case of Cochran v. Harvey, 88 Ga. 352, 14 S. E. 580, corn on the ear in the shuck is held to come within the term “provisions.”
It is urged that there was no evidence tending to show that the feed was actually consumed in the construction of the railroad or by any person engaged in such work. We have read the testimony bearing on this question, and think, as against a demurrer to the ■evidence, it could reasonably be inferred that the provisions were actually used by the construction company in the prosecution of the work.
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
Hutchison, J.:
This was a foreclosure action in which a personal judgment was rendered and the property was sold to' the plaintiff at sheriff’s sale for less than the full amount of principal, interest, taxes and costs. More than a year after the sheriff’s sale was confirmed the defendants moved the trial court to set aside the deficiency judgment because the same was wrongfully and unlawfully obtained in that no evidence was presented to the trial court that the property was of less value than the full amount of the judgment and because the market value of the property at the time of the sale was greater than the judgment, and therefore the taking of a deficiency judgment was contrary to law. Timely objections were made by the plaintiff to the hearing of such motion on the ground that the court had no jurisdiction to grant the relief sought or to set aside the judgment at such late date. When such objections were overruled the defendants introduced evidence to the effect that the property at the time of the sheriff’s sale was of greater market value than the amount of the judgment. The plaintiff introduced the files in the case, showing personal service on the defendants, their appearance by attorney at the time of trial and the confirmation of sale, the journal entry of both proceedings being approved by the attorney for defendants. The trial court sustained the motion of the defendants and set aside the deficiency judgment, from which ruling the plaintiff appeals.
It is well settled in this state that a judgment becomes final at the end of the term at which it has been rendered. (Moore v. McPherson, 106 Kan. 268, 187 Pac. 884; Schuback v. Hammer, 117 Kan. 615, 232 Pac. 1041; Heston v. Finley, 118 Kan. 717, 236 Pac. 841; J. B. Colt Co. v. Clark, 125 Kan. 722, 266 Pac. 41; and Thornton v. Van Horn, 140 Kan. 568, 37 P. 2d 1015.) The only exceptions to this rule are those which are well within the provisions of certain statutes specifically outlining such exceptions.
Appellees here in support of the ruling of the trial court rely upon the third subdivision of R. S. 60-3007, which provides that the district court-shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made for “irregularity in obtaining a judgment or order,” and the following section provides that such may be done within three years after the making of such'judgment or order.
The motion of the defendants to set aside the deficiency judgment was filed within the three-year period, but the important question involved is whether or not there was an “irregularity in obtaining a judgment or order.” There was no judgment rendered in the case as a deficiency judgment. The only judgment rendered was that usually rendered in a foreclosure action for a definite amount based on personal service of summons, and the deficiency feature arises from the fact that the property sold at the sheriff’s sale for less than the judgment, and that difference is referred to herein as a deficiency judgment. There is no claim or suggestion that the judgment as rendered was in itself irregular, but because the court’s attention was not called at the time of the confirmation of sale to the fact that the sale was made for -less than the judgment, and the court being unaware of that fact and under a misapprehension of the true situation in regard to the leaving of a deficiency, the order of confirmation, thus leaving a deficiency judgment, was an irregularity under the statute, as claimed by the appellees.
Appellees cite chapter 218 of the Laws of 1933, which took effect about four months prior to the confirmation of the sheriff’s sale in this case, and they urge because there was no hearing on the question of the value of the property being sold, the order confirming the sale was irregularly obtained in that the court did not know the property was being sold for less than the judgment rendered and less than the market value of the property mortgaged. A careful reading of chapter 218, or R. S. 1933 Supp. 60-3463a, shows that such a hearing may be had, but is not required. This act is, as it states therein, intended as declaratory of the equity powers existing in the courts under R. S. 60-3463, and that act provides that “the court, if it finds the proceedings regular and in conformity with law and equity, shall confirm the same.”
The journal entry in this case did so find, and it was approved by attorneys for plaintiff and defendants. It is more than probable that the court did not distinctly recall the exact amount of the judgment rendered in the case several weeks earlier, but with the files available and attorneys representing both sides of the case present, the failure to recall or mention the two distinct amounts could not be called an irregularity in obtaining the judgment or order.
Appellees cite Cooper v. Rhea, 82 Kan. 109, 107 Pac. 799, where it was held “a court may vacate a judgment rendered on the pleadings because of a misapprehension as to what allegations they in fact contained.” In the opinion the misapprehension‘was stated as follows:
“The plaintiff made affidavit that at the time the judgment was rendered he understood that the parties and the court had agreed that the answer was to be amended so as to set out a tax deed, and that it was to be treated at the hearing on the demurrer as though such amendment had already been made. He also introduced an affidavit of the former judge of the court, who presided when the judgment was rendered, stating that he had understood that to be the situation and had acted upon that understanding. It therefore was shown that the judgment was rendered on the pleadings while the court and the losing party were under a mistaken impression as to what issues they presented.” (p. 110.)
Under such circumstances it was there held:
“The power of the court to correct such an error, even at a subsequent term, is so essential to the orderly administration of justice that it ought not to be denied unless in virtue of legislation admitting no other reasonable construction. A judgment so rendered does not express the real purpose of the court. The situation it presents is analogous to that arising when the record made does not conform to the action really taken.” (p. 110.)
In the case of Seeds v. Bridge Co., 68 Kan. 522, 75 Pac. 480, it was held:
“If the special findings are such as to require the entry of a judgment thereon, notwithstanding the general verdict, a judgment entered upon such general verdict is irregular and as such may be set aside at a subsequent term of court.” (Syl. ¶ 1.)
In Beeler v. Continental Casualty Co., 125 Kan. 441, 265 Pac. 57, it was held:
“Where the answers of the jury to special questions submitted show that the verdict is too small by the amount of interest that should have been included therein, the court may, at a subsequent term, increase the judgment by including the interest that should have been allowed when the verdict was returned.” (Syl. ¶ 5.)
In Vail v. School District, 86 Kan. 808, 122 Pac. 885, it was held:
“A judgment by default in an action to recover on coupons clipped from a bond of a school district cannot be set aside at a subsequent term without some statutory reason; and mere misapprehension or misunderstanding on the part of the defendant as to whether the action involved outlawed coupons is not a sufficient reason.” (Syl. ff 1.) (See, also, Tobie v. Comm’rs of Brown Co., 20 Kan. 14, and Lewis v. Woodrum, 76 Kan. 384, 92 Pac. 306.)
Chapter 218 of the Laws of 1933, above cited, states that the court “may decline to confirm the sale where the bid is substantially inadequate,” and also that -a sale for the full amount of the judgment, taxes, interest and costs shall be deemed adequate, but it nowhere attempts to indicate that an order confirming a sale for an amount less than the judgment rendered would be improper or irregular, or that the failure to take testimony on the question of the market value would be obtaining an order irregularly.
We think it was error to sustain the motion of defendants to vacate and set aside the deficiency judgment as having been wrongfully, unlawfully or irregularly obtained, and therefore such ruling should be reversed and set aside. It is so ordered. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Suit was brought by Maxine Potter against the city of Coffeyville, alleging that on the 19th day of October, 1934, the city maintained a waterworks system in its proprietary capacity and was receiving profits therefrom, and it was alleged that at a certain place in the city defendant placed a meter in the parkway for the purpose of registering water passing through the same; that the defendant maintained the meter in a certain tile which is located three feet north of the sidewalk and three inches west of the concrete driveway across the parkway. That on the 19th of October, 1934, the flange of the tile was then and for several months prior thereto had been broken and the same was jagged and sharp; that the cement covering did not set firmly on the same and by stepping on the slab anyone would be precipitated into the tile and against the jagged and sharp edges of the same.
Plaintiff further alleged that on the same day Maxine Potter, a junior in the high school, had occasion to pass along the sidewalk and concrete driveway in, front of the property, and stepped upon the concrete lid covering the meter, and that the lid tilted and gave way, causing her to fall and strike the jagged edge of the tile, causing a serious and dangerous wound; that plaintiff was removed to the office of Dr. A. A. Krugg, where several stitches were taken and the wound was dressed, and thereafter plaintiff was confined to her bed for a period of approximately four weeks; that scar tissue formed upon her knee, causing the knee to be stiff, retarding the action of the knee, and causing an unsightly wound. Plaintiff alleged the injury was occasioned by the negligence and carelessness of the officers, agents and employees of the defendant, the city of Coffey-ville, in that they permitted the cement covering for the tile to remain in a dangerous condition, and damages in the sum of $5,000 were asked for the injury.
To this a motion was filed, requiring the plaintiff to state specifically which cartilage in plaintiff’s knee was severed, and if by “severed” the plaintiff meant that the same was cut in two; that plaintiff be required to state what hour of the day of October 19 the alleged accident happened; that she be required to state definitely, and with greater certainty, what occasioned plaintiff to pass along the road at that time. The motion to make more definite and certain was overruled. Then a demurrer was filed to the petition on the ground it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and error is assigned on such ruling. Plaintiff had alleged that the water meter was installed in a tile covered with a cement block, which was so constructed as to fit into a two-inch flange of the tile; that the tile was located three feet from the sidewalk and three inches from the driveway; that on the 19th day- of October, 1934, it was and had been for several months prior thereto broken; and when plaintiff stepped on it it tilted and caused her to fall upon the tile and to be injured by the sharp edges thereof. That she filed her claim with the city government on November 7, 1934, a copy of which is attached to the petition. Defendant contends that because of its motion to make definite the petition was to be interpreted as pleading the admission of contributory negligence. ' It was a ruling on an issue to be made and supported by the evidence, and the order was not open to review until the case was finally decided. The defendant sought to make the plaintiff admit that she was guilty of contributory negligence and therefore that her petition was subject to the demurrer. Defendant seeks in this way to have an unappealable order made appealable.
When the attorney for the city filed a motion to make the petition more definite and certain he was notified of the time the motion would be heard and did not appear. These facts are shown by the journal entry denying the motion, and the motion to make more definite and certain was thus virtually abandoned, and that fact alone was sufficient to preclude the city from getting any subsequent benefit of the motion.
As the question is raised the defendant admitted at the hearing that the cause of action was properly stated in the petition, but he says that if the motion had been properly interpreted the demurrer must have been sustained by the court. By reference to an early case, Stewart v. Balderston, 10 Kan. 131, there is some language used favoring the doctrine. It was a cause of action by 670 persons assigned to plaintiff, and it was not conceded that the facts as stated by plaintiff made a cause of action, but it was said by the court that there was scarcely a fact in the whole petition that was well pleaded. The facts in the present case were so well pleaded as to withstand the demurrer. The defendant sought to make the plaintiff admit that she was guilty of contributory negligence, and then carry over the motion which had been overruled to the demurrer.
There is no room here for the application of the doctrine of the Balderston case. If the facts were so pleaded that the demurrer should be overruled- — -that is, that the grounds stated, standing alone, stated a cause of action — it is useless to add to them facts which defendant assumed might be pleaded and thus change the cause of action and make it subject to a demurrer by alleging that it was conceded to be a case of contributory negligence. In that case, the facts not being well pleaded, the demurrer should have been sustained. But here the petition of plaintiff was conceded to be good, and therefore the facts were sufficient to withstand a demurrer, and hence it was properly overruled.
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The opinion of the court was delivered by
Burch, C. J.:
The action was one to contest a will on the ground of mental incapacity of the testator. The district court set aside the will, and those interested in sustaining it appealed.
The will was that of Thomas McDonald, a bachelor, approximately sixty-six years old. He was the son of Patrick McDonald and wife, and had a half sister, born of the same mother but not the same father. The plaintiffs are children of the half sister, nephews and nieces of the testator, and his sole heirs at law. They were given $5 each by the will. The defendants are the beneficiaries under the will, and the executor. The beneficiaries are strangers to the blood of the testator. They are children of Christopher and Mary E. Redmond, who were close friends of the testator and his father and mother. The will provided that all the testator’s property, real and personal, should be converted into money and the money should be divided equally among these children.
On March 4, 1933, the testator suffered a cerebral hemorrhage, resulting in partial paralysis of one side of his body. The next day he was taken to a hospital, where he remained until April 15, when he died. The will was executed at the hospital on March 23. It is conceded by defendants that while the testator was at the hospital he was at times irrational. It is conceded by plaintiffs that he was •at times rational. Therefore the question was whether the testator possessed sufficient mental capacity to make the will at the time it was executed. That does not mean that no evidence could be considered except such as immediately related to the time the testator had the pencil with which the will was signed, in his hand. No such attitude was assumed at the trial, and the testimony took a wide range.
Defendants’ principal contentions are these:
“First: All the substantial evidence in this case conclusively shows that the testator, Thomas McDonald, had testamentary capacity at the time he executed his will.
“Conversely, there is no substantial or convincing evidence to sustain the finding of the trial court that the testator did not have testamentary capacity at the time he executed his will.”
These propositions serve as a basis for an argument which should have been, and doubtless was, addressed to the trial court. The rules relating to consideration on appeal of credibility of witnesses, of weight of evidence, of conflicts of evidence, and of differing inferences from evidence, are well known, and the court does not propose to review the evidence. Some observations will be made which will serve primarily to develop a question of law relating to admissibility of testimony, and the observations will be extended to include some other evidence relating to the testator’s mental condition.
Beginning with the very time the will was executed, the name of the testator was not written at the end of the will. Instead of that, the testator produced a grandiosity, of which the following is a reproduction:
Usual signatures of the testator were in evidence. None had an extreme height of more than five-eighths of an inch, and what appears at the end of the will does not disclose a single characteristic of the testator’s usual signature, unless it be speed. There was no finger movement in making the signature, but anybody can see the pencil was firmly held and the flourishes were produced by free arm movement, without tremor, and without awkwardness.
All the testator’s ordinary signatures were written “Thos McDonald.” No witness for defendants came forward to say he could find “Thos,” or “Thomas,” or “McDonald” in the lines, or tell where given name left off and surname commenced. A qualified handwriting expert testified for plaintiffs that the abbreviation “Me” is entirely absent from the lines, and that there was no indication of any effort to produce the “Me” portion of the writer’s name. There was no testimony that “Me” could be found in the lines. There was expert testimony admitted over objection, disparaging to the testator’s competency, based in part on the signature itself.
Before discussing admissibility of the expert testimony just referred to, something may be added bearing on the subject of the testator’s mental condition when the will was executed.
The will was signed at about 5:30 in the afternoon of March 23, and was prepared for signature pursuant to conversation between the testator and the scrivener on that day. The will contains no description of the testator’s property, which consisted of numerous items of both real and personal property, and there was no testimony the testator discussed with the scrivener the composition and extent of his estate. The will contains no name of any nephew or niece, and there was no testimony the testator named any disinherited heir. After the will was signed, the scrivener made independent inquiry concerning who the nephews and nieces were. The will does contain the names of the Redmond children. The scrivener did not learn these names from the testator, but resorted to independent inquiry to ascertain them.
On Sunday, March 19, the testator, conversing with a friend, W. E. Phifer, who was visiting him at the hospital, indicated he thought he was down in Mexico, down on the Gulf of Mexico. Similar statements were made when Phifer subsequently visited the testator.
A few months before his stroke the testator had discussed his business affairs with Phifer in considerable detail; discussed the subject of making wills; mentioned some estates disposed of by will to other than relatives, over which trouble had arisen; said it was foolish for a man to leave his property to persons not blood relatives; and said he was going to leave his property to his nephews and nieces. Phifer had no interest in the controversy and testified the .testator was out of his mind on March 19.
On March 20 or March 21 the testator was visited at the hospital by J. M. Kessler, who testified:
“He said he had just got back from Mexico', selling real estate. He said he had been selling some down on the Gulf of Mexico. He says, ‘You can see —.’ He says, ‘See the water out there?’ He says, ‘We are selling lots right out there in that water,’ and he says, ‘They are buying them.’ I was there about half an hour. He jumped from one subject to another.”
Kessler expressed the opinion the testator was “crazy.”
When the testator had his stroke, he was at C. 0. Swenson’s room. Swenson helped him home, put him to bed, stayed all night with him, and finally persuaded him to call a doctor. Swenson saw the testator several times at the hospital. Swenson testified that several days before the will was made the testator’s mental condition was very poor.
On March 22 Phifer visited the testator at the hospital. Phifer testified:
“He had it in his head they were sort of persecuting him at the hospital. He said if somebody didn’t get him out of there they were going to kill him. He asked me if I would get him out of the hospital. I told him I couldn’t. He said, ‘You can get me out if you try,’ and I said, ‘Well, if I could, I would sure get you out, but I believe the only person that can get you out of the hospital will be the doctor.’ ... He said they wasn’t going to let him out, the doctor wouldn’t talk to him about getting out; that he was going to get out of there whether or no. My opinion was that he was in pretty poor mental condition. He apparently did not know or understand what he was doing on that occasion.”
About 7 o’clock or later in the evening of March 23, after the will was signed, Swenson visited the testator. A nurse told Swenson the testator had made his will that day. Swenson testified:
“The nurse asked me to stay with Mr. McDonald. She wanted to go out a little. When she went out, I took the chair and moved up to his bed and talked with him. I says, ‘Well, you made a will today, I understand you made a will today, Mr. McDonald,’ and he said, ‘Yes.’ ‘They told me if I would make a will,’ he said, ‘that I would get better.’ I don’t remember what we talked about then after that, that night. I stayed an hour or so every time I went to see him. ... On the particular evening of the day the will was executed I think that he was very sick and he didn’t know what he was talking about. ... I think his condition seemed worse the night of the day the will was executed than when I saw him on my previous visit.” ,
On the evening of March 24 the testator was visited by Phifer. Phifer testified:
“He didn’t say much of anything on that evening I was up there. He was restless. 1 don’t recall any conversation with him at all. He would talk once in a while, while tossing about in bed. He wouldn’t talk to me because he didn’t know who I was. He never did recognize me after the first week I went up there, not until I would tell him who I was. The nurse or myself, one or the other, would tell him who I was after I went to the room. That is the only way he would recognize who I was. I recall he muttered statements about he was going to take a swim in the Gulf of Mexico. ... In my opinion he had no mental condition at all; in other words, he was all gone, as we would say.”
L. Myers, an old neighbor and friend, visited the testator at the hospital on the evening of March 24. Myers’ brother, whom the testator knew, was with Myers. The testator did not recognize them. Myers testified:
“I asked him how he felt and he said he had a severe pain in the back of his head; I asked who his doctor was and he said Doctor Holmes was his doctor. I says, ‘Tom, I don’t know any doctor in Wichita by the name of Holmes,’ and he said, ‘Dr. Winn Holmes,’ and I says, ‘Tom.,’ I says, ‘He is an attorney,’ and he got mad at me and got up and turned over and turned his back to me and laid there a little while! and he turned over again and says, ‘I have got to get up and get out of here.’ He says, ‘I have got an appointment at the Allis hotel, at four o’clock.’ He says, T am going to Texas on a big land deal.’ From my observation of him in the hospital and my acquaintance with him through the years I am of opinion he was crazy, nothing else, on March 24, 1933.”
Between noon and 1 p. m. the day after the will was made the testator was visited by Kessler, who testified:
“At that time he says, T am living at the Allis hotel.’ He says, ‘You know where the Allis hotel is up there on the corner of First and Market.’ [Wrong location.] He says, ‘It runs a block down this way and a block over that way.’ He said he was going to build one of them when he got out of there— he thought it was a paying proposition. He wanted to know if I knew Doctor Callahan. I told him, ‘Yes.’ ‘Well,’ he says, ‘You can’t trust Doctor Callahan.’ ‘Oh,’ I says, T guess so, Tom. He is a good fellow.’ He says, ‘No. You can’t trust him.’ He says, ‘He had a woman up there about forty-five years old and wanted me to sign a will.’ He says, ‘I guess she is after my property.’ I asked him, ‘Did you sign the will, Tom?’ He said, ‘No, but they told me if I would sign it I would get better.’ ”
The attending physician testified that about the 19th of March the testator began to improve and his condition was pretty good. Purporting to give the testator’s condition from the hospital clinical record, the attending physician testified as follows:
“On March 18 he was restless, had a poor day and a poor night. On March 19 he had a better day. On the 20th he had a fairly good day. On the 21st he had a fair day and better night; respiration was normal. On March 22 at times he was talking and mumbling and on March 23 he had a fairly good day. On March 24 he was quiet at times and mumbling at times and had a good day.”
Another physician, with the same chart before him, testified for plaintiffs that on March 22 the patient was talking at random, was very restless, and had three emptyings of the bladder, soiling the bed. On March 23 the patient had an involuntary passing of urine, and two involuntary stools. Later in the night the patient was very restless and kept jerking at the bedclothes. On March 24 the record showed continued restlessness, talking constantly, and involuntary urination. The chart showed that on March 19 he was given sodium amytal, which is a very strong sedative, probably next to morphine, given hypodermically. On March 23 he was given allonal, also a sedative.
From the foregoing the court might have concluded that if the days on which the testator’s friends visited him were good days and fair days, the terms good and fair needed redefinition. The court was also authorized to conclude that if on the afternoon of March 23 the testator possessed all the elements of competency to make a will, he must have made sudden recovery and then suffered sudden relapse.
It is perfectly manifest something was wrong with the testator when he attempted to sign the will. The formless marks do not make names. Considering the marks as a signature, it is egregiously abnormal. It would be idle to contend, in the face of the dexterity disclosed, that any muscular inhibition caused omission of part of the testator’s name. If he could have signed a will disposing of his entire estate with something resembling his signature, doubtless he would have done so, and without expert testimony the court was warranted in inferring the testator lacked mental capacity to write his name, and when he was through, he did not know what he had done. There was fair basis for nonexpert inference his mental faculties were in a swirl, much like his pencil.
J. C. Shearman, of Wichita, is an examiner of questioned documents who possesses the highest qualifications for work in his field, has had wide experience, and his services are in much demand when genuineness of signature and related subjects are involved. He is not a physician nor an alienist, but he has extended his studies to ascertain relation between abnormality of signature and abnormality of mental state when the signature was made. He testified he had investigated a sufficient number of writings made by persons not mentally sound that he could tell whether the signature was normal or abnormal, and could tell some of the causes of abnormality. Of course there are border-line cases, and he did not profess to know an exact mental state from handwriting alone, but he said the physical evidence on paper is utilizable as a basis for opinion.
On the basis of his study and experience and an examination of the testator’s signatures, Mr. Shearman testified the testator was not in the same mental condition when he signed the will that he was in when the normal signatures were made; the omission of “Me” from the testator’s name indicated mental lapse at that point; and that the freedom and grandeur with which the signature was written indicated exhilaration — -a grand and glorious feeling.' Objections were made to this testimony, which were overruled, and a motion to strike out the testimony was denied. The first question is: Was the testimony admissible at all?
An objection to the testimony was that Mr. Shearman did not qualify as a mental expert. Without discussing the subject of what it takes to be a mental expert, the witness qualified sufficiently respecting the limited subject upon which he expressed his opinion.
A physician who was an expert in nervous and mental diseases testified for plaintiffs the medical profession had not gotten to the point where human ailments could be diagnosed from handwriting. Mr. Shearman made no such pretension. However, the present state of medical science is due to amazing discoveries, the result of pioneer work in new fields, involving the accumulation of data, study and comparison of data, formulation of tentative hypotheses, and verification of the soundness of such hypotheses. Mr. Shearman discovered there were indications, in writings, of normality and abnormality which were frequently available as the basis of opinion. The fact that he made the discovery before the doctors did, does not detract from the result.
Verification of Mr. Shearman’s conclusions in this case is found in part in testimony relating to the testator’s mental condition. The record does not show Mr. Shearman had any information concerning what this testimony would be.
Just before and just after the will was signed the testator was in a state of mental exaltation. He was engaged in conducting big land deals far from home, and on one occasion, looking toward nurses in the room, he told a visiting friend he came back from Calientes, Mexico, and brought two Mexican girls with him. He was no longer living in a room rented from a landlady. He was living in a big hotel extending a city block in each direction. He intended to build a hotel himself. There was money in it. He had highly important business to do, and he had to be up and about it. He had an engagement at four o’clock at the Allis hotel; he was going to Texas on a big land deal. So, when called on to sign his name, this personage of large affairs made the heroic flourishes found at the end of the will. The tension, however, relaxed for a moment, and this Irishman left the “Me” out of his name.
Defendants say the question involved has not been decided, and admission of the testimony was necessarily prejudicial error. The court has not investigated the authorities, except such as are cited in the briefs, because the fact that the question has not heretofore been specifically decided is not sufficient to warrant refusal to admit the testimony. If it were, growth of the common law would be arrested, and it would be frozen where it is.
At the 1935 commencement, the president of Cornell University, addressing the graduates of the medical school, said there was a tendency on the part of the medical profession and on the part of the legal profession to act on the premise, “Whatever was, is right.” A decision by this court that the testimony should have been excluded because there is no established rule of evidence authorizing its admission, would demonstrate soundness of the criticism.
The court concludes the testimony of Mr. Shearman was properly admitted. There is debate in the briefs respecting consideration and weight given the testimony by the trial court. For that reason, admissibility of the testimony has been discussed. What weight should ultimately be given the testimony was a matter for the trial court to determine. Before finally disposing of the case, the court put into the record a statement showing the testimony was not regarded as of particular importance to the decision.
The foregoing includes only a portion of the evidence favorable to plaintiffs and is not a review of the evidence generally. There was much evidence favorable to defendants. The signature to the will was written with the testator’s right hand. There was abundant evidence the testator’s left side was paralyzed and not the right side, as defendants contended. The evidence sustaining this view was utterly incompatible with the opposing evidence, and cast serious doubt on much more evidence for defendants. It was the function of the district court to resolve the conflict. This court may determine whether evidence is sufficiently substantial to create a conflict with substantial evidence, but the weighing of evidence involves exercise of original and not of appellate jurisdiction.
There was much medical expert testimony relating, to mental capacity. The court declined to choose between the irreconcilable views, and found for plaintiffs from other evidence. This court declines to disturb the district court’s finding.
The judgment of the district court is affirmed.
Wedidll, J., not participating. | [
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The opinion of the court was delivered by
Wedell, J.:
This' action originated as one to recover upon a money judgment. It has expanded, however, into one between two intervening petitioners for the possession and control of stock in a corporation and for the management and control of that corporation.
This action includes a money judgment obtained by plaintiff against appellant Morgan in the state of Arkansas for the sum of $28,476, a suit on that judgment in the district court of Osage county, attachment and garnishment proceedings by the- original plaintiff in an attempt to collect her judgment, bankruptcy proceedings on the part of appellant Morgan, suit to determine title to stock in the Osage Ice and Ice Cream Company attached as the property of appellant Morgan, and suit by intervener trustee in bankruptcy of the estate of Morgan to obtain possession and control of the Morgan stock and to secure control and management of the Osage Ice and Ice Cream Company, a corporation, for the benefit of creditors of the estate of Morgan.
The validity of the money judgment against Morgan is not in dispute nor is it denied that he has paid nothing on the judgment. Numerous pleadings were filed by approximately ten parties. A summary of the pleadings would' confuse rather than clarify the issues. Three hearings were had in the course of the entire case. The first occurred on January 25, the second on April 12, and the third on June 28, all in the year 1935.
The first hearing was on the motions of appellants Morgan and Wade to vacate the attachment of the stock. There was outstanding a total of 250 shares of stock in the Osage Ice and Ice Cream Company. The stock had been attached as the property of Morgan, the judgment debtor. Wade is a brother-in-law of Morgan. It was contended by Morgan and Wade that the 246 shares of stock attached were the property of Wade. The evidence in support of that contention consisted of depositions of Morgan and Wade taken at Little Rock, Ark., and oral testimony of five witnesses. The motions of Morgan and Wade were overruled. Morgan has notified a motion for a new trial nor given notice of appeal. Wade did not file motion for new trial or notice of appeal until June 28,1935.
On January 26, 1935, plaintiff filed an amendment to her petition alleging that the corporation was not indebted and had never paid any dividends and that Morgan had withdrawn for his own use all of the surplus of the company amounting to more than $17,000. Plaintiff asked that the company and A. R. Jones, vice-president and local manager, be made defendants. This was done. On the same day, pursuant to plaintiff’s application, an injunction was issued restraining and prohibiting Morgan, Jones and the company from impairing the value of the property of the • company, from removing its physical assets out of the jurisdiction of the court, from mortgaging, pledging or conveying property of the company other than in the ordinary course of business, and from paying over to Morgan or to his order any money then in its hands or thereafter received by it. A bond was executed and approved. The injunction order was served on defendants.
On February 11,1935, Morgan filed a voluntary petition in bankruptcy in Arkansas, the state of his residence. The schedules showed debts' totaling $1,252,200. They showed as his only assets 246 shares of the capital stock of the Osage Ice and Ice Cream Company. The schedules also showed that the certificate evidencing the ownership of these shares of stock was located in a lock box rented by the company at Osage City. Writs of garnishment had been served, including a writ on C. W. Johnson, receiver of the Osage County Bank, of Osage City. The receiver answered. It developed that the certificate in question, covering 246 shares of stock in favor of Morgan, was in the box of the Osage Ice and Ice Cream Company in the Osage County Bank.
On February 14, 1935, Morgan, Jones and the company filed separate motions to dismiss the action and later filed motions to stay proceedings for a period of twelve months on the ground that Morgan had been adjudicated a bankrupt. Both motions were overruled. No error is urged here concerning that ruling.
On April 12, 1935, Ed Blieden, one of the appellees, who had previously been elected and qualified as trustee in bankruptcy of the estate of Morgan, filed in the district court of Osage county, a petition for an order directing him, as trustee, to take charge of and assume control of Morgan’s 246-share interest in the Osage Ice and Ice Cream Company, and, as the successor to Morgan’s ownership of that interest, to run and operate the property for the benefit of the creditors of the estate of Morgan. This petition alleged, in part, that the court had on January 25, 1935, overruled Morgan’s and Wade’s motions to discharge the attachment^ and that they had not filed a motion for a new trial, and had taken no steps to perfect an appeal; that certificate number 61 for 246 shares was the property of Morgan, and that it had been so listed in Morgan’s schedule in bankruptcy. Attached to the petition was a certified copy of an order of the referee in bankruptcy authorizing and directing the trustee to file this petition in the district court of Osage county.
The order of the referee contained findings that Morgan’s schedule listed as his assets 246 shares of the capital stock of the Osage Ice and Ice Cream Company; Morgan was in truth and in fact the owner of those shares of stock on February 11, 1935, the day on which he filed his voluntary petition in bankruptcy and on which day he was adjudicated a bankrupt; Morgan is the owner of the entire capital stock and of all the property of the corporation, the other four shares of the capital stock having been issued to certain parties for no consideration; Morgan had treated the corporation and its property as his own since 1928; Morgan is indebted to the corporation in the sum of $17,000 on open account; Morgan, since he acquired the company in 1928, dominated and controlled it and its affairs and that he was still dominating and controlling, them as if he were the sole owner of the corporation and its property, as in fact he was, on February 11, 1935; the stock constituted a valuable asset of Morgan’s estate, and that Ed Blieden as trustee is entitled to take charge of, operate and control the corporation and its affairs for the benefit of the creditors of the estate■ of Mcrrgan; the attachment of the stock by plaintiff constituted a voidable preference, having been obtained within four months of the filing of the voluntary petition in bankruptcy by Morgan.
Upon these findings by the referee the trustee in bankruptcy was by the referee authorized, empowered and directed forthwith to take and assume control of the property and assets of the Osage Ice and Ice Cream Company, as the property of Morgan and to run and operate the property for the benefit of creditors of Morgan’s estate.
On this second hearing of April 12, 1935, of the intervening petition of the trustee in bankruptcy, oral testimony of four witnesses was introduced. The court granted the relief prayed for by the trustee and entered an order authorizing the trustee to take charge and assume control of the 246-share interest of Morgan in the company and to run and operate the property of the company for the benefit of the creditors of the estate of Morgan.
On May 18, May 25 and June 28, all in 1935, the trustee filed intervening petitions against A. R. Jones, Josh Jones, Loyd Jones, John Birse and D. D. Panich. These petitions alleged in substance that these defendants were the record owners of one share each in the company, but that they did not in fact have any interest in the stock, that they had paid nothing for it and that they were merely the nominees of Morgan, who was the owner of these shares along with 'the other 246 shares, and that Morgan owned all 250 shares, and that he completely dominated and controlled the affairs of the company. • Birse and Panich filed verified answers in which they stated in substance that they were merely the nominees of Morgan and that their certificates for one share each represented no interest in the corporation and were not held by them adversely to Morgan. The other defendants, the three Jones brothers, and the company, filed amended answers denying the allegation of the petition.
Although Wade’s motion on January 25, 1935, to discharge the attachment, had been overruled, he took no action concerning the matter until June 28. His intervening petition alleged in substance the same averments as to the ownership of the 246 shares of stock as were contained in his motion of December 13,1934, to vacate the attachment. The trustee answered denying the material allegations of Wade’s petition. It will appear that now all of the parties claiming ownership of the total 250 shares of stock were properly before the court. Morgan was present and testified, but Wade did not appear. The case was finally submitted on Morgan’s and Wade’s depositions, which had previously been before the court, and on the oral testimony of Panich, Garner, Fausett and Birse, and on the oral testimony of Cummings and the three Jones brothers. The testimony of the last three witnesses was given at the hearing on April 12. The testimony of the Jones brothers as given on April 12 was offered by. the trustee on June 28 in support of his petition. The three Jones brothers were present at the hearing of June 28, but did not take the witness stand. Appellants demurred to the evidence offered by the trustee. The demurrer was overruled. The court found generally in favor of the trustee and found specially that Morgan in fact owned the entire 250 shares. The certificates held by all the parties were ordered delivered to the trustee. The court overruled appellants’ motion to dissolve the injunction of. January-26, 1935. Motions for new trial and notices of appeal were given by appellants.
On July 3, 1935, this court granted a stay of execution on the decree of June 28, upon the filing of a $5,000 bond. This was furnished July 8, and appellants then regained possession of the property of the company, pending this appeal.
Appellants’ specifications of error may be grouped under two main contentions. The first is that the trial court erred in adjudging that Morgan was the owner of 250 shares of stock.
In this connection appellants complain about a hearing on the first intervening petition of the trustee on April 12. The complaint is that they were not given sufficient notice of this hearing. It appears the clerk notified counsel for appellants about one hour before the hearing. Appellants objected to the hearing for that reason. After argument concerning the question of notice, the court said:
“It seems to me that for three reasons the matter would be taken out from the general rule relating to notice in regard to motions, the first one being as far as Morgan himself, he is out of it, as between the trustee and him, he has filed under oath a statement showing this property is his and by operation of law the trustee takes charge of it. In the second place, as far as H. Wade is concerned, while it is true he still has time in which to appeal from the order made in January, adjudging this property does not belong to him, and until that is done, that is a final order to all intents and purposes, but the chief reason is that it is merely a summary matter which the court in Arkansas has directed that he do and for that reason as a motion to strike or make more certain, it would be a different matter. What is it you’re asking for at this time?”
The trial court is not charged with prejudice and this court is convinced there was no intentional advantage taken of the parties by the trial court. Let us assume, however, that the court was entirely right in its analysis of the situation. Counsel is always entitled to reasonable notice of any hearing. There may be matters which counsel regard as vital to the protection of the interest of their clients. They may or they may not be vital. Irrespective of that fact counsel should be advised and given reasonable opportunity to prepare before they are called upon to be heard. It would have been prudent to have given longer notice. There was, however, a subsequent hearing, over two months later, on June 28, which concerned also the remaining four shares of stock. There had been a previous hearing to dissolve the attachment of the 246 shares, at which time depositions and oral evidence concerning ownership was offered at length. No showing is made here that longer notice could possibly have resulted in a different conclusion. Under all the circumstances we are not inclined to remand this case for retrial on the ground of insufficient notice for the one hearing on April 12.
It is next contended that the court erred in admission of testimony on June 28. Between April 12 and June 28, the record owners of the remaining four shares became parties defendant. Issues were also joined on the question of ownership of their shares. Two of the record owners filed answers admitting they were merely nominal owners and not owners in fact. The others joined issue on the-question of their ownership. Oral evidence had been offered at the hearing of April 12 concerning ownership of the four remaining shares. The record evidence of April 12 was introduced on June 28 in support of the trustee’s petition concerning the ownership of these remaining shares. The owners of these shares were in court on June 28. They did not testify in their own behalf.
The precise issue was, who owned these shares of stock. The trustee alleged they did not. Their answers alleged they did. Their testimony of April 12 was an admission against interest. It was competent. (1 R. C. L. 469, 473; Moore v. Brown & Co., 23 Kan. 269; Smith v. Parry, 9 Kan. App. 877, 61 Pac. 966.)
Appellants ask this court to review the weight and preponderance of evidence relative to the ownership of shares of stock. The request is made upon the theory that part of the evidence consisted of the depositions of Morgan and Wade. Appellants rely upon the case of Moore v. Pye, 10 Kan. 246. In that case the motion to set aside a sheriff’s sale was supported by affidavits and the proceedings of the sheriff, all of which were in writing. There was no oral evidence. This court said it could weigh the evidence. In the instant case there was much oral testimony. No special findings were requested by appellants and the trial court found generally in favor of appellees on the question of ownership. There was substantial, competent evidence to sustain the findings and judgment of the trial court. This court does not weigh evidence. That is the province of the trial court.
Appellants’ second contention is the court erred in transferring the management and control of the corporation to the trustee in bankruptcy of Morgan’s .estate.
In support of this contention it is urged there is a distinction between the stock of a corporation and its corporate entity. As an abstract statement, that is correct. Does it follow that a court can under no circumstances penetrate the theory of corporate entity in order to decree justice? In this case all the stock in the corporation in fact belonged to Morgan.
It is well settled that title and right to possession of all property owned and possessed by the bankrupt which prior to the filing of the petition he could have transferred or which might have been levied upon and sold under judicial process against him, vests by operation of law in the trustee as of the date of the person’s adjudication in bankruptcy. (11 U. S. C. A., § 110, p. 277; Wilson v. Atlantic & St. Lawrence R. Co., 2 Fed. 459; In re Brantman, 244 Fed. 101; Isaacs v. Hobbs Tie & T. Co., 282 U. S. 734, 75 L. Ed. 645, 662; In re Granite City Bank, 137 Fed. 818.)
Not only did Morgan own all the stock, he was the sole directing spirit of the corporation. He determined its policies, he was its manager. He was in fact and in reality, for all practical purposes, the corporation. He testified:
“During 1933 and 1934, A. R. Jones and two of his brothers, John Birse and myself constituted the five directors of the corporation. As some justification for drawing on the corporation, I might say that I supplied the management, directed the policies, furnished the engineering and accounting and sales policies, acted in an advisory capacity and handled the general management of the corporation."
In the case of State, ex rel., v. Standard Oil Company, 49 Ohio St. 137, 30 N. E. 279, 15 L. R. A. 145, 34 Am. St. Rep. 541, the court said:
“On a question of this kind, the fact must constantly be kept in view that the metaphysical entity has no thought or will of its own; that every act ascribed to it emanates from and is the act of the individuals personated by it; and that it can no more do an act, or refrain from doing it, contrary to the will of these natural persons than a house could be said to act independently of the will of its owner; and, where an act is ascribed to it, it must be understood to be the act of the persons associated as a corporation, and whether done in their capacity as corporators or as individuals must be determined by the nature and tendency of the acts.” (p. 184.)
In Anderson on Limitations of Corporate Entity, page 80, the author says:
“The modern rule, supported by well-considered cases, fortified by reason, and sustained by logic, is that where an individual owns all, or even practically all of the stock of a corporation and controls its policies and operation, the corporation and such individual are, in proper cases, and sufficient reason appearing therefor, regarded by the courts as one and the same.” (See cases in footnote.)
At page 69 of the same text, the rule is stated thus:
“A corporation will be regarded as a legal entity, separate and distinct from its stockholders, unless such consideration is offered to defeat public convenience, justify wrong, protect fraud, or defend crime, in which case the corporation will be regarded as an association of persons only.”
In the instant case the theory of corporate entity is asserted by Morgan purely as a shield to prevent the collection of debts from his insolvent estate. The defense of legal entity if permitted to prevail here would certainly justify wrong, if not in fact protect fraud. His plan is so plain, so obvious. His thought undoubtedly was that by bankruptcy he would purge himself of personal liability and the creditors could not reach the corporation because it was a sacred entity and untouchable.
Appellants cite the case of Kellogg v. Douglas Co. Bank, 58 Kan. 43, 48 Pac. 587. The principles of law announced there cannot possibly help Morgan here. There the bulk of the debtor’s property was transferred to a corporation which he dominated and controlled. He owned substantially all the stock in the corporation. This court held that the corporation as an entity might be disregarded and the entire matter treated as a sham. It permitted the sale of the corporate property to satisfy the claims of the creditors of the stockholder. Whether a corporation is used to defeat claims of personal creditors by transferring property to the corporation, or whether the theory of corporate entity is asserted for the purpose of defeating creditors, is of no practical consequence. The only distinction is method. The effect on creditors is precisely the same. The result in the instant case is that creditors would get exactly nothing.
In the case of Edward Finch Co. v. Rovie, 12 F. 2d 360, 362, the court had occasion to discuss the subject of corporate entity in connection with a bankrupt’s stock in the corporation. The court said:
“It is quite apparent that these were not such corporations as are depicted-by Chief Justice Marshall in the famous Dartmouth College case as having the characteristics of immortality and individuality. They had neither. The corporations and the bankrupt were one and the same. (Italics inserted.) Their affairs were so intermingled and commingled that no individuality or corporate entity is discernible. It is doubtless true that legal forms were followed in their formation, and that they were technical paper corporations under the laws of Minnesota, but we are satisfied they were nothing more than ‘dummy’ or fictitious corporations, never exercising any corporate functions.
“Courts do not hesitate to look through the shell of .corporate identity to get at the real purpose of the association of individuals. . . . The transfers of property were not intended to be out-and-out transfers with change of ownership, but were part of the arrangements for his control thereof through the instrumentality of the corporations.”
The judgment of the district court was eminently correct, and it is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by the Piper rural high-school district to recover from the receiver of the failed Piper State Bank certain promissory notes or proceeds of such notes, at one time held by the treasurer of the school district and by him returned to the receiver. _ A demurrer was sustained to plaintiff’s evidence, and it appeals.
The bank was a “one-man bank,” operated by E. G. Truskey, as cashier. W. B. Vining was a director of the bank, and was treasurer of the school district. Vining, as treasurer, deposited school-district funds in the bank, in the sum of $3,448.87. On September 2 and September 5, 1930, Vining drew two checks on his account as treasurer, and presented them for payment, Truskey objected to paying the checks, which amounted to $2,573.37, and induced Vining to take notes, assets of the bank, in place of cash. The bank failed on September 6. Subsequently the receiver made demand on Vining that he return the notes, and Vining did so. The school district presented a claim for the amount of its deposit, the claim was allowed, and a receiver’s certificate for the amount was issued. Subsequently the school district received two dividends of fifteen percent and ten percent, respectively, on the amount of its claim. The school district then conceived the notion it could recover notes returned by Vining to the receiver which had not been paid, and money received by the bank in payment of returned notes.
The petition pleaded the transaction between Vining and Truskey, and contained the following allegation:
“That the title to said notes was and is vested in plaintiffs herein, and not in the Piper State Bank or its receiver.”
The answer denied this allegation, alleged affirmatively the district never was at any time the rightful owner of the notes, and alleged the bank was insolvent, and the transaction between Vining and Truskey constituted a preference. The allegation of the answer that the district had no title to the notes was true, as a matter of law, and the allegation of the petition that the district had title to the notes was untrue, as a matter of law.
There was no pretense that the notes were taken to secure the deposit. The checks were charged to Vining’s account as treasurer. The petition alleged the notes were purchased, and Vining testified he traded Truskey two checks for the group of notes, which fairly described what occurred. Vining had no authority as treasurer of the school district to purchase the notes with school-district funds, or to trade school-district funds for notes; the district had no power to authorize Vining to do that; and the district had no power to ratify what Vining. did. It is not necessary to consume space vindicating the legal soundness of these statements.
The receiver’s demand on Vining for return of the notes was based on the ground delivery of the notes to Vining constituted a preference. As indicated, the answer pleaded the bank was insolvent, and delivery of the notes to Vining constituted a preference. The school district argues the demurrer to its evidence was improperly sustained, because there was substantial evidence the bank was not insolvent, and the court could not sustain the demurrer without weighing evidence. The subject is immaterial.
Lack of authority in Vining, and lack of power in the school district were not specifically pleaded in the answer. The general allegations of the petition and answer relating to the school district’s title have been noted. Conceding, but not deciding, they were not sufficient to raise the question of lack of authority of Vining, and lack of power of the school district, the facts were fully developed at the trial, and the court, in disposing of the demurrer, was obliged to condemn this attempted misappropriation of school-district money as illegal.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Thiele, =J.:
Plaintiffs appeal from a judgment rendered on the pleadings and their opening statement.
Omitting formal allegations and rearranging the order of others in an attempt to produce greater clarity, the petition states the defendant corporation is the owner of a certain block in Hutchinson, except six lots in the northeast comer, and excepting a triangular piece in the southwest corner south of Cow creek used as a city park; that Hutchinson has a population of approximately 30,000, and that Cow creek runs diagonally through the city; that Cow creek enters the above block about the center of the west side of the block and runs east and a little south to the east side of the block, and that the defendant operates a water and light plant on said property to supply the inhabitants 'with water and electricity. It is further alleged that as long as Cow creek was maintained in its natural condition without obstructions, it was not dangerous to children of tender age who might wander from home and along its banks, because the stream with its ordinary flow would not have been deep enough to drown a child at its deepest point; that in its natural state through defendant’s property the banks were not perpendicular but sloped back so gradually that children of tender years would not have fallen into the stream, but that the defendant unlawfully and without authority constructed a dam near the east side of the block for the purpose of retaining the water above the dam at a much higher level than the natural flow of the stream and of a depth of from four to six feet, and on the north bank built up the bank and constructed a rock wall to support it, changing the bank from a sloping to an almost perpendicular bank, without a guardrail or sufficient fence to prevent infants of tender years from falling off said bank into the deep water; that changing said stream from a natural flowing stream, which was not dangerous, into an artificial flume, canal or conduit for manufacturing purposes without guarding the same along the north bank to prevent children of tender years from falling therein not only constituted negligence, but willful and wanton negligence. It is further alleged that on August 21, 1933, plaintiffs were the parents of Phyllis Joan Smith, a child of twenty-two months, the family residing in a dwelling house situated north of Cow creek on defendant’s property, and being subtenants of said dwelling; that the mother of the child was engaged in doing the family washing on the back porch of the dwelling and had placed the infant child with a five-year-old brother in a small woven-wire inclosed garden plot at the rear of the residence; that after so placing the children she continued her work and in about twenty minutes the brother told her his sister had pushed open the gate, had gotten out of the inclosure and had strayed away and he did not know where she went; the mother immediately started to find the child, sending an older child to look for it; a few moments thereafter she was informed by an employee of defendant the child was found drowned in Cow creek; that at said time the husband and father was absent from the home. The petition contains the following paragraph:
“These plaintiffs further state that said daughter, Phyllis Joan Smith, came to her death because of the willful and wanton negligence of the defendant in this, to wit: That said defendant had failed to construct and maintain a fence sufficient to prevent children of tender years, and without sufficient intelligence to appreciate danger, who might happen to wander away from home, from falling into Cow creek, and allege the fact to be that there was no fence nor guard maintained by said defendant along the north side of said bank on their premises to prevent the said daughter of plaintiff from falling into said Cow creek at the time she fell therein and was drowned.”
Defendant’s answer will be noticed very briefly. It admitted corporate existence, ownership of property, the drowning of the child in Cow creek in the described block, but denied defendant was guilty of any negligence. It alleged defendant constructed the dam many years ago under oral authority and consent of the city, but denied that the dam increased the depth of the creek so as to make it more dangerous to children than it would have been in its natural state, and denied that defendant constructed an aqueduct, flume, canal or conduit as alleged in the petition, and that it was guilty of any willful or wanton negligence. The answer also contained a general denial, denied that plaintiffs had any legal capacity to maintain the action, and alleged the parents were guilty of negligence in permitting the child to wander away from home without care, which contributed to the death of the child and hence prevented their recovering damages. No reply seems to have been filed.
In his opening statement, plaintiffs’ counsel read the petition and a portion of defendant’s answer and then stated the evidence would show facts which we may summarize as being those pleaded in the petition. In a colloquy with the trial court as to whether plaintiff relied upon the fact the stream was an attractive nuisance or upon the failure of the landlord to keep the premises in a reasonably safe condition for the tenants, plaintiffs’ counsel claimed the right to present both features. The trial court said:
“I think the attractive nuisance is out of it anyway. I think it is the duty of the landlord to keep the premises in a reasonably safe condition for the tenants.”
The defendant moved for judgment because, summarized, the pleadings and the opening statement showed:
1. The situation alleged to exist did not constitute an attractive nuisance.
2. Defendant owed no duty towards plaintiff and the deceased child except not to willfully and wantonly injure the child.
3. Defendant was not guilty of any wanton or willful act, conduct or negligence.
4. Plaintiffs were subtenants, and there is no allegation the defendant ever licensed plaintiffs or any of their family to enter the portion of the premises involved in this action.
5. No allegation or claim defendant ever invited or consented to the deceased child or any other child coming upon the part of defendant’s property involved herein.
6. Plaintiffs were guilty of contributory negligence.
After argument, the court, without specifying the ground or grounds, sustained the motion and dismissed the suit. Plaintiffs appeal, assigning as error the sustaining of the motion, refusal to try the cause and submit .it to the jury and rendering judgment of dismissal.
Appellants argue their appeal under two heads:
1. Under the allegations of negligence and the statement of facts, the liability of the defendant is fixed because plaintiffs and their child were subtenants on the premises and not trespassers or mere licensees.
2. The facts show a duty rested upon defendant to keep the premises occupied by its subtenants and children in a safe condition and this could have been done by fencing the north side of the creek, which was practical under the circumstances.
Appellants argue that a proper consideration of the facts in this case excludes those cases where the injured or deceased person was not rightfully on the premises, although to determine the question whether or not the changes made in the stream and the failure to put up a fence or barrier constitutes actionable negligence, they rely on a quotation from Peters v. Bowman, 115 Cal. 345, 47 Pac. 113, cited in Tavis v. Kansas City, 89 Kan. 547, 553, 132 Pac. 185, and in Harper v. City of Topeka, 92 Kan. 11, 14, 139 Pac. 1018, reciting as follows:
“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.” (p. 356.)
The allegations of the petition and the opening statement are to the effect that before the dam was placed in the stream it had gradually sloping banks and the water was not deep enough to drown a child, but that after the improvement the water was from four to six feet deep and the bank had been made almost perpendicular and was without guardrail or sufficient fence to keep infants of tender years from falling off the bank. It was not alleged or stated how high the bank was, either before or after the work of improvement.
In Somerfield v. Power Co., 93 Kan. 762, 145 Pac. 893, defendant constructed an open canal'in the city of Arkansas City 'about fifty feet wide, with perpendicular banks thirteen feet high, carrying a stream six to eight feet deep, not fenced or guarded. Plaintiffs’ three-year-old son wandered from their home, which was fifty feet from the canal, to the canal, fell in and was drowned. In that case there was no improvement of a natural watercourse, but construction of an artificial one. It does not appear that the child’s parents resided on property owned by the power company. In the opinion it was said the canal had the characteristics of a natural stream and could not be regarded as an attractive nuisance, and that there was no greater necessity to build a fence or put a cover over the canal than there would be to fence or cover a natural stream. The question of placing devices which of themselves would have made the place attractive, an element not in the case before us, is also discussed, and the lack of such devices commented on. The conclusion of the court was there was no liability. The decision has been followed in: Pennington v. Oil & Gas Co., 106 Kan. 569, 189 Pac. 137; Zagar v. Railroad Co., 113 Kan. 240, 214 Pac. 107; and Gorman v. City of Rosedale, 118 Kan. 20, 234 Pac. 53; where somewhat similar situations were involved.
Appellants are precluded from recovery under the above cases, unless there is some reason why they should not apply. They argue, however, that they are 'tenants of the appellee, and that by reason of the relationship, a greater duty existed than as to a trespasser. And in this connection it is argued that it was practicable to have placed a fence along the north bank of the stream. The allegation of the petition, is that the appellee owned most of the block and that plaintiffs and their family as subtenants were occupying a dwelling located on the tract. Neither the petition nor the opening statement shows at what place on Cow creek the child was drowned. While plaintiffs are entitled to a liberal construction of their pleadings, it is difficult to see where there is -room for saying they were tenants of any part of Cow creek or at one point on Cow creek any more than at another point, or for saying they were tenants of all that part of the block owned by the appellee. And this becomes even more obscure when the opening statement is considered, for there it appears the house, not a plot of ground, was rented to a Mr. Ristine, who subrented a portion to a Mr. and Mrs. Reece and another portion to plaintiffs. Were they all tenants of the entire tract? That question must certainly be answered in the negative. And we find it difficult to say from the petition and statement they were tenants of any tract abutting on Cow creek. However, an answer to the precise question before us is not necessary.
As we view this case, there is another reason which of itself precludes recovery. The petition alleges:
“That during the forenoon of sai'd day the mother of said child, Clara Smith, above named, was engaged in doing the family washing on the back porch of said dwelling house; that she placed the daughter*, Phyllis Joan Smith, and her little brother, five years of age, in a small inclosed garden on said premises at the rear of said house; that said garden was inclosed by a woven-wire fence and a gate leading to it; that her said daughter and her older brother were left to play in said garden; that immediately thereafter she returned to her washing and gave no further attention to the children within the garden until she was told. . . .”
The opening statement was:
“Now the evidence will show that on this morning, Mrs. Smith was engaged in doing the family wash out on the back porch; that there was a small garden that was fenced in by a woven-wire fence; as I understand it, the evidence will describe it to you; it wasn’t very large, maybe sixteen or twenty feet square, but they had a little garden in there.
“The evidence will show that this 22-month-old child and the little brother five years old went into that garden and the gate, I think, didn’t come quite— that is, didn’t quite close; that the mother saw them playing there as she worked with the laundry with an older boy, a brother of this child, who was about ten years old; and she pursued her labors there in washing her clothes and didn’t pay any attention, maybe, to these children.”
A somewhat similar situation was involved in Pennington v. Oil & Gas Co., where parents brought an action to recover for death of their son. The family lived close to a pump house, the father being employed to run the plant. A nine-year-old son was permitted to enter, was caught in machinery and killed. Although other matters were involved, it was held plaintiffs were chargeable with the management and control of their children, and the defendant company could not be held responsible for their lack of care.
Suppose the real estate were a farm crossed by a small creek near which were the farm dwelling and buildings. In order to conserve water for stock the owner dams the stream and improves it for that purpose. Must he then fence it so that his tenant’s children who are permitted to .wander around the premises may not fall therein? Or suppose he occupies the house himself and permits a part of it to be occupied by a family,, the head of which works for an adjoining owner. Is he liable to the parents if they permit their child to go to the creek and it drowns?
Regrettable as it is, the allegations of the petition and the opening statement show that the child was put in a place of safety, and had the gate been fastened it could not have gotten out and wandered away to its untimely end. But who is to blame? Shall the defendant company be held liable to the parents under the circumstances?
Under our decisions above noted, we are constrained to hold that there was no attractive nuisance .required to be guarded by the owner of the premises, there is grave doubt that any showing as to tenancy was made, but in any event the parents were guilty of negligence which contributed to the death of their child, and the trial court ruled correctly in sustaining defendant’s motion for judgment on the pleadings and opening statement, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This was an action to recover damages for injuries sustained by the plaintiff, who was struck by an automobile while crossing a street as a pedestrian. The two defendants are father and son. The former is sued as owner of the car and the latter as the driver thereof. The trial court overruled the motion to strike out certain allegations and later overruled the demurrer to the petition, from which rulings the defendants appeal.
The only portion of the petition that is involved in this appeal is that which the defendants moved to strike out, and later the demurrer to the petition had reference only to the insufficiency of this same portion. The allegations in other parts of the petition with reference to the relation between the defendants as principal and agent or master and servant need not be considered'. The motion to strike out applied to the following part of the petition;
“That at the time the said defendant, N. Harold Skourup, struck the plaintiff as hereinbefore set out, the said Chevrolet automobile which the said defendant, N. Harold Skourup, was then and there driving was the property of and belonged to the defendant, N. H. Skourup. That at the time the plaintiff received the injuries and damage complained of, and for a long time prior thereto, the exact length of time the plaintiff is unaSsle to state, the said defendant, N. Harold Skourup, was an incompetent, careless and reckless automobile driver, and that the said defendant, N. H. Skourup, knew, or had reasonable cause to know, that said. defendant, N. Harold Skourup, was an incompetent, careless and reckless automobile driver, and allowed and permitted the said defendant, N. Harold Skourup, to use, drive and operate said automobile belonging to the defendant, N. H. Skourup, along the public streets of said city, and at the time of the injuries and damage to the plaintiff, the said defendant, N. Harold Skourup, was driving said automobile with the permission of the said defendant, N. H. Skourup.”
Appellants cite Halverson v. Blosser, 101 Kan. 683, 168 Pac. 863, where it was held:
“An owner of an automobile is not liable for injuries caused in its operation by others, unless such others were servants or agents of the owner and acting in furtherance of his business.
“Nor is he liable for injuries negligently caused by persons to whom he loaned the automobile to be used for their own purposes, where it was not being used at the time of the injury under his direction or control or in any way connected with his business.” (Syl. Iflf 1,2.)
Another case cited by appellants is Watkins v. Clark, 103 Kan. 629, 176 Pac. 131, where the development of the family use of an automobile was attempted to be connected with business affairs in order to apply the rule of principal and agent, but a demurrer to the evidence was sustained holding that a pleasure trip of a daughter in her father’s automobile with his consent did not make the owner liable. It was also held therein that an automobile was not a dangerous instrumentality.
Appellants also rely strongly upon the following part of the opinion in Snyder v. Ericksen, 109 Kan. 314, 198 Pac. 1080:
“It is fundamental that the owner of an automobile is not required to respond in damages for injuries caused by the negligence of the driver unless the driver was the servant or agent of the owner, and was at the time acting within the line of his duty and in furtherance of the master’s business.” (p. 316.)
It is urged .by appellants that the legislature of this state has limited those incompetent to manage automobiles to two classes, viz., minors under fourteen years of age and intoxicated persons, by R. S. 8-121, and that the doctrine of excluding all others when one is expressed applies so as to exclude all other kinds of incompetent persons in the matter of driving motor vehicles. This statute was originally a penal one, but after ten years of use as such the penalty imposed for its violation was repealed and it has since been “merely a regulation without penal sanction,” as was said of it in Burrell v. Horchem, 117 Kan. 678, 232 Pac. 1042. In that case it was held:
• “The petition considered, and held to state a cause of action for damages resulting from an automobile accident, against the owner of an automobile, for permitting it to be operated by his son, who was under fourteen years of age, contrary to the provisions of K,. S. 8-121.” (Syl. It 1.)
Tice v. Crowder, 119 Kan. 494, 240 Pac. 964, is also cited by appellants to show that the owner was relieved from liability because the evidence failed to show that the driver was acting, in some capacity for the owner and within the scope of the employment.
Appellants further cite the following strong cases, Otoupalik v. Phelps, 73 Colo. 433, and Davis v. Shaw, 142 So. (La. App.) 301, which hold in effect that aside from the relationship of master and servant, “family purpose” or bailment to an infant, lunatic or in toxicated person, or where the thing bailed is in itself a dangerous instrumentality, there is no rule that makes the owner of an automobile liable to a third person for the negligence of the borrower, even if the owner knew or had reason to know the driver to be reckless in his handling of a car. It is conceded that the family purpose doctrine has been rejected in this state, as was stated in the case of Thompson v. Railways Co., 113 Kan. 74, 213 Pac. 633; and in the same case it was also held that an owner of an automobile is not liable for the result of negligent driving of his twenty-year-old son while on a trip which the father did not direct, and of which he had no knowledge.
In the case at bar we have the additional allegations that the driver, the son, was an incompetent, careless and reckless automobile driver, and the father, the owner, knew, or had reasonable cause to know, that he was such, and that he allowed and permitted him to drive and operate the car. While the conclusipns in the Kansas decisions heretofore cited are strong and comprehensive, yet none of those cases' contained the exact proposition here presented.
In the case of Capps v. Carpenter, 129 Kan. 462, 283 Pac. 655, similar allegations are made the material features of the case, instead of the dangerous character of the chattel, which was an air gun in the hands of an eight-year-old child, and it was there held:
“. . .' the court improperly submitted to the jury the nature of the gun as a dangerous agency, the essence of the cause of action being not the nature of the chattel, but whether Joe had such a malignant disposition he would likely shoot some playmate if he had the gun, and his father knew or from known facts should have known of the disposition.” (Syl. IT 1.)
In the closing part of the opinion in this case the facts are likened to the loaning of an automobile to a child known to be lacking in discretion and experience in driving and the parent being held liable because of his own negligence in not taking reasonable precaution against injurious results which he could well foresee. In the Restatement, Torts, § 390, the following is a general statement:
“One who supplies directly or through a third person a chattel for the use of another whom the supplier knows, or from facts known to him should know, to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of bodily harm to himself and others whom the supplier should expect to share in, or be in the vicinity of its use, is subject to liability for bodily harm caused thereby to them.”
The third illustration thereunder is as follows:
“A permits B, his chauffeur, who to his knowledge is in the habit of driving at an excessive speed, to use his car to take B’s family to the seashore. While driving the car for this purpose, B drives at an excessive rate of speed and harms C. A is liable to C.” (p. 1060.)
In 42 C. J. 1078 it is said:
“The owner of a motor vehicle may be held liable for a resulting injury upon the ground of negligence where he entrusts the operation of his vehicle to an inexperienced or incompetent driver with knowledge of such incompetency, some of the cases resting upon the theory that in so doing he converts the vehicle into a dangerous instrumentality. This liability does not rest upon the doctrine of respondeat superior, but nevertheless the injurious conduct of the driver resulting from his incompetency is a necessary factor in the liability of the owner. Hence, the operator need not have been the servant or agent of the owner, and may have been engaged upon his own personal business.”
This same doctrine of liability of the owner where he knows the borrower is an incompetent, reckless or careless driver is stated in 1 R. C. L. Perm. Supp. 673:
“The general rule that an owner of an automobile is not liable for the negligence of one to whom the automobile is loaned has no application in cases where the owner lends the automobile to another, knowing that the latter is an incompetent, reckless, or careless driver, and likely to cause injuries to others in the use of the automobile; in such cases the owner is held liable for injuries caused by the borrower’s negligence on the ground of his personal negligence in entrusting the automobile to a person who he knows is apt to cause injuries to another in its use. . . .
“In such case the liability of the owner would not rest upon ownership or agency, but upon the combined negligence of the owner and driver — negligence of the father in entrusting the machine to an incompetent driver, and negligence of the child in its operation.”
In 2 Blashfield, Cyclopedia of Automobile Law, 1332, it is said:
“While as a general rule, in the absence of statute, an owner of a motor vehicle is not liable for injuries to third persons caused by its negligent use by another, to whom he loans or entrusts it for the latter’s purposes, an exception to this rule exists in cases where the owner loans his machine to one who is so reckless, heedless or incompetent in his operation of the vehicle loaned as to render it, while in his hands, a dangerous instrumentality, this being particularly true where the one to whose charge the car is committed is prohibited from operating it by statute.”
The following is from 4 Berry, Law of Automobiles, 7th ed., 710:
“Aside from the relation of master and servant, the owner of an automobile may be rendered liable for injuries inflicted by its operation by one whom he has permitted to drive the same on the ground that such person, by reason of his want of age or experience, or his physical or mental condition, or his known habit of recklessness, is incompetent to safely operate the machine.” (See, also, 7-8 Huddy, Cyclopedia of Automobile Law, 9th ed., § 118; 36 A. L. R. 1148 and 68 A. L. R. 1013.)
In the annotations above cited the lender is held liable where he knows the borrower is an incompetent, reckless or careless driver, and is held to be negligent in entrusting the automobile to such a person who is apt to cause injury to another in its use. Such holding is there shown to have been supported by the decisions in many states.
We have no hesitancy in concurring in the conclusion reached by the trial court, which is strongly supported by the logical reasoning contained in the foregoing authorities, to the effect that the owner of an automobile, who lends it to one he knows to be an incompetent, careless and reckless driver, or has reasonable cause to know him to be such, is guilty of negligence in permitting such party to use, drive or operate the same along the public streets of a city, and is liable to third parties injured by such driver in the negligent operation of such automobile.
In addition to what has heretofore been said in this opinion about R. S. 8-121 being enacted as a penal statute and now with the removal of the penalty is a mere regulation, it seems that the limitation invoked cannot well apply here where the intention of the legislature both in the enactment of the statute and in the removal of the penalty was perfectly manifest and did not need the aid of such a rule to show the legislative intent.
In 2 Lewis’ Sutherland Statutory Construction, section 491, it is said:
“Exyressio unim est exclusio alterius. — This maxim, like all rules of construction, is applicable under certain conditions to determine the intention of the lawmaker when it is not otherwise manifest. Under these conditions it leads to safe and satisfactory conclusions; but otherwise the expression of one or more things is not a negation or exclusion of other things.” (See, also, 25 R. C. L. 981 and 59 C. J. 984.)
We find no error in the overruling of the motion of- defendants to strike certain allegations from the petition nor in overruling the demurrer to the petition.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action for damages for the death of plaintiff’s wife which resulted when plaintiff’s automobile over turned when it struck an area of the state highway wherein the bituminous-mat type surface had become corrugated and washboardy. This condition is the basis of plaintiff’s claim that the highway was defective. Plaintiff recovered, and the state highway commission appeals, alleging error in the order overruling its demurrer to plaintiff’s evidence and the order overruling its motion for a directed verdict. Defendant filed no motion for a new trial.
The accident occurred the evening of December 11, 1933, on Kansas highway No. 11, some miles south of Eureka. Earlier in the evening plaintiff and his wife had driven south from Eureka over this same highway. It was on their return north to Eureka that misfortune overtook them. Plaintiff was driving a Hudson sedan in good mechanical condition. His lights were on bright. He alleged that upon reaching the defective place in the highway the “automobile violently and abruptly swerved to the right from its natural course upon the highway and turned over and crashed into the ditch on the east side of the highway,” thereby fatally injuring the wife of plaintiff. The defective condition of the highway is pleaded as follows:
“That said unsafe, dangerous and defective condition consisted of many ruts and depressions on the surface of the highway, and corrugated places extending from the east to the west side of the traveled surface of said highway, varying in depth from three to five inches, and covering a distance of approximately twenty-five feet from north to south. That said defect and condition existed on the north slope of a small hill and in such a position upon said highway that it was practically impossible to see and observe the same when coming from the south until the approaching vehicle was within a few feet of the point where said dangerous, defective and unsafe place was located on the highway.”
The jury made the following'special findings:
“1. How wide was the traveled portion of the highway at the place of the accident? A. 17% ft.
“2. Do you find there was a defect in the highway? A. Yes.
“3. If you should answer the last question in the affirmative, then state fully and in detail the nature of the defect. A. Rough and corrugated from 1 to 4 inches deep extending 15 to 25 feet north to south. Corrugations from 1 to 3 feet apart. Impossible to see coming from south more than 50 feet.
“4. If you find that there was a defect then give the name or names of the person or persons if anyone who had five days’ notice of the existence thereof. A. Grady, Wiggins, Stenger.
“5. At the time the plaintiff approached and at the time he drove onto the alleged ruts or corrugations did he exercise the care and caution that would have been exercised by an ordinarily careful and prudent driver under the same or similar circumstances? A. Yes.”
There are two questions in the case. Did defendant have five days’ notice of the condition of the highway? and Was the highway defective within the meaning of R. S. 1933 Supp. 68-419? Contributory negligence of plaintiff is claimed, but the jury found he exercised the care and caution of an ordinarily careful and prudent driver. The evidence sustains the finding. Besides, defendant’s evidence to establish such negligence consists merely in the inference of excessive speed to be drawn from the fact that the car, a heavy one, weighing 4,400 pounds, apparently turned completely over and at a point 75 feet beyond the bad place in the road. It is clear defendant did not establish contributory negligence.
The jury found that Grady, Wiggins, and Stenger, employees of defendant, had the necessary five days’ notice. The question arises on a demurrer to the evidence, and there is an abundance of evidence in the record to sustain this finding. Stenger was defendant’s foreman in Greenwood county, and on November 15, prior to the accident, had made repairs on this highway both north and south of the place in question, and must necessarily have passed it. Wiggins had been in the employment of defendant for a year doing maintenance and construction work. He was listed with defendant as a truck driver. He testified he was acquainted with the place where the accident occurred; that he had traveled over it three times a week from September to December 11; that the condition gradually became more pronounced and that Stenger had ordered out material for the repair of this particular spot, which was delivered December 8, three days prior to this casualty. Grady, division engineer of defendant, testified he had been over this highway a number of times; that he covered these roads on an average of once every two or three weeks. This evidence was sufficient. (Williams v. State Highway Comm., 134 Kan. 810, 8 P. 2d 946.)
Coming now to the condition of the highway which occasioned this lawsuit, the jury found that a defect existed, and that it consisted of corrugations from one to four inches deep, separated from one to three feet, and extending fifteen to twenty-five feet along the highway, and which could not be seen for more than fifty feet by a driver coming from the south. These findings are not challenged, and the evidence supporting them is to be considered as admitted in considering defendant’s demurrer. The evidence was that this particular place in the road had been bad for a long time. As early as July 15 a witness, driving to Eureka in the daytime, struck this corrugated place and her car swerved and she experienced difficulty in righting it. She testified the place got rougher thereafter. Several witnesses testified they had experienced difficulty in keeping control of their cars' at this place. One said his car was “pretty near taken away” from him. Another that his car “took to the ditch.” Harold Smith, who lived in the neighborhood and was familiar with the road, had been over the road a few days prior to the happening here involved. He testified:
“Q. Did you have any trouble at this particular place on the night of December 9? A. Yes, sir.
“Q. What kind of trouble did you have? A. I hit this rough place and broke a spindle bolt and it let the wheel down and threw it back under the car and broke a tie rod, and every time I would hit one of these ditches it jerked the steez-ing wheel, and I never thought about trying to get it stopped. All that was on my mind was to keep it in the road, and we went about forty yards before I stopped and was thrown in the right-hand ditch.”
Plaintiff testified respecting his experience, as follows:
“Q. Tell the jury in your own way just what occurred, Doctor. A. Well, what really happened as we approached this particular spot, it was in bad condition and the car was suddenly jerked to the right and I was thrown into the ditch and my wife was thrown out and clear of the ear, and I was still in the car.
“Q. Prior to the time you went into this place could you see that it was in a defective condition? A. I had no reason to think of it at all. I didn’t see anything to warn me at all, no signs.
“Q. Was it after dark? A. Yes, sir.
“Q. Lights on? A. Yes.
“Q. Bright or dim? A. The bright lights were on.
“Q. Did the lights of your car reflect any dangerous or defective condition in the highway to you? A. Not noticeably; no, sir.
“Q. Can you tell what happened when your car struck this place? A. Well, it just took a sudden lurch to the right and nosed into the ditch, and the next that I knew of, it was on its wheels facing north, the way we were traveling, in the ditch.
' “Q. You didn’t really know you were coming to that place? A. No, I wouldn’t say I had any warning whatever that thez’e was anything dangerous ahead.”
“Q. Did you have any control over the car after it hit that place? A. None whatever. It was in the ditch befoz'e I had a chance to control it.
“Q. It jumped? A. Yes.
“Q. How far did it jump, Doctor? A. About the usual distance a'person travels on the edge of the road, pez-haps the distance between you and myself.”
Defendant argues that as a matter of law the condition as it existed did not amount to a defect, but was merely a common, ordinary condition that should have been expected by users of the highway, and points out that a bituminous-mat surface is only one stage removed from the usual sand and gravel road. We cannot agree. It is true, as has been said by this court, that there is and can be no foot-rule by which to measure conditions and determine with precision the existence or nonexistence of a defect. But considering all the circumstances involved here, we hold the condition was one for which defendant should be made to respond in damages. It was a fair question for the jury. The facts in this case are quite similar to those involved in Williams v. State Highway Comm. There the road was of sand and gravel; there were two holes just over the brow of the hill; the holes were respectively four and five inches deep. The court said:
“Here the result of running into the holes appears to have jerked the car from the control of the driver, followed by the overturning of the car and the fatality mentioned. A condition of a highway which renders it dangerous for the public traveling over it is certainly a defect. The evidence tends so strongly to show that the highway was in a dangerous condition that whether it amounted to a defect under the statute became at least a question for the determination. of the jury.” (p. 813.)
