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The opinion of the court was delivered by
Cunningham, J.:
Plaintiff* in error held a fire insurance policy for $400 issued by the defendant company. This policy was payable, in case of loss, to a mortgagee, as his interest might appear. The property was destroyed by fire, and the insurance company settled with the mortgagee, the amount paid being less than the amount of insurance. This action was brought by the owner of the property to recover the balance due under the policy.
The petition, besides alleging the issuance of the policy and the loss-of the property, set up the payment of a portion of the insurance money to the mortgagee, and asked judgment for the balance. The insurance company answered with a general denial, and also pleaded a forfeiture of the policy because of a violation of the provision that in case ‘ ‘ the interest of the insured be or become other than the entire unconditional and sole ownership of the property,” such insurance shall be void and cease, in this, that the insured had, by deed executed and delivered, transferred the property, setting out a copy of the deed. For the purpose of avoiding this forfeiture, plaintiff replied that the deed set out was executed to his sister without her knowledge, consent, or procurement; that a “practical joker” reported to him that a certain young lady was about to bring'an action against him for damages arising from a breach of promise to marry ; that some six weeks thereafter, and after the execution of the deed, and before the occurrence of the fire, he learned that this report was entirely without foundation, when he informed his sister of the conveyance which he had made to her and procured her to reconvey the property to him; that he had been in continuous possession of the property. Neither petition nor reply made any claim that the company had knowledge of this conveyance when it made payment to the mortgagee, and hence no waiver of the forfeiture created by such conveyance would follow such payment. Upon the trial, plaintiff introduced evidence sustaining the allegations of his petition, but introduced none to sustain the allegations of his reply. Defendant’s demurrer to the evidence was sustained by the court below.
This was not error. The allegations of defendant’s answer, if true, were sufficient to create a forfeiture under the terms of the policy. Payment by the company of a portion of the policy to the mortgagee, while sufficient to waive the making of proof of loss, would not waive a forfeiture created by an alienation without notice to the company of such alienation. But admitting that the facts pleaded by the plaintiff is his reply were sufficient to avoid this forfeiture, the burden was upon him to prove them, and in default of this he could not recover. Plaintiff’s reply contained no denial of defendant’s answer ; it was simply a pleading of facts in avoidance thereof. This court held, in Meeh v. Railway Co., 61 Kan. 630, 60 Pac. 319 :
“An allegation in an answer is to be taken as true when the plaintiff, in reply, pleads in confession and avoidance, and in such case the burden of proof rests on the plaintiff, in establishing his cause of action, to prove the matters so pleaded in the reply.”
This the plaintiff having failed to do, he failed in his proof, and the demurrer was properly sustained.
The judgment of the court below will be affirmed,
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The assignments of error in the petition in error filed in this court are as follows:
1. That the court erred in admitting evidence of the defendants in error, to which plaintiffs in error at the time objected.
2. That the court erred in ruling out the evidence offered by the plaintiffs in error on the trial of said action.
3. That the judgment was given for the defendants in error, when it ought to have been given for the plaintiffs in error, according to the law of the land.
It will be seen that the ruling of the trial court on the mo tion for a new trial is not assigned as error, and hence this ease falls within the ruling in the cases of Carson v. Funk, 27 Kas. 524, and Clark v. Schnur, 40 id. 72. It is held in -these cases:
“Where in an assignment of errors, the only errors complained of relate to matters occurring on the trial, for which ■ a new trial was prayed, but the action of the court in overruling the motion is not assigned for error, no question is properly raised in this court.”
In this case the motion for a new trial was based upon the 'following causes: Because the decision was contrary to the evidence, and contrary to the law; because the judgment was not sustained by sufficient.evidence; and because of errors of law occurring during the trial, and excepted to at the time. 'The motion was overruled and all exceptions were saved, but :the ruling on the motion is not assigned as error in the peti■-tion filed in this court.
The only question, then, made in the briefs of counsel for ■plaintiffs in error, that we can consider in this condition of the record, is, whether the pleadings authorized such a judgment as was rendered in the action. Briefly summarized, the petition seeks to have nine certain quitclaim deeds executed by one Gordis R. Cobleigh and wife to the plaintiff in error, W. E. Stone, construed as mortgages to secure the sum of $15,000, and to foreclose the same. The lands conveyed are situated in the counties of Cowley, Ottawa, Lincoln. Russell, Ellis, Rush, Barton, Elk, and Rooks. These deeds were executed on the 10th day of January, 1884, but not recorded until about the 1st day of September following. About the 23d day of September a written instrument was executed, showing that these conveyances were made, executed and delivered as security for the sum of $15,000. These lands in fact belonged to Day Bros. & Co., a mercantile firm in Peoria, Illinois, but were held in the name of Cobleigh, who was a member of the firm. W. E. Stone was the cashier of the First National Bank of Peoria, and these conveyances and the subsequent written defeasance were executed to him as cashier, and were for the benefit of the bank. At the time of these conveyances the lands granted were incumbered by some prior mortgages and tax liens that were paid off by the First National Bank of Peoria, and it is sought in the petition to recover as against all the parties liable, the amount of these-payments.
The defendants in error, the Nonotuck Silk Co., Merrick Thread Co., King & Fields, Rollins, Shaw & Co., and E. SJaffray & Co., were creditors of Day Bros. & Co., who had commenced suits in attachment in several counties in this state, had attached these lands as the property of Day Bros. & Co., obtained judgment against that firm, and had caused these lands to be sold at sheriff’s sale in satisfaction of their respective judgments. The purchasers are parties to this action, and are among the numerous defendants in error. Their answers allege substantially that these conveyances were made-by Day Bros. & Co., and received by the First National Bank of Peoria, to be held by said bank in trust for Day Bros. & Co. until they could effect some settlement or compromise-with their creditors; that at the time of the execution and delivery of the conveyances, Day Bros. & Co. were in an insolvent and failing-condition, and that this was well known-, to the bank; that they were not delivered to the bank to secure-an existing bona fide indebtedness, but were executed and delivered to and accepted by the bank solely for the purpose of preventing the creditors of Day Bros. & Co. from subjecting-them to the payment of their claims against that firm. This-composes the substance of the material allegations in the pleadings, and the various statements in detail are definite- and certain enough to make plain the issue as to whether the-bank held these lands in good faith to secure an indebtedness,, or held them as a part of a scheme to assist Day Bros. & Coin an attempt to secure a favorable settlement with their creditors, or to prevent them from being subjected to the payment of the debts of Day Bros. & Co. The trial court gave the plaintiffs in error judgment on the prior mortgages, and a judgment against Day Bros. & Co. for the sum of $15,000, and found that these conveyances were made by Day Bros. & Co., and were received and accepted by Stone and the bank, for the purpose and with the intention on the part of each of them to hinder and delay the creditors of Day Bros. & Co., and are fraudulent and void, and adjudged that said conveyances be vacated and set aside as to the defendants named.
We have no hesitation in saying that the averments in the pleadings amply authorize the judgment rendered. We have not examined the evidence nor considered any one of the many questions arising on the trial, or the other important questions discussed by counsel in their well-prepared briefs, but have confined ourselves strictly to the examination of the only question that we think is proper to consider in the present condition of the record. There is but one course open for us to pursue, and that is to recommend an affirmance of the judgment.
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 is an action for an accounting between the parties hereto, and an adjustment of the rights of each, growing out of a partnership transaction in real estate.
On July 19, 1878, a 13-acre tract of land, now constituting a part of Kansas City, was purchased by these parties from Silas A. Barnett for $1,500, with a view of subdividing it into lots, blocks, streets and alleys, and selling the same for profit. S. N. Simpson found the investment, made the preliminary examination of the land and of its availability for subdivision and sale, discovered the owner, and ascertained the price and terms upon which it could be purchased. He thereupon presented the matter to Tenney, who agreed to furnish the $1,500 with which to make the purchase, he to be reimbursed out of the proceeds of sales. Simpson was to subdivide and put the tract into a salable condition and advertise and sell the same, and the proceeds of sale, after paying the purchase-price and expenses of sales, were to be divided between them, Tenney taking one-fourth and Simpson three-fourths. The legal title of the land was to be taken in the name of Tenney, who advanced the purchase-money, who was to hold the same in trust for the benefit of all the parties and execute conveyances for such portions as should be sold, the proceeds to be divided in the proportion mentioned. The land was conveyed by the owner to Tenney in accordance with the agreement, and the Simpsons then proceeded to survey and subdivide it and to advertise and sell the same. Subsequently, and on August 5, 1878, the parties reduced their agreements to writing and duly signed the same. The following is a copy of the written contract: ■
“contract.
“ Wm. C. Tenney and Elizabeth E. Tenney his wife, parties of the first part, Kate L. Simpson and S. N. Simpson, her husband, agent, parties of the second part. Consideration by parties of the first part, paying fifteen hundred dollars to Silas A. Barnett for thirteen acres of land in Wyandotte, commencing at the northeast corner of the southwest quarter of the southwest quarter of sec. 10, tp. 11 S., R. 25 E., in Wyandotte county, Kansas, thence east 28 poles, thence north 30 and 60-100 poles, thence west 68 poles, thence north 30 and 60-100 poles, thence east 40 poles, to the beginning; for which payment for which land parties of the first part receive the deed for the benefit of parties of the first and second parts, and according to the terms of this agreement; also making out all papers, receiving, paying and accounting for all moneys and executing deeds.
Consideration by parties of the second part, services in preliminary, examination of land, arranging in advance for sales, and sales made and to be made by them.
Parties of the first part to receive one-fourth of the net profits after being reimbursed the fifteen hundred dollars, for which no interest is to be charged by parties of the first part; and parties of the second part three-fourths of net profits.
Parties of the second • part, moreover, to receive from parties of the first part one-tenth of net receipts monthly, commencing July 19th, 1878, as an advance on their three-fourths of profits. Sales to be made only by mutual consent of parties after party of the first part has been reimbursed for the fifteen hundred dollars advanced. All interest growing out of sales, notes, moneys, or property, after paying fifteen hundred dollars to parties of the first part and necessary expenses, shall be divided as above, neither party charging for time. Land remaining unsold after one year from date to be divided by agreement between the parties in the proportion above named. If the parties are unable to agree, they shall leave the decision to three intelligent, fair-minded referees to be agreed upon by the parties.
“Done August 5,1878, and signed by us, the parties of the first and second parts. Wm. C. Tenney.
Elizabeth E. Tenney,
By her attorney in fact,
Wm. C. Tenney.
Kate L. Simpson.
S. N. Simpson.”
Afterward a large number of the lots into which the tract was subdivided were sold by mutual consent of the parties, and conveyances were made by the Tenneys to the purchasers. The proceeds arising from the sales were devoted to paying the cost of the land and the expenses incurred, and the balance was divided between the parties, three-fourths to the plaintiffs and one-fourth to the defendants. Within about a year from the time of purchase the profits derived from the sales were sufficient to reimburse the Tenneys for the money they had advanced, but a division of the lands remaining unsold was not then asked for by either party. They continued to make sales on partnership acccount until the fall of 1883, and the investment proved to be an exceedingly profitable one. During that time several settlements were made, and the accrued profits were apportioned according to the rule stated in the contract. The last accounting and settlement made between the parties was in June, 1883, and after that a number of sales and conveyances were made before the dispute arose which ended in the present litigation. Later in that year, the defendants refused to divide the accumulated profits, or to further carry out their contract. They claimed that they were the exclusive owners of the property, and that plaintiffs had no interest in it and no further right to participate in the profits arising from its sale. On January 21,1884, this action was begun, and a trial was had in September, 1886, and the court, after holding the case under advisement, rendered judgment on April 16, 1887, “in favor of said defendants and against said plaintiffs upon plaintiffs’ cause of action and for costs.”
This is one of a series of real-estate transactions between these parties, and is quite similar to cases 'which we have already examined and decided. (Tenney v. Simpson, 37 Kas. 353; and Tenney v. Simpson, 37 id. 579.) The purpose and plan of this enterprise are substantially the same as those upon which the reported cases are founded. Together they purchased land to be sold for profit and not as a permanent investment. Simpson searched out the land and its owner, made preliminary examination, and, needing a partner who would advance the money with which to make the purchase, he applied to Tenney, who readily appreciated and entered into the advantageous enterprise. The skill and service of Simpson were placed against the money of Tenney. As Tenney advanced the purchase-price, the title of the property was placed in him, who was to hold it in trust for all the owners, and the nature and terms of the trust are so clearly expressed in the written contract as to put them beyond all doubt or dispute. This transaction is very similar to the cases passed upon, except as to some of the details; and within the principles there announced it follows that the judgment in this case is erroneous. As the same general principles must control in the present case, it is unnecessary to repeat or amplify the argument made in the two cited cases. Upon the evidence, the plaintiffs were clearly entitled to the relief which they sought. The purchase of the land for the purpose and upon the terms stated is not denied. The execution of the contract is conceded. The making of sales and conveyances of the lots by mutual consent in accordance with the stipulations of the contract, continuing over a period of five years after engaging in the enterprise, is admitted. It is agreed that the proceeds, of the sales have been applied as the contract prescribes, and that frequent accountings of the sales, receipts and expenses have been made, and the profits settled and divided by the same rule; that in the latter part of 1883 the defendants refused to make further sales of the property, to further account for the partnership funds in their hands, and to further carry out the contract, is well established. After recognizing and carrying out the contract for more than five years, and after the lots remaining unsold have become exceedingly valuable, the defendants now seek to repudiate the contract and to deny its obligations for several reasons, and one is the inadequacy of the consideration paid by the plaintiffs. As the contract is in writing and duly signed by the parties, it imports a consideration. Aside from that, it stated that the consideration paid by the plaintiffs was “services in preliminary examination of land, arranging in advance for sales, and sales made and to be made by them.” And this is certainly sufficient to support the contract. Looking back to the preliminary action and arrangements preceding the execution of the written contract, as the court properly may to determine the relation of the parties and what was involved in the consideration stated, it is easily seen that a sufficient consideration was contributed by the plaintiffs to sustain the contract. Neither can the defendants repudiate the contract and retain the property jointly owned by the partners because of alleged fraud or fraudulent representations made when the contract was executed. It is claimed that Simpson represented to Tenney that he had procured pui’chasers for thirty of the lots at $50 per lot, and that Tenney, relying on these representations, was induced to join Simpson in the enterprise, but that as a matter of fact the plaintiffs had not secured purchasers and no sales had been made. Simpson did state, while negotiating with Tenney, that he had shown the land to several parties, who had agreed to buy about thirty of the lots in case the land was purchased, and he gave Tenney the names of the proposed purchasers. He further stated that he thought there would be no difficulty in selling a sufficient number of lots within a year to reimburse Tenney for the $1,500 advanced. The testimony shows that Simpson had negotiated with parties, some of whom became purchasers and others did not. In the nature of things, contracts for the sale of land to these parties could not be made, for the land had not yet been purchased, and until Tenney and Simpson arrived at an agreement it was not certain that it would be purchased. Simpson had taken the parties upon the land and shown it to them, and he stated to Tenney that in his opinion they would purchase the lots if a title could be given; and the fact that they failed to do as was expected of them does not establish that the statements made were untrue, or that there was any fraud on the part of the plaintiffs. However, if all claimed by the defendants in this respect was true, their subsequent action would constitute a complete waiver. According to their testimony they learned within a month after the contract was made that all of these parties spoken of by Simpson would not purchase lots; and with this knowledge they proceeded, and permitted the plaintiffs to proceed, to carry out the contract, and for more than five years after that time they continued to carry on the business without making any claim of fraud or deception. From the testimony we are inclined to think that the statements made by Simpson did not amount to fraud against Tenney; but however that may be, the defendants, having permitted the plaintiffs to conduct the business for so long a time upon the faith of the agreement, cannot now claim that the contract is invalid. It was to the advantage of the partnership that no more sales were made at $50 per lot, as the price was soon advanced, and even some of those that were sold at that price were repurchased by the partnership and sold again for a greater sum.
The defense of non-performance is equally groundless. The interest of the plaintiffs in the land held jointly with the defendants was not subject to forfeiture- for a failure to sell a certain number of lots within a certain time, nor for any other reason. The proceeds of sales made during the first year were about sufficient to reimburse the defendants for what they had advanced; and even if that had been a condition of the contract and the moneys received had been insufficient to reimburse the defendants, the failure of the plaintiffs would have been waived by the subsequent conduct of the defendants. The case is not to be treated as though Tenney, owning the lots, had sold the same to plaintiffs on certain conditions, who were now seeking specific performance. The lots were owned by all, and not by Tenney alone. They were merely partners in the transaction, and the interest of each and the terms of partnership were clearly defined in the written contract. There was no provision in that contract woui(j operate to extinguish the interest of any of the partners on account of a failure to accomplish all that was anticipated, and certainly nothing to deprive any partner of the right to an accounting and closing-up of the partnership affairs, and the distribution of the assets according to the agreement and the rights of each party, whatever they might be. This was the purpose of the action, and this the plaintiffs were entitled to.
We have examined all the points made by the defendants, but in view of what has been said and what has been decided in former cases, further discussion is needless. Although defendants complain bitterly that they were led into the investment by misrepresentation of the plaintiffs, and that it resulted in great injustice to them, it would seem, however, that there is little reason for the complaint. It has turned out that the plaintiffs induced them to enter into a most successful enterprise. Between $7,000 and $8,000 was obtained from sales made, and counsel for defendants stated at the argument that the property remaining unsold was worth between $50,000 and $60,000. The plaintiffs may have derived more benefit than the defendants in proportion to the consideration contributed by each; but that was a matter of agreement between them, and one-fourth of the amounts mentioned is certainly a liberal margin of profit on a $1,500 investment.
The judgment of the district court must be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The principal questions for decision in this case are: First, is the Southern Kansas & Panhandle Eailroad Company an existing corporation of the state ? Second, if an existing corporation, was the railroad which it is admitted was built in Clark county constructed by said railroad company ? Third, if constructed by said railroad company, then was the road constructed in accordance with the terms and conditions of the proposition under which the subscription to the capital stock of the company was made? Fourth, has said company by any transfer of its road discharged or released Clark county from the payment of its subscription to the capital stock of the company ?
The first two questions are easily answered. The Southern Kansas & Panhandle Eailroad Company filed its charter on the 28th day of July, 1886. The directors of the company appointed for the first year were E. M. Hewins, of Cedarvale,. Kas.; Geo. D. Thompson, Harper, Kas.; Geo. W. Findley, Fort Scott, Kas.; John P. Jones, Kingman, Kas.; Wm. M. Whitelaw, Kingman, Kas.; S. S. Baker, Kingman, Kas.; F. E. Gammon, Topeka, Kas.; Arthur Gorham, Kinsley, Kas.; A. Watson, Greensburg, Kas. The subscription of Clark county to the capital stock of the company was made September 24, 1886, and on the same day W. B. Strong subr scribed for 3,000 shares. Subsequently each director subscribed for one share. On February 4, 1887, E. M. Hewins was elected president of the company, A. Watson, vice president; Geo. D. Thompson, secretary; and John P. Jones, treasurer. At that meeting by-laws were adopted for the company. On October 20,1887, at a special meeting of the directors of the company, held at Topeka, a contract was entered into with the Chicago, Kansas & Western Eailroad Company for the purpose of procuring the necessary funds to build the company’s line of railroad in Clark county. It also appears from the proceedings as recorded in the office of the secretary of the company, that the board of directors adopted the line and right-of-way of the road of the company through Clark county, as surveyed and reported by A. A. Robinson, as chief engineer, and also approved maps of said survey for filing in the office of the secretary of the interior, in order that the company might obtain the benefits of the act of congress, approved March 3, 1875, entitled “An act granting to railroads right-of-way through the public lands of the United States.” On-the 8th of November, 1888, the officers of the company were W. B. Strong, president; G. F. Parmelee, vice-president; E. Wilder, secretary and treasurer; G. L. Gooding, assistant treasurer; C. S. Tuckerman, assistant secretary; J. T. Whitehead, comptroller and general auditor; A. A. Robinson, general manager and chief engineer; H. C. Clements, auditor.
Under the provisions of the statute, the existence of a corporation dates from the time of the filing of its charter. (Comp. Laws of 1885, ch. 23, §10; Railroad Co. v. Comm’rs of Stafford Co., 36 Kas. 121.) The fact that nearly all of the persons who are the present officers of the SouthT_ 0 __ 1 era Kansas & Jran handle Jttauroad Company are also officers in both the Atchison, Topeka & Santa Fé and the Chicago, Kansas & Western Railroad companies, does not militate against or affect the existence of the former company. (Railroad Co. v. Davis, 34 Kas. 209.) All of the moneys paid and services rendered by the Atchison Company for the Southern Kansas & Panhandle Railroad Company in the construction of its road through Clark county or otherwise, were evidently paid and rendered in anticipation of the subsequent agreement entered into between the Chicago, Kansas & Western Railroad Company and the Southern Kansas & Panhandle Railroad Company for the sale and conveyance of the road for the considerations therein named. The Southern Kansas & Panhandle Railroad Company, however, was and is an independent corporation; the Chicago, Kansas & Western Railroad Company was and is a separate corporation; and the Atchison, Topeka & Santa Fé Railroad Company was and is another corporation. The latter company is the parent company, operating a long line of road in the state, and assisted the construction of the other roads as auxiliaries or feeders. The road in Clark county was constructed in the name of the Southern Kansas & Panhandle Railroad Company, and the title to its right-of-way is in that company. At one time, a right-of-way was condemned in Clark county in the name of the Chicago, Kansas & Western Railroad Company. Subsequently, however, a second condemnation was made in the name of the Southern Kansas & Panhandle Railroad Company. From the evidence presented, it necessarily follows that the Southern Kansas & Panhandle Railroad Company was a legally organized and existing corporation under the laws of the state at the time of the submission of the proposition and subscription to the capital stock of the company by Clark county, and that the railroad subsequently built in that county was constructed by this company.
The next question for consideration is, whether the road was constructed in accordance with the terms and conditions under which the subscription was made. The proposition submitted to the qualified electors for Clark county provided for the issuance of $50,000 of bonds when the road should be completed and in operation, “by lease or otherwise, from a connection with existing lines of road in the State, having direct and continuous connection with the Missouri river to the city of Ashland;” and the proposition further provided, “that the railroad should be completed and in operation, by lease or otherwise, with freight and passenger depots or stations established ready for business, to within three-fourths of one mile of the center of the city of Ashland, in said county of Clark, on or before the 31st day of December, 1887.” The evidence clearly shows that the road was built and completed, with a freight and passenger depot or staready for business, near the city of Ashland, upon the first line established by the company, several days prior to December 31, 1887; that it passed south of the city of Ashland, running east and west on a direct line, and considering the city of Ashland as its corporate limits were when the proposition for taking stock in the company was submitted, and when the subscription of Clark county was made, the road as constructed was a little more than 300 feet outside of the three-fourths of a mile limit. When the road was finished, the boundaries of the city of Ashland had been so extended as to bring the railroad and depot within three-fourths of a mile of the center of the city. After the road had been built upon the first line established near the city of Ashland, it was then ascertained by the company that the road, with its freight and passenger depot, was not within three-fourths of a mile of the geographical center of the city of Ashland as it existed on the date of the subscription, and that possibly objection would be made on that account to the payment of the subscription by the county. Thereupon the company proceeded " at once to change its route for about 1,400 feet, and to construct its road so as to be within the three-fourths-mile limit, and also proceeded to build a new depot more than 300 feet north of the one first located near Ashland. According to the testimony produced on the part of the railroad company, it appears that the line of the road, upon the new route or location, was completed and in operation, with a freight and passenger depot, within three-fourths of a mile of the center of the city of Ashland as originally laid out and platted, on December 31,1887. On behalf of the defendants several witnesses testified that they examined the new or changed track on the first of January, 1888, and that it was then in an unfinished condition, and that passenger and freight trains could not pass around the circle or new track without great difficulty, on account of the curve of the road. While the evidence is conflicting, all of it tends to show that the company was acting in the best of faith, and diligent in the performance of its duties under the terms of the subscription. In order to get to a point within three-fourths of a mile of the center of the original corporate limits, it was necessary to build the road curved in the manner in which it was built. Large sums of money were paid to place the road and depot within the required limit on the last days of December, 1887, and if the citizens and city authorities of Ashland had not interfered the road would have been constructed within the limit in a straight instead of a curved line. The only piece of road complained of is 1,400 feet east and west. Taking all of the evidence together, it seems to us that there was a substantial compliance on the part of the company with the terms of the contract of subscription.
In Brocaw v. Comm’rs of Gibson Co., 73 Ind. 543, the requirement was that the railroad should be completed prior to receiving any money. It was held in the case “ that it was not meant thereby that the road should be perfect in every respect, but that it should be so far - completed that it might be properly and regularly used for the purpose of transferring freight and passengers.” In Freeman v. Matlock, 67 Ind. 99, it was decided “it was not necessary that the road should be perfect and finished in every particular, and its track well ballasted, but that the road should be so far completed on its located and established line that the cars might have been and were run over it'with reasonable regularity.”
Counsel cite the case of Railway Co. v. Thompson, 24 Kas. 170, and claim that the decision is decisive against the plaintiff. In that case, time was expressly made of the essence of the contract. The contract between the Memphis, Kansas & Colorado Railway Company, and the city of Parsons, instead of leaving the manner of construction and the extent of the equipment of the road an open question, distinctly provided in detail how it should be constructed and equipped. It prescribed that the road-bed should have 2,640 ties per mile, the iron for the rails to be of good quality and to weigh not less than 30 pounds per yard, with fish-plate joints; the bridges to be all constructed in a good and substantial manner; the bridge over the Neosho river to be a Howe truss not less than 100 feet span, with proper approaches; the maximum grade not to exceed 60 feet to the mile, etc. It was admitted in the case that from the Neosho river to Parsons — a distance of nine miles — the road was unfinished; that it was not fully tied or spiked; and that the bridge over the Neosho river was incomplete. It was also shown that the grade of the road did not comply with the specifications. Within the terms of the contract, it was properly held that the road was not completed and in operation to the city of Parsons within the time prescribed. We agree with all decided in Railway v. Thompson, supra; but the proposition submitted to the tax-payers of Clark county differed so materially from the proposition submitted to the tax-payers of thepcity of Parsons, that the decision cited does not govern in this case. Counsel claim also, that the charter of the railroad company was a part of the proposition submitted to the tax-payers of Clark county, and that the road which was constructed in that county is not the road embraced within the terms of the charter. The line of this road as constructed in Clark county is described as follows: “ Commencing at the east line of said county, thence running westerly to the town of Ashland, thence through Ashland southwesterly to the town of Englewood, in said county of Clark.” The lines of road defined in the charter are as follows:
“No. 1. Beginning at the most desirable point at the east or north line of Pratt county, thence in a westerly direction, by the most available route, through the counties of Pratt, Kiowa, Comanche, Ford, Clark, Meade, Seward, Stevens, and Morton, to the west line of the state of Kansas.
“No. 2. Leaving the said line No. 1 at the most available route, in a southerly direction, through the counties of Kiowa, Comanche, and Clark, to the south line of the state of Kansas.
“No. 3. Leaving the said line No. 1 at the most desirable point in Ford, Clark or Meade county, thence by the most available route, in a southerly direction, through the counties of Ford, Clark, and Meade, to the south line of the state of Kansas.”
It clearly appears from the terms of the charter, that the railroad company had ample authority to construct its road in Clark county; but it is contended that its road should have commenced on the east or north line of Pratt county. The conditions contained in the proposition to the tax-payers of Clark county, which became a part of the conditions of the subscription, are as follows:
“And when the railroad of said railroad company shall be built of standard gauge, and completed as a first-class road, and in operation, by lease or otherwise, from a connection with existing lines of road in the state of Kansas, having direct and continuous connection with the Missouri river to the city of Ashland, in said Clark county, the Southern Kansas & Panhandle Railroad Company shall receive fifty thousand dollars of said bonds, and issue five hundred shares of stock therefor; and when completed and in operation to the town of Englewood, or to the west line of said county, said railroad company shall receive an additional ninety thousand dollars of said bonds, and issue therefor nine hundred shares of its stock; provided, not more than four thousand dollars per mile of said bonds shall be issued for each mile of road so constructed in said county.
“The said board of county commissioners shall cause such bonds, with interest coupons attached as aforesaid, to be issued in the name of the said county of Clark, and shall deliver the same to said railroad company on delivery or tender to the county treasurer of said county by said railroad company of certificates for its shares of fully paid-up capital stock of said railroad company equal in amount with said bonds, dollar for dollar; provided, said railroad shall be completed and in operation, by lease or otherwise as aforesaid, with freight and passenger depots or stations established ready for business, within three-fourths of one mile of the center of the city of Ashland, in said county of Clark, on or before the 31st day of December, 1887, and to the west line of said county, or to the city of Englewood, on or before the first day of September, 1888. The acceptance of said bonds legally voted and tendered to said railroad company under this proposition, shall be held and taken as a covenant binding upon said railroad company, its lessees or assigns, to maintain and operate said line of railroad, by lease or otherwise, over the route aforesaid for the term of ninety-nine years from the first day of September, 1888.”
While the road was not built from the east or north line of Pratt county west, yet the road which was constructed by the company through Clark county, and for which bonds are now claimed, was within the time pre- „ . i • /» scribed, in operation, by lease or otherwise, from a connection with existing lines of road in the state of Kan sas, having direct and continuous connection to the Missouri river, and afforded the citizens and tax-payers of that county the railroad facilities desired. Of course a railroad company has no authority to construct a road outside of the territory or designated points embraced within its charter; but in this case the road was constructed within a county named in the charter and within the points in that county designated in the proposition submitted to the qualified electors. The road connected with an existing line through Pratt county, entering Pratt county a little below the east line, instead of at the east or north line. The railroad, there-pore^ wag not eonstructed in violation of the charter <?f the company, nor in violation of the contract with the tax-payers of Clark county.
In Lamb v. Anderson, 54 Iowa, 190, the township of Newton voted taxes to the Iowa, Minnesota & North Pacific Railroad Company for the construction of its road through that township. Newton in the township was one.of the designated points in its charter. The court held that as the railroad company failed to construct its road through Newton in the township, it was not entitled to the taxes voted to it.
In Winter v. Railroad Co., 11 Ga. 438, subsequent to the subscription, the charter of the railroad was changed by the legislature so as to run the road in a different direction from that contemplated in the original charter. This was held to be an essential alteration to the original contract. Other and similar decisions are cited, but they are not in conflict with our conclusion, because, as already stated, the road through Clark county was built by the railroad company within the terms of its charter — not contrary to its charter, nor contrary to the propositions submitted. The road when completed had, with existing lines, a direct and continuous connection to the Missouri river.
The final question is, has the railroad company by the transfer or its agreement to transfer its road, discharged or released Clark county from the payment of its subscription? It appears that on the 26th day of October, 1887, the Southern Kansas & Panhandle Railroad Company, in order to procure the necessary money to construct its road, entered into a written agreement with the Chicago, Kansas & Western Railroad Company — one of the auxiliaries of the Atchison, Topeka & Santa Fé Railroad Company — to sell and convey to the Chicago, Kansas & Western Railroad ’Company its road in that county, when fully completed. No deed of conveyance has yet been made, and only a contract for sale has been executed. This agreement was entered into, we suppose, under the provisions of the statute. Section 1 of chapter 134, Laws of 1886, which was in force at the time the proposition to take stock in the railroad company was submitted to the tax-payers of Clark county, reads as follows:
“Any railroad company in this state existing under general or special laws may sell or lease its road to another railroad company organized under the laws of this state,” etc.
Section 1 of chapter 186, Laws of 1887, amended chapter 134, Laws of 1886; but it also authorizes —
“Any railroad company in this state to sell the whole or any part of its railroad constructed or to be constructed, or any interest therein, together with all the property, rights, privileges and franchises thereto pertaining, to any railroad company organized or existing under the laws of this state.”
We need not at this time pass upon the constitutionality of these statutes, or determine whether the agreement to sell above referred to is valid or not. Of course if there has been no valid sale of the road, the objection we are now considering amounts to nothing. If, however, these statutes are valid, and a sale has been made in accordance with their provisions, we do not. think that Clark county can complain. Chapter Laws of 1886, being in force at the time of sukmission of the proposition, and also at the date of the subscription, it necessarily follows that the proposition was accepted and the subscription made with a knowledge of its terms, and therefore that the company had the authority to make a sale of its road to another railroad company connected with it, in accordance with the terms and provisions of the statute. In addition to this, it is apparent from the proposition submitted to ■ the tax-payers that a lease of the road in Clark county, and possibly a sale thereof, was in contemplation at the time the vote was taken, because it is expressly provided “that the acceptance of said bonds legally voted and tendered said railroad company under this proposition shall be held and taken as a covenant binding upon said railroad company, its lessees or assigns, to maintain and operate said line of railroad by lease or otherwise for the term of ninety-nine years.” Considering the terms of the proposition submitted, it is clear that it was accepted by the tax-payers of Clark county for the purpose of having the railroad built through their county at the points designated and within the time named, so that they might have railroad privileges in their county, and also direct railroad connection through existing lines to the Missouri river. The general object for which the subscription was made has been accomplished; the road has been built, the railroad privileges furnished, and if the anticipated benefits or profits from the stock on account of its depreciated value are not likely to be realized, it is because the proposition submitted to the qualified electors was not more carefully guarded, or because the statutes of this state are more liberal to railroad companies concerning mortgages, leases and sales than the statutes of many other states.
Our attention is directed to Manning v. Mathews, 66 Iowa, 665, and Blunt v. Carpenter, 68 id. 265, as conclusive that if the Southern Kansas & Panhandle Railroad Company sold its road or made a contract to sell its road, it cannot collect its subscription. The statute of Iowa differs widely from ours. Under the provisions of our statute, railroads may be mortgaged without limit, consolidated, leased, or sold. Whether these liberal provisions of the statute are wise or not, it is not within the province of this court to determine. That is a matter for the legislature. In Iowa a railroad cannot be incumbered beyond a prescribed limit. Chapter 123, acts of the sixteenth general assembly of that state, provides that the taxpayers shall receive the stock of the railroad company building the road for the taxes paid by them; and § 6 of said chapter 123 further provides:
“The board of directors of any railroad company receiving taxes voted in aid thereof under the provisions of this act, or those members thereof, or either of them, who shall vote to bond, mortgage, or in any manner incumber said road to an amount, if the same be a railroad of three-feet gauge, to exceed the sum of $8,000 per mile, and if of the ordinary four feet eight and one-half inch gauge, to exceed the sum of $16,-000 per mile, not including in either case any debt for ordinary operating expenses, shall be liable to. the stockholders or either of them for double the amount, estimated at its par value, of the stock by him or her held, if the same should be rendered of less value or lost thereby.”
It is expressly stated in the decisions cited from Iowa, “that it is the purpose of the statute of that state to preserve the existence of the road in the corporation building it, and thus preserve the tax-payers’ interest therein.” As we have no similar statute, the Iowa decisions are not of controlling authority.
Upon the evidence produced, it is ordered that the peremptory writ be issued as prayed for.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an appeal from the determination of commissioners appointed to appraise the value and assess the damages sustained by the owners and occupants of lots one and three, in block twenty, Leavenworth city, which had been appropriated for the use of the Leavenworth Depot & Railroad Company. The commissioners assessed the value and damages by reason of the appropriation as follows: Lot one, $1,500; lot three, $1,300; total, $2,800. Trial was had before the court with a jury; the jury found that Joseph Whit- alter was the owner of lots one and three, in said block twenty, „and assessed his damages as follows: Eor lot one, $2,750; for lot three, $2,250; total, $5,000; and also assessed damages for the improvements on lot one at $100 in favor of the Union Stove and Machine Works.
There are twenty-one lots in block twenty; an alley runs through the block from north to south, leaving ten lots on the west side, which are covered with the shops of the stove works, and eleven lots on the east side; the title to the ten lots west of the alley is in the name of the stove works; the title to the lots east of the alley, excepting two and five, is in the name of Joseph Whitaker; lots one and three, in dispute, are east of the alley, and therefore in the name of Whitaker. It is claimed that lots one and three are held by Joseph Whitaker in trust for the stove works, and this company sought to have its damage to the entire block excepting lots two and five ascertained by the jury. Lot one was used by the stove works for rejected castings, and it also had thereon, belonging to the company, a stable, and a coke and coal-shed, where coke, coal and wood were stored; lot three was used by the company for flasks (that is, boxes made of boards for moulding castings), when not in use; these flasks, numbering several thousands, are piled on the ground to keep them from warping. On the part of the railroad company it is contended that Joseph Whitaker is the owner in fee simple of the lots in controversy; that the stove works is neither the legal nor equitable owner thereof; and that the stove works had no contract to purchase the lots, or either of them.
The facts of the case are about these: Joseph Whitaker was the president of the stove works, and claims to be the owner of the stock thereof, but other parties, who are directors, also hold certificates of stock. This company was organized May 27,1879; it has carried on a general foundry ever since — the manufacture of stoves being the leading business; all of block twenty, with the exceptions of lots two and five, has been in the use more or less by the company ever since it commenced operation; the buildings of the company, excepting a stable, coke and coal-shed on lot one, are all upon the ten lots on the west side of the alley; the stove company also uses other persons’ ground adjoining its buildings as well as its own, for storage purposes.
Whitaker bought lot one in 1880, for $350, paid his own money for the lot, and took a conveyance of it in his own name. He bought lot three in 1881, for $340, paid his own money for it, and took a conveyance in his own name. The stove company had no money with which to buy the lots, or cither of them, but upon several occasions Whitaker informed the board of directors that he would let the stove company have the lots if they would refund the money he had paid for them; the company never agreed to pay for the lots, and never paid anything for either, but with the consent of Whitaker, and without consideration, used the lots as above stated.
Joseph Behee, a witness upon the part of the stove company, testified that he was a member of the original company; that he was the general superintendent of the company at the time of the purchase of lots one and three; that Whitaker, after the purchase of lot one, said to him, “That some day the Union Works would want it, and if the company did want it, it could have it by paying the purchase-price and ten per cent.”
We think the trial court decided rightly that there was no evidence presented showing or tending to show that the stove company was either the legal or equitable owner of the lots in dispute. Upon the evidence presented, the only questions of fact to be submitted to the jury were as to the value of lots one and three, and the value of the improvements on lot one.
It is urged that there was a verbal contract for the sale of the lots between Whitaker and the stove company. The cases of Minns v. Morse, 15 Ohio, 568, and Jefferson v. Dallas, 20 Ohio St. 68, are cited to establish the doctrine that a parol contract to convey land and the delivery of possession under it, is not void. In this case the evidence does not show or tend to show that there was any contract of sale, verbal or written, from Whitaker to the stove company. It is true that Whitaker, in his evidence, says he bought the lots for his company, but the board of directors never authorized or requested him to make any purchase, and after the purchase the board of directors never ratified his purchase. After lot one was purchased there was some talk between the members of the company and Whitaker that the company would take a lease of all the lots at a very small sum, simply to use them as a part of its works. After the purchase Whitaker informed the board of directors that he would let the stove company have the lots if it would refund the purchase-money, but the company never accepted his offer, never paid him any money, and was in no condition to raise or pay any money for the lots. The argument of counsel would be good upon the authorities cited and the decisions of this court if there had been any parol contract for the sale of the lots from Whitaker to the company, but the premises upon which the argument is based are not correct, because unsupported by the evidence. We do not think, upon the evidence, that the stove company could enforce in equity a specific performance for the conveyance of the lots. The railroad company is not breaking up any agreement or contract between Whitaker and the stove company as to the sale or conveyance of his lots, because no agreement, verbal or otherwise, ever existed.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
When Packard received this note from the bank, he was in no better condition in any event than the bank would have been had it retained the note; and if the bank had retained the note and had pledged or transferred Williams’s stock in the bank, then the bank would have been accountable to Herrington for the value of the stock, which was confessed to be $1,200. Now Williams’s transfer to Packard, by the consent of the bank, was not to secure the $1,500 note, but for the purpose of securing the $1,100 claim. Packard was then holding this stock adverse to the interests of Herrington. This amounted to a conversion of the stock, as far as Herrington was concerned; and Packard, standing in the same relation to Herrington that the bank had, must account for the value of the stock.
Plaintiff, however, insists that if the transfer of the note by the bank to him with the stock transferred all the obligations of the bank as well, and rendered him liable to account for the stock to Herrington, that he was not obliged under this arrangement to take the stock and give credit on the note for its face value, or actual value. In other words, that Herrington must pay the note and then demand the stock, and then, if not delivered, in an action between them determine who had the right to the stock, and if Herrington was entitled to it he could recover it, or its value if converted. In this we do not agree with the plaintiff. When he held the security, admitting its value, and claimed to hold it as a pledge or security for his claim against Williams and adversely to the interest of Herrington — holding it in a different capacity than that in which the bank held it — we think he cannot be permitted to deny the conversion of the stock and compel Herrington to an action to recover its possession. In all cases of this kind one action ought to determine the entire controversy between the parties; and as plaintiff has elected to claim the stock adversely to the defendant, we think where there is no controversy about its value, he is properly charged with its value, and the defendant is entitled to a credit, at least for that amount.
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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The opinion of the court was delivered by
Valentine, J.:
It is admitted in this case that both the justice of the peace and the district court had jurisdiction of the persons of both the plaintiff and the defendant, but it is claimed by the defendant that neither the justice of the peace nor the district court had jurisdiction of the subject-matter of the action. It is claimed by the defendant that this action is one in equity for an accounting between former partners and for a settlement of their partnership affairs, and that it is an action of which a justice of the peace cannot in any oase take jurisdiction. And it is further claimed that as the case went to the district court on an appeal from a justice of the peace, and that as nothing was done by the defendant in either court to enlarge the jurisdiction of the justice of the peace, or to give to the district court any other or further jurisdiction than that possessed by the justice of the peace, the district court did not and could not take any other than appellate jurisdiction, and did not and could not take jurisdiction of any matter or thing except such as had previously been within the actual jurisdiction of the justice of the peace; and as the justice of the peace did not have and could not take jurisdiction of the subject-matter of this action, the district court did not have and could not take jurisdiction of the same.
We are inclined to think that the claim of the defendant is correct. The jurisdiction of justices of the peace with respect to the subject-matter of civil actions is defined by § 2 of the justices act; and while there are eleven subdivisions of that section defining justices’ jurisdiction with respect to various matters, yet there is not one of such subdivisions that includes an action like the present. Justices of the peace get the principal portion of their civil jurisdiction from the first subdivision, which gives to them-jurisdiction of civil actions “for the recovery of money only, and to try and determine the same, where the amount claimed does not exceed $300.” Now this case is not an action for the recovery of “money only;” and it can hardly be said that it is an action for the recovery of money at all. See the prayer of the plaintiff’s bill of particulars. Mr. Swan, in his treatise for Justices, clearly enunciates the doctrine that justices of the peace have no jurisdiction at all in matters which are cognizable only by courts of equitable jurisdiction. (Swan’s Treatise, ch. 2, § 6.) And what Mr. Swan says we think is substantially correct. Of course justices of the peace may exercise all the jurisdiction given to them by the statutes, and in doing so may often apply equitable rules of jurisprudence. But what we wish to say is that justices of the peace do not have general equitable jurisdiction, or jurisdiction of cases of a purely equitable character. Indeed, there are many cases of mixed law and equity of which they could not take jurisdiction. They could not take jurisdiction of a case for the foreclosure of a mortgage, for they could not make the proper order with regard to the mortgaged property. Neither can they take jurisdiction of a suit in equity for an accounting between partners and for the settle ment of the partnership affairs; for they could not make the proper order nor render the proper judgment with respect to the property still belonging to the partnership or the debts still due to the partnership, or the debts still owing to the partnership. We do not think that the justice of the peace in the present case had any jurisdiction to hear and determine the case, and we do not think that the defendant did anything in the case to give to the district court any higher or further or greater jurisdiction than that previously possessed by the justice of the peace. This case comes nearer being controlled by the decision of this court made in the case of Wagstaff v. Challiss, 31 Kas. 212, than it does in the decision made in the case of Shuster v. Finan, 19 Kas. 114. The plaintiff also cites the cases of Miller v. Bogart, 19 Kas. 117; Hodgin v. Barton, 23 id. 740; Gregg v. Garverick, 33 id. 190; and a few others, but we do not think that any one of them supports his view.
In our opinion the decision of the court below was correct, and its judgment will be affirmed.
All the Justices concurring. | [
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Per Curiam:
The judgment in this case must be affirmed. First: As to the competency of opinion evidence given by farmers with respect to the value of land in their neighborhood, see as follows: K. C. & S. W. Rld. Co. v. Ehret, ante, p. 22; same case, 20 Pac. Rep. 538, and authorities there cited. K. C. & S. W. Rld. Co. v. Baird, just decided; Lewis on Eminent Domain, §§ 435, 437, and cases there cited.
Second: With respect to the special interrogatories asked to be submitted, no error was committed and no exception taken.
Third: The instruction given with reference to the measure of damages, was correct. (L. & W. Rld. Co. v. Ross, 40 Kas. 598; same case, 20 Pac. Rep. 197.)
Fourth: The instruction given with respect to farm-crossings was correct. The K. C. & S. W. Rld. Co. v. Baird, ante; K. C. & S. W. Rld. Co. v. Ehret, ante, p. 22.
The judgment of the court below will be affirmed. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action of replevin brought by Catharine E. Fickel, to recover the possession of two mares alleged to be wrongfully detained by Homer Kennett, together with damages for their detention. The claim of the plaintiff was that she was the absolute owner of the mares, and that no one else had any interest or right of possession to them. The theory of the defendant appears to have been that the property was owned by the husband of the plaintiff, Geo. W. Fickel, and that it was included in a mortgage which he had given to the defendant. The jury found that the property belonged to Mrs. Fickel, and that she was entitled to the possession of the same; and from the testimony in the record there can be little doubt that the finding was correct. The value of one mare was assessed at $117 and the other at $105, and the damages for the wrongful detention by Kennett were assessed at $130. Judgment followed the verdict.
The first point made is, that the court erred in striking out all of Kennett’s answer except a general denial. This answer consisted, first, of a general denial; and second, a cause of action upon a promissory note alleged to have been executed by George W. Fickel and Catharine E. Fickel, which was pleaded by way of set-off. In pleading the set-off it was incidentally stated that George W. Fickel had an interest in the property, and also that one Henry Perry claimed to be the owner, and had replevied the same from Kennett, which action was still pending and undetermined. He asked that both of these parties be brought in, and for judgment upon his promissory note for the sum of $247 and interest thereon. The court ruled correctly in striking this count from the answer. The second cause of action, setting forth a set-off, canuot be pleaded as a defense in an action of replevin. Such an action is founded upon the tort or wrong of the defendant, and not upon contract; and § 98 of the code specifically provides that “a set-off can only be pleaded in an action founded on contract.” If either of the parties named owned and had the right of possession to the property, and the plaintiff wished to rely upon that fact, he could have shown it under the general denial. ( Wilson v. Fuller, 9 Kas. 176; Yandle v. Crane, 13 id. 344; Bailey v. Bayne, 20 id. 657; Holmberg v. Dean, 21 id. 73.) It was neither necessary nor proper to bring in additional parties.
A continuance of the case was asked by the defendant because from the condition of the docket he supposed the case would not be reached or tried at that term of court, and also because of an absent witness. It does not appear that defendant had any right to assume that the case would not be tried at the time and term it was assigned for trial, nor that sufficient time was not given to try a case of this character. Neither does it appear that he had exercised sufficient diligence to obtain the testimony of the absent witness; and hence-there was no error in denying his motion for a continuance.
There is an objection to the testimony of a witness who-stated that the use of the team of mares was worth a dollar a day during the time which Kennett detained them, it being argued that he was not shown to be competent to testify to the value of such use. This is a groundless objection. The witness was a farmer living in the neighborhood, who stated that he knew the value of farm horses and of the horses in controversy ; knew the character of work generally done by horses upon a farm, and had observed these horses while engaged in such work, and had hired horses to do such work for himself,, and was therefore well qualified to testify what the value of the use of such a team was.
Complaint is made of the ruling of the court in refusing to admit in evidence the records in the replevin suit between Henry Perry and the defendant Kennett, which was pending and undetermined, and in which Perry claimed the right of possession to the property in question, and also in excluding testimony of transactions had with George W. Eickel, her husband. It was not shown, nor offered to be shown, that: Perry claimed any title or right of possession under Mrs. Eickel, who was clearly shown to be the owner of the mares. It was useless to inquire as to the merits of the Perry action, unless he claimed the right of possession to the property through the action of its owner. The notes and mortgages executed by George W. Eickel, which did not relate to the property in controversy or with which Mrs. Eickel had no connection, were properly excluded from the case. She could not be divested of her property without her consent by the action of her husband, even if he intended to include the same in the mortgage which he made.
Error is predicated on the refusal of the court to admit testimony showing the price for which the horses were sold by Kennett after he had taken them from the plaintiff. The price for which the horses were sold was not controlling, nor is the market value established by a single or exceptional sale. While the testimony might have been admitted as tending to show the market value, it is not the best evidence of which the case admitted, and there appears to have been no difficulty in obtaining testimony as to the value. Certainly there was no error in this case, as the person who purchased the mares from Kennett was afterward permitted to testify when and where the animals were sold, and the price which he paid for them.
Another point is made upon the charge of the court. When the property was seized by the officer upon the writ of replevin, a bond was given by Kennett, under which he retained the property. He requested an instruction that if the jury found for the plaintiff, the measure of recovery would be the value of the property, with interest on the same at 7 per cent, fi’om the time the property was taken. The court refused this request, and instead advised the jury that the measure of damages for the wrongful detention of the property was the value of the use of the same duriug the time it was detained. The property was shown to have a usable value, and therefore the correct rule was given to the jury. (Yandle v. Kingsbury, 17 Kas. 195; Ladd v. Brewer, 17 id. 204; Bell v. Campbell, 17 id. 211.)
The remaining objections are of even less importance than the ones we have referred to, and are not worthy of consideration.
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
Valentine, J.:
The facts of this case are substantially as follows: In January, 1870, a certain tract of land designated as “Concordia, north half of northwest quarter of section 4, township 6, and south half of southwest quarter of section 33, township 5 south, of range 3 west,” was, by an election, made the permanent county seat of Cloud county, and no change in the location of the county seat of that county has taken place since that time. Since that time, however, Concordia has become an incorporated city, and includes within its boundaries not only all the above-mentioned territory, but also a large amount of other territory. Prior to May 1, 1885, and since, up to the present time, T. W. Roach was and has been the county superintendent of public instruction of Cloud county, and has been all the time receiving a salary of more than six hundred dollars per annum. About the middle of May, 1885, he removed his office from that part of the city of Concordia which was originally made the county seat of Cloud county to another part of such city, and has kept his office at such other part of the city ever since. About November 21, 1885, the county superintendent created a new school district in Cloud connty, numbered 99, and incorporated in such new school district a portion of the territory of the preexisting school district, number 50. All this was done legally and in a proper manner, except that the county superintendent in doing the work did not do the same at what was originally the county seat of the county, nor was he at the time holding his office at what was originally the county seat; but he did all such work at the place to which he had removed his office in May, 1885. He had no other office at that time. The principal question now presented, and the only one which we need to consider, is whether the acts of the county superintendent were and are illegal and void, or not, for the reason that they were not performed within the limits of the original coiinty seat. School district number 50 claims that they are void, and it commenced this action against T. W. Roach, the county superintendent of public instruction of Cloud county, and the other defendants, who are county officers of said county, to restrain and enjoin them from recognizing the existence of school district number 99, and from recognizing or attempting to enforce the aforesaid attempted change of the boundary-lines of school district number 50, made by the county superintendent in November, 1885. At the November term, 1886, the ease was tried before the court below without a jury, and the court found the facts substantially as above stated, and found that the formaation of school district number 99 and the change of the boundary-lines of school district number 50 were legal and valid, and rendered judgment in favor of the defendants and against the plaintiff for costs; and to reverse this judgment the plaintiff, as plaintiff in error, brings the case to this court.
Of course the county superintendent of public instruction is required to hold his office at the county seat; see act .relating to counties and county officers, article 15, §172, and the act relating to schools, article 2, §2; and for the purposes of this case we shall assume that the county seat of Cloud county still remains at the exact place where it was originally located in 1870, and that it does not include any other territory than was then included in it, although the city of Concordia, within which such county seat is situated, contains a large amount of other tei’ritory. (The State v. Harwi, 36 Kas. 588; The State v. Stevens, 40 id. 113, et seq.) The question then is simply this: Are the acts of a county superintendent of public in struction, changing the boundary-lines of an old school district and creating a new one, which acts are performed at his office within an incorporated city, within which the county seat is situated, necessarily void because such acts are not performed within the exact portion of the city within which the coúnty seat was originally located ? Or may such acts be held to be valid where they are in every other respect legal and regular? This case is entirely unlike the cases of Phillips v. Thralls, 26 Kas. 780; Wilcox v. Johnson, 34 id. 655; A. T. & S. F. Rld. Co. v. Rice, 36 id. 593, for in those cases the officer not only failed to perform the duties of his office at the place where the law requires that he should perform them, but he performed them outside of his office and outside of the territory within which he had any power or jurisdiction to perform them, and performed them within the territorial jurisdiction of other officers specially empowered to perform them. In the present case the county superintendent did not go outside of his office to perform the acts complained of, nor did he go outside of his territorial jurisdiction to perform them; but he performed them within his office and within his territorial jurisdiction. But a superintendent of public instruction is not confined to his office nor to the county seat. He has jurisdiction with regard to schools and school districts over his entire county, and may perform services with reference to schools and school districts for the entire county, and he may perform many acts outside of his office and outside of the county seat. (See § 2, above quoted.) Thus he may visit each school in his county, and at the time exercise some jurisdiction over the same, and also over the school board of such school district; and he may do and perform many other acts outside of his office and away from the county seat. Of course, if a county superintendent should go outside of his county and into the jurisdiction of some other county superintendent, and there perform acts with reference to schools, we would think his acts would be void; but so long as he remains within his own county and performs acts within his own office which relate to schools and school districts within his own county, and which acts are no more irregular than the acts complained of in the present case, we would think such acts must be held to be valid when attacked in the collateral manner in which they are attacked in the present case.
The judgment of the court below will be affirmed.
All'the Justices concurring. | [
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Opinion by
Clogston, C.:
This was an action brought to recover damages for injuries sustained by reason of the bite of a vicious dog, the property of the defendant. At the trial the defendant submitted and asked the court to give certain instructions, which were refused, and this is now assigned as error. There were no exceptions taken to the instructions given by the court to the jury, and the instructions asked for by the defendant were substantially included in the general charge of the court, and we see no error in refusing to give the instructions asked by the defendant after what had already been given by the court.
The next complaint is the misconduct of the jury. The record shows that the jury were sent out late in the evening to consider upon their verdict, and an agreement was made that the court might make an order, (which was done,) that if the jury should agree upon a verdict before the opening of the court in the morning, that they might return a sealed verdict; and at the convening of the court a sealed verdict was presented in open court by the jury. Upon demand of the defendant the jury were polled, when it was ascertained that at least one juryman disagreed to the verdict, and they were then directed to retire for further consideration upon their verdict, and afterward returned into open court with a second sealed verdict, which it was found was not agreed to by at least one of the jurymen, and again they were sent out; and afterward they returned into open court a verdict for the plaintiff for $100. This was the amount named in each of the former verdicts brought in. These proceedings are now challenged by the plaintiff in error, and it is urged that the court had no authority to again send the jury out after they had returned what purported to be a sealed verdict, and after the jury had once been separated or disbanded. The record does not sustain the plaintiff in this claim. There is nothing to show that the jury were ever allowed to separate or disband, or were ever out of the charge of a sworn bailiff; and when the jury were sent out on those several occasions no objections were made by the defendant, and no request was made that the jury be discharged from the further consideration of the case. In the absence of such a showing we cannot presume error; and as the record presents none, this objection must be disregarded.
The last claim is that the court erred in overruling the defendant’s motion for a new trial. There was some evidence tending to sustain each issue involved in this litigation, and therefore upon the evidence the ruling of the court below must be sustained. The showing made by the defendant upon the ground of newly-discovered evidence which could not with reasonable diligence have been discovered and produced at the trial, and the ruling of the court upon this question, must be sustained upon at least two grounds: First, there was a showing made by the attorneys of the defendant that they did not know of this evidence, and that they were taken by surprise, and could not have discovered the testimony with reasonable diligence. The objection to this is, that if true it was not a sufficient showing, for in the absence of information to the contrary, it must be presumed that the defendant had this knowledge; and if he did, a showing made by an attorney was not sufficient. The want of knowledge in an attorney is not a sufficient showing to warrant the court in presuming that his client had not such knowledge. Second, this newly-discovered evidence was alleged to be material for the purpose of impeaching witnesses for the plaintiff. Before an action will be reversed for evidence of this kind it must conclusively appear that the evidence would reverse the verdict and judgment, which is not shown in this case. Rarely if ever are actions reversed upon evidence of this character alone. (Parker v. Bates, 29 Kas. 597; Clark v. Norman, 24 id. 515.)
For these reasons we recommend 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
Cuogston, C.:
Plaintiff in error contends that the findings of fact are not supported by the evidence. Upon this question it is insisted by the defendant in error that the record does not purport to contain all the evidence offered or given at the trial; that the only recital to that effect is con tained in the certificate of the trial judge to the made case, which certificate recites that it contains all the evidence offered at the trial, and upon examination of the case this claim is found to be correct. This question has been thoroughly discussed and settled by this court in Eddy v. Weaver, 37 Kas. 540, in which it was held that a case must contain the recital, and not the certificate of the judge who settles the case. This disposes of this question.