In that case one of the holes was an inch deeper than the depressions were found to be in this case. But, irrespective of slight differences, the results were the same: the wheel was jerked from the driver’s hands, he lost control, the car overturned, and an occupant was killed. In such a situation, to use the expressive statement of Mr. Justice Dawson, in Collins v. State Highway Comm., 138 Kan. 629, 631, 27 P. 2d 216, “it seems useless to debate the point whether the road was defective as a matter of law.”
Plaintiff alleged damages for funeral expenses of $635.50, his car was wrecked and his wife lost her life. The jury’s verdict was for the sum of $1,500, a grossly inadequate amount. Although plaintiff filed a motion for a new trial on the ground of damages alone, he filed no cross appeal and the question is not open to review.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is by the plaintiff in an action by her against the city of Herington to recover damages for injuries sustained while walking on a sidewalk in the city, alleged by her to have been defective, where the jury returned a verdict for the defendant city.
The petition contained the usual allegations as to the defect in the pavement, the negligence of the city in permitting it to so exist and remain, the way the accident occurred and the extent of the injuries sustained. The answer of the city pleaded a general denial and contributory negligence.
In addition to the general verdict for the defendant the jury answered four special questions submitted by the trial court, as follows:
“1. Was the plaintiff at the time she received the injury in question wearing high-heeled pumps? A. Yes.
“2. Was the plaintiff looking over her shoulder to the side or rear, talking to Muriel Knox, at the time she received the injury in question? A. Yes.
“3. If she had been looking in the direction in which she was going and not engaged in conversation with Muriel Knox, could the injury she received have been avoided? A. Yes.
“4. If you answer question 1 in the affirmative, did the wearing of such pumps contribute to the injuries of which plaintiff complains? A. Yes.”
The first assignment of error is that the verdict is not sustained by the evidence, is contrary to law and against the weight of the evidence.
Counsel for appellant in their brief very candidly and fairly recognize the well-established rule that when a verdict has been approved by the trial court an assumption is usually indulged that it is not inherently wrong, and it is usually upheld if it is supported by any substantial evidence, but they assert the belief that the entire record in this case shows the negligence of the defendant and the absence of contributory negligence on the part of the plaintiff.
Two points contained in the answers to the special questions are particularly cited as being entirely without any supporting evidence: first, the effect of the height of the heels on her shoes, and second, that plaintiff was looking over her shoulder when she fell. The evidence of the plaintiff was that “her right foot slipped off of the high part of the slab, catching her heel in the hole, throwing her to the sidewalk.” In cross-examination she was asked to describe the heels on her shoes and she said she wouldn’t say they were very high, they were quite like the ones on the shoes she was then wearing, and that “they weren’t wide, they were narrower.” The effect of such a described heel was for the jury to consider as to its slipping off the edge of a slab and going into a depression.
As to the other point about looking over her shoulder when she fell, she testified she was not doing so but that she was talking to Mrs. Knox at the time she fell and that she “was looking at her like a person would look at anybody, would look at another they had met, as they passed.” But Mrs. Knox said plaintiff was still talking to her as she walked past and that she (Mrs. Knox) had to turn her head a little to answer plaintiff and that she was about ten feet past when she heard plaintiff cry out. Another witness testified he saw plaintiff fall and heard her and Mrs. Knox talking as they passed each other, and they were still talking when they were ten or twelve feet past each other. The jury may have given greater weight to the testimony of these two witnesses and thus found the answer to the second question about plaintiff looking over her shoulder at the time she received the injury.
'■ The next error assigned was in the failure of the trial court to give four instructions requested by the plaintiff, the first of which was given in part, but the complaint is mainly because the court nowhere told the jury what would constitute a dangerous condition as a matter of law. The court did copy the instruction requested as to its being the duty of the city to keep its sidewalks in reasonably safe condition, but did not fix a limit as to the extent of a depression that would become dangerous. We find no error in the court’s not going farther than it did in this case along this line in view of the recent holding of this court in the case of Ford v. City of Kinsley, 141 Kan. 877, 44 P. 2d 255, which opinion was handed down since the filing of briefs in this case.
Three other instructions requested were given in whole or in part by the court, but error is assigned because the court followed it by instructing on the contrary or modified view of the subject, which took away the effect of the instruction requested, and especially did not give the view of the plaintiff as to her right to walk upon a defective sidewalk, as stated in City of Emporia v. Schmidling, 33 Kan. 485, 6 Pac. 893; McCoy v. City of Wichita, 86 Kan. 943, 122 Pac. 894; and Water Co. v. Whiting, 58 Kan. 639, 50 Pac. 877. In the last case it was particularly said in reference to such matter:
“. . . While they must act with reasonable care,, they are not required to keep their eyes upon the pavement continuously, watching for obstructions or pitfalls.” (Syl. U 6.)
In the McCoy case, supra, it was said:
“It is not contributory negligence per se for one to walk upon a sidewalk which he knows is defective. In doing so, however, he must exercise such care as an ordinarily prudent man would exercise under similar circumstances.” (Syl. If 1.)
The court did not give that part requested as quoted from the Whiting case, but did give in its instructions 8, 9, and 10 the duties of the city, the privileges of the plaintiff to travel the streets along the line of the holding in the McCoy case, saying in one of them that “this degree of care and diligence required of the plaintiff must be commensurate with the surrounding circumstances.” In instruction No. 8 the court told the jury:
“Any person traveling upon a street has a right to use any portion thereof not otherwise in use and a right to presume that such street or sidewalk is in a safe condition and to act upon that assumption.”
We think the instructions given fairly included in impartial language the substance of the instructions requested by the plaintiff.
Appellant complains of the giving of an instruction requested by the defendant as to the physical condition of the plaintiff at the time of the injury, and calls attention to the evidence of the plaintiff that such condition did not make it more difficult for her in getting around and that she was exercising and taking walks every day at and before the time of the injury. We think this is not a subject that can be criticised by appellant, because that physical condition was brought out by the plaintiff in her direct examination. For some reason she must have thought the fact of such physical condition was pertinent to the issues involved, and when introduced in evidence by her it was certainly not error for the court to refer to such evidence in the instructions.
The next assignment of error presents a more serious question as to a part of instruction No. 6, which is as follows:
“In order that the plaintiff might recover in this case it must appear to you by a preponderance of the evidence, . . . fifth, that the plaintiff was not guilty of negligence which contributed to the injuries of which she complains.”
Counsel for appellant are eminently fair about the matter in recognizing that this instruction must be considered in connection with all the other instructions relating to the same subject matter, particularly Nos. 4, 9 and 11, to which might also be added Nos. 10, 12 and 13. Counsel for appellee argue that appellant cannot be heard to complain of this matter at this time, because no objection was made to the giving of this instruction during the trial and no request was made for its modification or correction, or for any instruction as to the burden of proof with regard to contributory negligence. The cases cited by the appellee in support of this omission and failure of the appellant are limited since the adoption of the 1909 code to cases where the instructions were insufficient, incomplete or needed modification. (Cobe v. Coughlin, 83 Kan. 522, 112 Pac. 115; and Richardson v. Business Men’s Protective Ass’n, 129 Kan. 700, 284 Pac. 599.)
Instruction No.. 6, as above quoted, does not belong to the class of being insufficient or incomplete, and therefore the appellant is not estopped from complaining of it as error by not having objected to it at the time it was given. If it is erroneous, as appellant contends, then all parties agree it is not to be construed alone, but in connection with all other instructions given on or relating to the same subject.
The first and second instructions given stated the claims of the plaintiff as to the condition of the pavement, the neglect of the city in permitting it to be and remain in that condition, the way and manner in which the injury occurred and the extent of her injury for which she was claiming damages. The third instruction gave the defense of the city as being a denial of all the claims of the plaintiff, and added the statement that whatever injuries the plaintiff suffered were the result of her own negligence contributing thereto. The fourth and fifth instructions defined the terms, burden of proof and preponderance of the evidence. Then followed the instruction above quoted which enumerated five things it would be necessary for the plaintiff to establish in order to recover, the fifth point being the negative of negligence on the part of plaintiff, which she argues was not strictly speaking a duty of the plaintiff and was emphasized by the use of the term “preponderance of the evidence” at the beginning of the instruction.
The language used in instruction No. 4 is particularly significant in that it follows a statement of the claims of the plaintiff and the claims of the defendant, and then limits the definition of burden of proof to “her case,” as follows:
“You are instructed that the burden of proof is upon the plaintiff to make out her case by a preponderance of the evidence.”
In other words, it only defined burden of proof and preponderance of the evidence as applied to “her case,” the details of which had been set out in the first and second instructions, which did not contain or refer to contributory negligence. No instruction was given placing the burden of- proof upon the defendant as to contributory negligence.
Instruction No. 10 is as follows:
“You are instructed that it was the duty of the plaintiff in traveling along the sidewalk of the defendant to exercise ordinary care and diligence to avoid accidents; and this degree of care and diligence required of the plaintiff must be commensurate with the surrounding circumstances, and if such want of care on the part of the plaintiff contributed to her injuries, then she cannot recover.”
In instruction No. 11 the court said:
“. . . it is the duty of a person walking along a sidewalk to see where they are going, and if you find that the plaintiff failed to observe where she was going and that such failure upon her part contributed materially to the injuries of which she complains, then and in that event the plaintiff cannot recover.”
The following is a part of instruction No. 12:
“. . . and if you find that such injuries would not have occurred had she not been negligent, then and in that event the plaintiff cannot recover.”
And the following is the concluding part of instruction No. 13:
“. . . and where such injuries are without fault or negligence of anyone or would not have happened except for the negligence of the injured party, then the injured party cannot recover.”
We have instruction No. 4 defining and limiting the burden of proof to her case, or the claims made by her, and the several other instructions referring to her duty to use reasonable and ordinary care. Reading all these instructions together we do not think the jury could have been led to regard the language of No. 6 as one concerning the burden of proof, even though no specific instruction placed the burden of proof of contributory negligence on the defendant. (Glahn v. Mastin, 115 Kan. 557, 224 Pac. 68.)
The fifth subdivision of instruction No. 6 was simply a condition of recovery by plaintiff. Four' other conditions necessary to her recovery had just been enumerated, and to them was added the fifth, that she was not guilty of negligence which contributed to the injuries of which she complained. This expressed duty was in complete harmony with instructions Nos. 10, 11, 12 and 13, above quoted. It is true the court used in instruction No. 6 the word preponderance, but the instruction in no way treated the question of burden of proof or attempted to shift it from defendant to plaintiff. The facts and circumstances of the accident, disclosed by the testimony, clearly raised the subject of contributory negligence and furnished a basis for a finding along that line. In order to recover she was required to show the five things the court enumerated; the last one was not to be guilty of negligence or fail to exercise ordinary care, which contributed to her injury. She must make at least a prima jade case in such matters, including the fifth subdivision.
In a similar action for damages for injury received this court held the demurrer to the evidence of the plaintiff, which showed contributory negligence, should have been sustained, and of course that was before the defendant had introduced any evidence as to plaintiff’s negligence, but plaintiff’s own evidence showed sufficient contributory negligence to prevent a recovery. (Railway Co. v. Ryan, 69 Kan. 538, 77 Pac. 267.)
This last case was cited with approval in the recent cases of Harris v. Kansas City Public Service Co., 132 Kan. 715, 297 Pac. 718, and Dennis v. Kansas City, K. V. & W. Rly. Co., 133 Kan. 214, 299 Pac. 941. In the last-cited case it was said in the opinion:
“The special findings and the plaintiff’s own testimony convicted him of contributory negligence, and judgment in favor of defendant should have been entered either on demurrer to plaintiff’s evidence or on the special findings, or on both.” (p. 220.)
In Balmer v. Long, 109 Kan. 42, 197 Pac. 1089, it was said in the opinion:
“The assignments of error relate to instructions given and refused. No transcript of the evidence has been prepared, no evidence has been abstracted, and this court has no means of determining the importance of any assignment of error. Besides that, the jury returned special findings which negatived existence of the facts which were necessary to recovery by the plaintiff. None of the instructions complained of could have influenced the jury in making its findings, unless it be the instruction relating to burden of proof. If the evidence were here the court might be able to say the burden of proof was not of much consequence.” (p. 42.)
In the case at bar we have an abstract and counter abstract giving the important evidence, and we also have the findings of fact which negatived the existence of the exercise of ordinary care, and from such findings and the supporting evidence shown in the abstract and counter abstract we are able to say, as in the last-cited case, that the question of the burden of proof was not of much consequence.
The case of Thompson v. Dyson, 120 Kan. 591, 244 Pac. 867, is cited by appellant, where it was held to have been error to have placed the whole burden of proof upon one of the litigants when it should have been on each as to some separate features of the case. The distinction there was much wider than it is here. The suit was upon a contract, and one part of the defense was a counterclaim. Here the matter of contributory negligence is an incident in the plaintiff’s claim because she could not recover if her own failure to use ordinary care contributed to the injury of which she complained.
In 45 C. J. 1182 it is said:
. . where the circumstances established by plaintiff’s own evidence show that he was guilty of negligence or raise a presumption against him in respect of the exercise of due care, the burden is on him to rebut the presumption or establish affirmatively his freedom from contributory negligence, a more accurate statement is that, wherever plaintiff’s own case presents evidence which, if unexplained, would make out prima facie contributory negligence on his part, there must be further evidence exculpating him or he fails to establish a cause of action.”
We have a right to consider the answers to the special questions as far as they are supported by the evidence, unless it is apparent that the jury was misled by the instructions. The answers concern plain matters of fact about some of which there is not even a controversy, and they naturally repel any thought or suspicion of the jury being misled by the instructions, which in themselves were not misleading if they were all read together.
Appellant refers especially to the use of the words “slight unevenness” in instruction No. 11, where the court was describing different kinds of defects in pavements after having told the jury that the city was bound to keep its sidewalks in a reasonably safe and suitable condition of repair for public travel, also where reference is made to the plaintiff’s physical condition and her footwear, and leaving such matters to the jury as to whether under such circumstances any more care in walking the streets would be required than of an ordinary pedestrian with ordinary footwear.
Appellant cites the case of Evans v. City of Hutchinson, 99 Kan. 477, 162 Pac. 342. In that case, although the defect was held to be dangerous, the court distinguished it “from that of other small irregularities that are not easily to be avoided.” This Evans decision has, however, been criticized in the recent City of Kinsley case, swpra, with regard to slight depressions in highways or sidewalks being dangerous. (See, also, Gorges v. State Highway Comm., 135 Kan. 371, 10 P. 2d 834; and Snyder v. State Highway Comm., 139 Kan. 150, 30 P. 2d 102.)
The case of City of Kinsley v. Morse, 40 Kan. 577, 20 Pac. 217, is cited by appellant as against the necessity of more care under some circumstances than others, but while ordinary care is held to be proper, yet the court approved the instruction given which concluded with the following words: “you may consider the knowledge of the plaintiff in relation to the dangerous condition of the walk,” and said in the third syllabus that “what constitutes ordinary care must be determined by the facts surrounding each case.”
So we think the instructions in this regard in the case at bar are not subject to criticism.
We find no error in the submission of the special questions to. the jury, nor in what is claimed as emphasizing certain evidence in the instructions, nor in overruling the motion for a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This was an action to recover damages from the state highway commission on account of injuries sustained by the plaintiff, the proximate cause of which is alleged to have been a defect in state highway No. 7, in Miami county, about a mile north of Hillsdale, and about 100 feet north of a bridge over Cottonwood creek.
The answer was a general denial with ‘a plea of contributory negligence. The case was tried by a jury, which failed to agree upon a verdict, and it was on that account discharged. At the close of plaintiff’s evidence defendant demurred thereto and when the evidence was concluded defendant requested an instructed verdict. Both the demurrer and the request were overruled and this appeal by the defendant is from those rulings.
The petition mentioned defective wing walls to a bridge over Cottonwood creek, near where the injury occurred, but we understand from the brief of plaintiff that reliance is placed on the defects in the highway as the proximate cause of the accident. In the consideration of the ruling on the demurrer to the evidence of the plaintiff, the first question that arises is, whether the existence of a defect in the highway under the statute is a question of fact for a jury or a question of law to be determined by the court. Generally speaking, such a question is one of fact for the jury, but this being purely a statutory liability, the question of whether the alleged defect comes within the purview of the statute is a question of law. (Gorges v. State Highway Comm., 135 Kan. 371, 10 P. 2d 834; Snyder v. State Highway Comm., 139 Kan. 150, 30 P. 2d 102; and Hanna v. State Highway Comm., 141 Kan. 135, 40 P. 2d 472.)
R. S. 1933 Supp. 68-419 provides that—
“Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge or culvert on, or defect in a state highway, not within an incorporated city, may recover such damages from the state of Kansas; . . .”
The plaintiff was returning with her husband, Doctor Douglas, and other members of her family from Kansas City, Mo., to Osawatomie, Kan., their home, on May 22,1933, on highway No. 7, in a - 1930 Chrysler six of the sedan type, known as a royal sedan. They left Kansas City about eleven o’clock at night and the accident happened about midnight. The lights and brakes on the automobile were in good condition. The driver could see clearly with his lights for a distance of 100 to 125 feet with the bright lights, and from 50 to 100 feet with the dimmers. No. 7 highway was paved with concrete and brick from Kansas City to Spring Hill, but from there south through Hillsdale to Paola it was paved with gravel or chat. They had gone to Kansas City the evening of the day before over this same highway. They were traveling on the concrete road between Kansas City and Spring Hill at around forty miles an hour, and slowed down to thirty-five miles an hour on account of the .chat road. They were on the west side of the center of the highway, as close to a ridge of chat on the west side of the road as one could go safely.
The petition describes the defects in the highway as follows:
“About 100 feet north of said bridge the pavement had been suffered to become defective, and contained numerous holes in the surface and traveled way, bearing from slight depressions to holes twelve to twenty-four inches in diameter and five or six inches deep. Furthermore, there were two fairly even rows of holes running parallel with the highway and . . . occupying approximately the center ten feet of the road for a distance of about 100 feet. The holes in said rows were more or less regular in form and position, occurring every two or three feet, and were from four to five inches’ in depth and a foot in diameter, and in addition to said rows of holes, the entire highway for at least 100 feet north of said bridge was spotted with other holes.”
The testimony of Doctor Douglas concerning the defects in the highway is substantially as follows: That at about seventy-five feet or more north of the bridge they hit this rough piece of road and it made the car bounce around the center of the road and hit another car and went into the ditch. The road was washboardy. There were waves in the road and then there were chuckholes in the road, too. The washboards or waves were just continuous, one after the other for a distance of seventy-five feet or more. There were chuckholes along there. A chuckhole is a hole in the road ranging from six to eighteen inches in diameter and anywhere from two to five inches deep. They were numerous — quite a few there. When the car hit the. chuckholes and washboards it began to bounce and the front end flew to the east a distance of twenty to twenty-five feet till it hit the other car. He tried to stop the car but couldn’t; it hit the other car and it locked his wheel and threw them across the road east. This washboardy effect was in the middle of the road and clear over to the west side. All four wheels of his car hit these holes. He lost control of the car temporarily when they hit the chuckholes and it threw the front wheels to the east and the back ones to the west. It was fair weather that night, but had rained previously, rather heavy rain. The road was wet or slick. He could see down the highway fifty to seventy-five feet and maybe 100 feet. The accident occurred north of the bridge. He lost control of the car when he hit the washboardy effect. It jerked him around and he couldn’t get to the brakes. He did not apply the brakes at all. The chuckholes ran clear across the road, which was twenty to twenty-five feet in width. They were all over the road. The first one north of the bridge he estimated was 75 to 100 feet from the bridge. The chuckholes were eight or ten inches across. They were round, but not exactly circular, and from two to four inches deep and some deeper. Some of the sides of the chuckholes were perpendicular and some tapered. Both tracks for the automobiles had these corrugations or washboard effect. The washboard would, be about two to three inches deep from the top to the bottom. The chuckholes were all through the washboard. There were not at that place any level places on the road. They were clear across the road and extended about 100 feet north of the bridge. They were easily seen in the light of the cars after the accident. He did not notice them particularly when they were going to Kansas City. They were on the other side of the road. The east side was' not as bad as the west side. It was daylight and just about sundown when they passed this place the night before going to Kansas City. Doctor Douglas noticed several bad places in the road going to Kansas City the night before. He might have been driving between thirty-five and thirty-eight miles per hour at the time of the accident. The road looked all right as far as he could see by the lights. He never saw the holes in the road before nor until he made the examination after the accident.
The plaintiff testified in substance that they were going forty-five or fifty miles an hour on the road north of Spring Hill and slowed down to thirty or forty miles an hour on the chat road. Going into the place with the washboardy effect it looked all right and they couldn’t tell it was bad until they got into it and kept bouncing and the back wheels slid around and threw the front wheels, and at this time the other car was right on them and the cars hit. It didn’t bounce the occupants out of their seats. There was nothing to obstruct their vision as they came down the highway.
Other witnesses for plaintiff testified about the defects in substance as follows:
Witness Peck: The road was awfully choppy — the whole road that day and particularly at that place in the road. Choppy means just a common condition of graveled roads. They get washboardy, and that was a pretty washboardy place. They were deeper than any other place he noticed on the road. The whole road was bad at that particular time.
Witness J. L. Johnson: 'The highway was washboardy and bad throughout the curve from Hillsdale — in awful bad condition. Right north of the bridge and one other place were the two worst places in the road. The cut-outs were deeper, he thought three or four inches deep and about twelve inches wide. There were plenty of them, just continuous. This road condition was just a common ordinary graveled-road condition. It has- been bad there for quite a while, six months or better, and still bad at the present time— wavy, washboardy. It is a comparatively new road. It was that way two miles or more.
Witness Hays, a highway engineer: The road was chucky and washboardy at that particular place; heavy travel over it. There were heavy rains that week. It was a common practice to throw dirt in washboardy places. This condition depends upon the weather, ■ the moisture and rainfall.
Witness Tabb: The road was muddy and rutty. Just north of the bridge it was rough with ruts made by truck tires; chuckholes; deep and rough places in the track, some of them five or six inches deep and some of them a foot wide. They gave the witness no trouble going through. He slowed down. It was pretty muddy. He could see the rough places with his lights as he drove through. Saw the condition and didn’t go fast. The ruts ran parallel with the road and not crosswise, and the rough places were in the tracks, also wavy places in the tracks — generally bad after rainy weather.
Witness Mabel Hays: The washboardy effect was in the highway near the bridge extending about a mile or a mile and a half.
In Watson v. Parker Township, 113 Kan. 130, 213 Pac. 1051, it was said:
“The trial court’s definition of a defective road is complained of. A defective highway within the meaning of the statute ... is simply a public road which is dangerous to the traveling public.” (p. 135.)
In Collins v. State Highway Comm., 134 Kan. 278, 5 P. 2d 1106, it was said:
“There is no legal foot-rule by which to measure conditions generally and determine with precision whether a condition constitutes a defect. Some conditions may be so patently dangerous that a verdict denying defect would be promptly set aside. Other conditions may be so trifling that a verdict of defect would be promptly set aside.” (p. 283.)
In Williams v. State Highway Comm., 134 Kan. 810, 8 P. 2d 946, it was said:
“A condition of a highway which renders it dangerous for the public traveling over it is certainly a defect.” (p. 813.)
The question of law is, upon the demurrer to the plaintiff’s evidence, Was the highway as above described dangerous to the traveling public? Without any legal foot-rule by which to measure such conditions, it must be compared with general conditions and surrounding circumstances. Chuckholes and corrugations, as described in the above testimony, if existing in a cement or brick road where greater speed in traveling ordinarily prevails, would doubtless be regarded as dangerous to the traveling public, while they might not be so regarded if existing in an ordinary dirt road. Who would venture to say that deep ruts even with chuckholes in them would constitute in a dirt road a statutory defect? Neither would mud holes or chuckholes on the general surface of a dirt road be urged as a defect under the statute. The evidence above set- forth gives the natural tendency of gravel or chat roads to become more or less corrugated in wet weather. Some of the witnesses said choppy meant just a common condition of graveled roads, especially after rainy weather. The road was wavy, washboardy, they said. One witness said they gave him no trouble going through. He slowed down.
The plaintiff and her husband both said they slowed down when they left the concrete road at Spring Hill and entered Upon the gravel or chat road. If the same foot-rule is to be used in measuring a defect on a gravel or chat road as on a concrete road, there would be no reason or purpose in slowing down when entering such a road. If this choppy condition was a common condition of gravel roads, especially' after a 'rain, it would not be a surprise to anyone accustomed to the use of gravel roads. We are told there are corrugated roads in timbered countries over swampy stretches that are perfectly safe if one slows down reasonably, but extremely dangerous if attempted to be crossed at high speed.
All the witnesses for the plaintiff, including the plaintiff herself and her husband, the driver of the car, stress the matter of the washboard or corrugated effect of the road at the place of the accident, and the husband also speaks of the chuckholes and ruts. If such is the common condition of a well-traveled .graveled road in wet weather, although perhaps under some of this evidence somewhat worse than usual along other parts of the same roád and other graveled roads, are such chuckholes, waves and ruts such defects as are within the meaning of the statute?
In the Collins case the fact that the shoulder on one side of the concrete slab of the highway was eighteen inches below the slab and filled with water level with the slab for considerable distance was held to be a defect in the highway because careful drivers frequently find occasion to use the shoulder adjoining the slab.
In the Williams case the defect consisted of two holes in a sand and gravel road near the top of a hill where the driver in descending the hill could not see the holes until he had crossed the top of the hill and was practically upon them. The two holes were near together and about two feet long, ten inches wide and four or five inches deep.
In the Watson case the defect was not in the usually traveled part of the road but in a ditch at the side of the traveled portion thereof, which ditch was not maintained for drainage, but had been dug by an adjacent landowner to make an embankment against flood water, and it was thickly covered with weeds; so much so as to conceal the ditch.
In the case of Collins v. State Highway Comm., 138 Kan. 629, 27 P. 2d 216, the defect was one chuckhole about two or three feet long, eighteen inches or two feet wide and six or eight inches deep, located about two feet from the center of the graveled road, and this chuckhole had been ineffectively repaired a short time before the accident occurred.
In the recent case of Cheney v. State Highway Comm., ante, p. 149, 45 P, 2d 864, the findings of the jury and the evidence were by this court held to show a defect 'in the bituminous-mat type of road becoming .corrugated and washboardy where it was shown and found that the defect consisted of corrugations from one to four inches deep, separated from each other one to three feet and extending fifteen or twenty-five feet along the highway and which could not be seen for more than fifty feet by a driver coming from the south. The reason it could not be seen was shown by the petition to have been because the defect was on the north side or slope of a little hill and it could not be seen by one coming from the south until the hill was crossed.
It will be observed in nearly all of the cases thus far cited herein the defects were obscured from the view of the driver in one way or another, either by standing water or weeds at the side of the road or the chuckholes or washboardy effect being just over the top of a hill.
In the case of Snyder v. State Highway Comm., 139 Kan. 150, 30 P. 2d 102, it was held:
“In an action against the state highway commission on account of injuries caused by an alleged defect in a state highway, it is held that a depression in a paved highway extending across the entire width of the pavement about four feet long and about one inch deep is not a defect within the meaning of R. S. 1931 Supp. 68-419.” (Syl.)
“The highways of the state are intended for travel. The funds of the highway commission are intended for the construction and maintenance of a state highway system. Now, if a condition such as that described here should be held to be & defect all travel across the state would be over detours while the depressions were being repaired and all the money in the state highway fund would be expended in curing such conditions. We do not believe the safety of the traveling public requires any such holding.” (p. 153.)
The same general view, as above expressed, has been taken in cases involving negligence of municipalities in permitting slight defects in pavements to exist and continue. It was said in the recent case of Ford v. City of Kinsley, 141 Kan. 877, 44 P. 2d 255:
“Slight and inconsiderable defects in the sidewalk of a city street do not furnish basis for actionable negligence, even though a pedestrian may trip, fall and injure herself on account of such a trivial defect.” (Syl. ¶ 1.)
And in the same case the rule announced several years ago in the case of Evans v. City of Hutchinson, 99 Kan. 477, 162 Pac. 342, was criticized. (See, also, Doyle v. City of Herington, ante, p. 169, 45 P. 2d 890.)
In Doherty v. State Highway Comm., 140 Kan. 686, 38 P. 2d 95, it was said:
“Gravel, or small stone, on a highway, is so common that to hold the highway commission liable for an injury resulting therefrom, as described in this petition, would be to make the maintenance of state highways prohibitive.” (p. 687.) (See, also, Hanna v. State Highway Comm., 141 Kan. 135, 40 P. 2d 472.)
It seems from the testimony of plaintiff’s witnesses that the corrugated or washboardy effect, chuckholes and ruts described in this case may have been a little worse than just the common, ordinary graveled-road condition in wet weather, but certainly not enough different from what most of them describe as usual and ordinary to make its condition a defect under the meaning of the statute, unless we say that any and every gravel or chat road is defective and dangerous to the traveling public in wet weather, in level places an.d where it can ordinarily be seen. 1
We conclude that the demurrer to the evidence of plaintiff should be sustained. It is so ordered. | [
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The opinion of the court was delivered by
Harvey, J.:
Appellant was found guilty of assault and battery and adjudged to pay a fine of $50 and costs. He has appealed, and contends the court erred in giving an instruction.
The charge was that on a day named, in Scott county, defendant did “unlawfully assault and beat one Paulina C. Tucker by then and there taking hold of her neck and shoulder with his hand and striking her in the stomach.” The testimony on behalf of the prosecution tends to show that on the day in question defendant’s hogs got out, went to the Tucker place, and injured one of Mrs. Tucker’s pigs. She went to the place where appellant was at work and told him about it. He first sent his hired man to get his hogs, then concluded to go himself. When he got to the Tucker place he found his hogs shut up in an inclosed lot. Mrs. Tucker contended one of them had injured her pig, which cost her $4, and told defendant he could not take his hogs away until he paid for .it. There was some argument. Defendant stopped talking and acted as though he was going away. He walked around behind Mrs. Tucker and grabbed her around her shoulders and neck, into her goiter, and hit her in the stomach with his elbow. She grabbed the fence. Defendant jerked the gate in between her limbs and bruised her knees, and went into the lot, got his hogs and drove them away. While there is some conflict in the testimony of the various witnesses, there is an abun dance of evidence to support the verdict of the jury. Indeed, no contention is made to the contrary.
Among others the court gave the jury the following instruction:
"3. You are further instructed that an assault and battery is any unlawful touching of the person 0f another by the aggressor himself, or any substance put in motion by him. The slightest unlawful touching of the person of another is an assault and battery.
“In this case if you find from the evidence, beyond a reasonable doubt, that the defendant did on the 1st day of August, 1931, in Scott county, Kansas, unlawfully touch the person of Paulina C. Tucker, then you will find the defendant guilty as charged in the complaint; but if you do not so find and believe from the evidence beyond a reasonable doubt, then you will find the defendant not guilty.”
On this appeal the sole complaint concerns this instruction. Appellant contends it is erroneous and was prejudicial to him in these respects: (1) That.it was broader in its scope than the specific offense charged; (2) that it is abstract and fails to advise the jury the elements of the offense charged; (3) that it inaccurately defines assault and battery; and (4) that it is confusing and misleading as to the degree of proof required in order for the jury to find “not guilty.”
Obviously the first paragraph in this instruction is a definition of assault and battery. In this it follows the approved language of well-recognized authorities. (See 5 C. J. 715; 2 R: C. L. 525, and authorities there cited.) The second paragraph of the instruction applies the general definition to the charge and facts shown by the evidence in this case. We see nothing inaccurate in this application. Appellant complains that the word “unlawfully,” as there used, was not defined. There is no contention on behalf of defendant that he acted in self-defense, or that he had any lawful right to do the thing which he was charged with doing; neither is there anything lacking in the degree of proof required. In other instructions the jury was told that the defendant was presunied to be innocent, that the burden was on the prosecution to prove his guilt beyond a reasonable doubt, and that term was defined. These instructions were full and complete, and no complaint is made of them. What is said in instruction No. 3, respecting proof beyond a reasonable doubt, should, of course, be read and interpreted with the other instructions given bearing upon that point.
We find no error in the record. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
■ This appeal presents the question of who may maintain an action for damages for wrongful death, and arises out of the following circumstances:
In the year 1927 one E. W. Cudney erected a radio aerial between his house and a windmill which stood at a distance across an alley from his house. In 1928 the defendant company extended its lines along the alley. On July 30, 1931; Cudney started to take down the aerial by loosening the end at his residence so that it fell on the electric power line. He then climbed upon the windmill, where he came in contact with the aerial wire, which had become charged with electricity, and as a result was killed. He left surviving him his wife, Carrie, an adult daughter and three minor sons. On August 7, 1931, Rhoda Cudney was appointed and qualified as administratrix of the estate of E. W. Cudney, and administered the estate, which was finally settled on September 20, 1932, at which time she was discharged. On August 20, 1931, the widow, Carrie Cudney, was declared insane and her adult daughter, Verle, was appointed as her guardian.
On December 20, 1932, an action was instituted by Carrie Cudney, an insane person, by her guardian, Verle Cudney, against the Power and Light Company to recover damages for the alleged wrongful death of E. W. Cudney. We are not concerned with the sufficiency of the allegations charging negligence and refer only to those allegations which pertain to the plaintiff’s right to sue, which are that E. W. Cudney died July 30, 1931, a resident of this state, leaving surviving him his wife, Carrie, his adult daughter, Verle, and three minor sons; that Carrie is a resident of Kansas confined in •a state hospital for the insane, and that Verle Cudney is her guardian; that E. W. Cudney “died intestate leaving no property or debts and no administrator . . . has been appointed on behalf of his estate and that any and all sums recovered herein on account of the death of said E. W. Cudney will properly inure to the sole benefit and use of said plaintiff and her children.”
The defendant answered, admitting the death of E. W. Cudney, but denying that no administrator had been appointed, and alleging that Rhoda Cudney had been appointed as administratrix of his estate; that the estate had been fully administered and final settlement made on September 20,1932; that no appeal had been taken from the order of final settlement which had become final and conclusive; that the plaintiff was without right to maintain the action under the laws of Kansas, particularly R. S. 60-3203 and 60-3204, and that the action was barred by the two-year statute of limitations included in the above-mentioned statutes. Allegations with respect to negligence are not noted. We are not advised when this answer was filed.
Plaintiff replied admitting the appointment and subsequent discharge of the administratrix of the Cudney estate, and alleging that upon petitions filed separately by the guardian of the insane mother and the guardian of the minor children, the probate court had vacated the order of final settlement and reappointed and reinstated the administratrix, and praying that the administratrix be made a party plaintiff. A separate motion to the same effect was likewise filed by the plaintiff. The defendant filed its motions, one asking the court to determine as a matter of law whether plaintiff is a proper party to maintain the action, and whether the claimed action has become barred by the statute of limitations, the other being for judgment on the pleadings. The trial court heard the motions and denied defendant’s motion for judgment on the pleadings and allowed plaintiff’s motion to have the administratrix made a party plaintiff. From these rulings the defendant appeals.
In a number of our decisions reference to the history of actions for wrongful death may be found. (See Railway Co. v. Fajardo, 74 Kan. 314, 86 Pac. 301; White v. Atchison, T. & S. F. Rly. Co., 125 Kan. 537, 265 Pac. 73.)
At common law an action for wrongful death could not be maintained, and it was not until Lord Campbell’s act was enacted in 1846 that such an action could be maintained in England. Without exhausting the subject it may be noted that such a right of action was conferred by the Acts of 1859 (ch. 1). of this state, appearing as chapter 3 of the General Laws of 1862. When the statutes were revised in 1868 a similar right of action was conferred by section 422 of the code of civil procedure (G. S. 1868, ch. 80, sec. 422). In the first of these acts the action had to be brought in the name of the personal representative of the deceased and the recovery was for the benefit of the widow, if there be one, and the next of kin, to be distributed to them in the proportion provided by law for distribution of the personal estate left by a person dying intestate. The action had to be brought in two years, and no limit was placed on the amount of recovery. In the revision of 1868 the wording of the statute was materially changed and a limitation on amount of recovery was added. This particular section has not been changed, now appears as R. S. 60-3203, and reads as follows:'
“When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter for an injuiy for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.”
Under the above statute, it having been held that only the representatives of the deceased could bring the action, and that an administrator could not be appointed unless there was an estate to be administered, and that such a claim is not an asset of decedent’s estate (Perry v. St. Joseph & W. R. Co., 29 Kan. 420; U. P. Rly. Co. v. Dunden, 37 Kan. 1, 14 Pac. 501), the legislature considered extension of remedy and enacted chapter 131 of the Laws of 1889. In the revision of the code of civil procedure in 1909 the language of the last act was changed to make it conformable to the general statement of the code and it now appears as R. S. 60-3204, and reads as follows:
“That in all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in the next preceding section is or has been at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in said section may be brought by the widow, or where there is no widow, by the next of kin of such deceased.”
The purpose of this section was not to create a new cause of action nor to impose a limitation on an existing one, but merely to extend the remedy so that nonresidence of the deceased or non- appointment of a personal representative should not be a bar to recovery. (Railway Co. v. Fajardo, supra.)
Putting aside, for the time being, any reference to the force and effect of the order of the probate court setting aside the final settlement and reappointing the administratrix, appellant contends that an administratrix having been appointed, the estate administered, finally settled and the administratrix discharged, without any action having been brought by her, thereafter there was no proper party plaintiff to bring the action; that the statute specifies the action must be brought by the personal representative and that the widow or next of kin can bring the action only when “no personal representative is or has been appointed,” it being argued that the action is “maintainable only by the person who is, by the terms of the statute, authorized to maintain it.” (City of Eureka v. Merrifield, 53 Kan. 794, syl. ¶ 2, 37 Pac. 113.)
Appellant relies on White v. Atchison, T. & S. F. Rly. Co., 125 Kan. 537, 265 Pac. 73, in which it was said:
“The statute is remedial, and is to be liberally construed. The right to damages, however, is statutory, and conditional, and cannot be enforced except within the prescribed statutory limitations.” (p. 538.)
In that case it was held that where decedent and his wife, who had no children, were injured and died in a single accident, the wife surviving the husband about two hours, the mother of the husband could not, under the statute, maintain the action as next of kin. In discussing the question, it was further said:
“The personal representative of the deceased who, under R. S. 60-3203, is alone authorized to sue, is a statutory agent to collect and disburse the damages. He does not act for himself, or for the estate of the deceased, but for the benefit of the distributees. (Jeffries v. Mercantile and Elevator Co., 103 Kan. 786, 176 Pac. 631.) R. S. 60-3204 was subsequently enacted to preserve the remedy in case no personal representative was appointed, or in case of non-residence of the deceased. (Berry v. K. C., Ft. S. & M. Rld. Co., 52 Kan. 759, 34 Pac. 805; Cox, Adm’r, v. Kansas City, 86 Kan. 298, 120 Pac. 553.) Whoever sues does so in the statutory capacity. If the deceased left a widow and children, and the widow, being qualified to sue, does so, she sues for the benefit of herself and her children. Should the deceased leave no statutory beneficiary, his personal representative has no office to perform.” (p. 539.)
Our attention is also directed to cases where there is necessity of pleading the facts with reference to nonresidence of the deceased within the state, or that no personal representative had been appointed of a resident decedent, in order that a cause of action be stated. (See City of Eureka v. Merrifield, 53 Kan. 794, 37 Pac. 113; Walker v. O’Connell, 59 Kan. 306, 52 Pac. 894, and the discussion in Early v. Burt, 134 Kan. 445, 448, 7 P. 2d 95.)
Appellant’s construction of the statute demands a very literal interpretation of it. It would have the statute mean that the widow could not bring the action if there was or ever had been an administrator for the estate of a resident decedent. The same literal reading of the statute would lead to the conclusion that if the decedent were a nonresident no one but the widow, or, in a proper case, the next of kin, could bring the action. Such a contention was made in Cox, Adm’r, v. Kansas City, 86 Kan. 298, 120 Pac. 553, and in disposing of it this court said:
"The defendant interprets the later section as meaning that where the deceased was a resident of this state, the action must be brought by the administrator, if one has been appointed, but where the deceased was a nonresident, it can only be brought by the widow or next of kin. We do not think this the proper interpretation of the statute. The original section authorized the personal representative of the deceased to sue. The later enactment did not purport to amend the earlier one, but to supplement it. 'Its purpose was to extend, not to restrict, the remedy.’ (Railway Co. v. Fajardo, 74 Kan. 314, 322, 86 Pac. 301.) An action for the death of a nonresident may still be brought by the administrator, in virtue of the original statute;, or it may be brought by the widow or next of kin, in virtue of the supplemental legislation.” (p. 303.)
Notwithstanding it has been held, in an action brought by the widow or next of kin, the petition is demurrable where there is failure to allege that no administrator has been appointed in the case of a resident decedent, or that the decedent was a nonresident, as shown by decisions heretofore cited. In Mott, Adm’x, v. Long, 90 Kan. 110, 132 Pac. 998, where the action was brought by the widow and after two years an administrator was appointed and substituted as party plaintiff, it was held the action was not barred and could be maintained, and in Williams v. Bridge & Iron Co., 111 Kan. 34, 206 Pac. 327, it was held:
“In. an action for damages for wrongful death, brought for the benefit of a person lawfully entitled thereto, the substitution, by amendment, of a new party plaintiff who had a right to sue in that behalf, in lieu of a plaintiff who did not have such right, was properly allowed by the trial court; and such substitution did not change the cause of action; nor did the statute of limitations run against the substituted plaintiff during the pendency of the action as originally begun.” (Syl.)
As has been noted, the purpose of the original act was to create a cause of action. It may be observed that under the statute and under our decisions any recovery inures, not for the benefit of the estate, but to the widow and children and next of kin. It is apparent that when the legislature enacted R. S. 60-3204, it was not amending but was supplementing prior legislation to permit extension of remedy. Shall we now interpret that act so literally that if any administrator was ever appointed, the widow and next of kin may not maintain the action, even though the administrator is discharged long before the action would be barred? Shall we say that the clause “no personal representative is or has been appointed” means that there is not now and never has been a personal representative, or that it means that at the time of the filing of the petition and thereafter there is not and has not been one appointed and so. acting? With reference to statutes in derogation of common law, we are twice admonished: In R. S. 77-109:
“The rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute of this state, but all such statutes shall be liberally construed to promote their object.”
In the code of civil procedure is a similar declaration applicable to the code and directing:
“Its provisions, and all proceedings under it, shall be liberally construed, with a view to promote its object, and assist the parties in obtaining justice.” (R. S. 60-102.)
It being evident that the purpose of the statutes pertaining to death by wrongful act was to create a cause of action, we believe the last enactment, coupled with the first, should not be so construed as to hold that where an administrator is appointed to administer the estate of a resident deceased and does so and is discharged without prosecuting a cause of action for wrongful death for the exclusive benefit of the widow and children, if any, or next of kin, the widow may not, if the bar of the statute has not fallen, maintain such action.
As has been stated in reviewing the pleadings, petitions were filed in the probate court to set aside the order of final settlement and discharge of the administratrix, and for her reinstatement, which were granted by that court. Passing for the moment appellee’s contention that appellant cannot appeal from these orders, we may observe that final settlement was made September 20, 1932, and not until April 18, 1935, was anything further done in the probate court, when the petitions were filed and the prayers thereof granted. No effort was made to have an administrator de bonis non appointed (R. S. 22-730), the effort was to set aside a final settlement on the sole ground the estate was not fully administered because an action for wrongful death had not been brought. Cases heretofore cited hold that any recovery from such an action is not an asset of the estate and that the administrator acts only as a trustee for those benefited, hence any possible recovery could not be an unadministered asset. Copies of the petitions and orders were attached to plaintiff’s reply and the trial court was, and this court is, fully advised as to the grounds on which the administratrix was reappointed. While under Railway Co. v. Bennett, 58 Kan. 499, 49 Pac. 606, it might be held that appellant is not a proper party to complain, it is material here to know whether the present action shall be prosecuted by the widow or the reappointed and reinstated administratrix. Without pursuing the matter further, we conclude that the probate court was without authority, either under the provisions of the statutes with reference to decedent’s estates, or under R. S. 60-3007, relied on by appellees, to set aside the order of final settlement and discharge of the administratrix, and to reappoint and reinstate her.
The order of the probate court reappointing and reinstating the administratrix being erroneous, the order of the district court making her a party plaintiff was error. The cause of action should be prosecuted in the name of the widow for the benefit of herself and the children.
That part of the trial court’s order making the administratrix a party plaintiff is reversed. Its order denying appellant’s motion for judgment on the pleadings is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action on a promissory note and to foreclose a real-estate mortgage given to secure it. It was brought by the assignee of the mortgage, the assignment having been duly recorded. Defendants pleaded payment to the mortgagee, who they alleged was agent of the assignee for the purpose of receiving payment. The defenses were put in issue by a verified reply. Full payment of principal and interest was shown to have been made to the original mortgagee. The real controverted issue was that of agency. The court found “the issues herein, and each of them, in favor of plaintiff and against the defendants,” and rendered judgment accordingly. Defendants have appealed.
We are handicapped in considering any alleged errors occurring during the trial by reason of the fact that a motion for a new trial was not filed within the three days required by statute. (R. S. 60-3003.) The court’s decision was rendered July 24, 1933, and the motion for a new trial was not filed until July 29. We are further handicapped by the fact that appellants have assigned no error of law to be reviewed by this court. At most we have before us the sole question of whether the judgment itself should stand. In this case that naturally depends upon the evidence respecting the issue of agency. On that point there is a controversy in the evidence. On behalf of plaintiff there was positive testimony that no such agency had been established, or existed. On behalf of defendants, facts, circumstances and a course of dealing were shown which would have authorized the court in finding that such agency existed. (Walmer v. Redinger, 116 Kan. 580, 227 Pac. 329.) It was the function of the trial court to weigh this evidence, pass upon the credibility of witnesses, and to reach a conclusion upon the issue. In such a circumstance we examine the evidence only far enough to see whether there was substantial competent evidence to sustain the conclusion reached by the trial court. It is not seriously contended by appellants here that such evidence did not exist, and of course the positive testimony on behalf of plaintiff, above referred to, if considered alone, is sufficient to sustain the judgment. The appeal, therefore, presents no question of law for our determination, and the judgment of the court below must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by the receiver of the failed Erie State Bank, to recover assets of the Allen State Bank in possession of defendant Craig as liquidating agent of the Allen State Bank. A demurrer to the petition was overruled, and Craig appeals.
In October, 1931, there were two state banks in Erie, in Allen county, the Allen State Bank and the Bank of Erie. Perhaps neither bank was in first-class condition, one bank was sufficient to serve the locality, and the two banks agreed to consolidate. To accomplish consolidation, a new bank, the Erie State Bank, was organized to succeed the others. The consolidation took place, pursuant to the following statute:
“Any bank or trust company authorized to do business in the state of Kansas is hereby authorized and empowered to consolidate with any other bank or trust company authorized to do business in the state: Provided, That both such banks or trust companies so consolidating shall have their banking houses in the same county in the state of Kansas. Such consolidation shall be upon such terms as may lawfully be agreed upon by the two banks or trust companies and with the consent of the bank commissioner.
“In case of such consolidation, the consolidated bank and/or trust company shall become, without deed or transfer of any kind, the owner of and entitled to all rights, franchises and interests, which shall be referred to in such agreement, of every bank and/or trust company which shall be subject to the laws of the state of Kansas, and which shall so consolidate, including every species of property and everything of value of every kind and description except real estate; and such consolidated corporation shall, without further appointment, act as trustee, executor, administrator or in any other fiduciary capacity in which any such bank or trust company subject to the laws of this state was acting at the time of such consolidation.” (R. S. 1933 Supp. 9-101d and 9-101e.)
As indicated, the terms of consolidation were settled by agreement. While the petition does not so allege, it will be assumed the bank commissioner consented.
The first step in the consolidation consisted of an agreement between the Bank of Erie and the Allen State Bank. The agreement provided for organization of the new bank. The stockholders of the contracting banks were to become stockholders of the new- bank on the basis of one share of new stock for two shares of existing stock, and the directors of the new bank were to be chosen from the boards of directors of the contracting banks. The new bank was to take over selected assets of the contracting banks. The con- trading banks were to go out of business for the purpose of transacting banking business, but were to retain their charters for the purpose of handling assets not taken over by the new bank. Stockholders of the contracting banks approved the consolidation; a charter for the new bank was procured; shares were issued; and a board of directors was chosen in accordance with the contract. W. E. Craig became a director and cashier of the new bank.
The litigation grows out of consolidation of the Allen State Bank with the new bank, the Bank of Erie is not concerned, and for convenience, the Allen State Bank will be referred to as the old bank, and the Erie State Bank will be referred to as the new bank.
Consolidation of the old bank and the new bank was effected pursuant to separate agreement between them, in the following manner: The old bank made a detailed statement of its resources and liabilities as of December 19, 1931, which was the basis of the consolidation. The new bank assumed and agreed to discharge liability of the old bank to its creditors, as per list showing general deposits and certificates of deposit. No other obligations were assumed, and it was expressly agreed liability to stockholders of the old bank was not assumed. The new bank took over itemized assets of the old bank, including certain bills receivable, or loans and discounts. The new bank did not take over certain other itemized assets, designated as rejected assets. Rejected assets were to remain in the hands of the liquidating agent of the old bank. The consolidation agreement provided that rejected assets were pledged as collateral security toward collectibility of accepted assets, for the period of eighteen months from date of the agreement, December 19, 1931. During the same period the new bank had a right to substitute accepted assets for like amounts of rejected assets.
On June 3, 1933, sixteen days before the eighteen-month period of pledge expired, the new bank failed. W. E. Craig was the liquidating agent of the old bank. On May 11, 1934, the receiver made demand on Craig for assets rejected at the time of consolidation, and held as collateral security, and for any proceeds of such assets derived from collection or sale.
The petition pleaded the foregoing facts. One theory of the petition was, all assets of the old bank became property of the new bank, because the old bank was extinguished by consolidation. The theory is quite incompatible with the terms of the consolidation agreement. The agreement was authorized by the statute, and was approved by the bank commissioner. Although the old bank went out of existence for purpose of doing a banking business, it still had affairs to be wound up, and retained its charter for that purpose. Logical deduction from philosophical conception of consolidation could not operate to compel the new bank to be owner of assets which it did not take over, and which it is likely the bank commissioner would not permit the new bank to take over.
The new bank might make two claims upon rejected assets of the old bank. If the maker of a rejected note to the old bank should strike oil, or come into an inheritance, or win a prize in a lottery, the new bank could call for that note by substituting an equal amount of accepted assets of the old bank. This privilege is not here involved.
The new bank could exercise its privilege as pledgee for purpose of collateral security. Exercise of that privilege was expressly limited to a definite period. The privilege was not exercised by anybody within that period, and it expired on June 19, 1933.
The petition was framed on another theory, based on the following facts:
When the consolidation took place, the directors of the old bank knew the nature and quality of accepted assets, knew the general financial depression was on, and knew that rejected assets would likely be needed to make good accepted assets. Therefore, the security pledge was made. It turned out, accepted assets were not worth face value, were not collectible before June 3, 1933, when the new bank failed, and the rejected assets are necessary to guarantee payment of accepted assets. The new bank was in failing condition from the beginning of January, 1933, until the time the receiver was appointed in July, 1933. Craig and the members of the board of directors of the new bank, who had been directors of the old bank, knew the kind and quality of the accepted assets, and the condition of the new bank before expiration of the eighteen-month security period, but they did not do anything to obtain possession of the pledged rejected assets. The conclusion deduced in the receiver’s brief from these allegations is, that because the directors of the new bank failed to demand of Craig the rejected assets, to make good accepted assets which had gone bad, they were guilty of fraud and breach of trust, which precludes Craig from keeping the security.
The sole delinquency of the directors of the new bank was that they did not reduce the security to possession within the security period.
In December, 1931, the officers and directors of the new bank did not regard the rejected assets as fit to become assets of the new bank. What the rejected assets were worth then is not disclosed. There is nothing to show that they improved in value as the financial depression deepened, and what they were worth from January to June, 1933, is not alleged and cannot be surmised. It might have been a waste of money to put any item in judgment, and if put up for sale, perhaps the entire lot would not have brought enough money to pay expense of sale. Whether the directors should call for the security was not a matter of law, but was a matter of judgment in bank management. They were not required to do a vain thing, and the petition does not. disclose either that they used bad judgment, or that the new bank, in fact, lost anything.
There is no allegation in the petition of improper motive, intentional misconduct, or any kind of bad faith on the part of the directors of the new bank. There is nothing in the petition to arouse the faintest suspicion the directors acted for the benefit of the stockholders of the old bank in not calling for the rejected assets before the new bank failed. The time to call for the security had not elapsed when the new bank failed, and management of its affairs vested in the receiver. The receiver did not make up his mind to call for the security until nearly a year had elapsed after the bank failed.
The result of 'the foregoing is, the conclusion stated in the receiver’s brief, that the directors of the new bank were guilty óf fraud and breach of trust, is not warranted by the facts .pleaded in the petition, either as a conclusion of fact or as a conclusion of law.
The judgment of the district court is reversed, and the cause is remanded with direction to sustain the demurrer to the petition. | [
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The opinion of the court was delivered by
Thiele, J.:
The employer and its insurance carrier appeal from an award made to an employee under the workmen’s compensation act.
On March 11, 1934, the claimant sustained an injury to his knee. He was in a hospital for ten days and for a short time thereafter saw the doctor every few days. In the middle of April the doctor told claimant there was nothing more he could do, and that claimant should rub the knee with liniment. On April 25, 1934, he went back to work. Claimant was paid $72, covering four weeks’ compensation, which he accepted. A final receipt and release were sent him which he refused to sign. Claimant’s testimony was that he knew in April the company was not paying any more compensation but he did not know about the medical treatment, and that the company did not tell him he could not have medical treatment. Claimant testified he saw the doctor of his own accord sometime in August or September and got a prescription. About the first part of August he talked to a representative of the insurance company, who told him the company would pay no more. At that time he was getting no treatment from the doctor except what he himself paid for, and all the treatment he got after April was that the doctor examined the knee arid told him to rub it with liniment. The doctor’s testimony was that the treatment ceased April 22; that many of the persons whom he had treated dropped into his office and he talked with them, and that he talked with claimant, who came in about members of his family. On September 29 claimant came in and got a prescription for liniment, but he did not treat claimant after April 22. On October 11 claimant made written demand for compensation. The hearing by the examiner resulted in a finding that claimant had failed to make written demand for compensation within ninety days from date of the last authorized medical treatment and that award of compensation should be denied. Claimant appealed to the district court, which in a written decision found that written claim was made October 11, and that the last treatment of claimant charged by the attending physician to the employer or its insurance carrier was on April 22, and that afterwards claimant came to the doctor’s office occasionally and discussed progress of his injury and received directions to massage, and on September 29 the doctor gave him a prescription. The trial court concluded:
“While the' last) medical attendance was furnished by respondent on April 22, the evidence does not warrant a finding that the claimant knew medical attention terminated on that date. In addition to showing that the last compensation was furnished more than ninety days prior to the written demand, the respondent must also show that the claimant knew that compensation had ceased. The written notice was within -time.”
An award in favor of claimant was made and the employer and its insurance carrier appeal, the assignments of error including that the trial court erred in finding the respondent must show that claimant knew that compensation, including medical treatment, had ceased in order to start the operation of the ninety-day demand period, and in finding that written notice was within time.
Under section 20 of chapter 232 of the Laws of 1927 (being R. S. 1933 Supp. 44-520a) it is provided that no proceedings for compensation shall be maintainable unless a written claim be served upon the employer within ninety days after the accident or, in cases where compensation payments have been suspended, within ninety days after the' date of the last payment of compensation.
In Richardson v. National Refining Co., 136 Kan. 724, 18 P. 2d 131, it was held:
“The furnishing of medical aid to an injured employee constitutes the payment of compensation within the meaning of R. S. 1931 Supp. 44-520a, and a written claim for compensation filed within ninety days of the last furnishing of medical aid is filed in time.” (Syl. ff 3.)
See, also, Ketchell v. Wilson & Co., 138 Kan. 97, 23 P. 2d 488.
In the case at bar the trial court found that the last medical attendance (treatment) was furnished by the employer on April 22, and there being no dispute that written claim was not made until October 11 it must be held that the claim was not made in the time prescribed by statute, unless it be further held that the employer must show that the claimant knew compensation had ceased. It may be observed that the statute makes no such requirement. The right to recover compensation is purely statutory, and we are not warranted in reading into the statute a condition that is not expressed or necessarily implicit therein. Were we to so interpret the statute, it would not avail the claimant. Claimant’s own testimony was that in the middle of April the doctor told him there was nothing more he, the doctor, could do, and that about April 25, 1934, four weeks’ compensation was paid claimant and a final receipt and release were tendered him, which he refused to sign. He knew then that the employer was denying further liability. Although, on his own initiative, he may have seen the doctor at different times, he received no further treatment until September 29, when he procured a prescription which he himself had filled. This did not bind the employer nor extend the time in which claim for compensation could be made.
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The opinion of the court was delivered by
Smith, J.:
This was an action whereby the plaintiff asked for construction of a will. Judgment was for defendant. Plaintiff appeals.
The facts are admitted. Gracie Varney died testate on June 8, 1933. The portions of her will with which we are concerned are as follows:
“Item Eight. All the rest, residue and remainder of my estate, real, personal, and mixed, of which I may die possessed, or to which I may be entitled, and estates in reversion, remainder or expectancy, I hereby give, devise and bequeath to the First Trust Company of Wichita, Kansas, as trustee in trust, and vest in said trust company the title thereto, including all of my interest in the following-described real property in Sedgwick county, Kansas . . . being the same property leased by me to the Kansas National Bank of Wichita, Kansas, for a period of ninety-eight (98) years, from March lj 1918, at a monthly rental of one hundred and seventy-five ($175) dollars per month, which lease has been assigned to the First National Bank in Wichita, Kansas, and upon which property the said the First National Bank in Wichita has erected a portion of its building, together with all my rights in and to the said property, and the said lease, and a contract of sale, whereby I have agreed to sell and convey said real property to the First National Bank in Wichita, Kansas, for forty thousand ($40,000) dollars, subject to said lease, which shall merge at my demise in a deed, when duly delivered by the Fourth National Bank in Wichita, Kansas, (the escrow holder) to the First National Bank in Wichita, Kansas, upon completion of the payment of the consideration of forty thousand ($40,000) dollars; giving and granting unto the said, the First Trust Company of Wichita, Kansas, its successors and assigns, the full right, power and authority to collect all of the rentals from the said premises that may be due and payable under the said lease, and the balance of the said consideration of forty thousand ($40,000) dollars, which may be due and payable, and to invest said monies in safe and conservative securities (either bonds of a city of the first class of the state of Kansas, or bonds of the government of the United States of America, or bonds secured by first mortgages on land in Kansas), and dispose of all of the net income of the said money, as hereinafter set out; the said devise and bequest herein made being in trust for the purposes hereinafter named:
“A. I hereby expressly will and ordain that said trustee shall pay unto Dr. Franklin T. Varney, of Nauvoo, Illinois, the sum of seventy-five ($75). dollars per month during his life time.
“B. I, the said testatrix, having in mind the worthy and needy poor of the city of Wichita, and being moved by a spirit of broad philanthropy and good will, do hereby create this trust, to be known and called the Varney Charitable Fund for the worthy and needy poor of Wichita, and the net income of said money shall be used for the benefit of said worthy and needy poor of the city • of Wichita, as the said city is now constituted, or may hereafter be bounded, from time to time, and this trust is made for such worthy and needy poor without regard to age, sex, race, color or creed, for all time, subject to the above bequest to Dr. Franklin T. Varney.”
At the time of the death of Mrs. Varney she was making her home with Dr. and Mrs. Franklin T. Varney in Illinois. At that time the estate consisted principally of a tract of real property in Wichita. This tract was under lease to the First National Bank in Wichita for a period of 98 years from March 1, 1918, at a net monthly rental of $175. About three years prior to her death Mrs. Varney entered into a contract for the sale of this real property to the First National Bank in Wichita, Kansas, for $40,000, a part of which was paid in cash, a part to be paid in monthly payments, and the balance to be paid to her estate after her death. The 98-year lease was to remain in effect and the rental to be paid until Mrs. Varney’s death and the payment of the balance of the purchase price. Soon after this contract of sale was made the will above set out was made and executed by the testatrix on October 13, 1930. After the death of Mrs. Yarney, the First Trust Company, as ancillary administrator with the will annexed, completed the sale to the First National Bank in Wichita, and collected in cash the balance remaining unpaid on the contract. At the time of the closing of the estate there was turned over to the First Trust Company, as trustee, $24,000 in United States government bonds bearing 3% per cent interest (which had been purchased from the proceeds of the sale of the real property) and $4,386.53 in cash. This constitutes the trust estate.
Some time elapsed between the death of the testatrix and the qualification of the trustee. The trustee invested the proceeds of the estate in United States government bonds. They bring in a little less than $900 a year. This amount is insufficient to make the payments which the will provided should be made to Doctor Varney.
The question arose as to whether the payments to Doctor Varney could be made from the principal of the estate when the interest is insufficient to make them.
An additional question is whether the payments to Doctor Varney should commence at the death of testatrix or at the time of qualification of the trustee.
Prior to the institution of this action there were negotiations between the trustee and Doctor Varney as to the advisability of paying to Doctor Varney a lump sum in settlement of the monthly payments provided for in the will. The trustee is willing to pay to Doctor Varney a lump sum out of the corpus of the estate based upon the cost of an insurance annuity payable to a man of the age of Doctor Varney for the remainder of his life. The trustee believes it is to the best interests of the estate to do so but doubts whether it has power to make such a settlement.
All of these questions were raised by the pleadings.
The court heard the case and rendered judgment that the $75 a month should start from the date of the death of the testatrix, and that the income from the trust estate should first be used to make these payments, and if insufficient the balance should be paid out of the corpus of the estate. The court further approved the proposed settlement of the legacy to Doctor Varney in the amount of $7,-473.60 and authorized the trustee to enter into such a settlement. From that judgment this appeal is taken.
In considering this case we shall follow a well-established rule; that is, that the will must be examined from its four corners with the idea of ascertaining the intention of the testatrix. It is her intention which must control.
The eighth item of the will directed what should be done in case the real property should be a part of the estate when the testatrix died. It then provided as to how the funds should be invested. The item then directs that the income from the investments should be disposed of as thereinafter set out. The next clause makes an unequivocal bequest .to Doctor Varney of $75 per month during his lifetime. The next item speaks of a trust that is created by the will and provides that the net income of the fund shall be used for the benefit of the needy poor of Wichita.
It will be noted the will provides specifically that this shall only be paid from the net income of the fund and is subject to the bequest to Doctor Varney. Had the testatrix intended the payments to Doctor Varney should be made out of income only surely she would have used the same language that was used in making provision for the poor. We shall gather the intention of the testatrix as nearly as possible from the written words of the will. We also call to our assistance, however, the surrounding facts and circumstances. The testatrix had spent her last days in the home of Doctor Varney. She evidently entertained a kindly feeling toward him. It is a fair assumption that she considered his welfare to be more important than that of the poor for whom she was providing.
When all these things are considered we do not have any difficulty in reaching a conclusion that the testatrix intended Doctor Varney should have $75 a month for the balance of his life, whether the income of the estate was sufficient to pay it or not.
A similar result was reached in Pierrepont v. Edwards, 25 N. Y. 128. In that case a testator devised his estate to trustees with instructions to pay an annuity to one for life and balance of income to others. The estate did not yield enough income to pay the first annuity. It was held that the direction to pay out of income was only demonstrative and that annuitant was entitled to have deficiency paid out of corpus of the estate.
In Smith v. Fellows, 131 Mass. 20, an annuity was given to one to be paid from the income of all testator’s property. The estate was devised after payment of debts and legacies. The court held that the words “to be paid from the income of my property” imposed a charge upon the entire estate. The element which all the authorities we have examined have in common is that the intention of the testator was allowed to govern.
The conclusion that has been reached on the above question disposes in a large measure of the question as to whether the payments to Doctor Varney should begin at the death of the testatrix or not until the appointment of a trustee. The trust company argues that if the payments were to be made from income alone, then they should not start until there was an income. The conclusion that these payments should be made from the corpus of the estate, where the income is not sufficient to make them, does away with that argument. The authorities hold an annuity, in the absence of a provision to the contrary, starts from death of testator.
In the case of Matter of Sanfield, 135 N. Y. 292, where A was given the income from $20,000 for life by will and the estate given in trust to a trust company, which was also named as executor of the will, the court held that A was ‘entitled to interest on the $20,000 from the date of the death of the testator.
See, also, Woods v. Gilson, 178 Mass. 511; Eichelberger’s Est., 170 Pa. St. 242.
There remains to be considered the action of the trial court in approving the proposed settlement whereby the trustee agreed to pay Doctor Varney a lump sum sufficient to purchase an annuity of $75 a month for a man at the age of Doctor Varney on a 5 percent basis. The trial court held that such a settlement is necessary to the preservation of the estate and the carrying out of the intention of the testator. Here we must resort to what was said heretofore in this opinion — that the intention of the testator must govern. We will not decide that there could never be a case where the provisions of the will might not be made to yield so as to best accomplish the benefit of all concerned. We merely hold that this is not such a case. The intention of the testator was to make sure that Doctor Varney had $75 a month, no matter what vicissitudes life held for him. To approve the payment of a lump sum to him, as contemplated in this settlement, would be to thwart the intention of the testator rather than to carry it out.
The judgment of the trial court, directing the payments to Doctor Varney to be made out of the corpus of the estate when the income is not sufficient to make them, and directing the payment to start from the time of the death of testator, is affirmed; that part of the judgment approving the lump-sum settlement is reversed. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action by the vendee in a contract for the sale of real property to recover earnest money paid on the ground the vendor failed to perform the contract by perfecting title and conveying the property. A jury was waived. The court made findings of fact and rendered judgment for plaintiff. The vendor has appealed.
Part of the facts involved here are stated in Seaverns v. Taylor, 133 Kan. 268, 299 Pac. 931. For our purposes it is sufficient to say that Susan H. Seaverns, an elderly widow, owned land in Wallace county, where she resided. In July, 1929, her sister, Emma H. Rouse, of Portland, Ore., initiated proceedings in the probate court of Wallace county, as a result of which Mrs. Seaverns was adjudged to be an incompetent person and Mrs. Rouse was duly appointed as guardian of her person and estate, and qualified as such. On August 12, 1929, Mrs. Rouse, as such guardian, entered into a written contract with J. H. Moore, the plaintiff here, by which she agreed to sell plaintiff about 2,700 acres of Mrs. Seaverns’ land and cause the same to be conveyed to him in fee simple, by general warranty deed, and to furnish abstracts showing good merchantable title, for the sum of $14,400, to be paid $1,000 cash “as earnest money, . . . Said one thousand dollars to be left with the probate court of Wallace county, Kansas, pending judicial proceedings permitting the sale of said land”; the balance to be paid in cash on completion of contract. The $1,000 was paid at once and George Cox, probate judge of Wallace county, receipted for it, “to be applied to the assets of the estate of Susan H. Seaverns.” Mrs. Rouse and the probate judge then went to the Citizens State Bank at the county seat of Wallace county and deposited this $1,000 in the joint names of George Cox, probate judge, and Emma H. Rouse, guardian. On August 17, 1929, seven checks, totaling $561.64, payable to various parties, were drawn on this account, signed by both of the depositors, which the bank paid and charged to the account. One of these checks was to an attorney for his fee in appearing in the probate court and for other services performed about that time for Mrs. Seaverns. The other checks, or the money obtained on them, paid various items of expenses of Mrs. Seaverns and Mrs. Rouse. Mrs. Rouse, as guardian of Mrs. Seaverns, presented an application to the probate court for authority to sell the real property pursuant to her contract with plaintiff, but this application appears never to have been presented to the court for action, and finally was dismissed.
On September 27, 1929, in response to an application therefor, Emma H. Rouse was removed as guardian of the person and estate of Susan H. Seaverns, and James E. Taylor was appointed and qualified as such guardian. He did not recognize the contract with plaintiff, nor did he take into his possession any part of the earnest money which had been paid thereon. On April 29, 1930, in a proceeding duly had therefor, the competency of Susan H. Seaverns was adjudged to be restored, and since then she has been and is fully competent. No further steps have been taken by Susan H. Seaverns, or by Emma H. Rouse as her guardian, to carry out the contract which Mrs. Rouse as such guardian made with plaintiff by conveying such property to him as the contract provided. Plaintiff has been ready, able and willing to carry out the contract on his part.
It appears that soon after Mrs. Rouse drew the checks on the deposits ábove mentioned she took Mrs. Seaverns with her to her home in Oregon, and apparently they have been there all or most of the time since then. The Citizens State Bank, in which this deposit was made, failed sometime in 1932, and a receiver was appointed for it. On the application of George Cox, who is no longer probate judge, the receiver issued a certificate showing there was $438.36 in the account at the time the bank failed. Plaintiff made demand upon Emma H. Rouse and Susan H. Seaverns for the amount of earnest money he had paid, with interest. They answered in writing, agreeing to pay the amount they had received by the checks drawn on the account, less the check given to the attorney, which for some reason they contended was not for their benefit; but no such payment was made.
Plaintiff brought this action November 18,1932. He made as defendants the probate judge, and the surety on his bond. He also made as defendants Susan H. Seaverns, Emma H. Rouse, and Emma H. Rouse as guardian of the person and estate of Susan H. Seaverns. The trial court rendered judgment in favor of George Cox. and the surety on his bond as probate judge. There is no appeal from that part of the judgment, hence its correctness is not before us for determination. The court rendered judgment in favor of plaintiff and against Emma H. Rouse in the sum of $1,000 with interest at six per cent since November 19, 1929; also gave plaintiff judgment against Susan H. Seaverns in the sum of $561.64, being joint with the judgment against Emma H. Rouse to that amount, and adjudged and ordered George Cox to assign to Emma H. Rouse the certificate of the receiver of the Citizens State Bank for $438.36, the amount of the deposit in the bank when it closed.
Emma H. Rouse and Susan H. Seaverns have appealed. They argue that since the contract contemplated an order of the probate court authorizing the sale, and since such an order never was made, and Mrs. Rouse was removed as guardian, performance on her part became impossible. Authorities are cited (13 C. J. 642, 644 et seq.) to the effect that impossibility of performance of some contracts renders them null and void. But even under these authorities one who has received part payment for performance on his part, and thereafter finds for some reason it is impossible for him to perform, is not justified in keeping the advance payment. To permit that to be done would authorize an unjust enrichment of the party who had received the payment, to the loss of the one who had made the payment. Obviously this would be unjust. The general rule is that a vendee may recover money paid upon a contract when the vendor is unable or refuses to perform. (66 C. J. 1469; 27 R. C. L. 623; Sellers v. Bell, 10 Kan. App. 581, 63 Pac. 457; Monger v. Effland, 87 Kan. 710, 125 Pac. 46; Nason v. Patten, 88 Kan. 472, 129 Pac. 138; Bryant v. Glenn, 139 Kan. 660, 33 P. 2d 167.) Naturally, circumstances may vary, and these variations require modifications of the general rule. Here there is no contention the vendee was put in possession of the property, nor that'the failure to perform was his fault in any respect.
Appellants argue the action was barred by the three-year statute of limitations, on the theory that Mrs. Rouse was discharged as guardian September 27, 1929, and the action was not brought until November 18, 1932. The point is not well taken. There was evidence to the effect that soon after the.checks were drawn on the account, August 17, 1929, Mrs. Rouse returned to her home in Oregon and took Mrs. Seaverns with her. There is nothing in the record to show either of them was in this state again until this action was brought. They wrote plaintiff from Oregon in September, 1932, acknowledging their indebtedness to him for the amount of money they had drawn and used, and solicited him to aid them in getting a loan on the land to enable them to pay it. Under this evidence the court found against appellants on this point, and the finding is well sustained by the evidence.
Appellant Emma H. Rouse complains specifically of the judgment against her for the full amount of the earnest money, $1,000. On her behalf it is argued the probate judge-should be charged with that money in excess of that drawn by the checks, August 17, 1929. As previously pointed out, the court found in favor of the probate judge and his surety, and since no appeal was taken from this portion of the judgment the question of his liability is not before us. The probate judge as such had no authority to handle the money. Whatever he did about it was extrajudicial. Some language of the contract might be interpreted as indicating that the parties to it contemplated using the probate court, or the judge of the court, as an escrow holder of the earnest money. But that theory is not argued, and perhaps could not be, in view of the receipt given by the probate judge. This indicates that, tentatively at least, the judge was approving the contract, and the money was noted as being received as a part of the assets of the estate of Mrs. Seaverns. As such Mrs. Rouse was personally responsible for it. (28 C. J. 1165, and cases.) When she was discharged as guardian, without having complied with the contract on her part, and with no hopes that it would be carried out, it was her duty to make settlement with the plaintiff: Perhaps the only reason she did not do so was that she had drawn more than half the money and used it for the benefit of her ward, and at that time was unable to, replace it. She left the remainder of it in the bank for more than two years, until after the bank failed. She is now in position to receive whatever dividends are paid on the balance of the deposit.