The only remaining, question left is, do the pleadings and findings of the court sustain the judgment ? It is not claimed by the plaintiff in error that the findings do not support the judgment. It is perhaps in this connection- necessary to notice the one question raised by the plaintiff in error upon the findings of the court. The court found that the agent who made this renewal certificate had authority to renew policies, though not in the manner of renewal certificates, but by issuing new policies. Now it is contended by the plaintiff in error that the agent not being authorized to issue renewal certificates, and the fact that the company did not so renew its policies, the acts of this agent would not bind the company. Where it is shown, as in this case, that the agent is a general agent, and is so held out to the community in which he does business, and third parties transact business with him as such agent, in good faith, without knowledge of his limited authority, the acts of such an agent must bind the principal; and where the agent is shown to have authority to renew a policy in any manner, and he does renew a policy in a manner not authorized by his company, but that fact is not known to the insured, the agent’s renewal must bind the company. (Am. Cent. Ins. Co. v. McLanathan, 11 Kas. 533; Mutual Life Ins. Co. v. Wilkinson, 80 U. S. 222.)
In Baubie v. Ætna Ins. Co., 2 Dill. 156, it was said:
“A local agent of a foreign insurance company, empowered to solicit insurance, receive premiums, and to issue and deliver policies, has, in favor of third persons dealing with him in good faith, and without notice of any restriction on his authority, power to bind the company by a parol contract to renew the policy from time to time during plaintiff’s ownership of the property.”
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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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution under §13 of the prohibitory liquor law as amended by §4 of the act relating to intoxicating liquors, approved March 5, 1887. (Laws of 1887, chapter 165.) Many questions are presented, which we shall consider in their order.
I. It is claimed that the court below erred in overruling the defendant’s motion to require the county attorney to file a bill of particulars showing more specifically the facts upon which he relied for a conviction. We think this is one of that class of cases in which the court might in its discretion require the prosecution to file a bill of particulars, but such bill of particulars will be required only in cases where the indictment or information does not of itself definitely and specifically set forth the facts, but sets them forth only vaguely or in such general terms that the defendant could not well know what he is required to defend against. Of course the defendant has the right in all cases to demand that the nature and the cause of the accusation against him shall be clearly and definitely set forth in the written charge against him. (Section 10, Bill of Rights.) But where the complaint is sufficient in all particulars except that it states the facts constituting the offense only in general terms or vaguely, and not in specific detail, the defendant must, if he desires a more ■elaborate or detailed statement of the facts, set forth in his motion the portions of the indictment or information which he claims to be insufficient or defective, and point out to the •court wherein he desires a fuller, more complete, more definite or more circumstantial or particular statement of the facts. This was not done in the present case. The defendant’s motion was certainly as objectionable in this respect as was the information, and the court below did not err in overruling it. We •think the information was sufficient as against such a motion.
II. The defendant also claims that the court below erred in overruling his motion to quash the information, and this upon three grounds, none of which we think are tenable. In reference to these grounds we would state: First, the information did state facts sufficient to constitute a public offense; second, it was verified by the oaths of both the county attorney and E. B. Titus, the prosecuting witness, and each verification was sufficient. And we think the information was sufficiently definite and certain in its statements of the facts set forth as constituting the offense charged against the defendant.
III. It is claimed that the court below erred in permitting; the county attorney to indorse the names of additional witnesses upon the information. There was certainly no error-in this. (The State v. Cook, 30 Kas. 82; The State v. McKinney, 31 id. 570, 576, and cases there cited; The State v. Taylor, 36 id. 329, 336; The State v. Dowd, 39 id. 412, 416.)
IV. The defendant further claims that the court belovr erred in overruling his motion for a change of venue. This? motion was based upon two grounds: First, that the judge? of the court was prejudiced against the defendant; and second,* that the people, not only of Finney county, but of the entire? district, were prejudiced against him. In order to show that the judge was prejudiced against him, he furnished a statement made by the judge to the jury on a former trial of this? same case, in which statement there was some harsh language? used as toward the jury, and from which statement it cam -clearly be seen that the judge believed the defendant to be? unquestionably guilty of the offense charged against him-but there is nothing in the statement that shows that the; judge had any personal prejudice against or ill-feeling towardl the defendant, or that the defendant could not have a fair-trial before him. Besides, that very trial resulted in a verdict by the jury that the defendant was guilty, and the court afterward, and on the motion of the defendant, set aside the? verdict of the jury and granted the defendant a new trial,. As to the people of the county, the defendant’s affidavits did! not sufficiently show prejudice; and besides, from anything; appearing in the case, the defendant afterward and without, the slightest difficulty obtained a fair and impartial jury to-try his case. Nothing transpired during the impaneling of the second jury, so far as the record shows, or during the-entire trial by this second jury, that would indicate that the-defendant did not have a fair and impartial trial so far as? the people of Finney county or this jury are concerned. We-think the motion was rightly overruled; and certainly nc> material error was committed.
V. The defendant also claims that the court below erred in overruling his motion for a continuance. His principal grounds for the motion were that his first trial in the case had occurred only twenty days prior to that time, and at the same term; and that the regular jurors summoned for that term had all heard the testimony at the previous trial and had formed an opinion in the case; and that the names of the aforesaid additional witnesses had been indorsed upon the information only four days prior to that time, and therefore that he was not and could not be ready for trial. It appears, however, that a fair and impartial jury was obtained; and it does not appear that the defendant attempted to do, or needed to do, or could have ■done, anything further to be ready for trial after the indorsement was made upon the information of the names of the additional witnesses. We cannot say that the court below erred in refusing to grant the continuance prayed for.
VI. The defendant further claims that the court below erred in admitting the testimony of E. B. Titus and others tending to show that the defendant committed the offense at a time not alleged in the information. The information alleged that the defendant committed the acts constituting the offense from August 1, 1887, up to the filing of the information, which was September 13,1887. The state, in introducing its evidence in chief, introduced evidence tending to show that the defendant committed the acts constituting the offense charged against him from May 1, 1887, up to September 13, 1887. The defendant in rebuttal introduced evidence tending to show that he did not have charge of the premises where the offense is alleged to have been committed, from April 21,1887, up to October 21,1887; that on April 21,1887, he transferred his business to another man, and did not take charge of it again until October 21, 1887. The state then introduced further evidence tending to show that the defendant did have charge of the premises, not only from,May 1, 1887, up to September 13, 1887, but all the time from April 1, 1887, up to September 13, 1887, and also introduced evidence tending to show that the defendant had committed many acts constituí ing the offense charged against him during the month of April, 1887, and prior to the 21st day of such month. The defendant claims that the admission of all this evidence was error, upon the ground that where a continuing offense, or one composed of different acts at different times, is charged, the time alleged must be strictly proved, and no proof of any other time can be allowed; and he cites a large number of cases from Massachusetts, commencing with Commonwealth v. Pray, 13 Pick. 359, 364; and Commonwealth v. Briggs, 11 Metc. 573; and one from Maine, The State v. Small, 14 Atl. Rep. 942, as sustaining his claim. We think these cases do support the claim made by the defendant, and while they evidently state the law of Massachusetts and Maine, we do not think that they state the law as it exists elsewhere. ■ It is not the English common law as understood in England or in this country, outside of Massachusetts and Maine. The general rule of law is that it is not necessary to prove that the offense was committed at the time at which it is alleged to have been committed, but it may be proved to have been committed at any time within the period prescribed by the statute of limitations within which the action might be commenced. There are some exceptions to this general rule, as where offenses cannot be committed except on certain days, or within certain specific portions of time, as on Sunday, on the fourth of July, on election days, or in the night-time. But this present case does not come within any of the exceptions mentioned by any of the authorities, as existing anywhere except in Massachusetts and Maine. See the following authorities supporting the general doctrine: 2 Hawkins’s Pleas of the Crown, 613, §169; 1 Archbold, Criminal Pr. & PI. *119; 5 Bacon’s Abr., “Indictment,” G. 4; Roscoe, Cr. Ev. 89; Wharton, Cr. Ev., § 103; 1 Bishop, Cr. Pr., §§ 397, 402, and notes. Mr. Bishop does not regard “the peculiar Massachusetts doctrine” as being good law, and believes it to be against reason and against all authority elsewhere. We know of no adjudicated cases outside of Massachusetts and Maine precisely in point. However, in Oregon, in the case of The State v. Ah Sam, 13 Pac. Rep. 303, the supreme court took occasion to express their disapproval of the Massachusetts doctrine. Certainly, if an offense, consisting of a single act, and alleged to have been committed on a certain day, may be proved to have been committed on some other day, it would seem that an offense continuous in character or consisting of several distinct acts committed at different times and alleged to have been committed within a certain period of time, consisting of many days, or even months, might be proved to have been committed within some other period of time, provided of course that the offense which is proved is not barred by any statute of limitations.
"VII. It is claimed that there is a variance between the allegations of the information and proof in this case. It was alleged that the offense was committed on lot 7 in block 51 of Garden City, Kansas, while it is claimed that the evidence showed that it was committed on lot 7 in block 5 of Garden City, Kansas. It is admitted by the prosecution that the information is just as it is claimed to be, but it is denied that the proof was as it is claimed. It appears from the original record brought to this court that the prosecuting witness, E. B. Titus, stated that the offense was committed on lot 7 in block 5, but it is shown by an attempted amendment to the record that in fact he did not so state, but stated that the offense was committed on lot 7 in block 51; but the defendant, in procuring his bill of exceptions, mistakenly made it read lot 7 in block 5. The judge of the district court afterward attempted to correct and amend this bill of exceptions, but as no error with reference thereto was made in the court, but only by the judge, we suppose this amendment cannot be considered, and we shall therefore have to consider what is stated in the original bill of exceptions as true, and as though the witness Titus had in fact said “lot 7 in block 5,” when in fact he said “lot 7 in block 51.” We do not think, however, under the circumstances of this case, that this variance is fatal. The information gives a very lengthy and explicit description of the place where the offense is alleged to have been committed. -The place is described as follows: “A place known as Clinton Reno’s drug store, located in the lower story of a two-story wooden building, including a shed or cellar attached thereto on the west adjoining such drug store and building, all situated on lot 7 of block 51 in the original plat of Garden City, Finney county, Kansas, on the west side of Main street, south of the Atchison, Topeka & Santa Fh railroad track, in the city of Garden City, in Finney county, Kansas.” The proof with reference to the place where the offense was committed corresponds to the description of the place contained in the information in all particulars except the one with relation to the block where the offense was committed, and there has never been any pretense that there was any other place in Garden City or elsewhere that would answer to such a description. This question of variance was not raised during the trial, nor at any other time in the court below, but it is raised for the first time in this court. Also, the witness W. O. Finch testified that he resided right across the street from the defendant's place of business, and that he resided on block 50. We do not think that the partially false description is fatal in this case. (The State v. Sterns, 28 Kas. 154, 157, 158.)
VIII. There was no error in permitting evidence of violations of law of which Mr. Titus, the prosecuting witness, had no knowledge, for the information was not only verified by Titus, but it was also verified by the county attorney, and each verification was sufficient; besides, this is not a case like the case of The State v. Brooks, 33 Kas. 708. This is a prosecution for keeping a nuisance at a particular place, while that was a prosecution for the sale of intoxicating liquors. In this case it is not necessary to show to whom the liquors were sold, while in that case it was. In this case the defendant might be convicted of the offense charged against him without showing that he ever sold a single drop of any kind of intoxicating liquors, while in that case the gravamen of the offense charged was the sale of the liquor to some person. In cases like the present, a' showing of a mere keeping of intoxicating liquors for sale, or a keeping of a place “ where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage” is sufficient, under the statutes, to render the place where the liquors are kept or where the persons are permitted to resort, a nuisance, and to render the keeper thereof guilty of keeping a nuisance.
IX. It is further claimed that the court below erred in giving instructions to the jury. We think, however, no substantial error was committed in this respect; and besides, none of the instructions were excepted to.
X. It is also claimed that the court below erred in refusing the special instructions asked for by the defendant. We think no such error was committed. All that was proper and necessary to be given of such instructions were embodied in the general charge of the court.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Error from Shawnee district court. | [
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The opinion of the court was delivered by
Smith, J.:
On August 6, 1898, William Robison was engaged in a mercantile business in Ford county. On that date he executed to the Kingman-Moore Implement Company his note for $4318.90, the payment of which was guaranteed by E. S. Ellis, one of the plaintiffs in error, < '
To secure Mr. Ellis from loss and liability by reason of such guaranty, Robison, on the same day, executed to him a chattel mortgage on his stock of goods, worth about $4000, and included in the mortgage was an assignment of book accounts of the value of about $3000. While in possession' of the property as mortgagee this action was commenced, on August 9, 1898, by the defendant in error, which was a general creditor of Robison, on behalf of itself and other unsecured creditors. The petition recited that the plaintiff below sold goods to Robison prior to July 1,1898, and that the chattel mortgage held by Ellis was given in fraud of an act of Congress relating to bankruptcy, which was passed in 1898, but that the right to have the debtor adjudged to be a bankrupt involuntarily did not, by the terms of the act, accrue to creditors until November 1, 1898, at which time the plaintiff below intended to file a petition in the federal court to have Robison declared a bankrupt; that an illegal preference was secured by the mortgagee, which was fraudulent in law. The petition prayed for an injunction to restrain plaintiffs in error from removing the mortgaged property, selling it, or from collecting the accounts, and for the appointment of a receiver to take charge of the property and to hold it until November 3, 1898, to give time to plaintiff to, file an involuntary petition in bankruptcy against Robison. A general demurrer to the petition was filed by plaintiffs in error. It was overruled, and, electing to stand thereon, a decree was entered against them. Prom the ruling of the court they have come here by proceedings in error.
The time within which controversies like the present one might arise being necessarily limited to a period between July 1 and November 1, 1898, the adjudicated cases on the question involved are few. With possibly one exception, however, they sustain the position of the plaintiffs in error.
In Ideal Clothing Co. v. Hazle, 126 Mich. 262, 85 N. W. 735, it was said :
“It is apparent that the object of this bill was merely to preserve an estate until a time should come when it could be administered under the new law, which, at the time the bill was filed, did not authorize the federal courts to interfere. It is claimed that, as these courts were powerless to protect creditors under the bankruptcy act, the state courts must have the power. This does not impress us as being a sound theory. The rights and remedies in such cases under the state law were settled. They existed and were open at this time. But counsel say that they might be superseded or supplemented for the four months following July 1 by another remedy, so that they might, if they chose, avail themselves of a protective remedy afforded by the bankrupt act. We see no better reason why this should be than that an injunction should heretofore have been issued in any case of fraud and danger to impound the estate until creditors’ claims should mature, judgment be obtained, execution issued and returned, to the end that a creditor’s bill might be effectively filed. The exigency is as great in such a case as this, yet no one has heard of such a proceeding being permitted.”
The defendant in error was not deprived of its right to attach the property of Robison, its debtor, by the terms of the bankrupt law. Such attachment, of course, might have been set aside had the debtor been adjudged a bankrupt-after November 1, and the attaching party compelled to prorate with other creditors if such lien “would militate against the best interests of the estate” ; yet, this was a contingency so remote and uncertain that the likelihood of its happening would not justify a court of equity in basing a prohibitive decree on such a possibility.
Again, it is alleged in the petition “thaton November 1, 1898, it (plaintiff below) intends to file a petition in the United States court and have Robison declared a bankrupt involuntarily.” This allegation introduced a further element of uncertainty into the case, for that, under section 595 of the bankruptcy act, the joint action of three creditors is necessary to the institution of involuntary proceedings against a debtor. When the time was ripe for taking such action two or more other creditors might not join the saddlery company, thus making it impossible to perform the promises made by plaintiff below to the trial court.
The precise question at bar was before the supreme court of New York at special term, and again in the appellate division. [Victor v. Lewis, 38 Hun, 318, 53 N. Y. Supp. 944, 57 N. Y. Supp. 16.) At both times it was held that the action could not be maintained. The last expression was given by Mr. Justice O’Brien, who said:
“It is sought in this action to issue an injunction for the purpose of suspending the rights of the defendants .under their judgments for an indefinite time, so that the other creditors, if they deem it proper, may take proceedings in the United States courts. And this relief is asked for in an action in which it is perfectly evident that no such final relief can be given. ...
“The right to final relief is not here claimed to be absoluté, but only contingent upon the happening of a future event, and the determination of proceedings which may be thereafter brought in the bankruptcy court. It has been many times decided that a temporary injunction will not be granted in such an action where the plaintiff is not entitled to final relief.” (See, also, In re Ward, 104 Fed. Rep. 985.)
The plaintiff below, being a mere general creditor, could have no standing in court under the practice of this state to set aside a fraudulent conveyance by its debtor until judgment was had on its demand and execution returned unsatisfied. Nor could it enjoin the disposition by the debtor of his goods, pending an action to obtain judgment. (Tennent v. Battey, 18 Kan. 324; Bodwell v. Crawford, 26 id. 292, 40 Am. Rep. 306.)
The judgment of the court below will be reversed, with directions to sustain the demurrer to the petition.
Greene, Pollock, JJ., concurring. | [
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Error from Anderson district court. | [
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Appeal from Cherokee district court. | [
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Per Curiam:
The plaintiff in error, the holder of a tax deed to a tract of land, brought his action to quiet title. The defendant in error appeared, contested the validity of the tax deed, and filed a cross-petition to foreclose a mortgage on the premises. At the trial the tax deed was set aside, and plaintiff was awarded a first lien on the land for the amount of taxes paid. The mortgage was foreclosed, Sale ordered, and thereafter a receiver was appointed to take charge of the premises. At the sale defendant Crebbin purchased the land for much less than the amount of the liens thereon. Plaintiff was paid his lien for taxes and interest in full.
Upon the coming in of the report of the receiver, there was found in his hands the sum of $219.69, arising out of the proceeds of the sale of a one-fourth interest in the crop raised on the premises in the year 1900. This controversy arises over this fund. Both parties claim it. Plaintiff claims on the theory that he was entitled to hold the possession of the premises until his tax lien was discharged, and, as his lien was not discharged until November, 1900, that the portion of the crop appropriated by the receiver, or its proceeds, belongs to him. Defendant claims the fund to apply on the deficiency judgment rendered in his favor. The trial court awarded this fund to the defendant. This ruling was correct. Whatever, may have been the right of plaintiff, if in possession of the premises, there to remain until his tax lien was discharged, it will not avail him in this controversy.
There was a general finding against plaintiff in the decree in the main action, and a 'receiver was appointed to take charge of the premises and collect the rents. This decree and order have been acquiesced in by all parties. The lien of plaintiff having been discharged in full, the property having been sold and conveyed to another under a decree of the court, the claim of plaintiff to the property, or its proceeds, is at an end.
The judgment is .affirmed.
All the Justices concurring. | [
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Error from Lyon district court. | [
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Error from Sedgwick district court. | [
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The opinion of the court was delivered by
Dosteb., O.J.:
A. R. Kramer was a merchant doing business at Galena, Kan., under the name of A. R. Kramer & Co. He owed the Hargadine-McKittrick Dry-goods Company, a corporation, nearly $15,-000, and on March 2,1896, executed to it an instrument more nearly in the nature of a conditional bill of sale of his stock of goods than anything else. Without containing words of sale and transfer, it declared that the stock of goods “is the sole property of said Hargadine-McKittrick Dry-goods Company, and to remain so until the following indebtedness is paid,” etc. Nothing was said in the instrument as to whether it should pass title to subsequently acquired goods added to the stock, or constitute a lien on such additions. Inferably, however, from the following provision, it was to do one or the other, perhaps the former:
“ It is also further agreed that the said Hargadine-McKittrick Dry-goods Company is to grant the said A. R. Kramer & Co. a line of credit not to exceed $2000, as follows: $1500 in dry-goods and $500 for purchases made from -other houses. No purchases are to be made or debt created without the authority of said ^argadine-McKittrick Dry-goods Company. All casK 'is to be remitted to the said Hargadine- McKittrick Dry-goods Company, and all bills to be paid through them.”
The practical construction which the parties gave to the paper by their subsequent dealings under it was that it covered after-acquired additions to the 'stock. Kramer was to remain in possession of the goods and conduct the business in his own name as before, and make weekly reports to the Plargadine-McKittrick Dry-goods Company, and out of the proceeds of sales pay the indebtedness. This arrangement continued for more than two years, but the indebtedness did not become materially reduced, and the company decided to take possession of the stock of goods and put an end to the transaction. On December 3, 1898, it wrote to Kramer announcing its intention, sending the letter by one Purdy, as its agent. This letter contained the following statement:
■“ Mr. Purdy is authorized to say to any one to whom the firm of A. R. Kramer & Co. may owe money for legitimate claims against them of any kind, arising out of the mercantile business, that this company will settle them in full, and Mr. Davis will attend' to the matter as soon as he is able to come down.”
Mr. Purdy gave Kramer the assurance he had been authorized as above to make. The stock of goods was surrendered to him and shipped away. Among the indebtedness of Kramer w'as an account for goods due the Swofford Brothers Dry-goods Company, a corporation. Not being paid, suit was brought by that company against the Hargadine-McKittrick Dry-goods Company to recover on the assumption contract which Mr. Purdy had made under the authority conferred on him. The defense to the suit was that the assumption agreement was induced by the fraudulent representations and concealments of Kramer. It was averred that he had concealed from the Hargadine company the indebtedness due the Swofford company and many others by the making of .false reports, the keeping of secret accounts, and other deceptive practices. On the trial, the’ defendant offered evidence of the fraud practiced on it, and of the claim that it made the assumption agreement in reliance on the truth of Kramer’s representations. This evidence was rejected, for the reason that it was not coupled with an offer to show that the Hargadine company, upon discovering the fraud practiced on it, offered to rescind the contract and transaction by which it entered into possession of the stock of goods. This ruling was affirmed by the majority of the court of appeals of the northern department (Hargadine v. Swofford, 10 Kan. App. 198, 68 Pac. 281), but it cannot be sustained. It is contrary to the principle declared by this court in Clay v. Woodrum, 45 Kan. 116, 25 Pac. 619, that in actions on an agreement made by one person with another for the benefit of -a third, -the rights of the latter will be subservient to the equities growing out of the contract between the other two. Had Kramer paid the debt due the Swofford company and brought an action against the Hargadine company to compel reimbursement, he could not have maintained it, in the face of proof of the fraud and concealment charged against him. What Kramer could do or could not do in a action by him against the Hargadine company is the test of what the Swofilord company can do or cannot do in an action by it against the same party, because the Swofford company must claim under the same contract that Kramer would have been compelled to claim under had he brought the action. In Ellis v. Harrison, 104 Mo. 270, 16 S. W. 198, it was said :
“Whatever right of action a third party to such an engagement may acquire by virtue of its terms against either of the directly contracting parties, it is clear that, on principle, such right cannot be broader than the party to the contract (through whom the right of action is derived) would have in event of its breach. To state this in another form, the right of action by any outside beneficiary, for whose advantage a contract is made between two other persons, is entirely subordinate to the terms of that contract as made. Such beneficiary cannot acquire a better standing to enforce the agreement than that occupied by the contracting parties themselves.”
The case of Dunning et al. v. Leavitt, 85 N. Y. 30, 39 Am. Rep. 617, cited and quoted from in Clay v. Woodrum, supra, is a pointed authority to the same effect as the above, and there are many others.
The reason given by the district court for its rejection of the offered evidence, to wit, that the Hargadine company could not repudiate the assumption contract, into the making of which it had been fraudulently entrapped, without restoring the status quo, is not a valid one. The general rule that a person who receives something under a contract which he would not otherwise have obtained cannot rescind the transaction without making restoration does not apply. The Hargadine company got nothing from Kramer that was not already theirs; the stock of goods belonged to them ; they were entitled to its possession ; they merely entered on their own. The assumption agreement, as to all indebtedness due to third persons over and beyond the $500 allowed by the express terms of the bill of sale of March 2, 1896, was gratuitous on the part of the Hargadine company. It was not required by the terms of the agreement under which Kramer was holding the goods, and it furnished no consideration for his surrender of their possession.
“One who attempts to rescind a contract on the ground of fraud is not required to restore that which in any event he would be entitled to retain, either by virtue of the contract sought to be set aside or of an original liability.” (Kley v. Healy, 127 N. Y. 555, 28 N. E. 598.)
It is suggested that the Hargadine company received from Kramer something additional to the stock of goods, to wit, the store furniture and fixtures. While these were not described in the bill of sale, yet the letter of the Hargadine company of December 3, 1898, treats of them as though they were subject to the terms of that instrument. Many of them were, in fact, disposed of by Kramer himself, in the discharge of his own indebtedness, and some were left in the store building upon the removal of the goods. But a sufficient answer to the claim of new consideration in this respect is that it does not appear that the transfer of any of this furniture or fixtures to the Hargadine company was made to it to induce it to enter into the assumption agreement, and, were it otherwise, there is much doubt, indeed, whether it would constitute, under the circumstances of this ease, a reason for invoking the rule of restoration before rescission.
The judgment of the court below is reversed and a, new trial ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This action was instituted by Luther C. Challiss in the district court of Atchison county, on the 3d day of September, 1883, to recover possession of lot number one, block number thirty-five, and lot number one, block thirty-six, both in L. C. Challiss’s addition to the city of Atchison. The cause was tried before the court without a jury, and conclusions of fact and of law found, and stated by the court as follows:
“1. On March 15, 1858, the plaintiff, Luther C. Challiss, caused to be filed in the office of the recorder or register of deeds of Atchison county, Kansas territory, a map or plat marked ‘ Challiss’s Addition,’ the description written on the back thereof being as follows, viz.:
“ 1 The within plat of Challiss’s addition to the city of Atchison, containing 20/o- acres, and is described as follows: All that part of thenorthwest quarter of fractional section 6, township 6 south, of range 21, which was not originally laid off into town lots by the Atchison Town Company on the west side of said quarter-section, and not included in the original plat of said town. It is described more minutely as follows: Commencing at a point 315 feet east of the west line and 368 feet south of the north line of said quarter-section, running west 315 feet to the west line, south 2906 feet to the south line, thence east 295 feet, thence north 2906 feet, to the place of beginning. The size of the lots, streets and alleys is marked in figures. The said piece of land is the private property of the undersigned. Ltjthee Chalmss.’
“Said plat and description were duly acknowledged on the same day, and recorded in said office March 30,1858, on page 23 of plat-book, but error occurred in recording the same by which the land was described as being in the northeast quarter of said section 6, instead of the northwest quarter thereof.
“ 2. On November 18,1858, said Luther C. Challiss caused another map or plat to be filed in said office, marked £L. C. Challiss’s addition to the city of Atchison;’ the part of the description on the back thereof which related to the land platted, being as follows, namely: £ The within plat of my addition to the city of Atchison is laid off and composed of all the northeast quarter of section 1, township 6 south, of range 20 east, except that part of the north side which was originally laid off into lots by the Atchison Town Company; and all of that part of the northwest quarter of section 6, township 6, range 21, which was not laid off into lots by said company on the west side of said quarter-section.’ This plat and description were signed £L. C. Challiss,’ and acknowledged on the same day, and recorded in said office April 1, 1859, on page 25 of plat-book.
“3. Said plat of March 15, 1858, described twelve blocks —those numbered 2, 3, 4, 5; 6, 7, 8 and 9 being full and regular; block one was divided into two parts by Eighth street— lots 1, 2, 3, 4, 5, 6 and 7 being on the east side, and lot 8 on' the west side of said street. Block 10 was fractional, and west of block 9 across Eighth street; and block 12 was fractional, and west of block 7 across Eighth street; blocks 10, 11 and 12 were not subdivided into lots. All other blocks were subdivided into lots.
“In said plat of November 18, 1858, said blocks 2, 3,4, 5, 6, 7, 8 and 9 were identical with the blocks of the same numbers upon said plat of March 15, 1858, the same together with the lots, streets and alleys remaining unchanged; but that part lying west of Eighth street, being lots 8 and 9, was ignored or disregarded as a part of block 1, and became lot 1 of block 18. New territory was added to said blocks 10 and 11 as they existed by the plat of March 15,1858, and they were extended further west, but they were not subdivided into lots. Block 12 of first-named plat was also extended further westward into the new territory, and it was subdivided into lots. Block 13, and all other blocks of higher number consecutivély up to number 55 inclusive, except said small part of block 18, were new territory, additional to that described in said plat of March 15, 1858. All of the territory in the plat of March 15, 1858, was included in the subsequent plat of November 18, 1858, and no part of the lots in controversy in this action was included in said plat of March 15, 1858.
“4. Thé territory platted and described as £L. C. Challiss’s addition to the city of Atchison’ by said plat of November 18, 1858, has been commonly known as ‘Challiss’s addition to the city of Atchison,’ and there has never been platted in said county of Atchison any addition by the name of Challiss, other than by the two plats of March 15, 1858, and November 18,1858, respectively, hereinbefore described; and for several years all of said blocks numbered 1 to 55, inclusive, and the subdivision of the same into lots, were described on the tax-rolls of Atchison county as ‘Challiss’saddition,’ and sometimes by the abbreviation ‘C. A.;’ and in the years 1874 and 1875 all of said blocks and lots were described on said tax-rolls as being in ‘ Challiss’s addition,’ there being no property described for said years on said tax-rolls as in ‘L. C. Challiss’s addition.’
“5. In 1873 and 1874 the plaintiff was the owner in fee simple of lot 1, block 35, and lot 1, block 36, all in L. C. Challiss’s addition to the city of Atchison aforesaid, and he has ever since been such owner except as against the tax claim and tax deeds hereinafter mentioned; and said lots were subject to taxation in the year 1874, and they have been so subject to taxation ever since.
“6. In 1874 said lots were assessed by George W. Graves, who was the assessor of said city of Atchison and the addition thereto; but the affidavit returned with the assessment-roll was'defective in form, no venue being stated therein, and the same being in other respects irregular. The following is a copy thereof:
“ ‘ I, G. W. Graves, do solemnly swear that the return to which this is attached contains a description of each parcel of real property within the city of Atchison, so far as I have been able to ascertain the same, and that the values attached to said parcels in said return, as I verily believe, is the true value for the purposes of taxation. So help me God.
Geokge W. Geaves.
“‘Sworn to and subscribed before me, this 6th day of July, 1874.
[Seal of Atchison county.] C. H. Kkebs, Comity Clerk.’
“7. The taxes leved upon said lot 1, block 35, for said year 1874 were $9.26, and the three penalties before sale were $1.38, making a total of taxes and penalties of $10.64. And the taxes levied upon said lot 1, block 36, for said year 1874, were $9.81, and the three penalties before sale were $1.47, making a total of taxes and penalties of $11.28. Said taxes were not paid, and on September 16, 1875, both of the lots were offered separately for sale by the county treasurer, but no person bidding thereon, the county treasurer bid each of them off for the county of Atchison, said lot 1, block 35, for the sum of $10.84, and said lot 1, block 36, for $11.48, leav ing for costs of advertising and sale of said lots, 20 cents in each. Said lots were advertised for said tax sale as being in ‘ Challiss’s addition,’ (not in ‘ L. C. Challiss’s addition,’) the sale-notice being as follows:
“‘Tax-Sale Notice, Oeeioe County Teeasubee, Atchison, Kas., July 8, 1875.— Notice is hereby given that the following-described property, or so much of each tract as may be necessary for the purpose, will, on the first Tuesday of September, 1875, and the next succeeding day, be sold by me at public auction at this office for the delinquent taxes and charges thereon of the year 1874, unless the same shall be previously paid. M. Quigg, County Treasurer.’
“[Here follows the description of lands and lots.]
“Attached to the notice is the proof of the publication, which is the only proof of the publication of said notice on file in the office of the county clerk, (and there is no proof in the office of the county treasurer,) and no other evidence of publication of said notice was given on the trial; said proof so filed in the office of the county clerk (without date or indorsement of filing) being as follows:
“ ‘Oeeioe oe the County Cleek, Atchison County, Kansas — Atchison, Kansas, August 16,1875.— I, F. J. Wendell, business manager of the Atchison Weekly Champion, a weekly newspaper, and the official paper of Atchison county, and published in the city of Atchison, Kansas, a newspaper of general circulation in said county, and the annexed tax-sale notice dated treasury office, July 8, 1875, for the aforesaid county, was published in said Weekly Champion for four consecutive weeks, commencing July 24,1875, and ending August 14,1875, inclusive.
F. J. Wendell.
“ ‘ Sworn to and subscribed before me, this 16th day of August, 1875.
[Atchison County Court. Seal. Atchison, Kansas.]
Chas. H. Kbebs, County Clerk.
S. H. Kimball, Deputy.’
“8. On August 14,1875, the Atchison Savings Bank was, and ever since said time it has been, a banking corporation duly organized and existing under the laws of this state relating to savings banks, with its place of business at Atchison, in Atchison county, Kansas, and with Richard A. Park as its cashier. One Henry Jacobs had built certain sidewalks in said city of Atchison, then a city of the second class, along certain lots, including those in controversy in this action, and said city on said day caused to be issued and delivered to him nine certain written evidences of indebtedness called Aide-walk bonds,’ a copy of one of which is as follows:
“ ‘ $28.50. — Sidewalk Bond. — No. 301. — 1875.—The City oe Atchison, State oe Kansas. — To the Treasurer of the City of Atchison: Pay to Henry Jaoobs or order, the sum of twenty-eight 50-100 dollars only, out of the money in the treasury collected for assessments made in the year 1875 on all lot one, block thirty-five, Challiss’s addition, for] making sidewalks along said described property. 9
“1 By order of the city council. 0. Rohb, Mayor.
[Seal of city.] Attest: N. A. Maheb, Cleric.’
“Another of said ‘sidewalk bonds’ was in all respects the same as the foregoing, except that it was numbered 303, and the property described was lot 1, block 36, Challiss’s addition. And the other seven bonds were of like tenor and effect, except that they were upon other lots in said city.
“On August 6, 1875, said Henry Jacobs took said bonds to said cashier at said bank, and sold them to said bank through said cashier, and indorsed them in blank, and said bonds were paid for with the funds of the bank, and were placed among its securities; said Eichard A. Park never claiming any individual interest therein, nor any interest except as an officer of said bank.
“9. The lots in controversy were vacant and unoccupied until about one month before this action was commenced, and on May 8, 1877, not having been redeemed from said sale of 1874, and not having been assigned, and the taxes of 1875 and 1876 not having been paid, said Eichard A. Park, acting in his own name, but for the bank, took an assignment of the tax-sale certificates on each of said sales, turning in said sidewalk bonds to cover the sidewalk tax of 1875 and interest— the cost of redemption for taxes of 1874 and 1875 on lot 1, block 35, being $71.87, and on lot 1, block 36, being $73.97; and at the same time said Eichard A. Park for and with the funds of the bank paid the taxes of 1876 on said two lots — being on lot 1, block 35, $6.45, and on lot 1, block 36, $7.15, which amounts were indorsed in the certificates of assignment.
“At the same time Eichard A. Park in like manner took the assignment of certain other lots on which he held such sidewalk bonds, so that the total amount of such assignments, including the indorsed taxes of 1876, was $701.88, while said sidewalk bonds turned in amounted only to $363. The balance of $338.88 was paid in cash out of the funds of the bank, and said certificates of assignment were placed among the securities of the bank and charged to it and not to said Eichard A. Park.
“10. On December 22, 1877, said Eichard A. Park for said bank and out of its funds paid the taxes of 1877 on said lots — being on lot 1, block 35, $6.56, and on lot 1, block 36, $7.29, and said amounts were indorsed on the respective certificates of assignment.
“11. The notice of expiration of time for redemption published by the county treasurer on said sales, reads as follows:
“‘Notice.— Oeeioe County Teeasubeb, Atchison Co., Atchison, ■Kansas, April 1, 1878. — -Notice is hereby given that the following-described lands and town lots, situate in Atchison county, state of Kansas, were sold for delinquent taxes, penalties and charges for the year 1874, at a sale commenced September 7 and closed September 16, 1875. Unless such lands and lots owned by parties unknown shall be redeemed before the days limited therefor as specified, they will be conveyed to the purchaser.
“‘Given under my hand the day, and year above written.
S. R. Washes, Treasurer Atchison County.’
“Here follows a description of the unredeemed lands and town lots, including the lands in controversy, tinder date of September 16,1878, and as being in ‘Challiss’s addition’ (not L. C. Challiss’s addition); the cost of redemption being stated as follows: on lot 1, blocíc 35, $120, and on lot 1, block 36, $123.18. Said notice was published in the Patriot, the official weekly newspaper, on April 6, April 13, April 20, April 27, and May 4, 1878; and affidavit was made thereto and filed in the office of the county clerk May 6, 1878.
“12. On September 23,1878, said Eichard A. Park assigned each of said certificates of assignment to said Atchison Savings Bank, and on September 24, 1878, at his request as cashier of said bank, the county clerk of said county of Atchison executed and delivered to said bank and in its name for it and its successors and assigns, a separate tax deed upon each of said lots for the taxes of 1874, 1875, 1876 and 1877, the consideration recited in each deed being as follows: for lot 1, block 35, Challiss’s addition, $84.88, and for lot 1, block 36, Challiss’s addition, $88.41; said deeds were duly acknowledged, and they were each recorded in the office of the register of deeds of said county of Atchison, September 25, 1878. The costs of deeds and recording same were $5.40, being $2.70 each.
“13. On December 20, 1878, said bank paid the first half of the taxes of 1878 on said lots, being on lot 1, block 35, $2, and on lot 1, block 36, $2.62; and on June 20, 1879, said bank paid the second half of the taxes for 1878 on said lots, being on lot 1, block 35, $2, and on lot 1, block 36, $2.63; on December 20,1879, said bank paid the first half of the taxes of 1879 on said lots, being on lot 1, block 35, $2.07, and on lot 1, block 36, $2.32; and on June 20, 1880, said bank paid the second half of the taxes for 1879 on said lot 1, block 35, being $2.07; but the bank did not pay the second half of the taxes of 1879 op said lot 1, block 36, being $2.32, the same having been paid by said L. C. Chaliiss June 15, 1880. It further appears that on June 15,1880, said L. C. Chaliiss paid the full taxes for 1879 on said lots, being on lot 1, block 35, $4.14, and on lot 1, block 36, $4.64, including the $2.32 before mentioned; and on December 20, 1880, said L. C. Chaliiss paid the first half of the taxes of 1880 on said lots, being on lot 1, block 35, $23.53, and on lot 1, block 36, $23.53.
“14. The second half of the taxes on said lots for 1880 not being paid, the lots were sold separately at tax sale by the county treasurer, September 6, 1881, to F. T. Walker, said lot 1, block 35, for $24.90, and said lot 1, block 36, for $24.90; on March 29,1883, said F. T. Walker paid the taxes of 1882 on said lot 1, block 35, and the same was indorsed on his certificate of sale. The taxes on said lot 1, block 36, for 1881, $5.19, and for 1882, $5.75, were paid by said F. T. Walker, and duly indorsed on his certificate of sale. On August 15, 1883, said L. C. Chaliiss redeemed said lots from said sales and taxes indorsed, by paying into the county treasury in cash an amount equal to the cost of redemption — and cost of the redemption certificate — the amount so paid on said lot 1, block 35, being $44.95, and on said lot 1, block 36, $49.45.
“15. Before June 2,1883, said F. T. Walker had sold and transferred the two tax-sale certificates referred to in conclusion of fact 14, to said Atchison Savings Bank, and said bank was the owner and holder thereof. And on or shortly before said date, said bank entered into an arrangement with L. F. Bird and H. M. Jackson, defendants, both attorneys at law in Atchison, whereby they agreed to get as much as they could out of said two lots for said bank on account of said two tax deeds and said two tax certificates so held by said bank; and in consideration of their services, said L. F. Bird and H. M. Jackson were to receive 15 per cent, of the amount realized, and they were to pay the remaining 85 per cent, to said bank. And as a part of said arrangement, said bank, by its proper officers, executed a deed of conveyance of said two lots on June 2,1883, to said H. M. Jackson, and said deed was duly delivered to said H. M. Jackson, who filed the same for record in the office of the register of deeds of this county on June 5, 1883. Said H. M. Jackson paid nothing for said deed, nor for said lots, and never agreed to pay anything therefor, except as he was to pay 85 per cent, of the amount realized as aforesaid. The two tax-sale certificates purchased by said bank from said F. T. Walker were by the same arrangement placed in the hands of said L. F. Bird by said bank. About August 3, 1883, said H. M. Jackson and L. F. Bird took actual possession of said lots, by fencing up and using each of the same — said lots having theretofore been always vacant and unoccupied.
“16. On July 30,1884, said L. F. Bird, for and on behalf of said bank, and under the arrangement stated in conclusion of fact 15, applied to the county treasurer for the redemption-money paid in by said L. C. Challiss August 15, 1883, as stated in conclusion of fact 14, and said L. F. Bird received the same for said bank — the amount being $93.90.
“17. On March 20,1884, said L. C. Challiss paid the taxes on said lots for 1883, being on lot 1, block 35, $8.43, and on lot 1, block 36, $4.67.
“18. Said bank did not purchase said tax-sale certificates and obtain said deeds with a view of using said real estate for any of the purposes of the bank, but for the purposes of investment and profitable speculation only.
“ CONCLUSIONS ON LAW.
“1. At the commencement of this action, and at the time the plaintiff filed his supplemental reply, the plaintiff was the owner of the real estate in controversy, and the defendants unlawfully kept him out of the possession of the same.
“2. The plaintiff is entitled to recover the real estate in controversy, and costs of suit.
“3. The defendants are not entitled to any relief under the answer and cross-petition of said H. M. Jackson.”
There are specific objections to the validity of the tax deeds, and they consist of: First, the lots are described in the tax-rolls as being in “Challiss’s addition,” when as a matter of fact the addition was platted as “L. C. Challiss’s addition;” but it has been commonly called and known as “Challiss’s addition.” Second, in 1874 these lots were assessed by George W. Graves as city assessor, and it is claimed that the affidavit to the return of the assessor states no venue, and is defective in other respects. Third, that there was an overcharge in the amount of the costs of the tax sale of each of the two lots. Fourth, that the tax-sale notice was defective in the description of the property as being in “ Challiss’s addition,” instead of in “L. C. Challiss’s addition.” Fifth, that there is no proof of the publication of the notice of tax sale on file in the office of the county treasurer, and the proof on file in the office of the county clerk is without date or indorsement of filing, and is otherwise defective.
I. There are two objections to the tax deeds that under the recent decisions of this court are fatal, and hence they are the only ones that need now to be noticed; and they are, that there are sums included in the taxes for which the lots were sold, that were not charges against them, and were in excess of the proper taxes upon the lots, and a sufficient time was not given for redemption. There was included in the amount for which the lots were sold, a charge of ten cents on each lot for publishing the delinquent tax list and notice of sale. The taxes levied upon lot 1, block 35, for the year 1874 were $9.26, and the three penalties before the sale amounted to $1.38, making a total of taxes and penalties of $10.64. The taxes levied upon lot 1, block 36, for the year 1874 were $9.81, and the three penalties before the sale were $1.47, making a total of taxes and penalties of $11.28. At the tax sale the county treasurer bid them off for the county of Atchison, lot 1, block 35, for the sum of $10.84, and lot 1, block 36, for $11.48. This statement conclusively shows that there was added to the taxes and penalties the sum of ten cents on each lot for the treasurer’s fee for the certificate of sale, and ten cents on each lot for publication fees for advertising notice, of tax sale. The only proof of publication of the notice of sale was found in the county clerk’s office, there being no proof of publication found in the county treasurer’s office, and no other proof of publication was offered on the trial but that found in the county clerk’s office, and that was without date or indorsement of filing. This consisted of an affidavit attached to the notice of publication made by F. J. Wendell, as business manager of the Atchison Champion, on the- 16th day of August, 1875. The tax law requires the proof of publication to be transmitted to the county treasurer immediately after the publication thereof, and if Said proof is not transmitted within fourteen days after the last publication, the printer shall not be paid for such publication. No proof of publication is found in the county treasurer’s office, and the costs of advertising the lots never became a charge against the county, and if the fees for advertising the sale never became a charge against the county, it cannot become a charge against the lots, and the tax deeds are void. This is settled by the cases of Fox v. Cross, 39 Kas. 350, and Blanchard v. Hatcher, 40 id. 350, 20 Pac. Rep. 15.
The notice of redemption was as follows:
“ Office of County Treasurer, Atchison Co., Atchison, Kas., April 1, 1878.— Notice is hereby given, that the following-described lands and town lots, situate in Atchison county, state of Kansas, were sold for delinquent taxes, penalties and charges for the year 1874, at a sale commenced September 7 and closed September 16, 1875. Unless such lands and lots, owned by parties unknown, shall be redeemed before the days limited therefor as specified, they will be conveyed to the purchaser.
“Given under my hand, the day and year above written.
S. R. Washer, Treasurer Atchison Go.”
The owner has three years from the day of sale to redeem, (tax law, §127,) and it has been universally held by this court, ^fit such a notice was fatally defective. It is not SpecifiCj definite, or correct. Adopting the lan-
guage of Brewer, J., in the case of Blackistone v. Sherwood, 31 Kas. 35: “Who can tell from this notice alone when the time of redemption will expire?” On the 7th of September, or on the 16th day of that month? The day of sale is not specified as the statute requires. The record shows that the sale of these lots for delinquent taxes occurred on the 16th day of September, 1875. In the computation of the statutory period within which a redemption from sale could be made, the day of sale must be excluded. See generally the cases of Hollenback v. Ess, 31 Kas. 87; English v. Williamson, 34 id. 212; Cable v. Coates, Assignee, 36 id. 191; Hill v. Timmermeyer, 36 id. 252.
II. The only remaining question is as to whether the plaintiff’s in error are entitled to relief under the answer and cross-petition of H. M. Jackson. This prayed that in the event that said tax deeds or either of them be adjudged to be invalid, then that the taxes and charges so paid under said invalid deed or deeds, and since that time, and the value of the improvements made on said lots by the tax-purchasers, may be adjudged a first lien upon said lots respectively, and that the plaintiff be adjudged to pay the same before he is let into the possession of said lots. The judgment of the court below was, that the tax-purchasers or their assigns were not entitled to such relief. No specific reason is given for this conclusion, and we are left to gather from the facts alone the considerations upon which it was made. The first supposition that can be indulged in as tending to support the judgment in this respect, is because the Atchison Savings Bank, a corporation organized under article 16, chapter 23, General Statutes, has no authority or power to take a tax deed. Admitting this to be true, and yet there is such a failure of title by reason of it, that the bank is protected by the sweeping and vigorous terms of § 142 of the tax law, and the construction universally given that and a similar provision by this court in the cases of Smith v. Smith, 15 Kas. 290; Fairbanks v. Williams, 24 id. 16; Coe v. Farwell, 24 id. 566; Estes v. Stebbins, 25 id. 315; Arn v. Hoppin, 25 id. 707; Russell v. Hudson, 28 id. 99; Belz v. Bird, 31 id. 139.
The only remaining reason for such a conclusion of law is founded on this state of facts: On the 24th day of September, 1878, the county clerk issued to the Atchison Savings Bank a separate tax deed to each of said lots, for the delinquent taxes of 1874, and this included the taxes of 1875,1876 and 1877. On the 20th day of December, 1878, the bank paid the first half of the taxes of 1878, and on June 20, 1879, paid the second half of the taxes of 1878. On the 20th day of December, 1879, the bank paid the first half of the taxes of 1879 on said lots, and on the 20th day of June, 1880, the bank paid the second half of the taxes on lot one, block 35, but did not pay the second half of the taxes on lot 1, block 36, for 1879, the sum having been paid by L. C. Ohalliss on the 15th day of June, 1880. It further appears that L. C. Challiss paid the full taxes for the year 1879 on both lots, on the 15th day of June, 1880. On the 20th day of December, 1880, Challiss paid the first half of the taxes of that year on both lots. The second half of the taxes of 1880 not having been paid by anyone, the lots were sold separately at the tax sale, by the county treasurer, September 6, 1881, to F. T. Walker. He paid the taxes of 1881 and 1882. On the 15th day of August, 1883, L. C. Challiss redeemed the lots from the sale to Walker, paying on lot 1, block 35, $44.-95, and on lot 1, block 36, $49.45. Before the 2d day of June, 1883, Walker had assigned the two tax-sale certificates held by him, to the Atchison Savings Bank, and about that time the bank had made an agreement with the plaintiffs in error, both attorneys at law in the city of Atchison, whereby they agreed to get as much as they could out of said two lots for said bank on account of said two tax deeds and said two tax certificates, and in consideration of their services were to receive fifteen per cent, of the amount realized, and pay the remaining eighty-five per cent, to the bank. As a part of this arrangement, deeds were executed by the bank to H. M. Jackson, conveying the lots to him, and the two certificates of sale were delivered to L. F. Bird. They paid nothing to the bank for the deeds or certificates, nor ever agreed to pay anything except as above recited. On the'30th day of July, 1884, Bird for and on behalf of the bank, and under the arrangement stated, applied to the county treasurer for the redemption-money paid in by'Challiss on the 15th of August, 1883, and received the money for said bank from the county treasurer, amounting to $93.90.
It is claimed on these facts as found by the trial court, that these plaintiffs in error, as representatives of the bank, are estopped in this action from asserting title to these lots, and are estopped from asserting any lien on the premises by reason of their tax deeds for the taxes of 1874, and the subsequent years for which they paid the taxes. The argument in support of this contention is founded on §§ 127 and 130 of the tax law. Only the owner may redeem, and only the owner of the tax-sale certificate is entitled to demand and receive the redemption-money; and to entitle him to receive this redemption-money, he must surrender his claim on the land. He cannot claim both to be the owner and to be entitled to the redemption-money; hence, when Bird, as the representative of the bank, applied for and received the redemption-money paid in by Challiss in August, 1883, by his application for and the reception of the redemption fund, he acknowledged that Challiss was the owner of the lots. If the bank claimed ownership by virtue of the sale for taxes for 1874, the legal obligation of the bank was to pay the taxes represented by the redemption fund; but to get that redemption it not only admitted that Challiss was the owner, but also asserted by its act that the bank was not owner. It would seem as if the bank was estopped from asserting title to the lots against Challiss after it had applied for and received the redemption fund; but as we have already held that the deed was void because of having been sold for a sum in excess of the legal charges against the lots, and because no sufficient notice of redemption was given, it is not necessary to expressly decide that question, but to consider it ouly so far as it applies to a denial of the relief sought, by establishing a lien for taxes paid. If the plaintiffs in error are entitled to a lien under § 142 of the tax law, it will be for the amount of taxes paid on said lots, with interest and costs as allowed by law up to the date of said tax deeds, including the costs of the tax deeds and the recording of the same, and the further amount of the taxes paid after the date of said deed, with interest. In other
words, they are entitled to a lien for the taxes of 1874? 1875) 1876, 1877, 1878, and the first half of the taxes of 1879 on both lots, and the second half of the taxes for that year on lot one, block thirty-five, with costs, interest and fees for making and recording tax deeds.
Does the fact that the bank, by the action of its representative in the reception of the redemption fund, has placed itself in such a position that it cannot now be heard to say that Challiss is not the owner of the lots, affect in any manner its claim for a lien on the lots of the owner for taxes paid on the lots, with costs and interest ? The admission of ownership in Challiss only goes to his title, and not to the extent that there are no liens against the lots. The tax deeds, however void, gave color of title enough to the bank as a purchaser at a tax sale to pay the subsequent taxes. The payment by the bank cannot be considered as a wholly voluntary one by a stranger to the title, because belief in that title is expressed in the act of the institution of this suit, and because the tax deed is evidence of title, and because the assignment to the bank of the tax certificates of sale that subsequently ripened into the deed for the taxes of 1874 gave them some interest in the. lots. The sale for the unpaid second half of the taxes for 1880 never ripened into a tax deed, because of the redemption by Challiss as authorized by law. The county had no claim on this money, because it had been paid by Walker, and he could have received it without creating an estoppel, and he or his assigns are the only persons to whom the county treasurer was authorized to pay it-. Its reception by Bird was an acknowledgment that the lots had been legally redeemed from the tax sale of 1881, and that Bird and those he represented had no rights under that sale. We think this is the extent of the operation of the reception of the redemption-money paid in by Challiss, and that it does not estop the plaintiffs in error from asserting and securing all their rights under § 142 of the tax law. (Cooper v. Bushley, 72 Pa. St. 252; Gray v. Coan, 30 Iowa, 536.)
The trial court erred in its third conclusion of law, and for this reason we recommend that the cause be remanded to the district court, with instructions to render a judgment in favor of Challiss for the possession of the lots, and to proceed to adjust the lien of the plaintiffs in error for the taxes paid on said lots, with interest and costs. The costs in this court will be divided between the parties.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The defendant requested the court to submit to the jury for their answers special questions. Four of the questions the court refused to submit, which are as follows:
“Q,. No. 6. How much was the damage to the farm by reason of the necessity of crossing stock from one side to the other?
“Q,. No. 7. How much damage to the laud by reason of the inconvenience for farming and using and occupying such land, caused by the building of said railway through, over and across said land ?
“Q,. No. 8. How much damage to the land by reason of the ditches being cut on each side of defendant’s road-bed along the. line of said railway?
“Q,. No. 9. How much damage to the land of the plaintiff by reason of the embankments being thrown up along the line of said defendant’s railway?”
The plaintiff in error insists that these questions ought to have been submitted to the jury; that an issue was raised by the pleadings covering each of these questions, and that there was evidence offered to the jury upon each item of damage set out in the petition. Evidence was offered tending to establish all the allegations of the plaintiff’s petition, but no evidence was offered giving in detail the items of damage covered by these four questions which the court refused to submit; and if these questions had been submitted to the jury there was no basis from which they might have determined the accurate amount of damage to be allowed by them on the separate items, as requested by these questions. It is the duty of the trial court to submit questions of fact that are raised by the pleadings and evidence; but where questions are asked to be submitted that are pertinent under the issues raised by the pleadings, yet no evidence has been offered from which the jury could intelligently or fairly answer them, such questions ought not to be submitted to the jury. The evidence in this case shows that plaiutiff claimed damage for all of these special items, and the witnesses testified that they took all these items into consideration in estimating the damage to the plaintiff’s farm, but each witness replied when interrogated that he was unable to give separately the items of damage thus included Among the questions submitted to the jury was the following:
“ How much was the damage to the plaintiff’s farm for the want of a crossing from the north to the south side of said railroad? A-ns..- For the lack of evidence, we, the jurors, can’t say.”
The defendant requested the court to require the jury to answer this question more definitely, which the court refused to do. This question was of the same character of the four that the court refused to give, and ought to have been included with them and excluded from the jury; and the jury gave such an answer to this question as they doubtless would have given to the other four had they been submitted to them. No evidence was offered or data given by which the jury could have intelligently answered these questions, and we see no error in the court’s refusal to require the jury to more definitely answer the question.
Defendant filed a motion for a new trial, and in support of that motion offered Thomas Rouse as a witness. Rouse was one of the jurymen that tried this cause. The question which the court refused to permit him to answer was as follows:
“I will ask you if it was not a matter of fact that you agreed on the general verdict first, and then answered the special interrogatories with a view of agreeing with your general verdict, without reference to any particular damage to auy particular part of the farm?”
"We think the court properly sustained the objection to this question, for while a part, of the question was proper, another part was improper. It was competent to have the juryman state what was done, and he might have answered the first part of this question and stated that the general verdict was found first and the interrogatories answered afterward. This would have been proper and competent; but the latter part of the question reaches beyond the power of inquiry into the verdict. What was done in the jury-room, what is known to all the jury to exist, and what relates to matters not connected with their individual consciences in arriving at or determining a verdict, may be testified to; but where it is sought to show the reason for a verdict, or any element that goes to make up the verdict, or the particular ideas of the jurymen in determining their verdict, these are all beyond the province of inquiry. And so where this question contains an inquiry which reaches their views and the reasons for those views, either in answer to the special interrogatories or the general verdict, it touches a matter which cannot be inquired into, and the court committed no error in excluding the question.
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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The opinion of the court was delivered by
Johnston, J.:
On the rehearing a modification of the judgment rendered by this courtis asked by the defendant in error. The judgment given by the district court against Heithecker which was ordered to be reversed, was for $432.40. This judgment was based upon two claims, one for $292.40 on notes alleged to have been left with Heithecker for collection by E. C. Thornton & Co., and which he had collected for them, and also a claim of $140 for cigars sold to him by E. C. Thornton & Co., both of which claims it was alleged had been assigned by E. C. Thornton & Co. to Fitzhugh, the defendant in error. Prior to the beginning of these proceedings, a notice of garnishment had been served upon Heithecker by a creditor of Thornton & Co., and an attempt made to subject what was due from Heithecker to the payment of Thornton & Co.’s debt. In this action Pleitheoker denied that the notes were left with him for collection, and claimed that he had purchased and paid for the same. He admitted that he was indebted on the claim of $140 for the cigars purchased from Thornton & Co., and he brought and paid into court the sum of $140.35, together with the accrued cost of $2.90, and asked the court to pay that sum to the defendant in error, Pitzhugh, if the same was legally due to him. He stated in his pleading that he did not desire to contest with Pitzhugh the validity of the indebtedness for the $140, nor require him to obtain proof that he was the assignor and owner of the account, but that he tendered that sum, with the accrued costs, and simply asked the court to protect him so that he should not be required to pay it a second time. ,
By agreement of the parties the only question submitted to the jury was whether Heithecker owed Pitzhugh the sum of $292.40, and as to the $140 claim it was agreed that the court should determine from the evidence to whom that amount was due; and the court, after hearing the evidence, determined that it was justly due to the defendant in error.
When judgment was rendered in favor of Pitzhugh, an application was made in behalf of the creditors of Thornton & Co. to file an interplea, claiming a lien upon the sum of $140, by virtue of garnishment proceedings; but the court determined that the application came too late, and properly denied it. Although an exception was taken to this ruling by counsel for the creditors of Thornton & Co., they are not now complaining.