We see no error in the judgment, and it is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was one for damages for breach of contract to buy natural gas in the amount of buyer’s requirements under a second contract which bound buyer to furnish gas to the city of McPherson. The trial court held breach of contract was not established, and plaintiff appeals.
A somewhat extended narration of the facts and circumstances out of which the controversy arises and of the essential provisions of the contracts is necessary to a full understanding of the case. But once that is done, the answer is apparent. The interpretation and effect of the contracts is the only question necessary to be determined.
In December, 1927, the McPherson Gas Company, hereafter referred to as the gas company, as assignee of a gas franchise, acquired the right to construct and operate a gas plant and distributing system in the city of McPherson. In 1929 the gas company constructed a distributing system and has since that time furnished gas to the city of McPherson for the use of the city, and to the private consumers in the city. The gas company’s franchise was not exclusive. The city reserved the right to construct its own distributing system, or to grant other franchises to other companies, and it might terminate the franchise by purchase of the plant of the gas company.
Early in 1932 the city opened negotiations with the gas company for lower rates (probably due to the discovery of natural gas in large quantities in the area surrounding the city of McPherson). The gas company did not respond. The city took various steps looking to establishment of its own system, and on March 17, 1932, entered into a contract with the Hutcherson Pipe-line & Gas Company, whereby the Hutcherson company bound itself to construct a pipe line for transmission of gas from the McPherson field to the eastern limits of the city. The city agreed to buy all of its natural gas requirements from the Hutcherson company. The Hutcherson company owned no gas production and contracted with the Derby Oil Company for all of the Hutcherson’s requirements in complying with its contract with the city. The controversial portions of these contracts are set out later herein. Both contracts provided for a minimum purchase of 150 million cubic feet of gas per year.
Neither pipe line nor gas-distributing system was constructed pursuant to the above contracts.
The McPherson Gas Company, taking note of the foregoing events, consented to a reduction of its rates. The city passed an ordinance containing a new contract between the city and the gas company. On the basis of the new rates, the city agreed to take its entire natural gas requirements from the gas company. This new contract took cognizance of the contract between the city and the Hutcherson company and it was made a condition of the agreement that the city be. relieved of any obligation to the Hutcherson company. The city agreed to assign the Hutcherson contract to the gas company or to surrender it for cancellation if the gas company arranged with the Hutcherson company for its cancellation. To effectuate its purpose and duty of relieving the city from the obligation of the Hutcherson contract, the gas company purchased the stock of the Hutcherson company and agreed to perform or cause to be performed the contract between the Hutcherson company and the Derby Oil Company, and to save the officers and stockholders of the Hutcherson company from all claims and actions on account of nonperformance of that contract. In furtherance of its agreement to so protect the Hutcherson stockholders, the gas company executed a separate agreement called “guaranty contract,” whereby the gas company reaffirmed its purpose and duty to perform or cause to be performed the Hutcherson-Derby contract and to protect the stockholders of the Hutcherson company. The city of McPherson, by resolution adopted on April 2, 1932, authorized the city officers tc execute their consent to the foregoing arrangement between the Hutcherson company and the gas company.
On June 4, 1932, the Derby Oil Company advised the gas company by letter, that it would expect the gas company to take from the Derby all of the gas “for the requirements of the city of McPherson.” The gas company replied that it intended “to take only the minimum requirements under this contract, or 150 million cubic feet per year.” Thus we come to the point of this controversy.
The appellant, the Derby Oil Company, first argues that defendant, the McPherson Gas Company, became the assignee of the Hutcherson-Derby contract. There was no evidence of a formal assignment, but the gas company having acquired the stock of the Hutcherson company and installed its own officers and directors, the actual making of an assignment of this contract would have been a useless thing, and, perhaps, not for the best interests of the gas company. Viewed objectively, however, it is apparent, we think, that the object and effect of an assignment was accomplished by the acts and conduct described above. (See discussion in Centmont Corporation v. Marsch, 68 F. 2d 460; Southwest Kan. Oil & G. Co. v. Argus P. L. Co., 141 Kan. 287, 39 P. 2d 906.) The negotiations and transactions must be viewed as a whole in determining the rights and obligations of these parties. The gas company agreed to per form or cause to be performed the obligations of the Hutcherson company under the Hutcherson-Derby contract. Also, the gas company assumed the city’s obligation under the city of McPhersonHutcherson contract. The Restatement, Contracts, § 136, (1), reads in part:
“(a) A promise to discharge the promisee’s duty creates a duty of the promisor to the creditor beneficiary to perform the promise;
“(c) Whole or partial satisfaction of the promisor’s duty to the creditor beneficiary satisfies to that extent the promisor’s duty to the promisee.” (See,, also, Goeken v. Bank, 104 Kan. 370, 179 Pac. 321.)
It is plain, therefore, that the gas company’s obligations to the Derby are to be measured by the two above-mentioned contracts. An interpretation of these contracts will dispose of the case.
The city of McPherson-Hutcherson contract, which refers to the city as the buyer and the Hutcherson company as the seller, recites in a lengthy preamble that the buyer deems it advisable to buy natural gas for distribution and sale to its inhabitants and for its power plant and to do whatever may be necessary to procure or construct a system for distribution of gas in the city. The contract first provides for construction by the seller of a gas pipe line from the adjacent fields to the city gate. The contract then reads:
“1. That the buyer agrees to purchase natural gas from said seller and said seller agrees to sell natural gas to said buyer for a period of twenty (20) years from and after the date that the buyer commences to purchase gas from said seller. Thereafter and upon the expiration of said twenty (20) years this agreement shall continue in full force and effect unless and until terminated by either party hereto as hereinafter provided.
“2. That said buyer agrees to purchase all of its natural gas requirements needed to supply its distributing system, its power plant and for resale purposes from said seller and said seller agrees to sell said buyer all of the natural gas for such requirements of said buyer, and said buyer agrees to pay for and take from said seller for said uses not less than one hundred fifty million (150,000,000) cubic feet per annum during the life of this contract.”
“This agreement shall be executed in duplicate and shall be binding and inure to the benefit of the parties hereto and to their respective successors and assigns. No assignment of this contract by the seller, however, shall relieve the seller of its obligations hereunder, without the express consent in writing of the buyer.”
The Hutcherson-Derby contract refers to the Derby as the seller and the Hutcherson company as the buyer. The contract provides:
“The seller hereby sells and agrees to sell and deliver at the mouth of the well or wells to the buyer all its share of merchantable gas not in excess of five hundred million (500,000,000) cubic feet, in its natural state, produced from either gas wells or combination oil-and-gas wells now drilled and which may hereafter be drilled upon the following tracts of land situated in McPherson county, . . .
“The buyer agrees to purchase at the mouth of the well or wells located upon the aforesaid tracts of land a minimum of one hundred fifty million (150,000,000) cubic feet per year of gas (if the interest of the seller in said wells is capable of producing such an amount of gas) in its own natural state during the term of this contract, . . .
“This contract shall be in effect for five (5) years from its date.
“Buyer agrees to purchase from the seller all of its requirements to comply with a certain gas contract entered into by and between the buyer and the city of McPherson, Kansas, up to a maximum of five hundred million (500,000,000) cubic feet per year, provided the seller can furnish that amount of gas from its interest in the gas and combination wells now located on the aforesaid tracts of land and/or from any other gas-producing wells which may hereafter be drilled upon said tracts of land (it being understood and agreed that the seller is under no obligation to drill any more well or wells upon said tracts of land.)
“Said buyer agrees to commence taking and purchasing gas from wells located on the aforesaid properties within ninety (90) days from the date hereof, and in the event buyer does not commence to take and purchase said gas within said time, the buyer shall pay the seller the same as if it were purchasing gas from said tracts of land, at the rate of four hundred ten thousand nine hundred fifty-seven (410,957) cubic feet of gas per day, at the price and in the manner hereinafter provided for the payment of all gas purchased under this agreement; provided, however, that in such event when said buyer actually commences taking said gas said buyer shall have credit for gas actually paid for as above provided, but in any event the said buyer shall pay for a minimum of one hundred fifty million (150,000,000) cubic feet each year, provided the said well or wells producing gas from said tracts of land are capable of producing such an amount of gas.
“All of the covenants, stipulations, terms and conditions of this agreement shall extend to and be binding upon the respective heirs, legal representatives, successors and assigns of the parties hereto.”
In its conclusions of law the trial court held the city of McPherson was under no obligation to acquire or construct a gas-distributing system; that the city was obligated to purchase from the Hutcherson company the amount of gas needed to supply the city’s needs; that the Hutcherson company was bound to purchase gas from the Derby in amount limited by the requirements of the city as a municipality and further limited by the 150 million cubic feet minimum requirement of the Hutcherson-Derby contract; and that as this minimum was purchased there was no breach of contract and there could be no recovery.
We affirm these views of the trial court. The defendant, the McPherson Gas Company, was obligated to the Derby to the extent only of the Hutcherson company’s obligations. The obligations of the Hutcherson company were (1) to purchase from the Derby whatever gas the Hutcherson company required to discharge its contract with the city; and (2) to purchase in any event 150 million cubic feet of gas per year as a minimum. The trial court found— and there is no contention to the contrary — that the gas company purchased the minimum of 150 million cubic feet. The requirements of the city were found to be approximately 122 million cubic feet per year, and as the obligation to purchase in the amount of the city’s requirements is the lesser of the two contractual obligations, the performance of the greater duty by purchasing the minimum of 150 million cubic feet, operates as full performance of the contract. The fact that the city changed its plans and abandoned the idea of establishing its own distributing system and competing with the gas company for the business of supplying the consumers of the city, and consequently had no .requirement for gas for resale purposes, is not a matter open to objection from the Derby. The city did not bind itself to construct a distributing system and sell gas to its inhabitants. In fact, it is apparent from the contract that it guarded against assuming the burden of such an undertaking. The city’s purpose and intention, manifestly, was to assure a gas supply adequate to its needs in case it should venture into the uncertainties of municipal ownership. The duty in this respect was in a sense unilateral, and there was no change in position or prejudicing conduct which might operate to bring into being an enforceable obligation on the part of the city to purchase gas for resale.
The appellant cites the case of City of Holton v. Kansas Power & Light Co., 135 Kan. 58, 9 P. 2d 675, where in considering a city’s contract to purchase all the electric current used by it, the court held there was an implied promise not to purchase elsewhere. But here there could be no implied promise of the city of McPherson affecting the purchase of gas by private consumers. The plan of the city to engage in the gas business did not necessarily contemplate the discontinuing of service by the gas company. The city might not have been able to procure away from the gas company more than a small percent of those taking from the gas company. Appellant also cites the case of Southwest Kan. Oil & G. Co. v. Argus P. L. Co., supra, as bearing on interpretation of contracts which provide for gas in amount of requirements. While that case can be distinguished from the present one in the facts involved, the rule therein announced for interpretation of written contracts which requires that force and effect be given to the meaning that would be attached to the writing by a reasonably intelligent person in possession of all the facts, is exceedingly relevant to the situation here presented. When the contracts involved here are viewed in the light of the foregoing rule, there emerges but one reasonable and natural conclusion, which is the one reached by the trial court, that no breach of contract was established and there could be no recovery.
This conclusion makes it unnecessary to consider the other points raised and forcibly argued by appellant.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
The question raised by these appeals is the liability of an intermediate indorser to the maker of a check which had been negotiated by the wrongful and unlawful indorsement of the name of one of two joint payees. Two appeals are before us, but as the facts are substantially identical so far as the question raised is concerned, only one case will be noticed.
For convenience, the appellant, the Bankers Mortgage Company, will be usually referred to as the mortgage company; the appellee, the State Bank of Ottawa, as the Ottawa bank; the Merchants National Bank of Topeka, as the Topeka bank, and the Railroad Building, Loan and Savings Association as the association.
Clarence E. Grayum and his wife owned town lots in Ottawa. On May 29, 1924, they borrowed from the association the sum of $1,250, giving a mortgage on the lots as security. Sometime prior to 1927 they conveyed the lots to F. A. Clark, of Ottawa, who in 1927 made application to the mortgage company for a loan of $1,750 on the property. Clark was an abstracter of titles, and when he applied for the loan he furnished an abstract showing the above mortgage as unreleased. The application was approved, the note and mortgage were made and the mortgage company sent to its agent, Hankey, a check dated October 6, 1927, for the net amount due on the loan, i. e., $1,614.81, payable to the order of “F. A. Clark and Railroad Building & Loan Association” with instructions:
“You are authorized to permit this check to be cashed when you have secured the release of the Railroad Building and Loan mortgage, had same recorded and shown on the abstract.”
Clark furnished Hankey an abstract showing the association’s mortgage released, and the check was delivered to him. Clark had been a local collector at Ottawa for the association, authorized to receive installment payments, and had an account in the Ottawa bank in the name of the Railroad Building, Loan and Savings Association, F. A. Clark, agent, although it was not shown the association knew of it. However, Clark took the $1,614.81 check, indorsed his own name and, using a rubber stamp, also indorsed it—
“Railroad Building Loan and Savings Association, F. A. Clark, Agt., Ottawa, Kan.,”
And deposited the same to an account which he carried in the name of Ottawa Realty Co. The Ottawa bank, following usual practice, stamped the check as follows:
“Pay to the order of Any Bank, Banker or Trust Co., All prior indorsements guaranteed Oct. 7, 1927 State Bank of Ottawa 83-93 Ottawa, Kansas, 83-93 H. L. Jewell, Cashier.”
And sent it forward through usual banking channels, and on October 10, 1927, it reached the Topeka bank, on which it was drawn, and was paid. The last bank rendered the mortgage company a statement of its account for October, 1927, on or about November 1, 1927, and returned the canceled check therewith. It later developed, with reference to the loans involved in both actions — and Clark’s procedure in each was the same — that Clark had delivered abstracts of title showing releases of the mortgages to the association, when in fact no such releases existed; that he had kept up the installment payments to the association on its loans, and had paid interest to the mortgage company on its loans, until he absconded sometime prior to July 1, 1931. The actual facts were then at least partially discovered, and on July 29, 1931, the association filed its actions to' foreclose its mortgages, the mortgage company, the Ottawa bank and the Topeka bank being parties defendant in both actions, along with other necessary or proper parties. We are not concerned here with those phases of the litigation resulting in a judgment in favor of the association as to priority of its liens, and finding generally in favor of the Topeka bank. By its cross petition filed September 16, 1931, the mortgage company sought to recover against the Ottawa bank by reason of its indorsement on the checks as heretofore shown. Ultimately, the trial court found in favor of that bank. The mortgage company appeals. Although the notice of appeal is broad enough to cover other adjudications, the appellant now agrees the judgment of the trial court was proper except as to the following proposition: That the trial court erred in not rendering judgment in favor of the mortgage company and against the Ottawa bank.
Although we have given an extended statement to show the situation out of which the controversy arose, the proposition now before us is this: On September 16, 1931, was the Ottawa bank liable to the drawer of a check on the Topeka bank where on October 7, 1927, in good faith, it accepted the check, wrongfully and unlawfully indorsed as to one of two joint payees, for deposit to the credit of the wrongdoer, and thereafter sent the check forward for collection through banking channels bearing its indorsement including the words “All Prior Indorsements Guaranteed,” which check was on October 10, 1927, paid by the Topeka bank, charged to the account of the drawer, and about November 1, 1927, returned to the drawer with a statement of its account?
Appellant urges that it is entitled to recover on account of the written indorsement and guaranty of prior indorsements of the Ottawa bank from that bank. The right of the drawer of a check to recover under the circumstances does not seem to have been considered heretofore by this court.
It may be observed that under the negotiable instruments act (R. S. 52-223) where a signature is made without authority of the person whose signature it purports to be, it is inoperative and no right to enforce payment thereunder can be acquired through such signature.
In Farmers’ State Bank in Merkel v. United States, 62 F. 2d 178, checks were caused to be issued by a disbursing officer of the United States army on a fraudulent pay roll, the name of the payee was forged thereon and the checks cashed by the appellant bank and sent through banking channels and ultimately paid by the Treasurer of the United States. Upon discovery — and how long a period intervened is not stated — the United States brought suit to collect. It recovered in the lower court and the bank appealed. The first paragraph of the syllabus by the court reads as follows:
“Maker of checks paid by bank on forged indorsements of payee and indorsed by such bank for collection was entitled to recover money received on checks by bank because the bank, by its indorsement for collection, warranted the genuineness of the forged indorsements of the payee.”
In Labor Bank & Trust Co. v. Adams et al., 23 S. W. 2d 814 (Tex. Civ. App.), where the name of the payee of a check was forged and the check cashed by the forger, the drawer not learning thereof until the check had been paid by the drawee bank, in an action by the drawer it was held that:
“The overwhelming weight of authority is that, where a collecting bank pays money on a forged indorsement and the check is thereafter forwarded to the bank against which same is drawn and same is paid, that the collecting bank holds said funds for and on behalf of the owner of the check, and that its payment of the funds to the party who committed the forgery, or to any other person, does not discharge its obligation, and that the owner of the check has a right to bring a suit direct against the collecting bank that has collected the funds on the forged indorsement, whether it has paid same out or not, and recover the amount thereof. (Brannon’s Negotiable Instruments Law, 4th ed., p. 193; Merchants’ Bank v. National Capitol Press, 53 App. D. C. 59, 288 Fed. 265, 31 A. L. R. 1066; United States Portland Cement Co. v. United States National Bank, 61 Colo. 334, 157 Pac. 202, L. R. A. 1917A 145; Strong v. Missouri-Lincoln Trust Co. [Mo. App.] 263 S. W. 1038; Good Roads Machinery Co. v. Broadway Bank, [Mo. App.] 267 S. W. 41; Hope Vacuum, Cleaner Co. v. Commercial Nat. Bank, 101 Kan. 726, 168 Pac. 870.)” (p. 815.)
In State v. Merchants Nat. Bank of St. Paul, 145 Minn. 322, 177 N. W. 135, it was held:
“When a bank, which has cashed a negotiable voucher, transmits it with its own indorsement to another, it guarantees that all previous indorsements are genuine and that it has good title to the paper, and, if the prior indorsement of the payee was forged, the bank must respond to one who later purchases or pays the instrument.” (Syl. U 1.)
In 5 R. C. L. 569 it is said:
“The remedy of the drawer is against the bank paying his check, and the bank’s remedy is against the person to whom it paid. The liability 'of the party collecting the check arises from his implied warranty of the indorsement, and is founded on contract, and not on negligence.” (§ 93.)
See, also, annotations in 31 A. L. R. 1068 and 67 A. L. R. 1535. And phases of the question are discussed in 3 R. C. L. 542, 1148; 5 Michie on Banks & Banking, p. 518, ch. 9, §278; 6 Michie on Banks & Banking,^. 127, ch. 10, § 80; Morse on Banks and Banking (6th ed.) p. 1060, § 474; Brady on Bank Checks (2d ed.) p. 264, § 168. Also, see United Workmen v. Bank, 92 Kan. 876, 142 Pac. 974, where suit was brought against the drawee bank and not against the bank paying the check in the first instance.
Although we conclude that the drawer of a check, which is indorsed without the authority of the person whose signature it purports to be, and thereafter paid or cashed or received for value by an intermediate bank which indorses it and sends it forward for collection to the drawee bank where it is paid, may, in an appropriate action, recover from the first bank, that is not decisive of the instant case.
Under the negotiable instruments act, the liabilities of the parties are clearly defined. Although the indorsement contained the words “All Prior Indorsements Guaranteed,” to a considerable extent they added nothing to the warranties the Ottawa bank incurred under the statute in indorsing the check (R. S. 52-606, 52-607). And it would have had the same liability if it had transferred the check by delivery, for, as was said in Rucker v. Hagar et al., 117 Kan. 76, 79, 230 Pac. 70:
“The warranty of one who transfers a negotiable instrument by delivery is as much a contract that enumerated facts in relation to the paper are as promised, as if the warranty were written upon the instrument and were signed by the warrantor.” (p. 79.)
And it was held that an action to enforce liability for the statutory warranties was upon contract. The contract must therefore find its basis in the statute, and it is clear from a reading of it that the indorser warrants only to all subsequent holders in due course.
While it is difficult in many cases -to say who is or is not a holder in due course (see 8 C. J. 464 and Brannan’s Negotiable Instruments Law, 5th ed., p. 486, § 52), we are cited to no authority, nor do we find any, holding the drawer of a check to be such. And the statutory definition (R. S. 52-502) would seem by its terms to exclude him. In our opinion, the drawer is not a holder in due course, and not being such holder, the contract of the Ottawa bank, evidenced by its indorsement, was not for his benefit but solely for the benefit of subsequent holders in due course.
What is the nature of the action then on which the drawer may recover from the bank?
In 6 Michie on Banks and Banking, p. 130, § 85, is the following:
“Where a bank cashes checks on forged indorsements and collects the amounts of the checks from the drawee banks, the payee can bring an action of trover against the bank for unlawful conversion.”
In 2 Morse on Banks and Banking (6th ed.) p. 1060, § 474, it is stated: .
“If A draws a check payable to B and delivers it to B, and C forges B’s name and gets the money, B can recover from the bank on the money counts if the amount has been charged to the drawer. That constitutes an acceptance of the check, and the bank holds the money for the true owner; if it pays to a wrongful holder, or any one not entitled to receive, it must repay.”
In United States v. Bank, 2 Mackey 289, a paymaster of the United States issued his check in payment of a claim. The name of the payee was forged to the check, and it was negotiated and later reached the drawee bank. An action was brought against the drawee bank. While other questions were involved, there was also controversy as to the nature of the action. It was said:
“Prior indorsers are only liable upon a note, bill or check to a holder when it is dishonored. When the note or bill is paid, the maker or acceptor who has paid it by mistake, i. e., to a wrong person, or on a forged indorsement, has no right of action on the paper itself against any party to it. His right is to sue in assumpsit for money had and received, to recover his money, as paid under mistake of fact.” (p. 298.)
In Farmers’ State Bank in Merkel v. United States, supra, appears the following:
“The money, having been paid on the faith of the bank’s warranties, by its indorsements, of the genuineness of the forged indorsements of the name of the payee, was received by the bank for the use of the appellee.” (Italics ours.) (p. 179.)
And similar language may be found in the quotation from Labor Bank & Trust Co. v. Adams et al., supra.
See, also, Blum v. Whipple, 194 Mass. 253, 80 N. E. 501, 13 L. R. A., n. s., 211, holding the payee may maintain trover against one who takes a check upon unauthorized indorsement, as well as the note in the last citation on the remedy of the payee. And in the annotations in 14 A. L. R. 764, 31 A. L. R. 1068, 67 A. L. R. 1535, and 69 A. L. R. 1076 may be found citation' of cases holding variously that the remedy is for money had and received and for conversion. The theory upon which recovery has been allowed is upon the implied obligation to pay to the true owner the moneys received by the collecting bank and erroneously paid by it to the wrongdoer on the strength of the forged indorsement. Such an action, whether denominated in assumpsit for money had and received or in trover, is upon the implied contract growing out of the circumstances. In the case before us the action was not filed within three years and was barred by R. S. 60-306, second. (See Kansas City Title & Trust Co. v. Fourth Nat’l Bank, 135 Kan. 414, 10 P. 2d 896, 87 A. L. R. 334.)
It follows the judgment of the trial court was correct and it is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action for damages for personal injuries alleged to have been caused by a defect in the township highway. -The trial court directed judgment for defendants. Plaintiff has appealed.
The facts disclosed by the record may be summarized as follows: The highway in question, properly classified as a township highway, extends north from the town of Derby, in Sedgwick county.' It is a dirt road. Plaintiff, a boy about five years of age, lived with his parents in a farm home on the west side of this highway about a mile north of Derby. There the land is rather high, and from in front of the Cowan home the highway slopes downward to the south. For several years the driveway from the highway into the Cowan premises was north of the Cowan house, but three or four years before the injury complained of the township graded the road, and in doing so made a new driveway south of the Cowan house. This appears to have been done because the slope was such that the ditch at the side of the road at the south driveway was deep enough to permit the use of a steel pipe, twelve inches in diameter, as a culvert. This was put in, covered with dirt, and the driveway properly graded by the township. The use of the old driveway to the north was abandoned.
Plaintiff alleged that he was riding-on the spring seat of a wagon driven by his uncle, who was hauling water; that it turned into the Cowan premises from the highway on the driveway prepared by the township; that the driveway was defective; that the wagon overturned and he suffered a broken arm, for which injury he claimed damages. It is further alleged that the township trustee had notice of the defective condition of the driveway and culvert.. Defendants answered, denying liability. Their motion for judgment on the pleadings and their objections to the introduction of evidence were overruled. Plaintiff introduced his evidence, which disclosed the injury did not occur at the south driveway, above described, but did occur at the north one; that the south driveway had been permitted to get out of repair and the township trustee had been notified of that fact. When this developed plaintiff asked leave to amend his petition by alleging in substance that the south driveway had become so defective that it was impassable, for which reason plaintiff’s uncle had attempted to use the north one. The court permitted the amendment, denied plaintiff’s offer of proof, which did not go to the extent that the township had reestablished the old north driveway, or that the trustee had any notice of defects therein, and then held plaintiff could not recover.
Appellant argues that under R. S. 68-543 it was the duty of the township to put in and maintain a driveway to these premises. That may be conceded, but neglect of duty of the township officers in this regard, even if the record showed such neglect, would not justify recovery of damages for an injury that occurred at some other place. The township is liable in damages only to the extent made so by statute, and R. S. 68-543 does not authorize the recovery of damages for noncompliance with the statute, even if such noncompliance were shown.
The action must of necessity be predicated upon R. S. 68-301, which, shortly stated, provides that any person who, without contributing negligence on his part, shall sustain damages by reason of a defective township bridge, culvert, or highway, may recover from the township, if the trustee thereof had notice of such defect as much as five days prior to the injury. A number of cases have arisen under this statute as it pertains to townships, or to counties, and it has become settled in our law that in order for a party to re cover he must show, among other things, that his injury was caused by a defect in the highway. (Arnold v. Coffey County Comm’rs, 131 Kan. 343, 291 Pac. 762.) It has further been held that in making a driveway from the highway to a residence the township board has the discretion to say where it should be placed. (Bohan v. Summer County Comm’rs, 131 Kan. 87, 289 Pac. 436.) It is not required to keep the whole distance in front of premises in good condition for driveway purposes. Indeed, such a broad duty is not contended. It is clear in this case that if there was a defect in the south driveway such defect did not cause an injury to plaintiff.
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The opinion of the court was delivered by
Wedell, J.:
This was a suit for an accounting and dissolution of a partnership. Plaintiff appeals from the judgment of the trial court.
Plaintiff, Jacob B. Gelphman, and the defendants, three brothers, ivere engaged in the coal and junk business at Iola for the past twenty years. The partnership owned certain lots which were held jointly by the four partners. One lot was held in the name of two of the defendant partners. There is no contention, however, that all of the lots are not in fact the property of the partnership. The partnership also owns coal bins or sheds on leased property on the railroad right of way. Each of the partners devoted his full time to the partnership business, and each drew equal amounts therefrom until sometime in July, 1932, at which time the plaintiff withdrew from active work, and during the month of August, 1932, went to Kansas City for an operation. In August or September he returned to Iola and continued to visit the office, although he took no active part in the business. He was paid out of the partnership funds amounts equal to those received by each of the defendants, until April, 1933. Plaintiff at this time withdrew from active participation in the partnership and went to Kansas City. The partnership, both prior to and after plaintiff’s withdrawal therefrom, dealt in the coal and junk business. There are other facts about which some of the issues in this case revolve. They will be treated separately in connection with our discussion of appellant’s contentions of error.
The issues were joined under the allegations of a petition, answer and reply. Briefly stated, the petition in substance alleged that each of the four partners held an undivided one-fourth interest in the partnership. The petition asked for an accounting, dissolution and for such relief as would be proper under all the circumstances. The answer in substance was that an accounting would disclose that nothing was due and owing to plaintiff, that the present market value of the partnership property was about $11,000, and its liabilities about $5,000, and that an accounting would disclose that all of plaintiff’s interest in the partnership had been wiped out. Defendants prayed for accounting, dissolution and for judgment decreeing plaintiff to have no right or interest in the partnership assets and that plaintiff be required to execute and deliver to the defendants a conveyance of all of his interest in the real estate. The prayer of defendants’ answer was for such relief as to the court seemed just and equitable in the premises. The reply consisted of a denial of the allegations of defendants’ answer which were at variance with the allegations of the petition and stated that the value of the partnership property was approximately $20,000, and its liabilities less than $5,000, and that a proper accounting would show plaintiff’s interest to be in excess of $3,000.
The trial court appointed a referee, who made findings of fact and conclusions of law. It is considered unnecessary to set out those findings here. Specific complaint concerning them will be treated later.
Plaintiff filed exceptions to the findings of fact and conclusions of law, and also a motion asking for substituted findings of fact and conclusions of law. The exceptions and motion were overruled, except as to finding of fact number thirteen, which was:
“The referee finds from the evidence introduced that the good will of said business is without value.”
The memorandum of the trial court as to this item was that the partnership was a going concern and “that the value of the property as a going concern, including good will, is reasonably worth the value of $1,000.” The referee was ordered to make this and his other findings conform thereto. Thereafter the trial court adopted amended findings of fact and conclusions of law, and they were made a part of the journal entry. In the journal entry the finding as to good will reads :
“The referee finds from the evidence introduced that the good mil of the said business is of the value of $1,000.”
On the findings of fact and conclusions of law made by the referee, as amended, judgment was rendered. It allowed plaintiff a small money judgment and directed defendants to pay the money into court, and also ordered plaintiff to execute and deliver a deed to defendants covering his one-fourth interest in the partnership real estate. The judgment further provided that in the event such deed was not delivered within ten days after defendants paid the money into court, the judgment should constitute a good and sufficient conveyance of plaintiff’s interest in the real estate. It further provided that all of plaintiff’s right, title and interest in and to the personal property of the partnership should be transferred to defendants, upon the payment of the money judgment into court.
From this judgment plaintiff appeals. His contentions of error may be summarized under three propositions:
First, the partnership property, real and personal, was evaluated upon the basis of a bankrupt concern instead of being evaluated as a going concern.
Second, the referee and the court erred in finding that defendant partners had advanced certain moneys to the partnership which had not been repaid.
Third, all of the property should have been sold and the net proceeds distributed in accordance with the interest of each partner.
We shall treat these complaints in the order stated.
1. Under the first contention of error we shall consider the value placed on the real estate. Plaintiff fixed the value at $5,000. Mr. Bowlus, a banker at Iola, a witness for defendants, stated that a financial statement given to his bank in March, 1933, by the partnership estimated the value of the real estate at $1,500. He stated that he was familiar with the real estate and believed under existing conditions $1,500 would be a fair average estimate of. the value. John Reuter, who had been in the real-estate business in Iola for thirteen years, stated that he had examined the real estate owned by the partnership. He placed a value on each piece separately. His total estimated value for all the real estate was $2,200. The referee adopted this valuation of $2,200. Appellant stresses the fact that plaintiff’s testimony further showed that the assessed valuation of all the real estate was only $100 less than the $5,000 valuation placed thereon by plaintiff. He further urges the fact that the real-estate agent testified that he had not personally sold any lots equipped and used for similar purposes, and that he did not know of other lots in Iola available for similar use. The record does not disclose that any objection was made to the testimony of the real-estate agent. The weight to be given his testimony was for the determination' of the referee. There still remained the testimony of Mr. Bowlus, which placed the value at $1,500. It should be noted that the question whether the partnership was bankrupt or a going concern did not arise in connection with the valuation placed by any of these witnesses on the real estate. The value of the real estate was determined upon conflicting testimony, and the finding of the referee is conclusive here.
We shall turn next to the value placed upon equipment and stock on hand. Here again we have a conflict of testimony. The additional complaint, however, is that defendants’ witnesses evaluated this property on the basis of a bankrupt concern instead of evaluating it as a going concern. This is a more serious question and requires some examination of the record. Mr. Harry testified that he and Burnside made an appraisement of this property in 1933. Harry was vice-president and assistant secretary of the Steel Products Company of Iola. Burnside was a structural engineer for the same company. Harry stated that he was familiar with the market quotations and prices of scrap iron, scrap rope and other materials and with the value of machinery used in the junk business, having followed it for some twenty years. He stated that they appraised the property as if the business were in bankruptcy. They did not take into consideration the fact that it was a going concern, and estimated the market value of all the property for immediate sale. He said the value of physical property does not change in bankruptcy or out. The appraisement was made at the fair, market value of ,the property. They appraised all of the property as if it were going to be sold as of that date, and in making this appraisement were guided by no other consideration than to give the fair and reasonable value of these properties as of the date the appraisement was made.
Burnside identified an exhibit containing the itemized appraisement and stated that it represented the value of the partnership plant as appraised by him and Harry, and that it was' a fair and reasonable value of the real and personal property of the partnership. He stated that their appraisement concerned only the physical value of the material and did not take into account the value of the business as a going concern. The foregoing testimony of these witnesses is not set out in question and answer form. This evidence is a summary of what appears in the abstract and counter abstract.
We construe the testimony of these witnesses to be that the cash market value of this property is the same, on immediate sale, whether the partnership is bankrupt or whether it is a going concern. Since the property was not sold, the evidence was competent because it fixed the present cash market value of the property. A determination of its cash market value 'was necessary as a basis for immediate final settlement between the partners. Appellant’s contention is that the valuation of the partnership property as a going concern would be higher than the valuation of it as a bankrupt concern. There may be merit in the contention as an abstract proposition. We are obliged to deal with the evidence. There is ample evidence' here that the value of this kind of property is the same whether sold immediately as the property of a bankrupt concern or immediately as the property of a going concern. In fact, we find no evidence to the contrary. There was, therefore, a basis for the evaluations made by the referee and approved by the court.
2. Appellant’s second contention of error is that the referee and the court erred in finding that defendant partners had advanced certain moneys to the partnership which had not been repaid.
The referee found that the following advancements were made by the defendant partners to the firm: $497 by Leon, $375 by Morris and $300 by Sumner, and that none of them have been repaid. We have carefully examined the record. Leon’s advancements to the firm were through checks in September and November, 1933. The check from the firm to him in the sum of $368 is dated July 11, 1933. This check from the firm is prior to the advancements and hence could not have been given in part payment of those advancements. The brother, Morris, stated he had made his advancements in cash during the period from July to September of 1933. No evidence appears in the record before us tending to show repayment of this advancement. Sumner stated that he had made his advancement by check in the sum of $300, dated April 29, 1933, which check is in evidence. The firm paid him $300 by check on July 26, 1933. From this evidence alone it would appear that this advancement might have been paid. He testified that it had not been repaid. There is no record of cross-examination concerning the checks from the firm to the defendant partners. It appears that these checks were discovered after the trial among partnership papers and records which, by agreement, had been offered and accepted in bulk. What evidence, if any, there may have been in those miscellaneous records concerning the subject of advancements or any other phase of this lawsuit, this court cannot say. The referee believed defendants’ evidence concerning the advancements and that they had not been repaid. The trial court approved his findings. There is nothing here for review on that subject.
3. Appellant’s third contention of error, as previously stated, is that all of the property should have been sold and the net proceeds distributed in accordance with the interest of the partners.
Diligent search of the record discloses no objection to the method of distribution employed. Judging from the entire procedure and the introduction of evidence on values, it appears that this very method of settlement was contemplated by all parties concerned. This case was plainly tried upon the theory of fixing the value of the partnership property as a basis for distribution. No objection appears to have been made concerning that theory. This court has previously held that after a case has been tried upon a definite theory, appellant cannot here raise any question as to the correctness of such theory. (Abramson v. Wolf, 138 Kan. 856, 28 P. 2d 975. See cases therein cited.) Had either party entertained the notion that the partnership property was to be first sold and the proceeds divided in accordance with the decree in accounting, the introduction of evidence on the subject of value was a useless jesture. Had appellant’s present objection been made at the trial, the court might have ordered the sale of the property, but it was not obliged to do so. It was competent for the court, sitting as a court of equity, to adjudge the disposition of the partnership property, to order conveyances of partnership property and to make division of partnership assets. (Apple v. Smith, 105 Kan. 732, 185 Pac. 903; Apple v. Smith, 106 Kan. 717, 190 Pac. 8. See authorities cited in these two cases.) See, also, Meador v. Manlove, 97 Kan. 706, 156 Pac. 731.
Appellant urges that the case of Hatfield v. Tucker, 115 Kan. 367, 223 Pac. 291, is authority for the proposition that partnership property must be sold and the proceeds thereof distributed. With that contention we cannot agree. That case in no manner conflicts with the rule announced in the cases of this court. In the Hatfield case the petition prayed for an accounting and for the sale of the partnership property. The parties in that case stipulated that all the partnership property should be sold, and jointly requested the court to order the sale. In the instant case we fail to find a request by either party to sell the property. The prayer, while not a part of the pleading, shows that plaintiff did not ask for the sale of the property, but asked for such relief as would be proper under all the circumstances. Defendant asked for such relief as was just and equitable in the premises. We. find no reversible error in what the court did in answering the prayers of the parties.
Appellees call our attention to alleged typographical errors in amounts contained in certain findings made by the referee and ask this court to make the necessary corrections. In the light of the fact that some of the changes requested do not figure out exactly as indicated by appellees, and are generally challenged by appellant, we prefer to direct the trial court to make corrections of such typographical errors. It is so ordered.
The judgment is affirmed with directions as indicated. . | [
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|
The opinion of the court was delivered by
Johnston, C. J.:
This appeal presents for review an order of the trial court overruling the motion of defendant to strike from the files the intervening petition of the Constitution Indemnity Company.
The main action was brought by McBath against the Loose-Wiles Biscuit Company. McBath pleaded the facts and circumstances incident to an automobile accident in which an automobile driven by an agent of the biscuit company collided with the automobile driven by McBath. McBath concluded his petition with the following:
“The plaintiff makes no claim against the defendant for damages caused to the plaintiff’s car, for the reason that the same has been paid to the plaintiff by the insurance company [intervener] with whom he carries insurance.”
The defendant paid McBath $1,500 in settlement of his claims. The settlement was evidenced by stipulations filed April 13, 1931, which provided also for dismissal of the action at the cost of the plaintiff.
Prior thereto and on September 18, 1930, the Constitution Indemnity Company filed its petition for leave to intervene and its plea as intervener. The intervener adopted the allegations of McBath's petition as to the negligence of defendant; alleged that it had insured McBath against loss by reason of damage to his automobile caused by collision; that the policy contained a subrogation agreement whereby McBath assigned all right of recovery against any party for damages to the extent payment therefor should be made to McBath by this intervener. The intervener further alleged that pursuant to the terms of the policy it had reimbursed McBath for the damage to his automobile in the amount of $813.55, and it prayed judgment against defendant in that amount.
The defendant first filed an answer to the intervening petition, but later the court granted its request to have the answer withdrawn. The defendant then moved the court to strike from the files the intervening petition on the ground the matter pleaded was not involved in the pending action and was not related to, nor did it form a part óf, the cause of action in the main case. The motion was overruled, and defendant appeals.
The defendant cites R. S. 60-417, and points out that no real or personal property was involved in the action. It is argued also that the intervener would neither gain nor lose by the effect of any judgment between McBath and defendant. We are of the opinion the intervening petition was properly allowed. Technically it may not have been proper under the above section, but consideration should be given to other statutes, such as those providing for joinder and substitution of parties, for interpleader and the like, and to the purpose and spirit of the code and the disposition of courts to favor final settlement of controversies and to prevent multiplicity of suits.
In 20 R. C. L. 684 it is said:
“And in addition to the statutes authorizing intervention, code and general statutory provisions exist in some states which, without expressly conferring the right to intervene, indicate a purpose to authorize and require the court to bring before it all persons necessary to a complete determination of the matters involved and to the granting of all the relief appropriate to such determination, and these statutes have been so liberally construed as to cause the courts to permit proceedings which, while not strictly speaking intervention, accomplish substantially the same result.”
And on page 686 the following:
“Persons entitled to subrogation to a right or cause of action should, at least in equity, be treated as the owners thereof, and as such entitled to intervene for the purpose of assisting the persons to whose interest they are subrogated or of taking such other action as may be essential to protect their right. And while privies may intervene, as is hereafter shown, intervention is sustained, though the party seeking that remedy is not in privity with any of the original parties, and the judgment in the original proceeding, had it been rendered in his absence, could not have operated directly, either for his loss or gain.” (See, also, 123 A. S. R. 298 et seq.)
In Beren v. Marshall Oil & Gas Corp., 122 Kan. 134, 251 Pac. 192, it was said that—
“Intervention may in many situations be allowed without express statutory authority, in the discretion of the court.” (p. 135.)
See, also, Gibson v. Ferrell, 77 Kan. 454, 94 Pac. 783.
The court had before it the subject matter of the action. Any evidence that would have been pertinent and competent to establish McBath’s right of recovery for personal injuries would have been equally pertinent and competent to establish intervener’s right of recovery. It was in the interests of economy of time and money to permit the intervention.
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The opinion of the court was delivered by
Harvey, J.:
This action involves the construction of a deed executed by defendants to plaintiff and a contract executed by all the parties. Plaintiff contends the deed conveyed to him the title to the real-estate property described therein, and that the contract gave defendants an option to purchase the property within a time stated, at an ascertainable price, which option had not been exercised. Defendants contend the deed and contract should be construed together as constituting an equitable mortgage. After hearing the evidence and construing the instruments the trial court found generally for plaintiff and rendered judgment quieting his title to the property. Defendants have appealed.
The facts are not seriously controverted and may be stated as follows: The real property in controversy consists of a farm and some property in the town of St. George. Title to the real property, by inheritance, was vested in Clarence H. Floersch, his mother, Theresa C. Floersch, and his brother, Gerard Floersch. The mother and brother were nonresidents of this state. Clarence and his wife lived upon and operated the farm and rented the town property, and he appears to have had charge of business matters concerning the property. He transacted his banking business with the St. George State Bank, of which the plaintiff, H. H. Holuba, was cashier. In August, 1932, the real property in question was encumbered by a first mortgage of $11,000 to one George Ault, upon which there was accrued unpaid interest of $760. There was accrued unpaid taxes of. $158, plus penalties. There was also a second mortgage on the property to the St. George State Bank in the sum of $3,500, with $495 accrued unpaid interest. Clarence H. Floersch was also indebted upon a promissory note of $519.59, with $63.56 accrued interest, to the mercantile firm William Dalton’s Sons, and was also indebted upon another promissory note in the sum of $1,165, with accrued interest of $58.25, to the St. George Oil Company. These two notes last mentioned appear to have been unsecured. George Ault had brought an action in the district court to foreclose the mortgage of $11,000 with accrued interest. With matters in that situation Clarence H. Floersch had a talk with the plaintiff. They appear to have reached some agreement with respect to the properties and the above indebtedness, but details of that are not disclosed by the evidence except as they are incorporated in the instruments later executed. It appears plaintiff suggested he would draw the contract, but Clarence H. Floersch wanted his attorney to draw it, and this was agreeable to plaintiff. He went to Manhattan and employed an attorney to draw the contract, and gave to him all the data and information which the attorney had from which to draw the instrument. After it was drawn the attorney sent for all the parties and suggested to plaintiff he had better have an attorney. Plaintiff thought he could read the contract and understand it and that he did not need one. The contract was read and executed by the plaintiff in this action and his wife as parties of the first part and the defendants in this action as parties of the second part. The defendants executed to the plaintiff their general warranty deed to the real property, subject only to the first mortgage in the amount of $11,000 in favor of George Ault.
The contract recited the various items of indebtedness above mentioned and the fact that the first mortgage was being foreclosed, and that certain costs had accrued in connection therewith, and recited in substance that the first party, plaintiff in this action, now proposes to second parties that if they would execute the deed just mentioned he would agree to pay the amount of the second mortgage to the bank, the note to William Dalton’s Sons, the note to the St. George Oil Company, the taxes, with penalty, the interest on the first mortgage, and costs in the foreclosure action. It was further agreed that the second parties should have the income and the use of the property until March 1, 1933, without charge, and the first party would rent to second party the real property for the year beginning March 1, 1933, to March 1, 1934, for which the second parties agreed to pay as rent one half the crops produced on the premises and one half of the rent received from the property in town. It was further agreed that parties of the second part should have the exclusive right “to redeem” said real property from “all indebtedness so paid by parties of the first part, together with interest thereon,” at six percent, “at any time they may see fit within the period of eighteen months” from the date of the contract. It was further agreed that if the second parties did so redeem such real property within the time stated the first party would make and execute to them his warranty deed for the real property, subject only to the $11,000 mortgage, and in the event they failed to so redeem said premises, then the deed should become absolute and the second parties be forever barred from any right, title or interest in the property.
After the execution of this contract the plaintiff paid, or caused to be paid, the indebtedness to the St. George State Bank, to William Dalton’s Sons and to the St. George Oil Company; and the canceled notes representing such indebtedness were delivered to defendants. Plaintiff also paid the taxes on the property then due, and later taxes as they accrued. Plaintiff also paid off the first mortgage, with accrued interest, and the costs of the foreclosure action, and surrendered the notes representing that indebtedness to defendants. To enable him to do this plaintiff placed a new mortgage on the property for $11,000. The defendants Clarence H. Eloersch and' wife remained in possession of the property and received all the income from it until March 1, 1933, as the contract provided, and beginning on that date for the next year occupied the same as tenants of the plaintiff and paid to him the rent provided in the contract. They did not “redeem” or pay to plaintiff the moneys he had paid out, as above stated, within the eighteen months after the execution of the contract, nor did they offer to do so within that time, or later.
The oral testimony simply described matters already stated in the contract, or concerning which there was no controversy, except on two points: (1) There was testimony on behalf of defendants to the effect that after the deed and the contract had been executed, and while they were still at the attorney’s office, plaintiff stated to Clarence that he would try to help him sell the place, and that he wanted Clarence to have all there was in it above these various items of indebtedness. On behalf of plaintiff there is testimony that no such statement was made. (2) Defendant Clarence H. Floersch testified that sometime in the latter part of the year for which he was paying rent he went to plaintiff and asked for more time to get a federal loan to pay off everything. Plaintiff denied this and said defendant came to him and wanted to lease the place again for another year, and that he told defendant that the property was leased to other parties.
The trial court made a general finding for plaintiff, the effect of which is to find for plaintiff on these controverted matters. Perhaps this is not very material, for had the court found for defendants on those matters concerning which there was a conflict of testimony the finding would hardly have been sufficient alone to have sustained defendant’s contentions to the effect that the understanding all the time was that plaintiff was simply advancing this money for defendants and taking the deed as security for the. amount so advanced.
Appellants first contend they were entitled to a jury trial, which the court refused. This contention is based upon the form of plaintiff’s petition, which was in two causes of action. In the first cause of action plaintiff alleged that he is the owner and entitled to immediate possession of the real property in controversy, describing it, arid that defendants unlawfully keep him out of the possession thereof. Plaintiff then pleaded at length the execution of the deed and the contract, the circumstances under which they were executed, and his view of his rights thereunder, and alleged that by reason of these instruments he was the owner of the full legal and equitable title to the property, and that defendants claimed some interest in the property, the nature of which he did not know and for that reason could not state. The second cause of action was for damages plaintiff is alleged to have sustained by reason of the fact that defendants did not vacate the property at the time specified in the contract. The prayer was that defendants be required to set forth all claims they may have of title or possession to the property, that such claims be adjudged void, that plaintiff be adjudged the owner of such property and entitled to its possession, and that defendants be barred from any right, title, or interest therein. Copies of the deed and contract were attached to the petition as exhibits.
Defendants answered by a general denial, except they admitted the execution of the deed and contract, and by a cross petition pleaded the deed and contract previously mentioned, the circumstances under which they were executed, and alleged they were intended as a mortgage and as security for a debt, and prayed that the instruments be adjudged to constitute a mortgage, and that, plaintiff be required to foreclose it, as provided by law.
Plaintiff’s reply to this cross petition was a general denial and a plea of estoppel.
When the case was called for trial counsel for both parties stated in open court that the only question involved was whether the deed and contract constitute an absolute conveyance with an option to repurchase, or a mortgage to secure a debt. In their brief in this court appellants advise us the case was tried in the court below upon their theory. The journal entry of judgment discloses that trial was had upon the first cause of action. No evidence was offered on the second cause of action, nor is there a specific reservation of it for trial at a future time. We may regard it, therefore, as having been, abandoned by plaintiff.
Whether a party is entitled to a jury trial as a matter of right is to be determined from the pleadings. (Gresty v. Briggs, 127 Kan. 151, 272 Pac. 178.) In determining this question the court should disregard the form of the pleadings and look to the essential nature of the controversy between the parties as disclosed by the pleadings. That is the controlling matter. (Boam v. Cohen, 94 Kan. 42, 145 Pac. 559; Akins v. Holmes, 89 Kan. 812, 816, 133 Pac. 849.) Here it is clear from the pleadings that the real controversy between the parties — in fact the only controversy — is whether the deed, in view of the contract, should be construed to be a mortgage. Defendants’ answer made that the sole controversy, and the case was tried on defendants’ theory. Such a controversy is equitable in its nature, and neither party is entitled to a jury as a matter of right. (Hockett v. Earl, 89 Kan. 733, 133 Pac. 852; Lindberg v. Pence View Farming Co., 140 Kan. 138, 140, 33 P. 2d 1102.) More than that, had a jury been called in this case the court would have been compelled to interpret the contract and to tell the jury, as a matter of law, whether, in view of it, the deed constituted a mortgage. Since there was no material controverted parol testimony the jury would have had no function to perform except to follow the instructions of the court. In such a circumstance it is not error for the court to refuse a jury trial. (Lincoln State Bank v. Breazier, 122 Kan. 423, 251 Pac. 1080.) The fact that plaintiff’s petition might have been drawn in a different form and so that this question would not have been presented becomes immaterial, since it is clear from the pleadings as a whole that the only controversy between the parties concerned the construction of the contract. The essential nature of the controverted issue being whether the deed should be construed as a mortgage, and this being a matter clearly for a court of equity, the fact that the petition contained averments proper in an ejectment action does not require a trial by jury. (Houston v. Goemann, 99 Kan. 438, 162 Pac. 271; Rayl v. Brown, 108 Kan. 385, 195 Pac. 611; Winkler v. Korzuszkiewicz [Shusky], 112 Kan. 283, 211 Pac. 124.)
Turning now to the essential controversy between the parties and the principal point argued here, namely: Did the trial court err in holding the deed from defendants to plaintiff to be a conveyance of title to the real property and not a mortgage to secure a debt? It is elemental that a mortgage to secure a debt can have no substantial existence unless there is a debt to be secured by it. This not only accords with the common understanding, but is in harmony with the authorities. (Lincoln State Bank v. Breazier, supra; State Reserve Bank v. Groves, 125 Kan. 661, 266 Pac. 42; Benson v. Rosebaugh, 128 Kan. 357, 364, 278 Pac. 41; Lindberg v. Pence View Farming Co., supra; Jett & Wood Merc. Co. v. Koeneke, 141 Kan. 791, 44 P. 2d 199.) If by the record in this case any debt is shown to exist from defendants, or any of them, to the plaintiff, or to anyone else, it must be found in the written contract between the parties, the substance of which has been stated. Examining the contract, we are unable to see that any such debt exists. The record does not show that defendants were indebted to plaintiff in any sum. They were indebted to Ault, the St. George State B.ank, Wm. Dalton’s Sons, the St, George Oil Company, and for taxes and court costs. All these debts have been paid, and the notes evidencing such debts have been canceled and surrendered to defendants, hence, none of those debts continue to exist. By what was done was any debt created from defendants to plaintiff? The contract contains no statement of such a debt. Defendants did not promise to pay plaintiff any sum at any time. Plaintiff could not have maintained an action for debt due or owing to him from defendants against defendants, or any of them, upon any of the covenants of the contract. We are compelled to hold the trial court correctly concluded that the contract evidenced no debts from defendants, or any of them, to the plaintiff, or to anyone else. Whether the instruments, notwithstanding, were understood and intended by the parties to create, acknowledge, or evidence a debt may sometimes be shown . by parol evidence. (See annotation 79 A. L. R. 937-958.) Here there is no evidence of that character on which to rely. We are left to the construction of the written instruments.
Appellants point out some language in the contract which perhaps was inaptly used. The words “redeem” and “right to redeem” obviously were used in the sense of repurchase and right to repurchase. The expression to the effect that if defendants failed to redeem or repurchase within the time stated “then the deed shall become absolute” was a phrase emphasizing determination of defendants’ right to repurchase and to have the property reconveyed to them, and should not be construed — as appellants would have it— that the deed itself was intended to convey no title until the end of the eighteen months’ period. The language in the contract with respect to the indebtedness paid by the first party (plaintiff in this action), with interest at six percent, fixed a basis for computing the amount defendants were permitted to pay, and which if paid by them would entitle them to a reconveyance of the property to them. It does not indicate an indebtedness from defendants to plaintiff, as appellants would have it interpreted. The contract simply gave defendants the exclusive option to repurchase the property at any time within eighteen months, at an ascertainable price, depending upon when the option would be exercised. It did not bind defendants to repurchase. They never exercised the option. More than that, defendants occupied the property for a year as tenants of plaintiff and paid rent as any other tenant would do. This is a recognition of title in plaintiff and is inconsistent with a claim of title in themselves.
We find no error in the record. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment overruling a demurrer to an amended petition in which the state seeks to recover from the defendant bank the sum of $150,000, which it is alleged the bank misappropriated and misapplied to its own use out of state funds deposited in the bank.
This civil action is one consequence of a series of crimes pertaining to misuse of state funds, various chapters of which are chronicled in our reports, and which culminated in the incarceration in the penitentiary of two of the participants and the suicide after conviction of another. (State v. Finney, 139 Kan. 578, 32 P. 2d 517; State v. Boyd, 140 Kan. 623, 38 P. 2d 655; State v. Finney, 141 Kan. 12, 40 P. 2d 411.)
Before scrutinizing the state’s amended petition it may serve to shorten that task, and aid us in determining the propriety of defendant’s demurrer thereto, to summarize the least controversial facts and circumstances on which the state chiefly relies to fasten this large liability on the defendant bank.
On and prior to June 30,1933, one T. B. Boyd was state treasurer. On that date and for a long time prior thereto the National Bank of Topeka, defendant, was one of the selected state depositories in which the state kept its funds subject to check as its fiscal needs might require. The defendant bank, on June 30, 1933, held state funds on deposit to the amount of $1,282,177.57. Under its bond for the security of such deposits, it might lawfully have held state funds to the amount of $700,000. The Eureka Bank of Eureka, Greenwood county, was also a state depository, under a bond which would authorize it to hold state deposits in the sum of $90,000. Another bank which figures incidentally in the material matters of present concern was the Fidelity State and Savings Bank of Emporia.
In June, 1933, and for some time prior thereto, one Ronald Finney was a borrowing customer of the defendant National Bank of Topeka. He had obtained a loan from that bank in the sum of $150,000. As security therefor he had pledged bonds of various municipalities of the face value of $151,600, some of which, perhaps all of which, were either sheer forgeries or were the property of the school fund of the state of Kansas.
One W. W. Finney, father of Ronald Finney, was the president of the Fidelity State and Savings Bank of Emporia. Both these Finneys were influential with T. B. Boyd, state treasurer.
About June 30, 1933, the defendant bank became aware of the questionable character of the securities pledged to secure the Ronald Finney loan, and it demanded that the Finneys pay off that loan and withdraw those securities. This demand was summarily complied with as follows: Boyd, state treasurer, drew a check on the National Bank of Topeka for $150,000 in favor of the Eureka Bank and delivered it to W. W. Finney. He stamped it with the indorsement of the Eureka Bank, and also with the indorsement of the Fidelity State & Savings Bank of Emporia, and delivered it to the defendant bank as a deposit to the credit of the Emporia bank; whereupon the defendant bank charged against the state’s deposit account the amount of the state treasurer’s check, $150,000, and credited that sum to the Emporia bank, and charged against it the amount of Ronald Finney’s note, and surrendered to W. W. Finney the questioned securities.
This devious transaction was initiated and consummated on June 30, 1933, without the state treasurer’s check passing through either of the banks of Eureka or Emporia, and without there being any bona fide transaction to warrant the drawing of a check against the state’s deposit in the defendant bank in favor of the Eureka bank. The net result of this alleged legerdemain was the loss of $150,000 to the state of Kansas. And whether the defendant bank was a culpable coadjutor in this criminal transaction or merely the innocent instrumentality through which it was accomplished is the gist of this lawsuit.
Plaintiff’s original petition, a document of six printed pages, was subjected to a motion to make more definite and certain. The motion was sustained in part, whereupon an amended petition, extending to twelve printed pages, was filed. (See addendum.) Various motions leveled at it were overruled, and defendant then demurred on two grounds:
“1. That the petition does not state facts sufficient to constitute a cause of action.
“2. That several causes of action are improperly joined.”
This demurrer was overruled, hence this appeal.
Touching first on defendant’s second ground of demurrer, that several inconsistent causes of action were improperly joined, the state asserts that but a single cause of action is pleaded, and only a single cause of action is intended to be pleaded; and that the elaborate recitals of its petition are merely the number and variety of facts which comprise it.
While the amended petition sets out at length certain matters which would suggest questions of law touching the regularity of the bank’s status as a state depository and the limitations of that status, no liability is sought to be fastened on the defendant on that account. If the bank was insolvent and the safety of the state’s deposit was a serious question, the distinct and peculiar liability of the bank as a trustee ex maleficio, if such it be, would assume an importance which does not exist in this lawsuit. Neither is liability sought to be fastened on the defendant because the Eureka bank had not qualified and could not qualify as a state depository for $150,000 if the state treasurer’s check had been drawn in its favor for such a purpose; nor is it intended to fasten liability on the defendant on the ground that no legitimate transaction did or could arise which would justify a transfer of the vast sum of $150,000 of state funds from the Topeka bank to the Eureka bank. Either the defendant knowingly participated in the alleged scheme to rid itself of the Ronald Finney loan and the questionable securities pertaining to it, through what was no more than a mere simulation of a treasury and banking transaction which had no legitimate basis, or it is not liable for the alleged loss of funds the state may have sustained. It is on this relatively simple issue of fact and the legal consequence which will attach thereto that the state’s cause of action is based; and this court holds that the second objection raised by the defendant’s demurrer to the state’s amended petition was not well taken, and the trial court’s ruling thereon was correct.
With the foregoing question out of the way, defendant’s contention that the amended petition did not state a cause of action should not be difficult of solution. Bearing in mind that for the purpose of testing the sufficiency of the amended petition every material fact alleged and every reasonable inference justified thereby are to be construed favorably to the pleader, just what can be said to be wanting to a sufficient statement of the state’s cause of action? The state alleges that through the alleged maneuvers of defendant and the state treasurer and W. W. Finney it has lost $150,000. It alleges that the various alleged steps by which that loss was caused were knowingly participated in by the defendant. It takes nothing from the materiality and gravity of these allegations for the defendant at this time to argue that so far as the defendant bank was concerned the transaction had the prima facie semblance of regularity. When this case is tried to a jury that argument may serve the defendant to good purpose. But for the purposes of this appeal, the defendant bank admits the truth of all the material allegations of plaintiff’s petition. Therefore it would be a travesty on justice for this court to hold that it does not state a cause of action. It is needless in this opinion to stress the outstanding features of the petition which compel this conclusion.
It may be that the amended petition descends to unnecessary length in narrating probative details. That was partly brought about because defendant did not choose to join issues on the simpler, but essentially identical, cause of action alleged in the state’s original petition. The amplifications of the state’s pleading appearing in the amended petition may serve as matters of evidential detail for both plaintiff and defendant. In our view, so far as pertinent, such details might be introduced in evidence at the trial without being pleaded — for all the bearing they now appear to have on the vital questions upon which this lawsuit eventually must turn.
Plaintiff’s petition stated a cause of action; it contains no misjoinder of causes; and the judgment of the district court is affirmed.
Wedell, J., not sitting.
APPENDIX
“Amended Petition
“The plaintiff for its amended cause of action against the defendant alleges:
“First. That Roland Boynton is the duly elected, qualified and acting attorney general of the state of Kansas, and is authorized to maintain this action in the name and for the use and benefit of the state of Kansas.
“Second. That the defendant, the National Bank of Topeka, is a corporation organized and engaged in business under’ the banking laws of the United States of America concerning national banking associations, and having its principal office and place of business in the city of Topeka, Shawnee county, Kansas.
“Third. That from about the month of January, 1929, until October 1, 1933, one T. B. Boyd was the treasurer of the state of Kansas, and as such was intrusted with and had the custody of the moneys and credits of said state, and by virtue of his said office, held the same in trust for the use and benefit of the state of Kansas, and which the defendant bank at said times well knew, and that as such treasurer he did deposit in the National Bank of Topeka large sums of money belonging to the state of Kansas, which were credited in said bank to the account of the treasurer of the state of Kansas; that said bank at said times well knew that the moneys so deposited belonged to the state of Kansas and should be withdrawn only upon proper authority and for proper public purposes of the state of Kansas.
“Fourth. That upon June 30, 1933, there was upon deposit in the National Bank of Topeka, and in the name of the treasurer of the state of Kansas, moneys and credits belonging to the state of Kansas in the sum of about $1,282,177.57, and said bank knew at such time that all of such moneys and credits were the property of the state of Kansas and subject to be withdrawn only for proper public purposes.
“That at all times herein mentioned and complained of the statutes of Kansas specifically, expressly and positively prohibited the depositing of state funds in any bank as a depository unless and until said depository had first submitted its written proposal to the board of treasury examiners of the state of Kansas, setting forth the amount of funds said bank desired, the rate of interest such bank would pay on daily balances, and agreeing that said bank, if given an award, would qualify and deposit the necessary securities (75-2401 R. S. 1923) to protect said deposits, which securities required the approval of the board of treasury examiners before any deposit should be made in such bank (75-2405 R. S. 1923), and the statutes further specifically, expressly and positively prohibited the awarding to any one bank of more than $300,000 as an active account or a total deposit of more than $700,000 in any bank either as an active, inactive or emergency deposit, and said statutes further specifically, expressly and positively prohibited any deposit at any time in any de pository of moneys, drafts, warrants, orders, checks or certificates of deposit (75-2405, R. S. 1923) in excess of the face value of these securities given by such bank, unless and until said depository should notify the treasurer of the state of Kansas of its election to come under the provisions of sections 2 and 4 of chapter 162, and section 1 of chapter 8, Session Laws of Kansas, 1933, that is, 9-306, 9-308 and 9-309 of the 1933 Supplement to the Revised Statutes, which permitted a depository, after such notification to the state treasurer, to deposit bonds and securities equal in amount and face value to 70 percent of the amount of such deposit; and the statutes of Kansas further provided that unless a bank designated as a depository so deposited the necessary securities within thirty days after being designated as a state depository, it should forfeit its award and right to accept deposits as a state depository (75-2405, R. S. 1923); and said statutes further required any bank desiring to become a depository of state moneys to agree in its proposal not only to qualify and deposit the necessary securities aforesaid, but in addition to faithfully perform its duties required of such depository (75-2401, R. S. 1923). The said statutes further provided that the state treasurer should publish in the official state paper a public notice showing the name of every bank making a bid, the amount of its paid-up capital, the amount bid' for and the rate of interest offered, and that thereafter the state treasurer should publish in the official state paper a public notice containing a list of the banks which the board of treasury examiners had designated to receive awards and act as state depositories, together with the sum awarded in each case (75-2402, R. S. 1931 Supp.). Said statutes further provided that no bank should be awarded an inactive deposit for more than 100 percent of its paid-up capital and surplus (75-2402, R. S. 1931 Supp.). Plaintiff alleges the defendant well knew each and all of said statutory requirements and prohibitions and was bound by law to take notice thereof and to conform thereto.
“Plaintiff alleges that the defendant bank, on and immediately prior to June 30, 1933, had a paid-up capital of $500,000 and a surplus of $200,000 and the Eureka Bank of Eureka, Kan., had a paid-up capital of $50,000 and a surplus of $30,000, all of which the defendant well knew.
“Plaintiff alleges that on or about the first Monday in July, 1931, the board of treasury examiners of the state of Kansas met and caused to be prepared a notice stating that it would, within two months thereafter, receive proposals from the incorporated banks, both national and state, doing business in Kansas, for the deposit therewith of the public funds of the state in accordance with the provisions of the statute upon the subject of the deposit of public funds. Such notice was published for a period of thirty days in the official state paper, that is, The Topeka Daily Capital. In response to such notice, the defendant bank and the Eureka Bank of Eureka, Kan., among others, filed with the board of treasury examiners their proposals or bids for the deposit of public moneys.
“By such proposals the defendant bank bid for a deposit of state moneys with it in the active account, in the amount of $300,000, and in the emergency account in the amount of $400,000, and the Eureka Bank of Eureka, Kan., bid for such deposits in the inactive account in the amount of $40,000- and in the emergency account in the amount of $50,000, all of which the defendant well knew.
“Thereafter and on or about August 15, 1931, the board of treasury examiners met and made awards for the deposit of public moneys in banks, and awarded the deposit of such moneys in the defendant bank in the amount of $300,000 in the active account, and the amount of $400,000 in the emergency account, and awarded the deposit of such moneys in the Eureka Bank of Eureka, Kan., in the amount of $40,000 in the inactive account and the amount of $50,000 in the emergency account. On August 17, 1931, the state treasurer, as required by law, caused to be published in the official state paper, that is, The Topeka Daily Capital, a complete statement showing the name of every bank making a bid, the amount of its paid-up capital, the amount bid for and the rate of interest offered, which included such information in regard to the bids which had been made by the defendant bank and the Eureka Bank of Eureka, Kan. After such award, and on August 17, 1931, the state treasurer, as required by law, also caused to be published in the official state paper, that is, The Topeka Daily Capital, a public notice giving a list of the banks receiving awards and the sums awarded in each case, and such notice so published notified the public that the board of treasury examiners had awarded a deposit to the defendant bank in the active account in the amount of $300,000, and in the emergency account in the amount of $400,000, and had awarded to the Eureka Bank of Eureka, Kan., a deposit in the inactive account in the amount of $40,000, and in the emergency account in the amount of $50,000; all of which matters contained in such bids or proposals, awards and notices, the defendant well knew. The above were the amounts, limits and distribution of the awards of deposits of state moneys in said two banks at the times herein mentioned.
“The defendant well knew at all the times herein mentioned that neither the defendant bank nor the Eureka Bank of Eureka, Kan., had been lawfully designated as provided by law, as a depository to receive a deposit of public moneys in excess of the amounts hereinbefore stated.
“Plaintiff alleges that the defendant bank did not at any time before public moneys were deposited with it under said award, or within thirty days after the making of said' award, or at any time whatsoever have on deposit with the state treasurer of the state of Kansas sufficient securities as required by law for either its award or such deposit of public moneys, and on and prior to June 30, 1933, it had forfeited by operation of law any right or claim to act as a depository of state funds, if it ever had any such right in the first instance, which this plaintiff denies.
“Plaintiff further alleges that no securities deposited by the defendant bank with the state treasurer as security for the deposit of such public moneys with the defendant bank, had been approved by the board of treasury examiners of the state of Kansas.
“By reason of the matters herein stated, the state treasurer had no right or authority to deposit any public moneys or funds in the defendant bank, and the defendant bank had no claim or right to act as a state depository, or to receive and retain public moneys, all of which the defendant at all times well knew. The defendant bank had further failed to keep the active deposit of state funds and the emergency deposit of state funds with it in separate and distinct accounts and deposits, but had carried the same as one deposit.
“The defendant bank had never notified the treasurer of the state of- Kan sas, or the board of treasury examiners of the state of Kansas of any desire by it to take advantage of sections 2 and 4 of chapter 162, Session Laws of Kansas, 1933, that is, 9-306 and 9-308 of the 1933 Supplement to the Revised Statutes of Kansas, or of section 1, chapter 8, Session Laws of Kansas, 1933, that is, 9-309 of the 1933 Supplement to the Revised Statutes of Kansas, concerning carrying a deposit with the state treasurer of securities for the public moneys deposited with said bank in an amount equal to 70 percent of the amount of deposit awarded to such bank as a depository.
“On and about June 30, 1933, the defendant bank had on deposit with it state moneys wrongfully and unlawfully, and in one lump account in the amount of $1,282,177.57, and at the same time the defendant bank did not have on deposit with the state treasurer securities in the amount and face value to exceed the amount of $401,150, and the securities which the defendant bank had on deposit with the state treasurer at said times had never been approved by the board of treasury examiners of the state of Kansas, and the defendant bank did not have on deposit with the state treasurer securities approved by the board of treasury examiners, in one contingency, equal in amount and face value to the amount of the public moneys deposited with it, and in the other contingency, equal to 70 percent in amount and face value of the public moneys deposited with it.
“In the matters herein set forth, the defendant bank had violated its agreement to faithfully perform the duties required of it as a state depository, and on June 30, 1933, and at all the times herein mentioned, it well knew that the board of treasury examiners had not and could not authorize the deposit of state moneys with said bank, which the bank then held, and it knew such deposit was made up of funds collected by taxation from the people of the state of Kansas for specific public purposes and not for any private use or purpose.
“By reason of the matters herein stated,, the defendant bank was legally disqualified from receiving or retaining such deposit of state moneys, or of any.claim or title thereto, and it had no right to retain such deposit of public moneys.
“By reason of the premises and the matters and things hereinbefore set forth, the said deposit of public moneys with the defendant bank on or about June 30, 1933, was held by it without authority and in violation of law, and constituted a trust fund held by it solely for the use and. benefits of the state of Kansas.
“In addition to the foregoing, the said $150,000 withdrawn and converted by the defendant from the deposit of the state of Kansas with the defendant to its use and benefit as herein stated, by virtue of such withdrawal and conversion became impressed with a new, further and additional trust in the possession of the defendant from and after the instant of such withdrawal, conversion and unlawful application by the defendant bank.
“Fifth. That upon June 30, 1933, the National Bank of Topeka, defendant herein, in disregard and in violation of the rights of the state of Kansas, did knowingly and fraudulently take and apply to the payment of a personal indebtedness and obligation of one Ronald Finney to said National Bank of Topeka, and for other purposes as hereinafter stated, the sum of $150,000 of the moneys and credits of the state of Kansas so upon deposit in said bank, and did thereby misappropriate and misapply to the use and benefit of the said bank and of others said sum of $150,000 belonging to the state of Kansas, to the loss and damage of the said state in said amount.
“That all of the facts and circumstances concerning the misappropriation and misapplication of said funds and credits are known to the defendant and to its officers; but that so far as this plaintiff has been able to ascertain, said misappropriation and the misapplication of said funds and credits were accomplished in the following manner:
“That for a long time before June 30, 1933, said Ronald Finney had been an active customer of the National Bank of Topeka, and had owed to it large sums of money which had been secured by the deposits of purported warrants of various municipalities of the state of Kansas, and of purported bonds of municipalities within said state; that certain of such indebtedness was represented by purported municipal bonds which said Ronald Finney had gone through the form of selling to the National Bank of Topeka, and which he in turn had agreed to repurchase from said bank; that upon June 30, 1933, there was in said bank more than $150,000 of purported Kansas municipal bonds which said Ronald Finney had placed in said bank, and upon which said bank had advanced to said Ronald Finney the sum of approximately $150,000, and which Ronald Finney had verbally agreed to repurchase from said bank for the amount which said bank had advanced thereon. A list of such bonds, to the best of plaintiff’s information and belief, is attached hereto, marked ‘Exhibit A,’ and made a part of this amended petition. That before June 30, 1933, said bank had demanded of Ronald Finney that he repurchase said bonds from it and pay to said bank the amount which it had advanced to him thereon; that at such time said bank and all its officers knew that such purported municipal bonds then so held by it were either forgeries and worthless, or that they were the property, of the school-fund commission of the state of Kansas and of this, plaintiff, and that said bank had no right to hold the same.
“That upon said day and through the influence of said Ronald Finney and W. W. Finney, and the defendant bank, as hereinafter stated, there was issued by T. B. Boyd, treasurer of the state of Kansas, a check upon the account of the state of Kansas, in the National Bank of Topeka, payable to the Eureka Bank of Eureka, Kan., for $150,000.