The jury found upon the issues submitted to it that Heithecker was owing upon the notes left for collection the sum of $292.40, and to this amount the court added the further sum of $140, about which there was no controversy between the parties to this action, and entered judgment for bot'h as an entirety. The fact that a portion of the judgment was conceded to be correct was not brought to the attention of this court at the first hearing, aud hence an unqualified reversal was ordered. That part of the judgment admitted by Heithecker to be due, which the court found rightfully belonged to Pitzhugh, and of which finding no complaint is made, should stand as it was rendered; and to that extent the judgment hereto fore given will be modified.
The defendant in error further claims that the costs in this court should be divided. Ordinarily, where a judgment is reversed in part and affirmed in part, the costs are equally divided between the parties. In the present case, however, we think the plaintiff in error is entitled to recover all of his costs. He only complained of the rulings made with respect to the matter which was in dispute; and upon these the order of reversal is based. He therefore obtains all he asks, and ought not to be taxed with costs because the j udgment included an amount which was not in controversy. It is true, the whole judgment was brought up on the record by him, but it was entered by the district court as an entirety, and he could not do otherwise. The points which he made in his proceeding in error were sustained and the judgment as entered held to be erroneous, and as he obtained all that he sought by the proceeding there should be no division of costs. Judgment should be entered in the district court against Heithecker and in favor of Fitzhugh for $140, and the interest thereon, and only to this extent will the former order of reversal be modified.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
This was an action brought by F. W. Marsh to enjoin the auditor of state from issuing a certificate of indebtedness under the provisions of chapter 180 of the Laws of 1887. S. A. Haseltine and Chancellor Livingston were made defendants with said auditor. The plaintiff alleges in his petition for injunction that in 1863, and for a long time prior thereto, the plaintiff and Livingston were partners engaged in the livery business in Lawrence, Kansas, and that on the 21st day of August of said year their property, amounting to $3,680, was all destroyed by QuantrilFs guerrilla band, and that afterward said account was audited for the firm, and again reaudited in 1875, and a certificate issued to Livingston for $1,840, in the 'name of Livingston. Afterward, and under the provisions of chapter 180 of the Laws of 1887, the state assumed the payment of these claims, or a certain proportionate part thereof, and directed the auditor to prepare a new schedule from the report of the commission that audited the claims in 1875, and to issue certificates of indebtedness for the amount of said claims to the original claimants, their heirs or legal representatives, and also to issue certificates of indebtedness when claims are allowed to a firm or partnership to the individual members of such partnership or firm, or to their heirs, in proportion to the interest each had in such firm or partnership. Plaintiff also alleges that the firm or partnership of Marsh & Livingston has been fully settled except the settlement of this claim, and that said Livingston is a nonresident of the state of Kansas, and is insolvent; also, that the auditor is about to issue a certificate of indebtedness for the whole amount of said claim, and deliver the same to Livingston. Plaintiff' asks that the auditor be enjoined from issuing said certificate to said Livingston, and that he be required to issue a certificate to both Livingston and the plaintiff, each for one-half of the amount awarded by the report of the commission awarding to said Livingston $1,840, for and on behalf of the firm of Marsh & Livingston. Defendant McCarthy demurred to this petition upon the grounds, first, that the court had no jurisdiction of the subject of the action; second, a defect of parties plaintiff and defendant; third, that the petition does not state a cause of action; and fourth, that the petition does not state sufficient grounds to warrant an injunction against the defendant. This demurrer was overruled, and defendant elected to stand upon his demurrer, and judgment was rendered as prayed for in the petition. Defendant Haseltine filed his disclaimer, and the record shows no service upon Livingston, and no appearance by him.
The question now presented is, had the court authority or right to pronounce a judgment under these facts? The controversy is one affecting equally Marsh and Livingston, and is one in which the auditor has no interest. Before a final judgment could properly be 'rendered enjoining the auditor from issuing the certificate and determining the respective rights of the parties to separate certificates, all the parties in interest must be before the court; and as the record shows that Livingston was not served and made no appearance in the action, then no final judgment could be rendered until he was brought before the court by proper service. This rule follows The State v. Anderson, 5 Kas. 90; Gilmore v. Fox, 10 id. 509; Hays v. Hill, 17 id. 360; A. T. & S. F. Rld. Co. v. Wilhelm, 33 id. 206; Carpenter v. Hindman, 32 id. 601; Cassatt v. Comm’rs of Barber Co., 39 id. 505. If Livingston had been served in the action, or had made an appearance, and the court had found the facts to be as alleged in the petition, we see no good reason why judgment might not have been pronounced by the court in the action. No other remedy has been pointed out by which the relief sought by the plaintiff could be obtained. If the defendant Livingston was insolvent and a non-resident of the state, then no remedy by an action against him could avail the plaintiff.
We therefore recommend that the cause be reversed, and remanded for further proceedings.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This action was commenced by the plaintiff in error in the distrito court of Doniphan county, on the 9th day of February, 1886. It is an action in ejectment to recover the possession of eighty acres of land, and to recover rents and profits. The plaintiff below and plaintiff' in error is a grandson of one Michael Bunting, who by will devised his estate, real and personal, to his wife during her lifetime, and then to descend to his legal heirs. The father of the plaintiff in error died before the death of the grandmother, and at her death he claimed the estate as sole surviving heir. The defendant in error claims the realty by virtue of conveyances from the grandmother and father of the plaintiff in error executed in their lifetime. The defendant in error has had the possession and use of the real property since the execution of the conveyances in October, 4868. The answer is a general denial, and a plea of the statutes of limitations. There was a trial by the court at the October term, 1886.
All the material facts are stated in the special findings of fact made by the court on the trial. They are as follows:
“1. Michael Bunting died in said county and state, January 9, 1862, seized in fee simple of the following-described land, to wit: north half of northeast quarter of section 9, township 3, range 20, being the land in controversy.
“2. At his death he resided with his family upon said land.
“3. Michael Bunting at his death left surviving him his widow, Nancy Bunting, and his son, Jacob L. Bunting, who was the only child of said Michael Bunting known to be living at his death.
“4. Michael Bunting had one other child, Daniel Bunting, born to him in his lifetime, but said son Daniel Bunting left Elwood, Kansas, with his wife, in 1857 or 1858, going off in a flat-boat on the Missouri river, and himself and wife were never heard from thereafter, and he left no children, and so far as the evidence shows, none were born to him.
“ 5. Nancy Bunting, widow of Michael Bunting, died April 27, 1885.
“6. Jacob L. Bunting died March 5, 1870, his widow, Sarah E. Bunting, and his only child, Thomas M. Bunting, the plaintiff in the case, surviving him.
“7. Sarah E. Bunting, widow of Jacob L. Bunting, after her husband’s death married Isaac Erickson, and said Erickson and one child by said marriage are now living.
“8. Sarah E. Erickson, former wife of Jacob L. Bunting, died January 26, 1880.
“ 9. Michael Bunting made a will on the 5th day of October, 1861, which was thereafter admitted to probate, and recorded in the office of the prolate court of Doniphan county, Kansas, and letters testamentary with a copy of the will and certificate thereof, issued to Hugh Robertson, executor therein, on March 5, 1862.
“10. The said will and letters testamentary are in words and figures as follows, to wit:
“‘The Tebeitoby op Kansas, County op Doniphan, ss.— To all Persons to whom these Presents shall come, Greeting: Know ye, that the last will and testament of Michael Bunting, deceased, hath in due form of law been exhibited, proven and recorded in the office of the judge of the probate court for Doniphan county, a copy of which is hereunto annexed; and inasmuch as it appears that Hugh Robertson has been appointed executor in and by the last will and testament to execute the same, and to the end that the property of the testator may be preserved for those who shall appear to have a legal right or interest therein, and that the said last will may be executed according to the request of the testator, we do hereby authorize him, the said Hugh Robertson, as such executor, to collect and secure all and singular the goods, chattels, rights and credits which were of the said Michael Bunting at the time of his death in whosesoever hands or possession the same may be found, and to perform and fullfill all such duties as may be enjoined upon him by said will, so far as there shall be property, and in general to do and perform all other acts which are now or hereafter may be required of him by law.
“ ‘In testimony whereof, I, James B. Maynard, judge of the probate court in and for said county of Doniphan, have hereunto signed my name and affixed the seal of said court, this fifth day of March, 1862.
James B. Maynaet>, Judge of Probate.
‘“THE LAST WILL AND TESTAMENT OP MICHAEL BUNTING, OP THE COUNTY OP DONIPHAN AND STATE OP KANSAS.
“‘I, Michael Bunting, considering the uncertainty of this mortal life, and being of sound mind and memory, do make and publish this ihy last will and testament in manner and form following, that is to say:
“ ‘First. I give and bequeath to my son Jacob Bunting the sum of ten dollars.
“ ‘Second. I will and bequeath to my beloved wife, Nancy Bunting, after all my just debts and liabilities are paid, all the rest of my estate, real and personal, to have and to hold them, together with all rights and privileges thereto belonging, during her lifetime, and then they are to descend to my legal heirs.
“ ‘ Third. I do hereby appoint Hugh Robertson, of the county and state aforesaid, executor of this my last will and testament, hereby revoking all former wills by me made.
‘‘ ‘In witness whereof, I have set my hand and seal, the fifth day of October, in the year of our Lord one thousand eight hundred and sixty-one. Michael Bunting.
Attest: Hugh Robeetson, James Matterson Warley, Maky Jane Warley.
“ ‘I, James B. Maynard, judge of the probate court within and for Doniphan county, state aforesaid, do certify that the above and foregoing to be a true copy of the will of Michael Bunting, deceased, placed on file in my office.
“ ‘ Witness my hand and seal of court, affixed at office in Troy, this fifth day of March, 1862. James B. Maynard, Judge of Probate.’
“ Hugh Robertson thereafter acted as executor of said estate.
“11. On August 13,1868, Nancy Bunting executed a quitclaim deed of said above-described land to John D. Paden, which deed was on the same day filed for record and recorded in the office of the register of deeds of Doniphan county.
“12. On August 13,1868, Jacob L. Buntiug and Sarah E. Bunting his wile also executed a quitclaim deed of said land to John D. Paden, which deed was duly filed for record and recorded in the office of the register of deeds of Doniphan county, Kansas, August 21, 1868.
“ 13. In both of said deeds last described the conveyance is of the whole of said lands described in finding No. 1.
“14. On October 27, 1868, John D. Paden and wife conveyed said land to Michael C. Speek, the defendant, who has ever since been in possession thereof; said deed was filed for record and recorded in the office of the register of deeds for Doniphan county on October 27,1868, the consideration thereof being five hundred dollars.
“15. It does not appear from the evidence that Nancy Bunting, widow of Michael Bunting, ever elected to take under the will.
“16. The rental value of the premises in dispute is the sum of two dollars per acre for forty-five acres of cultivated land, to be calculated from and after the 25th day of April, 1885.”
“conclusion ok law.
“Thomas M. Bunting, the.plaintiff, has no interest in the land in controversy, and the defendants, Michael C. Speek and Ellen Speek, are entitled to a judgment for costs.”
It is claimed by the plaintiff in error that the will of Michael Bunting created a life estate in favor of his wife, Nancy Bunting, and a contingent remainder in favor of his heirs. About the creation of the life estate there was not nor can there be any controversy. The controlling question is whether the remainder is a vested or a contingent one. We have given this question very earnest consideration, because it is an open one in this court, and the decision of it establishes to a certain extent a rule of property not heretofore determined in this state.
Blackstone defines “an estate in remainder” to be “an estate limited to take effect and be enjoyed after another estate is determined.” To create an estate in remainder, the owner of the fee must first carve out of the fee an estate for life, or for years, as a supporting or precedent estate to the estate in remainder. This is called the particular estate, for the reason that it is only a small part or particle of the inheritance. The necessity for the creation of the particular estate arises from the fact that “remainder” is a relative expression, and implies that some portion of the estate is previously disposed of, for where the whole is granted there cannot possibly exist a remainder. The particular estate for life, and the remainder in fee, are only parts of one and the same estate, upon a principle grounded in mathematical truth, that all the parts are no more than equal to the whole. This particular estate and the estate in remainder must be created at the same time, and by the same conveyance; for, as the estate in remainder must have a particular estate to support it, and as the particular estate and the remainder constitute the whole estate, it follows that the remainder must commence, or must pass out of the grantor, at the time of the creation of the particular estate, and must vest in the remainderman during the continuance of the particular estate.
Remainders are either vested or contingent. A vested .remainder, whereby the estate passes by the conveyance, but .the possession and enjoy ment are postponed until the particular estate is determined, is where the estate is invariably fixed to remain to certain determinate persons: as, if A be a tenant for twenty years, remainder to B in fee; here B’s is a vested remainder, which nothing can defeat or set aside. The particular estate is sure to be spent at the expiration of twenty years. The event upon which the remainder to B is limited, having occurred, the use, possession and enjoyment by B commences by reason of his title in fee, and the termination of the particular estate, and at its determination there is no doubt about B’s right to the possession. Contingent remainders are where the estate in remainder is limited to take effect either to a dubious or uncertain person, or upon a dubious and uncertain event; so that the particular estate may be determined and the remainder never take effect. As, if A be a tenant for life, with remainder to B’s eldest son, then unborn; it is uncertain whether B will have a son or not; if A dies before a son is born to B, there is no person in esse to take the estate, and the remainder is absolutely gone; if B has a son born before A’s death, the instant the son is born the remainder is no longer contingent, but vests in the son.
These definitions and examples are extracted from Blackstone, Kent, Washburn on Real Property, Williams on Real Property, and other text- writers who have “ raked in the ashes of the antiquated cases,” critically sifted, ably digested, and reduced them to an expression easily understood and most generally adopted. It is the present capacity of taking effect of possession, if the possession would become vacant before the estate limited in remainder determines, that distinguishes a vested from a contingent remainder. This is the test by which the two estates must be distinguished, as laid down in Kent, as announced in Eearne, and as approved by the great weight of modern authority in this country. Now this line of distinction between vested and contingent remainders is nicely drawn, and difficult to trace, and has always been warped by the struggles of the courts for a construction which tends to support the remainder by giving it a vested character, and to guard it against efforts to defeat it by the particular tenant. Our task is not only to so construe this last testament as will give effect to the intentions of the testator, but as the construction we do adopt will to some extent be relied upon as a rule of property in this state, we must make this line of distinction between these two classes of remainders as easy of comprehension, and as just and equitable in its operations, as we are capable of. To give as clear an idea as possible of this distinction, we venture to express it in different language, and produce a few examples tending, as we trust, to illustrate its operation when applied to cases of this character. If it is clear that certain persons then living have a right to take possession of the property at the determination of the life estate, or at any time when it becomes vacant, then the remainder is a vested one. As, if A by will devised his real property to B his wife for and during her natural life, and at her death to his legal heirs, and at the death of A he had two sons surviving him, and these two sons were living at the time of the death of B; here are two certain, determinate persons to take possession. In this example both the contingency upon which the possession depended, and the persons who had the capacity to make the will effectual by their right of possession, were fixed, definite, and certain. In the case of Smith v. West, 103 Ill. 332, there is a very lucid statement of the characteristics of a vested remainder. The court says:
“When a conveyance of the particular estate is made to support a remainder, the tenant for the particular estate takes it, and if the remainderman is in being, he takes the fee. In such a case the remainder is not contingent as to its becoming a vested remainder, because the title vests in the remainder-man on the delivery of the deed. The title thus vested becomes an estate of inheritance, and in case the remainderman dies before the particular estate is expended, the title passes to his heirs, unless the deed otherwise directs.”
In Blanchard v. Blanchard, 1 Allen, 227, it is said:
“ Where a remainder is limited to take effect in possession, if ever, immediately on the determination of the particular estate, which estate is to determine by an event that must unavoidably happen by the efflux of time, the remainder vests in interest as soon as the remainderman is in esse, and ascertained, provided nothing but his own death before the determination of the particular estate will prevent such remainder from vesting in possession. Yet, if the estate is limited over to another in the event of the death of the remainderman before the determination of the particular estate, his vested estate will be subject to be divested by that event; and the interest of the substituted remainderman, -which was before either an executory devise or a contingent remainder, will, if he is in esse, and ascertained, be immediately converted into a vested remainder.”
This case is a very fair illustration of the difference between a contingent and a vested remainder. The case was thus, (using the names of persons in this controversy:) Michael Bunting devised all his property, real and personal, to his wife Nancy, during her natural life, with remainder to his son Jacob, and in ease Jacob should die before Nancy, the remainder to his son Daniel. At the death of the testator, Michael Bunting, Nancy, Jacob and Daniel all being alive, Nancy took an estate for life, Jacob took a vested remainder, and Daniel was a contingent remainderman. Jacob was a certain determinate person who had the right to the possession the moment Nancy died, or the particular estate was otherwise determined. The right of Jacob to take effect in possession, depended upon an event that must unavoidably happen by the efflux of time, to wit, the death of Nancy. Here both the distinguishing features of a vested remainder exist — certainty as to the person who has the right of possession, and certainty as to the event upon the happening of which he could take possession. So that nothing but the death of Jacob before that of Nancy w7ould prevent the remainder from ve’sting in possession. Now Daniel’s right to take possession depends upon the death of Jacob before that of Nancy, and the death of Nancy in his own lifetime. If Jacob dies before Nancy, then Daniel is the certain and definite person in whom vests the right to take possession the moment Nancy dies, and his interest, that before the death of Jacob was a contingent remainder, at the death of his brother is immediately converted into a vested remainder.
In Hawley v. James, 5 Paige, 466, Chancellor Walworth says:
“A remainder is vested in interest where the person is in being and ascertained, who will, if he lives, have an absolute and immediate right to the possession of the land upon the ceasing or failure of all the precedent estates.”
In Moore v. Littel, 41 N. Y. 72, it is said :
“Decisions and text-writers agree that by the common law a remainder is vested where there is a person in being who has a present capacity to take in remainder, if the particular estate be then presently determined, otherwise the remainder is contingent.”
In all these cases and in the text-books, it is always said that before the remainder is vested, “the person must be ascertained;” “the person must be certain and determinate;” and these expressions mean that the. person must be one to whose competency to take, no further or other condition at taches; one in respect to whom it is not necessary that any event shall occur, or condition be satisfied, save only that the precedent estate shall determine.
We shall adopt Blackstone’s classification and definitions of estates in remainder, both vested and contingent. They are approved by Kent; are more easily understood than those of other text-writers; and better suited to the condition of real property in this state. We shall not allow ourselves to be controlled by the rules established in adjudicated cases, when such rules are difficult of application, and are unharmonious with the general policy of our statutes concerning real property, but shall endeavor to establish some general rule consistent with that policy.
We must now depart from the natural order of this opinion, to point out how the question we are considering has been influenced by the tendency of legislation, and the leaning of the courts, by reason of the demands of public policy and other considerations that have entered into this discussion. The tendency of all modern legislation is against contingent remainders, and this too seems to be the drift of judicial construction. It is said that to have the fee in a state of abeyance, a condition that often occurs in contingent remainders, is always odious. This legislative and judicial current can be attributed to a variety of causes. One of the most influential reasons for the drift is inherent in the subject, for while a remainder, in its original simplicity, would appear to be easy and practical in its application and operation, yet the collateral refinements and complex questions that have grown out of it from time to time cause the inquiry to involve critical discussions upon the most abstruse, subtle, and artificial distinctions in the law. To such an extent had this excessive refinement been carried, that Chancellor Kent said “that the English law of real property has, in the lapse of ages, become incumbered with much technical and abstruse refinement, which destroys its simplicity and good sense, and renders it almost impossible for ordinary minds to obtain the mastery of the science.” Lord Chancellor Cowper said that it had “no foundation in natural reason, but is raised and supported purely by the artificial reasoning of lawyers.”
Let the modern lawyer undertake to read and comprehend the classification of contingent remainders in the treatise of Eearne, or Preston's observations on the rule in Shelley’s Case, until he becomes inextricably tangled in “wild involutions,” and then the drift toward a less refined and a more easily comprehended law of real property will be appreciated. The reactionary feeling against the web of perplexing refinement arose in the place of its growth and development, and resulted in the statute of 7 and 8 Viet. C. 76, in 1844, “for simplifying the assurance of property by deed.” By this statute, contingent remainders are abolished, and it is provided that every estate, that would have taken effect as such, shall take effect, if in a will, as an executory devise; and if in a deed, as an executory estate or limitation of the same nature as an executory devise. By the act of parliament of 1845, ch. 106, so much of the act of 7 and 8, Viet. C. 76, as abolished contingent remainders retrospectively, was repealed, and this latter act allowed “contingent interests” to be disposed of by deed, but not to defeat or enlarge an estate. So that in all conveyances either by will or deed, made after the statute of 7 and 8 Viet., contingent remainders were not created.
In this country the legislation has not been so radical, notwithstanding the existence of numerous and important reasons for it. The aversion of the law to the inheritance being in abeyance; the desire that the alienation of estates should be facilitated; the stability of the title; and the benefit of creditors, are inducements in addition to the complicated condition of the subject to such legislative action as will render the construction of a will or conveyance easy of comprehension to the ordinary mind.
The statutes of New York define an estate in remainder as follows: “ When a future estate is dependent upon a precedent estate, it may be termed a remainder, and may be created and transferred by that name.” These statutes also allow “a future estate which needs no particular estate to support it; and where it is limited on a prior estate, it need not rest immediately upon the determination of the prior estate.”
Of course this legislation practically destroys remainders, properly so called. It looks a little as if such changes were “like jumping out of the frying-pan into the fire.” The complications arising under such enactments may be fairly sampled by the case of Hennessy v. Patterson, 85 N. Y. 91.
At common law, before the contingency happened, contingent remainders could not be conveyed, except by way of estoppel; yet they were assignable in equity, since theoretically such a remainder was not an estate, but a mere chance of having one. Under the statutes in various states, if the person who is to take the estate is ascertained, he has what is called a vested interest in a contingent remainder, which may be alienated by deed. When the person is ascertained who is to take the remainder when it becomes vested, and he dies, it •will pass to his heirs, or may be devised by him. It might always have been released by him to the reversioner. In the case of Putman v. Story, 132 Mass. 205, it is held, that where there was a remainder to heirs, though contingent, it was assignable, it appearing that there were children living at the time. An attempted conveyance by deed will pass the estate by estoppel when it vests. (Robertson v. Wilson, 38 N. H. 48.) When, however, the contingency is not in reference to the person who is to take, but to the event upon which he is to take, the remainderman may grant his interest, and the grantee will take subject to the contingency. (Kenyon v. Lee, 94 N. Y. 563.)
In Drake v. Brown, 68 Pa. St. 223, Agnew, J:, says:
“It is immaterial whether his interest in the property was vested, or contingent; it was liable for his debts.” (See also White v. McPheeters, 75 Mo. 286.) “It may pass to the assignee in insolvency.” (Belcher v. Burnett, 126 Mass. 230.) “Such a remainder descends.” (Chess Appeal, 87 Pa. St. 362; Buck v. Lantz, 49 Md. 439.)
In New York, Michigan, Minnesota, and Wisconsin, expectant estates are descendible, devisable and alienable, in the same manner as estates in possession. In the states of Massachusetts and Maine, when any contingent remainder is so limited to any person that is case of his death the estate would descend to his heirs in fee simple, such person may, before the happening of the contingency, sell, assign or devise the premises, subject to the contingency. Where lands are held by one person for life, and with a vested remainder in tail to another, the tenant and remainderman may together convey the same in fee simple. In Alabama no estate in lands can be created by way of a contingent remainder, but every estate created by will or deed, which might have taken effect as a contingent remainder or executory devise, has the properties and effect as the latter estate.
The rule in Shelley’s Case, which was a part of the common law, has been repealed or altered by all the states except in Maryland, Georgia, Texas, Indiana, and Pennsylvania. In this state, however, it affects wills only. We quote enough only to show the trend of legislation. Judicial construction has been doing its work in this direction, but the line on which this warfare has been carried on has been .principally against contingent remainders, on the ground that they violate the rule against perpetuities, and that, like executory devises, they must be so limited as to take effect, if at all, within a life or lives in being, and twenty-one years and a fraction after. In Massachusetts the courts have applied the rule against perpetuities to contingent remainders, without question. (Lovering v. Lovering, 129 Mass. 97; Hill v. Simmons, 125 id. 536; Otis v. McLellan, 13 Allen, 339.)
In the case of Heald v. Heald, 56 Md. 300, it was decided that where A. gave an equitable life estate to C., and a similar estate to his children surviving him, and the remainder absolutely to the issue of such children, it was held that the last limitation was void as violating the rule against perpetuities.
We are now to inquire as to the policy of our own decisions and the legislation of this state with reference to this question. It was said in an early case by Chief Justice Crozier (Simpson v. Mundee, 3 Has. 184):
“Real estate here, unlike in the earlier settled portions of the country, being one of the leading subjects of purchase and sale, it is not only convenient, but good policy, that the regulations concerning its transfer should be clear, simple, compact, and as much as possible free from cumbrous forms and solemnities. In framing the legislation, the law-makers have apparently acted with reference to these considerations, and the result is that a man of ordinary intelligence can readily discover what will secure to him a lien upon or a title to real estate, unless indeed it shall be held that some such indescribable myths as the English vendors’ lien constitutes a part of the law of the state. Were it held to be a part of the law, the great majority would not understand it, and but few could. The adoption of it here would work a practical change in the general spirit of the law of the state, and introduce into our legal polity an element of discord which must necessarily complicate our system of real-estate law and work consequences very disastrous.”
Scattered all through the reports of this tribunal will be found cases abounding in similar expressions. Our constant effort has been to make the rules of property as plain and comprehensible as possible. And while we have no disposition to abolish contingent remainders by judicial legislation, we are strengthened in our purpose by these previous expressions to hold a remainder a vested one, whenever we can do so without violence to the instrument creating the estate.
We now turn to our statutes, to note in them a like tendency to abolish many of the distinctions and refinements of the common law in relation to real property. One of the most important of the statutory enactments is the repeal of the section contained in the act regulating conveyances, Comp. Laws of 1862, providing that estates may be created to commence at a future day. This provision was in derogation of the common-law rule that is now in force in this state. So that now estates cannot be created to commence in future. By this statute and a section of the act on trusts and powers, that provides “ that a conveyance or devise of lands to a trustee whose title is nominal only, and who has no power of disposition or management of such lands, is void as to the trustee, and shall be a direct conveyance or devise to the beneficiary.” Contingent remainders by way of use, have been annihilated, and are now to be considered as strictly legal contingent remainders, and to be governed by legal rules instead of those artificial refinements that were indulged in to elude the premature destruction of the particular estate. When this devise took effect, the rule in Shelley’s Case was in force in this state; but by revision of 1868, chapter 117, § 5?, it was abrogated so far as wills are concerned, and the law declared to be that “ when lands are given by will to any person for his life, and after his death to his heirs in fee, or by words to that effect, the conveyance shall be construed to vest an estate for life only, in such part taken, and a remainder in fee simple in his heirs.” This section of the statute has no application to the case we are considering, except so far as it may indicate a legislative policy with reference to remainders. If this devise had given the estate for life to Nancy Bunting, and at her death remainder to her heirs, this statute would have furnished a rule of construction, and then the question would have been whether or not the statute did not make all remainders vested ones. Be this as it may, the effect of this statute is now to establish remainders as a part of our law of real property, and we must accept this result, and act accordingly. We cannot refrain from saying, however, that this legislation is not progressive, and in its practical operation in many cases it will change estates in fee into contingent remainders, unless the construction is given to the act that it means vested remainders. It will prevent the alienation of the property during the life estate and the minority of the heirs, while the rule in Shelley’s Case facilitated exchanges in real property.
There are some rules for guiding the court in determining questions of this kind, that have been so often declared in adjudicated cases, and so strongly emphasized by the text-writers, and are so well settled, as to become imperative in their operation and universal in their application. There is a prevalent disposition by all courts, upon the grounds of general policy, to favor vested rather than contingent remainders; and
consequently, where there arises from the terms of the conveyance a grave doubt as to whether the remainder vested at the death of the devisor, or should remain expectant and contingent until the happening of a future event, the doubt is always resolved in favor of a vested remainder. Indeed, many well-considered cases assert a still stronger rule in favor of vested remainders, by holding that all estates in remainder are to be treated as vested, except in a devise, in which a condition precedent to the vesting is so clearly expressed that the court cannot treat it as vested without doing so in plain contradiction to the language of the will. Another rule, so often expressed that we find it everywhere in the books, but probably included in those already stated, is, that no remainder will be construed to be contingent, which may, consistently with the words used, or the intention expressed, be deemed vested. Another g0es exf.en(. t0 make a contingent remainder must be expressed in words so plain that there is no room for construction. (Straus v. Rost, 10 Atl. Rep. 74.) These rules sufficiently indicate the leaning of the courts toward vested remainders.
Now, mindful of the rules established, we shall attempt to construe this will in accordance with the declared intention of the testator. About one proposition there can be no doubt, and that is, that the determination of the particular estate — the life estate of Nancy Bunting — was fixed upon an event that was bound to happen in the due course of time, and at her death the persons who had the capacity of legal heirs of Michael Bunting, then living, were entitled to the possession. This will gave a life estate to Nancy Bunting at the time it went into effec^ and created both the life estate and the remainder, and the fee passed to and vested in the legal heirs of Michael Bunting. At that time, to wit, the death of Michael, he left surviving him his two sons, Jacob L. and Daniel, in whom the fee vested. If we are correct in the statement that at the death of Michael Bunting the fee vested in his sons, this determines the case. The presumption is, that Daniel died many years ago, leaving no wife or issue. The fee vested in Jacob L., until his death, in 1870. At any time during his life, had the life estate terminated by the death of Nancy, Jacob L. was the certain, ascertained and determinate person in whom vested the capacity and right to take the possession of the property. When Jacob L. died the fee would have vested in the plaintiff in error, but before Jacob L. died he had conveyed his interest, and if he was a vested remainder-man, his conveyance passed his interest in the estate to his grantee. It would pass subject to the contingency, if Nancy had not conveyed the life estate to the same grantee, but as she did, the purchaser acquired the life estate and the vested remainder both, and thus took the fee. But the contention in this case on the part of the plaintiff in error is, that the fee did not vest at the time of the death of the testator, but was in abeyance until the death of Nancy. This contention is based upon the words in the will, “I give to my wife, Nancy Bunting, all my estate, real and personal, to have and to hold during her lifetime, and then they are to descend to my legal heirs.” It is said that the word “then” qualifies the time of the descent, and fixes it at the death of Nancy, and not at the death of the testator — thus causing the remainder to be expectant and contingent on the death of Nancy. Numerous authorities are cited to sustain the claim of the plaintiff in error, and it may now be confessed that the language used is not free from ambiguity, and that the case certainly comes very near the dividing-line between vested and contingent remainders. The expressions employed are such that among the great multiplicity and variety of adjudged cases, some are undoubtedly found which would support either construction. We have read many of them, and will cite a few on both sides of the question, and try to point out the distinguishing line between them. The first case relied upon by the plaintiff in error is that of Straus v. Rost, 10 Atl. Rep. 74, decided by the supreme court of Maryland in June, 1887. It involved the construction of the will of George Rost. It gave to his wife Sophia all his property of every kind, so long as she remained a widow, and if she did not marry again, then during the term of her natural life. If she married again, then immediately on her marriage she would only be entitled to such part of the|estate as given her by the laws of Maryland, and the residue of the estate was devised to his children, share and share alike, the issue or descendants of any deceased child to take per stirpes, and not per capita; but if the widow did not marry again, the estate was devised at her death to the children, to be divided in the same manner as if she had married. The testator died in 1871, and left surviving him four sons and one daughter. The daughter died a few weeks after her father. One of the sons died in August, 1877, leaving the appellee as his only child and heir-at-law. The widow married a second time in April, 1881. Upon this state of facts the question arose whether upon this second marriage of the widow, the appellee took by virtue of the will, the share of property that would have gone to his father in case he had survived that event, or whether this share had vested absolutely in the father at the death of the testator, and therefore became subject to an incumbrance that his father bad placed on it in his lifetime. In other words, is the survivorship mentioned in this will to be referred to the death of the testator, or to the second marriage of the widow? The court held that the share of the estate had not vested absolutely in the father on the death of the testator, and was not therefore subject to the incumbrance. The opinion is not positive in its language, and it is only by inference that it can be said to hold that the will created a contingent remainder. But, waiving all this, we are disposed to say in plain terms, that it did create a contingent remainder in favor of the children, because the first event upon which the particular estate determined, was the marriage of the widow. This was a dubious event: it might or might not happen. It is true that the second event, to wit, the death of the life tenant, was sure to' happen, but the first event wmuld continue in doubt for a long time. Now, as we have seen, one of the distinguishing characteristics of a contingent remainder is, that it is limited to take effect upon a dubious or uncertain event. This case then is one in which a contingent remainder would be created, if the words controlling the decision were not used.
We are referred to the discussion of the question involved in the case of Engle v. The State, 65 Md. 539, to sustain the decision in Straus v. Rost. The Engle case is one in which an action was brought on a testamentary bond to recover certain amounts claimed to be due on the distribution of an estate, by the several accounts settled in the orphans’ court. So, to begin on, whatever rule was adopted by the court was to govern the distribution of legacies, and it does not necessarily follow that it is applicable to devises. David Cassell devised certain real estate to his wife for life, with authority to sell the same; one-half of the proceeds to be distributed to the widow, and the other half to be equally divided among all his children, share and share alike, or their share to the children of such as may have died; and gave certain shares of bank stock to his wife for life; and after her death the same to be divided in like manner. Cassell died in 1861; his wife in November, 1875. One of his daughters married Josiah Geiger in 1862, and she died in May, 1863, leaving an only child, Joseph C. Geiger, for whose use the suit was brought. The real property was all sold before the death of the widow. Certain attachment proceedings were commenced against Joseph Geiger, the father, in his lifetime, he being at the commencement of such suits a non-resident of the state of Maryland. These suits resulted in judgments against him, and in judgments against the executors of the Cassell estate as garnishees. The executors paid, and sought to set up this payment for a defense to the action on the testamentary bond. The question was whether Joseph C. Geiger acquired his right to distributions sued upon, at the death of his mother, under and by virtue of the will of his grandfather, or solely through and under his mother, who died intestate. The court holds that he took under the will of his grandfather, and bases its ruling on a construction of the will, because it was clear that it was the intention that if a child died before the distribution, the child or children of the deceased legatee were to be substituted for the parent. We will have no quarrel with either of these cases, or with the rules established by them, but in our judgment they do not aid in the solution of the question we are considering.
Another case relied upon by the plaintiff in error is Rich v. Waters, 22 Pick. 563. It was a question about the distribution of thirty shares in the Oxford Bank; the wife of the testator was to have the use of them, and at her death they were to be equally divided between his heirs; the testator died, leaving several children; the creditors of the husband of one of the daughters of the deceased attempted by the process of foreign attachment to subject the interest of the wife to the payment of the husband’s debts, and the court, held that the reversionary interest of any one of the children in these shares was contingent on the death of the widow, and not liable to attachment in the hands of the executors. In the strict legal view there is no analogy between these cases. A testator can always fix a time at which the residue of his personal estate, after his debts, costs of administration, and maintenance of widow and minor children, are provided for, shall be distributed. Besides, a reversionary interest in personal property is not dependent upon a certain fixed thing, as a particular estate, but is an arbitrary creation of the testator, induced by the condition of his property, or his belief that certain personal property would be a good investment, or would increase in value within a given time, or many other such considerations.
The next case cited is that of Sears v. Russell, 8 Gray, 86, in which the property was willed to trustees, to be held by them in trust — and pay to Mary Ann during her life — and upon the decease of the said Mary Ann to grant and transfer the estate so devised in trust to the children of the said Mary Ann then living, and in default of any child or issue living, to convey the same to the heirs at law of the testator. The gift over to his own heirs was held to be an executory devise, and void for remoteness, as it violated the rule against perpetuities. The property in this case was devised to trustees, and the court say the trustees took the fee, with the superadded obligation to convey to the heirs of Mary Ann, or to the testator, as the contingency might happen. Mary Ann died, having married, leaving two infant children, one born before and one born after the death of the testator. These infants filed a bill in equity to establish their right to the property, and the court decreed that the trustees must convey them the property in fee, divested of the limitations. This is a case of an executory devise, and void because too remote. It is not an authority in the case we are considering.
In Richardson v. Wheatland, 7 Metc. (Mass.) 169, the devise was a life estate to the testator’s daughter Hannah and her husband George during their joint and.several natural lives, and at the death of both of them, to be divided among the heirs of said Hannah. At the death of the testator, Hannah and her husband George had no children living, but shortly after the death of the testator a child was born. So far as the child was concerned, this was held to be a contingent remainder during the life of Hannah, coming under the fourth head in the classification of Mr. Fearne, where the person to whom the remainder is limited is not yet ascertained, or not yet in being. We find no fault with the decision, except to say that in this state, the devise being to life tenants and their heirs, it would have to be governed by the construction that would be placed on § 52 of the chapter on wills, and this statement shows at once that the case decided is not the case at bar. The conclusion of the opinion in the case in 7 Mete. 169, is, “That the court are of opinion that the child of Mrs. Wheatland, and not her collateral heirs, was entitled to the estate; that this child has now a vested remainder expectant on the termination of the life estate of the father (the mother having died), and has the next immediate estate of inheritance.” The controlling reason in this case why the remainder was contingent, was because at the death of the testator Hannah and her husband did not have any children, and hence the contingency was a doubtful and uncertain one.
In Olney v. Hull, 21 Pick. 311, the remainder over to the surviving sous depends upon two contingencies. The will recites : “Should my wife marry, or die, the land shall be equally divided between my surviving sons.” Her marriage was a dubious event, her death a certain one. It is much like the first case relied upon, and what we have said about it applies with equal force to this.
The case of Reinders v. Koppelmann, 68 Mo. 482, is a stronger case for the plaintiff in error than any yet cited. The testator gave a life estate to his wife Anna, and after her death the property then left shall be divided, one-half to go to an adopted daughter and the other half to the nearest lawful heirs of the testator and his wife Anna; and it is held that the word “heirs” has reference to those persons who would be heirs at the time of her death and not those who should be heirs-apparent at the testator’s death. This construction is based upon two distinct recitals indicative of the intention. The first was that the business should be carried on with his partners, and that no part of the real estate be sold or disposed of for twenty-five years; and the second was, “the property then left shall be divided.” The language used seems clearly to indicate that the heirship was confined to those living at the death of Anna. The expressions used are much stronger and more significant than the words of this devise.
The plaintiff in error then recites White’s Trustee v. White, Ky. Ct. App., 7 S. W. Rep. 26; Johnson v. Jacob, 11 Bush, 646; Evans v. Godbold, 6 Rich. (S. C. Eq.) 26; Hill v. Rockingham Bank, 45 N. H. 270; Ex parte Calmes, 1 Hill, (S. C. Ch.) 112.
We cannot devote any more space in this opinion to our own criticism of the cases cited by the plaintiff in error. On page 595, 2 Washburn on Real Property ( 5th ed.), there is a criticism on the doctrine of the New Hampshire cases, that may apply to the case of Hill v. Rockingham. In a note it is said:
“In view of the prevalent disposition of the courts to hold remainders vested, rather than contingent, upon grounds of general policy, it may seem somewhat remarkable that the courts of New Hampshire have recently adopted a principle of contingency in respect to remainders, which does not appear to have been heretofore recognized in other quarters, or even, to a casual observer, to find support in the authority on which the doctrine is said to rest. The principle is this, that where an estate is limited to one for life, or during his natural life, and after his decease, to another, though an ascertained person then in being, there is such a possibility of the first taker committing a forfeiture of his estate, or surrendering it, or its merging in the inheritance during his life, that the remainder over is a contingent, and -not a vested, one. And this, too, while so many of the states are discarding the doctrine of contingent remainders being affected by defeating the particular estates on which they rest. In the case referred to, of Hall v. Nute, 38 N. H. 422, approved of as settled law in Hayes v. Tabor, 41 N. H. 521, the facts were these: A devise to Esther Tuttle for life, after her death to William Tuttle, his heirs and assigns.”
The court holds that “William Tuttle’s attempt to release his interest in the land to E.T. conveyed nothing, and did not estop him from claiming the land after E.T.’s death, because the remainder to William was a contingent one.”
Chancellor Kent, on the other hand, in illustrating by example what would be a vested remainder, says:
“A grant of an estate to A. for life, with remainder in fee to B., or to A. for life, and after his death to B. in fee, is a grant of a fixed right of immediate enjoyment in A., and a fixed right of future enjoyment in B.” (4 Kent’s Com. 202.)
So Mr. Butler, in his note to Eearne on Remainders, (p. 2,) says:
“If A. convey or devise to C. for life, and after C.’s decease to B. and his heirs, B.’s estate is vested in him in interest.”
In Carter v. Hunt, 40 Barb. 89, the devise was as follows:
“I give and devise to J. M. the house and lot I now occupy, tobe used and enjoyed by him during the term of his natural life; and from and immediately after his decease I give and devise the same to S., the daughter of J. M., her heirs and assigns forever.”
And it was held that S. took a vested remainder.
Washburn on Real Property, 2d vol., p. 587, gives these ex- ampies: An estate might be to A. for life, with remainder in fee to B., who is a known person in esse, or to A. for life, with a remainder to the oldest son of B. in fee, though B. at the time of creating the estate had no son, and the remainder might be in suspense until B. died or had a son. The first of these supposed cases presents what is known as a vested remainder. The latter exemplifies what is called a contingent remainder. The broad distinction between vested and contingent remainders is this: In the first there is some person in esse known and ascertained, who, by the will or deed creating the estate, is to take and enjoy the estate, and whose right to such remainder no contingency can defeat. (Brown v. Lawrence, 3 Cush. 390; Leslie v. Marshall, 31 Barb. 564; Croxall v. Shererd, 5 Wall. 288.) In the second it depends upon the happening of a contingent event, whether the estate limited as a remainder shall ever take effect at all. The event may either never happen, or it may not happen until after the particular estate upon which it depended shall have been determined, so that the estate in remainder will never take effect.
The supreme court of the United States define a vested remainder as follows: “ When a present interest passes to a certain and definite person to be enjoyed in futuro.” (Doe v. Considine, 6 Wall. 474.) The possibility that the person to whom the remainder is given may die in the lifetime of the life tenant, does not make the remainder contingent, for it is certain that the remainder might take effect upon the termination of the life estate at any time. (Kemp v. Bradford, 61 Md. 330; McArthur v. Scott, 113 U. S. 430; Weston v. Weston, 125 Mass. 268; Moore v. Lyons, 25 Wend. 119; Com. v. Hachkett, 102 Pa. St. 505.) A grant to W. for her life, and at her decease to be and become the property of her children and their legal representatives, is a present vested remainder in her children, and one of them having died in W.’s lifetime, his share went to his heirs. (Gourley v. Woodbury, 42 Vt. 395; Com. v. Hackett, 102 Pa. St. 505.) A devise to A for life, and at her death to her oldest son, if she have one: she then had a son living who was living at the testator’s.death; and it was held to be a vested remainder, since the contingency only related to a state of things existing at the testator’s death. (Gardiner v. Guild, 106 Mass. 25.) An estate is given to A for years, remainder to B for years, remainder to C for life, each of these persons being alive and having a perfect right to the land in the order named, B or C, for instance, being only postponed in the enjoyment of his estate until the preceding tenant’s term shall end, they have each of them a vested remainder. And yet C may die before B’s estate, or B before A’s estate shall be determined, so that neither may ever in fact enjoy any benefit or estate in the land. But if the estate to C had been in fee instead of for life, though he might not have lived to enjoy it, it would descend to his heirs, who would take it in his place, or whether for fee or for life, he might have conveyed it in his lifetime by deed, and his grantees would take the same rights in respect to it that he himself possessed. (Wins. Real Property, 207.) I have given this example to show that it does not make any difference how many remainders over are limited on the same, estate; so long as there are certain determinate persons who have the present capacity to take effect in possession, as it becomes vacant each of them is a vested remainder. The probabilities are that such limitations over would violate the rule against perpetuities. It may be said as a matter of strict law, in accordance with the weight of authority, that while a remainder is contingent by reason of the person who is to take it not being ascertained, it is not capable of alienation, and for this reason courts have always been inclined to construe the limitation of remainder as a vested one, if such construction can fairly be admitted. Thus: upon a devise to A. for life, remainder to the surviving children of J. S., it is obvious that in terms it is doubtful whether the surviving relates to the death of the testator, or of A. If it relates to the testator’s death, and J. S. then have children, the remainder is a vested one, since there is then an ascertained person in esse, capable of taking the estate at any moment. (Moore v. Lyons, 25 Wend. 119; Peroy v. Charleston, 20 S. C. 71; Chew’s Appeal, 37 Pa. St. 23; Bailey v. Hoppins, 12 R. I. 560; Eldridge v. Eldridge, 9 Cush. 516; Colby v. Duncan, 139 Mass. 398; Manderson v. Lukens, 23 Pa. St. 31; Buck v. Lantz, 49 Md. 439.)
These citations are enough to show the general drift of judicial decisions bearing more or less on this question. The stress laid upon the word “then” in this will, and the contention of the plaintiff in error respecting it, must be more critically examined. One of the considerations urged is, that by the use of this word in the connection in which it is placed, it was the intention of the testator to limit the inheritance to only such of his heirs as were living at the death of Nancy. Another suggestion is, that during the life estate of Nancy the fee was in suspense. Another is based upon the fact that at the making of the will there was an absent sou, and the uncertainty as to whether he was living or dead, induced the expressions used, so that the inheritance would remain open until the death of Nancy. While all these are included in one general rule determining the characteristics of the remainder, they may be considered as separate facts illustrating the operation of the rule. In any view they are not important or controlling, for the very good and unanswerable reason that after the life estate of Nancy Bunting was spent by her death, the property would have descended in the exact manner prescribed in the will, by the operation of the statute on descents and distributions. Under that statute the real and personal property of the testator, at the death of Nancy, would go to his legal heirs in the same manner, to the same extent, and in like proportions as stated in the will. So that in this case there is no necessity to resort to those refined distinctions that sometimes arise out of the attempt of testators to divert their property out of the statutory channels, in case of their death. Either under the will or by the law the same result is reached: the property goes to the legal heirs. There is not a suggestion made or a reason urged by the plaintiff in error, based upon the peculiar phraseology of this will, and the absence of his son, indicating an intention to protect the interest of the absent-son, which cannot be rendered just as effectual by holding the remainder vested, as contingent. At least fifteen years must elapse from the death of the life tenant, before the absent son or his heirs would be barred of their interest in this property. If the absent son left heirs that were minors at the death of their grandmother Nancy, in 1885, probably a longer time would be required to bar their rights in the estate.
If we should hold this to be a contingent remainder, the descent, or the rule of descent, or the portion of the estate that each heir would be entitled to, would not or could not be changed. There is but one right to be affected by any decision that we could make in this case as now submitted to us, and that is the right of the plaintiff in error to recover possession of the land. If it is a contingent remainder, it is doubtful under the laws of this state whether it could have been alienated by the father of the plaintiff in error; and if not, he would recover the right to the possession of whatever interest we might determine he was vested with. If it was a vested remainder, his father conveyed it for a valuable consideration. So that we cannot escape the responsibility of declaring in express terms the character of this remainder, whether contingent or vested. If we can satisfy the words of' this will by a declaration that this is a vested remainder, it is our duty to say so. If this declaration will give the direction to the transmission of this estate that it was the intention of the testator to give, the rules of construction require us to say so. There is a well-settled rule of law that a devise to an heir of the same estate in nature and quality as that to which he would be entitled by descent, is void. In such cases the heir takes by descent, and not as a purchaser. If this rule applies to the present case, then it would follow that the gift over to the heirs-at-law would fail as a remainder, so that their title would not depend upon the rules governing estates of that nature. This rule is not affected by carving out of tl*e fee a prior particular estate; all that is necessary to the operation of the rule is, that when the estate vests in the heirs they shall hold it by the same tenure and in like manner as if the devise had never existed. (1 W. Bl. 187; Crosley’s Treatise on Wills, 101; 4 Kent’s Comm. 507; Ellis v. Page, 7 Cush. 161; Reading v. Royston, 1 Salk. 242; 2 Ld. Raym. 829; 6 Cruise’s Dig., tit. 32, p. 8, §§ 9, 10.) The rule of construction of the word “heirs” in a will is usually construed to mean those who are such at the time of the testator’s death, and that estates created by devise are to be held to be vested rather than contingent, and must give way to the controlling rule of interpretation, that the intent of the testator is to govern if it does not conflict with the rule of law. (Richardson v. Wheatland, 7 Metc. 179; Olney v. Hull, 21 Pick. 314.) And if it be found- to conflict, it does not change the rule of construction. The will must fail of effect so far as it violates the rules of law, not because the intent of the testator does not control in its construction, but because the law will not permit his intent to be accomplished. (Church v. Grant, 3 Gray, 158; Hall v. Priest, 6 id. 22.) The title by descent has in such a case precedence to the title by devise. The mandate of the law-making power is higher than the will of the individual. In order to have a fixed rule of property it cannot be permitted that a grantor or testator shall prescribe a different qualification to heirs than the law prescribes when they take in the character of heirs.. Neither can they be permitted to decide what shall be a descent or purchase. A man is not permitted by will to antagonize the legislative policy of the state, or to change the nature of property, or to create a perpetuity, or to create an estate commencing in futuro, nor should he be allowed by the use of loose and conjectural words to counteract the force and effect of the well-settled and generally-understood meaning of statutory expressions, or suspend the operation of laws, or so obscure the fee to land that the most vigilant creditor or the collecting attorney with a contingent fee cannot find it.
From these considerations it is apparent that we cannot give the word “then,” as used in this will, the construction desired by the plaintiff in error. It means as used, “in that event,” referring to the death of Nancy the life tenant. Neither is it material that descend means “vest,” because, as the controlling desire of the testator was, according to the theory of the plaintiff in error, to protect the interest of the absent, and as we have seen that the full measure of protection was afforded by the statute of descents and distributions, we shall not give these words a construction that will imply that from the time of the death of the testator until that of his wife, an interval of more than twenty-three years, the fee to this land was suspended, when the theory of our laws respecting real property is, that the moment the ancestor dies the fee descends to and is vested in the heirs. That construction which vests the fee in some person must prevail in every case in which the language of the conveyance and the relation of parties to the land will justify it. This rule of construction has become a dogma of the law, and grows out of the abhorrence with which the abeyance of the fee is always and everywhere regarded. Take the cases where lands are devised to heirs, but certain restrictions are placed on alienation as to the time within which they cannot sell, and the weight of modern authority is, that such restraints are of no validity. (Oxley v. Lane, 35 N. Y. 340; Mandlebaum v. McDonell, 29 Mich. 78; Twitty v. Camp, Phil. Eq. 61.) It is true that the fee in such cases is definitely located, and yet all these things demonstrate the policy of the law in favor of the utmost freedom to the owner of the highest interest in lands and tenements. The possibilities of the ease as to the death or life of the absent son do not make the remainder contingent; if he is alive at the death of the testator, the presumption is that his mother, being the eldest, would die before he did in the usual course of natural events, and the remainder in his favor might take effect at any time upon the termination of the life estate. (Kemp v. Bradford, 61 Md. 330; McArthur v. Scott, 113 U.S. 340; Weston v. Weston, 125 Mass. 268; Moore v. Lyons, 25 Wend. 144; Com. v.Hackett, 102 Pa. St. 505.)
If the construction contended for is adopted, and we should hold that only such heirs of Michael Bunting as were living at the death of Nancy could take the fee, and with it the possession of the estate, the controlling intention of the testator as alleged in support of such construction would be de feated if a child of the absent son, born after the death of the old lady, should now make an appearance. Under the construction we give, the rights of the father would descend to and be vested in his heirs at his death. (Moore v. Lyons, 25 Wend. 119; Bailey v. Hoppin, 12 R. I. 560; Faber v. Police, 10 S. C. 376; De Lassus v. Gatewood, 71 Mo. 371.) This is true in all cases in which a remainderman is in existence at the time of the vesting. (Stonebraker v. Zollickoffer, 52 Md. 154.)
In case of a gift to a class such as “children,” or “heirs,” all of the class need not .be in existence in order that the remainder may vest in any. The remainder may vest in those who are in existence, subject to open and let in those who afterward come within the class. (In re Lechmore v. Loyd, 18 Ch. D. 524; Farrow v. Farrow, 12 S. C. 168; Stonebraker v. Zollickoffer, supra.)
The theory of our statutes on conveyances, descent and distribution, and other subjects affecting in any manner the title to real property, is, that on the death of a person who dies seized in fee of lands, the fee descends and immediately vests in his heirs. Even equitable interests in real property are subject to levy and sale. In a word, almost every effort has been made by the legislature of this state to relieve the title to real property within our borders from all perplexing entanglements, and to produce a system whose operations are safe and natural, and easily understood by the ordinary mind. The great body of the lands but a few years ago was owned by the government. Our titles are derived principally from the operation of the homestead and preemption acts. The process by which the title is acquired from the government is prescribed by acts of congress, expressed in plain language, and unusually free from doubtful meaning. These titles have all been acquired in less than one-third of a century; but in that time our people have become habituated to the use of a few simple, plain requirements, as to the conveyance of land and evidences of title, and we do not propose to engraft on such a system rules of construction that will cause that un certainty and doubt about ownership, heirship, and control of real property, that seems to be generated by the hair-splitting warmth of a discussion about vested and contingent remainders. Especially is this so when each state seems to have adopted such rules as are best suited to the condition of its people, and when a remainder would be held to be vested in one state and contingent in another, in cases in which the words used in the conveyance are identical.
It accords better with the policy of our state, with the condition of our people, and the simplicity of our titles, to hold, that in all cases, either by deed or devise, where land is granted to a person for life, with remainder to his or her heirs, or to the heirs of the grantor or devisor, and at the time the deed or devise takes effect the grantor or devisor has heirs then living, they shall be deemed to take a vested remainder in fee in all cases, except in a conveyance where the intent to create a remainder contingent on the happening of some future event is plainly expressed. This ruling is in harmony with the legislative intent, as is expressed by § 52 of the chapter on wills, and only applies the rule therein expressed to govern a devise, to the grantee and his heirs, to the grantee and the heirs of the grantor. If we do not adopt this view, then we permit a different rule of construction to be applied to the same language and like interests, in real property. In a devise to A and his heirs, the statute prescribes that A takes the life estate, and the remainder is vested in fee in his heirs. We now say that the rule shall be the same in a devise to A,' with remainder to the heirs of the testator. Whether some other rule would be better, is not for us to inquire. The legislature fixed the policy by enacting the law; we follow it because it is the law and it is our duty to obey it, and because we cannot distinguish the cases and withdraw this oue from its operation, and because of the importance of fixed and uniform regulations respecting real property. We hold that the will of Michael Bunting passed to his heirs living at his decease, a fixed right to the future enjoyment of the estate at the termination of the life estate of Nancy; that the father of the plaintiff in error was the only legal heir of Michael Bunting at the time of Michael’s death; that as such, the remain<jer jn fee vested in him at the death of the testator ; that he conveyed this, interest in his lifetime; and that the plaintiff in error is not entitled to recover the possession of the land.
We are not disposed ,to disguise the fact that in holding this to be a vested remainder, we are not in the current of the adjudicated cases, for most of them have been governed by the rules that arose out of that excessive refinement respecting estates in remainder, that has been the cause of so much complaint; but by this ruling we add our mite to the attempt to simplify the differences, and multiply the cases in favor of vested remainders. Whether the rule we have now established in this state will make the distinction ordinarily plain and easily, comprehended, and at the same time operate equitably upon all persons affected thereby, and harmonize with the general aim and definite policy of our laws respecting real property, time alone can determine.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
Hobton, C. J., concurring.
Valentine, J.:
The only question involved in this case is: What is the true construction or interpretation of the following words found in the last will and testament of Michael Bunting, deceased? The words are: “Then they are- to descend to my legal heirs.” The clause of the will in which these words are found, reads as follows:
“Second. I will and bequeath to my beloved wife, Nancy Bunting, after all my just debts and liabilities are paid, all the rest of my estate, real and personal, to have and hold them, together with all rights and privileges thereto belonging, during her lifetime, and then they are to descend to my legal heirs.”
When Michael Bunting died, of course all his interest in his land passed from him, and the title thereto necessarily went somewhere else. (Vining v. Willis, 40 Kas. 609, 20 Pac. Rep. 232.) A life estate passed to his widow; but where did the remainder go? The remainder in fee is still to be accounted for. The testator says in his will that it is “ to descend to my legal heirs.” Who were intended by the words “my legal heirs” ? Did Michael Bunting mean by these words his then living children, who, he probably expected, would be alive when he died? — and his death was expected soon. Or did he mean whomsoever might be his legal heirs, his children, his grandchildren, or his collateral relations, at .the time of the death of his widow? If he meant the former, then a vested remainder in fee passed to his living heirs at the time of his death; but if he meant the latter, then only a contingent remainder was created; and no one could tell at that time where the fee might eventually go. Now contingent remainders are never favored in law; and words are never construed as creating a contingent remainder, if by any fair and reasonable construction they can be held to create some other interest or estate. The foregoing words in the will of Michael Bunting, deceased, can fairly and reasonably be construed as creating a vested remainder in fee in his legal heirs living at the time of his death, and need not necessarily be construed as creating a contingent remainder, with the estate in fee to go no one could tell where; and therefore they ought to be construed as' creating a vested remainder.
I concur in affirming the judgment of the court below. | [
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Opinion by
Simpson, C.:
Suit was brought on a promissory note before a justice of the peace; a judgment was rendered against the maker, who appealed to the district court; trial by the court, a jury being waived; judgment 'against the maker, who brings the ease here for review. The only exception saved is a general one to the judgment, and to the overruling of the motion for a new trial. The following is a copy of the note sued on:
“$13.75. Kirwin, Kansas, April 27, 1880.
“Six months after date, I promise to pay to A. B. Niles, or order, the sum of thirteen and (75) seventy-five cents, dollars, value received, with interest at the rate of ten per cent, per annum. P. B. Beachley.