“On and before June 30, 1933, the defendant knew that the relations between Ronald Finney and W. W. Finney, and Thomas B. Boyd, the state treasurer, were close and intimate, and that the said Finneys had and exercised a dominating control over Thomas B. Boyd, and that such bonds either belonged to the state school fund and therefore should be on deposit with the state treasurer, or else were forged, and with such knowledge the defendant, a few days prior to June 30, 1933, orally demanded that Ronald Finney and W. W. Finney withdraw such bonds from the defendant bank and reimburse it for the loan or advance that it had made upon the same to Ronald Finney, and the defendant at the same time knew that if such bonds should not be withdrawn from the defendant, and it should not be reimbursed for its loan or advance thereupon, the transaction in regard to the bonds would become a matter of public knowledge and a public scandal would arise in regard to the bonds not being kept on deposit with the state treasurer that should be so kept, and forged bonds were being circulated and that .many of such bonds were in possession of the defendant, or that there were in the possession of the defendant bonds that belonged to the state of Kansas and which should be in the state treasury; and the defendant knew and intended that such demand for the withdrawal of the bonds and the reimbursement of the bank should be communicated by Ronald Finney and W. W. Finney to Thomas B. Boyd, state treasurer, and that an effort would be made by Ronald Finney and W. W. Finney to obtain wrongfully, from Thomas B. Boyd, the state treasurer, state moneys in order to repay to the defendant the amount that it had loaned or advanced upon such bonds, and that said Thomas B. Boyd, the state treasurer, in order to avoid a public scandal, would permit the moneys of the state to be used wrongfully for such purpose.
“Said treasurer had no power or authority to issue a check upon such account except for the lawful purposes of the state of Kansas and the defendant knew that said check was not issued or to be used for a lawful purpose of the state of Kansas.
“Plaintiff alleges that the defendant bank, on or about June 30, 1933, well knew that the Eureka Bank of Eureka, Kan., had no lawful authority or qualification to receive $150,000 of state moneys, by reason of the fact that its paid-up capital and surplus made a total of only $80,000, and further by reason of the fact that the award of the deposit of state moneys to the Eureka bank by the board of treasury examiners was in the total amount' not to exceed $90,000, and that any purported deposit of state moneys with the Eureka bank in the sum of $150,000 was wrongful and unlawful.
“Said check was presented to the defendant bank upon June 30, 1933, the day upon which it was written, and without said check ever having been in said Eureka bank, or having been indorsed by said bank or any of its qualified officers, as defendant well knew. A copy of said check and of all writings, impressions and punctures at any time put thereupon, is attached hereto, marked ‘Exhibit B,’ and made a part of this amended petition.
“Said check was presented to defendant bank by W. W. Finney, the father and agent of said Ronald Finney, who (that is, said Ronald Finney) was a debtor of said bank and from whom said bank had demanded payment for the bonds mentioned above; that in order to secure to the defendant bank the use of the moneys and credits of this plaintiff then upon trust deposit with the defendant bank in payment for the amount owing .to it by Ronald Finney, the defendant bank and W. W. Finney as the agent of the said Ronald Finney, went through the form of making the deposit of said $150,000 check mentioned above, to the acéount of the Fidelity State & Savings Bank of Emporia, Kan., in the National Bank of Topeka; that the defendant bank withdrew from the deposit of the plaintiff with the defendant bank $150,000, and credited it as aforesaid to the purported deposit to the account of the Fidelity State & Savings Bank of Emporia, Kan.; that at the same time, and as a part of its prearranged scheme to wrongfully and unlawfully obtain said $150,000 of plaintiff’s funds, the defendant caused checks to be drawn and paid upon the purported account so created, payable to the National Bank of Topeka, for the amount owing to said bank by said Ronald Finney; that some other check or checks, in the total amount of about $4,000, were, with the consent of the defendant bank, drawn and paid upon such purported deposit to the account of the Fidelity State & Savings Bank of Emporia, Kan. The date or dates and the totals of each of such other check or checks, and the application thereof are known to the defendant but not known to the plaintiff, but they were not applied to any purpose of the state of Kansas. Whether the authority of W. W. Finney to so act as agent for Ronald Finney was oral or in writing is unknown to the plaintiff.
“By means of the withdrawal of $150,000 upon said check for $150,000 from the trust deposit of the plaintiff with the defendant bank, and the .establishment of said purported account in favor of the Fidelity State & Saving Bank of Emporia, Kan., in the National Bank of Topeka, and the drawing of checks upon said account and the payment of the same therefrom, the defendant obtained and applied to its own use the sum of about $146,000 owing to it by said Ronald Finney, and the remainder, about $4$00, of said $150,000 was applied to other purposes than those of the state of Kansas, and all of said $150,000 was withdrawn as aforesaid from the trust deposit of the state of Kansas with the defendant bank and misappropriated and misapplied as aforesaid.
“Plaintiff states that the defendant bank, through all its officers, participated in all of the said transactions and were fully informed thereon and the purposes thereof; that the making and issuing of such check for $150,000, the withdrawal by means thereof of that sum from the trust deposit of the state of Kansas with the defendant bank, the deposit of the amount thereof in the purported account of the Fidelity State & Savings Bank of Emporia, Kan., and the giving and receiving of the checks upon the purported account so created from the moneys and credits of the state of Kansas, and the disbursement by means of checks of said purported account in favor of the Fidelity State & Savings Bank of Emporia, Kan., were not done in good faith on the part of the defendant or the others participating therein, but were done solely as a part of a fraudulent scheme and plan of said Ronald Finney, W. W. Finney and the defendant bank to enable the defendant bank to misappropriate and misapply the moneys and credits of the state of Kansas and to apply the same to the indebtedness of Ronald Finney to said bank, and of the sum of about $4,000 for other purposes as aforesaid; and that the defendant bank did thereby abstract, misappropriate and misapply to its own use and benefit and to the use and benefit of Ronald Finney and of others, the sum of $150,-000 of the moneys and credits of the state of Kansas on trust deposit in said defendant bank.
“That at the time when such moneys and credits of the plaintiff were so misappropriated and misapplied said defendant bank and all its officers knew fully concerning all of the facts set out above, and participated in said transactions, and that by reason thereof the state of Kansas has been deprived of the sum of $150,000.
“Sixth. This plaintiff states that upon the 23d day of February, 1934, the state of Kansas, through Roland Boynton, its duly elected, qualified and acting attorney general, made demand upon the defendant, The National Bank of Topeka, for the repayment to the state of Kansas of said sum of $150,000 so misappropriated and misapplied by said bank from the funds of the state of Kansas, with interest thereon, but that said bank has wholly refused to comply with said request.
“Wherefore, the plaintiff prays that it may recover from the defendant the sum of $150,000, with interest thereon at six percentum per annum from June 30, 1933, and for costs of suit.”
Exhibit A
_ (List of bonds mentioned in the petition in the transaction between Ronald Finney and the National Bank of Topeka.)
Par value Description
$25,000 Pratt County, Kansas, Rural High'School District No. 5, Ref. 414%, Bonds Nos. 1-25, Inc.
40.000 Johnson County, Kansas, School District No. 92, Ref. 4%%, Bonds Nos. 1-40, Inc.
10.000 Johnson County, Kansas, School District No. 92, Ref. 414%, Bonds Nos. 41-50, Inc.
10.000 Norton, Kansas, Int. Imp. 414%, Bonds Nos. 47-56, Inc.
7.000 Cheyenne County, Kansas, School District No. 1, Ref. 4%, Bonds Nos. 3-9, Inc.
20.000 Eureka, Kansas, Ref. 4%%, Bonds Nos. 1-20, Inc.
19.000 Kansas City, Kansas, Gen. Imp. 4%%, Bonds Nos. 32464-32477, Inc., and Bonds Nos. 32488-32492, Inc.
15.000 Kansas City, Kansas, Condemnation 4%%, Bonds Nos. 88, 115-119, Inc., 125-128, Inc., 159-160, Inc., 176-178, Inc.
3,600 Eureka, Kansas, Int. Imp. Pav. Bonds Nos. 6-9, Inc., 4%%.
2.000 Brown County, Kansas, Rural High School District No. 5, Bonds Nos. 27 and 29, 4%%.
Exhibit B.
(Note. — Face of check shows the following perforation: PAID 7 1 33.)
Pay to the order of Any Bank or Banker
Previous Indorsements Guaranteed
The Eureka Bank
83-225 eureka, Kansas 83-225
Pay to the order of Any Bank or Banker
Previous Indorsements Guaranteed
Fidelity State & Savings Bank
83-1301 EMPORIA, KANSAS 83-1301
Feed A. Baird, Cashier
The Fidelity State & Savings Bank
By W. W. Finney, Pst.
1 Paid through clearing house 1 or pay to the order of
Any Bank, Banker or Trust Co.
Prior Indorsements Guaranteed
349
Jul 3 1933
Nat’l Bank of Topeka
44-1 TOPEKA, KANSAS 44-1
H. D. Wolf, Cashier | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to recover the rent for a garage in Prescott, which had been paid for some time at an agreed rental of $45 per month. W. E. Glaves, the owner, died, and an agent of the heirs, whose authority is not questioned, talked to the tenant, L. L. Madden, about future rentals for the property, and after discussion of it and the payment of the amounts due they agreed on $25 per month instead of $45, and at that time Madden paid Glaves, the agent, $50, which was rent for April and May, 1932. The plaintiff then arranged for purchase of the property, but until he got his deed, the defendant did not know exactly to whom the rent should be paid. On September 3, 1932, the deed to the property was given to plaintiff, and on October 4, 1932, defendant gave the plaintiff a check for $100 on which was written at the bottom in left-hand corner, “For four months’ rent.” The plaintiff accepted the 'check and received the $100 on it. The trial court found that the defendant and the Glaves estate came to an agreement of $25 per month rent for the property after April 1, 1932; that the plaintiff and defendant talked over the matter of renting it at $25 per month, and defendant then stated he would pay no more than that amount; that after the plaintiff had obtained a deed 'he accepted a check for $100 for four months’ • rent, cashed it and actually obtained the money; and that he did allow the defendant to surrender the property to plaintiff and no claim for rent for the unexpired term of the lease is made;
The court concluded that the rent was changed, that the defendant is legally bound to pay only at the rate of $25 per month, together with six percent interest on all amounts remaining unpaid; and that on the full amount of rent due from defendant to plaintiff, a credit of $150, made up by the $50 paid to D. W. Glaves on or about April 1, 1932, and $100 paid to Sutherland in October, 1932, should be given.
It is appellant’s contention that the written lease could not be altered or varied by parol testimony or by a subsequent oral ar xangement and that any subsequent agreement, if made, is void for' want of consideration. In the case of Ely v. Jones, 101 Kan. 572, 168 Pac. 1102, it was held that a contract in writing may be changed by parol and that the mutual’ concessions of parties are sufficient consideration. (See, also, Strickland v. Woods Bros. Ind. Corp., 141 Kan. 114, 40 P. 2d 367.)
In 1 McAdam on Landlord and Tenant, 421, it is said:
“The consideration must consist of some benefit or advantage to the promisor, or some loss or disadvantage to the promisee in return for which the promise is made. The slightest consideration will support the most onerous obligation.
“Courts will not ask whether the thing which forms the consideration does, in fact, benefit the promisee or a third party or is of any substantial benefit to any one. It is enough that something is promised, done, forborne, or suffered by the party to whom the promise is made as consideration for the promise made to him.”
Ely v. Jones is a case of this kind where the consideration for such an agreement may consist in the mutual promises of the parties by which they agree to surrender their mutual rights under the original contract. In that case, while the answer pleaded a consideration for the agreement which would not in law be- sufficient, a promise to do that which the defendant was already bound to do, the surrender of mutual rights acquired under the original contract was held a sufficient consideration.
In Hurlbut v. Butte-Kan. Co., 120 Kan. 205, 243 Pac. 324, an action for rent, it was contended by appellant that an agreement made in July for a waiver of the rent on a tract of land for an indefinite time for the reasons stated, was not binding for a lack of consideration. The court said:
“This is really the only law question in the case. Treating this as a waiver of rent, a consideration is not necessary in all cases to support a waiver, it being a mere voluntary relinquishment of a known right.” (Citing a number of cases.) (p. 206.)
The case was disposed of on other grounds.
In Brown v. Cairns, 63 Kan. 693, 66 Pac. 1033, there was a provision for a lessor to remit a certain portion of the agreed rental for two years. The lessee found that the agreed rental which she had originally pledged could not be made out of the farm, which appeared to have been the fact. The lessor remitted the amount for the two years already passed, and agreed that lessees might remain in possession if they would keep and perform the conditions of the contract. This offer was accepted by the lessees. It was held that the new contract was valid and binding.
In 13 C. J. 588 it is stated what will constitute a discharge or modification of an original contract'. It is said there that since a contract is the result of an agreement it may be discharged at any time before the performance is due by a new contract.
In 13 C. J. 592, among other things, it is said that—
“A modified contract, may be supported by a consideration consisting in the compromise or adjustment of a doubtful or disputed claim, a modification of the obligations on both sides, the surrender of a right, the release of an existing liability, performance of acts to which the party is not bound by the original contract, payment of interest, or even the securing of an investment for money. The consideration of a modification of an executory contract may rest in the mutual assent of the parties to the new agreement, in the substitution of the new contract for the old, in mutual promises ter perform, or in the performance of the new contract. As to how far a duty which a party is already under a contract obligation to perform, may furnish a consideration for a modified agreement the courts are in some conflict.”
In 43 A. L. R. 1461 there is an extended note on different phases of the question and the authorities are grouped showing the holding of the courts thereon and showing that they are not in agreement on the question. The Kansas cases are mentioned and annotators suggest that they are contrary to a majority of the cases.
Another thing that is mentioned is that a modifying contract, when executed, does not require a consideration. It is said:
“It is a rule established by many well-considered cases that parties to a lease cannot escape from their secondary (modifying) agreement on the ground of want of consideration, where it has been fully executed, nor, if partially executed on both sides, can they repudiate that part of it which had been executed, though the unexecuted part may be repudiated unless grounds of equitable estoppel exist.” (43 A. L. R. 1458.)
There was -an executed agreement with Glaves, the original owner, when Glaves agreed with defendant on the reduced amount. Later plaintiff, being told that the defendant would not pay but $25 per month as rental, accepted the $100 which specified it was for “four months’ rent,” in payment of the rent at that figure. Whether it was on the original lease or on the new agreement, it was paid, and under our cases the consideration was sufficient for the new agreement. There was also sufficient consideration in the cession and surrender of mutual rights to support the agreement.
In any view, the judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment of conviction for the crime of forgery.
The principal facts and proceedings antecedent to this prosecution were these:
One Holland was arrested in Ford county on a charge of feloniously transporting a stolen automobile through Ford county. Holland was bound over to the district court, his bond being fixed at $3,000. The defendant, Frank Arnold, forged the signature of one Samuel Yeager, a substantial citizen of Sedgwick county, to a recognizance and presented and delivered it to the sheriff of Ford county for the purpose of securing Holland’s release from custody. The sheriff accepted the recognizance and Holland was set at liberty until his appearance would be required for his trial at the next term of the district court.
Some time later it was discovered that the signature of Samuel Yeager on the recognizance was a forgery, and Arnold was arrested on a criminal charge formulated in accordance with R. S. 21-620— that Arnold—
“Did then and there unlawfully, feloniously and willfully and with intent to have same uttered and passed and in consideration of the release of one A. J. Holland from the custody of the sheriff of Ford county, Kansas, deliver to Will Zurbuclcen, sheriff of Ford county, Kansas, a certain falsely made, forged and counterfeited instrument of writing, to wit (recognizance incorporated) contrary to the form of the statute,” etc. •
Arnold waived formal arrest, pleaded not guilty, and waived preliminary examination. At his trial in the district court the state introduced evidence of all the material facts, including details of the forgery of the name of Yeager as surety. In the body of the recog nizance, which had been drawn by an attorney employed by Arnold, there was an inaccuracy in the recital concerning the crime for which Holland had been bound over. The recognizance stated:
“Whereas, A. J. Holland has been arrested and is now held in custody to answer the charge of having committed the offense of ‘buying an automobile knowing it to have been stolen,’ ” etc.
At the conclusion of the state’s evidence, counsel for defendant moved for an instructed verdict of not guilty on the ground that the evidence failed to prove the commission of. the offense charged and also because it failed to prove any offense.
The record then reads:
“The Court: The court sustains your motion as laid yesterday, wherein you contended that the evidence offered fails to prove the commission of the offense charged in the second count of the information, and sustains it on the ground finding that that constitutes a variance between the information and the proof.”
[Counsel for Defendant] : “And you will so instruct the jury?
“The Court: And I will instruct the jury.
“The Court: Gentlemen oj the Jury: You are excused from further consideration of this case, the court having sustained a motion of the defendant on the ground that the evidence offered fails to prove the commission of the offense charged in the second count of the information; in other words, that there is a variance between the information and the proof. You will be excused so far as this case is concerned.”
[Counsel for Defendant] : “We ask that the court instruct the jury to bring in a verdict for the reason — the defendant asks that the court instruct the jury to retire to their jury room and bring in a verdict of not guilty.
“The Court: I think the same effect is reached by discharging the jury at this time from further consideration of the case. That is all, gentlemen.”
Defendant was forthwith discharged, but immediately rearrested on a charge formulated in accordance with R. S. 21-621, which, with other appropriate recitals, alleged that—
’ “On or about the first day of April, 1933, one Frank Arnold did then and there unlawfully, feloniously and willfully and with the intent to defraud one Will Zurbucken, sheriff of Ford county, Kansas, and in consideration of the release of one A. J. Holland from the custody of- the said Will Zurbucken as sheriff of Ford county, Kansas, did then and there unlawfully, feloniously and willfully and intentionally pass, utter and publish as true to the said Will Zurbucken, sheriff of Ford county, Kansas, a certain forged, counterfeited and falsely made instrument of writing, to wit:” etc.
The recognizance with a qualifying affidavit and forged signature of Samuel Yaeger, as surety, was incorporated in the information.
When the cause came on for trial defendant filed a plea in bar based upon the inconclusive trial whose proceedings have been stated above. This plea was overruled. A jury was called;' defendant interposed all the usual objections; these were overruled; the state’s evidence was adduced; defendant’s motion for a directed verdict was overruled. His counsel testified to some merely formal matters and the files of the preceding trial were offered in evidence. The jury returned a verdict of guilty. Defendant’s motions for a new trial and in arrest of judgment were overruled, and defendant was sentenced to a term in the penitentiary of one to seven years.
Defendant appeals, contending first that the recognizance was void and consequently it could not be a valid basis for the crime charged. The defect in the recognizance consisted of an inaccurate recital that the criminal charge for which Holland was in custody and whose release was effected through the forgery committed and uttered by Arnold was buying an automobile knowing it to be stolen, when the actual charge was that of transporting a stolen automobile.
The forged recognizance was drawn by defendant’s attorney. He or his counsel or both of them inadvertently or purposely misstated the nature of the charge against Holland; but that fact was of no consequence since it accomplished the purpose for which it was prepared, forged and uttered — deceiving the sheriff and securing the release of Holland from custody. There is no suggestion, and there could be none, that Holland was being held in custody under two criminal charges and that some' doubt might exist as to which of them the recognizance was to apply. In Tillson v. State, 29 Kan. 452, where the defense to an action on a criminal recognizance pleaded certain defects in the instrument, this court said:
“All that was ever necessary was, that the recognizance should either state or show that the defendant was charged with the commission of a public offense; and in any case if it was desired to know the exact nature and character of the offense, the parties so desiring were required to examine the other proceedings in the case. (See authorities above cited, and Gay v. The State, 7 Kan. 394, 404.)” (p. 457.)
In a case frequently cited in textbooks and decisions, O’Brien et al. v. The People, 41 Ill. 456, where the defense to an action upon a recognizance was that the principal cognizor had been examined and committed on a charge of burglary and the recognizance given to release him provided for his appearance to-answer to a charge of larceny, it was held that this inaccuracy could not avail as a defense by his sureties. ■
In the similar case of The People v. Meacham, 74 Ill. 292, it was said:
“It matters not whether the principal in a recognizance was examined on the charge for which he is indicted or some other, provided it was for a bailable offense. If examined for any offense which is bailable, the recognizance will be good.” (Syl. ¶ 2.)
In another similar case, Mooney v. The People, 81 Ill. 134, it was said:
"It is no valid objection to a recognizance, that it recites the finding of an indictment for larceny only, when, in fact, it was for burglary and larceny. If it binds the defendant also to abide the order and judgment of the court, and not depart the same without leave, this will require the accused to appear and answer any other charge that may be preferred.” (Syl. If 3.)
See, also, 6 C. J. 997, 998, and note in 38 L. R. A., n. s., 312, 325, et seq.
An examination of R. S. 62-1226 makes it clear that notwithstanding the inaccurate recital as to the nature of the criminal charge against Holland, to effect whose release the forged recognizance was fraudulently delivered to the sheriff, an action on the recognizance could not have been defeated; and no good reason appears why it should be held less efficacious in the criminal prosecution of present concern.
Defendant’s next contention is that the section of the crimes act (R. S. 21-621) under which this prosecution was predicated was not applicable. Defendant argues that the case first brought against defendant under R. S. 21-620, and which proceeded to the conclusion of the state’s evidence, was properly brought. Counsel for plaintiff and defendant are agreed that that case was taken from the jury on the ground that there was a variance between the information and the proof. Indeed, the scant record of that case submitted for our review, quoted at length above, is to the same effect. This court is therefore justified and indeed constrained to assume that in law and fact there had been a substantial variance between the information and the proof in the first case. Consequently there was nothing to preclude defendant’s subsequent arrest and prosecution on a charge more accurately formulated to conform to the evidence. Pertinent provisions of the criminal code cover this precise situation. These read:
“When it appears at any time before verdict or judgment that a mistake has been made in charging the proper offense, the defendant shall not be dis charged if there appears good cause to detain him in custody; but the court must recognize or commit him to answer to the offense, and if necessary recognize the witnesses to appear and testify.” (R. S. 62-1441.)
“When a jury has been impaneled in either case contemplated in the last two preceding sections, such jury may be discharged without prejudice to the prosecution.” (R. S. 62-1443.)
The next contention is that in the instant case there was a fatal variance in proof as to the party defrauded. The charge has been set out above. The evidence conformed thereto and covered all phases of the charge. The court’s instruction summarized the charge and appropriately advised the jury in respect thereto. And the verdict of the jury descended into details with unusual particularity. It reads:
“We, the jury impaneled and sworn in the above-entitled case, do upon our oaths find the defendant, Frank Arnold, guilty of passing, uttering or publishing as true to Will Zurbucken, sheriff of Ford county, Kansas, a forged instrument, knowing such instrument to be forged, with the intent to defraud the said Will Zurbucken, as defined by section 21-621, Revised Statutes of Kansas of 1923, and as charged in the information.”
Defendant argues that a criminal recognizance does not run'to the sheriff. It is an obligation to the state. The person recognized is a state prisoner and in its custody. All quite true, of course; but the state can only act through its authorized functionaries. The sheriff was and is the state’s authorized functionary to receive, approve and accept the recognizance. He had charge of the state’s prisoner. Only the sheriff could lawfully release the prisoner except by order of court. The pertinent provision of statute reads:
“A sheriff or other officer arresting a person under a warrant or other process, or holding a person in custody under a mittimus,- in or upon which warrant or mittimus it shall appear that the person is to be admitted to bail in a specified sum, may take the bail and discharge the person from actual custody. . . (R. S. 62-1215.)
The only way the state could have been defrauded in this case was by perpetrating a fraud on the sheriff — by inducing him to receive and accept as genuine the recognizance containing the forged signature of the purported surety Samuel Yeager. (R. S. 21-133.) The contention that there was a fatal variance in the proof as to the party defrauded is not sustained.
It is finally contended that defendant’s special plea in bar on the ground of former jeopardy should have been sustained. This plea is not available when an inconclusive result had been reached in a former criminal trial at the instigation of the defendant himself. (State v. McKinney, 76 Kan. 419, 420, 91 Pac. 1068; State v. Reynolds, 140 Kan. 269, 36 P. 2d 323, and citations; 16 C. J. 254; and note in 135 A. S. R. 70-73.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages for personal injuries alleged to have been sustained in a stairway leading to an apartment rented from defendant. Judgment was for plaintiff. Defendant 'appeals.
Defendant owned a building in Wichita known as 1805 and 1807 East Douglas avenue. This building consisted of two storerooms on the ground floor and three apartments on the second floor, two of these apartments being known as 1805 East Douglas. These were two' back apartments, and there was one stairwáy from the street by which these apartments could be reached. The apartment with which we are concerned, known as 1807 East Douglas, was the front apartment, and there was a stairway leading from the street to it. This stairway led to this apartment only. It could be used only in going out of or entering the apartment at 1807.
Some time about the early part of September, 1932, plaintiff rented apartment No.' 1807 from defendant. There was a hand-railing on the right wall on entering the stairway. This handrail ran from the street level all the way up the stairs. There was an electric light over the stairway. This light was on the meter for the apartment occupied by plaintiff. This light was controlled by a switch within the apartment occupied by plaintiff and also one at the bottom of the stairs. There was a door opening into the street at the bottom of the stairway and also one at the head of the stairway opening into the apartment. At the time the apartment was rented to plaintiff a key was given to her for the door at the top of the stairs but none was given her to the street door. It does not appear from this record that there ever had been a key to this door.
On the night of September 27, 1932, as plaintiff was coming downstairs and was about three or four steps from the bottom the handrail gave way and she fell. She was injured. This action followed.
The petition alleged the handrail was inadequately fastened to the wall and was incapable of sustaining the weight placed upon it by one using it in descending the stairs; that defendant had negligently kept the stairway in an unsafe condition and that this unsafe condition was without the knowledge of plaintiff, and defendant knew or by the exercise of ordinary care could have known of the unsafe condition of the stairway, and that by reason of the careless maintenance of the stairway plantiff was precipitated down the stairway and injured.
The answer of defendant contained a general denial and a plea of contributory negligence on the part of defendant. The jury found for the plaintiff. Judgment was entered accordingly. At the close of the evidence of plaintiff defendant demurred to it. This demurrer was overruled and the ruling is one of the errors urged.
At the outset of the case it appears that all parties are agreed that a landlord is under no duty to repair unless he has covenanted to do so or unless the repair should have been made to some part of the building control of which the landlord has kept to himself or which is used by more than one tenant in common with others. McGinley v. Alliance Trust Co., 168 Mo. 257, 66 S. W. 153, 56 L. R. A. 334, cited by plaintiff, so holds. There the court said:
“Ordinarily, when repairs are needed on a house in the possession of a lessee, he may make them; but no one else can enter the house to make repairs, without his permission, not even the landlord.” (p. 263.)
In Looney v. McLean, 129 Mass. 33, 37 Am. Rep. 295, it was held:
“Where a portion of a building is let, and the tenant has rights of passageway over staircases and entries in common with the landlord and the other tenants, there is no such leasing as will exonerate the landlord from all responsibility for the safe condition of that portion of which he still retains control, and which he is bound to keep in repair; as to such portion, he still retains the responsibilities of a general owner to all persons, including the tenants of his building.” (p. 36.)
This was not a common stairway as the term is generally used. It was used only as a means of entering and leaving the apartment occupied by plaintiff. No other person would have any use of it except for that purpose. If this particular apartment should be abandoned for some reason there would be no reason for this stairway ever being used.
Plaintiff does not urge otherwise, but argues that defendant retained control of the stairway when she was renting plaintiff the apartment. The following testimony is relied on:
“Q. 1807. Now, when you rented this property from Mrs. Lyman, at the time she gave you the keys, was there anything said about the stairways? A. I asked her for the keys of the front door, which was downstairs, and she said there was no key to that; the only key that I had was to the upstairs; that that was a public entrance — her entrance to my apartment.
“Q. What was said about who had control of this stairway? A. Presumably, I suppose, she had. She didn’t give me the key to it.
“Mb. Zelinkoff: Your honor, we object to that as a conclusion.
“The Court: Sustained. Stricken out.
“Q. What, if anything, further was said? A. She told me there was no key to it; that she had the right to the stairway; that I had the key to my apartment upstairs — entrance to my door after you entered the stairs was the only key; she had the right of way to the stairway.
“Q. She would have the right of way to the stairway? Now, this front door that you speak of, was that down on the street at the foot of the stairway? A. Right on the- street.
“Q. Just what did Mrs. Lyman say to you about that stairs? A. She told me there was no key to the part to the stahs — to the stairway; that the key she gave me was to the upper stairway, that that was of use for her to come to my apartment or other uses.
“Q. The stairway? A. The stairway; yes.
“Q. Was for her use and other people’s use? A. Yes, sir; I never had a key.”
It will be seen that, assuming the above testimony to be true, which we must do in considering a demurrer to the evidence, all defendant told plaintiff was that the stairway was for defendant to use if at any time she wished to call upon plaintiff or for such other people to use as wished to call upon plaintiff. This did not constitute a retention by defendant of control over this stairway so as to charge defendant with the duty of keeping it in repair. To constitute such retention of the use there must be use in common with other tenants or with the occupancy of the building by other tenants.
In Miller v. Mutual Mortgage Co., 112 Conn. 303, 152 Atl. 154, 75 A. L. R. 157, the facts were that defendant owned a house containing two apartments, one located on the first floor and one on the second floor. The first floor was occupied by plaintiff and her family and the second by another family. Each of the two apartments had a separate front entrance, but there was a common door opening onto a landing. From this landing a flight of steps led up to a hall on the level of the first-floor apartment, which hall was used by the tenants of both apartments. Stairs led up to a landing on a level with the second-floor apartments. The tenants of the first-floor apartment had no occasion to use the stairs leading up to the second floor for any purpose other than to visit tenants of that floor, as any member of the public might do. Plaintiff went from her apartment to visit tenants on the second floor. Part of the landing gave way and she was injured. The court held that the stairway was not a common approach but a part of the second-floor apartment, in control of that tenant, and that no portion of it was retained in the control of the landlord. The court said:
“A consideration entitled to much weight is the situation of the stairway with reference to the several apartments. ... If the stairway be so situated as not naturally to be regarded as intended for a common use by the various tenants, but only for use by one of them, this tends to signify that the parties intended it to be annexed to the premises included in the lease of such tenant. . . . The use actually made of the stairway and the circumstances attending it are also evidence of intention. . . . The finding is that there was no occasion for the first-floor tenants to use these stairs in connection with their tenancy. Such occasion, obviously, was confined to the tenants of the second floor, and they assumed all the care, such as cleaning, which, so far as appears, this portion of the premises received. No use of the stairs by the first-floor tenants, as such, in connection with their apartment, is disclosed. The conclusion that the control thereof was in the tenants of the second floor instead of the defendant landlord is warranted by the subordinate facts.” (pp. 305, 306.)
To the same effect is Brauner v. Snell, 35 Idaho 243, 205 Pac. 558, also Finkelstein v. Schlanowsky, 135 N. Y. Supp. 783, 76 Misc. 500, 25 A. L. R. 1282.
There is no evidence in this record of any covenant to repair on the part of the defendant nor does the plaintiff argue there was any such covenant. The case was tried throughout on the theory that liability of the defendant depended on the stairway where the injury occurred being a common one, and on defendant having retained control of it. We hold that the record does not contain any evidence whatever of this, but rather proved that the stairway in question was a part of the apartment occupied by plaintiff.
The judgment of the trial court overruling the demurrer of defendant to the evidence of plaintiff is reversed with directions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from a judgment in a partition action determining the rights of certain minor defendants.
There is little controversy as to the facts. Jessie Jane Shults had title to a quarter section of land which she and her husband mortgaged to the Thomas County Bank of Colby to secure a loan of $1,200. Thereafter and on January 3, 1924, Mrs. Shults died intestate, leaving as her heirs her husband and three minor children. The husband, L. H. Shults, was appointed guardian of the estates of the minors and collected $3,000 insurance moneys due them. Without any order of court, on March 7, 1924, he used $1,200 of this money and paid off the mortgage to the Thomas County Bank, and it was duly released of record. On or about December 11, 1926, the father executed a warranty deed conveying the lands to his three children, reserving to himself a life estate. This deed was not recorded until February 3, 1930. On March 30, 1929, in a suit pending in the Thomas county district court wherein the Levant State Bank was plaintiff and L. H. Shults was defendant, a judgment was rendered in favor of plaintiff and against defendant for $2,625.64. After execution had been levied on certain personal property, a levy was made on the apparent one-half interest of Shults in the involved real estate, and on sale the Levant bank bid the balance due on its judgment and the unpaid taxes amounting to $95.38, the sale was confirmed, and after the period of redemption had expired, a sheriff’s deed was duly executed and delivered to the bank on August 22, 1931. Thereafter the bank brought an action in partition, alleging that it was the owner of the undivided one half of the described real estate and that each of the three Shults children was the owner of an undivided one sixth thereof. The minors answered setting up the facts about the insurance, the payment of the mortgage with their moneys, the payment of taxes with their moneys, all of which it is alleged was without their knowledge or consent, and that the court should by proper decree impress upon the real estate a lien in their favor in an amount equal to the moneys unlawfully expended. They also alleged the execution, delivery and recording of the deed of their father to them. By reply, the bank denied knowledge of the insurance moneys, of the disposition made thereof, and alleged the facts with reference to the suit against L. H. Shults, the execution against the real estate, the sale and its confirmation, and that the interests of the minors are subject and inferior to the plaintiff’s interest.
After a trial, the court made findings from which the above statement is, in part, taken, and further found that there had never been any written trust agreement; that the bank paid.a valuable consideration for the land at sheriff’s sale and had no notice or knowledge of any claimed trust'relating to said land by the minors; that the deed from L. H. Shults to his children, which was placed on record, was never delivered to the grantees and was of no force and effect, but null and void; that the bank, since it received the sheriff’s deed, had never received any rents or profits from the real estate, and that at the time of the sheriff’s sale it had paid taxes amounting to $95.38, and that no fraud had been alleged or proved. The trial court concluded that L. H. Shults had the legal title to an undivided one-half interest in the described real estate at the time of the sheriff’s levy, but that the plaintiff, being an execution creditor, obtained no greater interest than L. H. Shults had; that when Shults used $1,200 of his wards’ money to pay the mortgage debt to the Thomas County Bank, only $600 was properly expended, and that as to the remaining $600 paid with the minors’ money, the minors should be subrogated to the holders of the first mortgage against the property to that extent; that the sum of $600 was directly traced into the one-half interest in the land held by L. H. Shults and equity and good conscience required that the minors be given a first and prior lien for that amount, with interest at six percent from date of the payment, on said undivided one-half interest; that plaintiff will be entitled to partition the real estate upon paying to the minors the sum of $600 and interest less the taxes paid by plaintiff, $95.38, with interest from date of payment to February, 1933, at twelve percent and thereafter at eight percent, and that if it does not elect within sixty days to make such payment, it have a lien against the land for taxes paid, with interest, and that its judgment against L. H. Shults, which was released as result of its bid at sheriff’s sale, be reinstated. Provision for division of the $600, if paid, and other matters need not be further noted.
Plaintiff’s motions to set aside the conclusions of law and for a new trial were denied, and it appeals, assigning these rulings as error.
Certain contentions made by the appellant will be noted briefly before taking up the doctrine of subrogation which the trial court seems to have applied. First, it is contended appellees are guilty of laches in asserting their claims against their guardian and father and complaint is made that they took no steps to dispute the rights of plaintiff acquired by the execution sale and confirmation thereof until in the instant suit. It may be remarked they were not parties to the first suit, they were minors, and the defendant in that action was their guardian. No default or silence of his can be used to bar them of their rights. Further than that there is no showing that plaintiff’s rights in any manner have been prejudiced by delay in the assertion of the minors’ claims.
It is also contended that the minors have a plain and adequate remedy at law in that they have a cause of action against the guardian and his bondsmen. It must be remembered that the minors did not institute this action. They are defendants and they are not compelled to exhaust whatever remedies they may have against the guardian and his bondsmen before asserting their rights in the real estate involved in this action.
There is considerable space devoted to the doctrine of subrogation and as to when it is to be applied.
It is not disputed as a matter of fact that the guardian used $600 of the minors’ money to pay a part of the mortgage indebtedness for which he was personally liable.
In Crippen v. Chappel, 35 Kan. 495, 11 Pac. 453, it was said that the right of subrogation or equitable assignment is not a matter of contract or lack of contract, but depends upon the facts of the particular case and upon principles of natural justice, and where it is equitable that a person -furnishing money to pay a debt should be substituted to the rights of, the creditor, it would be done. The above case was referred to in Kuske v. Staley, 138 Kan. 869, 28 P. 2d 728, where it was held that the mortgagee in a forged mortgage, the proceeds of which were used to pay off an existing encumbrance on the real estate in question, should be subrogated to the rights of the holder of the indebtedness that was paid off.
In the case before us, had the guardian not used the wards’ money to pay off the mortgage to the Thomas County Bank, the property would have remained encumbered, and the undivided one-half interest of L. H. Shults would have been subject to one half of the $1,200 mortgage, or $600. We fail to see why the position of the plaintiff, as an execution creditor, should be improved by the wrongful act of the guardian. Appellant argues, however, that under Hargis v. Robinson, 63 Kan. 686, 66 Pac. 988, the purchaser at an execution sale is a bona fide purchaser, that equity does not reward negligence, and that subrogation will not lie in favor of parties who purchase real estate subject to a mortgage and a judgment lien and thereafter pay the mortgage and cause it to be released, as against a third person who purchases at an execution sale to satisfy the judgment lien, where such parties paying the mortgage never assert any rights under it or claim that it has been kept alive for their protection. That case is readily distinguishable from the one at bar. The judgment lien was in existence when the purchasers bought the land and when they paid off the mortgage, and they had full notice from the records. They were in a position to protect themselves and did not avail themselves of it. Here the mortgage was paid and released as a result of an unlawful use of the minors’ money. The appellant had no interest in the property except as result of lévy of an execution on a judgment that came into existence long after the unlawful payment of which the minors had no knowledge or notice.
It has been observed that the trust fund belonging to the minors was traced directly to the payment of the mortgage on L. H. Shults’ undivided interest in the real estate. While the trial court found that the bank, as a purchaser at the execution sale, had no notice or knowledge of any claimed trust, and that it paid a valuable consideration, it is conceded that the consideration paid was the satisfaction of a preexisting debt. Under the circumstances, that was not a sufficient consideration. In Clingman v. Hill, 113 Kan. 632, 215 Pac. 1013, it was held:
“Property purchased by a trustee with trust funds wrongfully converted to his own use may be followed into the hands of one who acquired it without notice of the wrong, but who gave nothing for it beyond the discharge of a preexisting debt.” (Syl.)
And in the opinion it was said:
“Upon general principles of equity a trust fund can ordinarily be followed into the hands of one who takes it in payment of an existing debt, although without notice of its character, for the discharge of the debt by such means is ineffectual, and the rights of the creditor can be fully protected, so that he shall suffer no loss, while the beneficiary of the trust can be restored to his own. (Schulein v. Hainer, 48 Kan. 249, 29 Pac. 171; 39 Cyc. 567; Pomeroy’s Equity Jurisprudence, § 1048. Note, 35 L. R. A., n. s., 1174.)” (p. 634.)
It has been noted the trial court gave appellant sixty days to elect whether it would pay the minors $600 and interest. Pending the appeal it could not make such payment. The trial court should fix a further time in which the plaintiff may make its election.
The judgment of the trial court was correct and is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment impressing a liability on the surety on the official bond of a probate judge for defalcations of that functionary in his official capacity as county judge.
The facts developed by the pleadings and by stipulation of counsel were to this effect:
In .1925 the board of county commissioners of Phillips county established a county court as authorized by R. S. 20-801 et seq. At the general election in 1928 the defendant, Whitney, was elected probate judge. He gave the statutory bond with defendant, American Surety Company of New York, as surety thereon; and in January, 1929, he was inducted into the office of probate judge. At the same time Whitney assumed the duties of county judge. In November, 1930, he was elected to succeed himself as probate judge; gave bond with the same surety as before; and continued in the offices of probate judge and county judge until January 9, 1933.
Plaintiff’s petition set out four causes of action; the first related to a shortage in Whitney’s accounts as probate judge during his first term, in the sum of $130.90; the second alleged a shortage in his accounts as county judge during his first term, in the sum of $19.60; the third alleged a shortage in his accounts as probate judge during his second term, in the sum of $391; and the fourth alleged a shortage in his accounts as county judge during his second term, in the sum of $651.15.
Plaintiff prayed judgment for the aggregate of these sums and interest thereon,
The defendant surety company filed a special demurrer to the second and fourth causes of action on the ground that Whitney’s official bond as probate judge did not cover shortages in his accounts as county judge.
The demurrer was overruled, and the case is brought here for review.
The bond to qualify for the office of probate judge binds that officer and his sureties in a sum not less than $2,000 nor more than $25,000, as'fixed by the county commissioners, “conditioned for the faithful performance of the duties required of him by law, and for the faithful application and payment of all moneys and effects that may come into his hands in the execution of the duties of his office.” (R. S. 19-1101.)
Such a bond was the one sued on in this case. It goes without saying that the bond is a binding obligation of Whitney’s surety for his alleged defalcations in the first and third causes of action. Indeed the defendant surety does not contend otherwise.
But do the surety obligations of Whitney’s bond as probate judge extend to his alleged financial delinquencies as county judge? The bond reads:
“State op Kansas, Phillips County, ss. :
“W. C. Whitney, chosen probate judge of Phillips county, and the American Surety Company of New York, his sureties, do hereby jointly and severally agree to pay to the state of Kansas, five thousand ($5,000) . . . dollars.
“Whereas, the above bounden W. C, Whitney was elected to the office of probate judge, on the 4th day of November, a. d. 1030, now therefore, the condition of this obligation is such, that if the said W. C. Whitney, shall honestly and faithfully perform and execute the duties of said office required of him by law, during his continuance therein, by virtue of said election, and pay over to the proper person or authority all moneys that may come into his hands by virtue of said office, and deliver to his successor all books, records, papers, and other things belonging to his said office, which may be so required by law, then the above obligation shall be void, otherwise to be and remain in full force and effect.
TSigned] “American Surety Company of New York,
By W. R. Evans.
Sureties: (W. R. Evans), Resident Vice-President.”
It will be noted that the bond fully conformed with the terms prescribed by the statute. It was the duties of the office of probate judge which the principal and surety bound themselves that Whitney would faithfully discharge. It was the moneys which might come into Whitney’s hands by virtue of said office — the office of probate judge — which Whitney was to pay over to the proper person or authority.
The probate court is a tribunal created by the state constitution. Its probate jurisdiction extends to the care of estates of' deceased persons, minors, and persons of unsound mind. An additional jurisdiction in habeas corpus, not related to matters of probate but not incompatible therewith, is also conferred upon the probate court by the constitution. (Art. 3, § 8.) The statutes which deal with the powers and duties of the probate court are largely elaborations of the constitutional functions conferred and imposed upon the probate judge.
The county court is an altogether different sort of tribunal from the probate court. Its jurisdiction is both civil and criminal as prescribed in R. S. 20-808. The legislature considered that a person of suitable character and capacity to hold the office of probate judge would likely be a fit person to hold the office and exercise the functions of judge of the county court. It might have conferred the office of county judge on any other county officer whose duties would not be incompatible therewith. (Dyche v. Davis, 92 Kan. 971, 977, and syl. ¶ 2, 142 Pac. 264.) There was a stroke of economy as well as of compatibility and expediency in conferring the office of county judge on the probate judge, as the prescribed salary for the additional office is thereby held down to a minimum. (R. S. 20-804.) But the legislature makes it clear that it is an additional office and an additional salary which it is conferring on the probate judge:
“The judge of the county court shall receive as compensation for his services as such county judge a salary equivalent to one half of his salary as probate judge, which shall be allowed by the county commissioners and paid out of the county treasury; such allowance shall be in addition to his salary as probate judge.” (R. S. 20-804.)
The act creating the county court, or, more strictly, the act au thorizing the creation of the county court (R. S. 20-801 et seq.), does not require the county judge to give bond to insure his official fidelity, but that fact is not unique in Kansas law. Some of our petty magistrates are required to give bond. (R. S. 80-205, 13-601, 15-502, 20-1520.) In cities of the second class it is optional with the governing body whether the police judge shall give bond or not. (R. S. 14-205, 14-801.) With one exception, Atchison (R. S. 20-1520), the city judges of our principal cities are not required to give bond although the clerks and marshals of the city courts must do so. (R. S. 20-1621, 20-1622, 20-1702, 20-1706, 20-1823, 20-1928, 20-1929, 20-2022, 20-2023.) The judges of the state’s more important courts do not give bond, the assumption being that their fidelity rests most securely on the binding force of noblesse oblige.
But since the statute does not exact an official bond from the county judge, what shall we say to the plaintiff’s contention that the bond he gave for his fidelity in the discharge of his duties as probate judge should be extended by judicial interpretation to cover his fidelity in the discharge of his duties as county judge?
In our own case of State, ex rel., v. Moore, 137 Kan. 396, 20 P. 2d 518, it was held that the surety on the bond of a defaulting probate judge was not liable for moneys irregularly entrusted to his keeping but which it was no part of his official duty to receive and dispose of. The instant case is not strictly analogous to the Moore case, but we think the same reasoning applies. The moneys which came into defendant Whitney’s hands as county judge did not come into his hands by virtue of his office as probate judge, nor was the probate court in any way concerned with them.
Well-considered decisions in other jurisdictions seem to be agreed that where two offices are held by the same person, the fidelity bond which he gives in relation to one office does not cover any breach of duty in the other office. Thus in City of San Bruno v. National Surety Co., 119 Cal. App. 27, the city clerk, who also served as deputy marshal in the collection óf taxes, embezzled some of the moneys collected by her in her latter capacity. In an action against the surety on her official bond as city clerk, the surety’s demurrer to the city’s complaint was sustained. In affirming the judgment of the superior court, the appellate court held:
“When a person holds two distinct offices the bond of one does not cover his duties in the other, even though the holder of the first office is ex officio the holder of the second, nor are his bondsmen answerable for the dereliction of duties not pertaining to the office for which the bond was given.” (Syl. f 3.)
In State, for use, etc., v. Thomas, 88 Tenn. 491, the state treasurer of Tennessee held ex officio the office of insurance commissioner. In the latter capacity it was charged that he had committed some irregularities, and an action was brought on his official bond as state treasurer. The supreme court ruled:
“The state treasurer’s bond does not cover, and his sureties thereon are not bound for, that officer’s acts or defaults as ex officio commissioner of insurance.”
In Territory of Wyoming v. Ritter, 1 Wyo. 318, the headnote states the case and the ruling:
“Under the statutes of the territory of Wyoming, which provides that the judges of probate of the respective counties shall be ex officio county treasurers of the same, an undertaking given for the faithful performance, etc., of the duties of probate judge, is not an undertaking for such performance of duties of county treasurer by the same person, and the sureties on the bond for the former are not liable for the defaults and malfeasance of such probate judge while acting as county treasurer. To make a person an ex officio officer, by virtue of his holding another office, does not merge the two into one.”
In Arnold’s Suretyship and Guaranty, 410, it is said:
“It is becoming common to entrust the same person with duties pertaining to two or more offices. The question arises whether the bond given on his selection for one office covers defaults occurring while discharging other duties. It is conceivable that the language of the undertaking might cover a default of the principal in any capacity. But ordinarily this would not be true.”
To the same effect are Throop on Public Officers, 252, 253, and 46 C. J. 1067.
It is no departure from the general rule we have been discussing where it is held, quite properly, that where additional official duties are subsequently imposed on a public officer, his official bond will cover any breach of these added duties, although the bond was executed before they were imposed. Thus in Equitable Insurance Co. v. City of Newport, 194 Ky. 363, it was.held:
“Official bonds cover not merely duties imposed by existing laws but duties imposed by subsequent laws, but the rule is confined to those cases where the new duties are of the same general nature and character, and therefore belong to and are connected with the office, and does not apply where the new duties are disconnected from and foreign to the office.” (Syl. If 1.)
In Community High School v. Muller, 119 Kan. 216, 237 Pac. 650, one Copeland was elected to the office of trustee of a high school in Reno county. The statute required a fidelity bond which he gave. The same statute authorized the board of high-school trustees to choose one of their number as treasurer. Copeland was chosen treasurer and gave the requisite additional statutory bond to insure his fidelity as treasurer of the board of trustees. Copeland became a defaulter in a large amount. The sureties on his bond as treasurer of the board of trustees paid. The sureties on his bond as high-school trustee declined to pay. This court held they were liable. That case is readily distinguishable from the one at bar. Copeland’s office of treasurer of the board of trustees was merely incidental to his office as trustee. The offices were closely related to each other. He could not embezzle the funds of the high school without breaching the bond he had given for the faithful discharge of his duties as a high-school trustee. (Mechem’s Public Offices and Officers, § 285.) As we have seen, however, there is no integral relationship between the offices of probate judge and county judge; and it must be held that the shortages in Whitney’s accounts as county judge cannot be recouped out of his official bond as probate judge.
It follows that insofar as the judgment of the trial court affects the defendant surety company it must be reversed and the cause remanded with instructions to enter judgment in its behalf.
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The opinion of the court was delivered by
Smith, J.:
This was an action to compel specific performance of a contract for the conveyance of land. Judgment was for the plaintiff, striking the answer of defendants from the files. The defendants appeal.
0. Mills died on December 20, 1932. At his death he owned about 4,000 acres of Barber county land. He left surviving him his widow, Lora Mills, Orville .Mills, Jr., and W. C. Mills, sons, and Celia Mills Purdy, Elizabeth M. Elliott, Ethyl M. Ward and Mary M. Lake, all daughters. In his will O. Mills left one half of his real estate to his wife and the other one half to Celia Mills Purdy. He left the other children one dollar each. Some time prior to his death Mills had executed an instrument by which he had conveyed all his personal property to the daughter, Ethyl Ward. Orville Mills, Jr., was beneficiary in a life insurance policy in the amount of $1,570 on his father’s life. He had also received some cash from his father during his lifetime.
About January 1, 1933, all the children and their mother met and arrived at an agreement in the nature of a family settlement. In this agreement Celia Mills Purdy agreed to transfer to the other children an undivided one sixth interest in the real estate she had received under the will. Ethyl M. Ward agreed to transfer to the estate the personal property she had received before her father’s death. W. C. Mills, Elizabeth M. Elliott, Mary M. Lake and Orville Mills agreed to transfer to the estate all the property they had received during the last year of the life of Mills. In addition, Orville Mills agreed to transfer to the estate the proceeds of the life insurance policy that has been referred to, amounting to $1,570. It was agreed that Orville should prepare the necessary instruments. He did prepare two such instruments. One of these is the contract that is sued on1 in this action. It provided that Celia Mills Purdy agreed to convey to the other five children an undivided one sixth interest in the one half of the real property she had received by the will of her father within a reasonable time after the will of her father was probated. The other children agreed not to contest the will. The contract was signed by the six children. This action was instituted by Orville Mills, Jr. He named as defendant his sister, Celia Mills Purdy.
The petition set out the father’s will and alleged that by its terms Mrs. Purdy became the owner in fee simple of an undivided one half of the real estate.
The petition then referred to the written contract that has already been described. It alleged that it was made for the purpose of making an equal division of the estate of 0. Mills.
The petition then alleged that the defendant had not performed the contract, although plaintiff had not contested the will of the father.
The prayer of the petition was for an order directing specific performance of the contract to convey lands.
Celia Mills Purdy moved the court that her mother, Lora Mills, and the brothers and sisters be made parties defendant. This motion was allowed.
The defendants 'then filed an answer setting out the family agreement, to which, reference has been made. Time after time vital parts were stricken from the answer, and permission to file an amended one was granted. Finally an amended answer was filed that contained allegations about as they have been given here. In addition this amended answer alleged that the true consideration for the agreement was the family settlement which was not mentioned in the written contract sued on, and that the plaintiff fraudulently failed to insert the true consideration, which was the money he derived from the estate by way of the insurance policy in the written agreement.
The answer alleged there was a specific collateral agreement by the plaintiff that he would refund the money to the estate that he had received on the insurance policy for the benefit of the plaintiff and all the defendants and that when this was carried out plaintiff would be entitled to one twelfth of the real estate referred to in the petition.
The answer further alleged that defendants were not experienced in drawing contracts — that plaintiff was, and they relied on the plaintiff to embody all that was necessary in the agreement carrying out the family settlement; that if it is necessary for this agreement to contain the true and full consideration the defendants asked that the contract be reformed to embody this collateral agreement; that the plaintiff had not paid the sum of $1,570 to the defendants or to the estate of 0. Mills and that he was, therefore, not entitled to the relief prayed for until he did do so.
The answer further alleged that the contract sued on by the plaintiff stated no consideration as it thus stood.
The answer prayed that, plaintiff take nothing and that the agreement sued on be reformed to properly state the facts.
On motion of the plaintiff this answer was stricken from the files because the allegations in it were immaterial and did not constitute a defense to the action. The appeal is from that order. It amounts to sustaining a demurrer to the answer.
The theory of the plaintiff is that the answer is not good because in order to prove it the defendants would be compelled to violate the rule that oral evidence cannot be used to change or vary the terms of a written instrument. The rule relied on is stated in Brown v. Trust Co., 71 Kan. 134, 80 Pac. 37. It is as follows:
. . an unambiguous written contract . . . completed, is supposed to embody all prior understandings and negotiations, and is not to be enlarged, varied, or contradicted by parol testimony.” (Syl. U 1.)
The petition in this case pleads that the contract sued on was given for the purpose of carrying into effect a family settlement.
The answer that was stricken sets out facts from which we must conclude that not all the matters that had to do with the family settlement were included in the contract sued on.
The theory upon which family settlements are upheld is that they tend to prevent litigation between heirs which is so often wasteful and which engenders such bitter feeling between people who should have a tender regard for each other. The desire that family har mony should not be destroyed by an unequal distribution provided by will has been held sufficient consideration to support a family settlement. They have been said to be favorites of the law. See Myers v. Noble, 141 Kan. 432, 41 P. 2d 1021.
The trouble with plaintiff’s position is, first, that defendants do not seek to contradict or vary any of the terms of the written contract, and second, that plaintiff wants to eat his cake and have it too. He desires to get the benefits of a family settlement without carrying out the part that is a burden. The remedy of compelling the performance of a contract for the conveyance of real estate is an equitable one. In the enforcement of it a court seeks to do equity.
This court has considered this question in Fowler v. Marshall, 29 Kan. 665. This court said:
“Upon breach of a contract for the sale of real estate, it is not a matter of course for the court to enter a decree of specific performance. That will be done only when, upon all the facts, it is equitable it should be done.
“He who asks specific performance should show the facts which make such a decree equitable; and a failure to do this justifies a refusal of the decree.” (Syl. 111,2.)
In Burkhalter v. Jones, 32 Kan. 5, 3 Pac. 559, this court said:
“While in legal contemplation, two persons may make a contract that would be enforced at law, yet if it should seem probable from the facts of the case that the parties did not in fact and in equity agree to the same thing, the supposed contract would not be decreed in equity to be enforced specifically.”
In Bird v. Logan, 35 Kan. 228, 10 Pac. 564, this court said:
“A contract will be specifically enforced only where its specific enforcement is equitable; and generally, only where the plaintiff has in equity and good conscience a right to demand its specific enforcement; and generally, where a contract is itself inequitable, and where the defendant has been misled by the plaintiff or his agent into executing it, the contract will not be specifically enforced.” (Syl. f 2.)
See, also, Young v. Schwint, 108 Kan. 425, 195 Pac. 614, and authorities there cited.
If the allegations of the answer are true a more flagrant case of inequity can hardly be imagined.
The plaintiff meets the arguments of defendant with the statement that no matter how courts favor family settlements such a holding does not abrogate the parol evidence rule.
Specific performance of a contract will not be decreed where it appears that the plaintiff in equity and good conscience is not entitled to such relief. This can only be determined by an examina tion of the surrounding facts and circumstances. The only way these may be examined is by hearing parol evidence. Testimony cannot be received when the pleading which it seeks to prove is stricken from the files.
Quinn v. Roath, 37 Conn. 16, was a suit for specific performance of a contract for the sale of real estate. The respondent offered evidence of a parol contract which altered somewhat the terms of the written contract. This evidence was rejected by the trial court. The decision was reversed. The court said:
“Another reason might well have been urged why upon principle this evidence should not have been rejected. While no pretense of fraud is made in connection with the drafting or executing of the writing, yet proceeding upon the respondent’s claim which he desired an opportunity to prove, and in regard to which we cannot say he would not have been successful, the effort by the petitioner to enforce only the written, and entirely disregard and avoid the verbal, provisions, of the contract, was an attempt to compel the respondent to perform a different agreement from what was in fact made, and one which in consequence of the variation, and the petitioner’s subsequent default with respect' to it, was void. Such an attempt if made was unfair and unconscientious. It was an effort to make an unjust and fraudulent use of the written part of the contract, which might properly have been resisted by the introduction of the offered evidence.” (p. 31.)
Bradbury v. White, 4 Maine 391, was an action to compel specific performance of a contract for the sale of real estate. Parol evidence was offered. The court recognized the rule against receiving parol evidence to alter a written contract, but said:
“But when equity is called upon to exercise its peculiar jurisdiction, by decreeing a specific performance, the party to be charged is to be let in to show that, by fraud, mistake, or surprise, the written contract does not contain the terms really agreed. (Woollam v. Hearn, Townsend v. Stangroom, and Clinan v. Cooke, before cited; Clark v. Grant, 14 Ves. 519.) And this being done to the satisfaction of the court, the plaintiff will not be entitled to a decree for specific performance. If the plaintiff, therefore, in the case before us, is entitled to the relief he seeks, it must be upon the written contract as it stands. The defendant, however, may be permitted to show that, by reason of fraud, surprise, or mistake, it does not truly exhibit what was agreed between the parties.” (p. 395.)
In Berry v. Whitney, 40 Mich. 65, the court held:
“Fraudulent representations as to the legal effect of an instrument will avoid it, even if made to one who has actually read it, if unable to judge of its true construction. But the fraud must be contemporaneous with the execution of the instrument and must consist in obtaining the assent of the party defrauded, by inducing a false impression as to its legal or literal nature and operation.” (Syl. ¶[ 3.)
In Dwight v. Pomeroy and Al., 17 Mass. 303, the court held:
“In short, there are but two cases in which parol evidence can be admitted to control the operation of the legal provisions in a deed or written contract, in itself complete and intelligible. One is the case of fraud, of which the injured party may avail himself in a court of law, as well as in a court of equity; and the other is, where a party applies to a court of equity to enforce a written contract, and the adverse party is allowed to show, by testimony, that the instrument relied upon does not contain the true agreement of the parties, or the whole of it. If this latter case, the court of equity will withhold the exercise of its power, unless the party seeking relief will do full justice to the other party, according to the facts which are made to appear to the court.” (p. 328.)
See, also, Herron v. Rich, 95 N. C. 500; also, Electric R’y Co. v. Curtis, 154 Mo. 10; Averett, Trustee, and Als. v. Lipscombe, 76 Va. 404.
These authorities are recognized by the American Law Institute, which published the following rule:
“Agreements prior to or contemporaneous with an integration are admissible in evidence.
“(d) to prove facts in a suit for specific performance showing such mistake, oppression or unfairness as affords ground for denying that remedy.” (Restatement, Contracts, § 238.)
The question of the parol evidence rule was discussed in the case of Griesa v. Thomas, 99 Kan. 335, 161 Pac. 670. That action was on a written contract for the purchase of catalpa seedlings. The purchaser who had been sued showed certain fraudulent misrepresentations. The admission of these was attacked under the parol evidence rule. The court said:
“However dogmatically the rule is stated and reiterated in the decisions and textbooks that parol evidence is inadmissible to show the oral representations, negotiations and statements of contracting parties, leading up to their bargain, when later their contract is reduced to writing and signed by them, an invariable qualification of that rule is usually appended making an exception in all cases of fraud pleaded and proved.” (p. 339.)
See, also, Logan v. Collinson, 114 Kan. 620, 220 Pac. 291; Boxer v. Watchorn Oil & Gas Co., 120 Kan. 278, 243 Pac. 316.
In this case the answer sufficiently alleges fraud on the part of the plaintiff in inducing his sister to sign the contract sued on when it did not cover all the family settlement. It is also plain that the contract sought to be enforced is not the entire contract of the parties. We hold that the defendants had a right to prove the allegations of their answer and that if they are proved it is an answer to the relief sought in the action by plaintiff.
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The opinion of the court was delivered by
Hutchison, J.:
No. 32,440, The Kansas City Life Insurance Company v. Anthony. This case and the other four cases enumerated in -the heading of this opinion will be considered together, as they all involve the same main legal question as to the validity and binding force of chapter 226 of the Laws of 1935, being the last of the four acts known as the moratorium acts of the legislature of Kansas, passed during the years 1933, 1934 and 1935.
The dates and other facts in these five cases are slightly different, but not sufficiently so as to change the application of them under the moratorium law. None of the parties in these cases are interested in more than one of the cases. The cases all involve interests of different parties, come from different counties, have been tried by different judges and are here represented by different attorneys. We will consider under the heading of this first-entitled and numbered case the arguments, reasons and citations of authorities as contained in the briefs in all five of these cases.
They are all mortgage foreclosure cases in which judgments were rendered against the defendants, and an eighteen-month period of redemption was granted defendants after the date of each sheriff’s sale, and no appeal was taken in any of them from such judgments. In all of the cases the moratorium law was held to be constitutional and period of redemption was extended in all of the cases but one to January 15, 1937, and the plaintiff in each case appealed from such ruling. In none of the cases .was the feature of the existence of an emergency proved or disproved, but it was apparently left and considered as stated in the preamble or in the body of the acts themselves.
While we are concerned especially with the last of the moratorium acts, as it is the only one now, or at the time of the last ruling of the trial court in any of these cases, which covers or covered the extended period in question, yet the four acts are definitely coupled together so as to constitute a continuous and unbroken period from March 21, 1933, to January 15, 1937, a period of three years, nine months and twenty-five days.
The first one of such laws, enacted March 21, 1933, was an automatic legislative extension of the period of redemption for six months from March 4,1933, to September 4,1933, followed by an authorization of a further extension of six months,- or to March 4,1934, by the governor of the state, which was so extended by the governor, but such further extension has been held by this court to have been a delegation of legislative power which rendered that part of the act unconstitutional and the extension thereunder void and inoperative. (Oakland State Bank v. Bolin, 141 Kan. 126, 40 P. 2d 437; and Langworthy v. Kadel, 141 Kan. 250, 40 P. 2d 443.)
The next act was chapter 3 of the Laws of 1934 (Special Session), which became effective March 3, 1934, and which provided for an extension of the period of redemption in eases where, as provided by law and as extended by the two -branches of the act of 1933, the period of redemption had not expired, the court might deem it just and equitable to grant such extension, but not beyond March 1, 1935.
The third act, being chapter 225 of the Laws of 1935, effective January 16, 1935, was an automatic legislative extension of the period of redemption. It was described in the title of the act, as well as in the body thereof, as an amendment of the act of 1934, and in the first section thereof it was connected up with both parts of the act of 1933 and the extension was to March 1, 1935.
The fourth and last act is chapter 226 of the Laws of 1935, which in the first part of the second section thereof connected and coupled itself up with the last two acts above described as a continuation of the extensions authorized or granted by these acts, and, as in the 1934 act, authorized the district court to extend the period of redemption as it deemed just and equitable, but in no event beyond January 15, 1937. This act was to become effective March 1, 1935, and specifically provided in section five that “This act as to redemption from sales on mortgage foreclosure shall apply only to mortgages made prior to March 21, 1933.”
Each of the last three acts contained a thirty-day automatic extension within the final periods of extension, and they also contained provisions for the courts ascertaining and imposing reasonable rental charges upon the mortgagor while in possession of the mortgaged premises during such extensions.
All these acts, either in the preamble or the body of them, base the granting of such extensions upon existing emergencies, which puts to a test the meaning of that word when extended over a period of nearly four years.
In this particular case the petition in foreclosure was filed July 6, 1932, the petition showing that no interest had been paid since September 19, 1931, and no taxes had been paid since 1930. Judgment was entered by default on September 10, 1932, and period of redemption fixed at eighteen months from date of sale. No appeal was taken from this judgment. Sheriff’s sale was had on October 15, 1932, at which time the property was bid in by the plaintiff for the full amount of the judgment, interest, taxes and costs. The period of redemption would expire April 15, 1934. The sale was confirmed October 19, 1932. On April 3, 1934, the district court granted an extension of the period of redemption under the act of 1934 until March 1, 1935. No appeal was taken from that order. On March 8, 1935, defendants filed a motion for further extension under the second act of 1935 to January 15, 1937. This was resisted by plaintiff, but on March 23, 1935, the court extended the period of redemption to January 15, 1937, and established a rental value. From this order the plaintiff has appealed.
The third act, or chapter 225 of the Laws of 1935, is the only one of the four acts which appears to be an amendment of any other act and to repeal the former, act, in compliance with the constitutional requirement in that particular (section 16, article 2 of the constitution of Kansas), and it amends and repeals section 2 of chapter 3 of the Laws of 1934 Special Session. None of the other three acts attempt to repeal or amend any other law by any specific reference thereto. The last act, chapter 226 of the Laws of 1935, states in the first part of section five thereof that “Every law and all the provisions thereof now in force insofar as inconsistent with the provisions of this act, are hereby suspended until January 15, 1937.” No authorities, constitutional or otherwise, are cited in any of these five cases for legislative suspension of former legislation, other than by amendment and repeal, with which there was no attempted compliance in any but the one instance.
But we are more concerned with the legal question of the power of the legislature to suspend or abrogate the judgments or decrees of courts. It is urged in support of these laws and the orders made by the district courts extending the redemption periods, that courts already had inherent power and authority in equity cases to extend periods of redemption, citing Quinton v. Adams, 87 Kan. 112, 123 Pac. 740, where it was said:
“Instances are many in which courts have extended the period of redemption. In Neef v. Harrell, 82 Kan. 554, 109 Pac. 188, this court ordered the time extended, and indeed we can see no reason why a court expressly vested with equitable powers should be called upon, not only to see that a creditor receives every cent that is due him, but also to permit the debtor to suffer a great and unnecessary sacrifice in addition to making such full satisfaction.” (p. 115.)
This authority, as stated in the opinion, is based upon what is now R. S. 60-3463, which concerns the authority of courts to confirm sheriff’s sales and make orders as to the issuing of sheriff-sale certificates and sheriff’s deeds. The same rule was followed in Piatt v. Flaherty, 96 Kan. 42, 149 Pac. 734, and other cases. If courts of equity already had inherent power and authority to make such extensions, the enactment of moratorium laws might not be necessary for the exercise of such power, especially when in two of the four laws, above described, full power was given to the court to exercise the same within certain definite limitations as to time — the other two extending the period automatically by legislative declarations.
The courts of Kansas have long had not only such inherent power to remedy wrongs by subsequent orders, but have had statutory authority to correct mistakes and irregularities as provided in R. S. 60-3007, 60-3009, 60-3010 and other sections. It was held in Martin v. Miller, 97 Kan. 723, 156 Pac. 709, and Marsh v. Votaw, 102 Kan. 747, 172 Pac. 30, both concerning mistakes as to the period of redemption in foreclosure cases, that the statutory rules and provisions must be observed in making any such corrections or modifying judgments or orders already made by the court.
This brings us to the most important question in all five of these cases as to the force and effect of a statute which directly or indirectly attempts to nullify, modify or set aside a judgment of the court or any of the terms of a judgment rendered before the passage of the act. This court held in Greenwood v. Butler, 52 Kan. 424, 34 Pac. 967, as to the 1893 redemption act which increased, in the regular manner by amendment and repeal, the period of redemption in foreclosure cases from six months to eighteen months, that—
“Chapter 109 of the Laws of 1893, concerning the sale and redemption of real estate, does not have the effect to change or nullify any of the terms of a judgment duly rendered before the passage of that act, directing the sale of lands, or any interest therein, for the purpose stated in said judgment.” (Syl.)
It was further held in the opinion—
“. . . that judgments rendered prior to the passage of the act are not affected by it, and that all sales of land under such judgments must be made in accordance with their terms, and will pass such estates as are thereby ordered to be sold.” (p. 431.)
This ruling was followed and approved in the case of Sheldon v. Pruessner, 52 Kan. 593, 35 Pac. 204.
In Watkins v. Glenn, 55 Kan. 417, 40 Pac. 316, and Beverly v. Barnitz, 55 Kan. 451, 40 Pac. 325, it was held that the new act had no retroactive operation. In the opinion rendered upon the rehearing of the last-named case, 55 Kan. 466, 42 Pac. 725, a distinction was made at page 488 between the facts therein and those in the Greenwood case, adhering to the ruling in the Greenwood case where it applied to a judgment rendered before the new law was enacted, and emphasized, the fact that in the Beverly case the new law became effective after the execution of the mortgage and after the beginning of the foreclosure action but before the rendition of the judgment foreclosing the mortgage.
Some qf the appellees in support of the orders of extension rendered in these cases insist that the original order as to the sale of the property encumbered and the allowance of the eighteen-months period of redemption is no part of the judgment proper, and have cited the following from 33 C. J. 1051:
“A judgment is the sentence of the law upon the ultimate facts admitted by the pleadings or proved by the evidence. It is not a resolve or decree of the court, but the sentence of the law pronounced by the court upon the action or question- before it.”
Under the same general heading it is also provided:
“A judgment is the end of the law. Its rendition is the object for which jurisdiction is conferred and exercised. It is the power by means of which a liability is enforced against the debtor’s property.”
So we think under these definitions that part of the order of the court which has reference to the enforcement of the liability against the debtor’s property is as much a part of the judgment as the conclusion of the amount of the indebtedness itself, although these orders are sometimes made in connection with the confirmation of the sale.
The finality and validity of judgments is well expressed in 6 R. C. L. 162, as follows:
“Since the legislature does not possess and may not assume the exercise of judicial powers, it cannot interfere in any way with pending judicial controversies. Therefore the legislature cannot annul or set aside the final judgment of a court of competent jurisdiction, or take particular cases out of a settled course of judicial proceedings, or grant a rehearing or appeal after the parties to a final judgment have lost the right to any further hearing, or set aside the judgments of courts, or revive judgments which have expired, or grant new trials, ... or direct the steps which shall be taken in the progress of a judicial inquiry.”
Some of the citations to texts consider a judgment in the nature of a contract and thus bring it under the constitutional inhibition as to the violation of the obligation of a contract.
Section 711 of volume 2 of Freeman on Judgments, 5th edition, is cited and urged as a ground for fixing the validity of the order of the court in extending the period of redemption under the act of 1934, but that citation concludes with a circumstance which is not applicable here,'and that is as to the rights of the parties in a subsequent action. This is the same action, and the argument is made that because no appeal was taken from the order of the court extending the period of redemption under the former law, it is final and res judicata, and therefore cannot be disturbed by any action taken in this court under the last 1935 law, but if the failure to take an appeal from an order made under the 1934 law makes that order or judgment final, what does the failure to take an appeal from the rendition of the original judgment do with reference to that judg ment being res adjudícala when no appeal was taken? At any rate we are now and here considering whether the last order made by the trial court under chapter 226 of the Laws of 1935 can extend the period of redemption from March 1, 1935, to January 15, 1937. A similar matter was heard and considered in the United States district court of this district as to the moratorium act of 1934, and the following is a part of the opinion by Judge Pollock in the case of Phoenix Joint Stock Land Bank v. Dewey, 8 F. Supp. 678, at page 679:
“On the facts above stated, all the orders, decrees, and proceedings taken or had in the foreclosure suit were made in conformity to the law in force at the time they were made and entered, at which time the mortgage moratorium law of the state of March, 1934, did not apply because not then enacted and in existence; hence could not therefore be made applicable. Now, the said orders and decrees, when and since entered, became the law of the case, absolute and binding on the parties to the suit, as the same have not been appealed from, reviewed, or modified as between the parties; they are the law of the case to this day, and cannot now be changed or set aside by any power known to man. Under the valid orders of the court, the holder of the certificate of purchase is entitled to a deed of conveyance of the land, and the special master is bound by the valid order of this court to make and 'deliver such deed. No act of the legislature, of the state, if so attempted, can or could operate to change the law of the case. Under this law, the rights and obligations of the parties became fixed beyond all change. . . .
“To uphold and enforce the mortgage moratorium law of this state, passed after the rights of these parties had been finally settled by orders and decrees, as against this fixed and settled law of this case, would be in direct conflict with the settled law of both the state and the nation, would be unconstitutional and void as against the fundamental law of the land and the absolute rights of the parties as determined before the act of the legislature relied upon was enacted.'’1
The appellees strongly rely upon the case of Home Bldg. & L. Assn. v. Blaisdell, 290 U. S. 398, 78 L. Ed. 413, 54 S. Ct. 231, where the United States supreme court held the Minnesota moratorium statute constitutional, which declared the existence of an emergency' and authorized the courts of that state to extend the period of redemption to a date not beyond May 1, 1935. The mortgage in that case was dated August 1, 1928. The foreclosure sale was made on May 2, 1932. Under the existing law at the time of the sale the period of redemption expired May 2, 1933. The new law was enacted April 18, 1933, about two weeks before the original period of redemption expired. On the general proposition of the new law being constitutional and retroactive in character as to the mortgage contract, the opinion might be very forcible, but while the Minnesota law was made to cover foreclosure judgments, that feature was not involved in the case decided. The foreclosure was by advertisement and not by judgment, as in all' the cases at bar and as it must be in all foreclosure cases in Kansas. There was therefore nothing in the Blaisdell case, supra, concerning a judgment of the court not being res adjudicata, and nothing concerning the power of a subsequent act of the legislature to direct the courts to annul or set aside such previously rendered judgments.
The opinion emphasizes the necessity of the relief afforded the debtor by the extension being temporary only and to meet an existing emergency. The temporary character of the extensions may properly be considered in connection with the total of nearly four years covered by the four Kansas acts, even if the trial courts did impliedly accept the preambles to the acts as common knowledge of the existence of an emergency.
Three subsequent decisions have been rendered by the same court, in which the Blaisdell case has been distinguished. One was the case of Louisville Joint Stock Land Bank v. Radford, 55 S. Ct. 854, where the court held the Frazier-Lemke congressional bankruptcy act to be unconstitutional, and one of the distinctions was the five-year period allowed the bankrupt to retain possession of the property with an option to purchase it at appraised or reappraised value subject to payment of reasonable rental fixed by the court, comparing that with the two-year period in the Blaisdell case, supra, and with the authority given the court to reduce the two-year period. Another one was that of W. B. Worthen Co. v. Thomas, 292 U. S. 426, 78 L. Ed. 1344, 54 S. Ct. 816, being an appeal from the Arkansas supreme court involving the validity of a state statute enacted subsequent to a garnishment judgment, which statute exempted the property that had been garnished, and the court compared the facts with those in the Blaisdell case and found a wide distinction, holding that in the Arkansas case “the relief sought to be afforded is neither temporary nor conditional.”
In the case of W. B. Worthen Co. v. Kavanaugh, 55 S. Ct. 555, the validity of a state statute extending the time of redemption for the owner of city lots sold to pay assessments thereon to meet interest and principal on city bonds issued for street improvements, where this and two other acts greatly extended the time required in foreclosing the defaulting owner’s interest in the lots and increased his period of redemption from -six months to four years, was coupled with a declaration of an emergency, which was stated to endanger the peace, health and safety of a multitude of citizens. The statute was held unconstitutional, and in the opinion, after distinguishing the case from the facts in the Blaisdell case, it was said:
“A different situation is presented when extensions are so piled up as to make the remedy a shadow. . . . What controls our judgment at such times is the underlying reality rather than the form or label. The changes of remedy now challenged as invalid are to be viewed in combination with the cumulative significance that each imparts to all. So viewed they are seen to be an oppressive and unnecessary destruction of nearly all the incidents that give attractiveness and value to collateral security.” (p. 557.)
The case of Des Moines J. S. L. Bk. v. Nordholm, 217 Ia. 1319, 253 N. W. 701, is cited and urged as in line with the Minnesota case, and it upheld the Iowa moratorium law even against a judgment rendered nearly a year before the enactment of the statute extending the period of redemption, for nearly two years. In affirming the judgment of the trial court the supreme court of Iowa held the law to be constitutional and added that it was proper for the district court of Boone county to extend the time of redemption to March 1, 1935, but that judgment must be modified to the extent that if the emergency passes before that time, then the appellant shall have the right to have the order for the extension changed.
The case of Russell v. Battle Creek Lumber Co., 265 Mich. 649, 252 N. W. 561, is cited, and it follows the Blaisdell case.
Some of the appellees cite the case of Frazier v. Ford, 138 Kan. 661, 27 P. 2d 267, in support of the contention that appellants here are estopped from attacking the validity of the last redemption law because of a decision rendered in the same case upon motion as to prior moratorium acts, from which decision no appeal was taken. We think this case and others cited with it are not applicable here, as there does not appear in the cases at bar to be any of the necessary elements of estoppel. As far as the want of appeal from the adverse ruling sustaining the motion for an extension under one of the three earlier moratorium acts is concerned, that decision, right or wrong, would not allow or disallow the debtor a further extension under the last moratorium act, and it is under the period of extension given in that act that the appellees are claiming, and it is the only period now remaining.
We are not willing to yield the unbroken record of this court and most other courts in favor- of the judgment of a competent court of record being res ad judicata and not subject to annulment or being set aside by a subsequent act of the legislature, even on the theory of the existence of an emergency, especially when that emergency is a continuation of four consecutive ones culminating in a total extension period of nearly four years.
The judgment in this case is reversed.
No. 32,487, Provident Mutual Life Insurance Company v. Oliver. Judgment on the petition in foreclosure in this case was rendered April 4, 1932, and period of redemption was fixed at eighteen months from date of sale. Sheriff’s sale was had on May 9, 1932, at which time the property was bid in by the plaintiff for the full amount of the judgment, interest, taxes and costs. Period of redemption was to expire November 9, 1933. The sale was confirmed May 9, 1932. On April 2, 1934, motion was filed to extend the period of redemption to March 1,1935, under the act of 1934. This motion was granted May 10, 1934. On March 11, 1935, defendants filed a motion for further extension under the second act of 1935 to January 15, 1937. This was resisted by plaintiff, but on March 27, 1935, the court extended the period of redemption to January 15, 1937, and established the rental value. From this last order the plaintiff has appealed. What has been said in the first case above applies with equal force to the facts above stated, and an additional feature is found in these facts, namely, that the period of redemption had expired during the extension period declared by the governor and before any attempt was made by defendants to have the court grant an extension under subsequent provisions.
The judgment in this case is reversed.
No. 32,492, Union Central Life Insurance Co. v. Nye. The petition in foreclosure in this case was filed March 17, 1932. Judgment was rendered April 21, 1932, and the period of redemption was fixed at eighteen months from date of sale. The journal entry shows no interest had been paid since October 1, 1930, and no taxes had been paid for the years 1930 and 1931. Sheriff’s sale was had on June 8, 1932, at which time the property was bid in by the plaintiff for the full amount of the judgment, interest, taxes and costs. Period of redemption was to expire December 8, 1933. The sale was confirmed July 11, 1932. On April 18, 1934, the district court granted an extension of the period of redemption under the act of 1934 until March 1, 1935. On March 18, 1935, defendants filed a motion for further extension under the second act of 1935 to January 15, 1937. This was resisted by plaintiff, but on April 8, 1935, the court extended the period of redemption to January 15, 1937, and established a rental value. From this order the plaintiff has appealed.
There are no new or different matters involved in this particular case from those in the preceding cases.
This is one of the cases, above mentioned, where estoppel was argued and urged, and we think it does not apply here.
The judgment in this case is reversed.
No. 32,493, New York Life Insurance Co. v. Smith. The petition in foreclosure in this case was filed April 6, 1933. Judgment was rendered June 5, 1933, for $10,088.66, and period of redemption was fixed at eighteen months from date of sale. The journal entry shows the taxes had not been paid for the year 1932. Sheriff’s sale was had on July 19, 1933, at which time the property was bid in by the plaintiff for $10,326.21, the return showing the amount of taxes unpaid. The period of redemption was to expire January 19, 1935. Motion to confirm the sale was promptly filed, but the sale was not confirmed until June 29, 1934. On January 3, 1935, the district court granted an extension of the period of redemption under the act of 1934 until March 1, 1935. On February 28, 1935, defendants filed a motion for further extension under the second act of 1935 to March 1, 1936. This was a mistake, and on April 5, 1935, the court permitted the defendants to amend the motion by asking for an extension to January 15, 1937, instead of March 1, 1936, and on the same day granted the motion to extend the period of redemption to January 15,1937, and established a rental value. From this order the plaintiff has appealed.
The main difference between this case and the first case discussed in this opinion is in the fact that the judgment had not been rendered when the first moratorium act became effective. However, nothing was done under that act, but as the regular period of redemption did not expire until January 19, 1935, the application for extension was made January 3, 1935, under the 1934 act. Then later, and within time, another motion was made and granted under the second 1935 act. The judgment having been rendered before the passage of the 1934 act, the same reasoning had in the first case above applies except as to the total length of time included in the new extensions, which is about one year less. We think in general the same rule should apply.
The judgment in this case is reversed.
No. 32,523, Central Trust Co. v. Temple. The petition in foreclosure in this case was filed January 8, 1932. Judgment was rendered March 10, 1932, and the period of redemption was fixed at eighteen months from date of sale. The land included in the mortgage was in three counties, but we are here only interested in the facts concerning the land in Greenwood and Butler counties. The case was filed and tried in Butler county. Sheriff’s sale of this land was on May 3, 1932, at which time it was sold to the plaintiff for the full amount of the principal, interest and costs. Sale was confirmed on May 1, 1932. The eighteen-months period of redemption expired November 3, 1933. This was during the governor’s extension and quite a while before the enactment of 1934, The period was extended on motion of defendants under the act of 1934 on April 10, 1934, to March 1, 1935. Then on April 8, 1935, it was extended under the second act of 1935 to March 1, 1936, and the rental value was established. The plaintiff appeared by attorney and opposed both of these motions and appealed from the ruling on the second motion.
The facts in this case are similar to those in the first case above discussed as far as the judgment having been rendered before the enactment of any of the four moratorium laws. The extension under the second 1935 law was not to the extreme limit as in the other cases, but only to March 1,1936, which shortens.the total cumulative extension period as thus far appropriated in this case by about ten and one half months.
, The failure of the plaintiff to appeal from the adverse ruling on the first motion and the matter of estoppel have heretofore been considered, and the views expressed in this opinion concerning the same we think apply here.
The failure to use the full period of extension allowed will not in itself affect the validity of the act nor the right thereunder to annul or set aside a judgment rendered prior to its enactment.
The judgment in this case is reversed. | [
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The opinion of the court was delivered by
Harvey, J.:
This was a condemnation proceeding. The property owners, hereinafter called defendants, answered that the condemnor, hereinafter called plaintiff, was not seeking to take the land for any purpose for which it was authorized to exercise the right of eminent domain, and asked that it be enjoined. Evidence was taken on the application for a temporary injunction, which was allowed. Later, by stipulation, the same evidence was used on the hearing for a permanent injunction, which was allowed. The plaintiff has appealed.
No question of procedure is presented for our determination. The question presented is whether there was substantial evidence to sustain the judgment of the trial court.
Our statute (R. S. 1933 Supp. 68-413), so far as here pertinent, reads:
“That the state highway commissidn . . . may acquire title ... by the exercise of the right of eminent domain, to any lands . . . necessary for the construction, improvement, reconstruction, maintenance, or drainage of the state highway system. . . .”
The accompanying plat will aid us to understand the controversy. U. S. highway No. 73, a part of our state highway system, runs along the east side of the northeast quarter of section 10, township 25, range 18, east, and at the southeast corner thereof turns west for half a mile or more. It crosses the railroad about midway of this half-mile stretch. The highway is' improved with an eighteen-foot pavement. The original right of way was sixty feet wide. A viaduct was built over the railroad, the material for the approaches being taken from borrow pits north of the highway. At the point where it crosses the railroad the highway right of way had been widened to 120 feet and tapers to the sixty-foot width as it approaches the southeast and the southwest corners of the quarter section. The highway commission, in a regular meeting October 22, 1934, found that in order to establish, lay out, open, construct, improve, maintain and drain this half mile of highway it was necessary to widen the highway to 120 feet for the entire half mile and to acquire land on the north and south necessary for that purpose. It succeeded in purchasing the necessary tracts on the south side. Being unable to purchase the two small tracts on the north side of the highway, which are shaded on the plat, it brought this proceeding on October 30, 1934. Plaintiff filed its petition, reciting the necessary facts, in the district court of Allen county, for the condemnation of the two small parcels of land. The court examined the petition and found “the petitioner has the power of eminent domain and that the lands described in said petition are necessary to petitioner’s lawful corporate purposes as set out in the petition.” Appraisers were appointed and the landowners notified.
On November 3, 1934, the landowners, as defendants, filed an answer to the petition in which they denied “the right and powef” of plaintiff to condemn the land for the purposes named in the petition for the reason that the land “is not necessary, in any sense whatever, for the benefit or improvement of the highway.” They further alleged that the strip of land sought to be taken is not intended by plaintiff to be used for the purpose of constructing, im proving, maintaining, or draining.the highway, but “is by it being sought for the purpose of creating what they term a ‘park,’ some twenty-seven to thirty feet wide between the highway” and the land of defendants, and would cut off ingress and egress and prevent the land from being used as homes or divided into small tracts, and that the same would not be beneficial to the traveling public.
One of defendants, called as a witness in their behalf, testified the viaduct had been built six years; that the pavement was built in 1925, was eighteen feet wide; that the road is not so narrow as to obstruct travel;'that there are ditches along the road; that the road is as complete there as it is along other strips of road; that he knew of no use that the land could be to plaintiff; that slabs are now being built from twenty to thirty-two feet wide; that there was nothing planted on the land in question, and part of the land is an old borrow pit, and that a representative of plaintiff attempted to buy the tracts of land in question for a park and had stakes placed on the land showing the location of trees. A right-of-way agent for plaintiff, called as a witness for defendants, testified plaintiff intended to use the road for roadside improvements, such as rounding back slopes and building up the shoulders; to seed them to grass, to prevent erosion, and to hold the soil from sliding; that in addition to building up the shoulders and back slopes, roadside improvements meant planting grass, shrubs and trees; that there is some room to improve now, but not enough; that the present shoulders are too narrow to allow parking off the slab, and roads with narrow shoulders are hard to maintain; that the United States bureau of public roads requires that government money be spent on not less than 100-foot rights of way, and must approve all projects; that the present shoulders are only four feet wide, and it is but six feet from the edge of the road to the ditch; and for these reasons the additional ground must be had; that the public will travel on the slab, not on the new land to be acquired. Plats prepared by plaintiff’s engineers were offered in evidence. These show in part the improvements plaintiff contemplates making along the road, where grass is to be sown and shrubs and trees planted. A part of these are inside of the present right of way.
Plaintiff’s witnesses gave testimony to the effect that 100 feet is now the minimum standard width for a highway right of way where improvements are to be made with federal funds; that the present shoulders of the road in question are too narrow, being only four feet wide, and the slopes to the ditches are too steep; that the new right of way is needed to widen the shoulders, cut down back slopes to prevent accident, control vegetation at the curves so that the sight of drivers will not be bbstructed by things growing too close to the road; that roadside improvements are to prevent erosion, act as snow fences, and improve the appearance of the road by erasing the scars of construction, and that the entrance ways to the land will remain open. There was further evidence that the blue prints which had been introduced in evidence showed only a part of the plans for improving the highway; that they related only to the seeding and planting; that the plan also includes the widening of shoulders, making better slopes to the ditches, and making other improvements conducive to safer travel.
This statement of the evidence discloses that there was no substantial evidence to sustain the finding of the trial court. It is true, one of the defendants, as a witness, testified that he had been approached by plaintiff’s representative to buy the land for a “park,” but there is no doubt from the evidence, a part of which was offered by defendants, that among the purposes plaintiff had in condemning the land was to make the highway more safe for travel by widening shoulders, making better grades to the ditches, seeding the slopes to prevent erosion, planting shrubbery, which would act to catch snow, as well as to improve the appearance of the project. It may be conceded, as is contended by defendants, that plaintiff was created as an arm of the state for the purpose of constructing, improving and maintaining highways, and not for the purpose of establishing a park system for the state. This does not mean, however, that its work must be done in the crudest possible manner. 'We never have heard it contended that our counties, cities, or the state, in constructing public buildings, were limited to the crudest construction possible for the use intended. The fact that bridges may be constructed, roads graded, and pavements laid thereon, and drainage constructed so as to appear sightly rather than crude, should be commended rather than condemned.
It will be noted that defendants attack only “the right and power” of plaintiff to make the proposed improvements. There is no charge of fraud or misconduct. Plaintiff, therefore, must be given credit for having acted in good faith. The legislature has placed in the state highway commission authority to determine, within certain limitations not here important, which portion of the state highway should be improved, and in what manner. Necessarily the members of the commission have some discretion in those matters. When that discretion is exercised in good faith, and within the authority granted to it by law, courts should not interfere. (Wallace v. City of Winfield, 98 Kan. 651, 655, 159 Pac. 11; Smouse v. Kansas City S. Rly. Co., 129 Kan. 176, 282 Pac. 183.) The fact that future needs were taken into account does not destroy the right and power to act. Indeed, we are all learning that many of our roads and bridges have been made too narrow, the turns too short, and that too little attention has been given to obstructions to view at corners. There is nothing in the record to sustain the view that plaintiff is not seeking to take the land for a public use. (Howard v. Schwartz, 77 Kan. 599, 607, 95 Pac. 559.)
The result is, the judgment of the court below must be reversed with directions to set aside the injunction and to proceed with the condemnation. It is so ordered. | [
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The opinion of the court was delivered by
Dawson, J.:
Donald Harding was convicted of murder in the first degree for his part in the killing of H. W. J ones, at his home in Lawrence, on April 5, 1933.
This appeal is chiefly based on Harding’s contention that the evidence was insufficient to sustain the verdict.
The facts of the murder, an exceptionally wanton and inexcusable one, were these:
Harding, James Scott and Kenner Myers were seen together in Harding’s automobile on the evening of the homicide. Harding took Scott and Myers to'the Jones home. Three men entered the Jones home with their faces masked with handkerchiefs. One of the three, Scott, was recognized by Mrs. Jones. Scott said, “Stick ’em up,” and shot Mr. Jones. Following the sound of shots, the three men with handkerchiefs over their faces were seen running from the Jones house to an automobile identified as, Harding’s. Harding was arrested, and after denying any knowledge of the affair, admitted that he took Scott and Myers to the Jones home, and that as soon as he heard the shooting he started to leave, but the other two caught his car before it had gotten up speed. In Harding’s pocket was a handkerchief knotted for use as a mask and which fitted his head and face. The circumstantial evidence tended to show that the killing was incidental to an attempt to rob Jones of a small sum he had recently received as pension money. (R. S. 21-401.)
This court holds that evidence in the record, summarized as above, was sufficient to take the case to the jury.
Defendant complains of the admission in evidence of a statement he made following his arrest — his objection being that it was given under restraint. But merely under restraint of arrest. There was no suggestion it was given under duress. Moreover, it was not introduced as a confession of guilt, but simply as defendant’s admission that he had been associating with his codefendants on the evening of the homicide, had taken them to the Jones home, and that'they did ride away from the place of the tragedy in his car immediately after the shooting. No shadow of error appears on this point.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, -J.:
The appeal brings up for review an order of the district court correcting its record to show the judgment which was in fact rendered in an action for divorce.
In 1929 Louise Boatman commenced an action against her hus band, E. N. Boatman, for divorce and consequent relief. Judgment was rendered in favor of plaintiff on September 4, 1929. No formal record of the proceedings was made until January 24, 1930, when a form of journal entry signed by the district judge was filed and spread. In October, 1934, plaintiff filed a motion to expunge the journal entry and to cause a record to be made which would speak the truth.
In connection with allegations showing gross neglect of duty and extreme cruelty on the part of defendant, the petition for divorce gave the names and ages of three children of the parties, all of whom were minors, and alleged defendant failed and refused to provide food, clothing and support for the members of his family, and failed and refused to provide funds for the maintenance of a home for them. The prayer of the petition was for divorce, for adjustment of property interests, for custody of children, and for such other and further relief as should be deemed proper. The journal entry of January, 1930, contained no reference to an allowance to plaintiff of the sum of $5 per month for support and maintenance of each child until further order of the court, and contained no reference to an allowance to plaintiff of $100 as an attorney fee. • The motion of plaintiff to correct the record stated such allowances were in fact included in the judgment which was rendered in September, 1929. The motion was allowed, the original journal entry was expunged, and a journal entry which included the allowances was made.
Defendant makes the usual contention that what the court did was to change its judgment. The subject is sufficiently discussed in the opinion in the case of Tincknell v. Tincknell, 141 Kan. 873, 44 P. 2d 212.
At the time the judgment was rendered in 1929 the district court made an exceptionally complete memorandum on its docket of what the judgment embraced. This practice is recommended to all district courts; since attorneys will make mistakes in drawing forms of journal entry and judges are obliged to sign forms of journal entry prepared by attorneys without reading them. The memorandum shows the allowances which should have been inserted in the first journal entry. This memorandum is not a part of the statutory record, was not formally introduced in evidence at the hearing on the motion to correct the record, and was not referred to in the decision of the motion. Whether the court refreshed its memory by examining the memorandum does not appear. If the court needed to do so, doubtless it did, but in any event, this court is not authorized to declare the district court did not know what the judgment was when it corrected the record.
The district court was just as meticulous in making a memorandum on its docket of disposition of the motion to correct the record as it was when the judgment was rendered, and the second memorandum immediately follows the first on the court’s docket. In accordance with the second memorandum, the final journal entry contains the following:
“That upon the decision of said motion it was decreed that the defendant be given reasonable time and opportunity to meet back payments such as facts and circumstances may warrant and may later file motion or answer to set aside this order or be entirely relieved from back payments. Thereupon the defendant asked and was granted leave to file his answer.”
Defendant did not choose to take advantage of this permission, but appealed, and there is nothing before this court, but propriety of the order correcting the record.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action by the receiver of an insolvent cooperative grain company, a corporation, hereinafter called the grain company, against its directors for the sum of $11,814.77, being the amount of the company’s money lost by it in certain transactions on the board of trade at Kansas City, Mo., which transactions were authorized by the directors and which plaintiff alleges were ultra vires and therefore unlawful. Defendants deny the transactions were of that character. A jury trial resulted in a verdict and judgment for plaintiff for the amount claimed against four of the directors. They have appealed.
Certain individual appellants contend the judgment for the full amount cannot be sustained against them in any event for the reason they were directors but a short time, during which only small losses occurred. In the view we take of the case, however, it will not be necessary to analyze these contentions.
Much is said in the record and briefs about “stored wheat.” It seems some wheat growers did not want to sell their wheat when they delivered it to the elevator, thinking the market price would be higher a few months later. The grain company orally agreed with them to take their wheat and to pay for it on some future date when the grower asked for settlement, and at the market price on that date. Some of such wheat growers bought feed, fuel, or other merchandise, to be settled for when they settled for their wheat. We think these circumstances have no bearing on the legal questions determinative of this case. The grain company was not a licensed warehouse under R. S'. 1933 Supp. 34-224 et seq. It issued no warehouse receipts. It simply agreed to pay for the wheat on the day the grower wanted to settle for it at the then market price. The grower did not expect his wheat to be redelivered to him at some future time. All he expected was to be paid for it. The relation between the parties growing out of this transaction appears to have been nothing more than the relation of debtor and creditor. But we need not analyze this situation further, nor determine more definitely questions discussed on this phase of the case, for none of such wheat growers brought this action; they are not parties to it; their rights and liabilities are not involved and were not determined in the trial court.
The grain company was organized in 1920, under R. S. 17-1501 to 17-1515, “to engage in the business of buying, selling and handling of grain, feed, fuel, supplies and produce, and the engaging in all kinds of business usually carried on by farmers’ elevator and supply companies.” Its authorized capital stock was $50,000, divided into 250 shares of the par value of $200 each. Originally $4,800 of stock was subscribed, but in 1931 a few additional shares were sold. It appears never to have been a strong financial institution. The business of the company was controlled by a board of five directors. They elected a manager, who conducted the business under their direction. Plaintiff alleges that during the period from June 1, 1931, to May 1, 1933, defendants, as officers and directors of the grain company, caused and permitted the assets of the company to be dissipated, wasted and lost by wrongful and unauthorized purchases and sales of grain upon the board of trade, which purchases and sales were purely of a speculative and gambling character. The record discloses that during the time in question the elevator took in and sold about 360,000 bushels of wheat. The market price of wheat during that time was almost constantly declining, resulting in losses to the grain company on wheat purchased and sold. During the time covered by this inquiry the grain company had thirty-three transac tions on the board of trade at Kansas City, all of these being purchases or sales of wheat. On seventeen of the transactions it made profits, and it sustained losses on sixteen of them. The aggregate losses, however, exceeded the aggregate profits, with the result that the net losses of the grain company in such transactions amounted to $11,814.77, the amount sued for in this action. It appears to be .plaintiff’s theory that these transactions were all speculative and gambling transactions, hence ultra vires, and being so were unlawful to the extent of the net loss. There appears to be no objection to such transactions when the grain company made a profit, nor even when it sustained a loss if on the whole profits equalled or exceeded losses.
Appellants’ principal contention is that none of the- transactions shown by the evidence were ultra vires or unlawful. It is argued that the charter of the corporation authorized it to buy or sell grain, which includes wheat; that this authority to buy and sell grain was not limited locally to¡ the town or community in which its elevator was located; hence, that so far as its corporate authority was concerned it had authority to buy or sell wheat in Kansas City, Chicago, or elsewhere, from or to any person, or on the board of trade. They further contend that since all the transactions complained of were interstate in character, all of them being on the board of trade at Kansas City, the legality of the transactions is governed by the federal grain futures act. The federal act (U. S. C. A., Title 7, ch. 1, §6), so far as here pertinent, provides it to be unlawful for any person to deliver through the mails, or in interstate commerce, any contract for sale of grain for future delivery or confirmation of such contract which may be used for hedging any contracts in interstate commerce in grain, or determining the basic price of such a transaction, or delivering grain sold, shipped, or received in interstate commerce, except
“(b) Where such contract is made by or through a member of a board of trade which has been designated by the secretary of agriculture as a ‘contract market,’ as hereinafter provided in this chapter, and if such contract is evidenced by a record in writing which shows the date, the parties to such contract and their addresses, the property covered and its price, and the terms of delivery: Provided, That each board member shall keep such record for a period of three years from the date thereof, or for a longer period if the secretary of agriculture shall so direct, which record shall at all times be open to the inspection of any representative of the United States Department of Agriculture or the United States Department of Justice. (Sept. 21, 1922, c. 369, § 4, 42 Stat. 999.)”
Appellee contends that the federal act has no bearing on the case, but that it is controlled by our so-called “bucket shop” statute (R. S. 50-121 to 50-130). We had occasion to consider the effect of the federal act and our statute upon interstate transactions of this character in State, ex rel., v. Rosenbaum Grain Co., 115 Kan. 40, 222 Pac. 80, where, in an exhaustive opinion by Mr. Justice Burch, reviewing and analyzing earlier decisions and the purposes of the federal act, it was held that with reference to interstate transactions of this character the federal act, and regulations thereunder, are exclusive. We need not restate or enlarge upon what was there said other than to note that interstate transactions pertaining to the purchase or sale of grain have been held, in later cases, to be legitimate transactions and not to be gambling transactions, or otherwise unlawful. (Goffe and Carkener v. Henneberger, 132 Kan. 211, 294 Pac. 672; Wolcott-Lincoln, Inc., v. Huff, 139 Kan. 366, 31 P. 2d 13; Noll v. Boyle, 140 Kan. 252, 36 P. 2d 330.) More than that, our legislature, in 1925 (Laws 1925, ch. 6, R. S. 1933 Supp. 2-1601 to 2-1604) recognized the federal act and contract market as therein defined, and further provided that boards of trade in this state which had not been designated by the secretary of agriculture as contract markets, under the act of congress, were by this statute declared to be contract markets and affected with the public interest.
In Dickson v. Uhlmann Grain Co., 288 U. S. 188, it was held that the federal act did riot supersede the statutes of the state of Missouri pertaining to future dealings in grain with respect to a transaction which was wholly intrastate in character. There it had been found by the trial court that Dickson did not contemplate the execution on his behalf by the brokers with whom he dealt of contracts outside the state, hence that the transactions were intrastate transactions governed by the statutes of Missouri and not by the federal act. This is not in conflict with our decisions, previously cited, pertaining to interstate transactions.
The record clearly discloses that all the transactions complained of by plaintiff were interstate transactions. The Kansas'City board of trade has been designated a contract market by the secretary of agriculture, under the authority of the federal statute above cited; this is not controverted. The record shows that all the transactions complained of' were recorded and the records preserved in harmony with the federal act; hence, these transactions were not unlawful. It is not contended that the grain company was without authority to buy or sell wheat outside of the state of Kansas. Being lawful transactions, within the corporate powers of the grain company, they were not ultra vires.
The result is, the theory on which, plaintiff predicated his action is not well grounded and defendants’ demurrer to plaintiff’s evidence should have been sustained. The judgment of the trial court is reversed, with directions to render judgment for defendants. | [
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The opinion of the court was delivered by
Dawson, J.:
This was a taxpayers’ suit to test the validity of a bond election and proceedings incidental thereto, under which the defendant city seeks to issue $65,000 in general obligation bonds to raise funds to construct a building designed to house engines and machinery for generating electricity and to construct an electric distribution system.
This case is a companion of No. 32,327, wherein these same taxpayers have challenged the legality of a contract between the city and Fairbanks, Morse and Company, for the purchase of electric generating engines and related machinery which, with the proposed distributing system, are to constitute a municipal light and power plant.
It appears that in 1933 the governing body of the city of Eureka determined to embark on the venture of a municipal power and light plant; and to accomplish that project they made a contract with Fairbanks, Morse and Company for the purchase of $99,974 worth of engines and related equipment, which contract was to be dependent on the result of a city election wherein the voters should be asked to sanction an issue of bonds in the sum of $65,000 to provide the remaining funds requisite to erect a building for housing the machinery and to construct the requisite poles, wires, transformers, and the like, for distributing electricity throughout the city.
Our present concern is with the regularity of the proceedings leading to the proposed bond issue.
On August 15,1933, the city commissioners adopted an ordinance, No. 1341, calling a special election to be held on September 12, 1933, to vote on a proposition which should appear on the ballot thus:
“Shall the city of Eureka, Kansas, issue sixty-five thousand dollars in bonds, the same not to run longer than twenty (20) years, and to bear interest not to exceed five (5) percent per annum and to be issued to mature in installments of approximately equal amounts each year, for the purpose of constructing an electric light distributing system, power-plant building and appurtenances thereto, for the purpose of supplying said city and its inhabitants with electric current for lighting, power and other purposes?”
The election was held as scheduled and the proposed bond issue carried by a substantial majority.
Shortly thereafter this action was begun. Plaintiffs alleged that the recitals on the election ballot were deceptive and misleading in that the voters were thereby led to believe that the proposed issue of $65,000 in bonds would give effect to the purposes stated on the election ballot, when in truth those purposes would necessitate an additional outlay of $99,974 or more, of which the electors were not apprised on the election ballot.
Plaintiffs’ petition included a summarized statement of the contract with Fairbanks, Morse and Company for the purchase of the requisite engines and machinery to supply electricity for the distributing system; and it was alleged, among other matters, that the proposed undertaking as a whole would result in an illegal tax burden on the plaintiffs.
It was also alleged that during the campaign preceding the bond election the city officials and Fairbanks, Morse and Company published and circulated false and misleading statements for the purpose of prejudicing and influencing the voters of the city in their attitude towards the proposed bond issue.
Plaintiffs prayed that defendants should be enjoined from issuing the bonds and for general relief in equity.
The city and its officials answered jointly, and Fairbanks, Morse and Company answered separately. Each answer denied the alleged illegalities and irregularities pleaded in plaintiffs’ petition.
At the trial certain more or less pertinent matters were submitted by agreement of counsel. It was shown that heretofore, and for some years past, the city and its inhabitants have been supplied with electric light and power by plaintiff, the Kansas Electric Power Company. A copy of the bond election ordinance, No. 1341, was introduced; the collateral but related matters of the contract for $99,974 worth of engines to be bought from Fairbanks, Morse and Company were introduced, and the city’s plan to pay the purchase price thereof by an issue of “revenue certificates” payable out of the proceeds of-sales of light and power.
It was shown that during the campaign preceding the election the mayor and city commissioners published a weekly journal or newspaper entitled “Eureka Municipal Light Plant News, edited by the city commissioners of Eureka,” which contained extravagant statements of the benefits to be derived from the establishment of the proposed municipal light plant, and emphasized the supposed fact that the plaintiff power company, through its rate exactions, was gathering tribute from its patrons in Eureka to pay a pension to the noted or notorious Samuel Insull, a financial wizard who at the time had found an asylum in the country of Greece in evasion of extradition process from the United States. Another false statement put forth by the defendants in the “Eureka Municipal Light Plant News” read:
“All rates will be reduced at least 25 percent and will be published before election.”
It was testified to and admitted by the defendant commissioners that some city funds and the city’s credit were used to conduct this preelection campaign; and when the contract was negotiated between the city and Fairbanks, Morse and Company, the mayor said to its representative, L. W. Rader, “Say, it will cost something to put this election over, and we are going to expect you to bear your share of it.” Rader replied, “No, they [Fairbanks, Morse and Company] won’t do that.”' The mayor said, “How about you chipping in a little, Mr. Rader, yourself?” Rader replied, “I might help out a little.” Rader contributed $55 toward the campaign expenditures, $5 of which he paid before the election and $50 after the election was held. Most of these election expenses, of which there seems to have been considerable, were paid for or charged against the general fund of the city.
The trial court, both judges sitting, gave judgment for defendants.
Plaintiffs appeal, presenting certain legal questions for review.
Touching first upon the activities of the mayor and city commissioners in the preelection campaign, persons who happen to hold city offices in their private capacity as electors are as free as other people to advocate their opinions. But as public officials they should maintain a reasonable semblance of neutrality. Here, however, as there was no showing that the officiousness and other irregularities attributed to the mayor and commissioners were so potent as to have turned the scales at the election, nor any likelihood that their delinquencies did have such a result, it cannot be held that the election was vitiated thereby. (State, ex rel. Ayres, v. Stockwell, 7 Kan. 98, 102; Tarbox v. Sughrue, 36 Kan. 225, 12 Pac. 935; State, ex rel., v. Comm’rs of Seward Co., 36 Kan. 236, 245, 13 Pac. 212.)
In Humphrey v. City of Pratt, 93 Kan. 413, 144 Pac. 197, it was said:
“The issuance of bonds voted at a city election to build a municipal light plant cannot be enjoined because the election was carried by false representations by agitators. . . . (Syl. ¶ 3.)
“Unscrupulous campaign methods must be met in some other way than by an action to enjoin issuance and sale of the bonds.” (p. 416.)
See, also, City of Oswego v. Davis, 97 Kan. 371, 374, 154 Pac. 1124.
In what we have just said the court must not be understood as giving countenance to the conduct of the city officials, particularly in respect to their expenditure of city funds for preelection campaign purposes. That, however, is the concern of the county attorney; not at this time any concern of this court.
On the question whether the proposition which appeared on the ballot, and on which the electors of Eureka were asked to express their wishes at the ballot box, was misleading, it seems that the point raised by plaintiffs is well taken. The fair import of the recitals on the ballot was that the $65,000 bond issue which the voters were asked to sanction would provide the requisite funds to procure the desired municipal light and power plant. It may be.conceded that a critical analyst of language construction could make a specious argument that the recitals on the ballot only meant that the cost of a distributing system and the cost of a power plant building were to be met out of the bond issue; and that the words “appurtenances thereto” referred to appurtenances restricted to the distributing system or to the power plant building or to both, but did not mean appurtenances to the power plant. But the election was held to take the opinion and judgment of common men and women who are not trained in the niceties of language; and it is undeniable that the concluding language of the ballot, “for the purpose of supplying said city and its inhabitants with electric current for lighting, power and other purposes,” not only would lead the voters to assume that was exactly what they were voting for, but would tend to obscure the idea that it was only a part of a municipal plant they would get for their bond issue.
Our election laws contemplate that when a special proposition is submitted the ballot shall clearly state the substance of the proposition. If the proposition on the ballot is stated in equivocal terms the purpose of the election is vitiated in advance. (R. S. 25-605; R. S. 10-120; Leavenworth v. Wilson, 69 Kan. 74, 76 Pac. 400; 44 C. J. 1138.)
Our reports contain cases where want of clarity in the recitals of ballot propositions and other nonconformities in election matters have been held insufficient to vitiate the election (State, ex rel., v. McCombs, 129 Kan. 834, 842, 284 Pac. 618, and citations), but nothing in any of these has modified the rule announced in Leavenworth v. Wilson, supra.
It was urged in defendants’ brief that plaintiffs did not have legal capacity to maintain this action. That point was not raised in the pleadings of defendants. The action was clearly maintainable by plaintiffs under R. S. 60-1121. On the possibility that the merits of the appeal might fail for want of a proper party to challenge the legality of the proposed bond issue, or to question the soundness of the judgment below, the attorney general entered an appearance in this court, invoking a conclusive determination of the vital questions concerned.
This court holds that the election ballot did not clearly and unequivocally state the proposition the electors of the city of Eureka were called upon to vote. The result is the election was a nullity; and bonds of the city could not lawfully be issued under its sanction.
The judgment is reversed and the cause remanded with instructions to enter judgment for plaintiffs. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action by the receiver of an insolvent state bank against a stockholder to enforce the additional liability imposed by R. S. 9-110. Judgment was for defendant. Plaintiff appeals.
The bank closed September 18, 1930. At that time the name of defendant appeared on the stock register of the bank as the owner of six shares of stock issued January 10, 1929. He refused to pay the double liability. This suit followed.
In January, 1929, the president of the bank asked defendant to be a director. Defendant replied that he had no stock. The president of the bank told him he would transfer the qualifying number of shares to him. Defendant signed the oath of a director on January 10, 1929. On January 10, 1930, defendant took part in the meeting of the board of directors. January 10,1929, defendant took part-in a meeting of the board. April 10,1929, defendant signed and swore to a report of a quarterly meeting of the board of directors. This report is required by statute to be made and filed in the office of the bank commissioner. On January 10, 1930, defendant took the oath of a member of the board of directors. This was required by statute. It contains, among other things, the following statement:
. . and 1 do solemnly swear that I am the owner, in good faith and in my own right, of five [six] shares of the stock in said bank, being either subscribed by me or standing in my name on the books of said bank.”
We shall set out the story of defendant in the light most favorable to him. Defendant insists that no stock' was transferred to him in 1929 and none was ever delivered to him. He testified that he had an understanding with the president of the bank in 1930 that he would only serve until February of that year; and that in February when he asked the president if he had arranged about his getting off the board he said he had not but he would do so at once. He also testified that the president of the bank told him that he had transferred the stock to Doctor Williams, and that when he asked Williams about it he said he had never received it. He further testified that he then called at the bank and asked the teller to examine the stock register to see if the stock had been transferred; that the teller was unable to find where any stock had ever been transferred to him; and that he went immediately to his office and wrote out a resignation from the board of directors, took it to the bank and handed it to the president. The teller testified that when he looked at the stock register, at the request of defendant, the stock certificate No. 150, which appeared in the name of the defendant when the bank closed, was still in the book and was not filled out. It may be stated here that the certificate stub that is kept in the book for certificate No. 150 was not filled out when the bank closed. Without setting out the details of the evidence it may be stated there was circumstantial evidence that certificate No. 150 was issued surreptitiously after the teller had inspected the stock register at the request of defendant and before the bank was closed.
At the close of the evidence of defendant plaintiff moved the court for a directed verdict. This was overruled. The jury returned a general verdict in favor of defendant and answered special questions in his favor. Judgment was rendered accordingly. Various additional motions were filed by the plaintiff, all of which were overruled. Hence this appeal. We will consider the motion for a directed verdict.
The position of defendant is that there was no evidence that certificate number 150 for six shares of capital stock of the Commercial State Bank of Rosedale in the name of L. E. Wilson was issued prior to the closing of the bank on September 18, 1930, with the knowledge or consent or under the authority and direction of the appellee, Wilson. There was no evidence that certificate No. 150 was ever delivered to the appellee, Wilson; that any person had ever executed certificate No. 150 as an officer of the bank, or that any person ever attested it. There was no evidence that appellee Wilson was ever asked to receipt the stub of certificate No. 150, and no evidence as to when, where, or by whom the writing on the face of the stub of certificate No. 150 was made.
While this is true, the fact is that when the bank closed the stock register of the bank showed that defendant owned six shares of stock. The double-liability law is not for the protection of the bank or the bank president. It is for the protection of the depositors in the bank and its other creditors — for the public generally. Records are required to be kept in the office of the bank commissioner <?n that account. On January 10, 1930, defendant swore that he was the owner in good faith of six shares of stock in the bank. This oath was required by statute to be made and filed in the office of the bank commissioner. Defendant could not be heard to say that he was not the owner of stock at the time this oath was filed. He was estopped from doing any such thing when his doing so would conflict with the public interest. This situation remained the same until the day when he was hunting the president of the bank, still endeavoring to get rid of his stock. Then he resigned as director. Did that affect his stock ownership? We hold not. The situation as to stock ownership was not changed by his resignation from the board. The liability which the plaintiff is seeking to enforce here is not that of a member of the board of directors but of a stockholder. For the sake of achieving the end for which the double-liability law was enacted, it must be made extremely difficult for one whose name appears on the books of the bank as a stockholder to escape this liability.
This is the reason for the decision of this court announced in State Savings Bank v. Allen, 119 Kan. 128, 287 Pac. 646. There the court said:
“In this state, for reasons of public policy, the objective test is applied to determine liability. Banking is affected with a public interest, and- all state banks are under regulatory supervision of the state bank commissioner. A double record of the issue, ownership and transfer of stock must be kept, one in the bank and one in the bank commissioner’s office. This is done for the benefit of the bank, of its creditors, of taxing officials, and in the interest of the public, represented by the bank commissioner. It is their privilege to rely on the records, and the bank commissioner may not be embarrassed in winding up the affairs of an insolvent bank by an investigation of the fact of ownership, determination of which depends ultimately on a jury’s estimate of the registered holder’s testimony regarding his mental attitude. If stock should be issued or transferred to a person without his knowledge or authority, nothing more appearing, he would not be subject to the liabilities of a stockholder; but whenever such a person does a voluntary act which stamps the certificate with apparent validity and vitality, he is bound by the record, whatever his intention may have been. If he desires to avoid the consequences of ownership he must see to it that the records do not present him as a registered holder.” (p. 130.)
Here there was a double set of records as to the stock ownership. Admitting for the sake of argument that there was something queer about the record in the bank, there was nothing wrong about those in the bank commissioner’s office. These records showed the stock ownership to be in the defendant.. We hold, therefore, that the motion of plaintiff for a directed verdict should have been sustained.
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The opinion of the court was delivered by
Thiele, J.:
Petitions for rehearing have been filed by both appellant and appellees. With an exception hereafter noted, the petitions present no matters which were not considered on the original submission of the cause.
Appellees urge that they were not given credit for the dividend declared July 1, 1933, in the amount of 141.50. An examination of the record shows that credit was given for that particular dividend, but we discover that the following was overlooked. Dividends were declarable on January 1 and July 1. The trial was had on October 19, 1933, but no decision was made until February 17, 1934. We held that the amount of the judgment should be computed as of the date of the judgment and not as of the date of the trial. Obviously, if a dividend was declared on January 1, 1934, there could have been no testimony with respect thereto, nor was there, by reason of the trial court’s ruling, any opportunity to present such testimony at a later date. As the stock was not canceled until the day the judgment was rendered, any dividend declared on January 1, 1934, has not been credited, in the manner provided in the by-laws, against the amount due on the mortgage.
The trial court is therefore directed to determine whether or not a dividend was declared on appellee’s stock as of January 1, 1934, and if so, to give proper credit therefor to the extent of seventy per cent thereof as provided in the by-laws, and to render judgment consistent with our opinion of April 6, 1935, as modified hereby.
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The opinion of the court was delivered by
Dawson, J.:
This was an action in rescission of an executed contract for the purchase of a note and mortgage predicated on a defect in the mortgagor’s title which eventually rendered the security worthless.
The pertinent and explanatory facts were these:
Plaintiff was a woman of some means, but without business experience. For many years she and her mother had been accustomed to consult defendant, H. E. Suderman, about their financial affairs, and occasionally they purchased a note and mortgage from him. He was president of the Midland National Bank at Newton and proprietor of a mortgage loan business sometimes called the Suderman Loan Company and again called the Newton Finance & Investment Co.
On April 18,1925, Suderman made a loan of $1,500 to one Fugate, taking his note due in three years, and as security therefor Fugate executed a mortgage on some Harvey county real estate of which he was the record title holder, but which he had theretofore sold on contract for $5,000 to one Gaedeke, $1,650 of which sum had been paid in cash, and the balance, $3,350, was payable at the rate of $30 per month. This contract was not recorded, but Gaedeke had been let into possession, and he was in possession at the time Fugate executed the note and mortgage to Suderman. The latter was unaware of Gaedeke’s interest except under the rule of constructive notice arising from Gaedeke’s possession.
On September 11, 1925, Suderman sold and assigned the Fugate note and mortgage to this plaintiff, indorsing both instruments “without recourse.”
The interest on the Fugate note and mortgage, was paid semiannually at the Midland National Bank; and when the note matured, in 1928, a three-years extension agreement was effected between plaintiff and Fugate through the agency of defendant. Meantime the entire balance due in monthly payments from Gaedeke to Fugate had been paid in full, and Gaedeke had received a deed to the property.
On October 18, 1930, Fugate paid the interest then due on the note and mortgage, but thereafter made default. Then plaintiff discovered the defective character of the mortgage security she had acquired from Suderman in 1925, and on July 15, 1932, this action against Suderman was begun.
Plaintiff’s petition narrated the material facts, and contained an allegation of positive misrepresentation and actual fraud perpetrated by defendant Suderman touching the character of the mortgage security, but adding — ■
“That if it should appear that defendant did not in fact know that said, representations were false and that no actual fraud was intended on his part, said representations were in fact false and in which case there was mutual mistake; that in any event defendant had knowledge of facts which should have put him on inquiry which, if pursued, would have led to full knowledge of all the facts; defendant knowing, at the date of the execution and delivery of said note and mortgage and at the time he sold said note and mortgage to plaintiff, that the mortgagors were not in possession of said real estate and that the party to whom they had sold said real estate was in possession thereof, knowledge of which facts should have put defendant on inquiry as to the ownership of said real estate, but plaintiff did not at any of said times have knowledge of any of the facts herein stated.” (Italics ours.)
Plaintiff further alleged that the note and mortgage were of no value; that there was a consequent failure of consideration for the $1,500 she had paid to defendant; that she was entitled to rescission; and she prayed judgment for $1,500 and interest thereon from October 18,1930.
Defendant’s answer contained a general denial, án admission of the sale of the note and mortgage to plaintiff “without recourse,” and an allegation that plaintiff herself had constructive notice of the infirmity in the mortgage complained of in her petition from the time she acquired it in 1925. His answer also contained a specific denial of any confidential agency or fiduciary relationship existing between the parties. Later defendant filed an amendment to his answer in which he invoked the statute of limitations.
The evidence developed no material dispute of fact. Plaintiff did testify that defendant had expressly assured her that there was no infirmity in this Fugate mortgage and that she had relied thereon when she purchased it; but when her attention was called to the fact that the transaction had been consummated with defendant’s son while defendant was in ill health in California she modified her testimony thus:
“I could have relied on what he (defendant) had said to me about other mortgages.”
As the trial proceeded counsel for plaintiff advised the court:
“I am not relying on anything except rescission, failure of consideration and breach of that implied warranty. We ask that we be put in the same position that we occupied before this transaction.
“If there was no actual fraud, then there was a mutual mistake, so that the legal effect of invalidating the transaction would be exactly the same; there was no actual purchase and sale, because, as I say, if there was no question of fraud on his part, which there probably wasn’t, we don’t know, but if there was not, there was a mutual mistake; if he was acting honestly and he thought he was selling her a good and valid note secured by a first mortgage on the real estate and she thought that is what she purchased, it was a mutual mistake and it turns out to be a nullity, which would invalidate it entirely. The transaction was a nullity and he got her money for nothing.” (Italics ours.)
The trial court found that defendant had no actual knowledge of the infirmity in the mortgagor’s title in 1925 when he made the loan and accepted the mortgage as security therefor; and that neither plaintiff nor defendant had actual notice of any such defect in the mortgage at' the time, September 11, 1925, when defendant sold and- assigned the note and mortgage to plaintiff “without recourse.” The court further found that neither plaintiff nor defendant had actual notice of the infirmity in the mortgage in 1928 at the time the three-years extension agreement was executed. The court also found that at the time the extension agreement was made in 1928, there still was a greater balance due Fugate, the mortgagor, from Gaedeke than the amount of Fugate’s note and mortgage, “so that had either (party) had (actual) knowledge of Gaedeke’s claims they could have protected themselves against loss.”
In summarizing, the trial court found “all of the issues in favor of the defendant” and that — ■
“The only knowledge H. E. Suderman or his agent had of the Gaedeke agreement was the constructive notice arising from the possession and occupancy of the premises by the Gaedekes, which knowledge is equally chargeable to the plaintiff. There was no agency existing between Eugate and Suderman, so that Suderman could be chargeable with the knowledge of the existence of the agreement had by Eugate.”
The court’s conclusions of law, in part, read:
“However, assuming, without deciding, that Suderman was charged with the duty of informing the plaintiff that the mortgaged premises were occupied by the Gaedekes, that he was charged with the duty of inquiring about, and taking notice of the rights of those who were in the open and notorious possession of such real estate, and that he was also charged with the duty of then informing the plaintiff of what rights the occupants had or claimed to have; yet was not this open and notorious possession just as much notice to the plaintiff as it was to the defendant and the rest of the world? . . .
“The statute of limitations commences to run from the discovery of the fraud. This constructive fraud was ‘constructively’ discovered by the plaintiff at the time the assignment was made, seven years before the filing of this action. Hence the action is barred by the statute of limitations.”
Judgment was entered for defendant, and plaintiff appeals.
The first point argued in plaintiff’s brief is whether the false representation that the mortgage was a first mortgage and good security was one of fact and fraudulent. But that question went entirely out of the case through failure of proof, by concession of plaintiff’s counsel, and by the trial court’s findings of fact. Plaintiff’s petition did allege that the mortgage purported to be a first mortgage lien on the property and the answer admitted that plaintiff purchased the “described mortgage” which can be construed as an admission that the mortgage was a first mortgage; but as that point was never in dispute and the record contains no suggestion of the existence of any other mortgage, it is of no controlling consequence that the mortgage security purported to be a first mortgage lien on the Fugate property.
The next point argued by plaintiff pertains to the alleged fiduciary relationship existing between the parties. But the trial court found generally and specifically that no such relationship existed, which eliminates that point from this review. (Hoover v. Hoover’s Estate, 104 Kan. 635, syl. ¶¶ 1, 4, 180 Pac. 275.)
Plaintiff next projects an argument that the subject matter of the sale was nonexistent, and that she got nothing from defendant for her $1,500, and that Suderman thereby became a trustee ex maleficio of her money and she was entitled to its return. She did acquire a note of $1,500 in the transaction, and she collected 6 percent interest on it for five or six years, notwithstanding the title to the mortgaged property given to secure payment of the note was infirm and eventually became altogether worthless. But conceding a complete failure of consideration, how can plaintiff surmount the barrier of the statute of limitations pleaded by defendant? She counters by raising the question whether defendant could invoke that statute, and, if so, what provision of it. She says that it was only raised by an amendment to the answer made without notice to plaintiff and without prior leave of court. Nevertheless the amendment was made; no motion was made to strike it; it was before the court and considered by it, and the judgment chiefly, if not altogether, rested thereon. (Auld v. Butcher, 22 Kan. 400.) Plaintiff wants to know what provision of the statute applies. Since plaintiff repeatedly assured the trial court that her action was predicated on rescission of the contract of purchase and sale, because of failure of consideration, and assuming for the nonce that the words “without recourse” in the assignment of the note and mortgage were of no avail as a defense to plaintiff’s action, it is quite obvious that the sixth clause of the statute, if not the second, would bar the action. (R. S. 60-306.)
It is argued, however, that the statute would not begin to run until plaintiff actually discovered the defect in the mortgagor’s title. It is not easy to ignore the point that plaintiff had constructive notice of the defect in the mortgagor’s title when she acquired the mortgage in 1925. This has always been the rule governing the purchase of real property. (School District v. Taylor, 19 Kan. 287; Greer v. Higgins, 20 Kan. 420, syl. ¶ 4; Stough v. Lumber Co., 70 Kan. 713, 716, 79 Pac. 737; Harvester Co. v. Myers, 86 Kan. 497, 121 Pac. 500; Farmers State Bank v. St. Aubyn, 120 Kan. 66, 242 Pac. 466; Hass v. Nemeth, 139 Kan. 252, 31 P. 2d 6.)
Should the same rule have any less potency in the purchase, sale and assignment of real-estate mortgages than in the sale of real es tate itself? Is not the sale and assignment of a note and mortgage, without recourse, analogous to the sale and conveyance of real estate by quitclaim deed? We find no decision in our own reports on this point, but the textbook doctrine is apparently all to one effect— that without a specific guaranty of the security the vendor of a mortgage is not liable to his assignee for any failure of title or value. Thus, in 2 Jones on Mortgages, 8th ed., the rule is stated:
“An ordinary assignment passes nothing beyond the mortgage title and the debt. . . .
“ . . . But where there are no representations concerning the legality of the securities, upon an assignment of a note and mortgage, there is no implied warranty concerning the nature of the debt nor that it is free from usury. There is no implied warranty on the part of the assignor that the debt secured is collectible, or that the mortgagor is solvent. . . .
“Ordinarily an assignment does not charge the assignor with any liability to make good the mortgage debt assigned; . . .
“Ordinarily an assignment of a mortgage does not in any way warrant the title to the mortgaged property; and a court of equity cannot relieve a purchaser of a mortgage of land, the title of which proves defective, unless the seller made representations respecting the title upon which the purchaser was justified in relying.” (pp. 455, 457, 458.)
In 41 C. J. 703-705 it is said:
“The assignee has no remedy against his assignor for the nonpayment of the mortgage debt, unless the assignor has covenanted to see the debt paid, as by giving a warranty or guaranty as to its payment, or by indorsing the note evidencing the debt, . . . Where the loss was due to . . . the invalidity of the mortgagor’s title . . . the assignee may maintain an action against the assignor only where the latter made misrepresentations ...”
Many cases are cited in support of the texts just quoted, among which is Vincent & Co. v. Berry, 46 Ia. 571, where the title to property proved to be bad and the mortgagor was not financially responsible. An assignee of the mortgage sought to hold the morfc gagee on account of partial failure of consideration. But the court held that the assignee took the mortgage subject to constructive notice of the defect in the mortgagor’s title. The syllabus, in part, reads:
“Equity will not relieve a person who purchases a mortgage upon real estate to which the title is defective, unless the seller has made some statement respecting the title upon which the purchaser was justified in relying.” (Syl. 112.)
In the opinion the court said:
“Respecting the title, nothing was said by anybody. The defendant had no knowledge that it was defective, and did not, therefore, conceal the defect. Whatever defect there was was apparent of record. The plaintiffs should have examined it or had it examined. A court of equity cannot relieve a person who purchases a mortgage upon real estate to which the title is defective, unless the seller has made some statement respecting the title upon which the purchaser was justified in relying.” (p. 575.)
Other cases which support this rule are Heppe v. Szczepanski, 209 Ill. 88, 107; Rayburn v. Davisson, 22 Ore. 242.
In Nally v. Long, 71 Md. 585, 17 A. S. R. 547, it was held that in the absence of fraud parol evidence was inadmissible to prove a verbal warranty not mentioned in the written assignment of a mortgage.
In this appeal it is scarcely necessary to lay stress upon the fact that the note and mortgage were assigned to plaintiff “without recourse.” The legal effect of these words was to constitute the indorser a mere assignor and subject to no liability except as an implied guarantor that the instruments were genuine, that he had good title to them, and that he was not aware of any illegality in them. (R. S. 52-409, 52-606; Bank v. Bank, 116 Kan. 303, 226 Pac. 999.) See, also, Drennan v. Bunn, 124 Ill. 175, 184; Reynolds Mortgage Co. v. Garrett (Tex. Civ. App.), 23 S. W. 2d, 835, 838.
It is elementary law that the right of rescission must be promptly exercised. (Sylvester v. Lynde, 113 Kan. 450, 215 Pac. 305; Cleaves v. Thompson, 122 Kan. 43, 251 Pac. 429.) Here plaintiff-had almost seven years’ constructive notice of the defect in the mortgage security ere she began this action, consequently it was barred by the statute of limitations.
No error appears in the record and the judgment is affirmed.
Burch, C. J., and Thiele, J., concurring in the result.
Harvey, J., dissenting. | [
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The opinion of the court was delivered by
"Valentine, J.:
The only rulings assigned for error in this case are the instructions given, and an instruction refused. Some of the instructions given are, perhaps, as abstract propositions, subject to slight criticism, but under the facts of this case, we think they are all correct. It is admitted that Struve, the defendant in error, plaintiff below, did the work for which he sued, and that he was entitled to recover either from Haak, the plaintiff in error, defendant below, or from Keller, the full amount for which he sued. The only substantial question presented to the jury was whether Struve did the work for Haak or for Keller. There was ample evidence to show that the contract of employment was made between Haak and Struve personally, and that Keller was the mere foreman and agent of Haak. But if Keller was not a mere foreman or agent of Haak, but was a contractor to .do the work himself, still there was sufficient evidence to show that Struve was justified in believing, as he did, that Haak was the principal who was having the work done, and that Keller was merely his foreman and agent. But it is hardly necessary to consider the instructions given, for they were not properly excepted to. There were six separate instructions, and they were excepted to as follows: “To the giving of which instructions, . . . the defendant at the time objected, and duly excepted.” This exception was hardly sufficient. (Bard v. Elston, 31 Kas. 274, 276, and cases there cited; The State v. Wilgus, 32 id. 126, 129, and cases there cited.)
We think the instruction refused, if properly construed, is good law, but its substance was given in other instructions. If, however, the instruction should be construed to .mean that the plaintiff could not recover unless the contract was made personally with Haak and not with his agent Keller, that would make the instruction erroneous; or if it should be construed to mean that the plaintiff could prove the contract only by his own evidence, and that none of the defendant’s evidence could be taken into consideration for that purpose, that would also make the instruction erroneous.
"We think no material error was committed, and therefore the judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
Assuming for the present that all the other material facts essential to a recovery in this action have been established by proper proof, it remains to determine whether either of the railroad companies that are plaintiffs in error here is liable in damages for the death of Charles R. Willis. Their liability depends upon the law as applied to the special findings of the jury, and such other facts as are established in the record, about which there are no special findings, and not much controversey. Those material to the inquiry are as follows:
The Ellsworth, McPherson, Newton & Southeastern Railway Company was organized to construct a line of railway from El Dorado, in Butler county, to Newton, and, “being desirous of immediately constructing a part of its line from El Dorado to Newton on the 31st day of March, 1885, it entered into a contract with a corporation known as the West Kansas Construction Company, to construct and equip that part of its line.” The construction company was to survey and locate the line, procure the right-of-way, build the roadbed, tracks, bridges, side-tracks, etc., and equip the same with engines and cars, in accordance with certain specifications. By the terms of the contract, the railway company, through its officers, was to inspect and accept provisionally the road as completed in sections of five miles or more, and as such sections were turned over to and operated by the railway company, it was to haul the supplies for the construction company at specified rates. These provisions were not strictly observed, and the construction company remained in charge and control of the whole line constructed by it until the road reached Newton, after the death of the deceased, when on or about the 1st day of July, 1885, the control of the road passed into the hands of the railroad company. The death of Willis occurred on the 28th day of June, 1885. The Ellsworth company also agreed that the construction company should have the privilege of running its trains over the line inspected, and of receiving and carrying forward construction material, or for other necessary purposes, but trains should be run under police rules and regulations prescribed by the Ellsworth company, and under its control as to time and speed of movement; and the construction company was to be liable for all.damages to stock, or to other.property or persons which it might cause. These are all the provisions of the contract between the Ellsworth company and the construction company that seem to have any bearing upon the question of liability of either company for the death of Willis. The special findings of the jury having reference to such liability are all of a negative character, such as “they do not know,” or answers of a similar import, which are evasive in their tone and not frank responses to direct questions. It remains for us to determine the liability of these two companies, or either of them, on the terms and conditions of the written contract for construction. It is a familiar principle of law that the Ellsworth company could not be held responsible for the negligent act of the construction company unless it had assumed such responsibility by contract. The evidence shows without question that each one of these contracting parties was a separate and independent incorporation of the State, contracting with each other about the construction and equipment of aline of railroad from El Dorado to Newton, at arm’s-length. There must be some affirmative showing by the terms of the construction contract, or by some other evidence, that the Ells-worth company had made an agreement in some form, to be or become responsible for the negligent acts of the construc tion company, before it can be held liable. This is not shown by the express terms of the construction contract; but on the contrary, that the contract contains a provision that declares, “The construction company shall be liable for all damages to stock or other- property, or to persons, which it may cause.” It seems to us that from the provisions of this contract, supplemented by all the evidence in the case tending to throw light on these provisions, the West Kansas Construction Company was an independent contractor in the sense that it was answerable to its employer, the Ellsworth company, only as to the results of the work, and not in the details of its management, or the incidents of its prosecution. The test is: Which party controls the work while it is progressing ? Who has charge of the management and control of the forces, and who controls the movement and location of the material used in the construction ? Who hires the workmen, buys the material, arranges the details, directs and superintends the labor, and is responsible for all failures which do not meet the requirements of the contract, or fulfill the specifications? Who alone is responsible for results produced by separate and independent management ? Who has control of the mode and manner of doing the work, subject only to a provision that it must be equal to a fixed rule, or a certain degree of excellence ? When that is determined, liability is fixed. This contract contains sweeping provisions indicating its true intent and meaning with respect to this question. The construction company was to survey and locate the line, procure the right-of-way, build the road-bed,- tracks, bridges, side tracks, etc., equip the same with engines and cars in accordance with certain specifications. All this implies a condition of things which necessarily makes the construction company an independent contractor, so far as the provisions of the contract furnish a rule for classification. The contractual relation between the Ellsworth Kailroad Company and the construction company excludes all consideration of the question of the one being the servant or agent of the other. The status of the construction company is fixed by positive and express agreement as that of an independent contractor. But inasmuch as the terms of the contract provide that the Ells-worth company, through its officers, was to inspect and accept, provisionally, the road as completed in sections of five miles or more, and as such sections were turned over to and operated by the Ellsworth company it was to haul the supplies for the construction company at specified rates, and that the construction company should have the privilege of running its trains over the line inspected, but that trains should be run under the police rules and regulations prescribed by the Ellsworth company, and under its control as to time and speed of movement, to make the Ellsworth company responsible under the contract it must affirmatively appear that at the time of the death of Willis this particular section of the road had been inspected and accepted under the contract by the Ellsworth company; that the train to whose crew Willis belonged was under the control of that company as to the time and speed of movement, and the other essential elements, such as negligence, etc., necessary to a recovery. But it affirmatively appears that the line of road was not inspected or accepted until after the death of Willis, and there does not appear to be any evidence in the record contradictory of this statement. So that neither by the terms of the contract, nor by the performance of the condi- # . . tions by which the railroad company might have become liable, can it be said that the Ellsworth company is in any manner responsible for the death of the intestate. This general conclusion is supported by the cases of A. T. & S. F. Rld. Co. v. Davis, 34 Kas. 202; St. L. W. & W. Rly. Co. v. Ritz, 30 id. 31; Hitte v. R. V. Rld. Co., 19 Neb. 620; K. C. Rly. Co. v. Fitzsimmons, 18 Kas. 34, and authorities cited in that case; Hughes v. C. & S. Rly Co., 15 Am. and Eng. Rld. Cases, 100; McCafferty v. S. D. & P. M. Rld. Co., 61 N. Y. 178; Pawlet v. R. & W. R. Co., 28 Vt. 297; West v. St. L. V. & T. H. Rld. Co., 63 Ill. 545. In the first and leading case in our own court on this subject, that of the K. C. Rly. Co. v. Fitzsimmons, it is said:
“ When a railroad is being constructed, and is in the exclusive possession of and operated by a contractor for its construction, and the railroad company at the time of the injuries complained of are committed has no control thereof, such company is not liable for the damages resulting from the operation of such railroad. In such case, the maxim respondeat superior does not apply.”
Two propositions have been established, the first being that by the express terms of the construction contract the Ellsworth company is not liable; and second, that the Ellsworth company had not inspected and accepted the section of road upon which the injuries complained of happened, and had not control of the construction trains running thereon, so as to charge specified rates for the transportation thereof, and had not control of such trains as to time and speed of movement, so as to make it liable under the conditions of that provision in the construction contract.
Counsel for defendant in error insist that the Ellsworth company is liable, “ because it existed only in name at the time of this accident, and it allowed the Fort Scott company to exercise its privileges, in the exercise of which Willis came to his death under its name.” The precise contention is, that as the managing and controlling officers of the Ellsworth company- were the same as those of the Fort Scott company, and it allowed the Fort Scott company to exercise its privileges, and by this exercise Willis came to his death; it is therefore responsible. There are some inherent difficulties in arriving at such a conclusion on this state of facts. If the officers of both companies were identical, and the privileges of the Ells-worth company were exercised by the Fort Scott company, by permission of the Ellsworth company, then certainly one, and probably both companies would be liable, but not by reason of the similarity of officers, for that does not fix liability, (A. T. & S. F. Rld. Co. v. Davis, 34 Kas. 202;) but by reason of the joint exercise in a negligent and careless manner of the privileges of one. But there is an assumption in the statement that has no support from the evidence in the case, for at the time the injuries complained of occurred, the Ellsworth company had no privileges, and had not granted the Fort Scott road any permission to exercise them. So we conclude that there is no ground upon which a liability on the part of the Ellsworth company can be placed in this case, and it was error to render a judgment against it.
We are now to inquire as to the liability of the St. Louis, Fort Scott & Wichita Railroad Company to answer in damages for the death of the intestate. This liability is asserted for the following reasons: The jury in response to special questions submitted, find “that it is a fact that the St. Louis, Fort Scott & Wichita Railroad Company did construct the railroad from El Dorado to Newton, in some respects.” They find that the St. Louis, Fort Scott & Wichita Railroad Company was not a party to the contract of construction. They say in response to questions:
“Is it not a fact that the St. Louis, Fort Scott & Wichita Railroad Company did not direct or control the construction of said road, or the men employed in and about the construe- ■ tion thereof? Arts.: We do not so understand it.”
Question 16: “Is it not true that the engine and car with which the said Willis was connected at the time of his death, had been before that time leased or rented or hired to the West Kansas Construction Company, for which it was to pay the said railroad company a compensation therefor? Ans.: There was no evidence showing that there was any compensation paid for the use of said engine and car.”
Separate and apart from these evasive findings of the jury, which there is not a particle of evidence to support, there is some evidence in the record tending to show that the crew of the train to which Willis belonged at the time of his death was in the employ of the Fort Scott road, was borne upon its pay-roll, and actually paid by it. In addition to this, it sufficiently appears that the chief engineer and “ boss track-layer” of the Fort Scott road acted in the same capacity for the con struction company, and testified that they were in the employment of both; and this is'true of some other employés. It is also true that the locomotive and cars composing the train upon which the injury took place, belonged to the Port Scott company. There is evidence tending to show that whenever circumstances required it, the officers of the construction company could have the use and direction of locomotives and cars of the Port Scott company, but exactly on what terms or under what conditions, does not clearly appear. There being no contract in writing offered which would by its terms create a liability on the part of the Port Scott road, it was incumbent on the plaintiff below to clearly establish such liability by the facts and circumstances of the case. We are very strongly inclined to doubt whether she has done so, but as this involves disputed questions of fact, we prefer that a jury should once more pass upon them, and we are largely influenced in this desire by the failure of the jury to give frank and intelligent answers to many of the questions propounded to them, and their persistence in this course after the court had directed them to return to their room and answer direct questions, yes or no. The counsel for the plaintiffs in error, when the answers were returned, promptly pursued the proper course, in objecting to their reception, and the trial court vainly tried to have them properly discharge their duties in this regard. We can say as was said in the case .of U P. Rly. Co. v. Fray, 31 Kas. 739: “It may be that the general verdict of the jury was right, but the manner in which the jury answered many of the special questions submitted to them is certainly sufficient to raise great doubts as to the correctness even of their general verdict.”
The ordinary administration of justice requires that the facts which are alleged to create a liability on the part of the St. Louis, Port Scott & Wichita Railroad Company should be fairly passed upon by a jury who are so free from passion and prejudice, and so mindful of all other obligations, that they will return such frank and direct answers to special questions . of fact submitted to them as the evidence warrants, whether their answers result to the benefit of one party or the other. We recommend that the case be reversed, with instructions to grant a new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The Trask Fish Company brought this action before R. H. Bishop, a justice of the peace of Saline county, to recover $12.05 from J. E. Woodward, for merchandise sold and delivered. A trial was had with a jury, and on May 15, 1886, a verdict awarding one dollar to Woodward was rendered. A motion for a new trial was filed on the following day, which was set for hearing on May 21, when the motion was heard and taken under advisement by the justice until May 24, 1886. At that time the justice, with both parties present, overruled the motion for a new trial, to which the fish company excepted, and Woodward then remitted the one dollar awarded him by the verdict of the jury. A bill of exceptions was made by the Trask Fish Company, and the case taken to the district court on error. At the May term, 1886, the court reversed the judgment of the justice of the peace, awarded judgment for costs in favor of the Trask Fish Company, and set the case for trial and final judgment in that court. Of this judgment Woodward now complains.
The contention of plaintiff in error here is that before the district court can review the rulings and judgment of the justice of the peace, a motion for a new trial must have been made and overruled, and it is claimed that this was not done. He argues that by reason of the provisions of §110 of the justices code, the justice of the peace had no authority to grant a new trial after the expiration of five days from the rendition of the verdict and judgment; and it is insisted that if the justice had no jurisdiction to consider or grant the motion, the district court had no authority to review and reverse the rulings of the justice. It is true the motion for a new trial was not finally disposed of until the ninth day after the verdict was given. The record shows, however, that the motion was made and a notice given on the day following the return of the verdict, and it was through no fault of the company that the motion was held for consideration and decision beyond the five days. The company having, in good time, done what was required to obtain a new trial, ought not to be deprived of'the right because the justice continued the cause a few days beyond the statutory period. It was determined in the case of Scott v. Kreamer, 37 Kas. 753, that the action of a justice of the peace in granting a new trial more than five days after the verdict or decision had been given, was irregular but not void. That case rules the present one. Woodward made no objection to the justice’s holding the motion for consideration and deciding the same more than five days after the verdict. Although present in court when the motion was granted, he took no exceptions or steps to correct the irregularity. On that occasion he not only stood by and acquiesced Jn the act of the justice, but he also recognized and invoked the jurisdiction of the justice by procuring the entry of an' order remitting the one dollar awarded him by the jury. Under the ruling in Scott v. Kreamer, supra, the granting of the new trial was only an irregularity, and one of which the plaintiff in error cannot now avail himself.'
Judgment affirmed.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The only error alleged by the plaintiffs is that the court erred in its general findings in favor of the defendants. The general rule, so often announced by this court, is that where there was any evidence given tending .to support all the material findings of the court, they will not be disturbed; or in other words, before this court would be warranted in reversing a case there must have been an entire failure of evidence to support the special or general findings of fact, or some one material finding or element necessary to support the judgment.. Governed by this general rule, we shall examine the evidence in this case.
On May 27, 1884, defendants entered into the following written contract with one A. C. Wilson:
“First party agrees to build them a 125-bbl.-capacity roller mill, furnishing all material and labor, start it up, guarantee it to make one bbl. flour from four and one-half bus. No. 2 Kansas City wheat; flour to be as good quality as any mill in the country can produce, and to perform as good and satisfactory results; to use all the regular hands now employed by McLachlin Bros., paying them the regular wages they are worth; also to draw plans and superintend the raising of stories and roof of mill building, and building bins on top of warehouse, superintending all work, and completing same in ninety days from date, for the sum of four thousand five hundred dollars, payable when mill is completed, started, and the satisfactory results above obtained. McLachlin Bros, agree to furnish the building and all the old machinery they now have in use in the mill that can be used to advantage, but to fur nish nothing new; to furnish all material and work necessary in raising roof and stories of mill, and in building bins on top of warehouse. A. C. Wilson,
McLachlin Bros.”
On the 3d day of June, 1884, the defendants turned over to A. C. Wilson, under said contract, their mill. On June 10, 1884, Wilson sent the following order to Stout, Mills & Temple, at Dayton, Ohio:
“ Please send H. M. McLachlin & Bro., of Paola, Kansas, one pair double 9x15 rolls, cut for first and second brake; one pair 9x24 double, one smooth, and one pair cut for bran. He has a pair of double 9x18 Nordyke rolls I put in his mill two years ago for smooth roll. These rolls are sold on a guarantee to do as good work as the rolls I put in the Hammond mill at Springfield — to be paid for when started up, unless he should want ninety days on part of the pay, then you are to give it.”
Orders similar to this were sent to each of the plaintiffs in error, in ordering the mill machinery in question. This machinery was charged by plaintiffs to McLachlin Brothers, and shipped in their name to them, at Paola, Kansas, and was received by Wilson and his foreman, and placed in the mill under Wilson’s contract. About the time of the completion of the mill, plaintiffs drew sight drafts for the price of this machinery, payment of which was refused by the defendants.