P. O. Phillipsburg. Kirwin.”
Indorsed: “A. B. Niles. N. B. McCormick received on within $1.50, August 5, 1883.”
The suit was commenced before the justice on the 13th day of July, 1886. The only disputed question of fact on the trial in the district court was whether the maker paid the holder of the note the sum of $1.50, as indorsed upon said note under date of August 5, 1883. If the maker paid, the note was not barred by the statute of limitations; if he did not pay the sum indorsed, the note was barred. There was no objection either to the pleadings or to the evidence taken by either side. The question of fact was determined by the trial court, and we cannot disturb it. The motion for a new trial was properly overruled. No diligence was shown. No accident or surprise which ordinary prudence could not have guarded against was shown; but on the contrary, from the defense made, the attention of the maker of the'note must necessarily have been drawn to the date of the payment indorsed on the note. It would be very strange that he should deny making the payment indorsed, and never look to see at w'hat time the payment was made, as set forth in the indorsement on the note.
There is no error in the record, and we recommend the affirmance of the judgment.
By the Court: Is so ordered.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
Two complaints are now made: First, that the evidence was not sufficient to sustain the verdict; second, misinstruction of the court to the jury. After a careful examination of the record, we are free to say that the evidence fully warrants and sustains the verdict. Six men were engaged in a fight; defendants, using dangerous weapons, inflicted therewith several severe and dangerous wounds upon two persons thus engaged. As to who commenced the assault is a disputed fact. The record seems to show that the defendants had a fair and impartial trial, and no claim to the contrary is made. Where that fact is shown we think the judgment of the jury ought to be conclusive, and in this case we think the defendants have nothing to complain of, and ought to be satisfied with the verdict and judgment.
The instruction complained of is as follows:
“1. The defendants are charged in the information with having on February 21, 1888, at said county and state, assaulted and beat with deadly weapons one Manville Crouse with intent to kill him. Included in the principal crime charged (which is a felony) is the lower degree or grade of offense known as ‘assault and battery/ which last is a misdemeanor, and you can, if the evidence should warrant you in so doing, find them, or either of them, guilty of either the principal crime charged or the lower degree of offense included therein.”
This instruction we think fairly states the law. Where a defendant is charged with an assault with a deadly weapon, with intent to kill, that charge embodies the less offense of assault and battery, and it was competent, proper and the duty of the court to so instruct the jury. (The State v. Cooper, 31 Kas. 505.) No specific instructions were asked by the defendants, and we think the instruction of the court was competent and proper.
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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The opinion of the court was delivered by
Valentine, J.:
This is an action of habeas corpus, brought originally in this court by John Grey, charging that he is unlawfully restrained of his liberty by W. H. Mackey jr., the sheriff of Davis county. It appears that on December 21, 1888, Bert Putney recovered a judgment before a justice of the peace of said county against Grey for the sum of $55, and costs of suit taxed at $22.35, and on January 10, 1889, an execution was issued on the judgment, and upon such execution the constable made the following return:
“January 10,1889, served this writ; same day levied on the goods and chattels of the within-named John Grey, one bay horse, one gray mare, and 800 bushels of corn.
“January 12, 1889, property taken on order of replevin by one George Grey.
Fee, $3.20.
~W. A. Winans, Const.”
On January 17, 1889, the attorney for Putney filed an affidavit before the justice of the peace for an order of arrest, and on the same day the order of arrest was issued, which order of arrest was returned by the constable on January 24, 1889, with the following indorsement thereon:
“January 24, 1889, executed this writ by arresting the within-named John Grey and delivering him to W. H. Mackey jr., sheriff of Davis county, Kansas.
Fees, $2.25. W. A. Winans, Const.”
On the next day the defendant filed a counter affidavit denying generally all the allegations of the affidavit filed for the order of arrest, and asking to be discharged, which the justice of the peace refused. From that time up to the commencement of this proceeding, which was on February 18, 1889, and afterward, the sheriff held Grey in custody and imprisoned him by virtue of the foregoing proceedings. On the part of Grey it is claimed that the imprisonment is unlawful for many reasons, only one or two of which will it be necessary for us to mention. Before the order of arrest was issued, it appears that personal property had been levied upon by the constable, sufficient to satisfy the judgment, and that that levy, so far as the proceedings in this case show, has never been set aside, vacated, discharged, relinquished, or abandoned. It is true, as alleged in the respondent’s return to the writ of habeas corpus, that the property was replevied by one George Grey, who claims to own the same. . And it is also true, as alleged in the same return, that the applicant in this case, John Grey, at one time made oath that he was not the owner of the property levied upon; but it does not seem that Putney or the constable or the sheriff has ever admitted that John Grey is not the owner of the property, or that George Grey is, and the levy upon the property still seems to be in full force and subsisting. Now while that levy remained in full force and subsisting, no order of arrest should have been issued. But even after the order of arrest was issued there were still other and further irregularities. The order of arrest, in accordance with the statute, (Justices Act, § 27,) commanded the con stable to arrest Grey only in case the judgment should not be paid or an amount of personal property sufficient to satisfy the judgment could not be found within the county whereon to levy execution. But it does not appear that there was any attempt made by the constable or Putney to find any property or to obtain satisfaction of the judgment in any other manner than by the arrest of Grey; nor does it even appear that Grey may not have had an abundance of personal property subject to the payment of his debts and upon which an execution might have been levied. For this reason also we would think the arrest was unlawful, and that it should not be sustained.
It is also claimed by the applicant, Grey, that both the order of arrest and the arrest itself were and are void, for the reason that no bond or undertaking was ever given or entered into by or on the part of Putney, the plaintiff in the action in which the order of arrest was issued. Whether this claim of the applicant is correct or not, we shall not now take the time to consider.
We think the imprisonment of Grey is unlawful, and that he should be discharged; and it is so ordered.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
This was an action brought upon a note given as a part payment of the purchase-price of a harvester sold by the plaintiffs to the defendant.' The record shows that it was sold on a verbal warranty, by the terms of which it was warranted to be of good material and to do good work. No provision was made for notice in case of defect, or for its return provided it failed to give satisfaction. In the absence of such requirements it was the duty of the purchaser to give the harvester a fair and reasonable trial; and then, if not satisfied, to return it and rescind the contract. This must be done within a reasonable time. (Weybrich v. Harris, 31 Kas. 92; Cookingham v. Dusa, ante, p. 229.) The record shows that he was not satisfied with the machine, and in fact that the machine was largely defective; but notwithstanding this, defendant retained and used it during the summer of 1884 and part of the season of 1885 — the first season cutting some ninety or one hundred acres, and the second season about fifty acres of grain; and where these facts are shown it seems to us that the claim made by the defendant that the machine was worthless for the purpose for which it was designed, comes with bad grace at this late date. The law as we understand it is, that where a machine of this kind is retained by the purchaser, he is bound to account for its value, if it has any; and not only for its value for the purpose for which it was designed, constructed, or sold, but for its value either to the purchaser or seller for any purpose. (Warder v. Fisher, 48 Wis. 338.)
Plaintiffs offered to show, and the court refused to receive the evidence, that this machine contained certain iron, steel and wood, and that this iron, steel and wood were of value. The court seemed to go upon the presumption that the plaintiffs could only show what it was worth as a harvesting machine, and not for other purposes. This, as we said before, is not the law. The plaintiffs had a right to show what this machine was worth to the purchaser or to themselves for any purpose, and if it had any value, the purchaser retaining it must account for that value.
The jury answered special questions submitted to them. The 12th, 14th and 15th questions and answers are as follows:
“12. How long has defendant used said machine since its purchase? A. The most of the season of 1884, and part of the season of 1885.”
“14. What benefit if any has defendant received from the use of said machine? A. No benefit.
“15. If any, what was its value? A. No value.”
These answers are inconsistent with each other, and cannot be true. If the harvester was used by the defendant during the greater part of two seasons for the purpose for which it was purchased, it then surely was of some use to him, and if of some use to him, then of some value. Such conflicting answers cannot be allowed to stand and to uphold a judgment apparently against the facts and circumstances as shown by the record.
It is therefore recommended that the judgment of the court below be reversed, and the case remanded for 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
Horton, C. J.:
The facts in this case, so far as they are necessary to be considered, are substantially as follows: On the 14th day of October, 1873, Bazil C. Sanders executed to George Clark his promissory note for $802.50, payable one year after date; George Clark was the agent of George W. Wake-field, who resided in Ohio, and loaned the money to Sanders for Wakefield; Clark indorsed and transferred the note to Wake-field. At the time of the execution of the note, in order to secure the payment of the same, Sauders executed to Clark his mortgage upon certain real estate in Cloud county. On August 27, 1883, Wakefield commenced this action to' recover upon the promissory note, and also to foreclose the mortgage. In his petition, he alleged that Sanders paid $5 upon the note on August 28, 1878. On the 19th day of September, 1883, Sanders filed an answer containing, first, a general denial; second, a plea of the statute of limitations. On the 4th of November, 1885, Sanders, with leave of the court, filed his third amended answer, which was verified. This admitted the execution of the promissory note and mortgage sued on; but set up as the only defense, the five-years statute of limitations. Trial had on the 2d day of March, 1886, by the court without a jury. Upon the trial, but one question of fact was in issue: that is, was the sum of $5, which was indorsed on the note, paid on August 28,1878, as alleged by Wakefield, or on August 23, as claimed by Sanders? After hearing the evidence and the arguments of counsel, the court rendered judgment for Sanders. A motion for a new trial was filed, and the case continued for hearing to August 20, 1886. Upon that day the court sustained the motion, granted a new trial, and continued the case until the next term. On the 4th of November, 1886, the case was tried before the court with a jury. During the trial, Wakefield asked leave of the court to amend his answer so as to show more specifically the payments claimed by him to have been made upon the note in controversy. This motion was denied. The jury made and returned the following special findings of fact:
“Did B. C. Sanders let J. M. Tibbitts (the agent and attorney of Geo. W. Wakefield) have five dollars during the month of August, 1878? Ans.: Yes.
“On what day of August, 1878, did B. C. Sanders let J. M. Tibbitts have five dollars, if ever? A. On the 28th day of August, 1878.
“If B. C. Sanders let J. M. Tibbitts have five dollars in August, 1878, when he let him have the money, was it intended by Sanders at that time as an absolute payment on the note in suit, or as an accommodation to Tibbitts? A. Absolute payment.”
The jury also returned a general verdict for $2,049.35. Subsequently the court rendered judgment in favor of Wake-field against Sanders for the amount sued for, and also for a foreclosure and sale of the mortgaged premises. Sanders excepted, and brings the case here.
I. The first error complained of is, the action of the court in allowing a new trial on August 20, 1886. This court will not reverse an order of the district court granting a new trial, unless it can say beyond all reasonable doubt that the trial court has manifestly or materially erred with respect to some pure, simple, and unmixed question of law; and that, except for such error, the ruling of the trial court would not have been made as it was made, and that it ought not to have been so made. (City of Sedan v. Church, 29 Kas. 190; Brown v. Railroad Co., 29 id. 186, and authorities cited.) The motion for a new trial contained about all of the statutory grounds; and the court, in sustaining the motion, did not state for what particular reason the motion was granted. We cannot, therefore, say that the district court erred with reference “ to some pure, simple, and unmixed question of law.” Even if the affidavits presented in support of the motion for a new trial were somewhat irregular, indefinite, and failed to show diligence, as is claimed, yet, as the case was tried on the 2d day of March, 1886, by the court, without any jury, and as trial courts are vested with very large and extended discretion in the granting of new trials, and as it does not appear that the trial court acted solely upon the affidavits presented, the exceptions taken to them are immaterial. New trials ought always to be granted whenever, in the opinion of the trial court, the party asking for a new trial has not in all probability had a reasonably fair trial, and has not in all probability obtained or received substantial justice. (City of Sedan v. Church, supra.)
II. The next alleged error occurred at the trial on the 4th of November, 1886. Counsel say that Wakefield had inserted in his petition a paragraph which was scandalous, and should have been expunged; that it was read by his counsel in the opening of the case to prejudice the jury; and that his counsel also said in the presence of the jury, during an argument against the admission of certain evidence, that “with the records piled with the perjury which this defendant has committed, as the files of this court will show.” Sanders made no motion to purge or correct the petition, or to strike out any portion. When his counsel made the comments referred to, the court at once sustained an objection to the same; therefore none of these things are sufficient grounds for any reversal.
III. It is further alleged as error, that J. M. Tibbitts and C. E. Tibbitts were permitted to refer, when under examina t.ion as witnesses, to improper memoranda in order to refresh their memory. The only issue of fact in the case was whether five dollars was paid by Sanders upon the note on the 28th of August, 1878. According to the evidence introduced on behalf of Wakefield, J. M. Tibbitts, as his attorney and agent, called upon B. C. Sanders on the 28th of August, 1878, at his farm near Concordia, to obtain payment or settlement of the note sued on. J. M. Tibbitts testified that upon that date Sanders paid him the five dollars which he indorsed upon the note. Sandei’s testified that J. M. Tibbitts was at his farm two times in August, 1878 — once on the 21st of August, and again on the 23d of August; that on the 23d he loaned him five dollars, but never loaned or paid him any money after that. The-evidence of J. M. Tibbitts showed that he practiced law in Columbus, Ohio, in the year 1878; that he came from that state to Kansas in August, 1878, at the direction of Wakefield, to see Sanders about the payment of his note; that he never saw Sanders until the 28th of August, 1878. He was then permitted, in order to refresh his memory, to refer to the indorsement on the note of the payment of five dollars on the 28th of August, 1878, which he testified was written by himself on that date, and also to the receipt he gave on August 28, 1878, to Mr. Houston for the note and mortgage; and also to the receipt of Strain & Sturges given him for the note and mortgage on August 28, 1878; and to his diary containing notes of daily events, kept by him for fifteen years, and written at the time of their occurrences. After so refreshing his memory, the witness stated that he left Ohio on the 20th day of August, 1878, to come to Kansas; that he arrived at the Missouri river, opposite Atchison, on Wednesday the 21st; that he came to Blue Rapids on Thursday the 22d, and stayed with his brother, who was living there, over Sunday; that he was at Marysville on Saturday the 24th; that on Sunday the 25th he went to church and Sunday school; that on Monday the 26th he wrote letters east; and Tuesday the 27th he came to Ames, in Cloud county, to see Mr. Clark, and stayed with him all night; that on Wednesday the 28th he was at Concordia, and on the same day went over to the farm of Sunders, where he received the five dollars indorsed npon the note. All of the receipts and other memoranda referred to by this witness were competent for the purpose used. The rule is well settled that notes or memoranda, made up by the witness at the moment or recently after the fact, may be looked to in order to refresh his memory. It is accordingly usual to allow a witness to look at memoranda made at the ■ time, of dates, distances, etc., before giving his testimony, he having first sworn that they were made at the time, and faithfully done. (Wharton on Ev., §§516 — 526.)
To support the exceptions taken to the evidence of C. E. Tibbitts, it is said in the brief of Sanders that he was permitted to refresh his memory by an article in the Marysville News, a newspaper published in Marshall county, August 31, 1878. C. E. Tibbitts testified that on Saturday, the 24th day of August, 1878, he went to Marysville with his brother, J. M. Tibbitts; that he was in the News office at Marysville upon that day, and that he had a News with him of the date of August 31, 1878; he stated that there was a statement in the paper in regard to his visit to Marysville, but nothing further. The paper was not introduced in evidence, and the witness did not state that from the paper or from any article in it his memory was refreshed as to the particular date of his visit to Marysville; therefore, the matters testified to about the Marysville News of the date of August 31, 1878, were not prejudicial or material.
IV. It is finally urged that the trial court committed error in not permitting Sanders to amend his answer upon the trial, so as to show more specifically the payments claimed by him to have been made on the note. The action was begun the 27th day of August, 1883; the final trial was on the 4th of November, 1886, over three years from the time of commencement. Sanders had already filed four answers, the last answer alleging as his sole defense the statute of limitations. . The money that Sanders obtained from Wakefield was paid to him by George Clark; the payments alleged in the proposed amended answer were made to George Clark; at the time of the trial, he was dead. Although there had been a prior trial of the case and various answers filed, as above stated, no suggestion had ever before been made by Sanders, or his counsel, of any of these payments. Under these circumstances, thé court committed no error in refusing the amendments requested.
We have examined the other matters discussed in the briefs; but, in view of the special finding of the jury that Sanders gave to J. M. Tibbitts, (the agent and attorney of Wakefield,) on August 28, 1878, five dollars, which was intended by him at the time to be a payment upon the note sued on, further discussion is unnecessary.
Upon the record, the judgment of the district court must be affirmed.
All the Justices concurring. | [
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Per Ouriam:
The only material questions presented by the record in this case are the same as those involved in K. C. & S. W. Rld. Co. v. Ehret, ante, p. 22; same case, 20 Pac. Rep., 538; K. C. & S. W. Rld. Co. v. Baird, and K. C. & S. W. Rld. Co. v. Orr, just decided; and upon the authority of these cases the judgment of the district court in the present case must be affirmed. | [
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Opinion- by
Clogston, C.:
This action was brought in the district court of Wyandotte county, to recover for the death of J. M. Hite, who was run over and killed by a train of cars on the Inter-State Consolidated Rapid Transit Railway Company’s road, on the 21st day of October, 1886. At the time of the accident, Hite was employed as a carpenter in the construction of what is known as the Splitlog trestle, and had been so at work for about five months. He was working immediately under E. T. Allen, a contractor under the Inter-State Construction Company, who had contracted to build the i’oad, including this trestle. The plaintiff in error insists that the judgment must be reversed, first, for the reason that the record shows that the defendant was guilty of no negligence causing the death of Hite; and second, because the record shows that the deceased was guilty of negligence which contributed directly to his death. As these are questions of fact, and as they were submitted to the jury, and the jury returned in answer thereto that the defendant below was guilty of negligence in causing the death of Hite, and that the deceased was not guilty of negligence contributing thereto, before the plaintiff’s theory can be sustained it must be determined from the record that there was no evidence of any kind upon which the jury might make the findings of negligence on the part of the defendant, and the want of negligence of the deceased.
First, as to the negligence of the defendant, plaintiff in error. The jury, as we said above, found such negligence; and in the evidence we find in support of that finding this state of facts: That Hite, the deceased, went to work on the morning of October 21, at 7 o’clock, and was run over and killed by a train of cars on the defendant’s road about half-past 7 in the morning. The morning was very foggy, so much so as to prevent the seeing of a person or object except but for & short distance. The work that Hite was engaged in at the time of his injury was the putting down of a guard-rail on this trestle. The trestle was about 750 feet long and about 20 feet wide, on which were constructed two tracks, one for the north- and the other for the south-bound trains. Cars had been running over the trestle at the time of the injury for some three or four weeks. On the morning of his death, Hite was working on the north-bound track. A train was approaching on that track, ringing the bell and running slowly, and to get out of the way of the train he stepped over upon the south-bound track, and was struck and run over by a train going south, which train was running at a rapid rate of speed, and gave no signal to warn the men at work of its approach. In addition to this, Allen, the contractor, testified that the company was hurrying him up to complete the trestle, and he was asked, “ What information, if any, had you given the company that the men were to go to work on the trestle?” Allen, in answer, said: “They knew it, and they had urged me to finish the work as soon as possible. In speaking of the company, I mean Mr. Edgerton and Mr. Hager. Mr. Hager was superintendent of transportation; Mr. Edgerton is presi dent, and superintendent of construction. I had the position of superintendent of trestle-work and bridges, and was under the direction of the chief engineer and general superintendent of construction.” • He was asked:
“Q,. What information did Edgerton or Hager have that these men were at work on the trestle at the time of the accident? A. I don’t know that they had any information of it at the exact time, but they knew that the work was progressing, for they were riding over the road several times each day. The work being done was putting on guard-rails.
“Q,. What conversation, if any, did you have with Hager and Edgerton as to the danger of the men at work on the trestle while the trains were running, and what direction did you request him to give to the engineers of the trains, if any? A. I requested Mr. Hager to direct the engineers to run slowly over the trestle-work, and if necessary, to stop to allow my men to get out of the way. This he promised to do.
“ Q,. Was this all the conversation you had about it? A.' We had other conversations, but not as to what was to be done in the future, at which time I told him it was extremely dangerous for the men to work on the trestle while the trains were running. I had previously had a conversation with him in which I asked him to have the trains stopped entirely while the trestle was being completed; to have their temporary terminus at the north of Splitlog trestle instead of River View station. His answer was that we might as well stop running over the entire road.”
It is insisted, however, that this conversation with Edger-ton and Hager, and their promise in relation to running the trains, was no protection to Hite, for the reason that he was not informed of the promise, and that it was not by reason of the promise that he went to work upon the trestle. This the jury found to be true, but will this excuse the company for the reckless and careless manner in which it was operating the trains at the time of the injury? The place where Hite was at work was eminently dangerous, because of the fact that trains were being operated over the road and likely to pass and repass where he was at work. This made the danger. The evidence also shows that the work was almost completed, and would have been finished on the day of the accident.
Again, there was additional danger on that morning, by reason of the dense fog that prevailed; and it is now urged that by reason of this fog and the dangers caused by it, Hite’s death was caused by going to work in a dangerous place on a foggy morning without any promise that the railroad company would exercise care to protect him from injury. And while, as we said before, it is true that he had no knowledge of the promise of protection, yet can this promise be entirely ignored? We think not. This conversation was had and the promise made on the Saturday preceding the injury, which occurred on Thursday. At the time of this conversation the work had been going on in the night-time so as to avoid the danger. Allen was being urged by the company to finish his work, and to comply with its demands he had this conversation to request protection for his men. After this conversation he did not place the men at work in the daytime on the trestle, until Wednesday afternoon, at which time a gang of men went to work on the trestle, and continued working there during the afternoon, and on Thursday morning again commenced work there. On Thursday morning there were about fourteen men working on the trestle. The evidence also shows that trains had been running over the trestle every fifteen minutes for about an hour and a half that morning. This is all the evidence showing that the company had knowledge that the men were there at work. Is this sufficient ? There is, first, the conversation on Saturday with Allen, in which he informed the company in substance that" he was going to put the men at work on the trestle; second, the statement of Allen that Edgerton and Hager knew the men were there at work, for they were passing over the road several times each day. It must be remembered that Mr. Edgerton was president of the company and superintendent of the construction. Now, holding this position, and passing over the road several times each day, urging Allen at the time to complete the work, the work being done under his supervision, can it be said that he did not know that the work was progressing ? And if he knew it was progressing, that the work was being done in the daytime ? Then the men were at work there the day before, and it was practically impossible for the trains to be operated and the men operating the trains not to be aware of the fact that men were engaged in putting down these guard-rails.
Again, on the morning of the injury trains had been running over the road for about an hour and a half. This evidence we think clearly shows, or is sufficient upon which the jury might find, that the company had knowledge that the men were at work putting down the guard-rails on the morning of the injury; at least, it is evidence tending to show that fact; and as the jury has found for the plaintiff, we must resolve all doubts in favor of the verdict of the jury. Then, knowing the fact that the men were at work in this dangerous place upon that foggy morning — so foggy that the engineers of the trains could not see a man on the trestle but for a few feet — it was the duty of the company to operate the trains with care proportionate to the danger of the men thus emploved. It knew the danger; it should have L t ° ? conducted the business commensurate to the danger to which the men were exposed. If it did not do this, it was guilty of culpable negligence.
The train that ran over Hite, the jury found was running at the rate of twelve or fifteen miles an hour; and they also found that this was a greater speed than usual. The jury also found that the company gave no signals, either by ringing the bell or otherwise, to inform the workmen on the trestle of the approach of the train. This it had no right to do with the knowledge which it had, or ought to have had, from the surrounding circumstances. But it is insisted that even if this is all true, and the company was guilty of culpable negligence, yet the plaintiff ought not to recover, because of Hite’s own negligence, contributing to his injury; and it is insisted that Hite went upon this dangerous work on the morning of the injury, in the fog, without any assurance of protection from the company, and with no knowledge of the promise made to Allen by the company for his safety. This is true. He was placed there to work by his employer, and while he had no knowledge of it, yet here was a promise made for his was not extremely dangerous if this promise was kept by the •company. No showing is made as to the manner of running ■the trains on this Wednesday afternoon, or in fact as to how they were operated on the morning of the injury, save and except as to two trains that passed at the point where he was at work, causing his death; and it is shown that one of these trains was ringing the bell and running very slowly, giving •the men ample time to get out of the road; while the other train was running very rapidly, giving them no signal. This is the entire history of the manner in which the train was run. It may perhaps be inferred that the trains on the day previous, and on this morning up to the time of the accident, were run in a proper manner, carrying out the spirit of the promise to Allen, and he may have worked there during this time with comparative safety. If he did, then he had no knowledge of the danger that caused his death. It is true that witnesses testified to the usual rate of speed in running over the trestle, but whether that was the rate of speed at which the trains ran in times when men were at work on the trestle, or at times when no one was working there, is not stated; and as before stated, all doubts must be resolved in favor of the findings of the jury. And therefore we cannot say, as a matter of law, under the facts in this case, that Hite was guilty of such contributory negligence as to prevent a benefit by the company to his employer, and his employment recovery. There was evidence, we think, of the negligence of the company, and there was evidence of the conduct of Hite, and of the care that had been taken to secure the safety of the men. All these facts went to the jury, upon which we think they might fairly find negligence or the want of negligence. It being a question of fact submitted to them, their findings conclude us.
The next objection urged by the plaintiff in error is, that the court refused to give all of the fourth instruction asked by the defendant. That part of the fourth instruction which the court refused to give was afterward substantially given in the sixth and seventh instructions; and where an instruction is asked that would be proper, yet if afterward, or in other instructions, the same proposition is submitted to the jury, it is not error for the court to refuse to give the instruction as asked.
The next objection is, that the court modified the fifth instruction, which instruction is as follows:
“ 5. When an employé of a railway company enters upon its service with knowledge of the character and position o*f structures, and the manner of running trains over such structures, he assumes all apparent risks, and cannot maintain an action for injuries resulting from such apparent risk; and as applied to this case, if the deceased knew the trestle and the manner of running trains over the same, and passing of the same thereon, and that a dense fog was prevailing, and continued to work on the track or tracks of the railroad on the trestle, then he assumed the risk of such service; and if he was injured in consequence of the trains running over the trestle and passing each other thereon, at or near where he was at work, and from not being able to see both trains, owing to the fog, in time to get out of the way of both, then plaintiff cannot recover, and the verdict should be for the defendant.”
To the foregoing the court on its motion added the following:
“Unless you find from all the circumstances proven on the trial that the railway company was negligent in running its trains at the time, and by such negligence caused the death of said J. M. Hite, and further find that the acts of Hite were not negligent directly contributing to his death.”
We see no error in this modification, for if the company was running its trains on the morning of the injury, knowing that the men were at work, and also knowing the condition of the weather, and with this knowledge ran its trains at a rapid rate of speed, without signals, and under these circumstances Hite was run over and killed, without negligently do iug any act contributing to his death, then the company would not be excused for its negligence.
The seventh instruction is also complained of because the court modified it substantially with that of the fifth, omitting only to call the attention of the jury to the fact that Hite must also be free from negligence; but as the court in its modification of the fifth instruction properly gave the law once, the modification of the seventh instruction was not material error.
The last objection raised is, that the court refused to give the fifteenth instruction, as asked by the defendant, which is as follows:
“15. If the jury believe from the evidence that those in charge of the south-bound train which ran over Hite, owing to the fog that was prevailing had no sufficient reason to suppose that Hite or others were at work on the trestle, then the jury cannot find that those in charge of the train were negligent in running the train even a rapid rate of speed exceeding the ordinary rate.”
This instruction if given would have had a tendency to mislead the jury. It assumes that if the persons who were operating the train had reason to suppose that Hite and others were not wor^ on the trestle, then it was not negligence for those in charge of the train to run at & grea(-er rate of speed than ordinarily; and from this the jury might have inferred that if such employés were guilty of no negligence in so running the train, then the company also was not guilty of negligence in permitting the train to be so run. If the company, the officers of the road, the persons whose duty it was to know, or who under the circumstances ought to have known, had knowledge, then it would not excuse the company from liability by showing that a particular engineer, or the particular conductor of the train, was guilty of no negligence in running the train at a greater rate of speed than ordinarily. Therefore we think that the court committed no error in refusing to give the fifteenth instruction requested.
In conclusion, it may be said that the law of negligence on the part of the company, or what constitutes negligence, and what was negligence on the part of the deceased which would preclude his recovery, were very clearly defined and given to the jury; and from all the instructions we are free to say that we think the jury were as favorably instructed for the deleudanffs view and theory of the case as the law would warrant, and it has no ground for complaint as to the instructions given or refused. We are therefore of the opinion, that while the facts and circumstances show a close question as to the contributory negligence of the deceased, yet we are not willing to disturb the findings of the jury upon the facts shown and found by them.
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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The opinion of the court was delivered by
Valentine, J.:
On March 24,¡1874, the plaintiffs, Thomas Joyce and Mary Joyce, who were husband and wife, mortgaged certain real estate to the defendant, Thomas Means, and on. December 19, 1874, the mortgage was duly recorded. In December, 1876, the mortgage indebtedness was duly paid and discharged, but the defendant failed to discharge the mortgage of record. About the month of December, 1880, the plaintiffs demanded of the defendant that he should discharge and release the mortgage of record, and the defendant agreed to do so, but still failed. The plaintiffs afterward and on several different occasions further requested the defendant to enter satisfaction of record of the mortgage, and at each time he agreed to do so, but has in all cases failed, and has never done so. Afterward, but just when is not shown, the plaintiffs commenced this action to recover the penalty prescribed by § 8 of the act relating to mortgages. It appears, however, from the findings of the court below, that some of these demands were made more than one year prior and some of them within less than one year prior to the commencement of this action. Section 8 of the act relating to mortgages provides that where the mortgagee or his assignee shall, after satisfaction of the mortgage and after demand, fail to enter satisfaction of the mortgage of record or to cause the same to be done, the mortgagor or his grantee or heirs shall have a cause of action against such mortgagee or assignee to recover $ 100 as damages, and the defendant claims that the cause' of action thus created and given is a statutory “penalty or forfeiture” within the meaning of the fourth subdivision of §18 of the civil code, which provides that a party shall have- only one year within which to commence “an action upon a statute for a penalty or forfeiture;” and therefore the defendant claims that the cause of action in the present case was barred before this action was commenced. The court below found and held that the plaintiff’s cause of action was barred, and we thinlr rightly. We think the action is for the recovery of a penalty given by statute, although the statute giving the action designates the thiug to be recovered as damages. We have heretofore designated these damages as a penalty. (Thomas v. Reynolds, 29 Kas. 304; Perkins v. Matteson, 40 id. 165; same case, 19 Pac. Rep. 633; Hall v. Hurd, 40 Kas. 374; same case, 19 Pac. Rep. 802.) And such has always been the view of this court. This case was not only not commenced within one year after the mortgage debt was paid and satisfied, but it was not commenced within one year after the first demand was made by the plaintiffs that the defendant should enter or cause to be entered satisfaction of the mortgage of record. The plaintiffs, however, claim that as they subsequently made other demands, some of which were made within less than one year prior to the commencement of this action, they thereby, in some manner, prevented the statute of limitations from so operating as to bar their present supposed cause of action; that they either created a new cause of action, or revived or resuscitated their former cause of action, or at least rejuvenated their old cause of action and by that means so extended its life that no statute of limitations has intervened to bar a recovery. We do not think that this view can be correct. A party can have only one cause of action under the statute or for the penalty prescribed by the statute, and as soon as that cause of action accrues or is brought into existence the statute of limitations certainly commences to run against it and continues to run unless the running thereof is prevented by something provided for by the statute itself, as disability on the part of the plaintiffs, or absence from the state on the part of the defendant, or some other thing. (See Civil Code, §§19, 21.) Nothing has intervened in this case to prevent the statute of limitations from running, or to suspend its operation.
The judgment of the court below will bé affirmed.
All the J ustices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On September 10, 1887, C. H. Wilson made a written complaint, on oath, to Robert Lyle, a justice of the peace of the city of Larned, charging W. B. Culbertson with the commission of a misdemeanor. The justice issued his warrant for the arrest of the accused; subsequently Culbertson was arrested, and the hearing of the complaint set for September 20, 1887, at one o’clock p. M., the accused being required to give bond for his appearance at that time; the cause was continued to September 21, 1887, and then tried. The witnesses for the state were Scott E. Winne, C. H. Wilson, and Henry Peters; the jury failed to agree, and were discharged. By agreement of the parties, the second trial was set for October 3,1887, at one o’clock p. M., but the witnesses for the prosecution were not subpenaed or directed to appear at that time; at 1:30 P. M. of that day the cause was called for trial, all of the parties being present; the witness, Scott E. Winne, being absent, the cause was continued until 4 o’clock p. M. of the same day; at that hour the case was called again for trial; Scott E. Winne not appearing, the county attorney asked the justice to dismiss the cause at his costs; the justice allowed the motion, deciding that Winne was the real prosecutor ; that the complaint was malicious and without probable cause. In rendering judgment against Winne for costs, the justice also ordered that he be committed to jail until the costs were paid. Subsequently, the justice issued an execution and commitment against him, and thereon he was arrested and confined in the jail of Pawnee county.
On the part of the petitioner, it is contended that the justice of the peace had no authority to tax the costs of the prosecution against him; that he had no knowledge that the cause was assigned for trial on October 3, 1887; that he was not the complainant, but only a witness, and that he had no notice of the motion to tax the costs, or of the rendition of the judgment against him, until he was arrested.
We think the contention of the petitioner is well taken. Section 2, chapter 83, Comp. Laws of 1885, relating to criminal procedure before justices, reads:
“Whenever a complaint shall be made to a justice of the peace, on the oath or affirmation of a person competent to testify, charging any person with the commission of any misdemeanor, he shall forthwith issue a warrant for the arrest of such person, and cause him to be brought forthwith before him for trial. Such warrant shall be executed by the sheriff or any constable of the county, or any person specially appointed, in writing, by the justice.”
And §18 of said chapter 83 provides:
“Whenever the defendant, tried under the provisions of this act, shall be acquitted, he shall be immediately discharged, and if the justice or jury trying the case shall state in the finding that the complaint was malicious or without probable cause, the justice shall enter judgment against the complainant for all costs that shall have accrued in the proceedings had upon such complaint, and shall commit such complainant to jail until such costs be paid, unless he shall execute a bond to the state, in double the amount thereof, with security satisfactory to the justice, that he will pay such judgment within thirty days after the date of its rendition.”
C. H. Wilson is the party who made, subscribed and filed the complaint with the justice of the peace; therefore, within the provisions of the statute, he was the complainant, not Winne. The statute gives authority to the justice to enter judgment against the complainant for all costs that shall have accrued in the proceedings had upon the complaint, and may commit the complainant to jail until th£ costs are paid; but the statute does not permit the justice to enter judgment against a witness for costs, however material the testimony of that witness might have been. The statute is the authority and limit of power of the justice of the peace in such proceedings, and his attempt to compel Winne to pay the costs was wholly beyond his jurisdiction; therefore the imprisonment and restraint, under the commitment of the justice of the peace, were not only unjust, but illegal. Section 326, chapter 82, refers to the costs in other criminal proceedings, and differs somewhat in its provisions from said §18.
The petitioner will be discharged, and recover his costs.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
This action was brought by the defendant in error against the plaintiffs in error to recover the possession of a strip of land one hundred feet wide across the southeast quarter of section 34, township 17, range 21, Franklin county, and for damages for the detention and injury thereto. Houseman, the owner of the land, was a resident of the state of Colorado at the time said alleged possession and injury occurred, and for a long time thereafter. The plaintiffs in error allege as error, first, that the court improperly admitted in evidence a quitclaim deed from John W. Newhart to the plaintiff; second, allowed evidence as to the damage to the land not properly included in the items of damage set out in the petition; third, refused to allow the defendants to give in evidence the notice and condemnation proceedings had, by which the right-of-way across plaintiff’s land was condemned by the county commissioners of Franklin county.
As to the first of these errors, plaintiffs in error insist that this deed was defective because it was acknowledged in the state of Pennsylvania before an officer purporting to be a justice of the peace, and no proper proof was made that such officer was a justice. The execution of the deed was proven, and the execution being proven it was immaterial whether it was acknowledged or not; it conveyed title equally with one duly acknowledged. (Simpson v. Mundee, 3 Kas. 181; Furrow v. Chapin, 13 id. 112.)
The second objection is, we think, unfounded. The rule contended for by the plaintiffs in error would doubtless be correct if it was on an appeal from condemnation proceedings, but as this question was tried and this evidence admitted upon the theory that the defendants below were trespassers, any damage that resulted from the building of the road in any manner, as the approximate or direct result from any acts of the defendants, they were certainly liable for, and we think that the allegations of the petition were broad enough to admit the proof.
The last objection, and the only one worthy of serious consideration, is as to the sufficiency of the notice required to be published before condemnation proceedings can be had under chapter 23, Comp. Laws of 1885. The notice, or so much of it as embraces the question raised, is as follows:
“It is hereby ordered that notice be given by publication for thirty days in the Ottawa Republican, a newspaper of general circulation, published in Franklin county, Kansas, that said board of county commissioners of Franklin county will meet at that certain point where the proposed line of said railroad is intersected by the eastern boundary of Pottawatomie township, on Tuesday, the 5th day of August, 1879, at 10 o’clock a.m. of that day, and proceed to lay off along the lines of said proposed railway through said township, and from that point where the proposed line of said railway is intei’sected by the eastern boundary of said Franklin county, and thence west to the city of Ottawa, in said county, as is platted, filed and located by said railway company, a route for such proposed railway, not to exceed one hundred feet in width.”
The objection to this notice, and the one upon which the court excluded it, was that no time is fixed therein when the commissioners would commence to condemn the right-of-way over that branch of the road that runs through plaintiff’s land. The record shows that the railway company was purporting to build two lines of road through Franklin county: one from the direction of Osawatomie, running northwest to Ottawa and Topeka; and one running in a southwesterly direction across the southeast corner of Franklin county', through Pottawatomie township, to the south and west lin'e of the state. While both of these roads were being built under the one name of the St. Louis, Kansas & Arizona Bail way Company, yet they were two distinct lines of road in Franklin county, entered the county at its east line at different points, and ran through it in different directions. It may be conceded that they might under one notice, properly worded, have included both lines; but to do so, the notice must fix the time at which the condemnation proceedings would be commenced on each of these lines of road. Now as to the line of road where it intersects the eastern boundary of Pottawatomie township, the notice definitely states when they will commence to condemn that line through Pottawatomie township. The notice says on Tuesday, the 5th of August, and “proceed to lay off along the lines of said proposed railway through said township.” Then it also says “ at a point where the proposed line of road intersects the eastern boundary of Franklin county.” This refers to the other line of road, and this line of road ran through the plaintiff’s land, and no time was fixed when the commissioners would commence to condemn that line, so as to notify the plaintiff when he could expect to meet the commissioners and show them the damage to his land. It was well said by the trial court in passing upon this question:
“I am aware, of course, that in a matter of this kind, where a land-owner proposes to treat the railroad company as a trespasser, as here, the condemnation proceedings must be absolutely void, not merely irregular, in order that he may maintain his action; but there is a rule of law to be considered in connection with that proposition, which is, that where property is taken merely on notice by publication, theo statute is to be strictly pursued, as in a case of a summons by publication.”
The notice when properly published would give the commissioners the right to lay off and condemn a right-of-way, but unless the notice was properly published no authority existed for their action, and their action would be void. The statute requires but one thing — that is, the notice shall state at what time they will commence to condemn the right-of-way. The legislature thought it was essential that the time should be published when they would commence to condemn a line, and when it was so published it became the duty of the land-owners to be on their guard and watch for the commissioners when they approached their land, and show them the damage they desired to be compensated for.
We think the notice was insufficient to give the commissioners jurisdiction, and therefore that the condemnation proceedings, so far as the plaintiff was concerned, were absolutely void, and the court properly excluded them. The errors complained of by the plaintiffs in error in relation to the instructions of the court, relate to the condemnation proceedings, become immaterial when the condemnation proceeding itself is excluded, and therefore we shall not consider those assignments of error.
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
Horton, C. J.
This was an action brought by Adam Wagner, assignee of Swift’s Iron and Steel Works, against H. C. Darby and others, to enforce a lien upon certain lots in the city of Columbus, in this state. The plaintiff claimed to have sold H. C. Darby, under a contract, iron amounting to $2,-023.21, on July 13, 1887, for the erection of a stand-pipe on the lots. The plaintiff resided at Newport, Ky., and owned and operated iron mills at -that place. H. C. Darby owned and operated shops at Kansas City, Mo., and kept his general offices there. He was engaged in the manufacturing of steam boilers, in the repairing and rebuilding of second-hand boilers, in the manufacturing of engines, in the erection of stand-pipes, and in the repairing of gas systems. About 50,000 pounds of the iron purchased on July 13, of the value of- $1,325, was used by Darby in the erection of the stand-pipe. The balance of the iron was used by him for other purposes. A trial was had before the court without a jury. No special findings of fact were requested or filed. A personal judgment was rendered in favor of the plaintiff and against Darby for the value of the iron purchased, but a general finding was made against the plaintiff upon the mechanic’s lien, and a judgment entered accordingly.
A lien is not acquired by a vendor for materials sold to a contractor, when they are supplied under an ordinary sale on credit, though the contractor may actually use them in building a house or making an improvement. (Clark v. Hall, 10 Kas. 81; Weaver v. Sells, 10 id. 609; Chapin v. Persse Paper Works, 30 Conn. 471; Odd Fellows’ Hall v. Masser, 24 Pa. St. 507; 64 Am. Dec. 675.) The general finding and judgment that the plaintiff had no lien on the lots compels an affirmance, if there is any evidence in the record tending to show that the iron was furnished at Kansas City, Mo., upon the credit of the contractor and not upon that of the building. There is ample evidence sustaining such a view of the case, and therefore the j udgment of the district court must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hutchison, J.:
This was a condemnation case against the board of. county commissioners of Bourbon county for damages to a 120-acre tract belonging to the plaintiff occasioned by the construction of a benefit-district road along and on the west side of the land.
The claim filed by the plaintiff with the county board was for $2,000, the same being for land taken, the building of fence, and damage to the land not taken by reason of the diversion of the stream of running water (Drywood creek) from his land. The county board allowed plaintiff $42 for the seven tenths of an acre of land taken and $45 for removing ninety rods of fence at fifty cents per rod, or a total of $87. The landowner appealed to the district court, and the case was tried there without a jury. The court allowed $35 for the land taken and $45 for the removal of the fence, making a total of $80, and no allowance in either case was made for damages to land not taken by the diversion of the creek. The trial court made findings of fact and conclusions of law.
Two preliminary questions are noted: First, that plaintiff in his appeal to the district court did not' file any pleading or claim of any kind for damages, and second, that he did not request modification or additional findings when they were filed and before taking his appeal to this court. Appeals in such cases are taken in the same manner that they are taken from judgments of justices of the peace in civil cases (R. S. 68-107), which is by filing a bond, and the cases shall be tried de novo upon the original papers (R. S. 61-1002 and 61-1003). As to requesting additional findings or modification of the findings, such is necessary only when something has been omitted or overlooked, and not when there is a specific finding against the appellant’s theory and contention. There is no controversy in this case about the value of the land taken or the allowance for removal of the fence. The only question is the damage to the land not taken by reason of the diversion of the running stream from the plaintiff’s land.
The findings show that this running stream, Drywood creek, was diverted from this land, in connection with the building of this road, 350 feet southwest of where it entered plaintiff’s land, and was provided with a new channel in a northeasterly direction, connecting with the original channel after it left the land of the plaintiff, so that as a running stream it was completely diverted from plaintiff’s land.
All the witnesses whose testimony we have, except two engineers, gave testimony as to the market value of the land not taken, before the stream was diverted and after it was diverted, and that was the sole issue. The three county commissioners and one former county commissioner said the land was worth as much or more after the building of the new road than it was before, some of them stating that the new road enhanced the value of the land, which was contrary to the court’s conclusion concerning the same. The finding was that there was no damage to the land not taken by reason of the diversion of the stream. That was not such a finding as needed an additional finding or modification. The only other finding possible could have been the opposite and the amount of damages.
The court very properly stated in its third conclusion that the vacating of the old road on plaintiff’s farm and any general benefits to the land on account of the new road being built were not matters to be taken into consideration in awarding or refusing to award damages. And this was especially the correct rule with reference to a benefit-district road. The court in another conclusion correctly outlined the rule as to damages being the difference in the real value of the land just before and just after the construction of the road. No mention is made in the conclusions of law as to the diversion of a running stream being a possible element of damage to the land not taken.
The trial court in its second finding of fact describes the 120 acres belonging to the plaintiff, consisting of two adjoining 10-acre tracts in section 20 and a 100-acre tract lying immediately north of them, and that one of the 10-acre tracts was in the southwest corner of the section. The third and fourth findings are as follows:
“3. That Drywood creek, before the new road was built, came onto this 10-acre tract in the southwest corner of section 20, just near the southwest corner, and flows east about 600 feet and then makes a bend, forming a gooseneck, and goes off the Durkee land at, or just near the northwest corner of this small tract. . . .
“4. That when the new road was constructed, it took %o of an acre off the extreme west end and the fence on said strip, and at a point about 350 feet southwest of the southwest corner of this 10-acre tract, the channel of Drywood creek was changed to the north for about 550 feet, where it again entered the old channel, and then flows on northwest for a distance; and in changing this channel, the current of Drywood creek was taken out of the gooseneck, that passed on to the Durkee land and by and near his house and barn.”
The fifth finding tells of the road builder’s placing a four-foot iron pipe under the road at the place where the creek formerly entered the plaintiff’s land and a large wooden box under the road where it formerly came out from the farm, and concludes as follows:
“. . . and by this tile and box under the new roadj the old channel around the gooseneck and by and near the house and barn of this claimant, fills with water in times of high water, some three or four times during the year.”
The ninth and twelfth findings are as follows:
“9. The water in the gooseneck now and as it has been during the past three and a half years, serves this claimant in every way it did just before and just after the new road was built in the summer of 1930, except these holes are not so near and convenient as was the water when it flowed all the way around the gooseneck and near the house and barn of plaintiff, but before the change in the channel there was not water at all times and seasons of the year, in the bow of the gooseneck nearest the house and barn, and in times of high water the old channel is filled all the way around.”
“12. The building of this new road by plaintiff’s land and changing the channel of Drywood creek so that most of the water does not flow around the gooseneck on plaintiff’s land, has not resulted in any general damages to plaintiff’s land, but %o of an acre of his land taken was worth $35, and the fence taken was worth $45.”
The two assignments of error are as follows:
“That the court erred in holding that appellant was not damaged by the diverting of Drywood creek, that appellant’s land was not reduced in value by the diverting of said creek, and that appellant was not entitled to damages by the diverting of said stream.
“That the decision of the court is contrary to the evidence.”
Instructions as follows to juries, along the line of damages in such cases, have been approved by this court:
“. . . You may, I think, take into consideration the productiveness of the land before and afterwards, any extra work that may be entailed by reason of the making of the improvement, any inconvenience that the person would be put to in the manner in which he operated his place.” (Laptad v. Douglas County Comm’rs, 130 Kan. 564, 567, 287 Pac. 255.)
“You are further instructed that, in determining the amount of plaintiff’s 'recovery, the proper basis of damage is the value of the tract actually taken, and the difference in value of the remainder of the tract immediately before and after the taking, and, in this connection, you are instructed that, in determining the value of the tract taken and the difference in value of the remainder of the tract before and after the taking, you are to consider all the capabilities of the property and its most advantageous uses as it is actually situated.” (Emery v. Riverside Drainage District, 132 Kan. 98, 99, 294 Pac. 888.)
The court found that the current of Drywood creek was diverted from plaintiff’s land, that the channel fills with water in times of high water three or four times a year, and that the holes are not so near and convenient as was the water when it flowed around the gooseneck near the house and barn. This diversion was the taking of private property, and while it may have to be subjected to such use for the best interests of the country at large, it should not be taken without just compensation. Even the. inconvenience that the court mentions is an element of damage to the land not taken. A running stream through a farm is an asset. This is not even regarded as a debatable question. It has always had a real value, and the only question is, what is that value to the plaintiff’s farm.
“The waters of a private pond or a private watercourse are private property and cannot be taken for public use without compensation to all the riparian owners whose rights are injuriously affected.” (10 B. C. L. 84.)
“It is the well-settled general rule that a riparian proprietor has a right to have the water of a stream flow down to his land as it is wont to run, in its natural mode and course, undiminished in quantity and unimpaired in quality, unless this right has been limited or destroyed by an appropriation and adverse use thereof by some other person, continued sufficiently long to create a right in the adverse holder. . . . Use does not create, and disuse cannot destroy or suspend it. It is a private property right in the proprietor within the protection of the constitutional provision that private property shall be forever held inviolate, subject to the public welfare, and shall not be taken for public use without compensation being first made.” (27 R. C. L. 1091, 1092.) '
“Water rights are within the protection of the constitutional inhibition against taking or injuring private property without compensation, and if the waters of a lake or stream are taken directly or indirectly so as to infringe upon the rights of a riparian proprietor, compensation must be made.” (20 C. J. 660.) (See Shamleffer v. Peerless Mill Company, 18 Kan. 24.)
We think the finding was contrary to the law of the case and the evidence, and that the amount of the damage to the land not taken on account of the diversion of the running stream should be found.
The judgment is-reversed. | [
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The opinion of the court was delivered by
Smith, J.;
One of these actions was brought in Cloud county to enforce an oral agreement to bequeath property, for construction of a will, and to contest another will. The other action was brought in Republic county to foreclose a mortgage on land involved in the Cloud county action. Judgment was for defendants in the Cloud county case and plaintiff in the Republic county case. The defeated parties in each case appeal. The cases have been consolidated in this court, since the questions in the mortgage action will be determined by a decision on the questions pertaining to the will.
Thomas McClean and Hannah McClean were husband and wife. They had seven children. In 1904 they divided their property and were divorced. Each received about 400 acres of land. In 1906 Thomas died. He left the will which we are asked to construe. Some time after his death one of the children died without issue.
On February 17, 1933, Hannah McClean died at Concordia. She left a will which action No. 32,433 sought, among other things, to contest on the ground of incompetency to make a will. In this will all her property was left to a daughter, Crystle E. McDowell, and a son, Eugene J. McClean, defendants in the above action.
During the years between 1906 and 1933 Hannah placed a mortgage on some of the land that was covered in the will of Thomas. Foreclosure of this mortgage was sought in the action in Republic county, that is, action No. 32,468 here.
The portion of the will of Thomas McClean with-which we are concerned is as follows:
“It is my desire and I hereby direct that all my just debts including those of my last sickness be paid within a convenient time.
“2d. I will and bequeath unto my heretofore wife, Hannah McClean, all my personal property of every description and kind whatsoever, including all money deposited in bank and otherwise after paying my just debts.
“3d. I will, devise and bequeath unto my said once wife, Hannah McClean, who is the mother of my children and whom I have confidence in that she will love and properly care for and protect my said children, all of my real estate of every description whatsoever, the same being described as follows, to wit:
“4th. The reason I have herein willed, bequeathed and devised unto my once wife, who is the mother of all my now seven children, is because I have full confidence in her, and that she will care for my said children during her life better than they can care for themselves, and because I believe that finally at the death of said Hannah McClean my said children will receive all of said property.”
Among the children left by Thomas were Cameron P. McClean and Lueíla E. McClean. These two children brought an action on January 9, 1907, in Republic county to contest this will on the grounds of lack of mental capacity and undue influence. Hannah answered in this case by denying undue influence and lack of mental capacity in Thomas and alleging that she was the owner in fee simple of the land bequeathed in the will and that the plaintiffs had no right or title to it. The prayer of the answer was that Cameron P. McClean and Luella McClean be decreed to have no title or interest in the real estate. The result of this action was that the plaintiffs moved to dismiss it. The court denied this motion and found that the defendant had asked for affirmative relief and was entitled to have her title to the land quieted against Cameron P. McClean and Luella McClean.
We will now set out an incident in connection with the dismissal of that action.
In the petition in the present will case the plaintiffs alleged that before the first will contest action was dismissed it was orally agreed between Luella, Cameron and Hannah that if that action was dismissed without trial Hannah would at her death leave all property owned by her at that time to the children of herself and Thomas in equal shares.
The petition alleged that the dismissal was requested in the district court of Republic county and the things were done as have already been set out in this opinion.
Plaintiffs sought to prove this allegation by the testimony of Luella and Cameron and an uncle by the name of Little.
At the start of the trial the petition alleged facts constituting the above contract; that Hannah did not have sufficient mental capacity to make a will and that under the terms of the will of Thomas, made in 1906, Hannah became trustee of all the property, both real and personal, of which Thomas died seized, for the benefit of all the children, and that upon the death of Thomas, Hannah took possession of all his property and continued to manage and control it until her death.
The petition further alleged that each of the six children of Thomas and Hannah were the owners of a one-sixth interest in all the property left by Thomas after the death of their mother.
At the trial of the case a witness, Cory, testified that he was present at a conversation between Hannah and Thomas just before Thomas made his will, and that there was an agreement between them that Thomas would leave her all his property, and at her death she would leave it to all the children in equal shares.
The petition did not contain any allegations of such a contract, but at the conclusion of the taking of evidence the trial court, over the objection of defendants, permitted the plaintiffs to make such an amendment to conform to proof stating such a contract to have been made.
Action 32;433 was brought by Cameron J. McClean and Edmond McClean, two sons of Thomas and Hannah. Luella E. McClean and Charles McClean, daughter and son of Hannah and Thomas, were named as defendants, but they answered admitting the allegations of the petition and praying for the same relief. Crystle E. McDowell, another daughter, Heber McDowell, her husband, and Eugene J. McClean, a son of Hannah and Thomas, were also named as defendants. They answered to the merits of the petition. The answer first contained allegations about the wifi contest case brought by Cameron and Luella in Republic county and alleged that the result of this action was res adjudicata of the -issues 'of this case as to Cameron and Luella. The answer then denied each and all the allegations of the petition. Luella and Charles replied denying all the allegations of the answer.
With the issues thus framed the trial court found all the issues for the defendants, Crystle and Eugene McClean, and gave judgment accordingly.
The first argument made by plaintiffs is that the contract alleged between Thomas and Hannah was proven and enforceable and that under its terms Hannah was bound on her death to leave all the property to all the children in equal shares. At the conclusion of the evidence the trial court took the case under advisement and gave the parties time to file briefs. Thereafter the trial court handed down a written opinion which discussed the question of the contract alleged to have been made at the time the first suit to contest the will was filed, the question of setting aside the will of Hannah McClean and the question of so construing the will of Thomas McClean that it should be held to create a trust in favor of the children. The matter of the contract set out in the amendment to conform to proof was not discussed specifically in the opinion, but it contained a statement that all issues were found in favor of the defendants. The journal entry of judgment was to the same effect.
Plaintiffs point out that the leave to amend was given at the close of the evidence, and argue that this amounts to a finding that the facts were as alleged in the amendment. They rely on what this court said in Mo. Pac. Rly. Co. v. McCally, 41 Kan. 639, 21 Pac. 574, and Watson v. Watson, 110 Kan. 326, 203 Pac. 714. These cases do not go as far as plaintiffs contend.
In the McCally case judgment had been rendered and afterwards plaintiff was permitted to amend his petition so as to make it conform to the facts proven in the trial. This court held that it was equivalent to a finding that the facts were as recited in the amended pleading.
In the Watson case all the testimony had been introduced and the trial court had made findings of fact and had further found generally for defendants. The amendment that was allowed was on a matter that was not seriously disputed in the trial.
In the case under consideration it is true that the amendment was allowed at the conclusion of the evidence. However, the court took the case under advisement and asked for briefs. We will assume that the case was taken under advisement on the facts, as well as the law. At any rate, when the case was again called up the court-rendered its decision on' both the facts and the law. While the record does not disclose that defendants were permitted to amend their answer to deny the late amendment to the petition, it was treated as though it had been denied. There was evidence disputing the evidence offered to prove the contract. The court made a finding that all issues were found in favor of defendants. We hold that this finding was upon disputed evidence and cannot be disturbed by this court on appeal.
Plaintiffs next argue that the contract alleged to have been made at the time the first action to contest the will was pending was proven and bound Hannah to bequeath the property to all the children in equal shares. This contract was testified to by Cameron and Luella and an uncle named Little. In considering this claim in the petition the court said:
“While the court is convinced that the witnesses did not misstate facts, yet the law requires that the evidence of an oral agreement to convey property must be clear and convincing, and in this case there is too much left to inference, and the court cannot say that the alleged agreement is established by clear and convincing testimony.”
Plaintiffs point out this language in the opinion and argue- that it amounts to a positive finding that the contract in question was made. We cannot agree with the contention. It is well settled that contracts of this nature must be proved by clear and convincing evidence. See Woltz v. First Trust Co., 135 Kan. 253, 9 P. 2d 665, and authorities there cited. What the language means is that the proof offered did- not rise to the high degree necessary to warrant a judgment such as prayed for here. A detailing of the evidence is not considered necessary. Suffice it to state that the conclusion is justified by the evidence.
Plaintiffs next contend that by the language of the will of Thomas, Hannah was the trustee of all the property left by Thomas; that she held it in trust for the benefit of all the children and at her death they were each the owner of a one-sixth interest in it. The trial court held against this contention. A determination of the question only requires an examination of the will already set out in this opinion.
It will be noted the second clause of the will bequeathed to Hannah all the personal property of which Thomas died possessed after his debts were paid. There is no restriction whatever on this clause.
It will be noted that the third clause gave to Hannah all of testator’s real estate. This clause states that Hannah was the mother of testator’s children; that testator had confidence in her that she would love and properly care for and protect his said children. It should be noted here that at the time this will was made four of the children were minors and were living at home with their mother.