To the first of these drafts the defendants made the following reply:
“ Paola, Kansas, October 3, 1884.
“Stout, Mills & Temple — Gents: Yours to hand, and contents noted. Mr. Wilson had a contract to build us a mill, payable only when completed and result obtained. He had no authority to use our name in any manner; nor will we pay drafts for stuff ordered by him. Very truly,
McLachlin Bros.”
A similar notice was sent to each of the plaintiffs wheu sight drafts were made upon the defendants for like purchases of mill machinery. In reply to this letter of October 3d, Stout, Mills & Temple wrote as follows:
“Dayton, Ohio, October 11, 1884.
“ McLachlin Brothers : In reply to your favor, we do not know anything about the matter. We took Mr. Wilson to be your agent. We billed and shipped the goods to you. You will please return them, or accept them as billed.
Yours truly, Stout, Mills & Temple.”
The evidence of the defendants was clear that they had no notice or knowledge that the goods so ordered by Wilson were ordered in their name, other than what the bills of lading or invoices may have informed them; and as to these bills of lading and invoices, they say that when received, if Wilson was present they were turned over to him unopened; if not present, they were opened, and upon ascertaining that they related to machinery ordered by Wilson, they were turned over to him when he returned to the work. It is also shown that they paid the freight upon all of this mill machinery, but that it was paid by them on account of. Wilson, and charged to him on his contract. The evidence further discloses that the mill was completed about the 3d of October. All the plaintiffs were notified in ample time after the completion of the mill, so that they might have filed sub-contractors’ liens, but no liens were filed until more t[lan s¡xfcy <jayS thereafter, and then not a subcontractors’ lien but direct liens against McLachlin Bros, for the- goods delivered. Plaintiffs also offered evidence to show that it was a custom in furnishing mill machinery and material of the kind furnished, when ordered by a millwright for the repair of a mill, to ship the goods invoiced to the owner or proprietor of the mill, and payment was always demanded of such owner.
Plaintiffs insist that as they established the fact of the custom of charging up to the mill-owner the goods when ordered by Wilson and other millwrights who were repairing mills over the country, and gave the agent a commission on the sale of the goods, that this custom of trade supersedes, as far as they are concerned, the contract made by the defendants with Wilson, without their knowledge; and we are asked, as a matter of law, to say that by reason of this custom of trade there was not sufficient evidence to sustain the findings and judgment of the court. Upon consideration we think there is no foundation for this claim. It is true that usage and custom, under some circumstances, determine the liability of a party, but before it can, the party must have had knowledge of such custom. It is only on the ground that the party knew of the usage, and therefore supposed that he contracted with reference to it, that usage becomes admissible. This knowledge may be inferred in some cases from the nature of the business. The length of time the custom has been in existence, and the fact that the custom has become general in its application, and the like, are competent to be shown. But whether such a state of facts has been proven, is a question of fact for the court or a jury, and the proof of usage can only be received to show the intention or understanding of the parties, in the absence of specific agreement, or to explain the terms of a written contract. In Partridge v. Insurance Co., 15 "Wall. 375, Justice Miller, speaking for the court, said:
“.This usage is confined to the establishing of an implied contract; and when the knowledge of the usage is brought home to the other party, the evil is not so great. But when it is sought to extend the doctrine beyond this, and incorporate the custom into an express contract whose terms are reduced to writing, and are expressed in language neither technical nor ambiguous, and therefore needing no such aid in its construction, it amounts to establishing the principle that a contract may add to, vary, or contradict the well-expressed intention of the parties made in writing. No such extension of the doctrine is consistent either with authority, or with the principles which govern the law of contracts.”
Mr. Phillips, in his work on Evidence, says:
“Evidence of usage has been admitted in the foregoing instance of contracts relating to transactions of commerce, trade, farming, or other business, for the purpose of defining what would otherwise be indefinite, or to interpret a peculiar term, or to explain what was obscure, or to ascertain what was equivocal, or to annex particulars and incidents which, though not mentioned in the contracts, were connected with them, or with the relations growing out of them; and the evidence in such cases is admitted with a view of giving effect, as far as can be done, to the presumed intention of the parties.” (10th ed. 415. Barnard v. Kellogg, 10 Wall. 383; Dixon v. Dunham, 14 Ill. 324.)
Now in this case, by applying these rules, can it be contended that the judgment of the court below ought to be set aside, where there is an entire failure to show that the defendants had any knowledge of the custom and usage of the plaintiffs in their business relations with millwrights, or with their arrangements with Wilson, the contractor in this case, and in the face of this written contract between defendants and Wilson ? To do otherwise than to affirm this judgment would be to allow this usage of trade to step in and change the position of the parties, and to impose upon the defendants conditions and liabilities never contemplated by them. A - new contract would by this means be made for fhem, and this cannot be done. The parties by their contract left nothing to be interpreted by the laws of trade. They agreed to pay Wilson a certain stipulated sum for the completion of this mill; nothing was to be paid until the work was satisfactorily finished. Wilson agreed to furnish all labor, material and machinery to do the work with. This was definite and certain; no misunderstanding could arise that required custom or usage to interpret or make it plain.
Plaintiffs, however, say that they thought that Wilson was the agent of the defendants, and treated his order as the order of the defendants, and say that they would not have sold the goods to Wilson on his own account. The plaintiffs show more than this; they show that they had an arrangment with Wilson, and other millwrights, by which they could sell machinery for the plaintiffs, and plaintiffs agreed with them to retain a certain per cent, for commission on said sales, to be paid to Wilson or others who ordered the machinery. In the face of this, and with this knowledge, plaintiffs insist that they supposed Wilson was defendants’ agent, when in fact their own declarations go to prove that Wilson, for the purpose of selling this machinery, was their agent, and that this was a sale through him to the. defendants under his contract; for it is a well-established rule of law that where one party is' authorized to sell a given article, and is to receive compensation therefor, that he cannot be treated and held as the agent of the purchaser in the same transaction. (Raisin v. Clark, 41 Md. 158.) This question of agency was a question of fact to be found by the court.
Again, plaintiffs contend that as they charged the bill for the machinery, and shipped the same to the defendants, and the machinery was afterward put in the defendants’ mill for defendants’ benefit, that they are estopped from denying Wilson’s authority, and did by their silence ratify the order he gave for the machinery. In this claim the plaintiffs have more grounds for complaint. We find many of the elements of ratification clearly shown by the evidence, and in fact we see but one element wanting: that is, the want of knowledge by the defendants. In National Bank v. Drake, 29 Kas. 311, it was said:
“Again, ‘ While the acts of an agent, though unauthorized at the time, may become binding upon the principal by ratification and adoption, to make such ratification effectual it must be shown that there was previous knowledge on the part of the principal of all the material facts and circumstances attending the act to be ratified; and if the principal assent to the act while ignorant of the facts attending it, he may disaffirm it when informed of such facts.’ (Express Co. v. Trego, 35 Md. 47; also Coombs v. Scott, 12 Allen, 493.) . . . The effect of ratification is to create a new contract; but a contract implies assent, and how can there be assent without knowledge?”
The defendants, at the time the goods were shipped, knew nothing of the order Wilson had sent to the plaintiffs, and, being ignorant of that fact, supposed that the goods were shipped to them because of Wilson’s frequent absence from the mill, and for his convenience, so that they might be received and placed in the mill at once. They paid the freight bill, but charged the amount to Wil0 0 _ ¶ son; and when the knowledge did come to the defendants that the plaintiffs sought to charge them with the machinery so ordered by Wilson, they then at once notified the plaintiffs that they had a contract with Wilson, and that nothing was to be paid until after the completion of the mill, and refused the payment demanded. This notice was given plaintiffs in ample time for them to have protected themselves by filing sub-contractors’ liens, and thus they might have saved whatever was due Wilson on the contract from the defendants. This question of ratification is another question of fact that falls within the rule set out at the commencement of this opinion. It was a question submitted to the court, and the court found for the defendants. We therefore cannot disturb the findings and judgment of the court.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action for the recovery of §27.30, brought by Ed. Krapp against C. Hauer, before a justice of the peace of Wabaunsee county. It was removed by appeal to the district court, where it was tried with a jury at the October term, 1884, and resulted in a verdict for the defendant. The plaintiff’s petition in error is founded on a case-made which contains none of the evidence. The record as it is made up presents no question of importance for decision. The chief complaint of plaintiff is that the court made improper and prejudicial remarks concerning him during the progress of the trial and in the presence of the jury. It appears that after the case was called for trial, plaintiff, by his counsel, asked the court to pass the cause for a day on, account of the indisposition of the plaintiff. The plaintiff was then sworn, and he stated that he was a material witness in the case, and that he would not be able, on account of ill-health, to be present throughout the trial. Upon further examination he testified that he resided about five miles from Alma; that he came from home that morning; that he had been about town since he reached Alma; and that his illness did not prevent him from going about town, and he finally stated that he was able and ready to proceed with the trial. He then requested the court to have time to call his witnesses in order to determine whether he would apply for a continuance on account of absent witnesses. This request the court refused, and ordered the trial to proceed “because it wa's clear that plaintiff’s attorneys were trifling with the court.” We think the court did not 'improperly characterize the transaction. As the record reads, the attempt to delay the trial after the case was called was irregular and unreasonable. If the sickness of the plaintiff was such as to prevent his attendance at court, an application for a continuance should have been made before the calling of the jury. The testimony of the plaintiff regarding his so-called illness was somewhat strange. After testifying that he was so indisposed as to be unable to be present, he was compelled upon further examination to state that he was able and ready to proceed with the trial; and it seems that he was present throughout the trial, aiding and advising his counsel, and was sworn and examined as a witness. The subsequent effort to obtain a delay in order that he might ascertain whether he was ready for trial, was frivolous and unjustifiable, and the court did not misname the conduct when he said it was trifling. No reason is given why the plaintiff could not and did not ascertain whether'his witnesses were present or absent in advance of going to trial, and therefore we must conclude that none existed.
From the record we discover no grounds for interfering with the verdict and judgment of the district court, and hence there must be an affirmance.
All the Justices concurring. | [
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Opinion by
Holt, C.:
The petition states as plaintiff’s cause of action, in substance as follows: On October 27,1883, the Dunlap Stone and Lime Company borrowed of the First National Bank of Emporia, Kansas, the sum of $1,500, and gave its note for that amount, and used the money in its business. The bank required sureties, and the company procured David Taylor, the plaintiff in error, also plaintiff below, W. P. Parr and W. W. Wheeler to sign said note as guarantors and sureties. Said company paid only a small portion of the note, and the bank brought suit for the balance on said note remaining unpaid, in the Lyon district court, and on the 20th of March, 1885, recovered judgment against the company and the sureties. The company, Parr and Wheeler were insolvent at the time of the rendition of the judgment. The bank issued an execution upon its judgment, levied on plain tiff’s land, and advertised it for sale; to save his property he was compelled to pay $1,415.43, on October 16, 1885, and took an assignment of the judgment in writing. Taylor then caused an execution to be issued on the land in Morris county, then really, though not apparently, owned by the company. Before this time, and on April 30, 1884, the defendant Richard Pickens, who was president of the company, represented to the company that if it would deed the land to him he would borrow $1,200 to pay off this debt, and would hold the land as trustee for the company, stating that a better loan could be obtained if the land was owned by an individual than by a corporation. The company thereupon, without other consideration, deeded the land to Pickens, and took a defeasance setting forth the-trust. The defeasance was signed by Pickens, but not acknowledged. Pickens executed two mortgages upon the land, one for $1,200 and the other for $120, but did not receive any money thereon. The deed and mortgages were put upon record. Pickens immediately refused to recognize his trust, and threatened to use the money that might be obtained from the mortgages for his own use. On June llj 1884, said company brought suit in the Morris district court against Pickens and the mortgagees, for the purpose of having Pickens declared its trustee, said deed set aside, said mortgages canceled, and mortgagees restrained from advancing any money on said mortgages. Pickens, by fraud and collusion, procured the dismissal of said suit. On the 27th of February, 1885, the company again sued the same defendants in the same court and for the same purposes. On March 1,1884, said company again sued Pickens in the Lyon district court, claiming that he had appropriated to his own use large sums of money belonging to the company.
After Taylor had paid off the judgment and taken an assignment as aforesaid, the company, Pickens and one Summers, colluded and conspired together, so that in the suit of the company against Pickens a judgment was recovered against the company and in favor of Pickens, on January 6, 1886, for $2,132.83 and costs. On October 16, 1885, Taylor, being the owner of the judgment in favor of the bank, caused an execution to issue, and the same to be levied on the land in controversy in Morris county. On the day before the land was to be sold, Pickens filed a petition in the- Lyon district court against Taylor, alleging “that he was the legal and equitable owner of said land,” and obtained a temporary injunction restraining the sheriff from making sale of said land under said execution. This action was brought in the Morris district court by the plaintiff, for the purpose of setting aside the deed made by the company to Pickens, and to prevent the mortgagees from advancing any money to any of the co-defendants upon such mortgages; also that Pickens and the company be enjoined from selling and mortgaging said land during the pendency of this suit, unless to raise money to pay the claims of plaintiff; that the land be adjudged subject to a levy under the execution, and that he be permitted to sell said land to satisfy his judgment.
At the trial on April 21, 1886, the defendants objected to the introduction of any evidence by plaintiff, because his petition did not state a cause of action; the objection was sustained, and judgment rendered for defendants. The plaintiff brings the case here.
It is averred in the petition that at the time the plaintiff caused said execution to issue, the land, as shown by the records, was apparently the property of Pickens, and that there were mortgage liens thereon; it is also set forth as a matter of fact, that the land did not belong to Pickens, nor were there any liens thereon by virtue of the mortgages. The plaintiff had a right to ascertain in this action the interest of the judgment debtor in the land, freed from all pretended liens and apparent complications. New persons can be found willing to purchase real estate at execution sales, with apparent liens upon and adverse interests in it, and take upon themselves the risk of contending with adverse claimants to secure a perfect title thereto. For this reason a judgment creditor should be permitted to test the validity of the claims which might interfere with his rights, and which he believes to be founded in fraud; and upon sufficient showing the court should set aside a fraudulent transfer or mortgage, and clear away any cloud upon the title of the land to be sold, in order to sell it to the best advantage. (Freeman on Executions, § 242.)
The objection made, that it is not averred that an execution had been returned unsatisfied, is not of much force in the face of the allegation that “ both Pickens and the company are wholly insolvent, and unless this plaintiff can levy upon and sell this real estate he will be wholly without remedy, and will lose his entire claim.” That allegation is equivalent to an averment that they had no property subject to execution, and is sufficient, if supported by evidence, to authorize a judgment directing an equitable interest of the debtor in lands to be subjected to the payment of a judgment against such debtor. (Armstrong v. Keifer, 39 Ind. 225; Loving v. Pairo, 10 Iowa, 283.)
We believe that the petition, and that part of the reply offered and treated as a supplemental petition, were sufficient to support a judgment. We therefore recommend that the judgment of the court below be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The district court of Saline county refused to vacate a decree of divorce, which it had rendered on the 15th day of February, 1886, in an action pending between these parties, notice to vacate having been served on the 28th day of May, following. The motion enumerated several causes for the vacation of the decree, and among them were these: That the judgment was rendered without other service than by publication in a newspaper; that John Hemphill had no actual notice of the pendency of the action in time to appear in court and make his defense; that he had a good and valid defense to the action; and that he had filed a full answer to the petition. He supported his motion to vacate, by an affidavit, alleging that in the fall of 1882, with the knowledge and by the consent of his wife, he went to Santa Fé, New Mexico, to take charge of a gang of laborers on a railroad as foreman, to enable him to earn money to support his family; that in July, 1883, his wife came to see him there; that in December, 1883, he went to Prescott, Arizona, seeking employment, and duly advised his wife of his change of location, and remained in correspondence with her until she ceased to write him; that he continued to write to her, but received no answers; that after she ceased to write, he sent her a package of goods by express from Prescott; that during all this time he frequently received copies of the two most widely circulated newspapers published at Salina, where his wife resided all this time; that a brother of his wife, living at Salina, was a regular correspondent with him all this time, and he believed that his wife knew the fact that her brother knew his post-office address; that he also corresponded with one Snead, of Salina, all this time, and that his wife could easily have ascertained his post-office address by inquiry in the town of these persons; that he did not know of the pendency of the divorce suit until the 18th of February, 1886, and he then left Arizona and came to Salina, and. made this application. The original papers in the divorce proceedings were used to show that the notice by publication of the pendency of the suit was pub lished in a newspaper that was printed and circulated in the town of Brookville, and not in one of the Salina papers, where his wife and family resided. This is enough to show the character of the support made to aid his application to vacate, and to be let in to defend. There was nothing offered on the other side; there was a demurrer to the affidavit and other matters supporting the application, and it was sustained. This ruling is alleged as error here. We think it is, and that the case ought to be reversed. The judgment in the divorce action comes within the operation of §77 of the code, as being one rendered without other service than by publication in a newspaper. The plaintiff in the action filed her affidavit, in effect that she could not make, or cause to be made, any other service. It may be that she did not know his post-office address, or it may be that she did, but when she swore that she could not make any other service than that by publication in a newspaper, it ought to be the end of the inquiry as to whether any other service was made. It cannot be held that the act of making and filing the affidavit, that no other service could be had, was such an additional act, coupled with the publication in the newspaper, as to exclude the case from the operation of § 77. (Cranch v. Cranch, 30 Wis. 667; Edson v. Edson, 108 Mass. 590.)
In the Lewis case, 15 Kas. 181, it was held that mailing a copy of the petition with a copy of the publication notice attached thereto, combined with the notice published in the newspaper, were the requisites of the law, to make a good service in such an action; that these two things excluded the operation of § 77 in the case. This is the point decided in that case, and the only one necessary to pass upon, but the same question does'not arise in this case; if it did, we should feel bound by that decision. It is also said in that case that § 77 does not apply to divorce cases; but since that time, § 647 of the code has been amended, (in 1881,) and its operation enlarged, and now the provisions of the code upon the subject of the vacation of judgments are made applicable to divorce actions, if commenced within six months after the rendition of such judg ments. The amended section gives the right, but does not prescribe the manner in which it shall be exercised, but that must be sought and found in the other provisions regulating such proceedings. Section 77 is one of them, and applies in all divorce cases, where judgments have been rendered on no other service than by notice published in a newspaper. It is said that this section allows three years within which a judgment can be opened, and hence can have no application to a divorce case. This is a mistake; the duty of the court is to reconcile them, and give them both force. The construction we adopt does this, and there appears to be no escape from it. The amendment of 1881 expressly provides that judgments in divorce cases may be vacated within six months from the date of their rendition, but does not prescribe the manner. It must be held that the other provisions of the code prescribing causes, and providing methods of vacation, are applicable, or else the right to open such judgments would be subject to the discretiou of every court in the state in which they are rendered. There was such a showing made by the evidence as entitled the party to have the judgment opened, and to be let in to defend. He filed an answer showing a meritorious defense; he offered to pay all the costs; he went very far on the way of a demonstration that his post-office address was known, or could easily have been ascertained. The publication in the Brookville paper, instead of in one at Salina, the place of residence of the family, unexplained, is a suspicious circumstance. All these things, added to his legal right under the statutes as we now construe them, to have the judgment vacated, (Albright v. Warkentin, 31 Kas. 442,) compel us to recommend that the ruling of the district court of Saline county be reversed, and the cause remanded with instructions to sustain the motion to open up the judgment and allow a defense to be made, on the payment of all costs that have accrued.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The facts in this case as disclosed upon the trial are substantially as follows: On and prior to May 9, 1884, the Missouri Pacific Railway Company was running and operating a railroad from the city of St. Louis, Missouri, through the states of Missouri, Kansas, and Nebraska; on the 9th day of May, 1884, it was carrying on its road from Missouri through Kansas to Nebraska, from fifteen to eighteen cars of Texas cattle — one hundred head — which had been shipped by the owner over the railway, who was upon the train in which they were being transported. On said May 9, while the cattle were in transit through Brown county, in this state, three to five cars of the cattle were derailed and wrecked; many of the cattle were injured and killed, and it was necessary to remove the cattle from the train; the cattle could not be reloaded at the'wreck without first building a corral and cattle-chute and obtaining additional cars; the wreck was of such a character as to block up the road for several hours and prevent the passage of trains; the cattle were driven from the wreck along the public highway to Hiawatha, about seven miles, where they were reloaded into cars and taken to Nebraska; Hiawatha was the next station on the line of railroad north of the wreck; Finley resided at the time two miles south and west of Hiawatha, upon a farm owned by him, a mile and a half from the Missouri Pacific Railway; as the cattle were being driven to Hiawatha, one of them escaped and got into his pasture; he saw the animal the same day among his cattle; he recognized the animal as one of the breed commonly called Texas, or Southern; he kept the animal, and permitted it to run with his other cattle for about two months; he had had considerable-experience with cattle up to this time, as he had been in the stock and cattle business four or five years; he however did not discover any disease in the animal, and has since retained the animal in his possession. In July, after the cattle were driven from the wreck to Hiawatha, several of Finley’s became diseased with splenic or Spanish fever; twelve head died of this disease, and their value was eight hundred and twenty dollars.
Finley brought this action against the railway company to recover the sum of ten hundred and fifty dollars. The jury returned a general verdict in his favor for eight hundred and eighty dollars, and judgment was entered thereon against the company. This action seems to have been brought and tried under the statute enacted for the protection of cattle against contagious diseases. (Laws of 1881, ch. 161; Laws of 1884, ch. 3.) The transactions complained of occurred in 1884, therefore prior to the legislation of 1885. (Laws of 1885, ch. 191, §5.)
The first contention of the railway company is, that the statute referred to cannot apply, as the same tends to place an embargo upon interstate commerce, and Railway Co. v. Husen, 95 U. S. 465, is cited as decisive. In that case, a statute of Missouri, prohibiting Texas, Mexican or Indian cattle from being driven or conveyed into the state between the first day of March and the first day of November in each year, was deemed to be an unlawful exercise of police power. It was, however, conceded in that case that the general police power of a state would “justify the exclusion of property dangerous to the property of citizens of the state; for example, animals having contagious or infectious diseases; all these exertions of power are in immediate connection with the protection of persons and property against noxious acts of other persons, or such a use of property as is injurious to the property of others. They are self-defensive.” The Missouri statute interposed a direct prohibition against the introduction into the state of Missouri of certain classes of cattle during eight months of each year without any distinction, whether they were diseased or not. In this state, the statute interposes its direct prohibition against the introduction of cattle into the state diseased with the Texas, splenic or Spanish fever. In this case, Ur. A. A. Holcombe, the state veterinarian, testified that the Texas, splenic or Spanish fever may be communicated to native cattle from cattle coming immediately from the low grounds that border the gulf of Mexico; that the area of the infected districts includes half of Texas, a portion of the Indian territory, two-thirds of Arkansas, and other territory; that Texas, or other herds coming from this territory have an abnormally high temperature; that the opinion is very generally entertained that the cattle capable of transmitting the Texas, splenic or Spanish fever emit a peculiar odor; but that herds from the infected districts without odor are also capable of transmitting the disease; that native cattle are usually infected from grazing or passing over the trail of cattle capable of transmitting this disease; also from passing along railroad tracks over which these cattle have been transported in cars; that native cattle will also become infected with the disease by being carried in cars which have previously been used in transporting Texas or southern cattle from the infected districts; that it is generally safe to bring Texas cattle, so diseased, into the state during the months of December, January and February • that the reason that the Texas cattle do not communicate the disease in those months is, that the low temperature destroys the virus of the disease.
In the case of The State of Kansas v. Mugler, 25 Rep. 1, decided by the supreme court of the United States, that court said:
“Property, under our form of government, is subject to the obligation that it shall not be used so as to injuriously affect the rights of the community. ... It belongs to the legislative branch of the government to exert what are known as police powers of the state, and to determine primarily what measures are appropriate, or needful, for the protection of the public morals, the public health, or the public safety.”
The decision is only the recognition of the doctrine that the police power of the state extends to the protection of the lives, limbs, health, comfort and quiet of all persons, and the protection of all property within the state. We have construed the acts upon which the alleged liability is founded in this case, so that no recovery can be had against any person or corporation acting in good faith, unless such person or corporation had knowledge, or such facts existed as to make the person or corporation chargeable with knowledge, that the cattle driven or transported into the state were diseased, or were of a kind liable to communicate disease to the domestic cattle of the state. (Patee v. Adams, 37 Kas. 133.) As thus construed, we do not think the statute of the state an intrusion upon the exclusive domain of congress. And we think that the statute, aided by the testimony of the nature of Texas, splenic or Spanish fever, and the peculiarities of Texas or southern cattle so diseased, against which this legislation is directed, has for its substantial object the protection of the property of the citizens of the state, and therefore ought to be sustained.
Clearly, the object of this statute is not to obstruct interstate commerce, but solely to exclude from the state cattle having contagious or infectious diseases, and therefore wholly for the immediate protection of the property of this state against the noxious acts of other persons, or such a use of their property as is dangerous and injurious to the cattle interests of this state. If this law is not constitutional and within the police power of the state, then the state is absolutely powerless to protect the property of its citizens. If this and similar statutes are in conflict with the constitution of the United States, the state is wholly disarmed and defepseless to exclude property from the state that is dangerous and injurious to the property of its citizens. "We think the statute can be fully justified as the legitimate • n ,¶ i • n ,¶ , , -i , i , exercise ot the ponce power or the state; and that it is not usurpation of the power vested exclusively in congress. It is founded upon the law of self-defense. Among other things, the court instructed the jury as follows:
“3. The burden of proof in this action is upon the plaintiff, and in order to recover, it is necessary for plaintiff to prove by a preponderance of evidence the existence of each and all of the following facts: First, that in said county of Brown, on or about the 9th day of May, 1884, said defendant, as a common carrier, was transporting as freight in its cars upon its railroad about one hundred head of Texas cattle; second, that said cattle were diseased with a disease known as Texas, splenic or Spanish fever; third, that at a point on said railroad in said county of Brown, the said cattle, at the time mentioned, were unloaded from the cars of the defendant, and by said defendant were driven along the highway over a portion of the territory of Brown county; fourth, that at said time and afterward, the plaintiff was the owner of a number of domestic cattle in said county; fifth, that without fault of plaintiff and in consequence of said cattle being driven through said territory the said disease of Texas, splenic or Spanish fever was communicated to the cattle of plaintiff; sixth, that by reason of said disease being so communicated to his said cattle, plaintiff sustained loss and damages.”
It is further contended that these instructions were in substance that a recovery could be had against the company, although it acted in the best of faith and had no knowledge that the cattle it was transporting were diseased; and although no fact existed as to make it chargeable with knowledge that the cattle were diseased, or were of a kind liable to communicate disease. This objection seems to be well taken. The court did not take the correct view of the statute. There was uo proof before the jury that the cattle were of wild and undomesticated habits; or that the railway company loaded the cattle upon its cars at any point south of the thirty-seventh parallel of north latitude; or that the railway company, before the derailment of its train in Brown county, had any knowledge that the cattle were diseased, or were liable to communicate disease to domestic cattle. After a careful reexamination of the question, we are satisfied with the construction given to the statute in Patee v. Adams; and upon another trial the district court will follow that construction. That statute does not in terms dispense with the necessity of averring and proving the knowledge of the person or corporation attempted to be brought under its terms. If the railway company was notified, soon after the cattle were unloaded from the wrecked train, that they were Texas cattle and liable to spread disease among domestic cattle, then it became its duty to use precautionary measures to prevent any damage by the communication of disease from the cattle under its charge. Upon such notice, if any was given, the statute had operation. (Laws of 1881, ch. 161; Laws of 1883, ch. 145; Laws of 1884, ch. 3.) If the company, after such notice, failed to reload the cattle at the wreck as demanded by the farmers there assembled, but instead drove them to Hiawatha, it did so at its peril, and is liable for damages ... j? t arising by the communication ot disease trom the cattle so driven, provided Finley was not guilty of contributory negligence. The company might have corraled the cattle at or near the wreck, or otherwise prevented them from running at large or going upon the public highway until reloaded. (Laws of 1881, ch. 161, §3; Patee v. Adams, supra.)
It will be a question of fact in another trial for the jury to determine whether the railway company received notice soon after the wreck that the cattle were Texas cattle and liable to spread disease among native cattle. Counsel also insist that the railway company never had any notice of the diseased con dition of the cattle at the wreck, or subsequently. We think that if the road boss from Hiawatha, or the conductor of the train, or the trainmen, while in the actual posses-sion and charge of the cattle in the line of their . n .. duty, had notice after the wreck, of their nativity and diseased condition, then notice to them would be notice to the company. As that fictitious entity, the corporation, can act only through natural persons, its officers and employés, and as it of necessity commits its trains absolutely to the charge of officers and employés of its own appointment, we think that the whole power and authority of the corporation, pro hao vice, is vested in the officers and employés; and that as to the cargo or freight of the train, they are to be considered as the corporation itself, when they are left in the sole charge and control thereof.
It is further claimed by counsel that under the pleadings, it is admitted that the owner of the cattle, as soon as the wreck occurred, appointed his own agents to take charge of them; and further, that the railway company is in no event liable, as it exercised no control or authority over the cattle after they left the cars. The allegations in the petition are that the railway company by its agents drove the cattle from the wreck along and upon the highway to Hiawatha. The answer alleges that after the cars were derailed and the cattle taken therefrom, the owner by his agents drove the cattle to the next station. The question upon this part of the pleadings is, which of the two sets of men drove the cattle — the agents of the railway company, or the agents of the owner ? The failure to verify the reply does not admit that the owner took charge of the cattle and drove them along the public highway.
Upon the trial, C. W. Johnson, who testified that he was a lawyer by profession, and not a doctor, or veterinary surgeon, was allowed to give his opinion as to the symptoms and causes of Texas fever; and, also, was permitted to testify that the cattle communicating the Texas fever to domestic cattle in this state came from that part of Texas south of latitude thirty- five. In order to determine whether the witness was competent as an expert, the following examination was had:
“ Q. I will ask you if you have read a great deal upon the subject of Texas cattle? Atis..• Yes, sir.
“Q,. And your information is principally derived from the knowledge you have derived from reading in regard to it ? A. From boobs; yes, sir.
“Q. Some little observation ? A. Yes, sir; from the testimony of experts, taken in a case in which I have been interested as a lawyer.
“Q,. Case in court? A. Yes, sir.
“ Q,. The principal portion, if not all, is from knowledge derived from books and the testimony of experts in court? A. Yes, sir.”
Upon this testimony, it does not appear to us that the witness possessed the legal qualifications of an expert. Where a Person has been educated in a particular profession as a physician, surgeon, or veterinarian, he is presumed to understand thoroughly the questions pertaining to his profession; but a person not a member of those professions, who has read extensively from books and heard the testimony of experts in court in regard to the diseases of men or cattle, is not considered an expert concerning the same. How far the discretion of the court goes in admitting expert testimony, we need not now decide. (Commonwealth v. Sturtivant, 117 Mass. 122; Dole v. Johnson, 50 N. H. 452.)
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The judgment of the court below in this case must be affirmed. Whether the court below erred or not in any of its rulings depends entirely upon whether it erred or not in its general findings of fact, and that question, as we think, is not fairly presented to this court, for the reason that it does not appear that the record brought to this court contains all the evidence upon which such findings were made, or all the evidence introduced on the trial in the court below. In any case, before the supreme court can consider the question as to whether the verdict of a jury or the findings of a court are against the evidence or not, it must be shown affirmatively in some manner that the record contains all the evidence. (Cooper v. Armstrong, 4 Kas. 30; Turner v. Hale, 8 id. 38; Moody v. Arthur, 16 id. 419; Greenwood v. Bean, 20 id. 240; Winstead v. Standeford, 21 id. 270; Murray v. Kelley, 23 id. 666; Pritchard v. Madren, 31 id. 38; Walker v. Braden, 34 id. 661.) The case of Dewey v. Linscott, 20 Kas. 684, is not in conflict with the cases above cited, nor does it aid the plaintiffs in error in this case. The record in the present case with respect to the evidence, states as follows: “The plaintiffs offered evidence tending to prove the following facts;” then a statement of certain facts follows, and then the statement concludes as follows: “And thereupon, the same being submitted to the court, the court found,” etc. This certainly does not show that the record contains all the evidence in the case. Indeed it does not show that it contains any of the evidence. It is simply a recital that the plaintiffs offered evidence tending to prove certain facts. But how much other evidence was introduced, or how little, is not shown, and the evidence itself is not given. Neither is it shown how many other facts or how few were proved. From anything appearing in the record, there may have been other evidence introduced, of an overwhelming character and amount, tending to disprove all the facts which the plaintiffs’ evidence tended to prove; and many other facts than those mentioned in the record may have been incontestably proved. The court below found generally only, making no special findings of either fact or law, and hence we cannot tell what particular facts were either proved or disproved. From the record as it is brought to this court, we cannot say that the court below committed any error, and therefore its judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution in the district court of Saline county, in which the defendant Eloph Peterson was charged with the crime of grand larceny in the stealing of 34 head of cattle, the property of John H. Prescott. The offense was committed, if at all, about June 8, 1886. Atrial was had before the court and a jury in December, 1886, and the defendant was found guilty and sentenced to imprisonment in the penitentiary for the term of five years. He now appeals to this court. He alleges for error, as follows:
“1st. The overruling of his motion for a new trial; 2d, the overruling of his motion in arrest of judgment.”
The grounds relied upon for a new trial, and which are now insisted upon in this court, are as follows:
“1. Misconduct of the jury.
“2. Preadjudication on the part of the juror W. C. Fore.
3. Error in the admission of evidence.
“ 4. Refusal of instructions asked by the defendant.
“ 5. Misconduct of counsel for the prosecution, comprising the 11th and 12th grounds alleged in the motion.
“ 6. Verdict contrary to the law, as given by the court.
“7. Verdict contrary to the evidence, under the instructions of the court.
“ 8. Verdict contrary to the law.
“9. Verdict not sustained by the evidence.
“10. For insufficiency of instructions of the court, comprising the 14th ground in the motion.”
The first question properly arising in this case is, whether the juror W. C. Fore had prior to the trial formed or expressed any opinion in the case with reference to the guilt of the defendant. The affidavits of Charles J. McVittie, Ann McVittie and Hannah McVittie were introduced in evidence by the defendant on the hearing of the motion for a new trial to prove that the juror Fore had so formed and expressed such an opinion. On the other side, the affidavits of W. C. Fore, W. D. Mulkey, Charles O. Wheaton, B. L. Swain, O. B. Tubbs, and Bursley Sargent, were introduced. In the light of all the evidence, and particularly that of the six last-named persons, the most charitable thing that can be said with reference to the three McVitties and their affidavits is, that they were mistaken and their affidavits the result of misapprehension. The affidavits introduced by the prosecution were full and circumstantial, and Fore swore positively and unequivocally, and his affidavit is corroborated by the other affidavits, that the matters and things set forth in the affidavits of the McVitties, and tending to show that Fore had either formed or expressed any opinion in the case prior to the trial, are not true. The affidavits of the McVitties state that Fore prior to the trial expressed the opinion that the defendant was guilty, but evidently the court below did not believe them, and we do not.
It has recently been said by the supreme court of Illinois as follows:
“ It is a dangerous practice to allow verdicts to be set aside upon ex parte affidavits as to what jurors are claimed to have said before they were summoned to act as jurymen. The part'es making such affidavits submit to no cross-examination, and the correctness of their statement .g su)Jjeoj- no ^gst whatever.” (7 he Anarchists’ Case, 12 N. E. Rep. 867, 992, 993; Hughes v. The People, 116 Ill. 331, 337, 338; The State v. Brooks, 5 S. W. Rep. 258, 271, 272.)
Upon this point we think the decision of the court below is correct.
The next point to be considered is the alleged misconduct of the jury. In order to prove such misconduct, the defendant read in evidence on the hearing of the motion for a new trial, the affidavits of L. M. Tuttle, C. J. Frederickson, L. W. Cooper, and J. Wardell. The only supposed misconduct of the jury is shown by the following affidavits, to wit:
L. M. Tuttle, in his affidavit, states as follows:
“Some of the jury requested the affiant to call the judge and bring him before them, as they wanted to know whether he meant what he said in his instructions. The bailiff informed the jurors that he would not do anything of the kind. Some of the jurors then said that the judge could not have meant what he seemed to say in his last instruction, and if he did, it was not law, as an accessory after the fact was just as guilty as a principal; that the law was, that a receiver of stolen property is just as guilty as the thief; and that if the defendant knew that a crime had been committed, and afterward aided or assisted the perpetrator in any way, he was just as guilty as the perpetrator.”
L. W. Cooper and J. Warded, in their affidavits, state as follows:
“Affiants further say, that among other jurors they heard Mr. Rose, they think, who was on the jury, state as above, and also in substance that he had cattle and expected to have cattle next year, and that no one’s cattle would be saved if the defendant was acquitted on this'evidence.”
The instruction referred to reads as follows:
“The jury under the charge against the defendant in this case cannot find him guilty of being an accessory after the fact, and if the jury in this case find from the evidence that the defendant did not counsel, aid or abet in the actual commission of the offense, but was only cognizant of the offense and participated therein after its commission, they will acquit the defendant.”
.The defendant was not prosecuted upon the theory that he was’ a mere accessory after the fact, but was prosecuted upon the theory that he was a principal in the first degree, though possibly he may have been guilty only as an accessory before the fact; and in this state “any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal.” (Crim. Code, § 115.) The above affidavits are very indefinite. Only one of them mentions any particular juror, and that is “ Mr. Rose, they think.” Of course Mr. Rose, as “ they think,” was, or if not he then the unknown jurors mentioned in the affidavits were, guilty of misconduct in questioning the correctness of the instruction given them by the court; but we cannot say, nor is it shown, that the jury when they took the final vote upon the guilt or innocence of the defendant, violated their duty and their oaths by finding the defendant guilty upon any other theory than the one upon which he was prosecuted, and the one which the evidence and the law, as given to them by the court, justified. No pretense is made that any unwarranted attempt was made by anyone to influence the jury in the remotest degree, except such as was made in open court, and such as the defendant could object to, and could take exceptions to, and all presumptions are in favor of the correctness of the verdict of the jury.
It must be presumed that after this misconduct on the part of Mr. Rose or some unknown juror or jurors, that all the jury carefully considered the case and rendered their verdict according to the law as given to them by the court, and according to the evidence. It must also be remembered that the , cour^ below, who saw the jurors, the witnesses, and the defendant, approved the verdict of the jury; and we do not think that the verdict should now be disturbed, or that the judgment of the court below should be reversed, because of said misconduct of the jury.
The third point made by the defendant is as follows:
“Error in the admission of evidence. The state, over the objection of the defendant, was permitted to prove the acts and declarations of one Antone Peterson, done and said in the absence of the defendant, and without any proof of a conspiracy or concert of action between said Antone and the defendant. Most of this testimony also was as to the acts and declarations of the said Antone after the commission of the oifense. On this we remark that the ruling of the court permitting this testimony was violative of the rules of evidence, contrary to common sense, justice and decency, and could not have been otherwise than very prejudicial to the rights of the defendant.”
The defendant refers to the record from page 21 to page 54. We have searched the record, and we find no errors within those pages. It is true that the prosecution proved many acts and some declarations of Antone Peterson, who is the brother of the defendant, but the evidence was competent. No person but the guilty parties witnessed the larceny, and therefore the prosecution could prove the larceny only by circumstantial evidence. The evidence complained of, together with other evidence, was introduced to show that the larceny was actually committed, and that Antone Peterson was one of the guilty parties, and was not intended to show, nor did it tend to show, the defendant’s connection with the offense. The evidence complained of shows that Antone Peterson left home about 1 o’clock in the afternoon of June 8,1886, riding a certain horse; that the larceny was committed on the night of that day; that on the next day, June 9, he shipped the stolen cattle from Chico, in Saline county, to Kansas City, Missouri; that on June 10, 1886, he sold the cattle to Irwin, Allen & Co., giving his name to them as C. J. Carlson, but as they did not know Carlson (really, Antone Peterson), they paid him by merely giving him a credit for the amount, $1,700, in the McPherson bank at McPherson, Kansas; that about June 11, 1886, he called for the money at the McPherson bank, but the bank having some fears, and he not pressing payment, did not pay him on that day. On June 16, 1886, he called again for the money and drew $1,250 thereof, leaving $450 remaining in the bank. In some of these transactions, and connected with them, it was shown what Antone Peterson said, but what was said was in all cases connected with the transactions themselves and constituted a part of the res gestee; and not one word was said or done by Antone Peterson, so far as is shown, that tended in the least to implicate the present defendant in the commission of the offense charged against r him. The prosecution relied upon other evidence to show the defendant’s guilty connection with the offense, which evidence shows among others the following facts: On the night of the larceny the defendant was out all night, or nearly so, and' at one time was within two or three miles of the place where the cattle were stolen. Of course the prosecution claims he was there. On the next morning after the larceny was committed, and “just sun-up,” he was seen riding his own horse and leading his brother’s (Antone’s) horse in the opposite direction from Chico, and about nine or ten miles from Chico. Both horses were sweating, and both had bridles and saddles on them. On the morning of June 12, 1886, the defendant sent a telegraphic dispatch from. Bavaria, in Saline county, to Irwin, Allen & Co., Kansas City, Missouri, which, omitting the date, etc., reads as follows: “Has C. J. Carlson been there? Why don’t he come home? — E. P. Peterson.” And on the same day he received an answer thereto by telegraph, which omitting date, etc., reads as follows:
“E. P. Peterson, Bavaria, Kansas, sold two cars cattle on 10th for Carlson. Placed money in McPherson bank. Did not know the man in charge. Said he was Carlson. Left yards 4 o’clock Thursday. Irwin, Allen & Co.”
The Thursday mentioned was June 10, 1886. Of course Antone Peterson could not alone have stolen the cattle, and driven them to Chico; and the evidence tends to prove that it was the defendant who assisted him in doing so. The defendant must have known that Antone Peterson was at Kan sas City, Missouri, under the assumed name of C. J. Carlson. It does not appear that Antone Peterson has ever been seen in Saline county since the cattle were stolen and taken to Kansas City, Missouri, and it is almost certain that he has not been there since June 30, 1886, when this prosecution was commenced.
The fourth point made by the defendant is, that the court below erred in refusing to give instructions. Now all that was proper to be given in the instructions refused was given bv the court in its general charge, and hence there . ' ° f/ is no sufheient ground upon which to claim error. The defendant was not prosecuted upon any theory of a conspiracy that would make him liable for the acts or declarations of others, done or said in his absence, but was prosecuted upon the theory that he himself assisted in the larceny, and was guilty because of his own acts, and as a principal.
The next point made by the counsel for the defendant, is misconduct of counsel for the prosecution. This needs no comment.
The defendant has grouped his 6th, 7th, 8th and 9th grounds for reversal, and discusses them together, but we do not think that any of them requires comment. They are all untenable.
The tenth and last point made by the defendant is, that the instructions given by the court below to the jury are not sufficient, for the reason that nothing was said with reference to an alibi, or the good character of the defendant. Now the evidence introduced hardly called for any instructions upon these subjects, and yet the court might very properly have given them. But no such instructions were asked for by the defendant, and hence the court did not commit any reversible error by its failure to give them. (The State v. Pfefferle, 36 Kas. 96; The State v. Brooks, 5 S. W. Rep. 257, 275, 276; Rauck v. The State, 11 N. E. Rep. 450, 452.) As a general rule, where the court properly instructs the jury, except that it omits some matter which might properly be given, no available error is committed, unless the court has been properly requested to instruct with reference to such matter.
We think no error requiring a reversal of the judgment of the court below has been committed, and therefore the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered' by
Horton, C. J.:
J. M. Dennis brought his action against the Atchison, Topeka & Santa Fé Railroad' Company, before a justice of the peace of Sumner county, claiming forty-five dollars for damages sustained by him for hay burned by a fire put out by the section hands while -working for the railroad company, about the 8th of November, 1884, on the southwest quarter of section eight, township twenty-four south, of range two west, in Sumner county. Subsequently, the case was taken by appeal to the district court.
Upon the trial, the jury returned a verdict for Dennis for thirty-seven dollars and twenty cents. The railroad company complains, and brings the case here.
There was no allegation in the bill of particulars that the land upon which the hay was stacked and burned was “ woods, marsh, or prairie.” (Comp. Laws of 1885, ch. 118, §2.) It appears from the evidence that Dennis owned a quantity of hay upon land adjoining the right-of-way of the railroad company in Sumner county; that the hay had been cut and stacked up; and that during the month of November, 1884, the section hands of the railroad company were at work along the line of the railroad burning off the right-of-way; while engaged in this work, the fire escaped and set fire to and destroyed six or seven tons of hay; the hay was about one hundred and twenty-five yards from the right-of-way; the company had plowed fire-guards on its right-of-way, but no fire-guard had been plowed by Dennis around his hay, nor anything done to protect it against fire; the railroad fire-guards were plowed for the purpose of preventing the spread of fire from the right-of-way; the fire, by accident, jumped the fireguard while the section-men were engaged in burning dry grass on the right-of-way; it also appeared that the company plowed its fire-guards, and burned grass on its right-of-way, to prevent the catching and spreading of fire which might be set out in the operation of its trains; that the section-men started to burn off the stubble, or grass, at the fire-guards; and there was some evidence that the fire escaped where grass had been dragged over the fire-guard by Dennis, or the men working for him, who had cut the grass upon the right-of-way and stacked it in one of these stacks; the section-men tried to stop the fire, but could not do it before it had burned one of plaintiff’s stacks.
The case seems to have been prosecuted and tried upon a wrong theory. It has been decided that while it is not negligence per se for a railroad company to permit dry grass and stubble to accumulate on its right-of-way, yet the accumulation may be to such an extent and in such proximity to the track as justly to 'subject it to the imputation of negligence. (K. P. Rly. Co. v. Butts, 7 Kas. 314; White v. Mo. Pac. Rly. Co., 31 id. 280.) Therefore, the company was in the performance of its duty in burning the grass and dry weeds on its right-of-way. The fire was the result of unavoidable accident. No carelessness or negligence was alleged or shown. Mr. Dennis, in writing to the claim agent of the company a few days after the burning of his hay, used this language: “While the section hands, under Mr. John Rockhold, were burning a fire-guard, the fire by accident jumped across the guard and burnt a rick of hay for me.” Under the bill of particulars and evidence in this case, we do not think the statute relating to firing woods, marshes or prairies, applicable. The object of the statute was to prevent those prairie fires so disastrous in this state, and make those who set the prairies on fire responsible for all damages done thereby; and such are the terms of the act. (Comp. Laws of 1885, ch. 118, § 2; M. K.& T. Rly. Co. v. Davidson, 14 Kas. 349; Emerson v. Gardiner, 8 id. 452; Sweeney v. Merrill, ante, p. 216.)
Again, the court, although requested so to do, refused to charge the jury that if they found that Dennis was guilty of negligence in not using ordinary precautions to protect his hay, he could not recover. The instructions, as a whole, were not a correct guide to the jury, as they not only excluded the elements of negligence or carelessness from its consideration, but also excluded the contributory negligence, if any, of the owner of the hay. (K. C., M. S. & G. Rld. Co. v. McHenry, 24 Kas. 501; Mo. Pac. Rly. Co. v. Haley, 25 id. 35; Patee v. Adams, 37 id. 133.)
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
From some time in 1882 up to January, 1884, O. O. Marbourg was engaged in the hardware business at Sabetha, Kansas, and at that time had a large stock of hardware and agricultural implements. The plaintiff and W. W. Marbourg, a brother of O. O. Marbourg, resided at Atchison, Kansas. On January 3,1884,0.0. Marbourg executed four chattel mortgages on his several stocks of goods to his brother, W. W. Marbourg, who took immediate possession of said mortgaged property; and the next day he sold the entire stock of goods in bulk, without invoice, to the plaintiff, for the alleged consideration of $21,000 — $1,000 alleged to have been paid in cash, and four promissory notes for $5,000 each —and plaintiff took immediate possession. At the time of the transfer of the goods by O. O. Marbourg to his brother, he was largely indebted to different parties for goods purchased of them, being part of the stock in question. On the 4th day of January, 1884, and on each succeeding day up to the 12th, suits were commenced by attachment by said creditors against O. O. Marbourg, and the goods in question were attached by defendant, as sheriff of said county, the attachments aggregating $17,000. No redelivery bond was given. On the 12th of January this action was brought by plaintiff Whittaker against defendant, as sheriff, for the value of the goods. In answer to the plaintiff’s action the defendant alleged the indebtedness of O. O. Marbourg, the fraudulent mortgage and transfer by him to W. W. Marbourg, his brother, the fraudulent sale thereunder by W. W. Marbourg to the plaintiff, and that said transfer was made for the purpose of defrauding the said creditors of O. O. Marbourg.
The first complaint made by the plaintiff in error is as to the suppression of a deposition of W. S. Moorehouse, taken by plaintiff in error. The record shows that this deposition was suppressed upon two grounds: First, that the indorsement on the envelope was not according to law; and second, that the certificate of the officer taking the deposition did not show that it was taken at the time and place set forth in the notice served upon the defendant. The indorsement on the envelope is as follows: “Henry L. Whittaker, plaintiff, v. D. R. Voorhees, defendant, sheriff, &c. Depositions taken by me, John E. Garland, notary public, Dakota. To J. H. Gleason, clerk of the district court of Nemaha county, at Seneca, Kansas.” This deposition was suppressed upon the claim of the defendant that the title of the case was not set out in this indorsement. The statute requires that the envelope containing a deposition shall be indorsed with the title of the cause, and the name of the officer taking the same, and shall be by him transmitted to the clerk of the court where the action is pending. We think this indorsement was sufficient. It stated the name of the plaintiff and the name of the defendant, and was addressed to the clerk of the district court of Nemaha county, where the cause was pending. While in strict terms the title of a cause includes the title of the court where the cause is pending, yet where the deposition is directed to the clerk of the proper court, and is otherwise sealed up, indorsed, and transmitted in due form, the failure to state the title of the court more fully by indorsement is not sufficient ground for suppressing the deposition.
Second, the notice provided for the taking of this deposition at the storehouse of W. S. Moorehouse, in the city of Bismarck, in the county of Burleigh, territory of Dakota, between the houi’s of 8 o’clock A. M. and 6 p. m. of said day. The certificate to the deposition is as follows:
“I, John E. Garland, a notary public within and for the said county and territory, do hereby certify that the above-named W. S. Moorehouse, the witness whose name is subscribed to the foregoing deposition, was by me first duly sworn to testify the truth, the whole truth, and nothing but the truth* in the cause aforesaid, and that the deposition by him subscribed was reduced to writing by me, and that the said deposition was so reduced to writing and subscribed by said witness in my presence, and the same was taken on the 13th day of April, 1885, at the store of W. S. Moorehouse, in Bismarck, Dakota territory, as specified iu the notice hereto attached; and that I am not a relative or attorney of the parties, or otherwise interested in the event of the action.
John E. Garland, Notary Public.”
Now the defendant insists that this certificate does not show that it was taken within the county of Burleigh, on the said 13th day, between the hours of 8 and 6 o’clock, at the storehouse of Moorehouse. We think this objection is technical only. The caption to the certificate shows the territory of Dakota, county of Burleigh. The certificate states that it was taken on the 13th day of April, at the store of W. S. Moore-house, in Bismarck, Dakota territory, as specified in the notice. We think this is a sufficient description of the place and of the time. The notice states the time and place where the deposition was to be taken, and the officer certifies that it was taken at the time and place specified in the notice. The time mentioned not only means the day, but within the proper hours of that day. There was no showing made that the defendant had attended at the place named in the notice, or that the deposition was not taken as specified therein. All of the presumptions are in favor of the officer, that he did his duty. We think the court erred in sustaining the motion to suppress this deposition.
This brings us to the next question presented by this deposition; that is, Was the evidence contained in said deposition material, and for that reason does it require a reversal of this judgment ? One of the claims made by W. W. Marbourg was, that the mortgage executed by his brother to him was to secure him (W. W. Marbourg) for money advanced, and for notes that he held against O. O. Marbourg. To establish this claim was the purpose in taking this deposition. It seems from the evidence that this witness, Moorehouse, had formerly been in the employ of W. W. Marbourg, in Atchison, Kansas, and that while so employed he was present at a settlement between O. O. Marbourg and W. W., when the indebtedness was ascertained to be something over $6,000, and a note for that amount was given by O. O. Marbourg to W. W. Marbourg. He also testified that previous to that, and sometime between the years 1874 and 1876, W. W. Marbourg had advanced money to his brother and the firm of Marbourg & Black; also, that at one time he was at Sabetha, Kansas, and was given $200 by O. O. Marbourg to take to Atchison to his brother, W. W. Marbourg, to apply upon interest. That was the substance and purport of this deposition. The period during which these transactions, or any of them, took place, covered a number of years; it may have been as early as 1876; it may have been in 1880; it was more than two years before the transfer of these goods took place. At most, it was evidence of an old indebtedness. The court permitted a note to be given in evidence, which purported to be the note described by this witness. This note, the court instructed the jnry, imported a consideration. It showed upon its face a consideration. Without some evidence to destroy this transaction, the jury were bound to consider this note as claimed by the plaintiff. While we conceive of no good reason why the court should have refused to this deposition, yet it was of such a character that it would have been of little consequence, and therefore not so material as to require a reversal of the action. (Doolittle v. A. T. & S. F. Rld. Co., 20 Kas. 329; Germond v. Littleton, 22 id. 730.) The transaction could be established, if true, by the testimony of O. O. Marbourg and W. W. Marbourg, and by the note itself. Also, plaintiff introduced the evidence of Floyd P. Gerow, who was an employé of W. W. Marbourg from 1879 to 1880, who testified to Marbourg being in possession of a note from his brother, O. O. Marbourg, for more than five thousand dollars; also, the evidence of Thomas J. White, who was in the employ of W. W. Marbourg from 1880 to 1881, who testified to having seen a note of the same description in the possession of W. W. Marbourg. This evidence was offered to establish the existence of this note; and while the deposition suppressed would have been evidence tending to establish this same fact, yet being so indefinite as to time, and in view of all the other testimony upon that subject, and the fact that there was no evidence to directly contradict the giving of the note therein stated, we do not think the case ought to be reversed for the exclusion of this evidence alone.
At the trial of the case the court permitted evidence to be introduced over the objection of the plaintiff, showing the declarations of O. O. Marbourg as to his financial condition long before he engaged in the hardware business, and following up to and during the first year of said hardware business; his own repeated declarations of his financial standing, and also the statements of bank officers made to salesmen who were selling and trying to sell him bills of goods, long before the transfer of his stock; also to show the dealings in connection with the Western Hardware Company at Atchison, Kansas, of which W. W. Marbourg was president and general manager— a firm that had gone out of existence long before the indebtedness or any of it accrued for which the attachment was issued — under which the defendant claimed the right to the possession of these goods. The declarations of a grantor immediately before and at the time of a sale, are admissible in evidence to show his fraudulent intent. (Bridge v. Eggleston, 14 Mass. 245; Gillet v. Phelps, 12 Wis. 392; Chase v. Chase, 105 Mass. 385.) His declarations made long before that time or afterward, and not in the presence of the vendee, are not competent for any purpose, and many of the declarations complained of by plaintiff ought to have been excluded by the court. Indeed, they are too numerous for each to be examined by itself, and the court seems to have discovered its error, for when it came to instruct the jury it recalled from them all such testimony to which the plaintiff had urged his objections.
“ It is true in some instances there may be suph strong impressions made upon the minds of the jury by illegal and improper testimony that its subsequent withdrawal will not remove the effect caused by its admission; and in that case the original objection may avail on appeal or writ of error. But such cases are exceptional. The trial of a case is not to be suspended, the jury discharged, a new one summoned, and the evidence retaken, when an error in the admission of testimony can be corrected by its withdrawal, with proper instructions from the court to disregard it.” (Hopt v. The People, 7 Sup. Ct. Rep. 618; The State v. May, 4 Dev. 330; Goodnow v. Hill, 125 Mass. 589; Smith v. Whitman, 6 Allen, 562; Hawes v. Gustin, 2 id. 402; Dillin v. The People, 8 Mich. 369; Speeht v. Howard, 16 Wall. 564.)
But admitting everything claimed by the plaintiff in error against the incompetent evidence, yet upon a careful perusal of the record, with all of the objectionable and improper evidence eliminated, we are free to say that the conclusions reached by the jury were correct, and the judgment founded thereon ought to stand. The evidence clearly shows and establishes that O. O. Marbourg was legally indebted to his creditors for the goods he was transferring to his brother. The record does not satisfactorily show any large amount of indebtedness between the brothers, and while there may have been some indebtedness, yet no such an amount as claimed by them existed. Again, the relation of W. W. Marbourg to the plaintiff Whittaker was such that the jury might well infer that the transfer from Marbourg to Whittaker was made without any consideration whatsoever, but done for the benefit of W. W. Marbourg in carrying out his scheme to transfer the goods beyond the reach qf O. O. Marbourg’s creditors. In fact, the testimony of the plaintiff himself is so unsatisfactory that the jury evidently came to the conclusion that he had not in good faith purchased the goods. Therefore, while we think the court ought to have excluded some of the evidence, yet having admitted it, we still think the verdict of the jury was correct, and therefore the judgment must be affirmed. (See Marbourg v. Mfg. Go., 32 Kas. 629.) It is therefore recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
This is an action to compel the defendants by mandamus to convene as a board of canvassers and to canvass the votes cast and returned from the first com missioner district in Rush county for the office of commissioner for said district. The only question raised is, did the board of county commissioners and the county clerk, when convened as a canvassing board, have the right to determine and pass upon the question whether illegal votes had been cast and returned in said district for the office of county commissioner? It is admitted by the defendants that the returns from the townships in said district were regular in form and genuine, and that upon the face of the returns it is shown that the plaintiff received 308 votes for county commissioner in said district, and that said 308 votes were a majority of all the votes cast in said district for commissioner; but they claim that they had the right, and that it was their duty, to throw out all votes illegally cast at said election, and that, in pursuance of such right, they threw out 17 votes returned from Center township, which when so thrown out left a majority for Jeffries, the candidate opposing the plaintiff, and that if said votes had not been thrown out plaintiff would have been entitled to a certificate.
It was held in The State, ex rel., v. Stevens, 23 Kas. 456, that this court would not compel the canvassing board of a county to canvass the returns where it was shown that the returns were so grossly and manifestly untrue as to be of no value in ascertaining the will of the people. But that is not claimed in this case. Here it is shown that the returns were genuine, but it is claimed that they included some illegal votes, and the board found the number to be 17, and refused to count them in the returns of the township. This we think the board had no authority to do. Where it is once determined that the returns are genuine, the board has no further right to investigate and declare which of the votes are illegal and fraudulent. The board must count the votes as it finds them. Its duties are simply ministerial: to declare the result from the returns so made. This question has been passed upon so often by this court that it is hardly necessary to say more. In Lewis v. Comm’rs of Marshall Co., 16 Kas. 102, it was said:
“It is a common error for a canvassing board to overesti mate its powers. Whenever it is suggested that illegal votes have been received, or that there were other fraudulent conduct and practices at the election, it is apt to imagine that it is its duty to inquire into these alleged frauds, and decide upon the legality of the votes. But this is a mistake. Its duty is almost wholly ministerial. It is to take the returns as made to them from the different voting precincts, add them up, and declare the result. Questions of illegal voting and fraudulent practices are to be passed upon by another tribunal.” (Also see The State, ex rel., v. Stevens, 23 Kas. 456; The State, ex rel., v. Comm’rs of Hodgeman Co., 23 id. 268; Hagerty v. Arnold, 13 id. 367.)
, From these authorities it will be seen that a board of canvassers has no such authority as is claimed by the defendants. To hold' otherwise would be to transform such canvassing board into a tribunal, not only to canvass such returns, but to determine all contests arising therefrom. It is evident that the defendants have exceeded their authority, and have offered no excuse for so doing. It is therefore recommended that the peremptory writ of mandamus be awarded as prayed for; that the defendants be commanded to meet and canvass the vote for said commissioner district upon the face of said returns, and to determine that H. L. Brown has been duly elected county commissioner of said first district, and that said board issue a certificate of election to him therefor.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hokton, C. J.:
This was a criminal prosecution against the defendant for defiling Austa Kinne, a female under the age of eighteen years, by carnally knowing her, while she was confided to his care and protection by her parents. The record consists of 211 pages, and many errors are assigned. Unfortunately for the defendant, however, the evidence, instructions and affidavits are not embodied in a bill of exceptions. (The State v. McClintook, 37 Kas. 40; same case, 14 Pac. Rep. 511; The State v. Carr, 37 Kas. 421; same case, 15 Pac. Rep. 603.) Notwithstanding the absence of any bill of exceptions, it is claimed that the charge of the court is a part of the record. Section 236 of criminal procedure, reads: “The judge must charge the jury in writing, and the charge shall be filed among the papers of the cause.” We have had occasion recently to examine this question very thoroughly, and have decided that the charge of the court in a criminal case does not become a part of the record by being merely filed among the papers of the case. (The State v. Smith, ante, p. 194; The State v. Lewis, 10 Kas. 157.)
In view of the condition of the record, the only question for our determination is, the sufficiency of the first count of the information upon which the defendant was tried. A motion was made to quash both- counts of the information, but the court required the state to elect upon which count it would try the defendant, and as the state elected to try him on the first count only, and as he was tried and convicted upon that count, no other part of the information is material. The section of the crimes act under which the information was filed, reads:
“If any guardian of any female under the age of eighteen years, or any other person to whose care or protection any such female shall have been confided, shall defile her by carnally knowing her, he shall, in cases not in this act otherwise provided for, be punished by confinement and hard labor not less than two years nor more than twenty-one years, or by imprisonment in a county jail not less than six months, and a fine not exceeding one thousand dollars.” (Section 233.)
The contention is that the words “then” and “there” as used in the information mean simply that Austa Kinne was at the time and place of defilement under the age of eighteen years, and have no reference to the time of the act of confiding.
Again, it is claimed that if these words refer to the time that Austa Kinne was confided to the care and protection of the defendant, then that statute was not violated, because the defilement and the placing of Austa in the care and protection of the defendant were done at precisely the same time and place; therefore that it did not appear that Austa had been confided to the care and protection of the defendant prior toller defilement. All of these objections are the merest technicalities. It is a strained construction to say that the act of defilement took place at the precise time she was placed in the care and protection of the defendant. So long as it is alleged that Austa was confided to the care and protection of the defendant at the time of defilement, it is immaterial whether the time was very long, or very short between the act of placing her under the protection of the defendant and her defilement. We think the words “then” and “there” must grammatically be held to refer to Austa as being under the age of eighteen years at her defilement; and also that at the time of her defilement she was under the care and protection of the defendant.
Upon the record as it has been brought to this court, the judgment of the district court must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The notary public held the petitioner to be in contempt for refusing to give his deposition in a case pending in the circuit court of the United States for the district of Kansas, wherein the petitioner was plaintiff and the St. Louis & San Francisco Railway Company was defendant, and for this refusal committed him to the custody of the sheriff, to be imprisoned in the common jail of Sedgwick county. By this proceeding the petitioner seeks to be relieved from imprisonment, which he contends is illegal on account of the insufficiency of the notice to take depositions, defects in the subpena and commitment served upon him, and also a lack of authority in the notary public to compel one who is a party to an action in the federal court to give his deposition j and finally, that the attempt to take the petitioner’s deposition was not made in good faith or with any intention of using the deposition when taken as evidence, but the only object being to oppress and injure the petitioner.
The last ground of illegality alleged is all that we need to examine, and it is clearly sufficient to accomplish the discharge of the petitioner. There is an express admission by the railway company that it was not acting in good faith in the matter, and did not intend to offer in evidence the deposition proposed to be takeu, but that it was acting oppressively and for the purpose of fishing out the plaintiff’s evidence. This being conceded, the attempt to compel him to testify, and his imprisonment for refusing, is a clear abuse of judicial authority and process. The law permits depositions in a pending case to be taken upon certain conditions; but it proceeds upon the theory that the testimony when taken will be competent, and is intended in good faith to be read in evidence in the trial of the cause. Remoteness from the place of trial, which may make the personal attendance of the witness impracticable, and age and infirmity rendering the witness unable to travel and appear at court, are some of the conditions under which a party is permitted to take a deposition de bene esse. The right of taking the deposition of the petitioner is placed on the condition that he resides more than one hundred miles from the place of trial; and the claim is, that he is not excluded from so testifying by the fact that he was a plaintiff in the action. But assuming that a party may be compelled to give his deposition in a common-law action in the federal court, it certainly never can be taken unless there is a bona fide purpose to use the testimony if the statutory contingency on which it is permitted to be taken exists when the trial occurs. The privilege of taking depositions should not and cannot be employed to fish from a witness facts that are irrelevant or incompetent to the issues in the case to be tried. Nor can any quality of testimony be thus taken out of curiosity or spite, or to annoy or injure the witness, or to be used for any other purpose than as evidence in the pending cause. Ordinarily, the good faith of the proceedings would' be presumed; but here the conduct and concessions of the parties disclose a purpose to use the machinery of the law to accomplish an improper purpose, and to annoy and injure the petitioner. His deposition was taken in the same case and at the instance of the same party at Pittsburg, Kansas, on October 31, 1885. Four days later he was notified that the railway company would take his deposition at "Wichita, Kansas, on November 7, 1885; and while he was at Wichita, the company there notified him that it would take the depositions of himself and other witnesses at Springfield, Missouri, on November 11, 1885. Coupled with this conduct is the admitted fact that the information which the company obtained and was endeavoring to abstract from the witness, was not intended to be used as evidence at all. It is an abuse of the process and authority of the law which cannot be tolerated; and upon this ground alone the imprisonment must be held illegal.
The judgment of the district court will be reversed, and the cause remanded with the direction that the petitioner be discharged.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The questions principally discussed upon this appeal cannot be considered here, for the reason that no valid bill of exceptions is found in the record. A paper purporting to be one is attached to the transcript, but it is conceded not to have been allowed and signed within the time prescribed by law. The case was tried and the verdict rendered at the March term, 1887, and motions for a new trial and in arrest of judgment were overruled and sentence pronounced on the 6th day of April, 1887. On April 7, 1887, the court adjourned sine die. It is conceded that the bill of exceptions was not prepared and presented to the judge for allowance and signing until the 23d day of May, 1887, forty-five days beyond the closing of the term at which the trial was had. The statute directs that exceptions to the ruling of the court must be reduced to writing, and allowed, signed and filed during the term when the decision is made. If the decision objected to is made by a judge at chambers, the exceptions must be prepared and allowed within ten days afterward. In either case, to be valid, a bill of exceptions must be signed and filed within the time prescribed by law; and as the exceptions in the present case were signed and filed far be-1 ° yond the term, they form no part of the record, au(j we are not at liberty to consider them. (Crim. Code, § 219; Civil Code, § 300; Brown v. Rhodes, 1 Kas. 359; Gallaher v. Southwood, 1 id. 143; Lownsberry v. Rakestraw, 14 id. 151; The State v. Bohan, 19 id. 28; The State v. Burrows, 33 id. 10.) On the motion to strike out, an affidavit was filed stating that as the trial was had at the close of the term, it was impracticable to obtain from the official stenogra pher a transcript of the testimony and proceedings in the case before final adjournment. The trial closed on April 6, the court adjourned on the next day, and as the testimony was voluminous, it was impossible to make a transcript in so short a time. A party is entitled to and should be afforded a reasona^e time to prepare and present his exceptions, and this can ordinarily be done by extending the term; or, when the other business is disposed of, adjourning to some future day for the allowance and signing of exceptions. This is a proper, and is believed to be the prevailing, practice. In the showing here made there is a statement that the judge of the district court of Davis county declined to continue the March term to a future day prior to to the next regular term of that court. It is not stated, however, that the application was made on the ground that there was not sufficient time to prepare a bill of exceptions, nor does it appear that the judge was informed that counsel for defendant desired so to do. If a proper application and showing had been made, it would appear to have been the duty of the judge to continue the term over a sufficient length of time for the preparation of a bill of exceptions; and probably if this had been done, the application would have been granted. If he unreasonably refused to do so, he might by a proper proceeding have been compelled to grant sufficient time to reduce the exceptions to writing, and also to allow and sign the same before the final adjournment of the court. No such showing has been made here, and even if it had been, the remedy cannot be obtained on this appeal. It follows that we cannot consider the rulings upon the testimony.
The next question for decision is, whether the charge of the court is properly in the transcript. There is a certificate of the clerk that the transcript embraces a true copy of the charge; but can the instructions given be brought into the record unless they are embodied in a bill of exceptions? It has already been decided that instructions asked for and refused do not become a part of the record except by means of a bill of exceptions. (The State v. McClintock, 37 Kas. 40; same case, 14 Pac. Kep. 511.) The question whether the instructions given can be preserved except by a bill of exceptions has been raised in several cases, but not being necessary to their disposition, it was not decided. We are of opinion that only through a bill of exceptions can the charge given be brought into the record. It is true that the instructions of the court in a civil cause do become a part of the record without being preserved in a formal bill of exceptions. There is a marked distinction, however, in the provisions of the statute regarding the instructions in a criminal case and those given in civil cases. In criminal cases it is provided that “the judge must charge the jury, in writing, and the charge shall be filed among the papers of the cause.” (Crim. Code, § 236.) In civil cases it is provided that a formal bill of exceptions is not required, and that it is sufficient to write at the close of each instruction, “Eefused and excepted to,” or “Given and excepted to,” which shall be signed by the judge; and further, that “all instructions given by the court must be signed by the judge, and filed together with those asked for by the parties, as a part of the record.” (Civil Code, §§275, 276.) These provisions were considered and reenacted by the same legislature, and the great difference in the language used respecting the instructions in the two classes of cases, is significant. In the one case it is provided in plain terms that when the instructions are signed and filed, they become a part of the record, while in the other it simply declares that the charge shall be filed with the other papers of the cause. Affidavits on motions and depositions are likewise filed among the papers of the case, but they do not thereby become a part of the record. Formerly, the charge to the jury was not given in writing, and constituted no part of the record; nor is it a part of the record •now unless made so by statutory enactment. The explicit provision by the legislature, that the instructions in a civil cause shall be filed “as a part of the record,” leaves no doubt of the legislative purpose with respect to such instructions; but the absence of the same or similar language in the pro vision relating to the instructions in a criminal cause indicates quite clearly an intention that they should not become a part of the record by merely filing them among the papers of the cause. In the Ohio code there is a provision that the written charges and instructions shall be taken by the jurors when they retire, and returned with their verdict into court, and shall remain on file with the papers of the case; and the supreme court of that state has held that the charge so returned and filed, and which is not embodied in a bill of exceptions, cannot be regarded as a part of the record. (Hallam v. Jacks, 11 Ohio St. 692; Lockhart v. Brown, 31 id. 431; Pettett v. Van Fleet, 31 id. 536.)
It only remains to consider the questions raised against the sufficiency of the information. The defendant claims that it does not charge an intention on his part to kill and murder the deceased. In the first part of the information it is alleged that defendant feloniously, willfully, deliberately, premeditatedly, and with malice aforethought, assaulted, struck, stabbed and cut Thomas Hill with a knife, inflicting a mortal wound, from which Hill died; and then it concludes by charging that the defendant, in the manner and form aforesaid, did feloniously, willfully, deliberately, premeditatedly, and of malice aforethought, kill and murder Thomas Hill. The language of the information taken together plainly imports that the defendant cut and stabbed Hill with the intention of murdering him; and it is clear that neither the defendant nor his counsel could have mistaken the nature and grade of the offense charged. Within the former decisions of ° this court, the information was unquestionably sufficient to charge an intentional murder. ( The State v. Smith, 1 Kas. 365; The State v. Brown, 21 id. 38; The State v. Harp, 31 id. 496.)
A final objection is made to the jurat attached to the information. The verification was by the oath of the county attorney, in the presence of the clerk of the district court, and is in the following form:
“ State op Kansas, Davis County, ss. : On this, 12th day of March, 1887, personally came H. J. Humphrey, county at torney of said county, who, being duly sworn according to law, deposes and says that the facts set forth in the foregoing information are true, to the best of his knowledge, information, and belief. H. J. Humphrey.
“ Sworn to and subscribed in my presence, the day and year last above written. . J. B. Callen, Clerk of the Court .”
It will be observed that the jurat did not follow the stereotyped form of, “sworn to before me and subscribed in my presence,” as the words “before me” were omitted. The clerk does state that the county attorney took the oath in his presence; and as he certifies that H. J. Humphrey personally came and was duly sworn according to law, there is a fair implication that Humphrey not only came, but also swore to the information before the subscribing officer. There is nothing in the jurat to raise a presumption that any other officer or person administered the oath. The usual form of jurat does not in terms state that the oath is administered by the officer, but only that it is sworn to before him. Here it is certified that the oath was duly and legally taken in the presence of the officer, which does not differ greatly from a statement that it was taken before him. The certifying officer is one authorized to administer oaths, and he signs and certifies in this case as if he administered the oath; otherwise, it would not have been duly and legally done. While the certificate is somewhat irregular, the objection is quite technical; and under §110 of the criminal code it is provided that an information shall not be set aside “for any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” The judgment of the district court must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was brought under §594 of the civil code, which reads as follows:
“Sec. 594. An action may be brought by any person in possession, by himself or tenant, of real property, against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse estate or interest.”