The fourth clause is as follows:
“4th. The reason I have herein willed, bequeathed and devised unto my once wife, who is the mother of all my now seven children, is because I have full confidence in her, and that she will care for my said children during hei life better than they can care for themselves, and because I believe that finally at the death of said Hannah McClean my said children will receive all of said property.” .
Plaintiffs argue that this language in the will, when taken together with the language in the third paragraph, made Hannah a trustee of the property for the benefit of the children.
The general rule is stated in 69 C. J. 443 as follows:
“An estate in fee simple created by a will cannot be cut down by a subsequent clause of limitation less clear and decisive than the language of the clause devising the fee, nor by language not requiring a construction reducing the fee, as, where property is given in clear language sufficient to convey an absolute fee, the interest thus given shall not be taken away or diminished by any subsequent ambiguous, vague, or general expressions in the will, and in cases of doubt a fee simple is favored.”
And on page 445 of 69 C. J. as follows:
“A fee will not be qualified by words merely precatory, as where the testator expresses a general desire respecting disposition of the property after the death of his devisee.”
This question has been considered by the court.
In Thornberry v. Fletcher, 91 Kan. 744, 139 Pac. 391, the will construed had the following clause:
“I give and devise all my property, both real and personal, to my beloved wife, Susanna, imposing upon her the obligation to use such property as may to her seem best for her comfort and advantage and after my decease to provide by will or otherwise for the transmission of the rest, residue and remainder of my estate at her decease in equal shares to my daughter by my former wife Ann Streeter and my son Daniel Fletcher, and their issue for ever.”
On the same dáy another instrument was signed purporting to construe the will as “the bequest and devise in fee of the entire estate.” This court said:
“The supreme test in the construction of a will, however, is to determine the actual intent of the testator. His purpose, if ascertainable, is conclusive. Reading the will and the contract together, as the testator presumably did, we are unable to say that the testator intended to devise any residue or remainder to his son or daughter, but rather that he devised his entire estate to appellant and relied upon her to transmit to his children equally, at her death or before that event, whatever might remain.” (p. 747.)
In Holt v. Wilson, 82 Kan. 268, 108 Pac. 87, this court said:
“Where one part of a will clearly indicates a disposition in the testator to create an estate in fee it will not be restricted or cut down to any less estate by subsequent vague or doubtful expressions.” (Syl. IT 1.)
Here there is no direction as to what shall be done with the property beyond the bequest of all of it to Hannah. This court would be compelled to look beyond the will to the conversations of parties as to contracts pleaded by plaintiffs to get any intention on the part of the testator that the property should be held for the benefit of all the children. There is no certainty about any provision in the will that Hannah took less than a clear devise of a fee.
We hold that the language of the will of Thomas bequeathed an absolute fee-simple estate in all the property of which he died possessed to Hannah.
The attempt to set aside the will of Hannah on account of lack of testamentary capacity is not pressed here. As has been noted, the action in Republic county, with which this action was consolidated, was brought by the assignee of a mortgage given by Hannah on certain lands involved in the action to construe the will.
The legal matters raised in that case are settled by what has been said in this opinion.
The judgment of the trial court in both actions is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover damages for injuries sustained when plaintiff was injured by the overturning of an automobile in which she was a passenger. Judgment was for plaintiff. Defendant appeals.
Since plaintiff was a passenger in the car and is suing the driver, the case comes under the provisions of R. S. 1933 Supp. 8-122b, commonly known as the automobile guest statute. In order for her to recover she must establish that the driver of the car was guilty of gross and wanton negligence.
The petition alleged that on the day in question defendant was driving a 1931 Buick sedan; that plaintiff was the daughter-in-law of defendant and had been invited by defendant to ride in the car, together with her husband and her husband’s brother and the wife of defendant, from Scott City to Hutchinson; that on the left rear wheel of his car defendant had a worn-out balloon tire, and that this tire was in such condition as to be highly dangerous to the safety of the driver and passengers in the car when it was operated at an excessive speed.
The petition further alleged that defendant was an experienced driver of automobiles; knew the defective condition of the tire in question, and on the morning of the accident had been expressly warned about the defective condition of the tire; that plaintiff was not an experienced driver and did not know about the condition of the tire.
■ The petition alleged that along the side of the road on which defendant was driving there was a ridge of gravel about twelve or eighteen inches high, and that it was necessary to the safety of occupants of the automobile that the driver exercise great care not to permit the car to run into this ridge of gravel, especially when the car was being operated at high speed. It was alleged that defendant gradually increased the speed of the car until it was going at a speed of between sixty-five and seventy miles per hour; that while it was being operated at that speed the left rear tire gave way, causing the car to swerve sharply, get out of defendant’s control and finally turn over, throwing plaintiff out and injuring her.
The petition then'alleged that defendant was guilty of gross and wanton negligence in that he knew about the unsafe condition of the tire; knew that by driving at a high rate of speed the likelihood that the tire would collapse would be greatly increased; knew that it would be dangerous to the occupants of the car to drive it against the ridge of gravel or to permit the car to get out of his control and swerve into this ridge of gravel; and that defendant well knew that if the tire in question should break down while the car was being operated at a high rate of speed the car would almost certainly get beyond his control and would almost certainly turn over and injure the occupants, and that knowing all these things defendant operated his car at a high rate of speed in gross and wanton disregard of the safety of plaintiff.
The answer was a general denial, and alleged that plaintiff’s injuries were the result of her own negligence; that she assumed the risk incident to any defects in the car or tire, and that plaintiff was the daughter-in-law of defendant and a member of his household. At the close of plaintiff’s case defendant demurred to her evidence.
The case was tried before a jury. The result was a verdict for plaintiff. Special questions were answered by the jury. Defendant moved for judgment on the special questions notwithstanding the general verdict; to set aside certain answers; and for a new trial. These motions were all denied and judgment was entered for plaintiff. From this judgment defendant appeals.
R. S. 1933 Supp. 8-122b provides, in part, as follows:
“That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payments for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle.”
Under the provisions of that statute it was necessary that plaintiff show such conduct on the part of defendant as proved that he was willing to injure the passengers in the car, or that he was so indifferent to the consequences with a realization that the catastrophe was imminent as to amount to a willingness to injure. (See Stout v. Gallemore, 138 Kan. 385, 26 P. 2d 573.)
This subject was treated in Sayre v. Malcom, 139 Kan. 378, 31 P. 2d 8. There this court said:
“In Stout v. Gallemore, 138 Kan. 385, 26 P. 2d 573, it was held the statute above quoted relieves the operator of an automobile from liability to his guest resulting from negligence, as that term is distinguished from wantonness. Cases are there cited distinguishing wantonness, as. the term was used, from negligence, and pointing out that conduct properly characterized under these terms differs not in degree, but in kind, the one denoting lack of due care under the circumstances, the. other denoting conscious or intentional misconduct from which injury to someone is likely to result and with a reckless disregard of such consequence.” (p. 379.)
The rule above laid down has been followed several times by this court. (See Ewing v. Edwards, 140 Kan. 325, 36 P. 2d 1021; also, Aduddell v. Brighton, 141 Kan. 617, 42 P. 2d 555.)
With this rule in view we will examine the record in this case. The defendant in his brief places the speed at sixty-five miles per hour. The wife in her testimony places it at seventy miles. For the purpose of this review we will take this to be about correct. The road was smooth except for a ridge of sand at the side. In the morning before the party left Scott City some of the men at the filling station noticed the tire on the left rear .wheel needed some air. They had it filled. One of the boys in the car thought it should be changed, but defendant said they did not have time to wait. The tire had been used on the car for about seventeen thou sand miles, was weather checked, and showed a lot of wear. At that time there was an almost new tire being carried as a spare. The testimony of one of the boys in the car as to what actually happened at the scene of the wreck is as good as any. He testified as follows:
“As we drove down highway 96, father was driving the car and we were going a pretty good speed. I don’t know at what speed we were driving, but all of a sudden the tire on my side went out and the car swerved to the left, which was the side I was sitting on, and my brother and his wife jammed over against me. Then the car swerved back the other way, and then it swerved the other way again and it kept this up. I don’t know how many times, but several times, and then it just took one violent swerve sideways of the road and turned over.”
After the accident it was noticed there was a nail in the new tire on the right rear wheel. Defendant tried to stop the car immediately after it started to swerve. The hired man checked the car over the day before the accident and put thirty-five pounds of air in each tire.
Defendant argues many questions. The first one we will discuss is the contention that as a matter of law the conduct of defendant did not constitute gross and wanton negligence, as defined by this court by the decisions already set out in this opinion. If this court should agree with defendant in this regard then the demurrer of defendant to the evidence of plaintiff should have been sustained.
The' question may be briefly stated. Does driving at a speed of sixty-five miles an hour on a smooth road with a tire on a rear wheel which is somewhat worn constitute gross and wanton negligence?
There was nothing unusual about the scene of this wreck calculated to put a driver on his guard. In answering this question we must consider what we know about the manner in which drivers of automobiles conduct themselves. Our task is to ascertain what was in the mind of the driver. Wanton negligence requires as an element a mental attitude on the part of defendant of a will to injure, or such indifference to consequences, with realization that catastrophe is imminent, as to amount to willingness to injure. This distinguishes such conduct from negligence, which is merely failure to exercise due care.
The speed alone is not sufficient to place the conduct of defendant in such a classification. There are so many drivers on the highways to whom such a speed is not an unusual occurrence that to place all of them in such a classification would force too many drivers off the road. When as many miles are driven at the rate of sixty-five miles per hour as is the case at the present time this court cannot say the legislature intended such speed alone should bring a driver within the meaning of the statute.
This court does not desire that this opinion should be construed as approving a speed such as that testified to here. It deems such a speed to be unwise and unnecessary. While a car is being driven at such a rate a collision, turn-over or sideswipe produces either a shattering stop or crashing change of direction; the occupants of the car continue in the old direction at the old speed; every surface and angle of the car’s interior immediately becomes a battering, tearing projectile aimed squarely at the occupants of the car. This is as inescapable as doomsday and there is no bracing oneself against these imperative laws. (See Readers Digest for August, 1935, p. 23.)
Our problem, however, is to ascertain whether the defendant was guilty of gross and wanton negligence. We must measure his conduct by the standards of conduct commonly applied to mankind. When thus measured the conduct of defendant does not stand out— in this speed-maddened world bent on getting somewhere else as quickly as possible — but rather appears to be the usual course of conduct of his fellowmen, examples of which may be found on the highways on any hour’s drive.
The car was loaded with close relatives of defendant and the record shows that the feeling toward all the members of the party was pleasant and agreeable.
In Gamble v. Oil Co., 100 Kan. 74, 163 Pac. 627, this court gave some weight to such circumstances in connection with the question of whether a truck driver was guilty of wanton negligence. Tins court said:
“Again the relations between the driver and the plaintiff appear to have been good, as the plaintiff testified that the driver had always been kind to him, and we find nothing in the testimony indicating that the driver had other than the kindest of feelings toward the plaintiff and the boys of his acquaintance. We are of opinion that the evidence does not establish willful or wanton negligence on the part of the driver toward the plaintiff.” (p. 82.)
We hold that such a circumstance should be considered along with the other circumstances of the occurrence. Certainly the evidence of such reckless disregard of consequences would have to be strong indeed to show such an attitude of defendant here toward his wife, his two sons and his daughter-in-law.
Something similar to what has been said must have been in the mind of the legislature. Prior to the session for 1925 the statutes of the state had fixed a definite speed limit of forty miles an hour. (See R. S. 8-122.) That section provided, in part, as follows:
“No person shall operate a motor vehicle on any highway outside of a city or village at a rate of speed greater than forty (40) miles per hour or greater than is reasonable and proper, having regard for the traffic and use of the road and the conditions of the road, nor at a rate of speed such as to endanger the life or limb of any person.”
In 1925 the legislature amended this law, doing away with the definite speed limit. (See R. S. 1933 Supp. 8-122.) This action of the legislature shows an intention to do away with the question of speed alone in the attempt to solve the problem of negligent driving.
Was the condition of this tire on the left rear wheel such as to constitute gross and wanton negligence in driving the car at sixty-five miles an hour while using such a tire? To answer this question in the affirmative this court would be compelled to say that defendant knew or should have known that there was imminent danger that the tire would go down; and that there was imminent danger of which defendant was aware, or should have been aware, that when the tire did go down the car would swerve and get beyond the control of the driver. We cannot say such a thing.
As the tire is described in the record it cannot be said that it was at all certain it would go down. Here again we must look to the knowledge common to all mankind. It would be a harsh rule indeed that would place the stigma of wantonness on the driver of a car just because he did not foresee that a tire would go down. Indeed, in this case the record seems plain that a nail which could have caused the puncture was in the good tire, not the one that had needed air that morning. The bad tire was off the wheel immediately after the accident, but since the occupants of the car noticed only one tire down immediately before the accident it is a fair presumption that it was the good tire rather than the poor one that caused the wreck, and that the old tire was torn off the wheel when the car swerved, even though some witnesses testified that it was the left rear tire that they felt go down. This is important because it illustrates the unfairness of a rule that would declare that wantonness depended on the condition of the tires on a car. The demurrer of the defendant to the evidence of plaintiff should have been sustained.
There are many other errors urged by defendant, but in view of the conclusion that has been reached it will not be necessary to discuss them.
The judgment of the trial court is reversed with directions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action on a life insurance policy. The dispute was between the administrator of the estate of a husband and the administrator of the estate of his wife. Judgment was for the administrator of the husband’s estate. The plaintiff appeals.
The policy was taken out on the life of Daniel C. Hammatt. The policy provided that upon the death of the insured the amount of the policy would be payable to his wife if she survived him, and if she did not survive him, then in trust for the benefit of the child, children or the estate of the insured or any one or more of them, in such manner as the trustee should determine. Mr. and Mrs. Hammatt died under circumstances that raise a question as to which one survived. After the death of Mr. Hammatt the Aetna Life Insurance Company, as trustee, took the position that Mrs. Hammatt did not survive her husband. It selected the administrator of the estate of Mr. Hammatt as the proper person to whom the insurance should be paid.
The administrator of the estate of Mrs. Hammatt brought this action on the policy. He claims that Mrs. Hammatt survived her husband. The insurance company denied liability under the policy to the estate of Mrs. Hammatt. The administrator of the estate of Mr. Hammatt answered, claiming that he was entitled to recover the amount of the policy from the company. Upon the conclusion of the evidence a demurrer was interposed by the insurance company. This demurrer was sustained. Judgment was rendered in favor of the administrator of the estate of Mr. Hammatt and against the insurance company.
The insurance company contends that there was no evidence from which the jury could conclude that Mrs. Hammatt survived her husband. The company also contends that if Mrs, Hammatt did survive, the evidence proved she must have killed Hammatt and on this account could not receive the benefits of a policy on Hammatt’s life.
The administrator for the estate of Mrs. Hammatt contends that there was ample evidence to establish a prima fade case that Mrs. Hammatt survived Hammatt, and that even if the evidence should show that she feloniously killed him it would not bar her from recovery on the policy, because the law does not bar a beneficiary from recovery on a policy for the reason that she feloniously killed the insured, in the absence of a conviction of homicide, and further, that this defense was not pleaded and cannot be first raised on a demurrer to the evidence.
We will consider the question of the sufficiency of the evidence. The evidence as to the death of Mr. and Mrs. Hammatt was all circumstantial. Their bodies were found on a bed in their home on the morning of January 12, 1933. Both had been dead for some time. Both had been shot in the left side of the head with the same gun. This gun lay on the bed where it could have fallen from the hand of either, but the hand of neither was touching it. Mrs. Hammatt was left-handed. Hammatt was right-handed. They were last seen by their maid just before they retired, about ten minutes past seven the evening before. There was a small amount of blood which had flowed from the head of Hammatt. There had been profuse bleeding from the head of Mrs. Hammatt. A further circumstance in connection with the wound in Mrs. Hammatt’s head was that there was about her mouth a considerable amount of froth and bubbles, some of which were referred to as blebs. An expert noted the blood, froth and blebs around the mouth of Mrs. Hammatt and testified that froth is formed by breathing through blood and that blebs are formed by breathing through blood that has commenced to coagulate. He testified that blood will, under normal conditions, commence to coagulate in not less than three minutes. A ballistic expert testified that he examined the bullets that were taken out of the bodies and that the bullet that was in the envelope marked with Hammatt’s name was fired first. It should be stated here that there is some question about whether the person who prepared the envelopes was sure he put the right bullet in each envelope, but since on a demurrer the evidence must be given the interpretation most favorable to the party offering it this matter will be treated as though there was no question about that. The gun with which the killing was done was identified as having been owned by Hammatt for at least two years. Both shots were fired from the same gun.
On the night of the tragedy Hammatt came home from the office about 5:15. During dinner he appeared quite distracted and ate very little. Mrs. Hammatt appeared to be unusually happy. They retired to their room about 7:10 and called down for more heat about a quarter of eight. Nothing more was heard from them that night. One of the maids left the house about 8:20 and did not return until morning. The other maid was out from 7:30 to 10:50 in the evening. It will be seen that from 8:20 to 10:50 there was no one known to have been in the house except Mr. and Mrs. Hammatt. About ten o’clock in the evening, two neighbors living across the street testified they heard two noises, each of which sounded to them like a knock on the door. When they went to the door and looked no one was there. These noises were between one and two minutes apart.
Mr. and Mrs. Hammatt were married in December, 1929. Their married life had apparently been very happy. Hammatt was 52 years old and Mrs. Hammatt was 49 at the time of their death. Hammatt had worked for the Aetna Life Insurance Company for about twenty years. At the time of his death he was state cashier for that company. Mrs. Hammatt had been a stenographer before her marriage. She was a moody and temperamental person. She was somewhat addicted to the use of sedative drugs for headaches and sleeplessness. On occasions prior to her marriage she had taken overdoses. She was very fond of her husband and he of her.
The question of which victim óf a common disaster lived the longest is one of fact for the jury. See Russell v. Hallett, 23 Kan. 276. The burden of proof is on the plaintiff to prove that Mrs. Hammatt died later than Hammatt. Since there were no known witnesses to the tragedy the only proof available is circumstantial. The trier of the facts must determine the question by inferences drawn from proven facts and circumstances.
In Railway Co. v. Wood, 66 Kan. 613, 72 Pac. 215, this court said:
“Circumstantial evidence in a civil case, in order to be sufficient to sustain the verdict of a Jury, need not rise to that degree of certainty which will exclude any and every other reasonable hypothesis. The jury are not infrequently called on to decide between two or more theories, and in doing so may exercise their own best judgment in accordance with their oath-bound consciences.” (p. 616.)
See, also, Lane v. Insurance Co., 113 Kan. 365, 214 Pac. 92, and cases there cited.
The above is still the rule amply sustained by the authorities.
This case comes here because the trial court sustained a demurrer to the evidence of the plaintiff. In dealing with a demurrer to the evidence in Travis v. Simpson, 106 Kan. 323, 187 Pac. 684, this court said:
“The demurrer, however, conceded every inference favorable to the plaintiff that might be drawn from the evidence. Even if some of the testimony tended to contradict plaintiff’s claim, it was error to sustain the demurrer.” (p. 326.)
This has been said many times. It is a well-established rule.
We will consider the evidence in this case, keeping these two rules in mind. In doing that we must say that if there was any theory upon which the jury might have concluded that Mrs. Hammatt survived, drawing from each proven fact and circumstance the inference most favorable to the contention that she did survive, then the demurrer should have been overruled and the case should have been submitted to the jury. To this end plaintiff points out the proven fact that the bullet found in the head of Hammatt) was fired first. This fact must be considered in connection with the position of his body. He was lying more on his side than on his back with one hand thrown across his chest, with the other at his side, and with the bed clothing pulled about half way up his body but not disarranged. These circumstances are some evidence that Hammatt died instantly and without any struggle between the time the shot which killed him was fired and his actual death. There was also evidence that the bullet which killed Mrs. Hammatt was fired into, a less vital part of the brain than was the one that killed Hammatt.
The proven fact to which the jury might give considerable weight was the froth and blebs that had flowed from the mouth of Mrs. Hammatt. There can be no doubt that the froth and blebs were there. As to what caused them we have the testimony of the expert that the froth was caused by breathing through blood; that is, after deceased had started to bleed she kept on breathing for a short time, and that the blebs were caused by breathing through blood after it had started to coagulate, that is, about three or four minutes after the bleeding started. For the purposes of this demurrer we must consider this to be true. Here we have circumstances from which the jury might conclude that more than three or four minutes elapsed between the firing of the shot into the brain of Mrs. Hammatt and her death. Add to this the evidence of the neighbors about the noises, like shots about a minute or two apart, which we must consider at this time to be true. When we draw from all these facts and circumstances the inferences that are most favorable to the claim of the plaintiff we have no difficulty in concluding that the jury might have found that Mrs. Hammatt lived four or five minutes longer than Hammatt. If she survived him by a second or two it was sufficient to meet the demands of the plaintiff’s case. (See St. John v. Andrews Institute for Girls, 102 N. Y. Supp. 808; also, Robson v. Lyford, 228 Mass. 318, 117 N. E. 621.)
It must be remembered that the plaintiff did not have the burden of proving that the tragedy happened in any particular way, by a murder and suicide or a double suicide or two murders. His only burden was to prove that Mrs. Hammatt was the last one to die.
In this case plaintiff pleaded that Mrs. Hammatt survived. Defendant pleaded that Hammatt survived. The court sustained a demurrer of defendant to the evidence of plaintiff. The journal entry of judgment gave judgment to the administrator of the estate of Hammatt, who was a defendant, for the full amount of the policy. The effect of this was the same as though the court had made a positive finding that Hammatt survived. The entire matter was one that should have been submitted to the jury under the authorities we have cited heretofore.
Appellee argues that in case the evidence should be held sufficient to submit the question of survivorship to the jury, still it proves that Mrs. Hammatt shot Hammatt. From this he argues that if Mrs. Hammatt shot Hammatt, then she cannot recover on the insurance policy. He places this argument on the common-law rule that where the beneficiary of an insurance policy feloniously kills the insured it is against public policy to permit him to recover on the policy. Authorities are quoted and relied on which tend to sustain this position. The answer to it is twofold. This court is unable to say that the evidence in the record compels the conclusion that Mrs. Hammatt killed Hammatt. That is merely one of the conclusions to which a jury might come after weighing the evidence. It is our duty to draw all the inferences and conclusions from the record that go to sustain the position of plaintiff. When this is done, it is still apparent that the jury might have concluded that the tragedy was the result of each one of the participants committing suicide.
The other answer lies in the law. Situations such as this have been covered in a measure by the passage of R. S. 22-133. That section is as follows:
“Any person who shall hereafter be convicted of killing or of conspiring with another to kill or of procuring to be killed, any other person from whom such person so killing or conspiring to kill or procuring said killing would inherit'the property, real, personal, or mixed, or any part thereof, belonging to such deceased person at the time of death, or who would take said property by deed, will or otherwise, at the death of the deceased, shall be denied all right, interest and estate in or to said property or any part thereof, and the same shall descend and be distributed to such other person or persohs as may be entitled thereto by the laws of descent and distribution, as if the person so convicted were dead.”
That law was enacted in the session of 1907.
In January, 1907, the case of McAllister v. Fair, 72 Kan. 533, 84 Pac. 112, was decided. In that case a husband had killed his wife for the purpose of obtaining her property. This court held since the statute of descents and distributions provided in plain and unambiguous language that the property-' of a deceased wife descended to her husband in a case where she left no issue, that the property of the murdered wife went to the husband who had murdered her.
Notice should be taken here of another statute of this state. R. S. 1933 Supp. 40-414 is as follows:
“In case any life insurance company or fraternal benefit society shall have issued or shall hereafter issue any policy or policies of insurance or beneficiary certificates upon the life of an individual and payable at the death of the assured, or in any given number of years, to any person or persons having an insurable interest in the life of the assured, all such policies and their reserves or the present value thereof shall inure to the sole and separate use and benefit of the beneficiaries named therein, and shall be free from the claims of the assured, and shall also be free from the claims of the person or persons effecting such insurance, their creditors and representatives . . .”
The above or a similar provision of the statute has been in force in our state for many years. It is the public policy of our state thus stated in language as plain and Unambiguous as the law of descents and distributions that the proceeds of an insurance policy shall go to the beneficiary named in the policy.
Without any doubt R. S. 22-133 was enacted to cure a situation such as that treated in McAllister v. Fair, supra. It will be noted that it provides that no one who shall be convicted of killing another person from whom they would inherit any property or would take property by deed, will or otherwise, shall take such property. The words “or otherwise” would apply to a case where the person who did the killing was the beneficiary in an insurance policy.
R. S. 22-133 only bars the person who did the killing when he has been convicted of the crime. Appellee makes the point that it is against public policy to permit a person to profit by the killing of another. It is the public policy of this state, as announced by the legislature, that such a person shall not take property from the murdered person in any manner whatsoever, but that he must be convicted of the crime before he is barred. This is the obvious intention of the legislature in enacting the various statutes to which reference has been made.
In Hogg v. Whitham, 120 Kan. 341, 242 Pac. 1021, this court considered a case where the husband had murdered his wife and two days later had committed suicide. A coroner’s jury had found that he had murdered his wife. This court held that the husband was not disqualified from inheritance until he was actually convicted of the crime, although the murder was admitted. This court said:
“Giving the motion for judgment the full force of an admission by defendants that Whitham killed his wife, it does not satisfy the statute. For purpose of certainty, the statute makes it necessary that the disqualifying criminal act be established by conviction, and the only kind of admission which fits into the statutory scheme is admission in open court, in the form of a plea of guilty to an information on which judgment of conviction may be based.” (p. 343.)
As was said in McAllister v. Fair, supra, it is not the province of the courts to settle the policy of the state with regard to the right of beneficiaries in life insurance policies to the proceeds of the policies. The legislature has covered this field. This court will not make a different rule than the one provided by statute.
Since it will be necessary to try the case again a question as to the admissibility of evidence must be treated. At the trial of the case the plaintiff offered pictures of the bodies of Mr. and Mrs. Hammatt as they lay in bed on the morning of the tragedy. Three of these pictures were excluded. This is not the type of case where such pictures might unnecessarily inflame a jury. The position of the bodies, condition of the bed clothing and the surrounding circumstances are important features of the case. It is difficult to ascertain just what the position of the bodies was when the spoken word only is relied on. In this case it was deemed necessary for this court to send for the record so as to have these pictures available. The record does not disclose any change in the conditions and surroundings sufficient to render these pictures incompetent. They should have been admitted.
The judgment of the trial court is reversed with directions to grant plaintiff a new trial in accordance with the views herein expressed.
Harvey, J., not participating. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action for a writ of mandamus. The plaintiff seeks a writ commanding the administrator of the estate of Ellen Doyle to take charge of the real estate left by her. The facts are all contained in the pleadings.
On March 12, 1935, Ellen Doyle died intestate in Marion county, Kansas. At the time of her death she was seized of a large amount of property, both real and personal. The circumstances are such there is a question whether she left any known heirs.
At the time this action was begun a number of people had filed claims in the probate court asking that they be decreed to be heirs. Soon after the death of Miss Doyle the defendant, Josiah Good, was appointed administrator of the estate. He qualified and took control of the personal property.
On March 25, 1935, the state, by an appropriate action in the district court, procured the appointment of a conservator of the real estate owned by Miss Doyle when she died. This conservator qualified and took charge of the real estate. This action was taken under the authority of McVeigh v. First Trust Co., 140 Kan. 79, 88, 34 P. 2d 571. In that case the court held that where it was not necessary to sell real estate of which a deceased died seized to pay debts, the administrator has nothing to do with it and it passed direct to the heirs. That was a case where there was a question whether the deceased died without heirs. The court said the district court should appoint a conservator to take charge of and preserve the real estate.
The court construed the provisions of R. S. 22-933 to 22-935 and R. S. 22-1201 to 22-1206. Sections R. S. 22-933 to 22-935 provide that when a person dies without heirs and intestate the superintendent of schools of the county shall file a petition in probate court calling the matter to the attention of that court. The probate court shall order the administrator to sell the real estate. This action may be begun three years from the date of the appointment of an administrator for the estate. The administrator shall pay the proceeds of the sale to the county treasurer for the benefit of the common schools of the state. They provide further that if at any time within twenty-one years after the date of the payment of the money to the county treasurer an heir should appear and prove heir-ship satisfactorily to the probate court, the state treasurer shall pay the money to the claimant.
Sections R. S. 22-1201 to 22-1206 provide that when the state superintendent or the county superintendent of public instruction shall learn of the existence of an estate of a person who has died without heirs he shall notify the county attorney, and the attorney general.
The probate judges are charged with the duty of giving a like notice to the same officials. It is made the duty of the county attorney to scrutinize such estates and to prevent the spoliation of them by fraudulent claims and to conserve all such estates for the benefit of the common schools of the state. Provision is made for an allowance out of the estate to defray the reasonable expenses of the county attorney in making inquiries and in the examination of witnesses touching the rights of claimants to the estate. It is declared unlawful for the county attorney or attorney general to be the attorney for any pretended heir or devisee not residing in the county where the estate is located, and it is made the duty of the attorney general to see that the act is obeyed, and when in the opinion of the governor the interests of the public require it the attorney general may supersede the county attorney.
The sections which have just been described were all in effect on March 12, 1935, when Miss Doyle died. It is also the settled law of this state that the real estate of a person dying intestate passes direct to his heirs; that in such a case one claiming to be an heir might bring an action in the district court to establish his title and that a probate court has no jurisdiction to try the title to real estate. See McVeigh v. First Trust Co., supra. The actions that have been heretofore described were taken pursuant to these provisions.
On May 15, 1935, chapter 168 of the Laws of 1935 was published and became effective. It repealed all the sections that have been described that had to do with the disposition of the estate of a person who died intestate and without heirs. It set up a new manner in which such estates should be handled.
The first section of this chapter provides for the appointment of an administrator and for notice to the county attorney and attorney general. The section ends with the following provision:
“The probate court shall have exclusive original jurisdiction of all questions, legal or equitable, arising in the administration and distribution of such an estate.”
The second section provides for the bond of the administrator, for the publication of a notice, and that the administrator shall take into his possession all the property left by deceased, both real and personal. The section further provides that the personal property be converted into cash as expeditiously as possible and directs that the administrator collect the rents and other income from the real property. The section contains the following provision:
“If no one appears to claim as an heir, devisee or legatee of .the decedent within one year after the appointment of the administrator the court shall direct the real property of the decedent to be sold for cash.”
The next section provides that the net proceeds of the estate shall be paid to the state treasurer and become a part of the state school fund. It provides that this money shall be kept as a temporary fund until ten years after it shall have been received, at which time it shall be covered into the perpetual school fund of the state, provided that no one in the meantime has established his right to it as an heir, devisee or legatee of the decedent.
The fourth section provides that one claiming the estate as heir of decedent shall present his claim to the probate court within ten years after the administrator was appointed, or be barred. The section then provides that a party aggrieved by the ruling of the court may appeal to the district court as other appeals are taken from the probate court and that the appeal shall be tried de novo in the district court. Provision is then made for appeal to the supreme court.
The fifth section provides that if the estate has been delivered to one or more who claimed as an heir of decedent and whose claim was established, and later, but within ten years after the appointment of the administrator, someone else establishes a claim, neither the state nor the school fund commission shall be liable to such claimants, but the party in whose favor the later claim was established shall have a cause of action against the party to whom such payment was made.
And the sixth section provides that the state shall be a party and entitled to be heard in all actions having to do with the distribution ■of'the estate. It provides that the county attorney shall represent the state and shall be the legal representative of the administrator; that he shall protect the estate for the school fund and diligently defend against all claims not clearly meritorious. It further provides that expenses incurred by the county attorney in representing the state in such actions shall be paid by the county as are other expenses incident to the conduct of the office of county attorney. The section then provides that the attorney general may supersede the county attorney and that expenses incurred by him shall be paid from the funds provided for the expenses of the attorney general’s office and that in no event shall attorney fees be allowed or paid from the estate to any one representing the state or the administrator.
As soon as this chapter became effective the question arose as to whether it applied to the estate of Ellen Doyle, since her estate was already being administered when this chapter became effective.
The state Sled a motion in the action that was begun in district court in which the conservator was appointed, stating that chapter 168 of the Laws of 1935 was effective and applied to the Doyle estate and asking that the conservator be discharged and ordered to turn over the real estate to the administrator. This motion was sustained by the district court. The administrator, however, refused to take possession of the real estate. He alleged in his answer filed in this action that he thus refused to take charge of this real estate because he believed that chapter 168 of the Laws of 1935 had no application to him as administrator of the Doyle estate and that it was his duty to proceed with the administration of the estate under the provisions of law that existed prior to the enactment of this chapter.
' It will be seen that the issues are thus framed so as to secure a declaratory judgment as to which statute applies to this estate. If this estate should be administered under the law as it existed prior to the enactment of chapter 168 of the Laws of 1935, then the writ should be denied. If chapter 168 controls the administration, the writ should be allowed.
The argument of defendants is that to hold that chapter 168 applies would give a retroactive effect to it. Plaintiff admits this but argues that this chapter only affects procedure and should be construed as retroactive and given the effect of controlling the administration of the Doyle estate.
The general rule is that statutes will be held to operate prospectively and not retroactively unless the intention of the legislature to make the statute operate retroactively clearly appears.
In Douglas County v. Woodward, 73 Kan. 238, 84 Pac. 1028, the court construed an enactment which gave a judge authority to sign a case made within one year of the making of any final order notwithstanding that the term of office of the judge might have expired after the rendition of the judgment. Prior to the enactment of that statute the law had been that the authority of the judge to settle a case made ceased with the expiration of his term of office. A district judge acted on a case made where the order from which the appeal was taken had been made before the enactment of the above statute. This court held that the court had no authority to do this because the act operated prospectively and not retrospectively. The court held:
“Generally, a statute will be construed as applying to conditions that may arise in the future. An act will not be given a retrospective operation unless the intention of the legislature that it shall so operate is unequivocally expressed.” (Syl. IT 1.)
Some language of the court is'helpful here:
“In the absence of any constitutional inhibition the legislature has the power to enact retrospective statutes in certain cases, provided such laws do not interfere with vested rights. Whether vested rights are affected by such laws it is the province of the courts to determine. (Potter’s Dwarris, Stat. & Const. 166.) The rule is that they are not to be allowed a retroactive effect unless such intention upon the part of the legislature is so clearly expressed that no other construction can be fairly given.” (p. 240.)
It will be seen that in that case the court followed the rule that the question of whether the statute dealt with vested rights was not necessarily controlling. The legislature has no authority to enact a law which operates to affect vested rights, and an act will not be given a retrospective effect even though it does not affect vested rights unless the intention of the legislature to give it this effect unequivocally appears. To the same effect is the holding of this court in Almquist v. Johnson, 130 Kan. 417, 286 Pac. 200. There the legislature had enacted a statute which placed a limitation on the time within which a claim should be made to the receiver of a failed bank. The court held the statute did not apply to a claim where the bank had failed before the enactment of the statute. The syllabus reads:
“Chapter 88 of the Laws of 1927 considered, and held that its several provisions and amendments indicate that it was not the intention of the legislature that its new provisions should have a retroactive application, and particularly that the nonclaim provision in section 5 prescribing that ‘All claims of depositors and other creditors must be filed with the receiver within one year after the date of his appointment, and if not so filed such claims shall be barred from participation in the estate of such bank,’ should not apply to claims that had accrued against a bank in the hands of a receiver appointed prior to the time the new law became effective.”
See, also, International Mortgage Trust Co. v. Henry, 139 Kan. 154, 30 P. 2d 311.
The statute under consideration contains no provision that it should apply to estates in process of administration at the time of its enactment. There is no language in the act from which it might be said that the legislature unequivocally expressed such an intcn • tion. The law is that the statute will not be given a retrospective effect unless the intention so to do clearly appears. An examination of this act convinces us that rather than such an intention clearly appearing, the fact is that an intention not to give the act any such effect clearly appears.
In the first place the old statute allows three years for the filing of the action to sell the land after the letters of administration are granted. The new statute provides that the court shall direct the real property to be sold for cash after the lapse of one year. It happens that in the present case only a few days elapsed after the appointment of the administrator, but in case it should be held the new statute applies to an estate in process of administration, then what about estates where more than one year has elapsed? Would the provision of the new statute require that the real estate be sold immediately? A construction that the old statute applies would do away with this troublesome question.
In the second place the old statute gives one claiming the estate as an heir twenty-one years after the payment of the proceeds of the estate to the county treasurer to appear and prove his rights and claim his share of the estate. The new statute reduces this time to ten years. Suppose the money was paid about nine years and a half ago. If the new statute is held to apply, then some claimant might have been barred within six months after the passage of chapter 168. Passing by the question of whether this would not be such a provision as should be held to deprive one of a vested right, it certainly is an interpretation that should not be given the statute unless the intention to so provide clearly appears.
In the next place, under the old statute a claimant had a right to bring an action in ejectment in district court for the land any time before the administrator was ordered to sell it under the provisions of R. S. 22-934. Under the terms of the new statute the probate court is given exclusive jurisdiction of all questions, legal or equitable, arising in the administration of the estate. Here is a radical departure from the old order. What shall be done about estates where causes of action were pending in district court to determine heir-ship? The failure of the legislature to provide for this condition is persuasive to us that it was not the intention of the legislature to have the new statute apply to estates in the process of administration at the time of its enactment.
And, furthermore, the statute before the enactment of chapter 168 provided that personal property left by a deceased passed to the administrator, while the real property passed direct to the heirs. Chapter 168 provides that all possession and control of property, both real and personal, passes to the administrator for purposes of administration.
On the death of Miss Doyle, under the law as it existed prior to the enactment of chapter 168, title to the real property of which she died seized passed to her heirs, subject only to their obligation of proving their heirship.
In case this court should hold that the new statute applies to estates in process of administration, what should be said of the title to the real estate which has already vested in some one? The matter is not dealt with in the act, and it is fair to assume that if the legislature had intended such an effect some provision for it would have been made in the act. All these matters lead us to the conclusion that not only did the legislature fail to unequivocally express the intention that chapter 168 of the Laws of 1935 should have a retroactive effect, but the context of the act indicates clearly the opposite intention.
This conclusion is strengthened by a consideration of R. S. 77-201 (1). That paragraph reads as follows:
“The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed. The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.”
The right of any heir of Miss Doyle to bring an action in ejectment to gain possession and prove title to any real estate left by her accrued at the time of her death regardless of the remoteness of the relationship or the difficulty of proving heirship.
It follows that the estate of Ellen Doyle should be administered under the law as it existed prior to the enactment of chapter 168 of the Laws of 1935.
Since we have reached this conclusion the writ will be denied. It is so ordered. | [
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The opinion of the court was delivered by
Hutchison, J.:
The defendant in .this case appeals from a conviction under R. S. 21-565 for killing a dog belonging to another, which section is as follows:
“Every person who shall willfully and maliciously kill, maim or wound any domestic animal of another, shall upon conviction be adjudged guilty of a misdemeanor.”
The appellant urges four specifications of error: the first and second in not sustaining his motion to quash the information and his demurrer to the evidence of the state for the reason that neither the information alleged nor the evidence of the state showed that the dog in question had been listed as personal property; the third and fourth specifications of error are in the giving and refusing to give certain instructions.
The information, omitting the formal parts, was as follows:
“That on the 18th day of October, 1933, at the county of Jackson, and state of Kansas, one John Fisher then and there being did .then and there willfully, unlawfully and maliciously shoot and kill a domestic animal, to wit: A hound dog, aged about three years, being a blue black color, with red legs, which said dog was then and there the property of one C. F. Davis.”
It will be readily noted that it practically followed the language of the statute above quoted. It uses, as does the statute, the term “domestic animal.” Appellant cites early decisions and texts to the effect that a dog .under the common law has not always been regarded either as a domestic animal or personal'property, but appellant recognizes the change effected by statute and insists that the information is insufficient because it doés not plead compliance with such statutory provision to make the dog personal property and entitled to the protection afforded other livestock by alleging and showing the owner thereof had complied with the requirement of R. S. 79-1301 with reference to the assessment of the dog and the payment of taxes thereon. The criminal statute above quoted has been in force in this state for a long time and may not have necessarily included a dog as a domestic animal prior to the enactment of the statute last above cited with reference to the assessment of dogs and the payment of taxes thereon, making them personal property and entitled to protection as other livestock. This last statute was enacted in 1913.
The history of dog litigation in this state is fully set forth in the recent case of Smith v. Steinrauf, 140 Kan. 407, 36 P. 2d 995.
The information in the case at bar follows the statute literally and does not allege either the assessment or the payment of taxes on the dog. These are parts of the prerequisites which under the present statutes are necessary now to make a dog personal property and a domestic animal entitled to the same protection as other livestock. It was charged that it was a domestic animal, and to be such in this case it is conceded that it must have been assessed and the taxes must have been paid. Usually an information which follows the language of the statute is sufficient.
“It was said that where the statute creates an offense and sets out the facts which constitute it an information that follows the language of the statute is all that is required.
“Such an information was not defective because it omitted to negative certain statutory exceptions not contained in the clause of the act which created the offense charged.” (State v. Buis, 83 Kan. 273, syl. ¶¶ 1, 2, 111 Pac. 186.)
“An information charging the defendant with knowingly receiving deposits in a bank of which he was an officer when it was insolvent is good against a motion to quash, although it does not state which of the three conditions existed that are declared in another section of the' same statute to constitute insolvency.” (State v. Elliott, 122 Kan. 174, syl., 251 Pac. 423. See, also, State v. Eary, 121 Kan. 339, 246 Pac. 989, and State v. Seely, 65 Kan. 185, 69 Pac. 163.)
As to the failure to sustain appellant’s demurrer t.o the evidence of the state, we have before us the following statement of fact given in the counter abstract: “The per-capita tax upon the dog in question referred to in section 79-1303, R. S. 1923, has been paid.” This statement of fact would not be improper testimony because^ the information failed to aver this detail as to taxation, but would constitute competent proof under the general averment of the information.
Our attention is directed in the briefs to R. S. 79-1302, 79-1303 and 79-1305, which are sections of the same article as R. S. 79-1301 and properly considered in connection therewith, but they in no way overturn the general requirements of -the first section by announcing details of procedure or exceptions to the general rule. In this same general connection reference is made to R. S. 47-646,- which is as follows:
“It shall be lawful for any person at any time to kill any dog which may be found worrying or injuring sheep.”
The counter abstract sets forth the following on this subject:
“The dog was not worrying or injuring sheep at the time defendant killed it, and defendant testified that so far as he knew the dog in question has never worried or killed any of his sheep or other livestock.”
Appellant takes exception to the court stating in its instruction No. 2 that a dog is a domestic animal within the meaning of R. S. 21-565 and following that with instruction No. 3 about the requirements of another statute as to assessment and payment of taxes, as being • contradictory and therefore prejudicial to the appellant. Reading the two instructions together, it is plainly apparent the court left to the jury the matter of determining whether or not this dog was a domestic animal -by finding beyond a reasonable doubt that it was properly listed for taxation and taxes paid if the evidence warranted it.
Appellant complains of the inconsistency between instructions Nos. 5 and 6, the former stating the right under the statute to kill a dog found worrying or injuring sheep, and the latter stating in detail the pro and con of such feature of worrying or injuring them, or within a reasonable time prior to the killing of the dog it had been worrying or injuring them. This seems to be along the usual line of elucidating both sides of a pertinent situation. Appellant further requested the court to add to the last instruction a clause to the effect that if they found that the defendant in good faith believed it was necessary to kill the dog to prevent injury to his livestock, then the act was not maliciously committed and they should find the defendant not guilty. The court declined to make this addition, and we think it was justified in so declining, because the counter abstract states, as quoted above, that the defendant testified that this dog “has never worried or killed any of his sheep or other livestock.” Appellant argues as against this statement of his own that the killing of the dog would not be willful or malicious if he thought it necessary to do so to protect his sheep. The trouble with this reasoning is that the statute above quoted in giving one a right to kill a dog does not go that far. It only applies when the dog has been found worrying ór injuring them. The killing of the dog not found worrying or injurying them will necessarily be unlawful.
The failure of the court to give an instruction as to the act being willful and malicious is not necessarily prejudicial when it was not specifically requested. (State v. Ross, 77 Kan. 341, 94 Pac. 270; and State v. Wood, 118 Kan. 58, 233 Pac. 1029.) Conclusions as to intention and malice are frequently implied from the surrounding circumstances, and it is impossible to say without an abstract of the evidence before us that there were not enough of circumstances therein to fully show' that the act.was willful and malicious. It is said in 3 C. J. 166:
“Malice may be, and frequently must be, inferred from the nature of the act itself and from the circumstances which accompany and characterize it.”
We find no error in these rulings of the trial court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to replevin chattels wrongfully detained by defendants. A demurrer to the petition as finally amended was sustained, and plaintiff appeals.
The petition described the chattels as a brick building and a lattice attachment, standing on a city lot. A demurrer to the petition .was sustained, and plaintiff complains. The complaint is not well founded, because plaintiff filed an amendment to the petition.
A motion to make the amended petition more definite and certain was allowed, and plaintiff complains. The complaint is not well founded, because plaintiff submitted to the ruling, and made the amended petition more definite and certain by attaching a lease of the lot on which the building stood, which was material to the controversy.
Defendants demurred to the petition in its final form, and also filed a motion for judgment on the pleadings. The pleadings then consisted of the original petition and the two amendments. The court denied the motion and sustained the demurrer. The motion was equivalent to a demurrer. It made no difference whether the court allowed the motion or sustained the demurrer, and the question is whether the petition in its final form stated a cause of action against defendants, who were not shown to be in privity with the lessor.
The petition disclosed that the building was personal property owned by plaintiff, but it stood on land which plaintiff leased from the owner. The lease contained the following provision:
“8. Party of the second part (Lula Ala) cannot remove the building except by the payment of the rental due for the entire duration of this lease and the cash payment of five hundred ($500) dollars.”
Plaintiff did not plead compliance with this condition precedent to removal of the building, did not plead waiver of the condition, and did not plead any other fact showing plaintiff could take the building away without paying for it.
. Plaintiff contends there was nothing to show the duty to pay was owed to defendants. That was not necessary. The petition alleged defendants were in possession. There was nothing to indicate their possession was wrongful as against the lessor, to whom performance was due. Proof of right of possession in a third person defeats plaintiff in an action of replevin. In this instance the petition disclosed on its face plaintiff was not privileged to remove the building from the leased lot, except on condition which, so far as appeared, was neither waived nor satisfied. It was not necessary for defendants to plead the same facts, nor to prove them under a general denial or other answer.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
Plaintiff sued to have adjudged invalid certain portions of a will. The trial court held them valid. Plaintiff and defendant Patrick J. Langan have appealed.
John Langan, a resident of Shawnee county, died March 13, 1933, leaving an estate valued at $40,000. His wife’s death had preceded his. He had five children, four of whom he knew to be living, but he did not know whether the other child was living or not, for he had not heard from him for several years. John Langan left a will, which was duly admitted to probate, and an executrix was duly appointed and qualified. In the first seven paragraphs of the will the testator made specific bequests to named beneficiaries. These aggregate $3,701. They are not questioned on this appeal. Paragraphs 8 and 9 of the will are the ones in controversy here. They read as follows:
“Eighth: The remainder of my estate, real, personal and mixed, of which I shall die seized or to which I may be entitled at the time of my death, after all of the above bequests have been paid, I give, devise and bequeath to Tressa H. Fish, or her successors in trust, as hereinafter provided, in trust, however, for the following trusts and uses.
“The said property to be held by said trustee and her successors, and is to be invested and reinvested, as shall seem best advisable to said trustee, the said trustee and her successor having full power to invest, sell, manage and handle the said trust estate and the funds therein, in any manner that may seem to them for the best interest of said trust, during the term thereof. Out of the property and funds so held in trust, the said trustee or her successor in trust, shall pay each of the following named heirs the sum of five hundred dollars ($500) per year, for a period of fifteen years: John J. Langan, son, address unknown; William Vincent Langan, son, Topeka, Kan.; Katie Langan Miller, daughter, Alliance, Neb.; Helen Langan O’Toole, daughter, Detroit, Mich.
“At the end of the above-mentioned fifteen-years period, said trustee oilier successor in trust, shall divide the remaining amount of said trust estate among four children above named, share and share alike.
“In case any of the above-named children die before I do, or during the above-mentioned fifteen-years period, or before final settlement is made, without living issue, then his or her share shall revert back to said trust estate and be divided among the remaining above-mentioned children; but if they die leaving living issue, then their share shall go to said living issue as above provided.
“Ninth: If my son, John J. Langan, cannot be found at the time of my death or thereafter, his yearly sum is to be held in trust by said trustee or her successor in trust until the end of the fifteen-year period mentioned in paragraph eight, or the time of final settlement of my entire estate is to be made, and at that time, said sums and accrued interest are to revert back to my estate and be disposed of as above set forth.”
Plaintiff is one of the children named in the eighth paragraph of the will. She named as defendants the other four children, Patrick J. Langan, William Vincent Langan, John J. Langan, and Katie Langan Miller, and also named the executrix as a defendant. No service of summons was had and no attempt was made to procure service by publication, or otherwise, on the defendant John J. Langan, if living, or on his heirs, devisees, or legatees, if he be dead. In her petition plaintiff alleged paragraph eight of the will is void in that: (1) It attempts to create a trust and transfer the entire estate to the trustee, with power to sell, dispose of, invest and reinvest the estate at such time and in such manner as the trustee deems best. (2) It provides the trustee shall pay to each of the four children named $500 each year for fifteen years, then to divide the remaining estate among them, but if one of them should die without issue before that time the share of such child shall “revert back to said trust estate” and be divided among the others living, but if one die, leaving issue, the issue shall take that one share. (3) For uncertainty, and in violation of the rule against perpetuity, for no provision is made as to where the estate shall vest in the event all four named children should die without issue within the fifteen years. It is alleged that paragraph nine of the will is in conflict as to the interest of John J. Langan and is repugnant to paragraph eight, and that the provision, if he is not found in fifteen years his share shall “revert back” to the estate, comes within the rule of perpetuity and is further void, ambiguous and uncertain. It also alleged paragraph ten of the will to be invalid; but that point is not stressed here. It further is alleged that by reason of the invalidity of these paragraphs the estate passed to the heirs at law as fully as if the testator had died intestate.
The defendant Patrick J. Langan answered admitting the allegations of the petition and praying for the same relief. The executrix filed an answer appropriate for herself and the other defendants, except John J. Langan, for whom no one appeared.
On the trial there was testimony to the effect that in 1914 John J. Langan left Topeka and went to Kansas City, and that the testator and other members of his family had not seen or heard from him since that time, although the testator and others had made efforts to locate him. At the close of the evidence plaintiff moved for permission to amend her petition to allege that John J. Langan was legally dead at the time and long before the execution of the will by reason of the fact that he had left Topeka in 1914, going to Kansas City, Mo., and hád not been heard from since, although advertisement was made in newspapers and diligent search and inquiry made, but no information had been obtained as to whether he was living or dead. This motion was overruled.
In this court appellants argue that under the common-law rule recognized in this state (Ryan v. Tudor, 31 Kan. 366, 2 Pac. 797), one who has been absent for seven years and not heard from after diligent search is presumed to be dead, therefore that the court should have held John J. Langan was dead, and had been for several years before the will in question was written, and for that reason the provisions of the will pertaining to him were void; and, further, that this fact made it unnecessary and impossible for plaintiff to procure service of- summons upon him. Appellants are not in position to argue this question for two reasons: First, there was no allegation in the petition with reference to his death, and, second, there was no service of process made or attempted upon him, if living, or upon his unknown heirs, devisees, or legatees, if he were deceased. The unexplained absence for seven years raises a presumption of death, but does not necessarily establish it (Thompson v. Millikin, 93 Kan. 72, 143 Pac. 430), and certainly does not establish the fact that he died without issue or without having made a will. More than that, the administration upon the estate of one presumed to be dead by reason of seven years’ absence is a matter not specifically covered by the statutes of this state, and statutes covering that subject must be prepared and followed with care. (See Cunnius v. Reading School Dist., 198 U. S. 458, construing a statute of Pennsylvania, and Scott v. McNeal, 154 U. S. 34, construing a statute of the state of Washington. More than that, this boy’s father was not required to presume he was dead. It was proper for him to make the provision in his will with respect to the share which should be given to his son in the event he was found alive within a stated time. Indeed, if he did not do so our statute (R. S. 22-243, 22-263) would do it for him.
Appellants argue the words “revert back to said trust estate” and “revert back to my estate,” used in the will, are invalid provisions, citing Gardner v. Anderson, Trustee, 114 Kan. 778, 227 Pac. 743. These terms were not used in the sense they were-used in that case. Indeed, it is clear they are somewhat inaccurately used, and yet the meaning of the testator is clear. Here the estate was placed in the hands of a trustee, and naturally all of it would remain there that was not paid out. The obvious meaning of the will is that the sums not paid out remain for distribution.
Appellants argue the provisions of the will are void because there is nothing in the will to indicate what disposition would be made of the estate in the event all four of the children named should die without issue within the fifteen-year period. There is no intimation that such condition exists, or is likely to exist. The suggestion is purely speculative and is predicated upon a supposition so remote that it need not now be taken into account. If and when such a situation arises the trustee may apply to the court for instructions. Even in the contingency suggested appellants would be in position to receive no benefit from an order then made.
We see no ambiguity in the will sufficient to invalidate it, nor is there any reason to hold that it violates the rule against perpetuity.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Burci-i, J.:
The action was one by the Tootle-Lacy National Bank of St. Joseph, Mo., against the receiver of the failed bank of Scandia, Kan., to establish a preferred claim upon the assets of the Scandia bank. Preference was denied, and the St. Joseph bank appeals.
Depositors in the Scandia bank gave checks on their accounts, payable to the St. Joseph bank, aggregating $158. The St. Joseph bank forwarded the checks to the Scandia bank. The checks were received by the Scandia bank on October 15, and were charged to the accounts of the depositors, who had on deposit funds to meet the checks. On the same day the Scandia bank drew its draft for the amount on the Peoples National Bank of Kansas City, Mo., payable to the St. Joseph bank, and forwarded the draft to the St. Joseph bank. On October 17 the St. Joseph bank forwarded the draft to the Federal Reserve Bank of Kansas City, Mo., for clearance. On October 18 the Federal Reserve Bank presented the draft to the Peoples National Bank for payment, and payment was refused because the Scandia bank had failed on October 17. On October 15, and on October 18, the Scandia bank had on deposit with the Peoples National Bank sufficient funds to meet the draft.
The letter of the St. Joseph bank which transmitted the checks to the Scandia bank was as follows:
“We enclose for collection and immediate return in St. Joseph, Chicago or New York exchange, as listed below.”
The St. Joseph bank says the Scandia bank was agent for the St. Joseph bank, to collect the checks, and so the Scandia bank occupied a fiduciary relation to the St. Joseph bank. Granted, but that did not entitle the St. Joseph bank to a preference.
The letter of the St. Joseph bank transmitting the checks to the Scandia bank for collection negatived the idea that the proceeds of the checks, when collected, were to be treated as a trust fund. The Scandia bank was directed to make return by exchange, drawn on its own credit with another bank. The proceeds of collection became part of the general assets of the Scandia bank, and the claim of the St. Joseph bank upon those assets was simply that of a general creditor. The principle was recognized and applied in the case of Colorado & S. Rly. Co. v. Docking, 124 Kan. 48, 257 Pac. 743, and is supported both by reason and authority. (Annotation 90 A. L. R. 28, IV, a and b.) In the case of Peoples State Bank v. Burlington State Bank, 128 Kan. 274, 277 Pac. 39, cited by the St. Joseph bank, the direction of the forwarding bank was “for returns.” In the present case the direction was, in effect, “Use the money collected as your own and send us your draft on your St. Joseph, Chicago, or New York correspondent, for the amount.”
The St. Joseph bank says the Scandia bank violated instructions with reference to designated method of return, which was by St. Joseph, Chicago, or New York exchange. Granted. But the St. Joseph bank did not return to the Scandia bank the draft on the Peoples National Bank of Kansas City. The St. Joseph bank accepted that draft, and put it in course of collection. The result was, the St. Joseph bank ratified the method of remittance chosen by the Scandia bank.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment awarding compensation to the widow of a workman who had been an employee of defendant.
On the evidence adduced before the compensation commission an award of compensation was denied, but on the statutory review the trial court arrived at a different conclusion. Its most pertinent findings read:
“1. That the relationship of employer and employee existed between the Lone Star Cement Company and John Anthony Lee on or about the 18th day of June, 1931.
“3. That on the 18th day of June, 1931, John Anthony Lee met with a personal injury by accident arising out of and in the course of his employment, and from the effects of said injury and as a result thereof, John Anthony Lee died on the 22d day of January, 1932.
“4. That claimant, Evelyn Lee, is the sole and only dependent of John Anthony Lee.”
On these findings judgment was entered as follows:
“The court . . . finds that the award of the commissioner of workmen's compensation heretofore rendered in the above matter on the 15th day of December, 1932, be and the same is hereby set aside and held for naught.
“The court . . . finds generally in favor of the claimant and against the respondents on all issues of law and fact.
“It is therefore by the court ordered and adjudged that the claimant be awarded compensation from respondents in the sum of $3,182.01.”
Various errors are specified on this judgment, and an abstract of eighty-five pages is submitted for our perusal, and while we have diligently read it we are still somewhat 'at sea as to its purpose in this appeal. Appellants’ brief precludes us from saying that our jurisdiction in compensation cases is very narrow, for the brief begins with that proposition, citing familiar recent cases. (Fair v. Golden Rule Refining Co., 134 Kan. 623, 7 P. 2d 70; Goodwin v. Sinclair Pipe Line Co., 136 Kan. 8, 12 P. 2d 842; Kearns v. Reed, 136 Kan. 36, 12 P. 2d 820.)