Under this section and the facts of this case, the main question presented for our consideration is whether the plaintiff' was in the possession of the property in controversy or not, either “by himself or tenant.” On June 25,1885, and prior thereto, the property belonged to Fritz Baumberger, and was actually occupied by his tenant, W. W. Ross. On that day the property was sold and conveyed by warranty deed by Baumberger to the plaintiff', Sylvester Smith. On July 1, 1885, Ross acknowledged the plaintiff as his landlord, and agreed to pay the subsequent rents to him, and under this arrangement the plaintiff permitted Ross to remain in the occupancy of the premises as his (plaintiff’s) tenant. The rent was to be $15 per month, and Ross paid such rent to the plaintiff for the next two months. The plaintiff at the time had the unquestioned title to the property, and his contract with Ross gave to him the actual possession of the property by his tenant. On September 9, 1885, the defendant, Cooper, obtained a tax deed to the premises, and put it upon record, but it was void upon its face, and therefore gave him no rights; but, nevertheless, on October 1, 1885, the tenant, Ross, agreed to acknowledge Cooper as his landlord, and to pay the further rents to him. On February -22, 1886, the plaintiff tendered to the county treasurer the full amount of all the taxes due on the property, together with interest, penalties and costs, and then commenced this action. Ross was still in the actual occupancy of the premises, the defendant’s tax deed was still void, and the plaintiff had the incontrovertible right to redeem his land from the taxes. We think the plaintiff, at the time of the commencement of this action, was in the possession of his property by his tenant, Ross; for Ross, by contract and agreement with the plaintiff, became his tenant on July 1,1885, and was allowed to remain in the possession of the property because of such agreement and tenancy, and no change of title has occurred since. The defendant’s tax deed did not extinguish the plaintiff’s title, nor even lessen it in the slightest degree. The tax deed was void, and Ross could not attorn to the defendant or cease in law to be the plaintiff’s tenant; nor could he, as against the plaintiff, become the defendant’s tenant. (Landlord and Tenant’s Act, § 14.) Ross held his possession and occupancy under the plaintiff and the plaintiff’s grantors. Of course where a landlord’s title is extinguished or ceases to exist during the tenancy, the tenant may recognize the new owner as his landlord, and may show, as against his former landlord, that such landlord’s title has ceased to exist, but he cannot deny that such landlord had a good and valid title when he procured his tenancy from him. Under the facts of this case, we think the plaintiff was in the possession of the property by his tenant when this action was commenced, and that, in such action, he had then and still has the right to have his title quieted as against the defendant. Of course the plaintiff must keep his tender good. He must pay the taxes which he tendered on February 22,1886. As before stated, as no valid tax deed had then been issued, the plaintiff had the right to redeem his land from the taxes, and as he tendered the full amount of all the taxes against it, with all the interest, penalties and costs which had then ac crued, no valid tax deed could afterward be executed upon the same premises for such taxes.
The judgment of the court below will be reversed, and the cause remanded, with the order that judgment be rendered in favor of the plaintiff and against the defendant, quieting the plaintiff’s title.
All the .Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This is an action of replevin, brought by J. B. Graham against Thomas Shaw, for the recovery of nine sacks of wool, alleged to be worth $300. The nature of the case and the rights of the parties thereto cannot well be determined from the record before us. It seems that the sheep from which the wool was shorn were owned by G. Mills Graham and John Graham, partners as Graham Brothers, who were engaged in the live-stock business in Kansas. It is said that they borrowed a large sum of money from J. B. Graham, which was used in conducting their business. Subsequently John Graham died, and an administrator was appointed on the motion of his widow, and G. Mills Graham gave the required bond and continued the business of Graham Brothers, as the surviving partner. Later, and while he was in Chicago, an action was commenced against him in the superior court of that place by J. B. Graham for the recovery of the money loaned to Graham Brothers, and after a contest a judgment was obtained by J. B. Graham. This judgment was reviewed in the appellate court of Illinois, and affirmed. J. B. Graham then brought an action on that judgment in the circuit court of the United States for the district of Kansas, against G. Mills Graham as surviving partner of Graham Brothers, and the defendant in that action waived service of summons and empowered F. D. Mills as his attorney in fact to confess judgment for the amount claimed, and judgment was accordingly entered on the 18th day of December, 1885. An execution was then issued upon the judgment, under which, and on February 25,1886, the goods and chattels of Graham Brothers were seized and sold. J. B. Graham purchased a flock of sheep at this sale, and the wool in controversy in this action was shorn from them. Subsequently, and on May 7, 1886, the judgment rendered in the United States circuit court for the district of Kansas was vacated on the motion of Mollie Graham, the widow of John Graham, deceased, and she was permitted to answer; but it is stated in the argument that in September, 1886, a demurrer was sustained to her answer and the judgment restored, and that the purchase-price of the sheep sold at the judicial sale was credited thereon and execution issued for the balance. What lien, interest or right of possession Thomas Shaw has in the property, if any, is not disclosed by the record. The argument is made on the theory that the wool was seized by Shaw, as constable, in an attachment action in which Mary Rice was plaintiff and G. Mills Graham, surviving partner of Graham Brothers, was defendant, and Shaw sought to show in this action that the Illinois and Kansas judgments in favor of J. B. Graham were collusively and fraudulently obtained, and that therefore the purchaser at the judicial sale acquired no title to the sheep which he bought or the wool shorn from them. The record, however, does not show the nature of the claim of Mary Rice, nor when it accrued, nor whether she was in a position to contest the validity of either the Illinois or the Kansas j udgments. It is shown that the Kansas judgment was vacated for a time on the motion of Mollie Graham, but the grounds for the motion are not stated, nor does it appear that she had any standing in court to question the judgment. The property in question, however, was purchased by J. B. Graham before the judgment was vacated, and he was in possession of the same; but just how Thomas Shaw obtained possession of it we can only surmise from the argument. No writ of attachment nor any of the proceedings in the Rice case were either alleged in the pleadings or introduced in evidence in this action. Shaw was not examined as a witness, and there was no competent testimony to show that he had any claim in or right to the possession of the property in controversy. Notwithstanding this, judgment was rendered in favor of Shaw, and Graham contends here that the findings and judgment of the court are not sustained by the evidence. The judgment cannot be upheld. The defendant in error realizes the insufficiency of the testimony written in the record, and when the case was submitted asked to amend and change the case-made brought to this court so that it will show the official character of. Shaw, and that he took and held the property in controversy by virtue of a writ of attachment regularly issued in an action in favor of Mary Rice against G. Mills Graham, surviving partner of Graham Brothers. We are asked to consider a certified statement to that effect, made by the judge of the district court long after the case brought to this court had been made, settled, and signed. It is well settled that neither the district judge nor the supreme court can amend, change or add to a case-made after it has been settled, signed, and attested. When the judge of the district court “has certified the case-made, it passes beyond his control, and cannot thereafter be amended, altered or changed by any order of his.” (Lewis v. Linscott, 37 Kas. 386.) After it has been brought to the supreme court—
“Such case-made cannot be amended or supplemented in this court by inserting anything therein or attaching anything thereto which did not belong to the case-made and constitute a part thereof when it was originally settled and signed by the judge and attested by the clerk of the court below.” (Snavely v. Buggy Co., 36 Kas. 106.)
Also, see City of Fort Scott v. Deeds, 36 Kas. 621; Transportation Co. v. Palmer, 19 id. 471; Parker v. Machine Co., 24 id. 31; Building Ass’n v. Beebe, 24 id. 363.
As the record cannot be amended, and as the testimony contained therein is insufficient to sustain the judgment, it follows that the judgment must be reversed, and a new trial granted.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by S. L. Warren against Lewis and Carrie Harlow, to recover certain land situated in Greenwood county, in this state, which was alleged to have been purchased by Lewis Harlow, with cattle intrusted to him by Warren. A judgment was rendered in favor of Warren and against Lewis and Carrie Harlow as prayed for in the petition.
The only question presented for our consideration is the alleged error of the trial court in refusing a continuance asked for by Lewis Harlow. Continuances are, to some extent, within the discretion of the trial court; and, unless it is shown that the court abused its discretion in granting or refusing a continuance, this court will not declare the ruling of the trial court, in such a case, erroneous. (Hottenstein v. Conrad, 9 Kas. 436; Davis v. Wilson, 11 id. 74; Swenson v. Aultman, 14 id. 273.) The issues in the case were made up on June 6, 1885. At the August term of the court for 1885, the cause was con tinued upon the application of Lewis Harlow, who then resided within a few miles of the court house, on account of his alleged sudden illness. His application had been made after the case had been assigned for trial, witnesses subpenaed, and Warren had come all the way from the state of Vermont to be present at the trial. On the 16th day of December, 1885, at the regular term of the court for that month, and long after the cause had been assigned for trial, and after Warren had come again all the way from the state of Vermont to attend the trial, the counsel for Lewis Harlow filed his application for a continuance. This was supported by the following certificate:
“Orwell, Hodgeman Co., Kas., Dec. 12th, 1885. — This is to certify that Lewis Harlow, on account of physical disability, is unable to travel, and is under treatment by me.
J. B. West, M.D.”
Counsel also filed his affidavit that he received a letter from Lewis Harlow on the evening of December 15,1885, informing him he was sick, and that because of his sickness he was unable to be present at the trial of the case. The affidavit further stated that the testimony of Lewis Harlow was material and essential to a proper defense of the action; and that counsel could not try the cause without his presence. Affidavits were also filed from two parties that they knew J. B. West; and that he was a reputable citizen and physician, residing at Orwell, in Hodgeman county, in this state. No affidavit was filed, or any oral testimony presented from any person having personal knowledge that Lewis Harlow was sick and unable to attend the trial..
In this condition of the case, we perceive no error in the ruling of the trial court. We cannot treat the certificate of the physician as an affidavit. The counsel making the affidavit for continuance does not claim that he had any personal knowledge of the sickness of his client; and the other affidavits do not show that Harlow was sick or unable to travel. An affidavit should have been presented from Harlow, or from his physician, or from some other person having personal knowledge that Harlow was prevented from attending court by sickness, if he was in fact sick. We do not think the certificate of the physician can be accepted as an affidavit. The affidavits do not establish from personal knowledge the sickness or inability of Harlow to attend 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
Horton, C. J.:
This was an action in the nature of ejectment, brought by H. F. Sheldon against Robert Atkinson, for the possession of a strip of land in Ottawa, thirty-six feet wide north and south, and about six hundred feet long east and west. Both parties claim title from the same common source, one R. D. Lathrop. The several pieces of land in which it is claimed there is a surplus of thirty-six feet, owned by Atkinson, are marked upon the map in the.record as “the little red piece,” “the little blue piece,” and “the little white piece.” “The little red piece” was purchased from Wilson and Burt, grantees of Lathrop, by Atkinson in April, 1868, but the deed was not executed until the fall of 1868, or later. “The little blue piece” was purchased by Atkinson from Lathrop, April 2,1868. “The little white piece” was purchased from Sheldon by Atkinson, October 27, 1870. Sheldon alleges that a strip thirty-six feet wide off the south end of these several pieces belongs to him,, and that Atkinson keeps him unlawfully out of the possession of the same. Atkinson bases his claim to the strip of land in controversy, first, by fifteen years’ adverse possession; and second, by a parol agreement between himself and the owner of the laud adjoining his “little red piece” and his “little blue piece” on the south as to a corner and division line, w'hich he contends has been acquiesced in and acted upon for such a long time as to be binding and conclusive.
The ti’ial was had before the court without a jury. No request was made for a finding of the facts specifically. As the court made a general finding only, and as the finding of the court was favorable to Atkinson for the strip of land inclosep in “the little red” and the “little blue pieces,” we must assume that all the controverted facts as to this strip were found and established in favor of Atkinson and against Sheldon. (Knaggs v. Mastin, 9 Kas. 532.) Again, a general finding in favor of Atkinson for the strip of land in “the little red” and “the little blue pieces,” embraces all the facts necessary to constitute his claim thereto, if there was sufficient evidence in support of the same. (Bixby v. Bailey, 11 Kas. 359; Hobson v. Ogden, 16 id. 388.)
In viewr of the general finding of the trial court, it appears that although Wilson and Burt did not execute any deed to “the little red piece” to Atkinson until late in 1868, or early in 1869, his purchase, or his agreement to purchase, under which he took possession and claimed to be the owner thereof, goes back to April, 1868. Soon after the purchase by Atkinson of “the little red piece,” he informed Jenness, the owner of the land adjoining on the south of his purchase, and read him a letter concerning the same. About six weeks after this, Jenness went to Atkinson and said he would like to fix the corner between them, as he wanted to build some fence. Atkinson got a colored man and went with Jenness upon the ground to establish the corner of their pieces of land. A tape-line was used, and the measurement was commenced at a government corner-stone on the Jenness property; the parties proceeded from that point north, and measured off three hundred and eighty-five feet, and placed a stake; Atkinson and the colored man carried the line, and Jenness did the marking. The stake was driven at the point established as the northeast corner of the Jenness land, and the southeast corner of the Atkinson land. That fall, or the next spring, the owner of the Jenness land, either Jenness or his grantee, built a fence upon a line commencing at the corner established by Jenness and Atkinson, running directly west to the west line of the land. In the spring of 1869, Atkinson had a hedge-row plowed on the line along the north side of the fence from the stake westward, and around the tract composing the little red and blue pieces. In the spring of 1870, he had the hedgerow replowed, and a hedge planted on the line so plowed, which has since been cultivated and grown, and still remains. At the time of planting this hedge, the stake driven by Atkinson and Jenness at the northeast corner of the Jenness land was noticed. The boundary line projected from the stake driven by Jenness and Atkinson at the corner of their lands, which were subsequently fenced and hedged, was regarded by the various proprietors of the adjoining pieces of land as the division line between them until a short time before the commencement of this action. During all this time Atkinson was an actual resident of this state, and was absent from the state less than nine months. This action was commenced on May 31, 1884, about sixteen years after the stake had been driven0 to establish the comer or line between the Jenness and Atkinson lands.
Many of the courts hold that a parol agreement between two proprietors of adjoining lauds to employ a surveyor to run the dividing line between them, which agreement is executed and payment had accordingly for a long period of time, but short of that prescribed by the statute of limitations, is binding and conclusive on the parties and those claiming under them. (Finley v. Funk, 35 Kas. 668; Turner v. Baker, 64 Mo. 218; Brown v. Edson, 23 Vt. 435; Boyd v. Graves, 4 Wheat. [17 U. S.] 512.) The authorities that do not go to the extent of this rule generally agree that if a division line is marked out and acquiesced in by joining proprietors for a period equal to the statute of limitations, it is thereby conclusively established. (Kip v. Norton, 12 Wend. 127; 27 Am. Dec. 120; 27 Am. Rep. 230.)
In a review of cases of the voluntary adjustment of boundaries between contiguous estates, Judge Cooley says “the parties have only by their agreement and contract determined the limits of their respective ownerships.”
Redfield, J., in Beecher v. Parmele, 9 Vt. 352, said:
“If an entire lot be owned by different proprietors, who are in possession of separate parcels of the lot, and a divisional line is acquiesced in for fifteen years, it is thereby established. If no line of division be in fact drawn, but the parties acquiesced in an imaginary line of division, this is the same as if the line had been marked by visible monuments.”
The claim is made, however, on the part of Sheldon, that the agreement between Jenness and Atkinson was merely as to the establishment of a corner, but nothing was said about any boundary, and that no line was fixed westward from the corner established. The fact that Jenness requested Atkinson to agree with him upon a comer between their lands, as he wanted to build a fence; the actual meeting of the parties, and the establishment of a corner by them; the driving of a hard-wood stake to identify and mark the corner; the construction of a fence in the fall of 1868, extending from where the corner was established, running directly west along the existing division or boundary line; the plowing of a hedgerow, in the spring of 1869, on this division line; the re-plowing, and the planting of a hedge upon this line, in the spring of 1870, support the general finding of the district court that the corner and division line between the lines of Atkinson and Jenness were established by the parol agreement of these parties in the spring or early summer of 1868. All of the boundaries of the various pieces of land mentioned in the pleadings and testimony run north and south and east and west. The purpose of fixing the corner between the lands of Atkinson and Jenness was to determine and mark the commencement of a boundary line extending from such corner directly west. Under these circumstances, the fixing of the corner necessarily established the boundary line as running due west therefrom. The corner was not marked or fixed for the purpose of establishing any boundary line running north and south. The place where Jenness wanted to build his fence' was at or near the boundary line between his own land and that of Atkinson. As a period equal to the statute of limitations had expired between that time and the commencement of this action, deducting the nine months of absence of Atkinson from the state, we conclude that the corner and the division line then established and now existing must be regarded as the corner and division line between the land of Sheldon and “the little red and blue pieces” owned by Atkinson.
Again, it is urged that there was no dispute or contention between Atkinson and Jenness at the time of the establishment of the corner between their lands, and it is said that their agreement as to the corner and the marking of the same with a stake goes for naught, notwithstanding the long acquiescence in the corner and division line by all the parties interested. The evidence clearly shows that prior to the time of the establishment of the corner by Atkinson and Jenness, the boundary line between their lands was not known, ascertained, or settled; it was not marked by stakes, monuments, or in any other way. The true line of division between their pieces of land was a subject of settlement between Atkinson and Jenness. They met together, and after a measurement expressly agreed upon a corner between their lands, and from that time to the commencement of this action a line running west from the corner thus established by them was considered the true line of division between the pieces of land. The object of Atkinson and Jenness in ascertaining and agreeing upon a corner was to settle and fix a definite corner and boundary; and therefore it is not like the cases where the corners and boundary line are known and visibly marked, and the adjoining owners attempt for mutual convenience, or other sufficient reason, to transfer land from one to the other by parol agreement to merely change the location of a line. (Vosburgh v. Teator, 32 N. Y. 568.)
It is further claimed that, admitting there was a valid agreement between Atkinson and Jenness fixing the corner and boundary line between their lands more than fifteen years ago, the agreement, although valid as between them, is not binding on Sheldon. The construction of the fence upon the boundary line west of the corner established by Atkinson and Jenness is evidence that at the time the parties understood where the corner and boundary line were established, and acted upon that knowledge. All persons purchasing after the establishment of the corner, and after Atkinson had taken actual possession of the premises in dispute, had notice of his title thereto. When Sheldon purchased, Atkinson had actual, open, visible, notorious, exclusive and adverse possession of the strip now claimed by him. (Gilmore v. Norton, 10 Kas. 491; Giles v. Ortman, 11 id. 59; Johnson v. Clark, 18 id. 164; School District v. Taylor, 19 id. 292; Tucker v. Vandermark, 21 id. 263.)
In the case of Winn v. Abeles, 35 Kas. 85, there was no agreement as to the actual corners or boundary line, and no hostile and adverse possession; therefore that case is notin conflict with this decision.
We have referred only incidentally to the strip of land on the south end of “ the little white piece,” because, as we understand the judgment, that strip was recovered by Sheldon. Atkinson filed a motion for a new trial, which was overruled and properly excepted to, but he has not filed any petition in error, or any cross-petition, in this court; and he is therefore in no condition to complain of the judgment, even if erroneously rendered.
The judgment of the district court will be affirmed.
Johnston, J., concurring. | [
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The opinion of the court was delivered by
Burch, C. J.:
The action was one to foreclose two building and loan association mortgages. Defendants contended the contracts were usurious. The court properly interpreted the contracts and properly computed the credits to be allowed defendants (Railroad Bldg., L. & S. Ass’n v. Fitzpatrick, 141 Kan. 654, 43 P. 2d 219). The decision in the case just referred to was made subsequent to rendition of the judgment in this case, and is adhered to and applied.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
Charles Gwynne was convicted of bank robbery. He has appealed, and contends the trial court erred: (1) In overruling his motion to quash the information; (2) in ruling upon the admission of evidence; (3) in giving certain instructions; and (4) in overruling his motion for a new trial. It also is argued the verdict is not sustained by the law and the evidence.
The information, omitting formal opening and closing, reads:
“. . . that on the 7th day of August, 1930, at the county of Harper, in the state of Kansas, Charles Gwynne did then and there unlawfully, willfully and feloniously enter the premises of the Corwin State Bank of Corwin, Kansas, a corporation organized and existing under the laws of the state of Kansas, with the intent to hold up and rob said bank, and did then and there unlawfully, willfully and feloniously hold up and rob said bank, with the use of firearms, of lawful money of the United States of America, in the sum of $1,005 contrary . .
The motion to quash was on the ground that it “is insufficient to charge the defendant with the violation of any of the laws of the state of Kansas or the commission of any crime whatsoever.”
The statute (R. S. 21-531), on which the prosecution was based, reads:
“That if any person shall enter or attempt to enter the premises of a bank or trust company or any banking association, with intent to hold up or rob any bank or trust company or banking association, or any person or persons therein, or thought to be therein, of any money or currency or silver or gold, or nickels or pennies or of anything of value belonging to or in the custody of said bank or trust company or banking association, or from any person or persons therein; or shall intimidate, injure, wound or maim any person therein with intent to commit such holdup or ‘stick-up’ or robbery, he shall, upon conviction thereof, be sentenced to be imprisoned in the penitentiary at hard labor for a term of not less than ten years nor more than fifty years.”
Appellant argues the information did not specifically describe what was intended to be taken in the robbery, or what was so taken, as "money or currency or silver or gold, or nickels or pennies.” It was described as “lawful money of the United States of America, in the sum of $1,005.” This was sufficient, especially since there was no controversy in the case as to kind of money defendant intended to and did take. It also is argued there is no allegation that the money taken belonged to or was in the custody of the bank. It is alleged defendant did “hold up and rob said bank.” It would be difficult to rob the bank of something it did not own or have in its custody. That is the necessary meaning of the language used. There is no intimation defendant was prejudiced in any way by the language used instead of using the exact words of the statute. Appellant also argues the information was bad for duplicity. This point was not raised in the motion to quash. It is true that entering the bank with the intent of robbing it is an offense, under the statute, although the robbery is not accomplished. (State v. Dietrich, 117 Kan. 105, 230 Pac. 329.) It is also an offense, under the statute, to rob a bank, without regard to the intent the robber had when he entered the bank. We never have heard of its being held, however, that entering a bank with the intent of robbing it and carrying out that intent by robbing the bank, does not constitute an offense, and that is the only point raised by the motion to quash. The point is not well taken. Had defendant raised the point of duplicity perhaps the prosecutor could and would have filed the information in two counts — one entering with the intent to rob the bank and the other robbing the bank. Perhaps the likelihood this would be done prompted defendant not to raise the question in the trial court. At any rate he did not raise the question there; hence, it is not available to him here.
Appellant’s objections as to evidence received and instructions given relate to this: The Corwin bank was robbed August 7, 1930. Corwin is in Harper county, Kansas, and but a few miles from the south line of the state. On September 3, 1930, the Burlington State Bank of Burlington, in Cherokee county, Oklahoma, was robbed. Cherokee county, Oklahoma, joins Harper county, Kansas, on the south. The towns of Corwin and Burlington are about twenty-five miles apart. This appellant and one Roscoe Eeebeck were charged with and convicted of the robbery of the Burlington bank. Evidence pertaining to the robbery of the Burlington bank, appellant’s connection therewith and his conviction thereof, was received on the trial of this case. In its instructions the court told the jury the limited purpose for which such evidence was received, and that it should be considered for no other purpose. All of this is in harmony with well-established rules of law in this state, as shown by our former decisions. There was no error in this respect. (See State v. King, 111 Kan. 140, 206 Pac. 883; State v. Robinson, 125 Kan. 365, 368, 263 Pac. 1081; State v. Frizzell, 132 Kan. 261, 295 Pac. 698; 137 Kan. 35, 19 P. 2d 694; State v. Caton, 134 Kan. 128, 4 P. 2d 677.)
The evidence tending to support the verdict may be summarized as follows: Corwin is a small town in a farming community about twenty miles west and south of Anthony, the county seat. The bank is located on the southeast corner of the intersection of the two principal streets of the town. It faces west. The main door is at the northwest corner of the building. There are two large windows on the north and a passageway leading from the front lobby along the north side of the main room to a directors’ room in the rear, and from this there is a door which opens north to the street. This door was open, but the screen door was latched on the inside. Inside the main room is the customary partition, with tellers’ windows, back of which are the fixtures for the bank employees, and to the rear of that space is the bank vault. On the morning of August 7, 1930, A. L. Anderson, cashier, was the sole employee of the bank present. A Mrs. Wallace, who lived on a farm near Corwin, was in the bank to have some papers filled out. She was standing in the bank lobby near the cashier’s window. Anderson was inside the railing filling out the blank on a typewriter. It was shortly after ten o’clock. A car drove up from the east and stopped at the north door of the directors’ room of the bank. Two men were in the car. One of them remained in the car; the engine was kept running. The other one got out of the car and tried to open the screen door. Being unable to do so he walked west to the main door of the bank at the northwest corner of the building. As he did so he passed the two north windows. Both Anderson and Mrs. Wallace saw him, but paid little attention to him except to notice that he was dressed in unionalls and was wearing a cap. They went on with their work. He stepped in the main door of the bank, and at that time had tied across his face, so as to conceal all of it below his eyes, a large red handkerchief. He pointed a large pistol at Anderson, commanded that he throw up his hands, and proceeded to rob the bank. Anderson handed him what money was in the till, $1,005. He commanded both Anderson and Mrs. Wallace to keep their eyes down and to enter the vault, which they did. The door was closed. He then left the bank by the north door through the directors’ room, immediately got into the car, which was driven rapidly west to the intersection, then north, and out of town.
Anderson and Mrs. Wallace were in the vault but a few minutes, and on getting out gave the alarm. Several persons in the small town saw the car as it drove up, as it'was standing by the bank, or as it went out of town, but were unable to recognize the men in it. They noticed that the car was a 1930 model A Ford, black, or nearly so, with a small white line around it, and that it had a Texas license tag; also, that it had a noticeable dent, perhaps four inches long and two inches or more wide, in the body of the car above the rear window. Defendant owned such a car; in fact, he owned the only car of that model known in that neighborhood having such a dent. The defendant lived on a farm in Cherokee county, Oklahoma, about four miles west and six miles south of Corwin. After it left the bank the car was seen traveling toward defendant’s place' at about fifty miles per hour, which was fast, considering the road it was on. A number of persons had seen defendant drive the car at different places in the neighborhood and at the small towns near by, but always, until that day and after that day, with an Oklahoma license tag.
On the day before the Corwin bank was robbed the sheriff of Cherokee county, Oklahoma, had received requests from other peace officers to look over defendant’s premises to see who was staying there, the suspicion being that his place was a hideout for bank robbers, hold-up men, and the like. On getting this word the sheriff went to the defendant’s place near midnight. He found no one at home, but in the yard was an old Dodge automobile with a Texas license tag on it. He took the number of this tag, later checked it up, and found it had been issued in Texas to Roscoe Feebeck. On the day of the robbery he and other peace officers were notified immediately, and he went directly to defendant’s home. There he found Mrs. Feebeck alone. The old Dodge automobile was sitting in the yard, but at that time it had no license tag on it. There is evidence that Feebeck and his wife stayed at or about defendant’s home until after the Burlington bank robbery on September 3. In the meantime Feebeck had traded the old Dodge automobile on another car at a garage in one of the nearby towns, and at the time he traded it had the Texas license plate on with the number which the sheriff had taken down when he first saw it at defendant’s home on the night of August 6. The car for which Feebeck traded was used by him at the time of the Burlington bank robbery. Shortly after that robbery the sheriff searched defendant’s home, and in a bureau drawer found the gun, which was the one, or like the one, used by the person who held up the Corwin bank, and also found in the same drawer a large red handkerchief folded so it could be used for a mask, showing that it had been knotted at the ends, such a one as was used by the person who robbed the Corwin bank.
Defendant and Feebeck were taken into custody in a day or two-after the Burlington robbery. Anderson and Mrs. Wallace went to-Cherokee, saw defendant there in the j ail, and recognized him positively as the man who held up and robbed the Corwin bank. Anderson first recognized his voice, but hesitated about recognizing his features until the handkerchief was put across his face as it was worn when the bank was robbed. He was then positive of the identification. Mrs. Wallace likewise was positive in her identification of defendant as the man who robbed the Corwin bank. She had a slight acquaintance with him before by having seen him at the cream station or stores where she had transacted business at some -of the small towns in the neighborhood. There are a number of other items of evidence tending to support the verdict, too detailed in themselves to be enumerated here at length.
In addition to a plea of not guilty defendant offered evidence in support of an alibi. He admitted owning a car of the model described as being used in the robbery at the Corwin bank, but contended the dent in it was put there later, and in support of this contention several witnesses who testified they had gone to his place to shoot craps told of the manner in which the dent was made in the car and fixed the time as later than the robbery of the Corwin bank, but before the robbery of the Burlington bank. It was the function of the jury and the trial court to pass upon the credibility of witnesses and the weight to be given to the evidence. It is sufficient to say, as we do, that there was an abundance of evidence to support the verdict. There is no reason to say it was contrary to law. Neither was it error for the court to overrule the motion for a new trial.
The judgment of the court below is affirmed. | [
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Error from Reno District court. | [
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The opinion of the court was delivered by
Doster, C. J.
This was an action for bodily injuries negligently inflicted upon plaintiff at a railroad- and street-crossing in the city of Wichita. There was a circus entertainment in the outskirts of the city. Albert Wilson was a hack-driver, carrying people to and from the city and circus grounds. The plaintiff and others were passengers in his conveyance. He negligently drove in front of a train as it was running over the crossing near the depot. ’ The train approached the crossing without warning signals, and ran over it at a dangerously rapid speed, and struck the conveyance in which plaintiff was riding.. These were the allegations of the petition made against the railway' company and Wilson jointly. The defendants defended separately. A verdict and judgment were rendered against them together, from which the company on its part has prosecuted error.
The counsel for the railway company intended to file a demurrer to the petition for misjoinder of causes of action, but inadvertently filed an answer. The making of this mistake was satisfactorjjy shown to the court, and leave asked to withdraw the answer and file a demurrer. The leave to do so was refused. This refusal constitutes the first claim of error. It will not be necessary to consider, in its ordinary aspect, the question of the court’s abuse of discretion in refusing to allow the one pleading to be withdrawn and the other to be substituted. The court did not abuse its discretion, if the demurrer when filed could not have been sustained, and that such could not have been done is reasonably clear.
The objection is that the petition charged a separate independent tort on the part of both defendants — against Wilson for negligently driving the plaintiff into danger, and against the railway company for negligently running over him. It is true that the drivers of public conveyances, whether railway coaches or common vehicles, are individually responsible for the safety of their passengers, but so, likewise, are the drivers o'f other conveyances responsible to the former’s passengers at points of collision or common danger. ’ At such points there is a common and mutual duty of diligence and caution, because there, to the knowledge of each, a dangerous juxtaposition of their respective vehicles is liable to occur. In the case of a railroad and highway crossing there is a common point of danger against -which there is a mutual and concurrent obligation to guard. That common point is the one of contact between the train and the vehicle. It is as though-the injured person stood at that point and the two rushed upon him with mutual design to crush him between them. From one he might escape, but not from the two together, seeking', to compass his injury by the impact of their opposing forces. The rule of joint liability in such cases is . stated in Thompson on Negligence, volume 3, section 2781, with citations to many supporting decisions. The case of Kansas City v. File, 60 Kan. 157, 55 Pac. 877, applies the same general principle to a somewhat different state of facts.
That the carrier of the passenger may be under a greater obligation of prudence and caution than the driver of the train or other vehicle does not change the rule of joint liability. . The carrier may be required to use extraordinary care, the other only ordinary care. That, however, does not excuse the latter from using such measure of caution as the law imposes on him. It is no answer for him to say that, while he failed to observe the minor degree of prudence required of him, the other party failed to observe the greater degree required of him. The question of joint liability in such cases cannot be affected by the comparative culpability of the offenders. If the neglect of one to exercise the extraordinary degree of diligence required of him conjoins the neglect of another to use the lesser degree of diligence required of him, to the injury of a third person, such injury is none the less the single result of the two negligent acts or omissions of duty. It is well settled that the law will not undertake to apportion consequences between two or more persons jointly guilty of wrongful conduct toward another, though their contributions to the injury were in unequal degrees or from different motives; and it must be that the same rule applies where the injury was wrought by the neglect of differing degrees of responsibility.
There is no statute or ordinance of the city of Wich ita requiring trains to give warning signals of their approach to street-crossings. It was, of course, a disputed question whether the trainmen gave any signals of their approach to the crossing of the street at which the accident occurred. About two-fifths of a mile before reaching that crossing there is another street, likewise running at a ° right angle with the track. Witnesses were allowed to testify that the employees operating the train in question failed to give any warning of their approach to that crossing. The admission of this character of evidence is defensible on the authority of the majority opinion in A. T. & S. F. Rld. Co. v. Hague, 54 Kan. 284, 38 Pac. 257, 45 Am. St. Rep. 278, although in.that case the two crossings were about á mile apart, and were in the country, where there is a statutory duty to give signals of approach'to highway crossings. We think, however, the rule is the same in both kinds of cases. In one, as in the other, the evidence is offered for the purpose of laying a foundation from which to argue that, inasmuch as the railway company was negligent at one crossing, it was therefore negligent at the other one. ’ It cannot be any the more admissible to "prove the violation of a statutory duty at one place, or under one set of circumstances, in order to deduce the conclusion of a violation of the same kind of duty at another place or under another set of circumstances, than it is to prove the violation of a merely moral duty at one place or under one set of circumstances, in order to deduce the conclusion of its violation elsewhere or under other circumstances. We are constrained to think that the majority holding in the case of A. T. & S. F. Rld. Co. v. Hague was wrong. Although sup ported by the decision of another state, it seems to us to be violative of a fundamental rule of evidence.
“Ordinarily, when a party is sued for damages flowing from negligence imputed to him, it is irrelevant, for reasons already given, to prove against him other disconnected though similar negligent acts. Thus, in an action against a bailee for the loss of property intrusted to him, evidence of independent acts of negligence not connected with the loss is inadmissible. So, where the question, in a suit against a •railway company, is whether a driver was negligent on a particular occasion, it is irrelevant to prove that he had been negligent on other occasions.” (1 Whart. Ev. §40.)
Analogous to this rule is the more familiar one which prohibits the proof against defendants in criminal trials of different and disconnected offenses, though of the same particular class. Both these instances are applications of the general rule of inadmissibility of collateral incidents and circumstances to convict the party on trial, unless they, with the main incident, form connected parts of a common and designed system. (1 Whart. Ev. §29.) Now, two failures of a locomotive engineer to sound crossing signals, though quite closely connected in point of distance and time, do not evidence a systematic inattention to duty ; nor do we think, as counsel do, that the inference of systematic neglect is aided by the fact that the engineer was slightly behind time and was running through the city at more than usual speed, there being no evidence that such circumstances were conducive to the neglect of the duty in question.
There is no statute of the state or ordinance of the city requiring the maintenance of gates at street-crossings. The court, however, gave to the jury the following instruction:
“It is for you to determine, from all the circum-: stances surrounding the case, whether it was necessary for the defendant railway company, in ,, , „ ,. J , J J the exercise of ordinary care by the com- , . , ... ^ , pany, to keep and maintain and operate gates after six o’clock in the evening on said railroad-crossing ; and, if you so find that the exercise of ordinary care by the company required such maintenance and operation, then it becomes the duty of the railway company to use reasonable care and foresight to avoid leaving said gates in such position, or managing them in such manner, as needlessly to mislead a traveler on the highway to his injury, and without his fault into attempting to cross said railway-track at a time when there was danger from approaching trains ; that is, the company should do as a person of ordinary care and prudence would do under like circumstances.”
This instruction was erroneous, because it singled out a particular circumstance, not directly connected with the operation of the train, but collateral to its operation, and gave it to the jury as a fact upon which they might predicate a conclusion of wrong. There is much dispute as to the soundness of instructions of the character of the one above quoted. The court was not without abundant precedent for giving it. (2 Wood, Rly. L. 1313, 1314; 2 Thomp. Negl. § 1537.) The better opinion, as it seems to us, is that the court should not submit isolated facts, apart, from the main act of negligence, to wit, the careless operation of the train^ as sufficient to justify a verdict.. The point to the instruction in question is that under it the railway company was made liable for failure to shut down its gates, though it moved its train never so cautiously. In Grippen v. New York Central, 40 N. Y. 34, the trial court said to the jury : ”I. leave it for you to say, under all the circumstances, whether a flagman at this station, as a measure of proper caution, was or was not required of the defendants.” This instruction was held to be erroneous, and the ruling then made has been followed in many subsequent cases in the courts of New York. The argument in one of these cases, McGrath v. N.Y. C. & H. R. R. Co., 63 N. Y. 522, appears to us so strong and convincing that we quote much of it.: Said the court:
“Where there has been a collision at a railroad crossing with a traveler upon the highway, and the railroad company is sued for negligence in causing the collision, its negligence is made out generally by proving all the circumstances surrounding the transaction, and submitting them with proper instructions to the jury. It may be proved that the collision took place in the night-time, in a rain-storm; that the train was running fast or slow, with or without headlights ; that it was backing or going forward ; that it was running in a city in a crowded thoroughfare, or in the country ; that there were many or few tracks ; that there were obstructions, making it impossible to see the train before the crossing was reached. These circumstances are proved, not to impose upon the railroad company any duty which the law does not impose, or any duty to do any acts collateral to the running and management of its trains in a lawful manner upon its road, but as bearing upon the question of the manner in which it has run and managed its train. A different degree of care may be required in running trains in the dark and in the daylight, in city and country, when there are obstructions and no obstructions near crossings. It would be error for a judge to charge a jury that it is the duty of a railroad company to remove obstructions near its road obstructing the observation of travelers at a crossing, and yet it would not be error to receive proof of the presence of such obstructions. For the same reason it would be error for a judge to instruct a jury that it is the duty of a railroad company to keep a flagman aj; a crossing or to submit to the jury the question whether it ought to have kept a flagman there; and yet it would not be error to receive evidence of the absence of a flagman. There are many cases where trains can be run with greater speed, without negligence, if a flagman is kept at crossings, or other appropriate measures taken to warn travelers of the approach of trains. And, in the absence of flagmen, railroad companies may, in the exercise of proper care, be required to run their trains slower, or to take other precautions to protect travelers ; the question in all cases being, not whether it was their duty to do any of the collateral things to warn travelers, but whether, under all the circumstances of the case, it run and managed its train with requisite care and prudence. To illustrate more fully the clear distinction which I claim to exist as to the use that may be made of such evidence : In a given case the evidence of the absence of a flagman is received, and the judge charges the jury that if they find that it was the duty of the defendant, under the circumstances, to keep a flagman at the crossing, the omission of that duty is negligence which may make the defendant liable. Under such a charge that duty is made the central and controlling fact; and if the jury should find that the defendant had run its train with the greatest care in other respects, and thatit was guilty of no other negligence, and yet should find that it had omitted that duty, they could find a verdict against the defendant. Under the laws which make the duty of railroad companies to put sign-boards and ring the bell and blow the whistle at railroad-crossings, an omission of that duty, if the jury found that it contributed in any way to the accident, would make the defendant liable, no matter how careful it máy have been in running and managing the train, and in all other respects. Such effect is given to that omission of duty, because the law imposes the duty and enacts the consequence for its omission. Under such a charge as I have supposed, the jury is put in the place of the legislature, and its decision as'to the duty has the force of statute law; and hence such a charge has properly been condemned by the courts of this state. In another case the evidence is received and the jury is charged that the defendant owed no duty to any one to keep a flagman at the crossing, but that its sole duty to travelers upon the highway was to run and manage its trains with proper care, so as not to injure them in the exercise of their lawful rights; and that upon the question whether such care was exercised, they must consider all the circumstances existing at the time and place of the accident, and among them the fact of the absence of a flagman at the crossing. In such a case a proper use is made of the evidence, and the charge is liable to no just criticism. If the jury find such care was exercised they will find for the defendant, whether there was a flagman at the crossing or not.”
The same holding has been made ,by other courts. (Heddles v. The Chicago & Northwestern R. Co., 74 Wis. 239, 42 N. W. 237 ; Winchell v. Abbott and another, 77 Wis. 371, 46 N. W. 665; C. & I. R. R. Co. v. Lane, 130 Ill. 116, 22 N. E. 513 ; N. Y. C. & St. L. R. R. Co. v. Luebeck, 157 Ill. 595, 41 N. E. 897; Lesan v. Maine Central Railroad Co., 77 Me. 85; Maryland Central Railroad Co. v. Neubeur, 62 Md. 391.) To hold, as some courts have done, that the non-use of the accustomed gates at street-crossings is a notice of safety to approaching travelers, and tantamount to an invitation to cross, impinges very closely upon, if not in reality abrogates, the rule which requires persons about to cross railway-tracks to look and listen, and in some instances to stop in order better to do so. The doctrine, that the single circumstance of leaving gates open may be accepted by the jury as sufficient evidence of negligence in the company, is of a piece with that which acquits the traveler of negligence if he sees the gates open. They are both wrong. Of course, evidence in proof of the negligent omission to maintain gates at a street-crossing is admissible, and in Kansas Pac. Ry. Co. v. Richardson, 25 Kan. 391, it was held that such omission, although not specially alleged in the petition, was nevertheless included in the general charge of negligent operation of the train, and might be proved as one of the circumstances constituting the res gestee. The implications from the language of the opinion in that case harmonize with the ruling we make in this one.
Many other claims of error are made. None of them impresses us as substantial enough to constitute of itself ground for reversal, if indeed it be even technically correct. However, in one instance a witness was allowed to give his opinion as. to the speed at which the train approached the crossing, without showing a sufficiently close observation of it or thought at the time concerning it..
The judgment of the court below is reversed, and a new trial ordered.
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The opinion of the court was delivered by
Greene, J.:
The material allegations of the- petition are : .That the defendant, the Hunter Milling Company, in the ybars 1893, 1894, 1895, 1896, and 1897, and at the time this action was commenced,was a corporation operating an elevator in the city of Wellington ; that during that time, and prior to 1897, the plaintiff deposited in said elevator a large quantity of hard wheat, under an agreement .that the company would keep it on deposit in separate or private bins .and return the identical wheat upon demand ; that prior to the 25th. day of June, 1897, the defendant had returned to plaintiff, or had accounted to him, for all of said wheat so deposited, except 3407 bushels and 50 pounds, which was worth 64 cents per "bushel, or $1077.85; that plaintiff demanded a return thereof, or its value, which was refused. The petition also alleges that, upon the deposit of the wheat, the defendant mixed it with other wheat belonging to himself and others and converted it to his own use, without the knowledge or consent of plaintiff ; and that such fact was unknown to plaintiff until within sixty days prior to the time of filing his petition.
To this petition the defendant filed a general denial. The cause was tried by a jury. Counsel for plaintiff in the opening statement of his cause stated that the defendant agreed to keep said wheat in separate bins and deliver the identical wheat on demand, but that immediately upon such deposit the defendant had converted it. He also stated facts which admitted that defendant had accounted for and plaintiff had received pay for all wheat so deposited; that a settlement was had and storage charges allowed by the plaintiff, with the understanding on his part that his wheat had been actually kept on hand during all the time for which he paid storage; that some time prior to the beginning of this action he discovered that defendant, immediately upon the deposit, had converted the wheat, and was therefore not entitled to the storage paid by plaintiff; and that the action was brought to recover the storage thus wrongfully charged ánd mistakenly paid and for the value of the wheat remaining in the elevator.
Upon this statement having been made, the defendant requested the court to render judgment in favor of it,'because the statement did not conform to the facts pleaded in the petition and the cause of action stated to the jury was not the cause of action stated in the petition; that the cause of action stated in the petition was for the conversion of the wheat, while that stated to the jury was one to recover for storage charges paid through mistake or fraud. This request was overruled, and excepted to by the defendant. The defendant then requested the court to withdraw the cause from the jury, for the reason that under the statement the plaintiff is seeking to recover upon one cause of action alleged in his petition, and an entirely different one in his statement to the jury. This request was overruled, to which the defendant excepted.
At the trial, the jury found for the plaintiff in the sum of $2230.70, for which amount judgment was rendered, and from which judgment the defendant prosecutes error.
When the plaintiff had introduced his evidence,‘the defendant demurred thereto, for the reason that the evidence did not support the cause of action alleged in the petition. This was overruled. Among other instructions, the court instructed the jury as follows :
“The principal questions of fact for you to determine in this case are as to the terms of the contract under which the wheat was stored, and as to whether the terms of the contract for the storing of the same have been kept and performed by the parties ; and it is upon these questions that the principal questions of law in the case arise.”
The court also instructed the jury, in substance, that if it should find the contract was that the wheat should be kept separate and apart in the elevator, and the identical wheat returned upon request, and that it was so kept, then the verdict should be for defendant.
The cause was tried as an action to recover an over charge for storage, and by the instructions this was the question to which the attention of the jury was specially directed. There are no facts stated in the petition that would authorize the admission of evidence to establish a cause of action for excess storage. The cause of action stated by plaintiff to the jury was in its nature one to set aside a settlement and recover for storage of wheat paid by plaintiff through a mistake of facts induced by the fraud of defendant.
The evidence of both parties conclusively proved that the defendant had accounted to plaintiff for all wheat so deposited, so that a verdict could not properly have been returned or judgment rendered against it for the value of the plaintiff's wheat. The jury, in answer to a special question, found that at the time of the settlement, on June 25, 1897, there was nothing due defendant for the storage of wheat. Its verdict, therefore, must have been for the amount of storage it found that plaintiff had paid, and to which the defendant was not entitled.’ The facts stated by counsel for plaintiff to the jury, which he then claimed constituted his cause of action, were a departure from those set out in his petition.
Mr. Pomeroy, in his Code Remedies, section 554, says:
“The very object and design of all pleading by the plaintiff, and of all pleading of new matter by the defendant, is that the adverse party may be informed of the real cause of action or defense relied upon by the • pleader, and may thus have an opportunity of meeting and defeating it if possible at the trial. . . The requirement, therefore, that the. cause of action or the affirmative defense must be stated as it actually is, and that the proofs must establish it as stated, is involved in the very theory of pleading.”
‘ ‘ A party to an action should not be allowed to ob tain benefits from contradictory and inconsistent allegations deliberately made by himself in his pleadings. Our civil code does not contemplate any such thing. The spirit of our civil code is that a party shall state in his pleadings the real facts of his case, and not falsehoods or fictions ; and when each party states what he believes to be the truth and real facts of his case, the court may know precisely where the parties differ.” (Kennett v. Peters, 54 Kan. 119,123, 37 Pac. 999, 45 Am. St. Rep. 274; Losch v. Pickett, 36 id. 216, 12 Pac. 822 ; Wilson v. Fuller, 9 id. 176 ; Wolfley v. Rising, 12 id. 535 ; Hoisington v. Armstrong, 22 id. 110.)
A litigant may not allege one cause of action in his petition and orally state an entirely different one and recover upon it. The evidence and finding must be based upon and correspond to the facts set out in the petition. In the present case, the plaintiff stated one cause of action in his petition and orally stated and recovered upon an entirely different one. This procedure cannot be recognized or countenanced by courts.
The judgment of the court below is reversed and the cause remanded.
Smith, Pollock, JJ., concurring. | [
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Appeal from Pawnee district court. | [
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,The opinion of the court was delivered by
Gkeene, J. :
This action was begun by plaintiff in error to settle the priority of liens on a quarter-section of- land in Atchison county. The court made numerous findings of fact and conclusions of law, and adjudged the plaintiff in error to hold the eighth and last lien on the real estate in controversy, from which judgment it prosecutes error to this court. Only the pleadings, findings of fact and conclusions of law are before us.
On December 18, 1878, G. G. Means, who was at that time a married man occupying the real estate in controversy as a homestead, executed to the plaintiff in error notes to the amount of $10,000, and secured the same by a mortgage on the land. In the execution of the notes and mortgage, Malissa J. Means,- the wife of O. G. Means, did not join. Her name was forged by her husband, but of this fact the bank had no knowledge. August 18, 1894, Means and wife executed their note and a mortgage on the same real estate to W. F. "Wyman. In August, 1895, Wyman commenced his action'to recover a personal judgment against Means and wife and to foreclose his mortgage, making plaintiff in error and other parties hereto defendants.
Upon April 26, 1896, judgment was rendered in said cause in favor of plaintiff in error against Means and wife on said notes in the sum of $12,692.29, and its mortgage decreed to be a first lien and foreclosed, judgment was also rendered in favor of Wyman against Means and wife, and Ms mortgage decreed to be a second lien and foreclosed. As to the other defendants, judgment was rendered in favor of each and liens decreed in their order. In May, 1896, and after the rendition of the above judgments, Mrs. Means filed her application asking the court to open the judgments and decrees theretofore rendered against her as to the bank and permit her to defend. In the application, she alleged that the notes and mortgage upon which the bank recovered its judgment and decree of April 26, 1896, as to her, were forgeries, and that she had not appeared or authorized any one to appear for her in the action in which such judgment and decree were entered. In this proceeding she served notice on all the parties to the action. Her application was granted.
At the January, 1898, term of court, the cause was-tried on the issues thus joined. The journal entry of that proceeding shows that all the parties to the original action appeared ; and judgment was rendered setting aside the judgment and decree of April 26, 1896, in favor of the bank and against Mrs. Means, and canceling the notes and mortgage as to Mrs. Means. That judgment became final and was conclusive on the parties in this action.
This court has frequently held that a mortgage on a homestead which is void as to the wife is void as to the husband. After the execution of the notes and mortgages to the bank and Wyman, and before the rendition of the judgments and decrees of foreclosure of April 26, 1896, Means and family abandoned the land in controversy as a homestead. It was, .therefore, and had been some time prior to April 26, 1896, subject to the liens of any judgments obtained against O. G. Means, in whose name the land stood. The claims of all the parties to this litigation, except the bank and Wyman, were judgments obtained in, the foreclosure of liens, or were judgments obtained before justices of the peace, abstracts of which were filed in the office of the clerk of the district court prior to the first day of the term of court at which the judgments of the bank and Wyman were rendered, with the exception of that in favor of Wade. This judgment was based on a prior attachment.
The present action was commenced after the court below had set aside the judgment and decree as to Mrs. Means, to determine the status of the bank’s lien. After the rendition of the judgment setting aside the bank’s judgment and decree as to Mrs. Means, the bank stood in a position with reference to this land the same as if its mortgage had never existed. It had a judgment against G. G. Means, and, the homestead having been abandoned prior to the rendition thereof, its judgment was a lien on the real estate in controversy subject to all mortgage, mechanic’s, judgment and attachment liens antedating the first day of the term of court at which it was rendered.
It is contended, however, notwithstanding the bank’s judgment as to Mrs. Means had been set aside and its mortgage canceled, that, because the mortgage to Wyman was subsequent in time and on its face made subject to the mortgage of the bank, the latter’s mortgage lien is still prior to that of Wyman. This contention cannot be sustained. The recitals in Wyman’s- mortgage do not estop him from asserting the priority of his lien, after the court had set aside the pretended mortgage lien of the bank. Where a party takes title subject to a recorded mortgage and agrees to pay it, he cannot thereafter be heard to question it, because he purchased subject to such lien and received a credit on the purchase-price in consideration of its discharge. The authorities cited by counsel for plaintiff in error support this proposition, but do not go to the facts of this case.
It is also argued that, because the judgment of June 6, 1896, fixed the liens of the x’espective parties to this litigation, and because the latter judgment, which set aside the plaintiff’s judgment and foreclosure decree and canceled its mortgage as to Mrs. Means, did not disturb its lien status as decreed in the former judgment as to the other parties, therefore, as to them, it still retains its position as holding the first lien. In the decree of June 6, 1896, it was the mortgage lien of plaintiff that was decreed to be first, not its judgment lien. It was given priority because it appeared to hold the first mortgage. When later, in the same action, with all the parties before it, the court set aside this decree, as well as the mortgage upon which it stood, we are unable to comprehend what was left as the foundation for this claimed continued priority of lien.
It is contended that, as Wyman failed to issue a special execution on his foreclosure decree within one year aftex* the rendition of his judgment, under section 4914, General Statutes of 1901, he lost priority as a judgment creditor. This provision of the code has reference only to judgment-lien holders, and was not intended to apply to mortgage liens. (Jackson v. King, 9 Kan. App. 160, 58 Pac. 1013 ; affix’med in Jackson v. King, 62 Kan. 850, 62 Pac. 655.) When Wyman commenced his foreclosure action he caused an attachment to issue, which was levied on personal property appraised at $1920. This attachment was not set aside, nor was the property sold. It is now contended by plaintiff in error that, as between the bank and Wyman, the latter should be charged with the full amount of the appraised value of this attached property, and that plaintiff should be given the benefit of it in adjusting its liens. If it be true that Wyman should be compelled to credit his mortgage lien with the amount of the appraised value of this property, why, we ask, should the bank appropriate this amount as against other and prior judgment-lien holders? It is only a judgment-lien holder, and is subsequent to other judgment-lien holders. It is, therefore, in no' position to demand the full benefit of such a holding. Wyman, however, is not chargeable with the value of the attached property, unless it be shown that he realized something out of it, or that his acts with reference thereto wrongfully deprived the other judgment creditors from realizing on this property. Nothing appears in the record to sustain either theory.
.The land in controversy was sold for taxes, and, after judgment in' the foreclosure proceedings and a few days before the tax deed was due, Wyman paid the taxes. In this action the court adjudged the amount of taxes thus paid a first lien on the land, and it is claimed that this was error. This was an equitable action to adjust the priority of liens on the real estate. The tax was a lien and the payment thereof necessary to preserve the property for the lien-holders. It would have been highly inequitable as between the lien-holders to refuse to allow the taxes thus paid to stand as a lien on the real estate in which all were equally interested, and the payment of which was beneficial alike to all.
It appears that on August 13, 1895, the Exchange National Bank sued Means and others in the district court of Atchison county, and caused the land in question to be attached. On April 1, 1896, the plaintiff therein recovered judgment and a decree to sell the attached property. After the recovery of its judgment the bank assigned it to J. L. Wade, one of the defendants in error in this action. On March 9,1898, Wade caused a special execution to issue on said judgment and levied on the land in question on April 18, 1898. This execution was returned for want of time to sell thereunder. ' No other execution was issued by either the Exchange bank or Wade. On April 11, 1898, the plaintiff in error caused a special execution to issue, which was levied on this land and returned by order of the court. This was the only execution issued by the plaintiff in error on its judgment under which it levied on or sought to sell this land.
It is claimed by the plaintiff in error that the court erred in adjudging Wade’s lien to be prior to its lien on said real estate. Its contention is that, as Wade did not cause execution to issue on his judgment within one year from the rendition thereof, its judgment took precedence over the judgment lien of Wade.
Section 4914, General Statutes of 1901, provides :
“No judgment heretofore rendered, or which hereafter may be rendered, on which execution shall not have been taken out and levied before the expiration of one year next after its rendition, shall operate as a. lien on the estate of any debtor to the prejudice of any other judgment creditor.”
It will be observed that in order to retain the priority of a judgment lien, the statute requires not only that the execution shall be issued on'the judgment, but that it shall be levied on the real estate. At the time the savings bank issued and levied its execution on this real estate, the land was resting under a valid levy made prior thereto by Wade. Neither of these parties having issued and levied execution within one year after the rendition of their respective judgments, they lost their liens as to other more diligent judgment creditors, but as Wade had caused an execution to be issued and levied on the land prior to the levy made by the bank, it must be held that his judgment lien, under which his execution was levied, was prior in point of time to the levy made by the bank, and was therefore a subsisting lien when the bank levied its execution. It is true that the plaintiff in error, before its decree was set aside, had issued a special execution to sell under the decree, but this was not the issuance and levy of'an execution, and as the decree under which its order of sale was issued was afterward set aside, certainly such proceeding was not a compliance with the statute.
There are some other alleged errors, an examination of which convinces us that they have no merit, and are too inconsequential for further reference. We are of the opinion that there is no error in the record.
The judgment of the court below is affirmed.
Johnston, Cunningham, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Greene , J.:
Lina Higgins recovered j udgment against the city of Chanute for injuries alleged to have been sustained by falling into the entrance of an unguarded cellar-way opening in the sidewalk of one of the principal streets of the city.
It appears from the pleadings and admissions that the city of Chanute pretended to grant Jones Brothers, their heirs and assigns, the right to excavate on the. west side of Main street, adjoining lot 1, block 2, in said city, a cellar-way not exceeding four feet in width or thirty feet in length and to maintain therein a stairway to the cellar or basement of the building erected thereon so long as the building should be maintained. This ordinance also provided that the grantees, their heirs and assigns, should construct and maintain a good and substantial railing on the east side and south end of such opening. Under this ordinance the building, which was for private purposes, was erected, and a cellar-way four feet wide and thirty feet long paralleling the sidewalk was excavated and steps placed therein. The outside and rear end were protected by an iron railing; the entrance was unguarded. This cellar-way occupied half of the sidewalk and was erected and maintained with the knowledge and consent of the city for a period of about two years before the accideut.
It appears from the evidence that on December 12, 1898, the plaintiff, a woman twenty-five years of age, left the store where she was engaged as a clerk, about seven o’clock in the evening, and started down this sidewalk. The evening was dark and stormy and there were not sufficient lights. While passing along on the sidewalk,, and without fault on her part, she walked into this unguarded cellar-way and fell to the bottom, a distance of about ten feet, and sustained injuries, for which she sought to recover in this action.
It is argued that the court below erred in giving the following instructions:
“2. You are instructed that it was the duty of the defendant city to exercise ordinary care and prudence to keep its streets in a reasonably safe condition for travel thereon. In the light of the pleadings in this case, and such of the testimony as is undisputed, it appears that some years prior to the time when plaintiff alleges she sustained the fall in question, the said city, by an ordinance it enacted, authorized the con struction of this open cellar-way upon a portion of the area of one of its streets upon which persons passing along on foot' were accustomed to travel. This cellar-way had a guard, or rather railing, on the side next to the street and at the south end, but the north end was left open.
“3. You are instructed as a matter of law that said city, in permitting this céllar-way to be constructed on the footway portion of one of its streets, with one end of said cellar-way left open, as before explained, was guilty of at least what in law is styled ordinary negligence. And the fact that there may have been a portion of the area of said street' extending from the outer side of said cellar-way to the street curbing that was available for use as a sidewalk is not, in itself, any defense to this action. The public had the right, in law, to have all.of said street kept in a reasonably safe condition for travel thereon.”
The facts upon which these instructions were based, as expressed by the trial court, were undisputed. It is contended that, whether these undisputed facts constitute negligence on the part of the city, was a question of fact and should have been submitted to the jury. Where the facts are undisputed, but of such nature that different minds will draw different conclusions from them as to the reasonableness of the parties’ conduct, it is a proper question for the determination of the jury. (K. P. Rly. Co. v. Pointer, 14 Kan. 38 ; C. B. U. P. Rld. Co. v. Hotham, 22 id. 41.) Where, however, facts are undisputed, or are sufficiently found by the jury, and only one conclusion can be drawn therefrom, whether such facts constitute negligence is a question of law. (Kansas Pac. R. Co. v. Butts, 7 Kan. 309; U. P. Rly. Co. v. Lipprand, 5 Kan. App. 484, 47 Pac. 625 ; Dewald v. K. C. Ft. S. & C. Rld. Co., 44 Kan. 586, 24 Pac. 1101.)
We think it impossible for fair and reasonable minds to come to different conclusions from the admitted facts in this case. The cellar-way paralleled the sidewalk and occupied about one-half of its width on one of the principal streets of the city. The entrance was unguarded. It was a dangerous excavation, and there was nothing to prevent a person, on a dark night, while walking along that street, from walking into it. Streets and sidewalks are for the exclusive use of the public as passageways, and it is the duty of every city to keep and maintain the whole width and every part thereof free and unobstructed and in a safe condition for the uses for which they are intended. (Smith-v. City of Leavenworth, 15 Kan. 81.) It was negligence for the city to allow this cellar way, with an unguarded opening, to be maintained and to occupy a part of one of its sidewalks. The instructions complained of were as favorable as the city had any reason to expect.
Itis complained that the jury were actuated by prejudice, and it is said that this is evidenced by excessive separate items of damage and its general verdict. The jury allowed plaintiff $100 for medical attendance. The evidence proved that she only expended $70, and that she was required to, and did, remit $30 of said sum. It is true that the evidence only proved that she had paid $70 for such services, but there was some evidence that she had other physicians attending her, and it is silent as to what she paid or the amount incurred to them.
It is contended that the item of damages for loss of time was excessive and that this showed prejudice on the part of the jury. The difference between the amount she.should have recovered, as computed by the plaintiff in error, and the amount allowed by the jury, is too small to authorize a court to say that it was the result of prejudice.
It is contended that the general verdict is excessive. The total amount allowed was $4358. There was testimony that this woman was permanently injured, both internally and externally. The extent of'her injuries, as nearly as it was possible, was presented to the jury by eminent physicians, both for the plaintiff and defendant. She was required to exhibit to the jury her ankle, which, she testified, was so injured by the fall that she was compelled to wear a brace to enable her to walk. It was also in evidence that her internal injuries were permanent, entirely disabling or greatly impeding her in earning a livelihood. While the verdict seems to have been liberal, it is not so wanting of support in the evidence or so grossly excessive that this court can say that it was the result of passion or prejudice.
Some contention is made that in the .argument to the jury one of the plaintiff’s counsel made highly inflammatory and prejudicial remarks. The court, upon .objection, instructed the jury not to consider these remarks, and it appears from the testimony of some of the jurors who testified on the application of the defendant below for a new trial that these remarks were not prejudicial and did not have much effect, as they testified that “all speeches of any and all lawyers in the case was ‘sweetness wasted on the desert air.’ ”
It is also alleged that the court erred in refusing to grant the defendant a new trial. It is said that the misconduct of the j ury and the manner in which they arrived at its verdict were such that the verdict should not have been permitted to stand. It is alleged that the verdict was arrived at by each juror’s setting down the amount he thought the plaintiff ought to re- coyer, adding these several sums together and dividing the total amount by twelve, the quotient being the total amount of the verdict. J. K. Harkness, one of the jurors, testified that this was the manner of arriving at the verdict. It is evident, however, that the cqurt 'below did not believe the statement of Harkness, and upon this we entirely agree with that court. Every other juror who testified declared that Harkness’s statement was false. -
There are some other alleged irregularities on the part of the jury, but nothing that appears prejudicial to the rights of plaintiff in error.
The judgment of the- court below is affirmed.
All the Justices concurring. | [
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The opinion of the court, was delivered by
Horton, C. J.:
This was an action brought in the court below by the Republic Investment Company against W. H. Bohart, to recover $316.85, with interest, upon 12 written contracts for the sale of certain lots in Belleville, in Republic county, in this state. These contracts were executed and signed upon the 25th day of August, 1887, by the investment company and W. H. Bohart. Each contract provided that the purchase-money therein named was to be paid in installments. The investment company, upon the completion of all the payments, was to execute to Bohart, his heirs and assigns, a deed conveying the premises in fee-simple, with the ordinary covenants of warranty. Each contract further provided that, in case Bohart failed to make the payments punctually at the times stated, the contract as to the investment company would be utterly null and void. Bohart being a non-resident of the state, the investment company, on May 5, 1888, commenced this action in the district court of Reno county, and attached property in that county belonging to Bohart. Subsequently he appeared and filed a demurrer to the petition, alleging that the court had no jurisdiction, and that the petition did not contain facts sufficient to constitute a cause of action. The demurrer was overruled, and then Bohart filed his answer, containing a general denial and alleging misrepresentation and fraud upon the part of the investment company. At the November term, 1888, judgment was rendered in favor of the investment company and against Bohart for the amount prayed for in the petition, together with interest and costs. Bohart excepted, and brings the case here.
Section 53 of the civil code reads:
“An action, other than one of those mentioned in the first three sections of this article, against a non-resident of this state or a foreign corporation, may be brought in any county in which there may be property of, or debts owing to, said defendant, or where said defendant may be found; but if said defendant be a foreign insurance company, the action may be brought in any county where the cause, or some part thereof, arose.”
This action was upon a contract for the payment of money, and was brought in Reno county, where the defendant, a nonresident, had property. The court had jurisdiction of the subject-matter. The defendant appeared, the trial was had, and judgment rendered against him. The district court of Reno county is a court of general jurisdiction. The petition alleged that Bohart, the defendant, was a non-resident, and the proceedings show that his property in Reno county was attached. Where a court has general jurisdiction of the subject-matter of an action, it is not necessary to allege in the petition the facts showing the jurisdiction of the court; therefore the trial court committed no error in overruling the demurrer to the petition, and the defendant below has no just cause for complaint concerning the exercise of the jurisdiction of the trial court. He made a general appearance, and while he demurred to the jurisdiction of the court, he at the same time alleged that the petition did not state facts sufficient to constitute a cause of action. (Railroad Company v. Akers, 4 Kas. 470; Burdette v. Corgan, 26 id. 102; Pierce v. Myers, 28 id. 364.)
The provision in the contracts making them null and void if Bohart made default in the payment of his installments, or any installment, was for the benefit of the investment company. The company could have insisted upon this provision, and had the contracts annulled. It also had the right or option to declare a forfeiture for the non-payment of the installments, or any installment; but it also could waive that right. (Johns. Ch. 369; Railroad Co. v. Bickley, 21 Kas. 275; Land Co. v. Perry, 25 id. 140.) A waiver of the right to declare a forfeiture for non-payment at a specified time is not a rescission of the contract. The investment company, as the vendor, is entitled to its money upon the contracts, and the vendee to the lots therein described. (Barrett v. Dean, 21 Iowa, 423; Sigler v. Wick, 45 id. 690; Blood v. Enos, 12 Vt. 625.)
The final alleged error is that the court improperly overruled the demurrer to the evidence. The evidence is not preserved in the record, and this question cannot be considered. If it were necessary at any time during the progress of the action to offer the attachment proceedings to establish that Bohart, the defendant, had property in Reno county subject to the payment of his debts, it will be assumed that this was done, to uphold the judgment, because the record is incomplete.
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
Horton, C. J.:
The city of Ottawa, in Franklin county, is a city of the second class. Block 85 in that city was granted to the county of Franklin by the Ottawa Town Company for a court-house square, and county buildings have been erected thereon. In 1887, the city of Ottawa, under the provisions of the statute, macadamized Main street between Tecumseh and Fifth streets, and a special assessment on account of such macadamizing was made under the statute upon said block 85, amounting to the sum of $573.10. Subsequently, a claim for that amount was presented to the board of county commissioners for allowance. This was refused, and an appeal was taken to the district court. It was there allowed, and j udgment rendered accordingly. Complaint is made of this judgment.
The question is, Had the city of Ottawa the power to levy a special assessment of $573.10 for the improvement of Main street in front of the “court-house square” without the consent of the board of county commissioners, and then collect it by judicial proceedings against the county? Section 5 of article 12 of the constitution ordains: “Provision shall be made by general law for the organization of cities, towns, and villages; and their power of taxation, assessment, borrowing money, contracting debts and loaning their credit shall be so restricted as to prevent the abuse of such power.” Paragraph 788, General Statutes of 1889, grants to cities of the second class full authority to enact ordinances “to open and improve streets, avenues, and alleys, . . . within the city, and, for the purpose of paying for the same, shall have power to make assessments in the following manner, to wit: . . . For paving, macadamizing, curbing and guttering all streets, avenues, and alleys, . . . the assessment shall be made for each block separately on all lots and pieces of ground to the center of the block, on either side of such street or ave nue, the distance improved or to be improved.” (Gen. Stat. of 1889, ch. 19, § 32.) This section authorizes the improvement of streets, and provides that in payment the city shall have power to make assessments upon all lots and pieces of ground abutting upon the improvement, without any exemption or reservation whatever. This court has ruled that § 1, article 11, of the constitution of the state, providing for a uniform and equal rate of assessment and taxation, relates to taxes, and does not apply to such special assessments or taxes as are imposed upon abutting lot-owners in cities for street improvements. (Comm’rs of Ottawa Co. v. Nelson, 19 Kas. 234; Hines v. City of Leavenworth, 3 id. 186.) It has been decided frequently by this court that a city has exclusive care and control of its streets and sidewalks, and must make them reasonably safe for travel. (City of Atchison v. King, 9 Kas. 550; Jansen v. City of Atchison, 16 id. 358; Osage City v. Brown, 27 id. 74; Maultby v. City of Leavenworth, 28 id. 747.) It follows necessarily that a city must keep in repair its streets and sidewalks. The statute provides how this may be done. There is no exemption in the statute of a court-house or other public grounds. Streets and sidewalks in front of or around a court-house square, or other public ground, should be kept in as safe condition by the city as other streets and sidewalks. It is not just that the other abutting lot-owners pay the special assessments intended to improve or benefit the court-house square. It is certainly unfair that the tax-payers of the city should pay for all the special improvements beneficial to the court-house square, when all the tax-payers of the county are equally interested therein.
It is said by Judge Cooley that —
“It is no objection to an assessment for a local work that the property assessed is used for a purpose that will not be specially advanced by the improvement; as, for instance, that it is dedicated to the purposes of sepulture, or is occupied by a building erected for the purposes of public worship, or is devoted to school or charitable purposes, or constitutes the track of a railroad, or is put to any use to which the market value of the property is unimportant. There is nothing necessarily permanent in any present use; not sufficiently so, at least, to give it a controlling influence in determining principles of taxation. Even public property is often subjected to these special assessments; there being no more reason to excuse the public from paying for such benefits than there would be to excuse from payment when property is taken under eminent domain.” (Cooley, Tax., §458; St. Louis Public School v. St. Louis, 26 Mo. 468.
In Mayor of Baltimore v. Green Mountain Cemetery, 7 Md. 517, it was held that—
“The property of the United States, of the city and county of Baltimore, are all exempted from taxes, and yet it has never, so far as we are informed, been contended that it was not liable for the paving done in front of it, and we can see no reason why that of the appellees should be. If the latter be not responsible, then it is evident the street must forever remain unpaved, or the expense of it be borne wholly and entirely by the proprietors of the lots opposite. Surely this never could have been the intention of the legislature, nor can it be imagined it was its purpose to compel the city generally to do it. It must be viewed practically as a benefit conferred on the property of the appellees, and the mere fact that they were indifferent to it ought not to avail in their favor, any more than the like indifference of an individual proprietor would shield him from liability to pay his quota when paving is done in front of his ground.”
In Hassan v. City of Rochester, 67 N. Y. 528, Miller, J., in deciding the case, used the following language:
"In the matter of the Mayor of New York, 11 Johns. 77, it was held that . . . churches, which were exempt from taxation under the act of 1801, were not exempted from assessments for local improvements. The same rule would render the property of the state liable for such assessments. As these are considered under the decisions as benefits to the property assessed, increasing its value, and not as a tax, no valid reason exists why the state, any more than individuals, should be exempted from paying for the advantages conferred. A different rule would compel individual lot-owners to pay assessments levied for improvements which were a benefit to the state lands without any adequate advantage, and in many instances impose a burden which would be extremely onerous and produce great injustice. This could not have been intended. Although the state cannot be made a party to an action to enforce such a claim and be sued in its sovereign capacity, it may be assumed that the state will provide means for the liquidation of assessments imposed by virtue of laws enacted by its legislature, and- that, as has been frequently done heretofore, appropriations will be made for that purpose.”
We do not think that the phrase jn ¶ 790, Gen. Stat. of 1889, concerning “ the taxable property chargeable therewith” restricts a city from levying special assessments or taxes upon public grounds, because, if construed as is claimed by counsel for Franklin county, then all the property used exclusively for literary, educational, scientific, religious, benevolent .and charitable purposes will also be exempt from the levy or payment of special assessments or taxes. This is contrary to the general view held by the profession, and is opposed to the practice prevailing in the cities. While such property is -exempt from taxation, under §1, article 11, of the constitution, it is not exempt from special assessments or taxes for the improvement of streets or sidewalks.
The serious difficulty in this case is as to the manner of collecting the special assessment. We held, in the case of Comm’rs of Stafford Co. v. National Bank, 48 Kas. 561, that ns the statute makes special provision for the collection of taxes, they are not a debt in the ordinary sense of the term, and consequently an action will not lie for their recovery. We have no inclination to change that ruling. A court-house •cannot be sold or disposed of under tax proceedings or at forced sale for special assessments or taxes levied upon the ground thereof. Such grounds are for the uses and purposes of the public, and are essential to the administration of the executive and judicial duties of the county and state, and, therefore, are not subject to sale for taxes or upon judgments rendered against a county. Perhaps it ought to be assumed, when a special assessment is made in accordance with the pro visions of the statute for the opening or improvement of a public street, that the officials of the county would allow and provide for the payment of the same without any action or other legal proceedings being necessary. It is presumed that the sovereign or state will do no wrong. If a county, however, refuses to pay the special assessments or taxes legally levied against its property, as such property, on account of the public uses to which it is applied, cannot be sold at a tax or other forced sale, there is no impropriety, after the claim is disallowed, in permitting the district court, on appeal, to adjust the amount thereof. The judgment can then be paid as other judgments against a county. (Gen. Stat. of 1889, ¶ 1618.) Such rule, it seems to us, will be beneficial to all concerned, will work no hardship upon any one, and permit the streets and sidewalks around public grounds to be improved and repaired as the statute prescribes and in an equitable manner. (Cooley, Tax. 572, 573; Hassan v. Rochester, 67 N. Y. 528; McLean v. Bloomington, 106 Ill. 209; Adams Co. v. City of Quincy, 130 id. 566.) The Illinois cases are very much to the point.
Attempt is made in one of the briefs to show that the constitution of Illinois, making special provision for cities and towns to levy special assessments, differs widely from the provisions of the constitution of this state. We have examined the provisions referred to and do not note the difference claimed.
Our attention is called to the decisions of the courts of Massachusetts and Texas, to the effect that the property of counties is exempt from special assessments or taxes. Notwithstanding the reasoning of the able courts of those states, we are inclined to think, under the provisions of our constitution and statutes, the better rule to be that cities have the power to levy upon public grounds the special assessments necessary to improve the streets and sidewalks in front or around them; and where, for public reasons, the property cannot be sold at forced sale, then that the assessments can be collected as stated.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.
This case grows out of the same state of facts that exists in the preceding case of The Alliance Trust Company v. Smith, just decided. A complaint, verified by one James T. Goodwin, who describes himself therein as the tenant in possession of the land, recites that on the 20th day of June, 1891, there was growing on said land a certain crop of wheat, to wit, about 90 acres, and that on said day Milton Smith, Benjamin Smith, and Henry Drain, having no interest in the same, did then and there unlawfully cut down said wheat. These defendants were arrested, tried before a justice of the peace, convicted, and fined $5 each, and adjudged to pay the costs of prosecution. They appealed to the district court, and filed a plea in bar to the prosecution of the action against them, reciting all the facts respecting the lease to Milton Smith and the planting of the crop, and the dates of the foreclosure, judgment, sale, and execution of the sheriff’s deed. This plea in bar (the facts stated therein being admitted) was sustained, and the defendants were discharged. The state excepted, and reserved the question for the decision of this court.
We are powerless in this case, and can afford the state no relief. There was a virtual trial, and the defendants were discharged. From the case of The State v. Carmichael, 3 Kas. 102, to that of The State v. Moon, 45 id. 145, including the cases cited in the latter opinion, we have universally held that when the defendants are acquitted we cannot disturb the judgment. The defendants in this case stated their defense in the nature of a plea in bar, and the facts were admitted by the state. On this statement they were discharged by the district court. This is an acquittal, and no appeal by the state can be had therefrom.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
On the 31st day of May, 1887, Frank W. Miexsell and John B. Wood, who then lived at Wellington, Sumner county, made to Horace Miexsell, who lived at Scott City, in Scott county, a deed to lot 12, in block 5, in Scott City. This conveyance was made as a matter of convenience, and to enable Horace to convey to persons with whom, as agent of Frank Miexsell and John B. Wood, he .had made a contract to sell and convey. Horace, being in financial trouble, deeded the lot to Walton, the defendant in error, to avoid any attempt on the part of his creditors to interfere with it. The facts are, that Horace had made a con ditional sale of said lot for Frank Meixsell and Wood, and had received $200 cash on the sale, the balance of the purchase-money to be paid in two installments — $500 due January 6, 1888 and $500 due July 6, 1888; the $200 paid to be forfeited if subsequent payments were not made promptly. The deed to Horace from his brother and Wood was made on the 31st day of May, 1887, and filed for record at 11 o’clock A. M., June 7, 1887. The deed from Horace Miexsell and wife to Walton, the defendant in error, was executed on the 7th day of June, 1887, but not filed for record by Walton, who was register of deeds of Scott county, until the 3d day of October, 1887. In January, 1888, Horace Miexsell wanted Walton to deed the lot back to him, but Walton refused to do so until Horace and wife executed to him a note, secured by a mortgage on said lot, for the sum of $230, due June 1, 1888. Horace assented to this and executed the note and mortgage, and Walton deeded the lot back to Horace on the 16th of January, 1888, and recorded the mortgage on the 16th of January. The pretended consideration for this mortgage is the receipt Horace gave the option purchasers for the $200 paid on their purchase, and $30 paid by Walton for the construction of a sidewalk in front of the lot. Walton swears that, at the time the deed to the lot- was made to him, he had purchased one-half- of the option, and subsequently bought the other half. He also swears that he told Horace, when Horace had financial trouble, that he ought to deed the lot to some one. Walton commenced this action to foreclose the mortgage executed by Horace and his wife. The case was tried by the court, a jury being waived, and a judgmeut rendered in favor of Walton for the full amount of the note and mortgage.
The case is here for review, and it is claimed that the evidence is not sufficient to sustain the judgment. The following facts are established, and the evidence sustaining them is uncoutradicted: The sale of the lot by Horace, as the agent of his brother and Wood, was a conditional one. The deferred payments were to be promptly met, or the cash payment of $200 was forfeited. Walton, at the time he took title by the deed of Horace and wife, knew the conditions of the sale, because he had bought a one-half interest in the contract. Walton knew that Horace had title from his brother and Wood, because that deed was filed for record by him, as register of deeds, on the 7th day of June, 1887, on the same day that Horace and wife executed a deed for the lot to him, but his deed was not filed for record by him until the 3d day of October, 1887, long after the first deferred payment was due and unpaid, and hence, by the terms of the sale, the $200 cash payment was forfeited. Walton’s knowledge of these things is sufficient to show that he did not take the mortgage in good faith and on the strength of any legal or equitable claim to be reimbursed of the $200 payment. This is enough to authorize us to recommend a reversal of the judgment.
It is recommended that the judgment be reversed, and a new trial ordered.
By the Court: It is so ordered.
All the Justices concurring. | [
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Error from court of appeals, southern department.
Affirmed. | [
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The opinion of the court was delivered by
Ellis, J.:
This action was prematurely brought. The court below properly held that the original plaintiff, Smiley, could not maintain his action, and the defendants Horstman and Kirby can have no standing in court for the purpose of contesting generally the right of a city to construct a proposed improvement, but can only be heard to complain when their personal rights are jeopardized.
In this case the city has not apportioned the cost of constructing the proposed sewer upon the real estate lying in the district, and may never do so. It has not levied any tax on the property of the intervenors, and it cannot now be known that such a tax will ever be levied. At the time this action was commenced the danger of injury to the intervenors “was too remote and problematical to warrant the granting of an injunction,” and the action, therefore, cannot be main bained. (Mason v. Independence, 61 Kan. 188, 59 Pac. 272.)
The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with this opinion. | [
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Error from Montgomery district court.
Affirmed. | [
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The opinion of the court was delivered by
Greene, J.:
The petition filed by plaintiff in error in the court below states that in 1895 judgments were obtained against the municipalities of the city of Oswego and Oswego township, in the county of Labette ; that at that time it was the owner of and was operating a line of railway through said municipalities, and, for the purpose of paying such judgments, there was duly levied against its property a tax in the sum of $996.51; that the sum of $9.96 was duly levied as a tax against the property of the Wagner Palace Gar Company, then in the possession of and operated by the plaintiff in error, which latter tax was charged to plaintiff in error ; that it procured a temporary injunction against the sheriff and treasurer of said county, restraining the collection of such taxes, on the ground that the same were unauthorized by law, uncollectable, and invalid ; that the defendants therein joined issue with the plaintiff on the legality of such taxes; that upon a final hearing the injunction was dissolved and a judgment rendered and an order made-that the plaintiff pay said taxes, but no judgment was rendered or order made in regard to the interest which had accumulated during the pendency of said injunction suit; that after the rendition of said j udgment the plaintiff tendered to the treasurer the full amount of such taxes so levied, exclusive of interest, and refused to pay any accumulated interest thereon, which tender was refused ; that thereupon a tax warrant was issued to the sheriff, commanding him to collect said tax, penalty, and interest thereon at the rate of fifty per cent, from the time that said temporary injunction was obtained.
The plaintiff in error then commenced this action and obtained a temporary injunction to restrain the collection of such interest. It contends that section 171 of chapter 158, General Statutes of 1897 (Gen. Stat. 1899, §7318), which provides that, when the collection of any personal-property tax shall be restrained and the injunction be dissolved, the county treasurer or sheriff shall collect the original tax and penalties, with interest from the date of the granting of said injunction at the rate of fifty per cent, per annum, is void, in that it violates section 1 of article 2 of the constitution, which requires the legislature to provide for a uniform and equal rate of assessment and taxation. It also contends that section 101 of chapter 158, General Statutes of 1897 (Gen. Stat. 1899, § 7212), is void, for the reason that such section undertakes to legislate certain real estate, road-beds, depots, etc., into personal property for the purpose of taxation, and then imposes a penalty by way of interest greater than that imposed by the statute in cases where the collection of taxes on other real estate is enjoined and the injunction thereafter vacated. Upon a final hearing judgment was rendered dissolving said temporary injunction. The plaintiff in error then prosecuted proceedings in error to the court of appeals, where the judgment of the trial court was affirmed, and it now brings the case to this court.
The penalty and interest became a part of the taxes. (The State, ex rel., v. Bowker, 4 Kan. 115; Kansas Pacific Rly. Co. v. Amrine, Treasurer, etc., 10 id. 319.) The legality of .this tax was the question involved in the original injunction suit, and, within the issue there framed, the constitutionality of these sections, and of all other laws bearing on the legality and validity of such tax, was involved, and could have been there litigated and determined. (Bank v. Rude, Adm’x, 23 Kan. 146; Boyd v. Huffaker, 40 id. 636, 20 Pac. 459.) The court is of the opinion that as to such questions it must be held that the judgment in the former action is a bar to this action.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Doster, C. J. :
This was an action in the nature of a creditor’s bill to subject real estate to the payment of a judgment. The case was tried to the court without a jury. At the conclusion of the evidence on behalf of the plaintiff a demurrer to it for failure to prove a cause of action was made and sustained. From the order sustaining the demurrer error has been prosecuted to this court. In practice demurrers to evidence in cases tried to the court are allowed the same as in cases tried to a jury, although the code provision as to such matter relates only to jury trials. (Lumber Co. v. Savings Bank, 52 Kan. 410, 34 Pac. 1045.) In this case the evidence was conflicting. Counsel for defendant in error admits that some of it appears to sustain the claim of the plaintiff in error, the plaintiff below, but insists that inasmuch as the case was tried to the court the evidence must be viewed the same as it would be viewed upon final submission on the facts —must be viewed the same as though the defendant had declined to introduce evidence in his behalf and had submitted the merits of the case on the plaintiff’s evidence. Such is not the rule. The case of Wolf v. Washer, 32 Kan. 533, 4 Pac. 1036, was a review of a demurrer to evidence in a case tried to the court. It was there ruled: ‘ ‘ Upon a demurrer to evidence the court cannot weigh conflicting evidence, but must con sider as true every portion of the evidence tending to prove the case of the party.resisting the demurrer.” In the opinion it was remarked :
“In order to sustain a demurrer to the evidence, the court must be able to say, as matter of law, that the party introducing the evidence has not proved his case ; and the court cannot, upon conflicting and contradictory evidence, say that as a matter of fact the preponderance of the evidence shows that the party introducing it has not proved his case. If in the present case no demurrer to' the evidence had been interposed, and the case had been submitted to the court upon the evidence introduced, for a decision upon the merits and as to what the conflicting and contradictory evidence in fact proved, and the court had decided the case in favor of the defendants and against the plaintiff, the decision in all probability would be right; for in such a case the court would have weighed the conflicting and contradictory evidence, and would have decided the case upon the preponderance of the evidence ; but the court cannot do such a thing where a demurrer to the evidence is interposed, and where the court decides the case as a question of law upon the demurrer.”
The judgment of the court below is reversed, with directions for proceedings in accordance with this opinion. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action of ejectment in which the defense of adverse possession was pleaded. More than fifteen years before the commencement of the action, the defendants, being in possession, deeded the land in controversy to plaintiff below, continuing, however, to occupy the same. The district court refused to receive testimony offered by the defendants below to the effect that they had made declarations while living on the land that they were not leasing it but owned the property; that Lawrence Broughan had insured a house situated thereon in his own name and told the insurance agent that the property belonged to him. The wife of Lawrence Broughan was not permitted to testify whether she or her husband had ever mortgaged the land. The testimony excluded might have been competent in some cases, but it was not admissible to prove in that way that the defendants below held the land adversely to the ownership of Thomas Broughan without proceeding further and showing that such acts, declarations and statement had been brought to his knowledge. Having executed a deed to the land, the plaintiffs in error, after that time, presumably held possession in subordination to the title of their grantee, and they could not convert such possession into one of hostility unless such grantee or owner had express notice of their changed position in relation to him.
In the case of Graydon v. Hurd, 5 C. C. A. 258, 55 Fed. 724, 729., it was held that where a mortgagor, after foreclosure of the mortgage, remains in posses sion, he is to be regarded as a tenant by sufferance and to hold in subordination to the title of the purchaser at the sale, and does not hold adversely thereto until the relation of tenant by sufferance is disavowed and' the purchaser has knowledge or notice of the disavowal. In that case the court instructed the jury . that, if the possession was so notorious, open and visible as to be known to the people generally in the vicinity, then the jury were authorized to find that the plaintiffs had notice of it, although they might not be able to point out any actual notice. Such instruction was held to be “fatally misleading.” The court said :
“It was, in effect, entirely ignoring the distinction between what is necessary to acquire an adverse and hostile possession of land by those who have entered under and in subordination to the title of another, and commenced to hold thereunder, and those whose entry was adverse, and whose possession had never been subordinate to the title against which the possession is sought to be adverse. This distinction is material, and should not be ignored.” (See, also, Collins v. Johnson, 57 Ala. 304; Harrison v. Pool, 16 id. 167.)
By reason of its generality we cannot consider the assignment of error based on the admission of improper and incompetent evidence. Counsel for plaintiffs in error complain of the reception of testimony given by Thomas Broughan, contained in the record, “beginning on page 77 and continuing to page 95” ; also “all the testimony, objections and exceptions in the cross-examination of said witness, beginning on page 99 and ending on page 104, all the rulings of the court in which plaintiffs in .error were not allowed the right to cross-examine upon matters about which the court allowed Thomas Broughan to testify in chief.” (See Gilmore v. Butts, 61 Kan. 315, 316, 59 Pac. 645; Garden City v. Heller, 61 id. 767, 60 Pac. 1060.)
Plaintiffs in error are in no position to complain of-defects in the notice to quit served on them in conformity to the requirements of the landlord and tenant’s act. If they were entitled to any notice as tenants of Thomas Broughan, they certainly were not holding .adversely to him, but in recognition of his title.
The instructions given fairly state the law, and those tendered by defendants below were properly refused.
The judgment of the court of appeals will be affirmed. | [
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Error from Atchison district court.
Affirmed. | [
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The opinion of the court was delivered by
Doster, C. J. :
In the recent case of Hornaday v. The State’ (62 Pac. 329), it was decided that the powers of the legislative committee which had been authorized by chapter 13 of the Laws of 1899 to secure a site for an asylum for the insane were limited to the selection of a site and did not extend to the purchase of the one selected, or the fixing of a price to be paid by the state for it. Therefore, in that case, the judgment of the district court, enjoining the board of trustees of the several charitable institutions from accepting conveyances to the state of a site selected by the legislative committee and paying therefor the purchase-price as agreed upon between the committee and the owners, was affirmed. In lack of power in the legislative committee to contract for the purchase of the selected site and to cause payment to be made for it, the state, assuming that power existed in the board of trustees of the charitable institutions to make the purchase, either by negotiation or condemnation, has brought mandamus in this court against the members of such board to proceed to the performance of that duty, they having, upon demand, refused to undertake it.
Two principal defenses are stated in the return to the writ: (1) That the members of the board, before the service of the writ, had been enjoined by the district court of Clay county, in an action instituted against them by the state of Kansas, upon the relation of the county attorney, from doing the required act; (2) that no statutory authority ex- / \ j */ j ists for its performance by them. The matter alleged in the first of the above claims of defense is admitted to be true, and we are of the opinion, without doubt, that such defense is a valid one.
“The rule is well established that the writ will not be granted to compel the performance of an act which has been expressly forbidden by an injunction in the same court or in another court of competent jurisdic-. tion, or whose performance would be in direct violation of an existing injunction, even though the person seeking relief by mandamus is not a party to the injunction suit. Courts will not compel parties to perform acts which would subject them to punishment, or which would put them in conflict with the order or writ of another court, nor will the court, in such cases, to which application is made for a mandamus, inquire into the propriety of the injunction.” (High, Extr. Leg. Rem. §23.)
The case of Ohio & Indiana R. R. Co. v. Comm’rs of Wyandot County, 7 Ohio St. 278, and many other like cases, support the quoted text. There are occasional apparent exceptions to this rule, one of which is A. T. & S. F. Rld. Co. v. Comm’rs of Jefferson Co., 12 Kan. 127, but the general doctrine is as stated. The ground of the decision in that case was that the one seeking relief by mandamus had been denied admission as a party to the injunction proceeding, and, besides, had rights which could be ultimately enforced only by mandamus. Therefore, while the district courts are courts of jurisdiction inferior to the supreme court, we cannot arbitrarily ignore their judgments and orders and command the doing of an act which they, within the undoubted limits of their jurisdiction, have enjoined. We may reverse or otherwise revise their judgments and orders, but we can only do so when brought to us in a formal way for such purpose.
Before passing from this special topic we observe that the state is the plaintiff in both the injunction proceeding to restrain the doing of the act and in the mandamus proceeding to command its performance. The former, however, was brought by the county attorney, while the latter was brought by the attorney-general, both of whom are entitled to institute actions in the name of the state. What legal possibilities may be involved in this opposition of proceedings conducted in the name of the same litigant, we have not stopped to inquire, but have consented to view the matter, as counsel seemingly do, as controversies conducted by opposing parties and in behalf of opposing interests.
The application of the principles above stated is denied by counsel for the state, because, as they say, the district court of Clay county was without jurisdiction to issue the order of injunction in question, and also because it never acquired jurisdiction of the persons of the board of trustees. Of these denials in their order. The first is based upon the claim that the question of the right of the board of trustees to purchase or condemn the asylum site selected by the legislative committee and to cause payment to be made for it is res judicata; that it was decided by this court, in the case of Hornaday v. The State, supra, that power existed in the board to make the purchase or condemnation and to make thé payment. This, it is said, removes the subject from the cognizance of the district courts in future controversies and ousts them of jurisdiction over it. Without stopping now to examine the rather novel proposition that a thing decided in the superior eourts is thereafter a thing without the jurisdiction of the inferior courts, it is sufficient to say that the claimed estoppel does not exist. In the case of-Hornaday v. The State, the district court had enjoined the board of trustees from accepting conveyances and making payment for a site which had been bargained for by the legislative committee. Its judgment was affirmed by this court. In the opinion of this court one of the reasons for affirming.the judgment of the district court was that the board of trustees itself, and not the legislative committee, was authorized to purchase or condemn and make payment for the selected site. Now, this expressed view of the law did not constitute the judgment of this court nor of the district court, it only constituted a reason for the judgment. As such it is not an estoppel.
“The conclusiveness of a judgment resides in the judgment itself and not in the reasons of the court for pronouncing it. Held, therefore, that the reasons given by this court for affirming the judgment of a trial court do not constitute an estoppel binding on the parties to the case.” (Bank v. Brigham, 61 Kan. 727, 60 Pac. 754.)
Estoppels, therefore, where they exist, must be found in the declared and recorded judgments of the courts and not in their argumentative reasoning.
The claim of lack of jurisdiction over the members of the board of trustees by service of summons and order of injunction issued out of the district court of Clay county is likewise unfounded. ciaim is predicated upon the assumption that the board of trustees is a body politic and corporate, that it officially exists as a collective or aggregated body only, and that its individual members have no public character or status apart from one another. From this the conclusion is drawn that service of process can be made on it only when and where it may be officially in session; that its members are subject to the jurisdiction of the courts only when and where they may be sitting as an organized body for the performance of their collective duties. We cannot agree to this. The members of the board are possessed of an official character which accompanies them throughout their respective terms. While as individual members, apart from their fellows, they may not be able to transact public business, yet they do not take on and put off their official character as the exigencies of the public service require them to convene or separate. They are each of them public officers, liable at any time to be called to the discharge of some of their public duties, and liable at any time to receive notice of public interests requiring their convocation and attention. The duties performed by them do not require their assembly at any set time or at any particular place, but they may meet when and where, within the state, the public service may be best conserved, and they are, therefore, clothed everywhere in the state, and throughout their respective terms, with the responsibilities and official character of their positions. Article 5 of the civil code, after specifying the venue of various classes of actions, local and transitory, without, perhaps, designating the county in which actions of the character of the injunction proceeding in Clay county may be brought, declares, in section 55 (Gen. Stat. 1897, ch. 95, §50; Gen. Stat. 1899, § 4301), that “every other action must be brought in the county in which the defendant, or some one of the defendants, resides or may be summoned.” This section, in our judgment, justified the institution of the injunction suit in that county and the service of the summons and order of injunction on a member of the board happening there, and, by another’ provision of the code, the summons having been rightfully served on one of the defendants in that county, process was rightfully issued against other defendants to other counties.
Counsel for defendants argue that the statute noted in the opinion in Hornaday v. The State, supra, as authorizing the purchase or condemnation of the asylum site selected by the legislative committee has been repealed, and that therefore the opinion upon that point in that case was based upon an error of fact. This matter is within the province of the district court of Clay county to investigate and determine, and not for us to undertake to decide, except upon proceedings in error from the judgment that may be rendered in that case should it be brought to this court.
The peremptory writ of mandamus will be refused. | [
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Error from court of appeals, northern department.
Affirmed. | [
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The opinion of the court was delivered by
Doster, C. J.:
This is an appeal from a judgment of conviction of libel. The judgment was reversed by the court of appeals upon the following grounds: (1) Error in overruling an application for a change of venue; (2) insufficiency of the information to charge a public offense ; (3) erroneous instructions to the jury. Upon petition of the state, a certification of the case to this court was ordered.
The motion for the change of venue was verified by the appellant’s oath and supported by his oral testimony. Summarized, the motion and tes2timony were to the following effect: Appellant was the publisher of a newspaper, republican in politics. In 1898, preceding the nomination of a republican candidate for judge of the twenty-second judicial district, appellant had favored Hon. R. M. Emery and opposed Hon. W. I. Stuart as the nominee for that office. The latter received the nomination, but appellant claimed that it was secured by dishonorable political practices, and through the efforts of one Cyrus Leland, whom he alleged to be a tyrannical and unscrupulous “political boss,” in disfavor with the better elements of the party, and that the nomination, being thus brought about, was in opposition to the real desires of a majority of the voters of the party. Appellant, notwithstanding his dislike for Stuart and the methods and influences by which his nomination was procured, agreed to support his candidacy in consideration of forty dollars, in money, to be paid by Stuart, and in further consideration of a promise of the latter’s influence to secure him a share of the county printing; and also engaged to and did act as an intermediary between him and the editors of some other papers in arranging terms for their support similar to those which he had made for himself. These latter undertakings appellant complied with, but Stuart broke faith with him in the matter of the county printing and the payment of the money, whereupon he refused further to support his candidacy and commenced and did thereafter violently oppose him through his newspaper.
Many of the editorials published by appellant in opposition to Stuart’s candidacy were of the most vituperative and libelous character. In them the candidate was accused of “ bribery, perjury, drunkenness, gambling,, libertinism, and various other forms of human debauchery.” Stuart, however, was elected, but the appellant continued the publication of the libelous articles concerning him, speaking of him in some of them as “judge anarchist,” and in various ways impugning his character and qualifications as a judicial officer.
At the legislative session of 1899 the state senate, in a contest proceeding instituted by James Falloon, Stuart’s unsuccessful opponent at the preceding election, found that Stuart had secured his election through a violation of the provisions of chapter 77, Laws of 1893 (Gen. Stat. 1897, ch. 56; Gen. Stat. 1899, §§2666-2680), “An act to prohibit the corrupt use of money and corrupt practices at elections,” whereupon that body declared the office of judge of the twenty-second judicial district to be vacant and ordered and directed Stuart to vacate the office. In the case of Falloon v. Clark, 61 Kan. 121, 58 Pac. 990, the making of this finding and order was held to be beyond the constitutional jurisdiction of the state senate, and in consequence Judge Stuart retained possession of the office. Upon the hearing of the proceeding in the senate, appellant appeared as a witness against Judge Stuart, and testified to violations by him of the “corrupt-practices act,” such as offering and paying money and making promises of political influence for political support. As a consequence of appellant’s violent opposition to Judge Stuart’s election and the publication of the aforementioned newspaper articles against him and the testimony given against him on the proceeding in the state senate, the judge became .greatly prejudiced against the appellant and refused to speak to him when meeting him upon the street or elsewhere, wherefore the application for change of venue was made.
Let it be understood that the above is the appellant’s recital of facts. It is not made as a statement of the proved occurrences, except as to the publication of the newspaper articles. Upon the trial of the application for change of venue, Judge Stuart filed a written but unverified statement, in which he disclaimed' all feeling of prejudice against the appellant. He denied that he had agreed to pay appellant for his support in the political campaign, either by promises of money or influence to secure the public printing; denied that he had authorized him to negotiate for the support of other newspapers by promises of money or otherwise, and denied generally that he was guilty of any of the corrupt practices charged against him by appellant during the campaign. He said that he had read some of the appellant’s newspaper articles, but had not read all of them ; that those he had read excited in him no feelings of prejudice or animosity; that he attributed their publication to feelings engendered by the heat of the political campaign, and therefore did not attach any importance to them. He denied that he had refused to speak to appellant when spoken to by him. He admitted, however, that he had not spoken to him, but said that he supposed that appellant had no desire, considering the incidents of the previous campaign, to communicate with or speak to him. Three or four persons filed affidavits in resistance of the application for a change of venue, stating in general terms that they were acquainted with Judge Stuart and had never heard him speak or manifest ill will or prejudice toward appellant, and, from their knowledge of the character and disposition of the judge, that they believed he had no prejudice against appellant and could give him a fair and impartial trial. The above, including the judge’s written statement, was all the evidence on the application for change of venue.
In the view of' the majority of the court no error was committed in overruling the application. The showing of reasons for the change of venue was no stronger than was made in City of Emporia v. Volmer, 12 Kan. 622. In that case the opinion recites the following facts:
“Volmer filed his affidavit in the district court for a change of venue on account of the prejudice of the- judge, setting out that the judge, some two years before, had, in his presence, speaking of him and to him, remarked that he was meaner than a horse-thief, a murderer, or a rebel, that he had no shame, if he had he (the judge) would make his face burn; and that there had since that time been no reconciliation between them. "Whereupon the judge filed a counter-affidavit, stating, in substance, that he did not recollect the remarks, thought he did not make them, but if he did, it was while a partner of the city attorney and engaged in the trial of a prosecution against said Volmer for violating a city ordinance ; that he had no prejudice against defendant; that they had been in the habit of meeting and speaking together in a friendly manner, and, until the reading of defendant’s affidavit, he was unaware that any other than friendly relations existed between them. Upon this the defendant asked time to file counter-affidavits, but the court refused to grant any, and overruled the application for a change of venue. Was there error in this ruling? It must be confessed that it is somewhat novel for a judge to file his own affidavit, to be used on a motion before himself, but the novelty or irreguarity, if irregularity it be, of such proceeding, does not warrant us in a reversal, if outside and independent of it the substantial rights of the defendant have not been prejudiced.”
In that case it was ruled that the personal knowledge of the judge as to the existence of bias or prejudice in his mind against the defendant, and his statement of. it upon the consideration of the application for the change of venue, could not be ignored, and it was therefore held that a reviewing court must consider the judge’s statement in passing upon the sufficiency of the evidence in support of the application. After a full consideration of the question, it was ruled by the court, as expressed in the syllabus of the case :
“In criminal cases, on an application for a change of venue on account of the prejudice of the judge, such facts and circumstances must be shown by affidavits or other evidence as clearly establish such prej udice ; and unless it be by such testimony clearly established, a reviewing court will sustain an overruling of the application, on the ground that the judge must have been personally conscious of the falsity or non-existence of the grounds alleged.”
A similar ruling was subsequently made in the case of The State v. Bohan, 19 Kan. 28. The facts of the two cases to which we have thus adverted are indeed .stronger in support of the contention made by the defendants in those cases than are the facts in support of the appellant’s contention in this case, because in them the evidence in support of the application consisted of expressions of dislike and ill will toward the defendants, made by the judge. In this case the evidence consisted of expressions of dislike and ill will toward the judge, made by the appellant. In those cases it was the judge who had expressed ill will . toward the defendants. In this it was the appellant who had expressed ill will toward the judge. Before a reviewing court can hold that a j udge has erred in refusing a change of venue upon the ground of his bias and prejudice against a party it must appear that it is the judge who is prejudiced against the party, and not that it is the party who is prejudiced against the judge.
I take leave to say that the above is the opinion of a majority of my associates. It is not my own opinion. I dissent from it, and am authorized to say that Justices G-reene and Pollock likewise dissent. In the case of City of Emporia v. Volmer, supra, it will be observed from the quotation made from the opinion that the judge denied speaking the words of prejudice and ill will attributed to him by the defendant, but said that if, perchance, he had made them it was as an attorney, while engaged in the trial of a criminal prosecution against the defendant; and he further stated that since then he and the defendant had been in the habit of meeting and speaking together in a friendly manner. In The State v. Bohan, supra, the judge quite satisfactorily showed that he did not use the language imputed to him by the defendant; that any criticism he may have made of the defendant was by way of comment made by him as a judge upon evidence adduced in court tending to show the defendant’s guilt of a criminal charge. The record of appellant’s trial before Judge Stuart is not before us as a whole. In fact, there is very little of it before us, but I take leave to say that, judging by the part that is before us, the appellant does not appear to have been harshly dealt with, but on the contrary appears to have been tried in a fair and impartial manner. However, his right to a change of venue is not to be determined from the fact that after it had been denied he received a fair and impartial trial, but from the showing made by him in support of his application.
Now, I grant that so far as the development of actual facts was concerned the showing was of prejudice of the appellant and not of prejudice of the judge, but I base my dissent upon the ground that it was too difficult for Judge Stuart to remain unbiased and unprejudiced against the appellant, in view of the vituperative and libelous character of the newspaper articles published concerning him. Judges have the frailties and passions of ordinary mortals, and no judge can be as grossly libeled as appellant libeled Judge Stuart without being excited to feelings of resentment and ill will. He may strive against it; he may not be conscious of it; he may possibly overcome it; but the policy of the law should be to relieve a judge from the embarrassment of sitting in judgment upon the case of one who had so vilely traduced his character as a man and his integrity as a magistrate, and it should, in such case, compel the avoidance of possible wrong-doing. The policy of the law should be to prevent the necessity of a judge’s struggling to overcome his natural and just feelings of resentment against one who had, as in this case, and in the public manner described, aspersed his character, and who, by testimony which the judge declared was perjured, had also sought to deprive him of an honorable and lucrative public trust. It is the existence of prejudice to be overcome that disqualifies a judge from sitting ; it is not the ability to overcome it which qualifies a judge to sit.
The information in this case was in the following language:
“I, S. M. Brewster, the undersigned county attorney of Doniphan county, in the state of Kansas, who prosecute for and in behalf of the state of Kansas in all courts sitting in and for said Doniphan , tit , , . ,, county, and duly empowered to miorm of offenses committed in said county, in the name, by the authority and on behalf of the state of Kansas, come now here and give the court to understand and be informed, that on or about the 5th day of August, 1899, at the county of Doniphan and state of Kansas, one Pool Grinstead was the editor and publisher in said Doniphan county of a weekly newspaper called the Wathena Star; that on or about the said 5th day of August, 1899, in the said newspaper, in the said Doniphan county, in the state of Kansas, Pool Grinstead, with intent to expose one Albert Perry to hatred and contempt, and to expose him, the said Albert Perry, to public hatred and contempt, and to deprive him, the said Albert Perry, of public confidence, did then and there unlawfully and wilfully and maliciously compose and publish and cause and procure to be composed and published in said paper, of and concerning said Albert Perry, the following false, malicious and defamatory and libelous words, to wit: ‘With Leland’s brother-in-law,’ meaning thereby the said Albert Perry, ‘as chairman of the democratic committee,’ meaning thereby the democratic committee of Doniphan county, Kansas, ‘ even that party was run,’ meaning the democratic party in Doniphan county, during the campaign in which the said Albert Perry was chairman of the said democratic central committee, ‘pretty much as Leland directed,’ meaning thereby Cyrus Leland, who was a leading republican in said county, and meaning thereby that the said Albert Perry, who, during the time referred to, was chairman of the democratic central committee of Doniphan county, Kansas, as such chairman, betrayed the trust and confidence reposed in him by the said democratic party and its central committee, and that the said Albert Perry, as such chairman, suffered and permitted the said Cyrus Leland to control, in the interests of the republican party, the acts of said Albert Perry as such chairman, to the great injury, scandal and disgrace of the said Albert Perry, and contrary to the form of the statute in such ease made and provided, and against the peace and dignity of the state of Kansas.”
In the opinion of the majority of the court the above information is defective. “A libel is the malicious defamation of a person, made public by any printing, writing, sign, picture, representation or effigy tending to provoke him to wrath or expose him to public hatred, contempt, or ridicule, or to deprive him of the benefits of public confidence or social intercourse.” (Gen. Stat. 1899, § 2224; Gen. Stat. 1897, ch. 100, § 349.) The information does not allege that the publication of the libel tended to provoke to wrath, or expose to hatred, etc. It avers that the defendant intended that these consequences should be produced, but if does not allege that they were produced. An essential to the commission of libel is its tendency to provoke to wrath or to expose to hatred, etc. Not only is the tendency in that respect made an essential by the statute quoted, but it is an-essential at common law. (New. Sland. & Lib. 966, 967, et seq.) It often occurs that publications are so grossly libelous on their face as to show their tendency to produce the consequences spoken of in the statute. We may well conclude that a publication which in plain and unambiguous language charges a high degree of moral turpitude is one the natural and necessary tendency of which is to provoke to wrath, or expose to public hatred, or to deprive of the benefits of public confidence, etc., etc.; but there are injurious publications of which it cannot be said that such consequences naturally or necessarily follow. In order to understand that they have followed, an averment to that effect is necessary. The former class are denominated libels per se, or libels injurious in themselves.
In the case of libels that upon their face show themselves to be injurious, much explanatory matter, otherwise required by the rules of criminal pleading, may be dispensed with ; but in the ease of publications the injurious character of which is not thus shown upon their face all of the averments of inducement, innuendo and consequence must be made. The publication in question belongs to the latter class. As charged in the information, and in full, it is only as follows: “With Leland’s brother-in-law as chairman of the democratic committee, even that party was run pretty much as Leland directed.” Upon the face of this publication it is not libelous. Who Leland was and his relations to political parties were not stated. For aught that appears upon the face of this publication, Leland may have been a democrat, and, as such, entitled to advise and influence his brother-in-law, the chairman of the democratic committee. Whoever Leland was and whatever influence he exerted over his brother-in-law as chairman of the democratic committee, this publication fails to state that such influence was anywise to the prejudice of the democratic committee or the democratic party. Only by knowing that Leland was not a member of the democratic party, and therefore, in political morals, not justified in exerting an influence upon democratic committeemen and on democratic politics, could it be known that his brother-in-law, as chairman of the democratic committee, was politically derelict or dishonorable in yielding to his influence; therefore, only by knowledge of those things could it be known that the publication of the statement that Leland, through his brother-in-law, as chairman of the democratic committee, ran the affairs of the democratic party as he directed, would have a tendency to provoke Perry to wrath, expose him to hatred, contempt, or ridicule, or to deprive him of the benefits of public confidence or social intercourse. The publication upon its face contained no language imputing moral turpitude or political dishonor, and therefore it had no necessary tendency to produce the consequences required by the statute to constitute the offense of libel.
This view of the practice in cases of criminal libel is supported by Lawton v. Territory of Oklahoma, 9 Okla. 456, 60 Pac. 98; Moody v. The State, 94 Ala. 42, 10 South. 670; and I think there are no authorities to the contrary. In the case of The State v. Nichols, 15 Wash. 1, 45 Pac. 647, its application to the case of an information for libel per se was rejected, but with a distinct intimation that it would apply in a case where the publication did not of itself import a libelous meaning. Our judgment, therefore, is that the information is fatally defective.
Speaking now for myself, I think the above information is fatally defective in another particular. It is totally lacking in what is called inducement. The inducement is that part of an information for a libel not defamatory per se which alleges those extrinsic facts which are necessary to explain the meaning of the words used, and to show them to be injurious in effect. (New. Sland. & Lib. 608.) In this case the publication alleged to be libelous cannot be understood without an explanatory statement in the information as to who Leland and Perry were, that the one was a republican, the other a democrat, in politics, and such other like matters as would show the impropriety of Leland’s attempting to influence Perry politically, and the political turpitude of the latter in yielding to the influence of the former. There is an entire absence from this information of that part called the inducement. It is said, however, that the lacking matter is supplied in that part of the information which is called the innuendo. The innuendo is that part of the information for libel which explains the defendant’s meaning by reference to the antecedent matter alleged in the pleading. It is a statement of the meaning attributable to the words of the publication. The information in this case contained proper innuendos, as that “Leland’s brother-in-law” meant Albert Perry; that “even that party was run pretty much as Leland directed,” meant that Leland, who was a republican in politics, ran the democratic party ; and that Albert Perry, as chairman of the democratic committee, betrayed the political trust and confidence reposed in him, etc., etc. But there is no statement by way of inducement as to who .Leland was, who Perry was, nor the political affiliations or antagonisms of these gentlemen. The authorities are uniform to the effect that an innuendo cannot supply the place of an inducement in the pleading of a libel not injurious on its face. (13 Encyc. Pl. & Pr. 99-102; Towns. Sland. & Lib. §336; Bish. New Crim. Proc. §§793, 794; New. Sland. & Lib. 616; The State v. Pulitzer, 12 Mo. App. 6; Carter v. Andrews, 16 Pick. 8; State v. Atkins, 42 Vt. 253.)
However, the majority of my associates are of the opinion that the rule of pleading in libel which separates matter of inducement from matter of innuendo, and which assigns different places in the information to its different parts, and which holds an information bad because of an intermixture of the different parts, is too technical for the latter-day liberal view of practice. I think not, and'with much respect to them I beg to say that their decision goes to the reversal of a well-established, fundamental and reasonable rule, and that it is in my judgment the first of the kind to be made. My associates, however, admit that matters of inducement and innuendo are still required in informations for publications not libelous per se. They only hold that the two may be pleaded together.
The court gave the jury the following instruction :
“There is no dispute in the evidence in this case but that the defendant was, at the time the alleged libelous article was published in said Wathena Star, both editor and publisher of said paper. The iaW; therefore, presumes that such publication was by the authority of said defendant, and it is incumbent upon him to satisfy you that it was not published with his knowledge or authority, and unless he has satisfied you, you should return a verdict of guilty in this case.”
The latter portion of this instruction is erroneous. It not only shifted the burden of proof from the state to the defendant, but required the defendant to “satisfy” the jury that the publication was not made by his authority. It is elementary that the burden of proof as to all essentials of guilt rests upon the state and not upon the defendant, a¡nd that burden must be discharged by a degree of evidence that will satisfy the jury beyond a reasonable doubt. The above instruction in the particular mentioned reversed the rule, and required the defendant to satisfy the jury that the libelous publication was not made by his authority, and we do not regard such instruction as modified or the error contained in it cured by any of the others that were given. It may be that the state may rest upon the presumption of authorized publication growing out of the admitted fact of defendant’s ownership and control of the newspaper in which the publication was made, and it may have been incumbent upon the defendant to offer evidence in the first instance to rebut this presumption, but it is not incumbent upon him in the doing of it to satisfy the jury of his lack of guilt in the particular mentioned. If he were required to take the initiative in the introduction of testimony, he was only required to' introduce such testimony as would raise a reasonable doubt of his guilt. We do not, of course, hold that it was incumbent on him to introduce testimony in his defense in order to raise a reasonable doubt of his guilt. It is not the rule that a defendant should first introduce testimony in disproof of any element of the crime charged. Accused persons are presumed innocent until such presumption is dispelled by convincing proof of guilt arising out of all the evidence in the case, by whomsoever offered, in connection with all the presump tions legally applicable. (The State v. Crawford, 11 Kan. 82.)
For the error in giving the instruction above quoted, and for error in overruling the motion to quash' the information for the defect in it first herein pointed out, the judgment of the district court is reversed and that of the court of appeals is affirmed, and such proceedings will be had in the district court as may be consistent with this opinion.
Doster, C. J., dissenting from first and third paragraphs of. syllabus and corresponding portion of opinion.
Greene and Pollock, J.J., dissenting from first paragraph of syllabus and corresponding portion of opinion.
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The opinion of the court was delivered by
Johnston, J.:
This was an action by Annie Orr, administratrix of the estate of J. W. Orr, deceased', to recover damages for the death of her husband, J. W. Orr, alleged to have resulted from the negligence of the city. J. W. Orr, a switchman in the employ of the Chicago Great Western Railway Company, was killed on November 7, 1897, at the intersection of Central avenue and Wood street, in Kansas City. Central avenue, which runs east and west, is a paved and much-traveled street, and Wood street, which runs north and south, is occupied at this point by two tracks of the Kansas City & Northwestern Railroad Company, which are also used by the Chicago Great Western Railway Company, the employer of Orr. The intersection of the streets is planked between the tracks and also between the rails of the tracks with planks which are about four inches thick. One of the planks inside of the rail was placed from three and one-half to four and one-half inches from the rail, leaving an opening about four inches deep. Space is required for the flanges of the car-wheels, but the opening left is alleged to have been unnecessarily wide, and further, that the street had been left in that dangerous condition for more than thirty days prior to the accident. In the early morning of the day mentioned, a train of cars was slowly backed along Wood street and over Central avenue. Orr was walking beside the tiain, and at the intersection it became necessary for him to uncouple the cars, and it is alleged that for that purpose he went between the cars, stepped into the hole negligently left by the city, and his foot wedged therein so that he was thrown down and crushed by the wheels of the cars and killed.
The defense of the city was that it was not required to keep the streets in a reasonably safe condition for the use of switchmen and other railway employees passing along or over the streets; and further, that it was not liable for injuries suffered by such persons while engaged in such occupations upon the streets. The answer also included an averment that the injury was the result of contributory negligence. Special findings of fact were made by the jury, which were to the effect that while the train was backing over Central avenue, at the rate of three miles per hour, Orr went between the cars to uncouple them, stepped in the hole mentioned, which held his foot so that he could not withdraw it, and he was therefore thrown down and run over by the cars. There was a further finding that the space left for the flange of the wheels at the point of the accident was wider than is usually left for that purpose, and that it had remained in the same condition for more than thirty days prior to the accident. The general verdict was against the city, and the damages were assessed at the sum of $5000.
The main contention of the city is that the only duty which it owes to the public with respect to streets is to keep them in a reasonably safe condition for the ordinary purposes of travel; that Orr was n0£ mating such use of the streets when he was injured ; that he was not a traveler in the legal sense, and therefore no liability could arise against it for injuries sustained by him on account of defective streets. Cases of our own and other courts are cited in which it is said, in substance, that it is the duty of the city to keep its streets in a reasonably safe and suitable condition for travel in the usual modes, or for the travel that usually passes over them (Jansen v. Atchison, 16 Kan. 358; City of Wellington v. Gregson, 31 id. 99, 1 Pac. 253; City of Emporia v. Schmidling, 33 id. 485, 6 Pac. 893), and it is argued from these that Orr was not using the street for ordinary travel. The cases referred to do not undertake to define the term “traveler,” nor do they decide what are the usual modes of travel or the legitimate uses to which the streets may be put. In most of the cases the purpose of the court was to show that the law does not require the streets to be so maintained as to secure absolute immunity from danger in using them, and that the limit of the duty of the city was to keep them in such a condition that persons entitled to the use of the streets could pass over or along them with reasonable safety and convenience.
The fact that Orr was a railway employee and engaged in the performance of his duties upon the street when he was injured did not, we think, exclude from the protection of the law or relieve the city from liability for injuries to him resulting from its negligence. The corporate duty of the city is to keep the streets reasonably safe and convenient for all those who rightfully use them and who have occasion to pass over them for purposes of business, convenience, or pleasure. The railway was placed in the street with the consent and by the authority of the city ; it was one of the ordinary uses to which that street was put, and the employees of the company, while engaged in the performance of their duties, were required to pass along and over the street. While so engaged, they were not travelers, in a technical sense, but they were making an appropriate and legitimate use of the street, and one which was within the contemplation of the city when the right to such use was granted. In determining the duty and liability of the city, the terms “travel” and “traveler” are not to be given a narrow and restricted meaning, but should be held to embrace such legitimate uses as may be made by persons having occasion to pass over them while engaged in any of the duties of life, and persons using the street as Orr was when the injury was sustained. Orr was rightfully in the street; his duties required him to pass along and over it, and he was as much entitled to a safe and convenient place to walk there as the conductor of a street-car, the driver of a dray, or other person engaged in his ordinary business. A city is not required to prepare and maintain its streets for unusual and extraordinary uses, such as the moving of heavy buildings or the traveling over the streets with stilts, but the use made of the street by Orr was neither unusual nor extraordinary. It was just such use as was made of the street frequently every day, and which the city must have had in contemplation when the right to such use was conferred.
The fact that it may have been the duty of the railway company under its contract with the city to construct and keep its tracks in a suitable and safe condition for those who have occasion to pass over the street did not discharge the city from its duty to the public to keep the street in repair, nor relieve it from liability for the consequences of its negligence in that respect. (Street Rly. Co. v. Stone, 54 Kan. 83, 37 Pac. 1012.)
Our conclusion is that it was the duty of the city to keep the streets in a reasonably safe condition for the use of Orr or any one else who had occasion to pass over the streets while engaged in any of the ordinary pursuits or duties of life. (Fletcher v. City of Ellsworth, 53 Kan. 751, 37 Pac. 115; Kansas City v. Hart, 60 id. 684, 57 Pac. 938; Duffy v. Dubuque, 63 Iowa, 171, 18 N. W. 900; McGarry v. Loomis et al., 63 N. Y. 104; Rehberg v. Mayor etc. of City of New York, 91 N. Y. 137; McGuire v. Spence, id. 303; Parker v. The Mayor and Council of Macon, 39 Ga. 725; Grogan v. The Broadway Foundry Company, 87 Mo. 321.)
An objection is made to a recovery because of an alleged violation of the Sunday law. The accident occurred on Sunday morning. The statute forbids all labor on that day except works of necessity and charity. Orr was at work as a switchman, and assisting in the operation of a railway-train, when he was injured and killed, and the city, assuming the position of a champion of the Sun day law, insists that it is not liable for its own negligent acts because Orr was a transgressor of the law. The operation of a railway-train or other public conveyance may be a work of necessity, and there is nothing in the record to show that the operation of the train on this occasion was not a work of necessity. Aside from that consideration, the violation of the Sunday law, if in fact it was violated, was not the efficient or proximate cause of the injury to the plaintiff, nor an essential element of her cause of action. The general rule is that a plaintiff - will not be permitted to recover when it is necessary for him to prove his own illegal act or contract as a part of his cause of action; but the time when the injury occurred does not constitute the foundation of the action, and plaintiff could prove her cause of action without proving that her husband was violating the law when the injury occurred. The time when the injury was inflicted is only an incident to the efficient cause of the injury. The injury occurred by reason of the defect in the street, and was as liable to have occurred under similar circumstances on Saturday or Monday as it did on Sunday. There was not even a remote relation between the violation of the Sunday law and the injury which resulted from the negligence of the city in maintaining its streets in a proper condition.
In The Louisville, New Albany & Chicago Railway Co. v. Frawley, 110 Ind. 30, 9 N. E. 600, it was said :
“The fact that one who sustains an injury by the negligent or wrongful act of another, may have been, at the time of such injury acting in disobedience of his collateral obligation to the state, which required of him the observance of the Sunday laws, will not prevent a recovery from one whose wrongful or negligent act or omission was the proximate cause of such injury.” (See, also, Sutton v. Town of Wauwatosa, 29 Wis. 21; Louisville, New Albany & Chicago Ry. Co. v. Buck, Adm’r, 116 Ind. 566, 19 N. E. 453; Phila. Wil. & Balt. R. Co. v. Phil. & Havre de Grace Steam Towboat Co., 23 How. 209, 14 L. Ed. 433; Mohney v. Cook, 26 Pa. St. 342; Baldwin v. Barney, 12 R. I. 392; Merritt v. Earle, 29 N. Y. 115; Carroll v. Ry. Co., 58 N. Y. 126; Platz v. The City of Cohoes, 89 N. Y. 219; Schmid v. Humphrey, 48 Iowa, 652; Opsahl v. Judd, 30 Minn. 126, 14 N. W. 575; Illinois Central Railroad Company v. Dick, 91 Ky. 434, 15 S. W. 665; Black v. City of Lewiston, 2 Idaho, 254, 13 Pac. 80; Gross v. Miller, 93 Iowa, 72, 61 N. W. 385; Solarz v. Manhattan Ry. Co., 29 N. Y. Supp. 1123; Stewart v. Davis, 31 Ark. 518; Van Auken v. Railway Co., 55 N. W. 971; Patterson, Rly. Acc. L. 64; Cooley, Torts, 178; Whart. Neg. § 331; Beach, Cont. Neg. § 81.)
It is true that some of the New England courts hold to a contrary view, but such holding is against reason and the great weight of authority.
We think the case was fairly submitted to the jury by the charge of the court. There is complaint that the court assumed that the defect in the street was an act of negligence on the part of the city because of some language that was used in one of instructions, but it appears that like language was used by the city in its request for instructions ; and hence the city is hardly in a position to complain. However, the whole charge indicates that the question of whether it was negligence to leave such a hole in the street as existed there was submitted to the jury, and must have been so understood by the jury. The charge also fairly presented the subject of proximate and efficient cause as applied to the accident under consideration, and we find no substantial objections to any of the instructions.
No error was committed in the refusal to submit certain special questions, and we think there was sufficient testimony tending to show that the injury and .death were the result of the defect in the street. Upon this question the testimony is not as clear as might have been wished, but we regard it to be sufficient to take the case to the jury and to sustain the finding that has been made. It follows that the judgment of the court below must be affirmed. | [
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Error from Miami district court.
Dismissed. | [
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The opinion of the court was delivered by
Doster, C. J.:
This was an action brought by the defendant in error, the city of Kansas City, against the plaintiff in error, the board of education of Kansas City, to enjoin the erection of a high-school building upon what the plaintiff in said suit claimed to be ground dedicated to public-park purposes, but which the defendant claimed to be ground dedicated to it for school purposes. The defendant in its answer prayed for affirmative relief quieting its title to the disputed tract. Judgment was rendered in favor of the plaintiff, ¡denying affirmative relief to the defendant, and, in addition, enjoining the erection of the school building.
The facts were agreed on in the court below, a summary of which was that in 1857 a number of persons associated themselves together as a town-site company, under the name of the Wyandotte City Company, for the purpose of purchasing lots and devoting them to town-site purposes. Among other things, the town-site company appointed one John McAlpine trustee to receive conveyances for it and to plat its lands and to execute deeds to its lots. In 1859 McAlpine, in pursuance of the authority conferred, platted the company’s lands and filed a plat designating the streets, alleys, parks, and public grounds. . On the plat was indorsed the following matter indicating a dedication of some of the grounds to public purposes:
“public grounds.”
“The levee extending from the northern boundary of the Perry tract to the northern boundary of the town, and from the front lots to the river, also a public square known as 'Oakland Park,’ bound by Washington avenue on the north, Eleventh street on the west, Kansas avenue on the south and Tenth street on the east, said square being 650 feet long by 628 feet wide ; also Huron Place, excepting a lot on the southwest corner, one on the southeast corner, and also one on the northeast corner, which are respectively 150 feet square, and dedicated to church purposes ; also excepting so much as is occupied by the Methodist Church South, and by the burying ground adjoining said church, as repx’esented on the map.”
The tract now in dispute and the adjoining grounds were represented on the plat as follows :
The city of Wyandotte, the predecessor in municipal interest of the defendant in error, immediately upon the filing of the plat began to claim and exercise authority over the tract’designated by the above plat, and it and its successor, the defendant in error, have continued to claim and exercise authority over it. However, the only instances of the exercise of such authority were in planting shade-trees, in allowing or refusing the use of the grounds for circus shows, base-ball playing, political meetings, and the like. These uses of the grounds under the authority of the city were made with the knowledge and without the objection of the plaintiff in error. In June, 1867, the board of directors of school district No. 1 of Wyandotte county, the predecessor in interest of the plaintiff in error, filed with the city council the following petition:
‘ ‘ To the City Council of Wyandotte: Gentlemen —The undersigned school board of district No. 1 for Wyandotte county, which is the city of Wyandotte, request you, if it is not deemed inconsistent or improper, to convey to them that portion of Huron Place dedicated for seminary purposes in their official capacity for the purpose of erecting a schoolhouse thereon, in such manner as Oakland Park has been conveyed for the purpose of the state asylum of the blind.”
The city council granted the prayer of the petition by resolution in the following words :
“Resolved, That the mayor be authorized to execute such papers as may be necessary to, convey to school district No. 1 of Wyandotte county, for the erection óf a schoolhouse on that part of Huron Place bounded on the east by Sixth street, on the north and south by church lots named on plat of Wyandotte city, and west by a line drawn from the western boundaries of said church lots, reserving twenty feet on the north and south sides of said land so to be conveyed.”
In the month following the board of school directors addressed another petition to the city council asking an additional amount of ground for school purposes. The petition was in the following language :
“To his Honor, the Mayor, and Council of the City of Wyandotte:
Gentlemen — .We, the undersigned,'.'would respectfully represent that, if deeming it not inconsistent or improper, you could grant us an additional sixty-five feet on the back part of the ground recently granted to district No. 1 of Wyandotte county, in Huron Place, it would greatly benefit said school district and allow us the opportunity to erect the proposed schoolhouse in said district in a far more eligible situation. The land we seek will be a strip sixty-five feet wide, the length of the original grant on the west side of said tract.”
. Action by the city council on the last petition was taken, as follows:
“Mr. Washington presented a petition from the school board of district No. 1, praying for the grant of an additional tract in Huron Place for the same purpose and on the same terms as for the tract heretofore granted.
“Whereupon Mr. Washington moved that a strip sixty-five feet wide and the length of said original grant be conveyed to said school district by the mayor for the same purpose and on like conditions as for the conveyance heretofore made. Carried.” •
No conveyances or other writings were ever executed by the city in pursuance of either of the above-quoted resolutions. The board of school directors entered upon the grounds designated “Seminary Place” and erected thereon a school building at a cost, as alleged in the defendant’s answer, of about ten thousand dollars. This building is indicated by the figure drawn within the dotted lines in the plat. The fact of the erection of this school building was admitted in the agreed statement, but the time of its erection was not set forth in the statement. The time was alleged in the answer to have been the latter part of 1867, and the case was discussed before us upon the assumption of that being the correct time, and we shall therefore accordingly consider it correct. The value of the school building erected, while alleged in the petition, was not set forth in the agreed statement. This, perhaps, is immaterial. It must be assumed, in the light of other agreed facts, to have been sufficiently valuable to evidence the expenditure of a substantial sum of money, and to evidence in a substantial manner claims of possessory right. The new school building, the erection of which the defendant enjoined, will cover a greater area of ground than the old school building. As to its exact location the language of the agreed statement is peculiar. It is either contradictory or ambiguous. It says: “Such new building will be erected partly if not wholly within said dotted lines, and partly within the tracts described in said resolution.” The dotted lines are the lines of the irregularly shaped tract marked “Seminary Place.” To say that the building will be erected partly if not wholly within such lines and partly elsewhere affords no very satisfactory idea of its proposed location. Since the city brought the injunction suit the board of education purchased a site for the high school, and has nearly completed the construction of a high-school building thereon. Previous to the date of any of the matters hereinbefore mentioned the association called the Wyandotte City Company made an entry upon its records as follows:
“Wyandotte, April 18,1857. — Association met pursuant to adjournment. • Reading minutes of the last meeting dispensed with. Members present — Silas Armstrong, Joel Walker, Isaiah Walker, and Thomas H. Swope. It was moved and carried that the park, including the cemetery, be called Huron Place. Moved and carried that the church lot of the southwest corner of Huron Place be deeded to the Methodist Church South, as applied for by the Rev. Mr. Scarritt, on conditions to be attached. (Signed)
Thomas H. Swope, Secretary pro tem.”
The above are all of the agreed facts to which it is necessary to advert. In our opinion they show that the court below was in error in refusing the affirmative relief asked by the plaintiff in error and in enjoining it from the erection of its' school building upon the disputed tract. The question is, Was there sufficient evidence of a dedication by the Wyandotte City Cc nip any of the tract in dispute for seminary purposes? The case of Comm’rs of Miami Co. v. Wilgus, 42 Kan. 457, 22 Pac. 615, in its facts is so nearly like the present case as to constitute sufficient authority without looking beyond our own decisions, and without undertaking to reason from general principles. In that case a town company had filed a plat, designating on it a tract as “ Seminary Square.” After the lapse of about twenty years the town company assumed to convey this square. It was held, however, that the deed passed no title ; that the filing of the plat by the town company designating the tract as “Seminary Square” sufficiently evidenced an irrevocable dedication to the public for seminary purposes. The case before us is stronger than that one. In that case the tract dedicated had not been entered upon and used for seminary purposes. In this one the tract was entered upon and improved and used for school purposes.
The only question that could arise, and that question has not been raised, is whether the dedication for seminary purposes means for public-school purposes: We think it does. In the case of Comm’rs of Miami Co. v. Wilgus, supra, it was remarked : “A seminary is certainly such a public institution that the public may take charge of and operate the same. See our constitution and laws relating to schools and institutions of learning.” In the case of Chegaray v. Jenkins, 5 N. Y. 378, it was said that “a seminary of learning is a school, and a school is a seminary of learning.” In the case of Curling’s Administrators v. Curling’s Heirs, 8 Dana (Ky.) 38, 33 Am. Dec. 475, it is held that “‘a devise to a public seminary is a valid charity/ and see the definition of the word ‘seminary ’ in any of the dictionaries.” It cannot be claimed that the dedication for seminary puposes was a dedication to a private or denominational school of learning, because, if so, to what school or in the interest of what denomination was the dedication made ? It will be observed that the tract designated on the plat for seminary purposes is a part of that which in the memorandum indorsed on the plat was designated as “public grounds.” This is conclusive evidence that the seminary purposes contemplated by the donors were to be public-school and not private- or denominational-school purposes.
In order to trace the history of the tract of ground represented by the above plat, and to show as to it the passing of a somewhat general and indefinite intention of the original proprietors into one of specific and settled character, it will be important to note the action taken by such proprietors at several times, as evidenced by some of the matters above quoted. It would seem that by the minutes of the town-site company dated April 18, 1857, the tract of ground now called “Huron Place” had been intended as a park, because on that day it was ordered that “the park, including the cemetery, be called Huron Place.” How much ground was covered by the tract theretofore called “the park,” and thereafter to be called “Huron Place,” was not shown. Presumptively it covered the entire square — not only that which was designed for general public purposes but also that which had been set apart or was intended to be set apart for specific public purposes. The cemetery grounds, which had theretofore been included under the designation “park,” were still to be included under the new name of “place,” and a certain corner of the old “park,” or new “place,” was to be given to the Methodist Church South. It is fair, therefore, to assume that the entire square, including those portions of' it dedicated to special public purposes, was to be designated as “Huron Place.” In 1859 a town-site plat was filed. On this plat Huron . Place was listed under the head of “Public Grounds,” j ’ ^excepting the cemetery and lots on the four corners dedicated to church purposes. This memorandum of f public grounds made no exception of any portion of Huron Place for school purposes, but the plat itself made such exception by noting the irregularly shaped tract before spoken of as “Seminary Place.” Now, seminary or school purposes are public purposes in the most emphatic and significant sense, and it was entirely proper for the donors to omit under the designation “Public Grounds” that portion designed for school purposes. Had they put Seminary Place in the list of exceptions out of the public grounds, as they did the cemetery and church lots, they would have contradicted themselves in meaning and would have confused every one as to their real intention. It would, of course, have been proper for them to have noted, under the list of public grounds, that portion of Karon Place which they designed for seminary purposes. This, however, they did, but in another way ; they did it by indicating it on the plat and calling it “Seminary Place.”
We do not attach importance to the petitions of the school authorities for the allotment and conveyance of portions of the disputed tract for school purposes, nor the resolutions of the city council granting the prayer of such petitions. They did, however, evidence a recognition by the city authorities of the fact that some of these grounds were rightfully devoted to school purposes, but in our judgment the school authorities did not by such action acquire any rights they did not already possess, nor did the city lose any rights which up to that time it possessed. The right to lands dedicated for public purposes is acquired from the dedicators and such right is likewise limited in territorial extent by the boundaries of the donors’ grant. In this case the donors granted nothing but the tract called “Seminary Place.” The adjoining grounds, although donated by the same persons, were dedicated to other public purposes. For what public purposes the adjoining grounds were dedicated is immaterial. It is sufficient that they were not dedicated to seminary purposes. A dedication to such purposes of a particular portion of the general tract implies that no other portion of such general tract was intended for the one specific public purpose ; hence, the city authorities, in so far as they attempted to grant portions of Huron Place outside the particular tract designated as “Seminary Place,” undertook that which they could not rightfully do, viz., to divert the donors’ grant to uses other than those designed by them.
“After a complete dedication of lands to public uses has been made, neither the dedicator nor the municipal authorities may apply them to other uses. It is only by the assent of all those for whose benefit the dedication was made — that is, the local lotowners whose private interests are affected, and the town authorities, as representatives of the public interests— that any change can be made.” (9 A. & E. Encycl. of L., 2d ed., 80.)
One V. J. Lane, who was made a party to the action in the court below, testified that he had resided in Wyandotte county since 1857 ; that he was acquainted with the members of the Wyandotte City Company; that they repeatedly stated to him that they had dedicated Huron Place for public use as a park, and never stated that they had dedicated any part of it for school purposes. He further testified that he had purchased property abutting on one of the streets bounding Huron Place, and that his principal reason for doing so was that Huron Place was a park. This evidence was introduced for the purpose of showing that private rights had been acquired upon the faith of the dedication of Huron Place as a public park, and that such rights would be impaired by its diversion to other purposes. We do not stop now to inquire whether evidence of conversations with the original donors was admissible. It is sufficient to say again that the intention of the donors of the disputed tract of ground to devote such tract to school purposes, as evidenced by their public and recorded acts, is, and at the time testified to by Mr. Lane was, manifest.
The judgment of the court below is reversed, with directions to ascertain the location and boundaries of the tract designated as “ Seminary Place,” and to refuse the injunction restraining the erection of the school building on such tract, and to quiet the title of the plaintiff in error thereto as against the defendant in error. | [
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Error from Greenwood district court.
Affirmed. | [
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Error from court of appeals, northern department.
Affirmed. | [
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Opinion by
Green, C.:
This was an action brought by T. M. Gill against the Missouri Pacific Eailway Company, to recover damages for injuries to a mare owned by the .former on October 20, 1886. The plaintiff alleged the failure of the railway company to fence its railroad, and also negligence upon the part of the company in sounding the whistle, by reason of which the mare of the plaintiff became frightened and ran against a barbed-wire fence, and was injured. It seems from the evidence that the mare, with four other horses, was grazing north of the railroad track, in a pasture which lies principally on the south side of the right-of-way, but also extends a short distance north of it, leaving only a narrow strip between the railroad and the fence on the north side of the pasture. There was a young hedge inclosing the pasture, with a barbed-wire fence on the inside of it, and when the railroad was constructed through the north side of the pasture the company made a barbed-wire fence from the northeast corner of the pasture south to the track. The strip north of the track was in blue-grass, and as the horses were grazing there, near the track, a construction train approached from the west, and the engineer sounded the whistle, the first blast of which Scared the animals, and they all ran eastwardly, the mare in the lead, broke through the barbed-wire fence forming the east line of the pasture north of the track, and she was thereby injured.
The case was first tried before a justice of the peace, and then appealed to the district court, and each time resulted in a judgment for the plaintiff. In the district court the plaintiff recovered a verdict for $100 damages and $35 attorney’s fees. The railroad company brings the case here, and insists that there is neither common-law nor statutory liability.
The verdict and judgment of the district court are based upon the theory that there was a statutory liability, and it is unnecessary for us to discuss the question of the common-law liability, if the judgment can be upheld upon the theory upon which this case was tried and determined.
The first claim made is, that there was no legal demand made upon the railroad company 30 days before the suit was brought.
The plaintiff below commenced his suit on the 22d day of March, 1888. He testified that he served notice on the agent of the company on the 9th day of January, 1888. It is true that when he offered a copy of the demand in evidence it was rejected, because it was not the best evidence. He had without objection testified that he had given the company a written notice, and afterward testified that he made an oral demand for his damages upon the ticket agent. The jury, in answering the special questions, found that the plaintiff had made a demand in writing, as well as an oral or verbal demand. It is now insisted by the plaintiff in error that, because the court excluded the copy of the written demand because it was not the best evidence, the answers of the jury to the special questions in regard to the demand were contradictory, and the court should for that reason have granted a new trial. There was evidence that the plaintiff made both a written and verbal demand upon the agent of the railroad company more than 30 days before the commencement of the action. The jury having found that a demand had been made, it is immaterial whether it was in writing or not. Either is sufficient. (C. B. U. P. Rld. Co. v. Butman, 22 Kas. 640.)
It is further argued, that the essential facts do not justify a recovery in this case; that the animal was not injured in operating the railroad, and as a direct result of such operation. The jury found that the mare was grazing in the pasture on the railroad company’s right-of-way, and that she was injured several feet north of the track, by running into a barbed-wire fence which ran at right angles with the railroad from a culvert to the fence on the north side of the pasture.
While the precise question has never been passed upon by this court, it has been held, in the case of A. T. & S. F. Rld. Co. v. Jones, 20 Kas. 527, that where an animal got on to the railroad track at a place where it should have been but was not fenced, and was frightened by an approaching train and fled along the track until a bridge was reached, and was either thrown forward or jumped onto the bridge and fell between the ties and was thus fatally injured, the railroad company was liable under the statute. In delivering the opinion of the court, Judge Brewer said:
“Again, the liability is not limited to cases where the animal is killed or wounded by the ‘engine or cars’ — which might perhaps be construed as referring solely to actual collision — but extends to those cases where the animal is injured ‘ in any other manner whatever in operating such railway.’ This last clause is very broad, and clearly covers a case like the present. Whether the engine struck the mare or not, the in jury resulted directly from the operating of the railway. Of course, the mere fact that she was injured on the track would not be conclusive. An injury might happen from the act of strangers, or the wanton acts of employés of the road, outside of the scope of their employment. If a brakeman, seeing a mare on the track, had drawn his revolver and shot her in mere wantonness, the company would not be liable. Such act might be done while operating the railway, but not in operating it. It is like any other wanton and willful act of employés outside the scope of their employment, casting no liability on any one but themselves. But when the injury occurs in the actual operating of the railway, and as the direct result of such operating, then the statute applies. Here the company was running one of its trains. An animal is on the track, permitted to come on through the lack of a fence along the track at a place where it ought to be fenced. The approaching train frightens it, it flees along the track to avoid the danger, and in that flight either falls or is thrown by the engine into the open spaces of a tie bridge, and is injured. Clearly, the train acting upon the animal’s sense of fear, and the open space of the bridge, are the direct causes of the injury. It results from and occurs in the operating of the railroad.”
In this case, instead of being on the track, the mare was on the right-of-way, became frightened by the sound of the whistle, ran along the right-of-way by the side of the track, and into the barbed-wire fence.
We think, upon the authority of the above case, the company is liable, and the judgment of the district court should be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
There were two wholesale lumber companies, each named the Fleming & Ayerst Company. One of them was located at Chicago, 111., the other at Seattle, Wash. Evans & Thomas, retail lumber dealers, owed the Chicago company for a bill of lumber. They purchased a draft payable to the order of the Fleming & Ayerst Company without designating which one, and mailed it by letter addressed to the one at Chicago, but without designating its street or office number. They knew this number. It never reached the company to which it was addressed, so its officers testified. In some unexplained way the draft reached the Fleming & Ayerst Company of Seattle, and was appropriated by that concern. The Chicago company brought suit upon the indebtedness due to it, and the defense was payment. A verdict and judgment were rendered for the defendants, and the plaintiff prosecuted error to the court of appeals. That court reversed the judgment of the district court, the syllabus of the opinion being as follows:
“A. enclosed a draft in an envelope which was'properly stamped, and addressed to B. at Chicago, 111. A. knew the street and number of B., but did not, so far as the evidence shows, place any address upon the envelope but A.’s name and the words ‘Chicago, 111.’ Held, that the letter was not so addressed that a jury would be warranted in drawing an inference that it was actually received by B.”
This was not the case of a lost letter — lost through, an improper, incomplete or illegible address. The letter was not lost, because its contents turned up in the hands of the Seattle company. It became, therefore, a question whether the defendant’s bookkeeper addressed the letter to Chicago, as he swears he did, or addressed it to Seattle, which the fact that the draft fell into the hands of the Seattle company would seem to indicate. There is no presumption that a letter addressed to Chicago, even though improper, incomplete or illegible as to the name of the addressee, would be sent to Seattle or to any place other than to Chicago ; hence the whole question was, Did the bookkeeper address the letter to Chicago, as he swears he did, or to Seattle, as he swears he did not, but as it may be inferred he did from the draft coming into the hands of the Seattle company ? There was nothing in the failure to complete the address of the letter to ¡the Chicago company by indorsing thereon its street or office number to cause it to go to Seattle. If it was addressed to Chicago, then the jury were justified in concluding that it reached the hands of the proper company, but that, through the mistake or fraud of that company, it was sent by it to Seattle, because, as stated before, it was not lost. The jury believed the defendant’s evidence that the letter was addressed to Chicago, rather than the presumption that it was addressed to Seattle, growing out of the fact that the draft turned up in the hands of the Seattle company. This was a determination of a disputed question of fact, and was conclusive upon the court of appeals as it is conclusive upon us.
No question was raised before us as to whether the bank draft was a proper medium of payment nor as to whether the mails were a proper medium of transmission.
The judgment of the court of appeals is reversed and that of the district court is affirmed. | [
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The opinion of the court was delivered by
Doster, C. J. :
This was an action of mandamus brought by defendants in error Whitaker and Thomas, as plaintiffs, against J. H. Ellis, a justice of the peace, as defendant, to compel the latter, as such justice, to grant a change of venue. Whitaker and Thomas were defendants in an action for the recovery of money, pending before Ellis as justice of the peace. They applied, under the statute providing for changes of venue from justices, for an order sending the case to another justice for trial. The application was denied. The case then proceeded to judgment, to the issuance of an execution, and to a sale of the property in satisfaction of the judgment. After all these pro ceedings were had the application for mandamus was made. It was granted, and from the order granting it error has been prosecuted to this court.
Section 42 of chapter 103, General Statutes of 1897 (Gen. Stat. 1899, §5114), requiring justices of the peace to grant changes of venue when properly applied for, is mandatory. (Herbert v. Beathard, 26 Kan. 746.) Hence the justice - should have changed the venue of the case, if the application therefor was properly made. However, the application was denied, and the question is whether its allowance will be compelled by mandamus after the time at which it could be made effective for the purposes of the party applying for it. It is fundamental that mandamus will not be granted when, if issued, it would prove unavailing. (High, Ext. Leg. Rem. §14.) In the case under consideration, a change of venue at the time the writ of mandamus was applied for and granted would have been unavailing, unless it be that the demand for the change deprived the justice of power to render judgment and left him with no further jurisdiction over the case than to make the order of removal. The justice, however, did not lose jurisdiction over the case. His ruling in denial of the application was error, assuming that such application was properly made, but his judgment thereafter rendered was not a nullity. It was voidable only. This has already been decided in Barnhart & Brother v. Davis, 30 Kan. 520, 2 Pac. 633.
The judgment of the court below was erroneous, and. is reversed, with directions to deny the writ. | [
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