Appellants’ main contention is that the record does not contain evidence on which the trial court’s judgment can rest. On that point, the evidence, chiefly expert and professional, which was that the workman died of a disease or diseases in no way related to his employment — although there was much of such evidence — is of no avail in this appeal since the trial court gave it no credence.
In American Nat’l Bank v. Lipe, 123 Kan. 674, 679, 256 Pac. 967, it was said:
“Of what avail is it to seek to persuade this court that this controverted issue of fact might very well have been decided the other way by the tribunal authorized to determine it?”
In support of the trial court’s findings and judgment we read:
Allen, witness, testified:
“Yes, he [the deceased] got hurt in moving the drill, 1931.
“Yes, they [foreman and fellow workmen] knew it, the foreman sent him to the doctor’s office.
“Q. Did you ever see a swelling at or about the right side of the neck of John Anthony Lee at any time while he was working at the Lone Star Cement Company? A. After he got hurt I did see the swelling.
“Q. Did John Anthony Lee work regularly for the company after June of 1931? A. After he got hurt he didn’t.
“Q. Do you know whether he complained the reason for his not working regularly? . . . A. Yes, he hurt himself moving the drill and put his hand to his right side chest.
“Q. . . . State to whom he made such complaints. A. He complained to me and the foreman.”
Touching the nature of the work in which the .deceased was engaged, a witness testified: '
“Lee’s main job was drilling with a tripod (three-leg drill operated by compressed air, and which was used in drilling holes in the quarry ledge which, when loaded with dynamite, blew the ledge of rock down into the quarry). . .
“The tripod drill is operated by a driller and his helper, and while too heavy to carry any distance without being 'taken down’ two men can move same around by each taking a leg and using the third leg as a pivot.”
A hypothetical question was propounded to a professional witness, Dr. Fred E. Angle, called to testify in claimant’s behalf. This question, which fairly summarized the evidence adduced in claimant’s behalf, reads:
“Q. If as a matter of fact John Anthony Lee was stricken with a pain sometime about the middle of June, 1931, and the evening of that day or thereabouts a doctor was called to his home, who found a swelling in the right side of his neck, and found complaint of pain in the right side of his chest, and he continued to stay at home for several days and then returned to work, and was under the care of Doctor Lee for a period of time until he was taken to Bethany Hospital, and if thereafter and during all those times he complained of the same pain and of the same conditions, and if on or about January 1, 1932, he was taken to the U. S. Veterans Hospital and died January 22, from the things we have enumerated, and if the evidence would further show John Anthony was in charge of the use of a drill which has for its purpose the drilling of holes in rock and which vibrates the body when used on certain types of rock, and which cannot be lifted by one man, state if in your judgment the use of that drill would cause or contribute to the death of John Anthony Lee. ... A. My opinion is that it was contributory to his death.”
In view of these excerpts from the testimony this court cannot say that the record contained insufficient evidence to support the trial court’s judgment. It is no longer an open question that although a workman is afflicted with a disease which eventually culminates in his death, neither he nor his dependents are thereby barred from the right to compensation if he actually suffered an accident in the course of his employment and which arose out of it and if such accident intensified or aggravated his affliction or contributed to his death. (Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793; Shapland v. Ferguson Furniture Co., 139 Kan. 768, 33 P. 2d 145; 1 Schneider on Workmen’s Compensation, 2d ed., 517; 1 Honnold on Workmen’s Compensation, 302-307.)
The record shows no error redressible by appeal, and the judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This lawsuit.originated as an action by Emmet Cooper, plaintiff, against his sister-in-law, Nellie P. Cooper, and her four minor children, for a sum of money'he had paid out on their behalf as federal income taxes. It expanded into a cross action by Nellie P. Cooper for an accounting of a ten years’ trusteeship exercised by Emmet Cooper (and A. D. Jellison) over the estate of the late Albert G. T. Cooper, of Russell county. Others interested in the estate were permitted to intervene.
The most pertinent and least controversial facts developed by the record were these:
Cooper, testator, had been a Russell county pioneer. He had accumulated 6,500 acres of land, some 1,700 acres of which were tilled and 4,800 acres of pasture. Except two isolated parcels of 640 acres and 480 acres, the Cooper lands formed one contiguous tract. A mile-strip quarter section belonging to Emmet Cooper was wedged into the Cooper lands on three sides and used as a part of them.
Cooper, senior, and wife resided on this spacious property. They had eight sons and two daughters. One of the sons had died before his father, leaving a minor son, Ray Cooper, who was separately provided for in his grandfather’s will. Of the seven surviving sons, all but one, Oliver, had reached their majority ere their father died.
On the Cooper ranch were five sets of improvements, and as his sons grew up and married they took up their separate abodes in those accommodations. There was a house on the Emmet Cooper quarter section and one of the sons resided there.
In the lifetime of the testator the ranch had been operated as a family affair in typical Kansas fashion. There was a large herd of cattle and horses and the usual equipment of farming machinery. Some of the tillable lands were farmed by the owner and some rented. The testator had also used his credit to carry on his farming and ranching operations and owed some $30,000 at his death.
Emmet Cooper, plaintiff, was the eldest son. He had gained some business experience as a grain dealer and banker, and enjoyed his father’s confidence.
The elder Cooper died on December 15, 1919. His will, made a week before his death, was probated without delay. By its terms Emmet Cooper and A. D. Jellison, a local banker, were named as executors and were expressly exempted from giving bond, and (so far as permitted by law) they were exempted from making an inventory of the testator’s assets and from accounting to the probate court. The estate was to be erected into a trust to endure for ten years, or longer if the testator’s widow should outlive that period. Generous provision was made in her behalf. A bequest of $10,000 was made in behalf of the minor grandson, Ray Cooper. The will also made bequests of $1,000 to the Scottish Rite in Salina and $10,000 to the Masonic home in Wichita, but these were not to become effective until the end of the trust period.
In other respects the testator’s sons and daughters were to share the estate on equal terms, but the proportions of the two daughters were to be erected into trust estates for their benefit, a detail of no present concern.
Certain portions of the will read:
“First. I appoint, make and constitute my son Emmet Cooper and A. D. Jellison the executors of this will and direct that no bond be required from them as such executors; and I further direct that neither be required to render any account or return any inventory of the assets of my estate into the probate court; and that as soon as the matters of my. estate shall be closed in the probate court that the said Emmet Cooper and A. D. Jellison retain all of my estate as trustees ... I empower my said executors to pay all of my debts, and if necessary so to do they are 'hereby fully empowered to sell and dispose of any real or personal property belonging to my estate without first obtaining any order from the probate or any other court, and to execute and make all needful papers as fully as I could if living.
“Second. After the payment of the debts against my estate by my executors, I do give, bequeath and devise unto the said Emmet Copper and A. D. Jettison all the rest and residue of my property, real, personal and mixed and wherever situated, as trustees and in trust however for the uses and purposes as herein stated, as follows, viz.:
“A. To pay any debts or obligations not paid by my said executors should any such debts exist.
“B. Out of my property and the rents and profits and interest therefrom arising said trustees shall from time to time and as my said wife Nancy J. Cooper, needs or desires the same, pay to the said Nancy J. Cooper sufficient moneys for her ample support and comfort, enough to be allowed to her to enable her to travel and to have all needful help, nursing, company and all suitable clothing and all conveniences, so that she may have in everything, out of my estate as full support and enjoyment as she had during our marriage and before my death; the said Nancy J. Cooper not to account for any of the money thus paid to her for the uses and purposes mentioned. After paying to my wife, Nancy J. Cooper, the moneys as aforesaid any surplus of income or from interest, rents or otherwise my said trustees shall invest so that my estate may be enlarged in good and safe first-mortgage real-estate securities or other equally safe investments. If from any cause at any time or times the income from my estate shall not be sufficient for the use of my said wife, Nancy J. Cooper, during her natural life, then I empower my said trustees to sell any of my real estate or personal property for the purpose of obtaining at any time or times sufficient money for my said wife for the uses and purposes as herein stated; and in case of any sale, recitation in the instrument or instruments of conveyance or sale that the sale is made to obtain money for the use of said Nancy J. Cooper shall be taken as conclusive proof that the sale is for such purpose and the title conveyed shall be perfect as if made by myself, my wife joining therein, were I living. My trustees shall in no event be held for any losses occurring from erroneous judgment, nor shall they be responsible for the acts of any of their agents or attorneys in the management of my estate; it being my intention they shall exercise good judgment honestly in the discharge of the trust. In determining what is my property all money, property or other things at my death standing in my name or in the name of myself and Nancy J. Cooper, my wife, shall be taken and deemed to be a part of my estate, which shall pass to the trustees herein named.”
The remainder estate was disposed of thus:
“All the rest of and residue of my estate real, personal and mixed wheresoever the same may be situated or found and of whatsoever it may consist, after the above legacies and bequests have been paid and all the expenses of probating this my last will and testament, and carrying into effect the provisions of this will, have been paid by my executors or trustees, I give, bequeath and devise, share and share alike, to the following-named persons, the same being sons and daughters of mine, to wit: Emmet Cooper, of Dorrance, Kansas; Lucian Cooper, of Russell county, Kansas; Ray Cooper, of Dorrance, Kansas; Ralph Cooper, of Russell county, Kansas; Samuel Evans Cooper, of Russell county, Kansas; Cecil Francis Cooper, of Russell county, Kansas; Oliver Perry Cooper, of Russell county, Kansas; Grace Belle Dague, of Wichita, Kansas; and Gertrude Ruth Ward, of Lucas, Kansas, . . [Italics ours.]
When Emmet Cooper and A. D. Jellison qualified and entered upon their duties as executors the assets and liabilities of the testator were about as follows:
Assets consisting of lands valued at $157,000 and personalty consisting of 497 cattle, 40 horses and mules, 22 hogs and miscellaneous chattels valued at $67,000, a total valuation of about $224,000.
Debts due local banks, etc., about $30,000 and federal and other taxes, $3,030.06.
These figures are only approximations gleaned from the record, and are used here merely to aid in understanding the nature and status of the trust property, the administration of which was sharply called in question in this cross action precipitated by Nellie P. Cooper and the interveners.
The executors made no attempt to turn sufficient assets of the estate to pay off its debts. In lieu thereof they renewed promissory notes of the testator evidencing such indebtedness which was mostly held by the local banks in the neighboring towns of Wilson, Lucas and Ellsworth. One of the liabilities of the testator was a $4,000 mortgage to the Jellison Trust Co.
When Cooper died in December, 1919, one of the sons, Cecil Cooper, took charge of the ranch temporarily. He conducted its. business for about three months and drew checks to pay current, expenses through some arrangement with the executors and as their agent.
In March, 1920, Emmet Cooper took personal charge of the ranch, and he and three of his brothers, Ralph, Lucian and Cecil, operated it together for the ensuing season — farming and cattle raising — on an agreed basis that the estate should receive one half of the net profits and the four brothers should divide the other half equally. By that arrangement the share of each brother was $943.88. Each of them received that amount, but Emmet left his share in the estate, merely keeping account thereof as an item due himself. At one time and another he advanced or loaned other sums to the estate through an informal understanding with Jellison, his fellow trustee. The two sisters, also, upon occasion, loaned money to the trustees to finance the ranching activities. After the first year succeeding the death of the testator, Emmet rented about 1,300 acres of the farming lands and 500 acres of pasture to five of his brothers and a brother-in-law separately; and he also rented 225 acres to strangers. He operated the remaining lands as an estate project himself, hiring help as needed, buying, selling, making improvements, the trustees’ interpretation of their trust powers being that they should conduct the ranch as a going concern.
The testator’s widow continued to reside in the principal farmhouse. She managed her poultry, gardening and dairy activities very much as she had done when her husband was alive. She died in 1926, after which time some of the members of the family expressed the desire that the trustees should wind up the estate; but that was not done. The trust period had to run for ten years— until 1929.
In the course of the executorship and the trusteeship which succeeded it, Cooper and Jellison were not as candid with the beneficiaries as they should have been. They made annual reports to them, but these were not so clear and explicit that the beneficiaries —the brothers and sisters of plaintiff (and defendant Nellie P. Cooper, after the death of her husband, Ray Cooper, in 1927)— could learn therefrom that the trustees were permitting one of their number, Emmet Cooper, to charge the estate $1,500 per annum for his services, and that the other, A. D. Jellison, received the lump sum of $500 for his services and expenses. Neither did the annual reports show that Emmet Cooper was loaning his own money to the trust estate and charging interest therefor. The reports did show that the trustees were borrowing money and paying interest to finance the activities of the estate. These reports also showed that the trustees were using rented lands, but they did not specifically state that such rented lands, or part of them, included the quarter section owned by Emmet Cooper nor what amount of rent the trustees were paying for it. At various times during the trusteeship Emmet Cooper was heard to say that he was getting no pay for his services as trustee, but at other times all or most of the members of the family were otherwise apprised long before the trust period terminated. Towards its close two or three auction sales were had and all the personalty (except some temporarily unsalable chattels — diamonds,corporate stocks, roofing and prairie-dog poison) were disposed of. Following these sales and at the termination of the trust period, the trustees divided the net proceeds among the beneficiaries, taking from each of them a written instrument, of which the following is an example:
“receipt
“This is to acknowledge receipt of the sum of SI,336.90 and S12.28 for chairs, etc., paid to the undersigned, by Emmet Cooper and A. D. Jellison, trustees of the estate of Albert G. T. Cooper, deceased, and this is to acknowledge that the same is full and final payment of any and all sums of money or property, both real or personal, due me from said trustees of said estate. And this is to acknowledge that said trustees, their heirs or successors, are herewith released from any and all claims or liabilities, by me, and that I accept the said above amount of money as a full and final settlement for my share in said estate of Albert G. T. Cooper, deceased.
“Witness my hand this 31st day of July, 1930. Mrs. Nellie P. Cooper.”
Nellie P. Cooper executed a similar instrument for a like amount as guardian for her four minor children. The probate court approved the execution of this latter receipt.
At the time these receipts and acknowledgments were made the parties concerned knew that Emmet Cooper still held control of the unsalable chattels, and it was informally understood that if and when they could be marketed there would be a special accounting in relation thereto; also that there was still an unsatisfied demand on the part of the federal government for additional federal income taxes in the sum of $2,750 which Emmet was to satisfy on the best terms available and the beneficiaries of the trust estate were to reimburse him proportionately therefor. In other respects the trust estate was closed in July, 1930. The extensive lands had already been apportioned among the beneficiaries.
In its exhaustive details and conclusions the trial court found that Emmet Cooper satisfied the government’s demand for $2,750 by payment of $2,259.40; that the unsold diamonds, dog poison, etc., were worth $500; that the fair rental value of Emmet Cooper’s land to the estate was $100 per annum and ought to be reduced to that amount; that Emmet Cooper’s services to the estate as trustee were worth $550 per annum and his services to the estate as farmer and day laborer were worth $900 per annum, or $1,450 in toto, rather than $1,500 per annum as charged by Emmet Cooper and sanctioned by his fellow trustee — this slight reduction being based on the failure of Emmet Cooper to keep his accounts with sufficient clarity and precision so that anybody concerned could understand their details readily.
The record is long; the trial court’s findings of fact extend to thirty-four closely printed pages of the abstract. Its conclusions of law cover five additional pages; but our foregoing summary may suffice for the purposes of this review. If. further details need our consideration they will be stated as we proceed.
By the judgment, Nellie P. Cooper and her children were required to pay to plaintiff their proportionate shares of federal income taxes in the aggregate sum of $291.32; the intervener, Cecil Cooper, was required to do likewise. The other interveners were similarly charged with their proportionate shares of the federal income taxes paid in their behalf. In behalf of Nellie P. Cooper and her children and the interveners (other than one sister, who, apparently, disclaimed), the court required Emmet Cooper to pay to each of them their proportionate shares of the value of the diamonds, etc., together with their proportionate shares of the abatements made in Emmet Cooper’s charges for the trust estate’s use of his quarter section of land and for his services as trustee. Costs of the litigation were charged proportionately against all the litigants.
All parties appeal.
Touching first upon the errors urged by defendants and interveners as appellants, they contend that since the executors reported to the probate court that all the testator’s debts were paid, that matter should have been regarded as settled for all time to come. It is quite correct that within its jurisdiction a final order of the probate court which is not appealed is as binding and conclusive as that of any other judicial tribunal, but appellants close their eyes to the broad and unusual powers of these executors and trustees. They were authorized to pay the testator’s debts as executors, to be sure; but they were likewise authorized as trustees to pay any debts or obligations which as executors they had failed to pay. In the concluding paragraph of the will this broad power is repeated — “after all expenses,” etc., “have been paid by my executors or trustees,” the residue is given and devised to the beneficiaries. The fair meaning of such a broad and unusual power was that the executors were vested with discretion in dealing with those debts; and the refunding of them as obligations of the trustees was a reasonable disposition of them, especially in the view this court takes of the powers of the trustees to carry on the farming and ranching activities of the estate. The trial court was of opinion that the trustees were not thus empowered, that they should have sold off the cattle, horses, hogs and farming equipment, paid the debts in cash, and sold or rented the lands to strangers, and should have retired from the activities and the attendant risks of operating the ranch as a going concern. This court holds otherwise. In broad outlines the trust estate was managed as Cooper, senior, intended. (65 C. J. 692, 693.) His first concern was for his widow, the mother of these litigants, that she should be provided for with “as full support and enjoyment as she had during our marriage and before my death.” Nancy J. Cooper was a farm wife and mother. As her sons and daughters matured and married they settled about her in homes erected on the family estate. They were farm-bred folk. It seems to us that to have required Nancy J. Cooper to remove from the farm home so that it might be rented to a stranger and that her sons should have had to compete with strangers for the privilege of renting portions of the Cooper ranch, would have been a distorted and inexcusable interpretation of the powers conferred upon the trustees. If this court had any doubt on this score it would be dissolved when we consider that the Cooper ranch was carried on as a going concern for ten years without a valid protest or question on the part of anyone concerned. The operative interpretation of the trustees’ powers on the subject was unanimous by everybody concerned for ten years. The sons farmed the land on shares; they bought and sold and dealt with the trustees in respect to farm products; they hired their services at various times to. the trustees and received compensation therefor. The daughters, mature and married, returned betimes to the ranch home and received wages from the trustees for their services, and even loaned their own money at interest to the trustees.
We note that in 1924 the trastees had an intimation from a competent lawyer that there was a question about their right to operate the ranch as a going concern — but that was no more than indicative of a lawyer’s commendable conservatism in passing on questions of law. A good way to have settled any question of the scope of the trustees’ powers would have been to have had it adjudicated by timely action at the inception of the trust undertaking. Touching the trial court’s conclusion that the trustees were not authorized to operate the ranch as a going concern, that court’s final conclusion that the defendants and interveners were estopped to complain of such a course leads back to about the same legal conclusion as if the powers of the trustees had been construed in accordance with our view. (State, ex rel., v. Iola Theater Corp., 136 Kan. 411, 414, 15 P. 2d 839.)
Appellants next contend that the trustees had no right to rent the quarter section owned by Emmet Cooper and to pay rent therefor. We hold otherwise. This tract apparently had been used as a part of the ranch in the lifetime of the testator. It was situated so that it would have been expensive to the trustees as well as inconvenient to exclude it. And the trustees violated no rule of law in paying rent for it; and the amount they did pay has been subjected to the trial court’s scrutiny with a result which appellants, at least, cannot fairly complain of.
Touching the point that one of the trustees, Emmet Cooper, loaned money to the estate and charged interest thereon: This court does not approve of such practice. It does appear, however, that he charged a lower rate of interest than the trustees were paying for bank loans to finance the ranching activities, and so this breach of the proprieties by the trustees in this instance did the appellants no wrong.
Appellants next make the contention that the executors or trustees were not entitled to charge for their services. We find no intimation in the will to the contrary. It would be curious indeed-if the testator intended that his executors and trustees should serve for ten years without pay. Appellants do have a talking point against the trustees where they, as executors, did not ask the probate court for an allowance, but assumed to fix it in their own discretion as trustees. But the broad powers vested in them excused, if it did not justify, the course they took. Moreover the trial court has reviewed this matter, and has decided what fair compensation for the services rendered should be, and has approved trustee Jellison’s compensation at $500 in toto, and Emmet Cooper’s at $450 per annum as trustee and $900 per annum for his services as farmer and farm laborer in the operation of the trust property. The result is that ultimately the court and not the trustees determined their compensation.
Appellants also have a talking point against the executors and trustees on the trial court’s finding No. 17, which reads:
“From January 1, 1920, to March 15, 1922, the estate of A. G. T. Cooper sustained a loss of from $16,500 to $20,000 by reason of the depreciation in the value of the livestock and other personal property belonging ter the estate during said period of time.”
But this is no more than a talking point. It is easy to be wise after the event. What Kansas farmer or ranchman, trustee or other functionary, would have continued to carry on his business activities in the years immediately succeeding the World War, if the calamitous shrinkage in agricultural values could have been fore seen? The executors and trustees were authorized to sell the lands of this ranch. . If they had sold the Cooper lands at the ruinous prices which followed the slump of cattle prices, the appellants would have'a real grievance to talk about! Appellants may have lost something because the livestock was not sold before prices fell; but quite as obviously they were saved a very substantial amount when the executors and trustees did not literally reduce the Cooper estate to money and invest the same “in good and safe first-mort1 gage real-estate securities or other equally safe investments,” as the will authorized them to do. In our judicial experience within the last few years we have frequently seen the tragic predicament of beneficiaries of trust estates where trustees pursued such policies, and have seen such “first-mortgage securities” and “equally safe investments” wither into worthlessness in the unforeseeable mutations of the post-war era.
' In presenting this appeal the important fact is largely overlooked by appellants that there were two trustees, A. D. Jellison as well as Emmet Cooper. Appellants have seen fit to ignore Jellison’s part in' the execution of this trust, and have chosen to deal with Emmet Cooper as the one villain in the piece. But Jellison was impleaded in this lawsuit. He was equally responsible with Emmet Cooper for whatever was done or omitted by the trustees, although the active-work of operating the Cooper ranch devolved on Emmet Cooper. The trial court saw fit to render no judgment against Jellison, approved his charges of $500 for his services as trustee; appellants made no objection thereto; and they do not now complain of the trial court’s disposition of this cause as to him. It is elementary law that a general release without qualification of one of two trustees, with respect to improper management of a trust estate, is a release of the other trustee also.
In Blackwood v. Borrowes, 4 D. & War. Ch., 441, the suit, among other matters, was to fix liability upon the estate of a deceased trustee for breach of trust; The claim against the surviving co-trustee had been compromised and settled. The high court of chancery held that the release of one of the trustees operated as a release of the personal representatives of the deceased trustee. The Lord Chancellor said: ■
“But)- it is said, why is not the plaintiff to have relief against Colonel Leslie’s estate? He, no doubt, was bound in respect of the breach of trust, and he or his personal representative might have been made responsible, if the plaintiff had not estopped herself from the relief "which she now “seeks. . . If two trustees are' liable for a breach'of trust, and the cestui que trust says to one, ‘I release you from, all liability in respect to certain securities, and I am willing to allow the money to remain upon those very securities,’ the case does not rest upon mere technical grounds; if she had said to Mr. Blackwood, ‘I release you, but I do not intend to accept the' securities, or to give up my right to make Colonel Leslie answer for his default,’ the question would have been a different one, and I am not called upon to consider it. As the case stands, I think it very clear that the deed of July, 1839, operated not only as a release of Blackwood, but also as an acceptance by the plaintiff of the securities.” (pp. 476, 477.)
And so here. This court is not called upon to put its seal of approval on any of the criticized acts of the trustees. At the .close of the trust period the beneficiaries accepted their proportionate shares of the personal estate and executed instruments acknowledging the sums received as full and final settlement of their shares of the Cooper estate. Those instruments have not been set aside. They could not be set aside without procuring a judgment to that effect against the two trustees. (65 C. J. 663, 664.)
Of necessity, therefore, so much of Emmet Cooper’s cross-appeal as relates to the reduction of his compensation as trustee and of the sum allowed him as rent of his quarter section is well taken. Those items were involved in the accounts of the trust estate; and since no judgment was rendered against the trustees those items could not become the basis of a judgment against- Emmet Cooper personally.
However, this conclusion does not wholly relieve Emmet Cooper from the judgment against him. At the time the estate was wound up, July 31, 1930, and in order to avoid deferring that matter to some indefinite future time, not only was it agreed between Emmet Cooper and the beneficiaries that they would repay him personally for their proportionate shares of the federal income tax due from the estate; but also that he personally — not the trustees — held certain chattels undisposed of, diamonds, dog poison, etc., for which, impliedly, he was to account at some future time. Both these arrangements were made by the parties concerned with Emmet Cooper personally, not with the trustees. And so, not only must Nellie P. Cooper and the interveners pay Emmet Cooper their pro-rata share of the income taxes, but he must pay or account to them for their proportionate shares of the value of the chattels which by agreement remained in his hands after the trust estate was settled. In other respects the judgment against plaintiff must be vacated.
It follows that in this appeal the judgment is affirmed, and on the cross-appeal it is remanded for modification in accordance herewith. | [
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The opinion of the court was delivered by
McFarland, C.J.:
This is an appeal by the Kansas Department of Revenue (Department) from the decision of the district court invalidating K.A.R. 92-19-72 on the ground that it exceeded the statutory authority contained in K.S.A. 1994 Supp. 79-3602(a). The action arises from the Department’s assessment of sales tax against Pemco, Inc.’s, rental of equipment to its wholly owned subsidiary, Clean Water Construction (Clean Water).
The pertinent stipulated facts may be summarized as follows. Pemco is a corporation-authorized to do business in Kansas, and only two persons own stock therein. Pemco is the parent of three wholly owned subsidiary corporations: Carrothers, Clean Water, and Triangle Building. Clean Water and Triangle Building operate as building contractors. Pemco owns all of the construction equipment used by both building contractors, which it rents to each.
Triangle Building is an “open shop” which operates mainly in Kansas, a “right to work” state. Clean Water is a union shop which operates mainly in Missouri, where union contracts are generally required. This arrangement allows the two subsidiaries to maintain what is known as a “double-breasted operation,” with both an open and a union shop. All three corporations share a single business location, although each pays its own employees. There is a management fee arrangement between the parent and each of the subsidiaries under which no money actually changes hands. An in-house equipment rate has been established which is billed to the renting subsidiary on a monthly basis. The parent company and its subsidiaries file combined income tax returns in Kansas and consolidated federal income tax returns.
This appeal involves a single, narrow question of law — whether K.A.R. 92-19-72 exceeds the statutory authority of K.S.A. 1994 Supp. 79-3602(a).
K.S.A. 1994 Supp. 79-3602(a) is the first section of the definitional statute of the Kansas Retailers’ Sales Tax Act (K.S.A. 79-3601 et seq.) and provides:
“ ‘Persons’ means any individual, firm, copartnership, joint adventure, association, corporation, estate or trust, receiver or trustee, or any group or combination acting as a unit, and the plural as well as the singular number; and shall specifically mean any city or other political subdivision of the state of Kansas engaging in a business or providing a service specifically taxable under the provisions of this act.”
K.A.R. 92-19-72, a Department of Revenue regulation, provides:
“Retail sales between related entities, (a) Each interdepartmental transfer of tangible personal property and taxable services between various departments of a single legal entity shall not constitute a sale subject .to sales tax.
“(b) Each transfer of tangible personal property and taxable services between separate legal entities for use or consumption, and not for resale, shall be taxable, even though the entities:
(1) Share common principals or ownership and operations;
(2) share the same business location;
(3) file consolidated income tax returns for federal and state income purposes;- or
(4) do not enjoy a profit or expense as a result of the transaction.
“When a transaction would be subject to sales tax if the transaction were between two separately owned and operated entities, the commonality of the two entities is irrelevant, and sales tax is imposed on the transaction between the two related entities.
“(c) ‘Separate legal entities’ shall mean entities which are recognized as individual entities either in fact or at law. Each transfer of tangible personal property and taxable services between separate legal entities for use or consumption, and not for resale, shall include;
(1) Transfers between individuals and partnerships;
(2) transfers between individuals and corporations;
(3) transfers between individuals and unincorporated associations;
(4) transfers between partnerships and corporations;
(5) transfers between partnerships and unincorporated associations;
(6) transfers between partnerships;
(7) transfers between unincorporated associations and corporations; and
(8) transfers between corporations, whether between sister corporations or parent and subsidiary corporations.”
K.A.R. 92-19-72 became effective May 1, 1988.
Pemco’s position may be summarized as follows: (1) Perneo and Clean Water are two corporations acting as a unit; (2) two corporations acting as a unit are within the statute’s phrase “any group or combination acting as a unit”; and (3) the regulation clearly requires the two corporations to be treated as separate entities for sales tax purposes and thereby exceeds the statute. The district court essentially agreed with Pemco’s interpretation.
The Department argues that the regulation is not in conflict with nor does it exceed the statute. A corporation is recognized as a person for sales tax purposes by the statute and is a separate legal entity. The fact that such corporation may be closely affiliated with another corporation does not change its separate person or entity status to that of being part of a group acting as a uiiit. Therefore, the regulation spelling out that separate legal entities are each separate persons subject to sales tax is not inconsistent with nor does it exceed the statute.
The interpretation of a statute is a question of law. An appellate court’s review of questions of law is unlimited. Davis v. City of Leawood, 257 Kan. 512, Syl. ¶ 3, 893 P.2d 233 (1995); State v. Green, 257 Kan. 444, Syl. ¶ 4, 901 P.2d 1350 (1995); see Seabourn v. Coronado Area Council, B.S.A., 257 Kan. 178, Syl. ¶ 1, 891 P.2d 385 (1995).
Administrative regulations have the force and effect of law. K.S.A. 77-425; Jones v. The Grain Club, 227 Kan. 148, 150, 605 P.2d 142 (1980). Administrative regulations, moreover, are presumed to be valid, and one who attacks them has the burden of showing their invalidity. Capital Electric Line Builders, Inc. v. Lennen, 232 Kan. 379, 383, 654 P.2d 464 (1982). Rules or regulations of an administrative agency, to be valid, must be within the statutory authority conferred upon the agency. Those rules or regulations that go beyond the authority authorized, which violate the statute, or are inconsistent with the statutory powers of the agency have been found void. Administrative rules and regulations, to be valid, must be appropriate, reasonable, and not inconsistent with the law. Pork Motel, Corp. v. Kansas Dept., of Health & Environment, 234 Kan. 374, Syl. ¶ 1, 673 P.2d 1126 (1983).
This is an issue of first impression in Kansas, although similar statutes in other states have given rise to considerable litigation as to whether affiliated corporations could avoid sales tax on transactions with each other. Illustrative thereof are Ex parte Capital City Asphalt, Inc., 437 So. 2d 1291 (Ala. 1983); Rexall Drug Co. v. Peterson, 113 Cal. App. 2d 528, 248 P.2d 433 (1952); Montgomery Ward & Co. v. State, Dept. of Revenue, 628 P.2d 85 (Colo. 1981); Superior Coal Co. v. Dept. of Finance, 377 Ill. 282, 36 N.E.2d 354 (1941); Bonnar-Vawter v. Johnson, 157 Me. 380, 173 A.2d 141 (1961); Commissioner of Revenue v. Globe Automatic Vending Co., 383 Mass. 886, 421 N.E.2d 1213 (1981); Central Cooling v. Dir. of Rev., State of Mo., 648 S.W.2d 546 (Mo. 1982); Motor Corp. v. Kosydar, 50 Ohio St. 2d 290, 364 N.E.2d 252 (1977); Shelburne Sportswear v. Phila., 422 Pa. 199, 220 A.2d 798 (1966); Automobile Club v. Department of Revenue, 27 Wash. App. 781, 621 P.2d 760 (1980); and Southern States Cooperative v. Dailey, 167 W. Va. 920, 280 S.E.2d 821 (1981). See Annot., 64 A.L.R. 2d 769, and cases cited therein. Although the various statutes involved in these cases vary and the rationale differs, the com mon result has been to permit fhe imposition of sales taxes or their equivalent on transactions between affiliated corporations. See Comment, The Application of Kansas Sales Tax to Transactions Between Affiliated Companies, 42 Kan. L. Rev. 461 (1994), for a careful analysis of the subject.
The legislature could specifically exempt transactions between affiliated companies as have the legislatures of Connecticut and Texas, but it has not done so. See American Totalisator Co. v. Dubno, 210 Conn. 413, 422 n.12, 555 A.2d 421 (1989); Conn. Gen. Stat. § 12-412(62) (1995); Tex. Tax Code Ann. § 151.346(a) (West 1992).
For convenience, we iterate the statute at this point as. follows:
“(a) ‘Persons’ means any individual, firm, copartnership, joint adventure, association, corporation, estate or trust, receiver or trustee, or any group or combination acting as a unit, and the plural as well as the singular number; and shall specifically mean any city or other political subdivision of fhe state of Kansas engaging in a business or providing a service specifically taxable under the provisions of this act.”
Note that the statute is simply defining what a person is for purposes of the Act. It first lists fhe usual types of entities recognized at law and then adds “or any group or combination acting as a unit.” There is nothing to indicate an intent that this catch-all phrase was intended to alter the status of any of the specifically listed entities. A logical interpretation is that it was intended to extend “person” status to groups or combinations acting as a unit even though the group or unit does not fit within the legal definition of any of the specifically designated entities. Thus, an improperly incorporated putative corporation could not escape sales tax liability by relying on its legal infirmities. Also, tax liability could not be avoided by claiming a weird type of group or unit not fitting into a standard type of organization.
A common theme in a number of decisions from other jurisdictions involving this issue is that a corporation, having chosen the legal form in which to exist and do business, should not be permitted to pierce its own corporate veil to gain a tax advantage. Illustrative is Southern States Cooperative v. Dailey, 167 W. Va. at 930-31, wherein fhe court stated:
“Moreover, Southern States and its cooperatives have made a conscious decision to do business in the corporate form with its attendant advantages. These advantages include the limitation of personal liability, the continuity of corporate existence, and the facilitation of business administration. [Citation omitted.] Having taken advantage of the benefits of incorporation, a corporation cannot decline to accept the liabilities of the corporate form in order to reduce the incidence of taxation. Conway v. Jobin, 115 N.H. 496, 345 A.2d 903 (1975); Shelby County v. Barden, 527 S.W.2d 124 (Tenn. 1975); Noble v. C.I.R., 368 F.2d 439 (9th Cir. 1966). As was said in Schenley Distillers Corp v. United States, 326 U.S. 432, 66 S. Ct. 247, 90 L. Ed. 181 (1945):
“While corporate entities may be disregarded where they are made the implement for avoiding a clear legislative purpose, they will not be disregarded where those in control have deliberately adopted the corporate form in order to secure its advantages and where no violence to the legislative purpose is done by treating the corporate entity as a separate legal person.’ 326 U.S. at 437, 66 S. Ct. at 249, 90 L. Ed. at 184.
“Southern States has had the benefits of the corporate form and should not be allowed to disavow it to reduce the incidence of taxation. Shelburne Sportswear Inc. v. City of Philadelphia, 220 A.2d 798, 422 Pa. 199 (1966); Bonnar-Vawter Inc. v. Johnson, 157 Me. 380, 173 A.2d 141 (1961). The burden of taxation does not create a burden disproportionate to the benefits of incorporation and courts generally have been reluctant to disregard separate legal entities for the purpose of granting relief from taxation in such circumstances. See, e.g., Moline Products Inc. v. Commissioner of Internal Revenue, 319 U.S. 436, 63 S. Ct. 1132, 87 L. Ed. 1499 (1943). Consequently we hold that Southern States and its affiliated cooperatives are each ‘persons’ as defined by W. Va. Code § 11-13-1, and as such the gross receipts from transfers between them are subject to the West Virginia business and occupation tax.”
In the same vein, our sister state of Missouri reasoned in Central Cooling v. Dir. of Rev., State of Mo., 648 S.W.2d at 547, as follows:
“Central asks this Court to ‘pierce its corporate veil’ and find that any transactions between it and Johnson are no more than interdepartmental transfers. In support, Central cites cases where the court disregarded a subsidiary’s separate status and treated it and the parent as a single entity. Acme Precision Products, Inc. v. American Alloys Corporation, 422 F.2d 1395 (8th Cir. 1970); Osler v. Joplin Life Insurance Co., 164 S.W.2d 295 (Mo. 1942). In those cases the court ignored separate corporate entities in order to prevent a fraud, wrong or injustice, and ‘pierced the corporate veil’ to impose liability on the corporation, not to bestow an advantage; they are not persuasive on the issue in this case.
“Persuasive are those cases where the court examined the notion of piercing the corporate veil in taxation contexts. The United States Supreme Court held in Moline [Properties], Inc. v. Commissioner of Internal Revenue, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499 (1943):
‘The doctrine of corporate entity fills a useful purpose in business life. Whether the purpose be to gain an advantage under the law of the state of incorporation or to avoid or to comply with the demands of creditors or to serve the creator’s personal or undisclosed convenience, so long as that purpose is the equivalent of business activity or is followed by the carrying on of business by the corporation, the corporation remains a separate taxable entity.’
Id. at 438-439, 63 S.Ct. at 1133-1134.”
Kansas has substantial case law authorizing the piercing of a corporate veil if to do otherwise would work an injustice on third parties.
In Doughty v. CSX Transportation, Inc., 258 Kan. 493, 905 P.2d 106 (1995), we stated:
“The ultimate test for imposing alter ego status is whether, from all of the facts and circumstances, it is apparent that the relationship between the parent and subsidiary is so intimate, the parent’s control over the subsidiary is so dominating, and the business and assets of the two are so mingled that recognition of the subsidiary as a distinct entity would result in an injustice to third parties. In addition to the factors used to determine a corporate alter ego status, a plaintiff must show that allowing the legal fiction of a separate corporate structure would result in injustice toward the plaintiff. Dean Operations [, Inc. v. One Seventy Assocs.,] 257 Kan. 676, Syl. ¶¶ 5, 6 [, 896 P.2d 1012 (1995)].” p. 500.
“The Dean court noted that the fiction of separate corporate identities of two corporations will not be extended to permit one of the corporations to evade its just obligations; to promote fraud, illegality, or injustice; or to defend crime.” p. 497.
There is no injured third party involved herein who needs to pierce a corporate veil if injustice is to be avoided. The concept of piercing the veil is to permit an injured party to get past the corporate shield in certain circumstances. Pemco is, in essence, seeking to pierce its own corporate veil to avoid the payment of sales tax — the very veil it established. Pemco apparently believed that it was to its advantage to engage in the construction business through two wholly owned subsidiary corporations rather than through, for example, divisions of itself. It gained, inter alia, the advantage of being a double-breasted operation — able to enter into union and nonunion construction contracts in Kansas or Missouri as the opportunity might arise. We find no reason why it should be able to deny the corporate structure it has chosen in order to gain a tax advantage. There is nothing in the statute defining persons which authorizes a corporation to deny its legal status in a transaction between it and an affiliated corporation and claim to be a group or combination acting as a unit.
We conclude that K.A.R. 92-19-72 is not inconsistent with, nor does it exceed, the statutory definition contained in K.S.A. 1994 Supp. 79-3602(a) in the claimed particulars.
The judgment of the district court is reversed. | [
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The opinion of the court was delivered by
Lockett, J.:
Defendant was convicted of second-degree murder. Defendant contends the trial court erred in admitting into evidence his videotaped confession. This case is on a petition for review of the Court of Appeals’ unpublished decision affirming the district court’s admission of the confession. This court has jurisdiction pursuant to K.S.A. 60-2101(b) and K.S.A. 20-3018(b).
After a physical confrontation in the early morning hours of October 25,1992, Michael Lewis fatally shot Leroy McFarland. Police apprehended Lewis shortly after 2:00 aim. near the scene of the shooting in a taxicab. Lewis was shirtless and wearing pants stained with blood when arrested.
At approximately 5:00 a.m., detectives Wywadis and Broxterman interviewed Lewis at police headquarters. The interview was videotaped. Wywadis and Broxterman initiated a relatively polite inquiiy, asking Lewis his name and address. In graphic and obscene language, Lewis refused to provide any information. After approximately five minutes, the detectives left the interview room briefly.
Upon the detectives’ return, a heated exchange developed between Wywadis and Lewis. After Lewis used a derogatory term in reference to police officers, Wywadis slammed his fist against the table, rose to his feet and stood over the seated Lewis. Lewis, in graphic and obscene language, repeatedly refused to talk with the detectives. Despite these refusals, the detectives persisted in prodding Lewis to respond to their questions. Lewis indicated he was not intimidated by Wywadis and stated he would not provide any information to the detectives. Wywadis shouted that he knew who Lewis was, what he had done, and that Lewis was going to the county jail for “murder one.” Wywadis then recited the facts implicating Lewis in the shooting and the numerous eyewitnesses to the shooting. At one point, Wywadis made reference to Lewis having anal sex if he was incarcerated in the county jail. The heated exchange lasted approximately four to five minutes. After approximately 15 minutes, the interview concluded when Wywadis told Lewis to “[ejxercise your right; zip it, clip it,” i.e., to remain silent.
Lewis was never given his Miranda rights before or during the interview, nor did he make an incriminating statement. The district court’s memorandum order noted that Wywadis used highly inappropriate epithets and terminology which could only be characterized as obscene and indecent.
Detective Mills had monitored the interview from another room. Immediately after the interview Mills talked with Lewis while Lewis was being booked into jail. Mills informed Lewis that the police were continuing to investigate and if Lewis wanted to give the police his side of the story, he should do so before getting an attorney “in the next day or so.” Lewis responded by telling Mills that he was tired and hungry. Mills suggested that Lewis get some rest and food at the jail, and then they would talk. Lewis was transported to the jail, allowed to sleep and eat, and was eventually returned to police headquarters for an interview with Mills.
Mills commenced the second videotaped interview at approximately 12:20 p.m. Lewis had been arrested and in police custody for approximately 10 hours. Mills opened the recorded portion of the interview by stating that Lewis voluntarily agreed to speak with him after getting rest and food. Lewis did not respond to Mills’ statement. Mills encouraged Lewis to relate his side of the story. Lewis responded that he was drunk and related his account of the fight with McFarland. When Lewis would cease making statements, Mills directed the conversation and encouraged him to continue. Lewis ended the story by stating: “I got my strap ... I smoked him.” When Mills asked Lewis for clarification, Lewis responded that he got his pistol and started shooting.
After Lewis made the initial incriminating statement to Mills, Mills stated he needed a more specific statement from Lewis of what occurred and who was involved. Lewis, for the first time since his arrest, was informed of his Miranda rights at approximately 12:30 p.m. Lewis responded that he had on prior occasions heard the Miranda warnings, that he understood them, and that he would waive his rights. Mills then led Lewis through a reiteration of his story. Lewis embellished his account of the altercation with McFarland and the shooting. Lewis further admitted he had kicked McFarland after shooting him and asserted that McFarland deserved to be shot. The second interview lasted 1 hour and 50 minutes. Lewis was charged with first-degree murder.
Prior to trial, Lewis filed a motion to suppress his two videotaped statements. Lewis claimed his confessions were not voluntaiy and that he had not been informed of his Miranda rights after being arrested prior to making any incriminating statements. After hearing evidence, the district court observed that the conduct of Wywadis was “reprehensible” during the initial interview. The videotape of the first interview was not admitted into evidence.
The district court found that Lewis had agreed to Mills’ request for a second interview. The court noted that Mills had informed Lewis of his Miranda rights within minutes after starting the second interview. The court found that Lewis, after being informed of his rights, knowingly waived those rights before providing a detailed statement about the shooting. The court refused to suppress Lewis’ incriminating statements to Mills, citing Michigan v. Mosley, 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975), as authority. At trial, the jury viewed the videotape of the entire second interview.
Lewis testified at trial and admitted that he had shot McFarland, emphasizing the fact that he had been drinking heavily prior to the shooting. The district court instructed the jury on first-degree murder, second-degree murder, voluntary manslaughter, involuntary manslaughter, self-defense, and the defense of voluntary intoxication. The jury found Lewis guilty of second-degree murder. The district court sentenced Lewis to a term of 10-20 years. Lewis appealed, claiming the district judge erred by (1) failing to suppress the videotaped confession and (2) finding that his confession was voluntary.
In an unpublished opinion, a divided panel of .the Court of Appeals affirmed Lewis’ conviction. Relying upon Oregon v. Elstad, 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285 (1985), and Michigan v. Mosley, 423 U.S. 96, the majority held that the trial court committed harmless error by allowing the jury to view', the preMiranda segment of the second interview' which contained Lewis’ initial incriminating statement to Mills: The majority observed that the defendant’s post -Miranda statement detailed the same facts and sentiments expressed in defendant’s pre-Miranda statements and that Lewis had admitted to shooting the victim when testifying at trial. Based on these findings, the majority concluded that the admission of the post-Miranda statement was proper and found beyond a reasonable doubt that the admission of defendant’s preMiranda statements was harmless error that did not change the result of the trial.
In a dissenting opinion, Judge Becker stated that the conduct of the investigating officers in this case could be distinguished from the police, conduct in Mosley and Elstad.
The dissent noted that in Mosley, although the defendant was interviewed twice, each interview was about a separate crime and the defendant was advised of his Miranda rights before each interview'. The dissent observed that in Elstad, fire defendant’s preMiranda incriminating statement resulted from a single general inquiry of the officer while the defendant was in his residence. The officer was at the defendant’s residence with a warrant for his arrest for a burglary. The officer stated to the defendant his belief that the defendant was involved in a burglary. The defendant- responded, ‘Tes, I was there.” Neither the environment nor the officer’s-conduct was coercive. There was no persistent, prolonged .interrogation. The defendant was then transported to the sheriff’s headquarters and advised of his Miranda rights. After waiving his rights, the defendant gave a full statement. The United States Supreme Court found the post-Miranda statement admissible.
The dissent concluded that the circumstances confronting Lewis were considerably different than the circumstances in Elstad. Lewis was taken into custody at 2:00 a.m. Three hours later, while in custody, he was interrogated by Wywadis in a manner that both the trial court and the majority of the Court of Appeals found to be “reprehensible.” Later Mills encouraged Lewis to talk and implied that a request for an attorney would not be in Lewis’ best interest.
The dissent pointed out that after Lewis was in custody 10 hours, the second interview began with Mills soliciting unwarned and inadmissible statements from Lewis. Mills stated at the onset of the interview that Lewis was participating voluntarily. Lewis did not acknowledge that he had voluntarily consented to the interview. After 40 minutes of continued custodial interrogation, Lewis made an incriminating statement. Mills then informed Lewis of his Miranda rights and asked Lewis to clarify his statement.
The dissent noted that in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), defendant Westover’s confession was barred because a prolonged, un-Mirandized, custodial interrogation preceded a Mirandized interrogation that produced a confession. The Court found that the eventual reading of the Miranda warnings to an accused in custody did not erase the pressure from the first unlawful interrogation. 384 U.S. at 496-97.
The dissent observed that admission of the post-Miranda statements would condone the conduct of the officers. It stated that law enforcement would be without interrogation restraints as long as a Miranda warning was given after an inadmissible confession was obtained by the police. It noted that an arrestee’s rights guaranteed by the Fifth Amendment and Miranda are not bom upon being advised of the rights, but exist upon arrest. In applying the factors set forth in State v. Graham, 247 Kan. 388, 395, 799 P.2d 1003 (1990), the dissent concluded that the post-Miranda statements by Lewis were tainted by the inadmissible pre-Miranda statements and concluded those rights had been violated as to Lewis. See State v. Gress, 210 Kan. 850, 504 P.2d 256 (1972).
The dissent was unable to find beyond a reasonable doubt that the admission of the second videotaped interview into evidence was harmless error. It pointed out that had the confession been suppressed, Lewis could have re-evaluated his decision to testify. When confronted with his confession, he had little choice but to try to counter it with his own testimony. The dissent noted that facts existed to attempt to impeach the testimony of the eyewitnesses. The dissent concluded Lewis’ constitutional rights were violated because his conviction was based in whole or in part on an involuntary confession, even where there was ample evidence aside from the confession to support the conviction, and supported reversal of the trial court.
This court accepted Lewis’ petition for review.
Failure to Suppress Incriminating Statements
Lewis claims: (1) his incriminating statements were taken in violation of Miranda and (2) were involuntary. Lewis asserts the police violated his rights under the Fifth Amendment and coerced his confession by failing to inform him of his right to remain silent, using unconstitutional interrogation techniques, and failing to give the Miranda warnings until after eliciting his confession. Lewis uses the same reasoning to support each claim. Lewis argues the Court of Appeals erred in finding that the district court’s admission of the pre-Miranda portion of his second interview was harmless error.
The State argues that the district court properly admitted Lewis’ confession because Lewis (1) was properly informed of his right to remain silent; (2) failed to unambiguously state his desire to remain silent; and (3) voluntarily waived his Fifth Amendment right to silence subsequent to his incriminating statement. The State concludes that under the totality of the circumstances, Lewis’ confession was voluntary.
The Fifth Amendment 6- Miranda
The Fifth Amendment to the United States Constitution states that “[n]o person shall be . . . compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.” In Miranda v. Arizona, 384 U.S. 436, the United States Supreme Court dealt with the admis sibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures to assure that the individual is aware of the privilege against self-incrimination.
The Court noted in Miranda that if a person in custody is to be subjected to interrogation, the person must first be informed in clear and unequivocal terms that he or she has the right to remain silent. The Court held that when an individual is taken into custody or otherwise deprived of his or her freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. The Court stated that procedural safeguards must be employed to protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required.
The Supreme Court set out a procedure for warning individuals in police custody prior to questioning. The Court stated that the individual taken into custody must be warned prior to any questioning that he or she has the right to remain silent, that anything he or she says can be used against him or her in a court of law, that he or she has the right to the presence of an attorney, and that if he or she cannot afford an attorney one will be appointed for him or her prior to any questioning if he or she so desires. The Miranda Court determined that the opportunity to exercise these rights must be afforded to each individual throughout the interrogation. After such warnings have been given, and such opportunity afforded him or her, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. The Court found that unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against the individual. See generally State v. Fritschen, 247 Kan. 592, 607-08, 802 P.2d 558 (1990); State v. Taylor, 231 Kan. 171, Syl. ¶ 1, 642 P.2d 989 (1982).
The United States Supreme Court reiterated the rule established in Miranda in Oregon v. Elstad, 470 U.S. 298. The Court stated that “unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless he excluded from evidence under Miranda .” (Emphasis added.) 470 U.S. at 307. See Michigan v. Mosley, 423 U.S. at 100.
In Miranda, the United States Supreme Court set a bright line rule that a suspect who has responded to uncoercive questioning by a police officer while in custody and without being given Miranda warnings is not incapable of waiving his rights and later confessing. In Westover v. United States (one of the cases consolidated into the Miranda decision, see 384 U.S. 436), a case similar to this case, a confession was suppressed because a prolonged, un-Mirandized, custodial interrogation preceded a Mirandized interrogation that produced a confession; the-Court found the eventual reading of the Miranda warnings did not ease the pressure from the first unlawful interrogation. 384 U.S. at 496-97.
In Mosley, the Supreme Court found that the admissibility of an incriminating statement obtained after a person in custody had initially decided to remain silent and later gave an incriminating statement depended upon whether the person’s right to cut off questioning was scrupulously honored by the police. Mosley was questioned about a robbery; he exercised his right to silence after being advised of his Miranda rights. The police ceased interrogation. Hours later, a different police officer interviewed the defendant about a homicide. The officer re-Mirandized the defendant and the defendant made an admission. 423 U.S. at 97-98. The Mosley court addressed whether the second interview violated the defendant’s prior exercise of the right to remain silent. The court focused on this language in Miranda:
“ ‘Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point, he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.’ ” 423 U.S. at 100 (quoting Miranda, 384 U.S. at 473-74).
The Mosley court found that the statement of an accused made during custodial interrogation after invoking the right to remain silent will only be admissible 'when the suspect’s right to terminate questioning has been “scrupulously honored.” 423 U.S. at 104. The Court used these circumstances to analyze whether Mosley’s right to remain silent had been honored: Police told Mosley prior to the first interview he was under no obligation to answer questions and could remain silent; Mosley stated he understood his Miranda rights and signed a Miranda form; the initial interview ceased upon Mosley stating he did not want to talk; two hours elapsed between the interviews, and Miranda warnings were again read to Mosley prior to the second interview; the second interview focused solely on a different crime than that discussed in the first interview. 423 U.S. at 104-06.
The Court’s analysis placed great emphasis upon the fact Mosley had received Miranda warnings prior to each interview. See 423 U.S. at 106-07. Justice Stewart wrote: “The cardinal fact of Westover — the failure of the police officers to give any warnings whatever to the person in their custody before embarking on an intense and prolonged interrogation of him — was simply not present in this case.” (Emphasis added.) 423 U.S. at 107. The Court found that under the circumstances, Mosley’s constitutional rights had been honored and his statements were admissible. 423 U.S. at 107.
In Oregon v. Elstad, 470 U.S. 298, the bright line role announced in Miranda was later modified in that a subsequent administration of the Miranda warnings to a suspect who had given a voluntaxy but unwarned statement renders the statement admissible if the suspect makes a rational and intelligent choice to waive his or her right to rexnain silent. Prior to Elstad, this court had held that a confession obtained after a Miranda warning may be inadmissable into evidence as “fruit of the poisonous tree” if the earlier statements were obtained by interrogation without the necessary advice of constitutional rights. State v. Gress, 210 Kan. 850, Syl. ¶ 1, 504 P.2d 256 (1972); State v. Lekas, 201 Kan. 579, 587, 442 P.2d 11 (1968).
In Elstad, the defendant was arrested for burglary of a neighbor’s home. A detective asked Elstad if he knew why the officers were there. Elstad answered, “No.” The detective stated they believed that Elstad was involved in the burglary. Elstad then responded, ‘Tes, I was there.” Elstad had incriminated himself prior to being Mirandized. After being taken to the police station and read his Miranda rights, he signed a written confession. Elstad conceded the officers made no threats or promises prior to his confession. 470 U.S. at 301-02.
The Oregon court suppressed Elstad’s confession, following the rationale which had been applied in. Kansas. The United States Supreme Court disagreed. The Supreme Court stated the immunity provided an individual whose pre-Miranda admissions tainted his post-Miranda confession came at “a high cost to legitimate law enforcement activity’’ while providing little protection to a defendant’s interest in not testifying against himself. 470 U.S. at 312.
The Supreme Court stated that a remark made by an individual suspected of committing a crime prior to administration of Miranda warnings does not prevent the admission of post-Miranda incriminating statements given without coercion or in an attempt to undermine a suspect’s- ability to exercise free will. Justice O’Connor wrote: “When neither the initial nor the subsequent admission is coerced, little justification exists for permitting the highly probative evidence of a voluntary confession to be irretrievably lost to the factfinder.” 470 U.S. at 312. Justice O’Connor further noted the difficulty in knowing what causes a person to speak, stating confessions can be linked to such events as discussions with a minister or a parent. 470 U.S. at 314. The primary consideration to be given both the pr e-Miranda admissions and post-Miranda admissions is the voluntariness of the statements. 470 U.S. at 318. The parties conceded that the defendant’s initial statement, despite being voluntary, was not admissible because it preceded advisement of the Miranda rights. 470 U.S. at 302.
The first question in an analysis of the right to remain silent is whether an individual was undergoing “custodial interrogation.” See State v. Fritschen, 247 Kan. 592, Syl. ¶ 1. The State concedes that Lewis was arrested and undergoing custodial interrogation. The State argues Lewis was made aware of his Miranda rights during the initial interrogation. It claims that Detective Wywadis indicated to the defendant that he could remain silent when Wywadis told Lewis near the end of the first interview “to exercise his right; zip it” or answer the questions. The State claims the second warning of the right to remain silent occurred when Lewis was being booked as a prisoner and Detective Mills informed Lewis that he (Lewis) would be getting an attorney in the next day or two.
The district court’s findings do not support the State’s claim that Lewis was warned of his rights prior to the second interview. It found that the first time Lewis had been informed of his Miranda rights was after he made the incriminating statement to Mills during the second interview. Even if we accept the State’s claim that Lewis was made aware of his right to remain silent, it is important to note that neither Wywadis, Broxterman, nor Mills informed Lewis, as required by Miranda, that a request for an attorney would be honored and questioning would cease until an attorney was present until the police had elicited the incriminating statement.
The State argues Lewis’ conversation with Mills was voluntary and constituted a waiver of his Miranda rights. The State fails to acknowledge that Lewis had not been apprised of his Miranda rights when he acceded to Mills’ request for a second interview and confessed to shooting McFarland. It was during the second interview, after Lewis stated he “smoked” the victim, that Mills stated to Lewis that he needed to inform Lewis of his rights because he (Mills) needed to ask Lewis further questions and obtain more information about the shooting.
The admissibility of statements made by a defendant before Miranda warnings are given depends on whether the statements are the result of a custodial interrogation or an investigatory interrogation. Custodial interrogation under Miranda refers not only to express questioning but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminatory response from the suspect. See State v. Taylor, 231 Kan. 171, Syl. ¶¶ 1, 2.
The State asserts that the statement was admissible under the rationale of Elstad. We disagree. The Elstad Court decided a confession made prior to administration of the Miranda warnings does not prevent tire admission of statements following reading, and waiver of the Miranda rights when there is no coercion or an attempt to undermine a suspect’s ability to exercise free will. 470 U.S. at 312. Four factors indicate the voluntariness of a confession: (1) the manner and duration of questioning; (2) the suspect’s ability to communicate with others if requested; (3) the suspect’s intellect, age, and background; and (4) the fairness of the interrogating officers. State v. Graham, 247 Kan. at 395.
The Supreme Court has not overruled the general rule that any statement made by a person during custodial police interrogation cannot, over the person’s objection, be admitted in evidence against the person at trial, even though the statement may in fact be wholly voluntary, unless the police, before interrogation, informed the person that he or she has a right to remain silent, that any statement the person makes may be used as evidence against that person, and that the person has a right to the presence of an attorney, either retained or appointed.
An exception to the general rule is that
“absent deliberately coercive or improper tactics [by police] in obtaining an initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement while in custody may remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his or her rights.” Oregon v. Elstad, 470 U.S. 298, 314, 84 L. Ed. 2d 222, 105 S. Ct. 1285 (1985). See Michigan v. Mosley, 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975).
In determining whether a confession is voluntary, a court is to look at the totality of the circumstances. The burden of proving that a confession or admission is admissible shall be on the prosecution, and the required proof is by a preponderance of the evidence. When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely and voluntarily given, and admits the statement into evidence at the trial, this court accepts that determination if it is supported by substantial competent evidence.
Lewis did not want or request to speak with the officers. Lewis was 19 years old when questioned, and he demonstrated low to average intellect. He had a juvenile burglary conviction and two misdemeanor convictions. The Court of Appeals found that the manner of questioning during the first interview and part of the second interview was deliberately coercive and that improper tactics had been used by the police.
The trial court and the Court of Appeals correctly held that the first videotaped interview was not admissible. On appeal the first interview is relevant, however, to show the police efforts to obtain an incriminating statement during the first interview even after Lewis told the police he had nothing to say. In response, the police used deliberate coercive tactics in an attempt to obtain a statement from Lewis. Wywadis yelled at Lewis, made references to anal sex, and pressured Lewis to talk. At the conclusion of the first interview, Mills, who was aware that Lewis had refused to talk with the other officers, contacted Lewis and encouraged him to agree to a second interview. At the second interview, Mills continued the use of improper tactics to overcome Lewis’ resistance to talk and obtain an incriminating statement from Lewis. Mills deliberately failed to warn Lewis of his Miranda rights until Mills had obtained the incriminating statement from Lewis.
The failure of the officers to administer the Miranda warnings to Lewis created the presumption of compulsion. Not only has the State failed to overcome the presumption of compulsion, the Court of Appeals found that the police used deliberately coercive and improper tactics in violation of the Fifth Amendment to obtain Lewis’ initial incriminating statement.
The procedural safeguards of Miranda are to be timely applied. See, e.g., State v. Goering, 8 Kan. App. 2d 338, 656 P.2d 790, rev. denied 233 Kan. 1093 (1983); State v. Holt, 2 Kan. App. 2d 1, 5, 573 P.2d 1117 (1978). When the police fail to warn a person in custody of the right to remain silent and use deliberately coercive and/or improper tactics in obtaining an incriminating statement, the privilege against self-incrimination is violated and the statement cannot be used as evidence against the individual.
Lewis, who had been arrested and in custody for approximately 10 hours, was by design not warned of his rights as required under Miranda until after he incriminated himself during the second interview with the police. The police failed to “scrupulously honor” Lewis’ desire not to talk and faded to inform Lewis of his Miranda rights until he had made the incriminating statement. Under the circumstances, the police used deliberately coercive and improper tactics to obtain the statement. Applying the rationale of Mosley and Elstad to the facts of this case does not support the decisions of the trial court or the Court of Appeals in admitting the videotaped confession.
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The opinion of the court was delivered by
Allegrucci, J.:
This is the direct appeal by the defendant, Roy E. Humphrey, from juiy convictions upon retrial of one count of first-degree murder, two counts of aggravated assault, and one count of unlawful possession of a firearm. His convictions of one count of first-degree murder, one count of aggravated assault, two counts of attempted first-degree murder, and one count of unlawful possession of a firearm were reversed by this court, and the case was remanded for a new trial in State v. Humphrey, 252 Kan. 6, 845 P.2d 592 (1992) (Humphrey I). In sentencing, the district court invoked the Habitual Criminal Act, and the result is a term of three consecutive life sentences, which is to run consecutive to two consecutive 9- to 30-year terms and a 3- to 10-year term from which Humphrey was paroled at the time of the present offenses.
In late November 1987, Tony Gray and his wife, Tina, arrived in Garden City from California. They intended to assist Roy Humphrey in the manufacture of methamphetamine. Several weeks later, Tina’s stepbrother, Gary McFadden, arrived to assist in the drug operation.
Sandra Bell lived with her children in a trailer behind Humphrey’s house. She sold cocaine for him. Humphrey was on parole, and he was not supposed to own a gun. He traded cocaine for a 9-mm handgun, and Bell signed the receipt. Humphrey then carried the gun in a shoulder holster, which he wore most of the time.
Humphrey and McFadden did not get along with one another. On several occasions Humphrey said that he was going to “dust” McFadden, which meant that he was going to kill him. At trial, several examples of Humphrey’s threatening McFadden with the gun were given.
On December 21, 1987, Tina Gray and Humphrey had been taking drugs in large amounts for three days and had not slept. Throughout the evening Humphrey, the Grays, Bell, and two other women who were present at the house, Jamie Jones and Pat Mendivil, were injecting cocaine, drinking liquor, and smoking marijuana.
At about 3 a.m. on December 22, Humphrey decided it was time to make the methamphetamine even though they had not received one of the necessary chemicals. Humphrey held his gun on the Grays and Jones, as they carried chemicals and glassware from the bedroom to the kitchen. Tony Gray testified that during this process Humphrey seemed aggressive and quite dangerous. When McFadden returned from delivering some drugs for Humphrey, Tony let him in the back door and warned him not to bother Humphrey. McFadden spoke to Humphrey, gave Tony a light off his cigarette, and sat down in a chair.
All evening, Humphrey had argued with Jones; he accused her of being unfaithful, stealing from him, and not-taking care of his children. He hit her, kicked her, spit on her, and pointed the gun at her. Several times he told her he ought to kill her. Soon after McFadderis arrival, Humphrey pointed his gun at Jones’ head and she screamed, “No.” Humphrey said she did not need to be worried because he was not going to kill her, he was only going to beat her, but he was going to kill the others. He turned and fired once. The bullet hit McFadden in the head, killing him.
Humphrey turned the gun toward Tony, who lunged at Humphrey and pinned his arm down. Jones took the opportunity to leave. Jones testified that she was not scared when Humphrey was holding the gun near her head because she did not believe he would use it.
Knowing that he could not hold Humphrey forever, Tony tried to redirect Humphrey’s attention by suggesting that they make the methamphetamine. Humphrey, however, said that he would have to kill the Grays because they were witnesses. When Humphrey got free, he asked Tina if she wanted him to kill McFadden “again.” He then made the Grays go outside and walk toward a field behind the house. Humphrey walked behind, pointing the gun at them. Tina asked if she could overdose on drugs rather than be shot, and Humphrey agreed. While Humphrey was retrieving cocaine from a bag he was carrying, Tony was able to get the gun away from Humphrey.
Disarmed, Humphrey returned to the house, where he fell asleep on the couch across the room from McFadden’s body. Tony went to Bell’s trailer to tell her to get her children and leave. They took a cab to a motel.
Sometime during the day of December 22, Humphrey wrapped McFadden’s body in a curtain and loaded it into a pickup truck which was parked behind his house. The following morning he moved the body to the back of a borrowed van. With his friend, Jesse James Jones, Humphrey buried the body in a sand pit area not far from his house.
In January 1988, Humphrey was taken into custody on a warrant issued in another case. When Mendivil went to see him in jail, Humphrey told her where to find McFadden’s body, directed her in drawing a map, and named a person whom she should ask to move the body out of state. After the person designated by Humphrey refused the request, Mendivil took the map to the police.
Humphrey testified at trial. He did not deny shooting McFadden. Instead, he stated that he had not intended to shoot him and that the killing was accidental. He testified that he did not realize McFadden was in the house until after the shot was fired. Jamie Jones testified that she, too, was unaware of McFadden’s presence until after Humphrey turned and fired the gun. Humphrey testified that, as Jamie Jones was leaving the house, he told her to call the police.
The first issue raised is whether Humphrey was denied due process by the State’s failure to disclose evidence to him. Humphrey contends that two pieces of evidence were not disclosed by the State until trial, that they were exculpatory, that nondisclosure resulted in his not employing potentially fruitful lines of investigation and defense, and that there is a reasonable probability that the result of the proceeding would have been different if the evidence had been disclosed in a timely manner. The first evidence is the testimony of Pat Mendivil that on the morning of December 22, she telephoned Humphrey’s house three times and the Grays answered. The second is a letter written by Mendivil to Detective Utz and sent in March 1989. The State denies that the evidence was suppressed or withheld, that the evidence was exculpatory, and that Humphrey was prejudiced.
Defense counsel told the district court judge that he learned of three telephone calls when he interviewed Mendivil the night before the fourth day of the trial, when she was called as a defense witness. Defense counsel represented that the officers knew about the phone calls much earlier. The prosecutor, not the same person who tried the case the first time, stated that he first heard of the telephone calls on the morning of the second day of trial, when the State called Mendivil as a witness. The prosecutor also reported that when he asked if she was sure, she said that she was “so messed up” at that time that she could not be sure when it happened. The district court denied Humphrey’s motion to dismiss for failure to disclose on the ground that defense counsel should have called the matter to the court’s attention before rather than after calling Mendivil and questioning her about the telephone calls.
In United States v. Bagley, 473 U.S. 667, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985), the Supreme Court decided that due process requires the prosecution to disclose material evidence favorable to the accused. The court stated: “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” 473 U.S. at 682. The Supreme Court has rejected any distinction between impeachment and exculpatory evidence; both are evidence favorable to the accused for the purpose of the disclosure requirement. 473 U.S. at 676-77. In State v. Carmichael, 240 Kan. 149, Syl. ¶ 1, 727 P.2d 918 (1986), this court stated: “To justify a reversal of a conviction for failure to disclose evidence, the evidence withheld by the prosecution must be clearly exculpatory and the withholding of the evidence must be clearly prejudicial to the defendant.” To be clearly prejudicial, the evidence must prejudice the defendant’s ability to defend against the charges. State v. Burnison, 247 Kan. 19, 27, 795 P.2d 32 (1990). Applying these principles to particular circumstances, the court has decided that if the evidence becomes available to defendant during trial and he is not prejudiced in defending against it, the prosecution’s failing to disclose the evidence earlier will not constitute a due process violation. State v. Wacker, 253 Kan. 664, 673-74, 861 P.2d 1272 (1993). It follows that the State’s failure to disclose exculpatory evidence before trial is not reversible error where the evidence becomes available to the defendant during trial and does not prejudice the defendant’s ability to defend against the charges.
Mendivil’s testimony about telephone calls she made to Humphrey’s house at approximately 5 a.m. on December 22 became known to defense counsel during trial. Mendivil was called as a witness by both parties. When called as a defense witness, she testified that while she was taking a shower in Bell’s trailer between 3 and 4 a.m. she heard a loud bang. Hoping to get some cocaine before she left to go home, Mendivil knocked on the door of Humphrey’s house. She was told by people inside the house, whom she thought sounded like Tony and Tina Gray, that Humphrey was asleep. She got home at approximately 4:45 a.m., checked on her daughter, and then telephoned Humphrey’s house. Tony told her that everyone was asleep and hung up. Mendivil immediately called again, and Tina told her that everyone was asleep and hung up. Mendivil immediately called again, and Tony told her to quit calling and hung up.
Humphrey contends that this testimony is exculpatory “because it clearly refuted the Grays’ testimony in which [they] stated that they were in imminent fear for their lives immediately after the shooting and fled at the first available moment.” In fact, both Grays testified that after McFadden was shot and before they left, several incidents occurred: Humphrey was disarmed, he had fallen asleep on the couch, Bell was alerted, her children were awakened and dressed, and other preparations for departure were made. Thus, evidence of the Grays’ answering Humphrey’s telephone at 5 a.m. would not necessarily impeach their testimony.
With regard to prejudice, the contention continues, “[h]ad defense counsel been able to effectively cross-examine the Grays con ceming these phone calls, there clearly is sufficient probability to undennine confidence in the outcome of this case.” This seems to mean that the credibility of the Grays could have been called into serious question by cross-examination. Tony Gray was not a witness. He died before Humphrey’s retrial, and his testimony from an earlier proceeding was read to the jury by the State. Quite obviously defense counsel could not have cross-examined Tony Gray. Tina Gray had been released from the State’s subpoena before Mendivil testified for the defense. Humphrey argues that “as a practical matter it was impossible to recall her,” but the State disputes the argument and points out that Humphrey made no effort to recall her.
It also should be noted with regard to prejudice that there, is little if any likelihood that Mendivil’s testimony, even if fully as effective for impeaching Tina’s testimony as Humphrey advocates, would have any bearing on the jury’s findings on the murder count. Humphrey did not deny shooting McFadden. Humphrey testified that he accidentally shot him. The jury obviously did not believe him. Even if it is assumed for the sake of this argument that Tina testified on direct examination that they fled at the first possible moment after the shooting and on cross-examination their departure was shown to be more leisurely, any effect the modification might have had on the homicide count would be negligible, if any.
Humphrey was found guilty by the jury of premeditated first-degree murder of Gary McFadden, aggravated assault of Jamie Jones, aggravated assault of Tony Gray, and unlawful possession of a firearm. He was acquitted of aggravated assault of Tina. Humphrey was sentenced to consecutive terms of 9 to 30 years on the aggravated assault counts. In addition, Humphrey was sentenced to a term of three consecutive life sentences for the. murder, which is to run consecutive to the terms for aggravated assault, the terms from which he was paroled at the time of the present offenses, and to a term of not less than 3 and not more than 10 years’ imprisonment for unlawful possession of a firearm. With a term of three consecutive life sentences, which was to run consecutive to unspecified previous terms, and to 3 to 10 years being unaffected, it cannot be said that downward modification or even elimination of the sentences for aggravated assault would likely make a difference in Humphrey’s circumstances. Humphrey was 44 at the time of the sentencing in this case. We do not find prejudicial error has been shown.
The second piece of evidence which Humphrey complains was not disclosed to him is a letter written by Mendivil to Detective Utz and sent in March 1989, when she was living in California. He seems to be contending that the significance of the letter is that it is evidence that McFadden was still alive at 5 a.m. on December 22 and that he and Humphrey were in the same room and getting along, or at least speaking with one another. Indeed, in the letter Mendivil stated that she drove home from Humphrey’s around 4:30 a.m. on December 22. She further stated that at approximately 5 a.m. she telephoned Humphrey’s house and McFadden answered. McFadden said he would check to see whether Sandra Bell was asleep, and Mendivil then heard Humphrey say to tell her that Bell was asleep. Then Tina got on the phone and told her to call back later in the day because everyone was going to sleep. Mendivil wrote that she waited until approximately 6:30 a.m. to call again and that Jamie Jones told her to call later because Humphrey was asleep.
Thus, the real significance of this narrative portion of the letter seems to be that it shows that Mendivil told widely and materially varying versions of leaving Humphrey’s house and making telephone calls. As the State suggests, her credibility is quite dubious. The record shows, however, that the letter was not admitted into evidence, and the only portions of it which were read to the jury did not include the narrative of events on December 22. The State asked her about the letter in an effort to show that her attitude toward Officer Utz had shifted from time to time. The prosecutor told the district court judge that the letter had not been provided to defense counsel during discovery because it was a personal letter to Officer Utz which was not exculpatory and had no relevance until defense counsel elicited Mendivil’s testimony about her perceived mistreatment by police, Officer Utz in particular. The district court agreed that the letter was not exculpatory.
On appeal, Humphrey seems to treat the letter as if it and Mendivil’s testimony about the events of December 22 were consistent and favorable to his defense. In fact, the two versions she gave are contradictory and completely incompatible. Humphrey has taken the position that Mendivil’s testimony about Gray answering his telephone at 5 a.m. is exculpatory, and he elicited the testimony when she was called as a defense witness. There would seem to be no advantage to the defense to introduce a very different story which Mendivil told closer to the date of the murder. Likewise, there would seem to have been no advantage to trial preparation and strategy if defense counsel had received a copy of the letter during discovery.
Applying the standards recited above, we conclude that this issue is without merit. The evidence in question, especially when the testimony and the letter are considered together, is not clearly exculpatory. Moreover, it became known to Humphrey during trial. Thus, unless it appears that Humphrey was prejudiced in defending against the evidence, the State’s failing to disclose it earlier cannot constitute a violation of due process. We find no prejudice in the circumstances of this case.
Humphrey next complains that his cross-examination of Tina Gray about her use of methadone at the time of trial was cut short. The district court’s sustaining the prosecutor’s objections during the following exchange is at issue:
“Q. Mrs. Gray, are you currently under die influence of any drugs or alcohol?
“A. No, I’m on — I’m not on drugs. I take Methadone.
“Q. Methadone. What is Mefliadone?
“A. It is a maintenance program.
“Q. Maintenance program. How long have you been on Methadone?
“MR. BORK: Objection, Your Honor, immaterial.
“THE COURT: Overruled.
“MR. BORK: It is immaterial. May I inquire, Your Honor?
“THE COURT: Of me? Overruled. Sit down.
“A. Oh, approximately off and on since ‘87. ‘88. No, ‘88.
“Q. Okay. And what is — you say Mefliadone is a maintenance program, what does that mean?
“A. It’s — well, I was on it prior to the ‘91.
“MR. BORK: I object because it is immaterial.
“THE COURT: Okay. Sustained.
“Q. Okay. You are currently on Methadone, is that correct?
“A. Correct.
“MR. BORK: Objection. I just objected to this, Your Honor.
“THE COURT: Well, asked and answered. Sustained.
“Q. What is Methadone?
“MR. BORK: Objection as immaterial. That’s been asked and answered?
“THE COURT: Sustained.
“MR. JOHNSON: Your Honor, it hasn’t been answered.
“THE COURT: She said it was a maintenance program. She answered.
“Q. What is a maintenance program?
“A. It is to maintain you on Methadone.
“MR. BORK: Objection as immaterial.
“MR. JOHNSON: I think it goes directly to her — (interrupted)
“THE COURT: Goes to her what?
“MR. JOHNSON: Her ability to recall.
“THE COURT: Sustained.
“Q. Does Methadone in any way interfere with your ability to concentrate or recall?
“MR. BORK: Objection lack of foundation.
“THE COURT: Sustained.
“MR. JOHNSON: Your Honor, may I have one minute to confer with my client and then I think we’ll be done. Your Honor, we have no further questions.”
Humphrey contends that this is a legal question of which the court has an unlimited scope of review. The State counters that the standard of review is abuse of discretion. The State cites State v. Peckham, 255 Kan. 310, 318-19, 875 P.2d 257 (1994), in which defense counsel was not permitted to cross-examine a witness about her prior drug use and participation in treatment programs. We noted that the admission of evidence is discretionary and concluded that the district court judge had not abused his discretion in refusing to permit the cross-examination.
Humphrey also frames this issue as a matter of constitutional proportions. Humphrey contends that, because defense counsel was not permitted to cross-examine Tina Gray about her methadone use, he “was denied effective assistance of counsel, compulsory process and his right to effectively confront and cross-examine witnesses at trial. He was also denied his right to due process and a fair trial.” In Humphrey I, he argued that his constitutional right to effective assistance of counsel and confrontation of witnesses was violated by defense counsel’s cross-examination of Mendivil being restricted. 252 Kan. at 16. He was attempting to show that she had received something from the State in exchange for her testimony. After discussing various protections afforded by the Sixth Amendment, this court concluded:
“Humphrey should have been afforded the opportunity to vigorously test Mendivil’s credibilily by cross-examining her about her relationship with the police. This might have led to a disclosure of an implied threat made by Utz. Rather than this error being ineffective assistance of counsel, we find it is trial court error which rendered trial counsel ineffective through no fault of counsel.” 252 Kan. at 17.
Thus, this court rejected the characterization of this issue as a Sixth Amendment matter and treated it as an evidentiary matter which rests in the sound discretion of the district court.
Humphrey strove to show that Tina Gray s use of methadone at the time of trial affected her ability to recall the events about which she was testifying. This court has held that evidence of drug use is admissible for the purpose of discrediting a witness where it is shown that the witness is under influence of the drug at the time of trial. State v. Nixon, 223 Kan. 788, Syl. ¶ 2, 576 P.2d 691 (1978). Here, Tina Gray testified that she was on methadone rather than drugs. It seems likely that the distinction being drawn by the witness was between licit and illicit drugs, which was not responsive to defense counsel’s question. Methadone, like aspirin, is an analgesic. An analgesic is defined as a medication that reduces or eliminates pain. A drug is a substance used as medicine in the treatment of disease. See The American Heritage Dictionary of the English Language 47 (1970). Thus, contrary to Tina’s testimony, methadone is a drug. Once Tina answered in a way which conceivably could have been misleading, it would have been prudent for the district court to permit a line of questioning intended to set the record straight about the nature of methadone. The failure to do so, however, was not error.
The important question was whether Tina’s use of methadone adversely affected her ability to testify about events which occurred more than 5 years previously. When defense counsel asked Tina, “Does Methadone in any way interfere with your ability to concentrate or recall?” the prosecutor’s objection on the ground that no foundation had been laid for the testimony was sustained. Defense counsel did not ask any more questions of Tina in an effort to lay a foundation. Moreover, Tina probably was not the right witness from which to get objective data about methadone. If defense counsel believed that the information would have been useful in the defense, he could and should have called an appropriate witness or devised some other way to introduce it during the defendant’s case.
In addition, any error in restricting cross-examination of Tina was harmless. As the State points out, any lapses in her recollection due to the use of methadone at the time of the second trial could have been as effectively brought to the jury’s attention by the use of her testimony at the preliminary hearing. Further, there was abundant evidence of Humphrey’s guilt exclusive of Tina’s testimony.
Humphrey also contends that it was error requiring reversal for the trial court to admit evidence of frequent arguing and physical blows between him and Jamie Jones in the 4 or so years before December 22, 1987. According to Humphrey, the evidence included Jamie’s calling the police and Humphrey’s being convicted of battering her on one occasion. The evidence was admitted over defense counsel’s repeated objections.
The evidence to which Humphrey objects was admitted toward the end of a line of questioning which began when Jamie testified that she and Humphrey had gotten into an argument during the evening before McFadden was killed. She said that they argued frequently and hit each other. She said that, as a result, she had called the police “about twice” and Humphrey had served time in the county jail. The prosecutor asked whether Humphrey had been charged with battery, but Jamie responded that she was not certain what the charge was.
The parties agree that the admission of evidence lies within the sound discretion of the district court. State v. Carmichael, 240 Kan. at 157. Humphrey argues that the State’s introducing evidence of a prior crime once the violent nature of their relationship already had been established could serve only the purpose of inflaming and prejudicing the jury. He further contends that the failure of the trial court to give an instruction limiting the purpose of the jury’s consideration of the battery conviction to the purposes specified in K.S.A. 60-455 requires reversal.
The State contends that no limiting instruction was required because the evidence was admissible independent of K.S.A. 60-455. Here, Humphrey was charged with aggravated assault of Jamie Jones, but she denied being frightened when he had the gun to her head. She downplayed the seriousness of the incident by saying that the gun was up to her face but pointing up rather than at her. The State impeached her testimony with her earlier written áffirmative response to the question, “When Roy pointed the gun at you, did you think he was going to hurt you and if so why?” Her full response was: ‘Tes, because we had been arguing before and I’ve been hurt, abused, scratches on my eye.” It is the State’s position that evidence of the continuing course of violent conduct between Humphrey and the victim was useful to the juiy’s weighing Jamie’s conflicting accounts. The State relies on State v. Jones, 247 Kan. 537, 547, 802 P.2d 533 (1990), where the court stated:
“We have recognized several instances where evidence of prior crimes or civil wrongs may be introduced into evidence independent of K.S.A. 60-455, including evidence to establish the relationship or continuing course of conduct between a defendant and the victim. Evidence of prior acts of a similar nature between a defendant and a victim is admissible independent of K.S.A. 60-455 if the evidence is not offered for the purpose of proving distinct offenses but, rather, to establish the relationship of the parties, the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the complaining witness as to the act charged. PIK Grim. 2d 52.06, Comment, III, B(4), p. 70. See State v. Gray, 235 Kan. 632, Syl. ¶ 1, 681 P.2d 669 (1984); State v. Wood, 230 Kan. 477, 479, 638 P.2d 908 (1982); State v. Crossman, 229 Kan. 384, 387, 624 P.2d 461 (1981).”
See State v. Bowman, 252 Kan. 883, 889, 850 P.2d 236 (1993). We agree that Jones is controlling and find that the trial court did not err in admitting the evidence.
Humphrey next contends that the district court’s instruction on voluntary intoxication was erroneous. The district court gave the following instruction on voluntary intoxication:
“Voluntary intoxication is not a defense to a criminal charge, but when a particular intent or other state of mind is a necessary element of the offense charged, intoxication may be taken into consideration in determining whether the accused was capable of forming the necessary intent or state of mind.
“Voluntary intoxication is not a defense to a charge of Aggravated Assault or unlawful possession of a firearm.”
Humphrey complains that the instruction differs from the ones he requested as well as from the pattern instruction. The pattern instruction that Humphrey contends would have been appropriate is PIK Crim. 2d 54.12-A (1992 Supp.), which states: “Voluntary intoxication may be a defense to the charge of (specific intent crime charged), where the evidence indicates that such intoxication impaired a defendant’s mental faculties to the extent that he was incapable of forming the necessary intent (set out specific intent element of the crime).”
Quoting this court’s rule from State v. Wilson, 240 Kan. 606, 610, 731 P.2d 306 (1987), Humphrey first argues that the trial court should not substitute its own instruction for a pattern instruction “ unless there is some compelling and articulable reason not to do so.’ ” However, Humphrey also requested a voluntary intoxication instruction which deviated from the pattern instruction. He also concedes that the instruction which was given by the district court was approved in State v. Beebe, 244 Kan. 48, 60-61, 766 P.2d 158 (1988). In fact, the instruction approved in Beebe was the version in PIK Crim. 2d 54.12 rather than the version appearing in the 1992 Supplement.
This court has often stated:
“Jury instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then tire instructions do not constitute reversible error although they may be in some small way erroneous.” State v. Walker, 252 Kan. 279, Syl. ¶ 8, 845 P.2d 1 (1993).
In the present case, we cannot say that the voluntary intoxication instruction did not properly and fairly state the law as applied to the facts. The principal difference between the earlier pattern instruction and the current one is a shift in emphasis. Nor do we feel that the jury could reasonably have been misled by the instruction.
Humphrey next challenges the district court’s authority to triple his sentence under the Habitual Criminal Act, K.S.A. 21-4504. The State requested that the district court triple each sentence given to Humphrey. In support of its motion, the State recited the following:
“The defendant was convicted in the District Court of Finney County, Kansas, on June 12, 1981, in Case No. 80-CR-422 of the crime of sale of hashish, a class C felony, in violation of K.S.A. 65-4127b(b)(3).
“ . . . The defendant was convicted in the United States District Court for the District of Colorado, on December 2, 1977, in Case No. 77-CR-230, of the crime of possessing a firearm after being convicted of a felony in violation of Title 18 U.S. Code, appendix 1202(a), and received a sentence of twenty months in the Federal Correctional Institution at El Reno, Oklahoma.”
The district court granted the State’s' motion in part, stating: “The court granted the State’s Motion to Enhance and tripled the sentences imposed by the court except for the Unlawful Possession of a Firearm. Such sentences are to be served consecutively.”
It is Humphrey’s contention that the State failed to show that the federal offense relied upon for enhancement was a felony. He believes that resolution of this issue involves construction of the sentencing statute so that this court’s review is unlimited.
The State agrees with Humphrey about the scope of review. It argues, however, that any objection which might have been raised to the federal offense as one of the felonies which would support tripling his punishment was waived by Humphrey when he failed to object to the presentence investigation (PSI) report. It is the State’s contention that the supporting convictions were detailed in that report. The State adds that, in any event, it is clear from the 20-month sentence imposed for the federal offense that it was a felony.
At the sentencing proceeding, defense counsel was given an opportunity to bring to the court’s attention any concerns he had about the PSI report. Defense counsel stated that there was nothing to bring up. The State then offered three exhibits for the purpose of supporting invocation of the Habitual Criminal Act. Exhibits 1 and 2 were evidence of a previous Kansas conviction, which is not in question on this appeal. With respect to the third exhibit, the prosecutor stated: “The evidence of the other conviction is a United States Federal Conviction marked State’s Exhibit 3 and I would submit those to court at this time.” Defense counsel objected
“on the grounds that the State has not adequately proven that the convictions that the Court has been presented with are for the same Roy Humphrey that we have in Court here with us today. In other words, I guess the State hasn’t provided adequate foundation to show that they apply to this particular case.”
The district court concluded that there was an adequate basis for identifying defendant with the offenses and admitted the exhibits. The district court stated: “Your objection is noted, but if you’ll recall I specifically requested any objections to the presentence and there were none either by you or the Defendant himself personally and those charges are ail set forth therein.”
There is no mention of the PSI report in Humphrey’s brief. His argument is woven exclusively around the absence of any indication in Exhibit 3 that the federal firearms offense was a felony. Exhibit 3 is not in the record on appeal. The documentation of a federal offense included in the PSI report seems to be for violation of the National Motor Vehicle Theft Act rather than a firearms charge.
The Court of Appeals was presented with very similar circumstances in State v. Crichton, 13 Kan. App. 2d 213, 766 P.2d 832 (1988), rev. denied 244 Kan. 739 (1989). Crichton contended that his sentence had been improperly enhanced because the documents relied upon by the State to establish an out-of-state offense “did not indicate there was a conviction for a felony, as opposed to a misdemeanor.” The Court of Appeals did not reach the substantive issue, however, because “[t]he three documents concerning the Florida conviction are not in the record on appeal.” 13 Kan. App. 2d at 217. The Court of Appeals quoted the following: “ ‘An appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, we presume that the action of the trial court was proper.’ State v. Bright, 229 Kan. 185, Syl. ¶ 6, 623 P.2d 917 (1981).” 13 Kan. App. 2d at 217. Here, as in Crichton, there is no way to consider the merits of Humphrey s contention.
Humphrey also complains that no limiting instruction was given which would have advised the jurors to consider evidence of the felony conviction for which he had been released within 5 years only for the purpose of establishing the elements of unlawful possession of a firearm in violation of K.S.A. 21-4204. Humphrey did not request that a limiting instruction be given. He relies on State v. Whitehead, 226 Kan. at 719, 722, 602 P.2d 1263 (1979), for the proposition that “[t]he failure to give a limiting instruction, regardless of request, is of such a prejudicial nature as to require the granting of a new trial.” Humphrey recognizes that the rule applies to evidence admitted solely under the authority of K.S.A. 60-455. Hence, he argues that evidence of the prior crime is not admissible independent of 60-455 because it is a “material fact” by virtue of being a statutory element of 21-4204. To his way of thinldng, therefore, evidence relevant to prove a material fact other than disposition to commit crime is not admissible independent of 60-455. Humphrey’s reliance on Whitehead is misplaced. In State v. Knowles, 209 Kan. 676, Syl. ¶ 3, 498 P.2d 40 (1972), we held: “Where proof of a previous conviction is an essential element of a crime charged, failure to give an instruction limiting the purpose for which such conviction may be considered is not reversible error in the absence of a request.” Thus, admission of evidence of Humphrey’s recent release from imprisonment for a felony was not reversible error.
As he has done in the present appeal, Humphrey filed a pro se brief when this court considered his first trial on charges arising from the events of December 22, 1987. With regard to the first issue raised in that pro se brief, the court stated:
“Humphrey argues the trial court lacked jurisdiction over him because the State violated the speedy trial act, K.S.A. 22-3402. This argument is based upon Humphrey’s allegation that he was held in custody, awaiting trial, more than 90 days when the time chargeable to the State in the original case, 88-CR-66, is added to the time chargeable to the State in the current case, 89-CR-166.
“We cannot consider this argument because the Finney County District Court file for case number 88-CR-66 has not been made a part of the record on appeal. Thus, Humphrey has failed to meet his burden of providing a sufficient record to show the trial court committed prejudicial error. See State v. Blackmore, 249 Kan. 668, 670, 822 P.2d 49 (1991). We hold this issue is without merit.” Humphrey 1, 252 Kan. at 27-28.
On the present appeal, Humphrey contends that both his statutory and constitutional rights to a speedy trial were violated. Again, his argument depends on time chargeable to the State in the original case being added to the time chargeable to the State in the current case. Again, the district court file from tire first case, 88-CR-66, has not been made a part of the record on appeal. For that reason and because this court’s decision on this issue in Humphrey I is the settled law of the case, the issue will not be reconsidered in this appeal. In Miller v. Zep Mfg. Co., 249 Kan. 34, Syl. ¶ 9, 815 P.2d 506 (1991), we stated the rule as follows:
‘When a second appeal is brought to the appellate courts in the same case, die first decision is the setded law of die case on all questions involved and decided in the first appeal and reconsideration will not be given to such questions. This law of tire case rule applies where the evidence in the second trial, or.second appeal, is substantially die same as in the first appeal.”
Humphrey next complains about the following comments made by the prosecutor during closing argument:
“Of course, the Defendant has a story that covers all of this. He now says it was an accident, but once again when applying] diat acid test of common sense you can only come to one conclusion. It was a good attempt at formulating a story trying to cover all the bases. It picks up threads of what actually happened that night. To that extent it seems like a plausible account, but then it should be; the Defendant has had five years to concoct that story. It must have started on the 22nd of December of 1987, and yesterday it made its debut. He’s never told that story to anyone until he related it here.”
Defense counsel’s objection was overruled. Humphrey contends that the comments violated the rule of Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), which prohibits a defendant’s silence at the time of arrest from being used for impeachment purposes if he testifies on his own behalf at trial. In State v. Mims, 220 Kan. 726, 730, 556 P.2d 387 (1976), this court overruled its own earlier rule in favor of the Doyle rule, stating:
“We interpret the decision of the United States Supreme Court in Doyle to settle the question so as to make it constitutionally impermissible for a state pros ecutor to impeach a defendant’s exculpatory story told for the first time at the trial by cross-examining him as to his post-arrest silence after receiving the warning required by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 [1966].”
The State denies that the comments related to Humphrey s post-arrest silence. First, the State asserts that Humphrey did not remain silent at that time. The State does not favor the court with references to where in the record the assertion may be verified. Second, the State asserts that the comments were directed to discrepancies between what Humphrey told his psychiatric expert witness, Dr. Modlin, and what he told the jury. Not too long after making the complained-of remarks, the prosecutor stated:
“The Defendant went to [Dr. Modlin] nine months after this had happened. And the Defendant told him at that time he just remembered three tilings; he remembered that there had been an argument with Jamie Jones, he remembered a gun going off, and he remembered talking to an acquaintance in the backyard. That’s it. That is all he could remember nine months after this happened. And now he gives us details about what happened that you simply wouldn’t find outside of a novel.”
The State’s explanation of its comments seems forthright. What Humphrey told Dr. Modlin certainly was important enough to warrant considerable comment by the prosecution. By pointing out discrepancies between the account of events related by Humphrey to Modlin and to the jury, the State succeeded in undermining the foundation for Modlin’s supporting Humphrey’s defense as well as impeaching the defendant.
In State v. Green, 245 Kan. 398, 406-07, 781 P.2d 678 (1989), this court applied the Doyle rule to comments made by the prosecutor in closing argument. There, the rule was stated broadly enough to include any comments by the prosecution. Shortly after Green was arrested for the shooting death of Zeola Wilson, it became apparent that he was injured. Examination revealed a bullet wound in his chest. Its origin was unexplained. In closing argument, the prosecutor observed that no witnesses had testified to being aware that Green had been shot. The prosecutor then said: “The defendant had every opportunity to tell the police, when asked, that he was injured.” 245 Kan. at 406. Green had chosen to remain silent after receiving the Miranda warnings. The court regarded the comment as a statement permissible for impeaching Green’s evidence of self-defense rather than as an impermissible statement on Green’s silence. Moreover, the court concluded that, if there were any error, it would be harmless. 245 Kan. at 407-08.
In the present case, the State’s comments were permissible for impeaching the detailed account which Humphrey offered at trial. Moreover, there is doubt as to whether Humphrey remained silent, and any error had little likelihood of changing the results of the trial.
Humphrey’s final contention is that it was a denial of his right to confront witnesses against him for the district court to permit the State to read into evidence the prior testimony of Tony Gray. He relies on Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980).
Both this court and the United States Supreme Court have made it clear that unavailability is an exception to the Sixth Amendment guarantee of the right to confront adverse witnesses. 448 U.S. 56; State v. Wesson, 247 Kan. 639, 650, 802 P.2d 574 (1990), cert. denied 501 U.S. 1236 (1991). At Humphrey’s retrial, Tony Gray’s deposition, which had been taken on February 23, 1988, was read to the jury. Gray was subjected to cross- and recross-examination during the taking of the deposition. This court has interpreted Ohio v. Roberts as stating that the opportunity to cross-examine at the prior hearing satisfies the Sixth Amendment Confrontation Clause, even absent actual cross-examination. 247 Kan. at 650 (quoting 448 U.S. at 70). Humphrey was not denied the opportunity for confrontation.
Humphrey also argues that Gray’s deposition testimony was inadmissible hearsay. His specific contention is that the district court failed “to make a finding of a particularized guarantees [sic] of trustworthiness required for admission of a hearsay statement.” He argues that a finding of trustworthiness would not be possible, as demonstrated by discrepancies in testimony given by Gray at various times. The flaw in his argument is that under K.S.A. 60-460(c)(2), Gray’s prior testimony is excepted from the hearsay rule. The statute provides in pertinent part:
“[I]f the judge finds that the declarant is unavailable as a witness at the hearing, testimony given as a witness . . . in a . . . deposition taken in compliance with law for use as testimony in the trial of another action, [is admissible] when . . . the adverse party on the former occasion had the right and opportunity for cross-examination with an interest and motive similar to that which the adverse party has in the action in which the testimony is offered . . . .”
The judgment of the district court is affirmed.
See modified opinion filed November 15, 1995. 258 Kan. 372. | [
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|
The opinion of the court was delivered by
Abbott, J.:
The defendant, Robert R. Waterbury, appeals from the trial court’s denial of his post-appeal motion to modify his sentence for aggravated sodomy. The defendant contends that the trial court abused its discretion by denying his motion without properly considering the factors set forth in K.S.A. 21-4601 and K.S.A. 1994 Supp. 21-4606.
We first determine this court’s jurisdiction to hear the defendant’s post-appeal motion to modify the sentence. After his conviction and sentencing, the defendant took a direct appeal, raising three issues. He claimed (1) abuse of discretion in the denial of his motion to modify the sentence; (2) abuse of discretion in his sentence of 10 years to life; and (3) that the information charging him was defective.
This court affirmed the trial court on all issues. State v. Waterbury, 248 Kan. 169, 175, 804 P.2d 1000 (1991). The defendant then filed a second sentence modification motion which was ultimately denied on its merits. This appeal is from the district court’s denial of his second motion to modify. This court ordered the defendant to show cause why this appeal should not be dismissed for lack of jurisdiction, citing State v. Smith, 254 Kan. 16, 864 P.2d 1208 (1993), and K.S.A. 1994 Supp. 21-4603. The defendant responded, and this court retained the appeal subject to further review after oral argument.
In State v. Smith, the defendant filed a motion to modify the sentence. The trial court denied the motion, and the defendant appealed this denial to the Court of Appeals. The Court of Appeals determined the appeal adversely to the defendant by affirming the district court. Within 120 days of the Court of Appeals’ mandate, the defendant filed a second motion to modify. The district court granted the State’s motion to dismiss the defendant’s second sentence modification motion for lack of jurisdiction. This court affirmed the dismissal, finding that the legislature’s use of the term “appeal” in K.S.A. 1992 Supp. 21-4603(4) was intended to refer to direct appeals from the defendant’s conviction. According to Smith, if a direct appeal of the conviction is taken and determined adversely to the defendant, then the district court may entertain a motion to modify the sentence if it is filed within 120 days from the receipt of the mandate. However, if an appeal determined adversely to the defendant is not a direct appeal of the conviction but is merely an appeal of a district court’s denial of a sentence modification motion, then the district court does not have jurisdiction to hear another motion to modify even if the defendant files it within 120 days of receipt of the mandate. 254 Kan. at 19-20.
As we stated in Smith, 254 Kan. at 19:
“In the case before us, defendant’s first appeal was not a direct appeal of his conviction, but was an appeal from the denial of his first motion to modify. Defendant is attempting to use the mandate affirming the denial of his first motion to modify to open the jurisdictional window under 21-4603(4)(b) for the filing of a second motion to modify. By this rationale, an unlimited number of motions to modify could be filed as long as each successive motion is filed within the 120- day window after receipt of the mandate affirming the trial court’s denial of a defendant’s most recently filed motion to modify sentence. We believe such a result would be contrary to K.S.A. 1992 Supp. 21-4603(4).”
In the Smith syllabus, 254 Kan. 16, this court held:
“In construing K.S.A. 1992 Supp. 21-4603(4), it is held: The district court has no jurisdiction to hear a defendant’s second motion to modify sentence where: (1) defendant filed one such motion within 120 days after imposition of sentence; (2) the trial court denied the motion; (3) defendant appealed from the denial of the motion; and (4) defendant filed a second motion to modify sentence within 120 days after receipt of the mandate affirming the trial court’s denial of the first motion to modify.”
However, in State v. Reed, 253 Kan. 154, 853 P.2d 50 (1993), the defendant’s appeal was exclusively based on a direct appeal from the conviction. The appeal did not challenge the trial court’s denial of the defendant’s motion to modify the sentence. Thus, when the appellate court issued a mandate adverse to the defendant, this court held that the district court had jurisdiction to hear the defendant’s post-appeal motion to modify which was filed within 120 days of the mandate even though the trial court had refused to modify the sentence prior to the first appeal.
The majority opinion in Smith only addresses what happens if the defendant’s first appeal exclusively appealed the district court’s denial of the motion to modify. 254 Kan. at 19. It does not address the question as to what happens if the defendant’s first appeal includes both an appeal from a denial of a motion to modify the sentence and a direct appeal from the conviction. The Smith dissent argued that Smith does not allow a defendant to appeal both the conviction and the denial of sentence modification motion. According to the Smith dissent, if a defendant does appeal both, then the district court does not have jurisdiction to hear a post-appeal motion to modify upon the appeal being determined adverse to the defendant. 254 Kan. at 21-22. As the dissent states:
‘We have always required a defendant to include all known grounds for appeal or lose the right to have that issue considered on appeal. Now we are telling a defendant that he or she may file a motion to modify, have it heard and denied, and then appeal, and so long as he or she appeals only the conviction and does not appeal the trial court’s refusal to modify, he or she has the statutory right to request the modification a second time, within 120 days after receipt of the mandate by the clerk of the district court. But, if he or she includes the denial of the motion to modify in the first appeal, he or she cannot again file a motion to modify the sentence. “ (Emphasis added.) 254 Kan. at 22.
The defendant contends, however, that he follows the Smith rule because his first appeal included a direct appeal from the conviction. The defendant contended in his first appeal’ inter alia, that the information was defective because it failed to allege that the defendant was not married to the victim when the offense occurred. Waterbury, 248 Kan. at 169-70. Thus, when this appeal was determined adverse to the defendant, he contends that he had 120 days after the receipt of the mandate from the Supreme Court to file a post-appeal motion to modify. According to the defendant, it does not matter that his first appeal also challenged the district court’s denial of his first motion to modify. After all, he argues, the Smith majority does not specify that the appeal must be exclusively a direct appeal from the conviction. It simply states that “[t]he jurisdictional window under 21-4603(4)(b) only opens upon receipt of a mandate on a direct appeal from the conviction which has been decided adversely to the defendant.” 254 Kan. at 20. In the case before us, this court issued such a mandate from the defendant’s appeal where he, inter alia, directly challenged his conviction. Thus, according to the defendant, the district court’s jurisdictional window opened under K.S.A. 1994 Supp. 21-4603(d)(2), and it could hear his post-appeal motion to modify, which was filed within 120 days of the mandate.
In making this argument, the defendant relies on State v. Hervey, 19 Kan. App. 2d 498, 873 P.2d 188, rev. denied 255 Kan. 1005 (1994). In Hervey, the defendant filed his first sentence modification motion, and the district court denied it. In the defendant’s first appeal, he challenged the district court’s denial of his sentence modification motion and he directly challenged the conviction. The Court of Appeals affirmed the district court on all counts and issued a mandate adverse to the defendant. Within 120 days of such mandate, the defendant filed a post-appeal motion to modify the same sentence, which the district court also denied. The defendant appealed the district court’s denial of his second sentence modification motion, contending that the district court abused its dis cretion by not properly considering the factors set forth in K.S.A. 21-4601 and K.S.A. 21-4606. 19 Kan. App. 2d. at 499-500. The Court of Appeals found that the district court did have jurisdiction to hear a post-appeal motion to modify which was filed within 120 days upon receipt of the mandate affirming both the conviction and the denial of a motion to modify. 19 Kan. App. 2d at 504. In holding as it did, the Hervey court distinguished Smith:
“Here, as in Smith, Hervey has already appealed the denial of his first motion to modify. However, unlike Smith, Hervey also appealed his conviction. Under Smith, this distinction is significant. The court in Smith interpreted 21-4603(4)(b) as allowing the filing of a second motion to modify within 120 days of the filing of the mandate affirming a conviction. Although the dissenting opinion in Smith read the majority opinion broadly to bar the filing of a second motion to modify in cases where a defendant appeals both a denial of a motion to modify and the conviction, the majority made no exception for a case where the denial of a motion to modify is also appealed with the conviction. Where the mandate affirms both the conviction and the denial of the first motion to modify, the district court likewise has jurisdiction for 120 days after receipt of the mandate to modify the sentence.
“This interpretation of K.S.A. 1992 Supp. 21-4603(4)(a) and (b) gives voice to the fundamental rule of statutory construction that the purpose and intent of the legislature govern. State v. Cole, 238 Kan. 370, 371, 710 P.2d 25 (1985). By permitting a defendant to file a second motion to modify within 120 days after receipt of a mandate affirming both a conviction and the denial of the first motion to modify, we give meaning and purpose to subsection (b), as well as the ‘except’ clause at the beginning of subsection (a). Our interpretation of this statute is also guided by the rule of statutory construction applicable to penal statutes. The Supreme Court in Reed viewed the pre-1988 version of21-4603 as a penal statute and applied the rule of statutory construction applicable to penal statutes when interpreting the statute. Whenever the interpretation of a penal statute is questioned, courts are required to strictly construe the statute in favor of the accused. Reed, 253 Kan. at 162 (quoting State v. Magness, 240 Kan. 719, 721, 732 P.2d 747 [1987). We conclude the district court in the present case had jurisdiction to consider Hervey’s second motion to modify.” (Emphasis added.) 19 Kan. App. 2d at 504-05.
The defendant points out that Hervey is analogous to the present case. As in Hervey, Waterbury’s first appeal not only challenged the district court’s denial of the sentence modification motion, but it also directly challenged the defendant’s conviction, contending that the complaint was defective.
The State argues that the defendant’s reliance on Hervey is misplaced. According to the State, the Smith majority implied that if the defendant’s first appeal unsuccessfully challenged the district court’s denial of a preappeal motion to modify, then the defendant cannot file another motion requesting sentence modification within 120 days of the mandate even if the defendant’s appeal also directly challenged the conviction. The State contends that if this is not the rule, then the defendant would be able to appeal the denial of successive sentence modification motions as long as the appeal also contained a direct challenge to the conviction. In making this argument, the State relies on the Hervey dissent, 19 Kan. App. 2d at 506-07, which states:
“The majority here finds that jurisdiction existed in the trial court to hear Hervey s second motion to modify his sentence despite the fact a request for the identical relief had been previously requested and denied and that denial affirmed on appeal. The justification for allowing Hervey’s motion to modify to be twice considered is that in Smith the appeal was only from the denial of Smith’s motion to modify (Smith did not directly appeal his conviction), while here Hervey not only first appealed the denial of his motion to modify, he also contemporaneously and unsuccessfully directly appealed his conviction.
“I would hold that the fact Smith did not directly appeal his conviction, while Hervey did, is a distinction that makes no difference. What does make a difference is the fact that both Smith and Hervey filed motions to modify their sentences, both motions were denied by the trial court, and both denials were affirmed on appeal.
“The essence of the Smith decision is that the jurisdictional window’ of K.S.A. 1992 Supp. 21-4603(4)(b) does not open for a 120-day period to allow a second motion to modify to be filed when the earlier appeal is from the denial of a request for the identical relief.”
The Hervey majority attempts to explain away the Hervey dissent:
“The concurring and dissenting opinion filed in the present case concludes the ‘essence’ of Smith is that 21-4603(4)(b) does not provide a 120-day period to allow the filing of a second motion to modify ‘when the earlier appeal is from the denial of a request for the identical relief.’ While there is some support forthis conclusion in the general statements contained in the Smith syllabus, the facts presented in Smith differ from those present here. Again, in Smith only the denial of a motion to modify was appealed in Smith’s first appeal. Here, Hervey also appealed his conviction. This factual difference takes this case out of the holding contained in the Smith syllabus and into the provisions contained in 21-4603(4)(b) as interpreted in the body of the majority’s opinion in Smith.” 19 Kan. App. 2d at 505.
The answer to this issue depends on the statutory construction of K.S.A. 1994 Supp. 21-4603(d) and the rationale of Smith.
Two principles of statutory construction of a penal statute are compelling in this case. They are:
(1) “The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute.” State v. Hooks, 251 Kan. 755, 760, 840 P.2d 483 (1992).
(2) The rule of strict construction in favor of the accused is subordinate to the rule that judicial interpretation must be reasonable and sensible to effectuate legislative design and intent. State v. Fowler, 238 Kan. 213, 215, 708 P.2d 539 (1985).
We hold that the logical interpretation of K.S.A. 1994 Supp. 21-4603 is that a defendant is allowed one appeal from a sentence modification motion and once that appeal is decided, the courts do not have jurisdiction to hear a second motion to modify a sentence.
Our conclusion is consistent with State v. Smith, 254 Kan. 16, and State v. Reed, 253 Kan. 154. Reed allowed the district court to entertain the defendant’s post-appeal sentence modification motion because the defendant’s first appeal was exclusively based on a direct challenge of his conviction. The first appeal did not challenge the denial of his first sentence modification motion even though the district court denied the motion prior to his appeal and this denial could have been raised in the first appeal.
Also, the syllabus in State v. Smith, 254 Kan. 16, clearly states that if a defendant appeals the denial of a motion to modify, then the district court does not have jurisdiction to hear the defendant’s post-appeal motion to modify filed within 120 days after receipt of the appellate court’s mandate affirming the trial court’s denial of a prior motion to modify. Finally, six of the seven members of this court were on the Smith decision. The majority intended to interpret 21-4603(d) as allowing only one appeal of a motion to modify. Once a defendant appeals the district court’s denial of a sentence modification motion and that appeal is determined adversely to the defendant, then the courts do not have jurisdiction to hear a subsequent motion to modify the sentence.
Syllabus ¶ 3 of State v. Hervey, 19 Kan. App. 2d 498, and the corresponding part of that opinion inconsistent with this opinion is hereby overruled.
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The opinion of the court was delivered by
Abbott, J.:
This is a lawsuit by Victor Miller, an attorney, to recover attorney fees from Arnold Botwin, M.D., based on a written contingency fee agreement. Botwin counterclaimed; seeking to have the trial court declare the contingency fee agreement unenforceable and for the trial court to determine a reasonable fee. Following a bench trial, the trial court entered judgment in favor of Miller in the amounts ' of $59,675.53 and $5,523, plus prejudgment interest, and $110.35, representing expenses advanced. Botwin appeals, and Miller cross-appeals.
The facts underlying this appeal are largely undisputed. In March 1989, defendant Botwin retained plaintiff Miller to obtain property tax reductions on several commercial real estate properties owned by Botwin in Shawnee County. Botwin signed a contingency fee agreement concerning the representation. Under the agreement, Botwin agreed to pay Miller 50% of any tax savings (based on one year’s taxes) obtained at the “local” level (efforts with the county appraiser, a hearing panel, or the Board of County Commissioners, according to Miller) and 70% of any tax savings obtained through an appeal to the Board of Tax Appeals (BOTA) or any other court. Botwin acknowledged that he signed the agreement and that he had no discussions vrith Miller concerning the specific amount of tax savings which might be realized through Miller’s representation. In the agreement, Botwin agreed to pay one-half of the fees owed at the time he received the reduction and the balance upon receipt of the 1989 tax bill.
Miller was successful in obtaining property tax reductions for Botwin on each of the properties involved. Miller’s testimony revealed the extent of the tax savings on the various tracts.
Tax savings for the Barrington Village property were $51,530.85. These savings were realized following a stipulation with the county appraiser after an appeal to BOTA was filed. Miller charged a 50% fee, although he felt he could have charged a 70% fee, for a fee of $25,765.43.
For Brad’s New Way Station, Miller obtained a $2,495.92 tax savings at the local level. Miller charged a 50% fee, for a fee of $1,247.96.
A total tax savings of $45,522.42 was realized on the Highland Crest shopping center properties. These savings were obtained in accordance with a stipulation after an appeal to BOTA was filed. Although Miller felt he could have charged a 70% fee for Highland Crest, he charged a 50% fee. Moreover, the fee to which Miller testified he was entitled, $21,977.15, was slightly less than 50% of the tax savings. Miller stipulated that he would hold himself to the $21,977.15 fee rather than ask for the full 50% ($22,761.21).
An initial tax savings of $63,678.58 was obtained at the local level for the South City Plaza (South City) property. Miller charged the 50% fee, for a fee of $31,839.28. Miller also sought an additional savings by filing an appeal to BOTA and ultimately to the district court; the appeal was eventually resolved by stipulation. The appeal resulted in an additional $11,047.31 savings. Miller billed a 70% fee for the additional savings, resulting in an additional fee of $7,733.12.
Botwin paid Miller $10,000 toward his legal fees. Miller offered more than once to reduce certain fees if Botwin would pay the remaining balance in full, but Botwin did not make additional payments.
Miller then instituted this action in the district court to recover his fees. Miller’s petition sought $59,675.53 at the 50% contingency fee level and $7,733.12 at the 70% contingency fee level. Miller sought an additional $110.35 in costs paid during the representation. Botwin counterclaimed, seeking to have the contingency fee contract invalidated and asking the district court to determine a reasonable fee.
Trial was to the court. Immediately before trial, the defendant requested a continuance due to inadequate preparation time after defendant’s counsel spent the day prior to trial in a deposition. The district court denied the motion.
At the end of the first day of evidence, the plaintiff asked the district court to amend the pleadings to conform to the evidence because the $59,675.53 and $7,733.12 figures were different than the total balance owing on defendant’s bill, which was $79,347.12. The court indicated the pleadings could be conformed if it was merely a mathematical miscalculation. On the second day of trial (three days later), the court clarified that if the evidence did not support conformation of the pleadings, the court would go back to the amount prayed for in the petition or any amount between the amount in the petition and the amount asked for at trial.
Following trial, the court ruled that the fees charged were reasonable. The court found that the defendant received a great benefit from the representation, that the fees were comparable to those charged in the community, that Botwin was not influenced to sign the contingency fee contract, and that the matter was difficult and complex and extended over a long period of time. The court then granted judgment to Miller in the amount prayed for in the petition, $59,675.53, with prejudgment interest from January 1,1992. With regard to the $7,733.12 sought, the court opined that a 70% fee would be justified but allowed, as a matter of equity, only a 50% fee of $5,523, with prejudgment interest from Januaiy 1, 1993. The court also awarded $110.35, the amount of costs paid by Miller during the representation.
Botwin’s motion for a new trial was denied. Botwin timely appealed, and Miller timely cross-appealed. The appeals were transferred to this court pursuant to K.S.A. 20-3018(c) (transfer on this court’s own motion).
I. CONTINGENCY FEE AGREEMENT
Botwin first argues that the contingency fee agreement is unenforceable because it is not in compliance with Model Rule of Professional Conduct (MRPC) 1.5 (1994 Kan. Ct. R. Annot. 306), adopted by this court in Rule 226 (1994 Kan. Ct. R. Annot. 286). The pertinent parts of MRPC 1.5 were adopted in 1988 and had no counterparts in the Rules existing prior to July 1, 1988. MRPC 1.5 states in pertinent part as follows:
“(d) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (f) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, and the litigation and other expenses to be deducted from the recovery. All such expenses shall be deducted before the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the client’s share and amount and the method of its determination. The statement shall advise the.client of the right to have the fee reviewed as provided in subsection (e).
“(e) Upon application by the client, all fee contracts shall be subject to review and approval by the appropriate court having jurisdiction of the matter and the court shall have the authority to determine whether the contract is reasonable. If the court finds the contract is not reasonable, it shall set and allow a reasonable fee.” (Emphasis added.)
Botwin claims three violations of MRPC 1.5. First, Botwin points out that the agreement did not provide for deducting expenses prior to calculating the fee. Second, Botwin reasons that Miller failed to inform him, either in the agreement or in subsequent statements, of his right to have the fee reviewed by a court. Third, Botwin argues that the contingency fees called for in the agreement violate MRPC 1.5 because the fees are not reasonable.
The Scope of the Model Rules of Professional Conduct (1994 Kan. Ct. R. Annot. 288) states that a violation of a model rule of professional conduct is not intended to be a basis for civil liability. Botwin argues that he is not seeking to use the MRPC violation as the basis for liability; rather, he is seeking to preclude Miller from his own cause of action to recover attorney fees which are in contravention of the Model Rules of Professional Conduct.
Botwin cites no authority for his argument that Miller’s failure to strictly comply with MRPC 1.5 invalidates the entire contingency fee agreement. He merely argues that the legal enforceability of a contract and the interpretation of disciplinary rules are questions of law, review of which is unlimited. See Mark Twain Kansas City Bank v. Cates, 248 Kan. 700, 704, 810 P.2d 1154 (1991); LeaseAmerica Corp. v. Stewart, 19 Kan. App. 2d 740, Syl. ¶ 1, 876 P.2d 184 (1994).
The failure to adhere strictly to the requirements concerning contingency fee agreements set forth in MRPC 1.5(d) does not in itself invalidate a contingency fee agreement. While noncompliance with MRPC 1.5 may give rise to a disciplinary action, fee agreements which are otherwise reasonable will not be ignored because of minor noncompliance with the Model Rules of Professional Conduct. However, noncompliance may be considered in evaluating the reasonableness of the fees in general. Reasonableness is the crux of Botwiris argument.
Miller’s failure to specify in the contingency fee agreement the method and manner in which expenses were to be deducted, while not invalidating the entire agreement, does not mean Miller’s claim for $110.35 in expenses was properly handled. It was not.
MRPC 1.5(d) requires expenses to be taken out before the contingency percentage is calculated. Here, the trial court erroneously assessed the $110.35 after the contingency fee was computed. The $110.35 expenses advanced should first be deducted from the total savings, and Miller’s contingency fee then would be computed on the remaining sum. We realize this will result in a de minimis sum in this case, but it is the proper method to calculate the fee. Thus, that part of the judgment is reversed and remanded for the trial court to recompute the fee as directed by MRPC 1.5(d), which will result in Miller’s fee being reduced by $55.18.
II. REASONABLENESS OF FEE
The crux of Botwin’s appeal is that the fees assessed by Miller were not reasonable. MRPC 1.5(a) sets forth factors to be considered in determining whether fees are reasonable:
“A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.”
The trial court noted that the matter was a very difficult and complex one extending over a long period of time (MRPC 1.5[a][1]); the fees are comparable to those customarily charged by others in the community, including fees charged by attorneys and non-attorneys (MRPC 1.5[a][3]); Botwin received a great benefit from the representation (MRPC 1.5 [a] [4]); and Botwin voluntarily signed a contingency fee contract (MRPC 1.5[a][8]).
Botwin acknowledges that the reasonable value of attorney fees is within the sound discretion of the trial court. See City of Wichita v. B G Products, Inc., 252 Kan. 367, Syl. ¶ 3, 845 P.2d 649 (1993). In the event this court finds that the trial court abused its discretion in determining attorney fees, this court may, in the interest of justice, fix such fees. 252 Kan. 367, Syl. ¶ 4.
The trial court awarded Miller fees of $59,675.53 and $5,523.00. In addition to the $10,000 already paid by Botwin, the attorney fees awarded total $75,198.53. Botwin argues that these fees are not reasonable under the circumstances.
Botwin first points to the magnitude of the percentages themselves: 50% and 70%. Botwin cites the testimony of David Holstead, an expert called on Miller’s behalf. Holstead is an attorney who handles property tax cases. He noted that ad valorem taxation is a technical area of the law. He also pointed out the difficulty in achieving reductions because there is a presumption that the amount assessed is correct and the burden is on the taxpayer to prove a lesser amount was proper. Holstead testified that his contingency fee arrangements are typically for 50% of the first year reduction and a reduced percentage (33% or 25%) of additional reductions in subsequent years. Holstead charged a 50% contingency fee for all reductions received at the local level or through an appeal to BOTA or the district court, and he noted that he generally did not expect to succeed at the local levels. Holstead believed a 50% contingency fee was reasonable because the attorney takes the risk that if no tax savings are realized the attorney will not be paid and said he would lose money charging less than 50%. He acknowledged that he would charge less than 50% in simple cases where the taxation error is easily identifiable. Holstead opined that a contingency fee greater than 50% may carry a presumption of excessiveness, but he acknowledged that a 70% contingency fee may be warranted in unusual circumstances. Finally, Holstead indicated that an hourly fee for the same work may be $175 in commercial property cases.
Botwin points oüt that Miller boasts of a higher success rate at the local level than Holstead and others, yet he charged 50% for work at the local level and 70% for work at the BOTA or district court level. Thus, Botwin reasons, Miller s fee structure is for larger fees for less work in comparison to what Holstead testified was reasonable.
Botwin also points out that although ad valorem taxation may be somewhat technical, the work may often be done by non-attorneys and no attorney is required for representation at the local level. Botwin himself hired an appraisal firm, non-attorneys, to handle reductions for subsequent years at a contingency fee of 33%%, and he hired an attorney at $65 per hour. Botwin also reasons that the work is not “novel” because, although Miller claimed he educated himself about the process, changes in the reappraisal law which took effect in 1989 made no change to the manner in which commercial property taxes were calculated.
Botwin next points to the “small quantity of attorney time and effort” expended by Miller in obtaining these reductions. He points out that Miller kept no record of the time he spent working Botwin’s files. The only estimation Miller gave was that he spent 60 hours on the South City files. Botwin urges this court to compare the contingency fee as if it were an hourly fee in line with the hourly fee charged by others in the community. See McGill v. City of Ottawa, 773 F. Supp. 1473, 1476 n.5 (D. Kan. 1991). Botwin points out that the first 30 hours spent on South City at the local level resulted in $31,839.28 in fees, the equivalent of approximately $1,061 per hour.
Next, Botwin argues that Miller’s quality of work was lacking because he did not independently have the properties appraised by an MAI-designated appraisal expert. Moreover, Botwin points out that he sought further reductions on the properties after those obtained by Miller.
Miller also directs this court’s attention to the MRPC 1.5 factors of reasonableness. He reasons that his work was novel and technical because it was done during the first year of a statewide reappraisal and because the burden is on the taxpayer to establish that the appraisal was incorrect. Miller also points out that the customary contingent fee is 50%, a fee which some also charge for the second year of a reduction. Next, Miller points to his experience and reputation in handling property tax reductions. He also stresses that he risked receiving no attorney fees if no tax savings were realized. Miller notes that his work on Botwin’s files extended 45 months from the onset of his representation. Finally, Miller points out that the substantial tax savings Botwin received was a savings for not only 1989 but also for subsequent years because of a presumption that an appraisal value for one year is valid for subsequent years.
The fees awarded by the trial court total $75,198.53, including the $10,000 already paid by Botvin. By our calculations, the fees amount to approximately 43% of the tax savings Botwin received for 1989. The trial court found that these fees were reasonable. The trial court gave ample reasons in accordance with the factors set forth in MRPC 1.5(a) supporting its decision. Botwin presented no evidence that the 50% fee was. not reasonable. A 50% contingency fee was in accordance with the customary fee charged by other attorneys in the community. Although comparing the 50% contingency fee with a fee computed on an hourly basis reveals an hourly fee in excess of $600 per hour for the South City property, that fact is not dispositive. Miller bore the sole risk of receiving no fees in the event that no tax savings were realized. It is significant that the tax benefit carries over to future years. Having reviewed the award of attorney fees in light of all the circumstances and the factors set forth in MRPC 1.5(a), we cannot say that the trial court abused its discretion in its award of attorney fees.
III. CONFORMED EVIDENCE
Miller’s cross-appeal argues that he was entided to fees greater than those granted by the trial court. At the end of the first day of testimony Miller asked the trial court to allow the pleadings to conform to the evidence. The problem with the pleadings was that the amounts prayed for did not correspond with the amounts Miller believed were owed. The trial court initially stated that the pleadings could conform to the evidence if it were merely a mathematical miscalculation. On the second day of trial, however, the trial court indicated that if the evidence did not support the increased amount, the trial court could award only the amounts prayed for or any amount in between. Ultimately, the trial court awarded only the amounts prayed for in the petition and, in fact, reduced one amount sought to a 50% fee rather than a 70% fee.
Miller argues that the trial court erred in failing to award attorney fees in accordance with the evidence. He contends that fees earned at the local level (50% fees) were $80,829.86, of which Botwin had paid $10,000. Miller contends, therefore, that instead of awarding $59,675.53, the trial court should have awarded $70,829.86.
Miller acknowledges that the granting or denial of a motion to amend pleadings to conform to the evidence lies within the sound discretion of the trial court. Stehlik, Executor v. Weaver, 206 Kan. 629, Syl. ¶¶ 1, 2, 482 P.2d 21 (1971); see Anderson v. Heartland Oil & Gas, Inc., 249 Kan. 458, 470, 819 P.2d 1192 (1991), cert. denied 118 L. Ed. 2d 551 (1992).
Miller argues that the trial court allowed the pleadings to conform to the evidence but then, in granting judgment, failed to mention the conformed amount. Miller ignores that the trial court stated that it would only allow the pleadings to conform to the evidence if there was a mathematical miscalculation and that the trial court, on the second day of trial, indicated that if the evidence did not support amendment of the pleadings it would not do so.
Before addressing the evidence on this issue, we note that Miller made an argument to the trial court inconsistent with his position on this issue. Botwin, in a motion for a new trial, argued that the court’s judgment was contrary to the evidence. In his response, Miller framed the issue as whether the judgment conformed to the evidence. Miller argued that the judgment did indeed conform to the evidence. Now, on appeal, Miller argues that the judgment did not conform to the evidence.
The evidence of fees for tax reductions at the local level to which Miller claimed at trial he was entitled was confusing. It is helpful to put the material into chart form.
Property Tax Savings 50% Fees Fees Sought
Barrington Village $ 51,530.85 $25,765.43 $25,765.43
Brad’s New Way Station $ 2,495.92 $ 1,247.96 $ 1,247.96
Highland Crest $ 45,522.42 $22,761.21 $21,977.15
South City $ 63,678.58 $31,839.29 $31,839.29
TOTAL $163,227.77 $81,613.89 $80,829.83
These totals differ slightly (a few cents) from the amount Miller claims is due. These amounts do not include the additional reduction of $11,047.31 on the South City taxes or the 70% fee ($7,733.12) charged by Miller for that work. On that issue, the trial court granted only a 50% fee ($5,523), which Miller does not contest.
Of the $80,829.83, Botwin had paid $10,000; therefore, according to these calculations, the balance was $70,829.83. This calculation is easily reached according to the above amounts. However, in his petition, Miller only sought $59,675.53 as fees at the local level.
The $59,675.53 amount sought appears to have been taken from a January 18,1993, letter from Miller to Botwin’s daughter offering to reduce the balance owed to that amount if Botwin would sign over a $11,047.31 refund check Botwin had received. Botwin never tendered the $11,047.31 check. Even if the check had been tendered, the remaining balance would have been $59,782.52, not $59,675.53, for fees on tax savings obtained at the local, 50%, level, and that would not have included the 70% fee on the $11,047.31 refund check.
It seems evident that the trial court granted judgment on the local tax savings fees according to the amount prayed for in the petition. Based on the record before us, we cannot say the trial judge abused his discretion in doing so.
IV. PREJUDGMENT INTEREST
The trial court awarded prejudgment interest on the awards of $59,675.53 and $5,523.
Prejudgment interest is governed by K.S.A. 16-201. The allowance of prejudgment interest under K.S.A. 16-201 is a matter of judicial discretion subject to reversal only when there is an abuse of discretion. Crawford v. Prudential Ins. Co. of America, 245 Kan. 724, 737, 783 P.2d 900 (1989). The general rule in Kansas is that prejudgment interest is allowable on liquidated claims. “A claim becomes liquidated when both the amount due and the date on which it is due are fixed and certain, or when the same becomes definitely ascertainable by mathematical computation. [Citation omitted.]” Kilner v. State Farm. Mut. Auto. Ins. Co., 252 Kan. 675, 686-87, 847 P.2d 1292 (1993); see Arrowhead Const. Co. v. Essex Corp., 233 Kan. 241, Syl. ¶ 7, 662 P.2d 1195 (1983). The fact that a good-faith controversy exists as to whether the party is liable for the money does not preclude a grant of prejudgment interest. Crawford, 245 Kan. at 737.
Botwin argues that the trial court erred in awarding prejudgment interest because the reasonableness of the contingency fees was disputed and because the amounts were unliquidated until the trial court set a reasonable fee. He points out that the reasonableness of the contingency fees are subject to review by the trial court under MRPC 1.5(e). He asserts, therefore, that contingency fees are never liquidated because the amount is never fixed until it is approved by the court; otherwise, a client will never be able to exercise the right to have the fee reviewed by the court. Moreover, Botwin points out that amounts sought vacillated both before the lawsuit was filed and during trial. Botwin stresses that the fee ultimately awarded by the trial court here was less than the amount requested by Miller. Therefore, Botwin reasons, the award was based on quantum meruit. A judgment based on quantum meruit does not draw prejudgment interest because the amount due is not liquidated until the trial court’s determination of the amount. See Marcotte Realty & Auction, Inc. v. Schumacher, 229 Kan. 252, 268, 624 P.2d 420 (1981).
Miller reasons that the fees here were liquidated because the amounts due and the due dates were easily calculated and ascertainable from the contract. He also argues that the fact a contingency fee is subject to review by the court does not make the fee unliquidated. Alternatively, Miller argues that prejudgment interest was proper here even if this court determines that the fees were unliquidated. In Lightcap v. Mobil Oil Corporation, 221 Kan. 448, Syl. ¶ 11, 562 P.2d 1, cert. denied 434 U.S. 876 (1977), this court indicated that interest may be allowable on unliquidated damages where necessary to arrive at full compensation. Miller reasons that Botwin has had the use of the money and that Miller has been deprived of the money; therefore, prejudgment interest is necessary to provide full compensation.
Botwin is correct in pointing out that MRPC 1.5(e) gives the trial court the authority to determine the reasonableness of the fee contract and to set a reasonable fee. However, that authority does not make the fees under the contract unliquidated. If the contract is clear as to the method of fee calculation and as to the date the fees are due, the fees under the contract are liquidated. Moreover, MRPC 1.5(e) gives the trial court the authority to review and approve all fee contracts, not just contingency fee contracts. According to Botwin’s argument, then, no claim for attorney fees would be liquidated, and thereby subject to prejudgment interest, until it is approved by the court. This construction is not reasonable.
Botwin also points out the fees awarded by the trial court were less than those sought by Miller. Although the contract called for fees of 50% for refunds obtained at the local level, the trial court awarded somewhat less than that percentage for such refunds. Moreover, although the contract called for fees of 70% for refunds obtained through BOTA or the district court, the trial court here awarded only 50% fees for such refunds. However, contrary to Botwin’s argument, the trial court did not award fees based on quantum meruit. There was no testimony concerning the reasonable value of Miller’s work based on an hourly or some other rate. The trial court did not indicate how it reached its decision that $59,675.53 for local savings was reasonable. It did indicate that it awarded only 50% fees for the $11,047.31 refund “in the interest of equity.” The trial court obviously felt that 50% was reasonable for all tax savings obtained but it awarded less than 50% on the savings obtained at the local level because that was the amount prayed for in the petition.
Ultimately, the award of prejudgment interest is a matter which lies within the sound discretion of the trial court. The contingency fees owed here are ascertainable based on the terms of the agreement, even though the award by the trial court did not correspond precisely with the terms of the agreement due primarily to Miller’s pleading error.
Miller was deprived of the use of this money when Botwin failed to timely settle his fees. Because an award of prejudgment interest lies within the trial court’s discretion, and based on the unique facts of this case, we affirm the award of prejudgment interest.
Miller takes issue, however, with the dates from which the trial court ordered prejudgment interest. Prejudgment interest on the $59,675.53 was from January 1,1992, and prejudgment interest on the $5,523 was from January 1, 1993. These dates do not correspond to the dates ascertainable from the contingency fee contract. The agreement provided for payment of one-half of the fees at the time the property value was reduced and for the remaining one-half of the fees upon receipt of the 1989 tax bill. We note that some of the tax reductions were not received until after the 1989 tax bill was received. We remand the awards of prejudgment interest to the trial court for recomputation of the dates from which prejudgment interest should accrue according to the terms of paragraph 3 of the contingency fee agreement.
V. MOTION FOR A CONTINUANCE
The granting or denial of a motion for continuance is a matter which lies within the sound discretion of the trial court, and the trial court’s ruling will not be disturbed on appeal absent an abuse of discretion. Wilson v. American Fidelity Ins. Co., 229 Kan. 416, 422, 625 P.2d 1117 (1981).
Botwin argues that the trial court’s denial of his motion was an abuse of discretion. He points out that a continuance was necessary due to circumstances beyond his control when his attorney spent the day before trial giving a deposition in an unrelated matter though they had scheduled that day for final trial preparation. Botwin reasons that the effectiveness of his defense was diminished because his vision problems hindered his ability to read or refer to documents as a witness.
Botwin’s argument is without merit. After taking evidence during the morning of the first day of trial, the trial was continued for three days because the court had other matters scheduled. Botwin did not testify until the second day of trial, three days after he sought the continuance. This allowed ample preparation time. Moreover, the cross-examination of Miller was not conducted until the second day of trial, so if Botwin had vision problems during Miller s testimony, he had ample time with his attorney to prepare for the cross-examination. The trial court did not abuse its discretion in denying the continuance.
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The opinion of the court was delivered by
Abbott, J.:
This is an appeal by the State from the trial court’s dismissal of criminal charges (driving while únder the influence of alcohol in violation of K.S.A. 1994 Supp. 8-1567[a][2]) on the ground of double jeopardy because the defendant, John D. Mertz, had already had his driver’s license suspended and restricted for failing a breath test.
Mertz was arrested on September 1, 1994, in Ellis County, on suspicion of driving while under the influence of alcohol. The defendant submitted to a breath test which showed the alcohol concentration in his blood was .08 or more. As a result, the State filed criminal charges against the defendant pursuant to K.S.A. 1994 Supp. 8-1567(a)(2) for driving while under the influence of alcohol.
While criminal charges were pending, , the Department of Revenue, Division of Vehicles, held an administrative hearing on January 4, 1995. Based on the defendant’s breath test of September 1, 1994, the Department of Revenue examiner suspended the defendant’s driver’s license for a period of 30 days’ and restricted it for an additional 330 days pursuant to K.S.A. 1994 Supp. 8-1014.
Thereafter, the defendant filed a motion to dismiss the criminal charges. The defendant contended he had already been subject to punishment by the administrative suspension of his driver’s license. Thus, he argues, the criminal charges exposed him to multiple punishments in violation of the double jeopardy clauses in the Fifth Amendment of the United States Constitution and §10 of the Kansas Constitution Bill of Rights. The trial court granted the defendant’s motion and dismissed the criminal charges.
The district court found that allowing the State to proceed with criminal charges against the defendant would constitute multiple punishment and thereby violate the double jeopardy protections. Relying on United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989), the district court pointed out that an administrative civil sanction could constitute “punishment” for double jeopardy purposes. Under Halper, .a civil sanction qualifies as “punishment” for double jeopardy purposes if any purpose behind the sanction is punitive or deterrent. According to the trial court, the only civil sanction which does not qualify as “punishment” is one which has an exclusively remedial purpose.
The trial court found the suspension of a driver’s license has a remedial purpose in that it keeps dangerous drunk drivers off the road. However, it also found the suspension has punitive and deterrent purposes. For instance, when a police officer asks a driver to take a breath test, the officer must warn the driver of the consequences of failing the test. Moreover, the driver may suffer a significant personal impact, including the loss of his or her job, if his or her license is suspended. According to the trial court, the warnings and severe consequences associated with a license suspension indicate the suspension has retributive and deterrent effects. Thus, the trial court found the Department of Revenue’s ruling, license suspension for 30 days and license restriction for 330 days, constituted punishment against the defendant for driving while under the influence of alcohol. Allowing the State to punish the defendant again through criminal prosecution for the same offense would result in multiple punishment and expose the defendant to double jeopardy. To avoid violation of the double jeopardy clauses, the district court dismissed the criminal proceedings against the defendant.
The State appeals to this court from that decision. Jurisdiction is based upon K.S.A. 1994 Supp. 22-3602(b)(1). We allowed the Kansas Department of Revenue to file an amicus curiae brief.
The trial court concluded that the administrative suspension of a driver’s license constitutes “punishment” for double jeopardy purposes. This is a determination of law. Thus, this court may exercise an unlimited, de novo standard of review. See Dickerson v. Kansas Dept. of Revenue, 253 Kan. 843, 844, 863 P.2d 364 (1993); State v. Nelson, 249 Kan. 689, 692, 822 P.2d 53 (1991). The parties concur that this is the appropriate standard of review.
K.S.A. 8-1001 et seq., also called the Implied Consent Law, is the statute which authorizes the Department of Revenue to suspend a person’s driver’s license. A brief review of this law will be helpful in assessing the issues presented to this court. K.S.A. 1994 Supp. 8-1001(a) states that any person who drives a car in Kansas is deemed to consent to a chemical test in order to determine the driver’s blood alcohol concentration. Before a police officer conducts a test, the officer must provide the driver with certain warn ings. K.S.A. 1994 Supp. 8-1001(f)(1). Such warnings include: If a person refuses to submit to a chemical test, the person’s driving privileges will be suspended for 1 year. K.S.A. 1994 Supp. 8-1001(f)(1)(D). If the person consents to a test and the person’s blood alcohol concentration registers .08 or more, then the person’s driving privileges will be suspended for 30 days. K.S.A. 1994 Supp. 8-1001(f)(1)(E). The results of the test or the refusal to submit to a test may be used against the person at a criminal trial for driving while under the influence of alcohol. K.S.A. 1994 Supp. 8-1001(f)(1)(G), (H). Under K.S.A. 1994 Supp. 8-1014(b) and (c), if a person registers .08 or more on a chemical test, the division of motor vehicles shall “suspend the person’s driving privileges for 30 days,” then restrict the person’s driving privileges for an additional 330 days on the first occurrence.
I. DOUBLE JEOPARDY
The Fifth Amendment Double Jeopardy Clause of the United States Constitution states: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of fife or limb.” The double jeopardy guaranty is enforceable against the states through the Fourteenth Amendment. North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). Kansas also enforces an analogous double jeopardy clause in Section 10 of the Kansas Constitution Bill of Rights. It states: “No person shall ... be twice put in jeopardy for the same offense.” The double jeopardy protection guaranteed in the Kansas Constitution Bill of Rights is equivalent to the protection guaranteed in the United States Constitution. See State v. Cady, 254 Kan. 393, 396-97, 867 P.2d 270 (1994). The double jeopardy clause provides three different types of protection for a person charged with a crime. Double jeopardy protection shields an accused from: “(1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.” 254 Kan. at 396 (citing Brown v. Ohio, 432 U.S. 161, 165, 53 L. Ed. 2d 187, 97 S. Ct. 2221 [1977]).
Here, the first type of protection does not apply because the defendant was never acquitted of an offense. The State begins by addressing the second type of double jeopardy protection, protection against a “second prosecution for the same offense after conviction.” According to the State, the Department of Revenue license suspension proceeding was not a prosection or conviction; thus, the DUI criminal charge in question cannot subject the defendant to a “second prosecution.” Rather, the suspension proceeding was simply a civil, administrative sanction. As a civil sanction, the license suspension does not implicate double jeopardy because, the State reasons, a criminal and civil sanction may be imposed for the same act without violating double jeopardy. See United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361, 79 L. Ed. 2d 361, 104 S. Ct. 1099 (1984).
In support of this argument, the State cites to several cases which have found the suspension of a driver s license to be a civil proceeding, not a criminal proceeding. State v. Maze, 16 Kan. App. 2d 527, 825 P.2d 1169 (1992); Angle v. Kansas Dept. of Revenue, 12 Kan. App. 2d 756, 758 P.2d 226, rev. denied 243 Kan. 777 (1988). Moreover, the State points out the differences between the Department of Revenue’s revocation of a driver’s license and a criminal DUI prosecution. Many of the formalities required in a criminal DUI prosecution are not required in an administrative hearing to revoke a driver’s license. For instance, an administrative hearing differs from a criminal prosecution in that at an administrative hearing, the driver is not required to post bond for his appearance, the driver is not under a legal duty to appear, and the driver cannot be fined or imprisoned. Furthermore, the State has a different burden of proof in an administrative hearing than it does in a criminal prosecution, and the Department of Revenue does not enter a judgment of acquittal or conviction in an administrative hearing as a factfinder does in a criminal prosecution. See Ballard v. State, Motor Vehicle Division, 595 F.2d 1302, 1305 (Utah 1979); State v. Strong, 158 Vt. 56, 63, 605 A.2d 510 (1992).
Because the Department of Revenue’s proceeding to revoke a driver’s license is different from a criminal DUI prosection, the State contends the administrative proceeding does not qualify as a “criminal prosecution.” The license suspension is only a civil proceeding. Thus, even though the defendant’s license has been ad ministratively suspended, the defendant has not been “prosecuted” for the “offense” of driving while under the influence of alcohol. Therefore, a criminal DUI prosecution is not a “second prosecution for the same offense after conviction.” Consequently, the second type of double jeopardy protection is not implicated by the administrative license suspension.
The defendant does not contest that the suspension is a civil sanction rather than a criminal prosecution. The defendant does not argue that the second type of double jeopardy protection has been violated. Rather, the defendant contends that the third type of the double jeopardy protection is violated — protection from multiple punishments for the same offense. The trial court relied on the third type of double jeopardy protection in dismissing the charges against the defendant.
The third of type of double jeopardy protection guarantees that a defendant will not be subject to “multiple punishments” for the same offense. State v. Cady, 254 Kan. at 396. The defendant contends that the administrative license suspension is “punishment” for driving while under the influence. Thus, if the State is allowed to pursue a criminal DUI prosecution against the defendant, this would constitute “multiple punishment for the same offense.” Under this type of double jeopardy protection, it is irrelevant whether the license suspension proceeding is labeled a “civil proceeding” or a “criminal prosecution.” United States v. Halper, 490 U.S. at 447-50. Thus, even though the suspension proceeding may be a mere civil sanction and not a criminal prosecution, it can still qualify as “multiple punishment” and violate the third type of double jeopardy protection.
As a preliminary matter, the. defendant points out that the civil suspension proceeding and the criminal'DUI prosecution are separate, parallel proceedings which attempt to sanction the same offense. For instance, the issue in both proceedings is whether the defendant had a blood alcohol concentration of .08 or more. K.S.A. 1994 Supp. 8-1567(a)(2); K.S.A. 1994 Supp. 8-1002(a)(2)(D); K.S.A. 1994 Supp. 8-1014(b), The State does not contest this issue. A criminal DUI prosecution and conviction obviously constitute “punishment” for committing the crime of driving while under the influence of alcohol. Thus, the determinative issue, of this case is whether the civil license suspension constitutes “punishment” against the defendant for driving while under the influence of alcohol. If so, a criminal DUI prosecution which occurs after an administrative license suspension would equal “multiple punishment” for the same offense, thereby violating the third type of double jeopardy protection.
The crux of the defendant’s argument is based on the definition of punishment in United States v. Halper, 490 U.S. at 448-49. In Halper, the defendant was convicted of collecting 65 false Medicare reimbursement claims. For this offense, the defendant was fined $5,000 and sentenced to prison. Later, the Government brought a civil action against the defendant, seeking $130,000 in civil penalties for the same offense. The Government’s actual damages were $585. The court held that the civil monetary sanction of $130,000 was disproportionate to the harm actually caused and that it qualified as “punishment.” Since the defendant had already been criminally punished, the civil sanction constituted multiple punishment and violated double jeopardy.
Halper states that in determining whether a sanction qualifies as “punishment,” it is irrelevant whether a sanction is defined as a criminal or civil sanction. A civil sanction may constitute punishment if the sanction “serves the goals of punishment,” such as retribution and deterrence. 490 U.S. at 448. As Halper states:
“[T]he determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty [which the sanction] may fairly be said to serve. Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment.'
“These goals are familiar. We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence. [Citation omitted.] . . . From these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term [expansive definition of punishment]. [Citation omitted.] We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution [restrictive definition of punishment].” 490 U.S. at 448-49.
According to Halper, the court must use common sense to determine if a civil proceeding has a retributive, deterrent, or remedial purpose. The court must determine the “purposes actually served by the sanction in question” from an objective viewpoint and not from the subjective viewpoint of the defendant because “for the defendant even remedial sanctions carry the sting of punishment.” 490 U.S. at 447 n.7. Finally, Halper points out that it is a rule for the rare case. 490 U.S. at 449.
Johnson v. State, 95 Md. App. 561, 622 A.2d 199 (1993), found Halper does not apply to the analysis of whether a driver s license suspension implicates double jeopardy. Rather, Johnson holds that Halper applies to circumstances in which the govemmént seeks a monetary penalty to compensate the government for its loss. In Johnson, the court found the defendant was not subjected to a monetary fine but was merely deprived of his driving privilege; thus, the suspension does not constitute “punishment.” The Johnson court contended Halper did not affect its determination that license suspension did not constitute punishment or implicate double jeopardy. 95 Md. App. at 573-74.
Further, State v. Maze, 16 Kan. App. 2d at 535, addressed whether a license suspension and criminal prosecution of the same offense constitutes double jeopardy. In its analysis, the court stated: “The facts in Halper are materially different from this sanction, and its holding is not authority for Maze’s contention.”
In Loui v. Board of Medical Examiners, 78 Hawaii 21, 889 P.2d 705 (1995), the court analyzed the temporary suspension of a doctor’s license to practice medicine. The Loui court found Halper did not factually apply to the case at hand. Rather, the court asserted that Halper only applied to instances in which the government attempts to “extract monetary damages entirely unrelated to the goal of making the government whole in a civil proceeding from an individual who has already been ‘punished’ in a criminal proceeding.” 78 Hawaii at 27. The Loui court pointed out that it was not addressing the constitutionality of a monetaiy penalty used to compensate the government for its losses. Thus, Halper did not affect the court’s analysis that the medical license suspension did not violate double jeopardy. However, the Loui court did apply the broad legal principals of Halper that a civil penalty may constitute punishment if it carries forth the purpose of punishment. The Loui court analyzed whether the suspension sanction had a remedial, deterrent, or retributive purpose. It pointed out that a sanction may carry a remedial purpose even if it does not proportionately compensate the Government for a monetary loss. For instance, a sanction which protects the public from harm or a sanction which revokes a privilege that is being abused carries a remedial purpose. 78 Hawaii at 27 n.14.
United States v. Hudson, 14 F.3d 536 (10th Cir. 1994), supports the defendant’s position that Halper does apply to the facts at issue and that the definition of punishment is expansive. In Hudson, the defendants mismanaged several banks. As a result, the comptroller of currency prohibited the defendants from further participation in banking and charged the defendants a monetary penalty. Later, the Government criminally indicted the defendants for this same banking mismanagement. The defendants filed a motion to dismiss the indictments because a criminal conviction would constitute multiple punishment for this same offense and violate double jeopardy. In determining whether the banking prohibition or monetary penalty qualified as punishment, the court looked to its definition of “punishment” in Halper. The court found that unless a sanction is solely remedial, then it qualifies as punishment. However, the court tried to soften this rule by clarifying that a sanction does not qualify as punishment simply because it may be defined as having a retributive or deterrent purpose. A sanction is only punishment if it must be defined as having a partially retributive or deterrent purpose. 14 F.3d at 540.
The defendant also cites to Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 128 L. Ed. 2d 767, 114 S. Ct. 1937 (1994), which held that a tax imposed on the possession of illegal drugs was punishment and thus implicated double jeopardy. The defendant’s reliance on Kurth Ranch is misplaced for two reasons. First, contrary to the defendant’s position, Kurth Ranch seems to inter pret Halper as promulgating a restrictive, rather than expansive, definition of punishment. In analyzing Halper, the court quoted the clause of Halper that states a civil sanction is punishment if the sanction “ ‘may not fairly be characterized as remedial, but only as a deterrent or retribution.’ ” 128 L. Ed. 2d at 777. Thus, Kurth Ranch follows the interpretation that if a sanction has a remedial purpose at all, then it is not punishment. Consistent with this interpretation, Kurth Ranch states later in the opinion that “neither a high rate of taxation nor an obvious deterrent purpose automatically marks this tax a form of punishment.” 128 L. Ed. 2d at 779. The second reason the defendant’s reliance on Kurth Ranch is invalid is that the court specifically found Halper’s definition of punishment did not apply to the tax statute at issue in Kurth Ranch. In Kurth Ranch, the tax was found to be punishment not because of the Halper punitive purpose rule but because of several unusual features of the tax statute. Thus, Kurth Ranch does not apply to the situation at hand.
The State also cites to several cases which have wrestled with Halper’s definition of “punishment.” The strong majority of these cases find that civil sanctions, such as license suspension, do not violate double jeopardy. In so doing, each of these cases enunciated its own versions of what constitutes “punishment.” Here is a sampling of what these courts had to say:
Loui v. Board of Medical Examiners, 78 Hawaii 21, adopts the restrictive interpretation of Halper’s definition of punishment. It takes the viewpoint that a civil sanction qualifies as punishment only if the purpose of the sanction is solely retributive or deterrent. If the sanction has any remedial purpose, then it is not punishment.
State v. Strong, 158 Vt. 56, also interprets Halper more restrictively than the defendant does. This case finds that a civil sanction is punishment only if its purpose is solely retributive or deterrent. If any part of the sanction’s purpose is remedial, then the sanction is not punishment for double jeopardy purposes. The merely incidental retributive or deterrent effects of a civil sanction do not turn the sanction into a “punishment.” 158 Vt. at 62 (citing State v. Nichols, 169 Ariz. 409, 412, 819 P.2d 995 [Ct. App. 1991]). In fact, Strong contends there is a bright line rule that civil license suspension proceedings are not punishment. 158 Vt. at 62. However, the Strong court interpreted Halper s definition of “punishment” without the wisdom of Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993) (a case which expansively interpreted the Supreme Court’s own language in Hal-per as meaning a civil sanction is punishment unless it is solely remedial).
State v. Miller, 1995 WL 275770 (Ohio App. 1995), did have the Austin precedent to rely on, but it still interpreted the Halper definition of punishment restrictively. Miller states that a driver’s license suspension proceeding is primarily remedial. While such suspension does have the incidental effect of punishing and deterring drunk drivers, these punitive purposes do not qualify the sanction as punishment. In its analysis, Miller relies on footnote 7 of the Halper case, which states that a court should not determine the purposes of a civil sanction from the defendant’s perspective. This footnote states that even remedial measures have a “punishing” effect from the recipient’s perspective. In relying on footnote 7, Miller indicates that any incidental punitive purposes of a license suspension are not objective punitive purposes, but are only punitive from the defendant’s standpoint. Such incidental, subjective, punitive effects cannot be used to determine that a suspension qualifies as “punishment.” Miller at *3
In focusing on whether the purpose of the suspension sanction is remedial, deterrent, or retributive, this court must determine what type of purpose the sanction serves from an objective viewpoint, not from the defendant’s viewpoint. Thus, simply because the loss of one’s driver’s license may result in loss of employment and other personal problems for the defendant, this does not qualify the sanction as punishment. In an attempt to objectively analyze the suspension’s purpose, the State seems to argue that the sanction has a remedial purpose for two reasons. One, the sanction is remedial because it protects the public safety and welfare. Two, the sanction is remedial because it merely revokes a privilege.
First, the State contends the suspension serves a remedial purpose because it protects the public safety and welfare. The State points to Black’s Law Dictionary 1293 (6th ed. 1990), which defines remedial laws or statutes as “that which is designed to . . . introduce regulations conducive to the public good.” Moreover, In re Estate of Brown, 168 Kan. 612, 215 P.2d 203 (1950), states:
“ ‘Legislation which has been regarded as remedial in its nature include .statutes . . . having for their purposes the promotion of justice and the advancement of public welfare and of important and beneficial public objects, such as the protection of health, morals, and safety of society, or of the public generally.’ ” (Emphasis added.) 168 Kan. at 617 (quoting 50 Am. Jur. § 15, p. 33).
According to the State, the suspension sanction protects the public by preventing dangerous drivers from driving and is therefore remedial. In demonstrating that the sanction was promulgated for the public good, the State points to Lee v. State, 187 Kan. 566, 358 P.2d 765 (1961), and State v. Maze, 16 Kan. App. 2d 527. In Maze, 16 Kan. App. 2d at 535, the Court of Appeals noted the purpose of the civil sanction is to foster safety by removing dangerous drivers from the roads. Lee v. State, 187 Kan. at 571, found the purpose of the statute is to “promote public safety and welfare.”
Amicus cites to State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987); Popp v. Motor Vehicle Department, 211 Kan. 763, 766, 508 P.2d 991 (1973); Schowengerdt v. Kansas Dept. of Revenue, 14 Kan. App. 2d 147, 784 P.2d 387 (1989), and legislative committee testimony to show the suspension sanction was intended to help the public good and thus qualifies as a sanction serving a remedial purpose. For instance, in finding the suspension of a driver’s license which occurred before an administrative hearing was not a violation of due process, the Popp court stated the purpose of the suspension was to control highway safety. 211 Kan. at 764, 766. Schowengerdt, as well, stated that the purpose of the Implied Consent Law is “protecting the safety and welfare of the motoring public.” 14 Kan. App. 2d at 148. Adee stated the Implied Consent Law should be interpreted broadly in order to enact its public purpose. 241 Kan. at 829. Moreover, amicus points to testimony which Galen Davis gave on March 23, 1988. At the time, Mr. Davis was the Governor’s Special Assistant on Drug Abuse, and he testified before the Senate Transportation and Utilities Committee concerning the purpose behind the Implied Consent Law. He stated that the ultimate goal of the measures was to protect the health and safety of Kansas citizens by reducing the incidences of drinking and driving, alcohol-related crashes, injuries, and fatalities.
Finally, amicus cites two United States Supreme Court cases which acknowledged the implied consent laws at issue in the cases were enacted to satisfy a public benefit and purpose. Mackey v. Montrym, 443 U.S. 1, 17, 61 L. Ed. 2d 321, 99 S. Ct. 2612 (1979); Dixon v. Love, 431 U.S. 105, 52 L. Ed. 2d 172, 97 S. Ct. 1723 (1977). In Mackey and Dixon, drivers had their licenses suspended before an administrative hearing was held. The Supreme Court in Dixon found this did not violate due process in light of, inter alia, “the important public interest in safety on the roads and highways, and in the prompt removal of a safety hazard.” 431 U.S. at 114; see Mackey, 443 U.S. at 17;
Amicus acknowledges that some Kansas cases have referred to the. license suspension sanction as having a deterrent effect. Furthmeyer v. Kansas Dept. of Revenue, 256 Kan. 825, 888 P.2d 832 (1994), stated: “The purpose of the implied consent law (K.S.A. 8-1001) is to coerce submission to chemical testing through the threat of the statutory penalties of license revocation.” (Emphasis added.) 256 Kan. at 835 (citing State v. Bristor, 236 Kan. 313, Syl. ¶ 3, 691 P.2d 1 [1984]).
The defendant also points to the legislative committee testimony by Galen Davis. While Mr. Davis asserted the ultimate goal of the Implied Consent Law was public safety, as amicus previously pointed out, Mr. Davis also stated: “[T]his bill would increase the length of driver’s license suspensions in accordance with National Highway Traffic Safety Administration standards for effective DUI deterrence.” According to the defendant, this testimony indicates the sanction does not have a solely remedial public purpose because one purpose of the sanction is deterrence. Thus, the defendant argues the suspension has a partially punitive purpose and must qualify as punishment for double jeopardy purposes under the expansive Halper standard.
Finally, the State attempts to show how the district court was incorrect in its analysis. First, the district court did not rely on State v. Maze, 16 Kan. App. 2d 527. Maze is a Court of Appeals case which addressed this exact issue and found that a license suspension was not “punishment” for double jeopardy purposes. 16 Kan. App. 2d at 534. The district court found that Maze summarily dismissed the Halper rule and instead relied on the distinction between criminal and civil sanctions. Thus, the district court did not rely on Maze.
However, amicus contends that Maze did not dismiss Halper. Rather Maze applied the standard as explained in Halper and found that the civil license suspension did not serve the goals of punishment. We agree. While Maze did assert “[t]he facts in Halper are materially different from this action, and its holding is not authority,” 16 Kan. App. 2d at 535. Maze still indicated the purpose of the suspension sanction was remedial. As Maze states:
“The revocation of a driver’s license is part of a civil/regulatory scheme that serves a vastly different governmental purpose from criminal punishment. Our State’s interest is to foster safety by temporarily removing from public thoroughfares those licensees who have exhibited dangerous behavior, which interest is grossly different from the criminal penalties that are available in a driving while under the influence prosecution.” 16 Kan. App. 2d at 535.
Even though Maze asserts that Halper does not apply, the above language seems to indicate the sole purpose of the sanction is the remedial purpose of public safety. It appears the sanction does not qualify as punishment under the Halper standard, even if Maze would have applied Halper.
In finding the civil sanction to be punishment, the district court also found the suspension sanction carried the purposes of deterrence and retribution due to the warnings an officer must provide before the officer can perform a blood alcohol test. Moreover, the district court pointed to the negative consequences which can result if one’s driver’s license is revoked, such as loss of employment, as an indication .that the suspension sanction has deterrent and retributive purposes. According to amicus, the district court determined the purposes of the sanction from the viewpoint of the defendant. Amicus points out that Halper specifically made it clear the court should not determine the purposes of a sanction from the defendant’s perspective. Thus, the State and amicus contend that the district court was incorrect in its determination that the sanction served punitive as well as remedial purposes.
We hold the suspension sanction in this case serves a purpose which is solely remedial, in that the sanction’s purpose is to protect the public. The suspension sanction quickly removes dangerous drivers from the street to prevent them from injuring anyone. Any harmful effect which the sanction may have on the driver simply indicates that the sanction may appear to be punitive from the driver’s perspective. Such harmful effects do not necessarily indicate that the sanction carries purposes of punishment , such as deterrence and retribution. While certainly the-sanction may be interpreted as having punitive effects, this does not mean the sanction must be interpreted as having punitive effects. Hudson, 14 F.3d at 540. Thus, the sanction does not serve the purpose of punishment. Rather, it protects the public safety as a solely remedial sanction. Moreover, following Halpers suggestion as to what factors might make a sanction remedial, the suspension of a driver’s license seems proportionate to driving with a .08 or greater blood alcohol concentration.
Next, the State contends the suspension sanction carries a solely remedial purpose because it is simply a revocation of a privilege granted by the State. According to Emory v. Texas State. Bd. of Medical Examiners, 748 F.2d 1023, 1026 (5th Cir. 1984), a sanction which revokes a privilege is remedial. In Kansas, a driver’s license is not a natural right, but a privilege granted by the State. Lee v. State, 187 Kan. at 570-71. If a driver abuses this privilege, the State is entitled to take the privilege away. See Agee v. Kansas Highway Commission, 198 Kan. 173, 180, 422 P.2d 949 (1967).
In Agee, 198 Kan. at 180, a license suspension was upheld because a driver did not post a security after an accident. In so holding, the court stated:
“Finally, hardship resulting from the suspension of a license, or of a vehicle registration, constitutes no defense to an order suspending either one or both of them. It is established law that the right to operate a motor vehicle upon public streets and highways is not a natural right, but a privilege, subject to- reasonable regulation in the public interest. [Citations omitted.] Being a privilege, the right of operation is subject to suspension when the public interest and welfare reason ably requires. Personal hardship has no bearing on the matter. It is self-evident that [the defendant’s] complaint of harmful consequences to himself and family furnishes no ground for vacating the Department’s order. ” (Emphasis added.)
Finally, Popp v. Motor Vehicle Department, 211 Kan. at 766, and Schowengerdt v. Kansas Dept. of Revenue, 14 Kan. App. 2d at 149, found that driving is not a natural right, but a privilege. If a driver does not abide by the conditions of the privilege, the license is subject to suspension in order to protect public safety and welfare. A sanction which revokes a privilege is a remedial sanction, not a punitive sanction. We hold the sanction in this case is remedial for two reasons. One, it is remedial because it protects the public welfare. Two, it is remedial because the suspension revokes a privilege which is being abused.
The trial court erred in holding double jeopardy principles prevented the State from proceeding with the charge of driving while under the influence of alcohol against the defendant and dismissing the case against him.
Reversed and remanded for trial. | [
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|
The opinion of the court was delivered by
Johnston, J.:
Two principal questions are presented for decision by the defendants’ demurrer: First, is the metrópoli tan-police act, under which the police officers and servants of Kansas City, Kansas, were appointed, employed and acting, constitutional ? And second, will the remedy of mandamus lie to compel the mayor and council to pay the salaries of the officers and servants of that city ?
The first point has been determined adversely to the contention of the defendants, in the recent case of The State, ex rel., v. Hunter, ante, p. 578, same case, 17 Pac. Rep. 177, in which the constitutionality of the act was sustained; and it is needless to repeat here the reasons for that ruling.
The second point must be ruled in favor of the defendants. All that is sought by the proceedings is to enforce the payment of the salaries and claims of the officers and servants of the city. Their claims are not unlike those due from the city to any ordinary creditor; and hence there is no occasion to invoke the extraordinary aid of the courts by mandamus. Mandamus is one of the extraordinary writs, and is never issued where there is a plain and adequate remedy in the ordinary course of the law. An eminent author, in treating of this subject, says:
“ In conformity with the general rule, it is held that mandamus will not lie to municipal authorities requiring them to pay salaries which are due from the corporation to its officers, a salary being regarded as an indebtedness of the corporation which may be enforced by action of assumpsit; and mandamus is not designed as a remedy for the collection of debts.” (High Ex. Rem., §341.)
The same doctrine was announced by this court in the case of The State v. McCrillus, 4 Kas. 250, and has been repeatedly declared since that that time. (The State v. Bridgman, 8 Kas. 458; Byington v. Hamilton, Treas., 37 id. 758; same case, 16 Pac. Rep. 34.) The salaries of the officers and persons for whose benefit this proceeding is brought are mere debts against the city, and may be recovered in an ordinary action, like any other debt, and under the authorities cited mandamus cannot be maintained.
It is unnecessary to discuss and determine the other ques tions raised by counsel on the demurrer, as the consideration of the second point disposes of the case.
The demurrer will be sustained, and the proceeding dismissed.
All the Justices concurring. | [
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|
The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Sedgwick county, on August 17,1885, by William L. Beebe, James W. Beebe, and Lawrence O. Beebe, partners as W. L. Beebe & Brothers, against the Wichita & Western Railroad Company, to recover damages for obstructing an alleged natural water-course. Before the trial, and on November 21, 1885, the railroad company offered, in writing, to allow judg ment to be taken against it for the sum of $213.01, and for costs of suit up to that date. This offer was first filed with the clerk of the district court, and immediately thereafter was presented to the attorneys of the plaintiffs below, and was declined by them, in writing. The following (omitting caption) is a copy of the offer and refusal, and the file-marks:
“Now comes the defendant railroad company, by Houston & Bentley, its attorneys, and offers in court to confess judgment in the above cause, for the sum of two hundred and thirteen dollars and j^-, and for the costs of this action to date.
Houston & Bentley, Defendant’s Attorneys.”
(Indorsed:) “The above plaintiffs refuse to accept the confession of judgment in the above cause.
E. C. Ruggles, Attorney for Plaintiffs.”
(Indorsed:) “Filed November 21, 1885.
C. A. Van Ness, Olerh.”
The foregoing offer was made under § 523 of the civil code, which reads as follows:
“The defendant, in an action for the recovery of money only, may, at any time before the trial, serve upon the plaintiff or his attorney an offer in writing, to allow judgment to be taken against him for the sum specified therein. If the plaintiff accept the offer and give notice thereof to the defendant or his attorney, within five days after the offer was served, the offer and an affidavit that the notice of acceptance was delivered within the time limited, may be filed by the plaintiff, or the defendant may file the acceptance, with a copy of the offer verified by affidavit; aud in either case the offer and acceptance shall be noted in the journal, and judgment shall be rendered accordingly. If the notice of acceptance be not given in the period limited, the offer shall be deemed withdrawn, and shall not be given in evidence or mentioned on the trial. If the plaintiff fails to obtain judgment for more than was offered by the defendant, he shall pay the defendant’s costs from the time of the offer.”
Afterward, and on November 30, 1885, the case was tried before the court and a jury, and a verdict was rendered in favor of the plaintiffs below and against the defendant below, for $180. After this verdict was rendered, and before judgment, the railroad company moved that judgment be taken against it for $180 and costs of suit, up to and including November 21, 1885, and that judgment be rendered against the plaintiffs for all costs which accrued after that date, for the reason that the railroad company had made the above-recited offer, and that it was not accepted by the plaintiffs below. The court overruled this motion, and rendered judgment in favor of the plaintiffs below and against the defendant below, for $180 and all the costs of suit; and to reverse this judgment to the extent of the costs which accrued after November 21,1885, and up to the time when the judgment was rendered, the defendant, as plaintiff in error, brings the case to this court.
It is difficult to understand why the defendant’s motion was not sustained, and why the costs of suit after November 21, 1885, and before the time of the rendering of the judgment, were not assessed against the plaintiffs below. (Clippenger v. Ingram, 17 Kas. 586; Masterson v. Homberg, 29 id. 106.) All the above-stated facts were admitted by the parties in open court at the time the motion was heard. It is true that the offer to confess judgment or to allow judgment to be rendered against the railroad company was not made in open court, nor was it necessary; and it is also true that the offer was first filed with the clerk, and then presented to the plaintiffs’ attorneys, while the statute contemplates that it shall be first presented to the attorneys and then filed; but the whole thing was done on the same day, and substantially at the same time, and the variance was not substantial. Neither was the trial court’s attention called to the offer until after the verdict was rendered; but that is immaterial. Indeed the defendant, through its attorneys, substantially complied with the law.
The judgment of the court below will be reversed, and the cause remanded, with the order that judgment be rendered in accordance with the views herein expressed.
All the Justices concurring. | [
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Opinion by
Holt, C.
This is the second time this case has been in this court. (33 Kas. 446.) Upon the retrial of the case there was a verdict for plaintiff, and judgment thereon. Thé jury answered the following questions of fact submitted by plaintiff:
“1. Did the engineer of the train blow the whistle of the locomotive eighty rods west of the public crossing where plaintiff’s cattle were killed and injured ? Ans.: No.
“ 2. As soon as the engineer saw the cattle, did he apply the brakes to stop the engine? A. No.
“3. Could the engineer in charge of the engine, from the time he saw the- cattle upon the track, by the exercise of ordinary care and prudence have stopped the engine and train in time so as to have prevented the injury to the plaintiff’s stock ? A. Yes.
“4. Could the engineer in charge, by the exercise of ordinary diligence and care, have seen the cattle upon the crossing before the whistling-post immediately west of the crossing was reached? A. Yes.”
These questions and answers are sufficient of themselves, with the admissions of the defendant, to sustain .the judgment rendered by the court; but in connection with the first question and answer, it is also found by the jury upon questions submitted by the defendant as follows:
“ 27. When the train was eighty rods west of the crossing when plaintiff’s cattle were struck, could he then, have prevented his cattle from being struck ? A. The plaintiff could not.”
“ 29. As the plaintiff and his cattle were situated when th'e train was eighty rods west of the crossing, could a whistle blown upon the locomotive have prevented the injury ? A. We do not. know.”
Upon the . authority of Morrow v. Comm’rs of Saline Co., 21 Kas. 484; we are compelled, to hold that although it might have been negligence .on the part of the defendant company not to have blown the whistle at the whistling-post, yet under the answers of the jury it did not contribute to the injuries sustained, and therefore the omission to blow the whistle was unimportant in this case.
Findings two and three are challenged upon the ground that they are not supported by the evidence. The engineer himself testified:
“As soon as I saw the stock, I immediately put on the air-brakes and reversed the engine, and stopped in about three hundred yards. . . . After I first saw the cattle it would have been impossible to have stopped the train before it reached them.”
There is no positive testimony to contradict his statement; it can be done only from an inference drawn from other portions of the testimony. The answer to the other question submitted by plaintiff is also claimed to be without evidence to support it. The engineer also testified in this connection:
“After I had passed the whistling-post I saw the cattle come upon the track; they were running, and were all bunched together, the fore feet of some of them on the backs of others. When I first saw them I think I was about eighty yards from the crossing. I had seen one cow go across the track just before, but there were no others in sight, and I did not know there was any more stock about there.”
The testimony-in-the case shows that the east-bound train on the Union Pacific railroad struck the cattle at a public crossing near Lenape, and that west of the crossing the track extends in a straight line -about a mile; that the plaintiff was south of the railroad, driving his cattle north along a public road which crossed the track; on the west side of the road along which he was driving his cattle was a high hedge fence, and west of the fence was a field of corn; the hedge fence extended up to the right-of-way of the railroad company; the plaintiff had about fifty head of cattle, and .was driving them along, leisurely at the rate of about two miles an hour; the herd was somewhat stretched out, and he himself was some fifteen paces behind the last one; he did not see the engine or know of its approach until the train was .within fifty or sixty yards of the crossing; he attempted to go around the cattle to drive them from the track, but was unable to do so before the cattle in question were killed. There is some testimony tending to show that some of the cattle had crossed the track to the north, and were some little distance from the track. The plaintiff testified in the former trial that when he first saw the engine the foremost cattle of the herd were upon the track; and when he was asked at this trial if such was his testimony in the first trial, his attorney admitted it was, and added that he stated that to be the fact now. There is no other proof that the cattle, just at the time they were struck, were running upon and trying to cross the track.
Now the sole question to be decided in this case is, whether the findings of fact numbered 2, 3 and 4, submitted by the plaintiff, are sustained by the evidence. "We do not believe they are, even by a fair construction of the plaintiff’s own testimony in the case. The fact that he said that the foremost cattle were upon the track when he first saw the smoke only sixty yards from the crossing, would seem to indicate that the engineer could not have seen the cattle upon the crossing before the whistling-post was reached. It is established by the testimony that until the cattle got beyond the line of the hedge fence beyond the corn in the field, they could not have been seen from the railroad at any considerable distance west of the crossing; they must have been upon the right-of-way before they could have been discovered by the engineer of the approaching train.
We believe the findings of the jury were not sustained by the evidence in this case, and we recommend that the judgment based thereon be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The questions discussed in this controversy arejpublic in their nature, and involve some very important consequences to the people in many townships. They all arise on the construction of the act to enable counties, townships and cities to aid in the construction of railroads, etc. (Comp. Laws of 1885, pp. 783-785.) Here two railroad companies are contending that each is first entitled to have the bonds of Agency township, in Osage county, issued to it, be cause of elections authorizing subscriptions to their capital stock, the subscriptions having been made on certain terms and conditions, and performance of all these having been duly made by each of said companies. It is conceded by stipulation, that all the election proceedings which authorized subscriptions to both roads are regular and valid. The election for a subscription to the capital stock of the Kansas, Nebraska & Dakota Railroad Company was ordered on the 28th day of December, 1885, to be held on the 9th day of February, 1886, and was so held on that day. The returns were canvassed on the 12th day of February, 1886, and it was declared as the result of said election that a majority had voted in favor of making such subscription. On the same day, February 12, the board of county commissioners ordered the county clerk to make such subscription, on the terms and conditions submitted in the order for" the election ; and thereupon on that day he subscribed to the capital stock of the Kansas, Nebraska & Dakota Railroad Company, as set forth in the statement of this case. On the same day the subscription was accepted in writing, by the railroad company. The road was completed in accordance with the terms and conditions of the subscription, on or before the 11th day of November, 1886; on that day it delivered the stock of the road to the treasurer of the township, and bonds were accordingly issued to it t<| the amount of twenty-six thousand dollars. The election fon a subscription to the capital stock of the Ottawa, Osage City & Council Grove Railroad Company was ordered on the 5th day of January, 1886, to be held on the 20th day of February, 1886, and was so held. The returns were canvassed on the 26th day of February, 1886, and it was declared as the result of such canvass that a majority had voted in favor of making the subscription. The county clerk was ordered by the board of county commissioners to make such subscription on the 26th day of February, 1886, and on that day he made the subscription to the capital stock of the Ottawa, Osage City & Council Grove Railroad, as set forth in the order calling the election. The road was completed on the 2d day of August, 1886, in substantial compliance with all the terms and conditions imposed by the subscription. Tender of stock and demand for the bonds of the township were made to the board, and refused for the reason that there was a previous subscription to the capital stock of the Kansas, Nebraska & Dakota Railroad Company, for which bonds had been issued, and that the aid so voted to the two companies would amount in the aggregate to more than $15,000 and 5 per cent, of the assessed value of the property of said township, and thus exceed the limit of the issue of the bonds as authorized by law. It is stipulated that the Ottawa, Osage City & Council Grove Railroad Company was duly consolidated with and has become a part of the relator, the Chicago, Kansas & Western Railroad Company.
The theory of counsel for the relator is, that the limitation applies to the amount of bonds to be issued to any one railroad company; that the township can subscribe to the capital stock and issue bonds in payment therefor to several railroad companies, but can only subscribe stock and issue bonds to any one of that number, to the extent of $15,000 and 5 per cent, of the assessed value of the property of said township; that the power of the township to subscribe stock and issue bonds is unlimited as to the number of railroads in whose aid this can be done, but is limited as to the amount it can aid Iny one particular railroad.
. It is also claimed on behalf of the relator, that under the act of the legislature the subscription by a township to the capital stock of a railroad company is but one of a series of acts that are all made or done on the condition of ultimate performance by the railroad company of all the terms and conditions upon which the subscription was voted; that it requires performance of the vote and subscription, and nothing short of that, to create a contract; and that the date-of the performance is the date of the contract.
I. We shall first consider the nature of the limitation contained in §1, because if the construction contended for by the relator is the true one, the peremptory writ must be issued. That section is as follows:
“ Section 1. Whenever two-fifths of the resident tax-payers of any county, or two-fifths of the resident tax-payers of any municipal township, shall petition in writing the board of county commissioners, or whenever two-fifths of the resident tax-payers of any incorporated city shall petition the mayor and council of such city, to submit to the qualified voters of such county, township, or city, a proposition to subscribe to the capital stock of or to loan the credit of such county, township or city, to any railroad company constructing or proposing to construct a railroad through or into such county, township, or city, the county commissioners for such county or township, or the mayor and council of such city, shall cause an election to be held to determine whether such subscription or loan shall be made: Provided, No county shall issue under the provisions of this act more than one hundred thousand dollars and an additional five-per-cent, indebtedness of the assessed value of such county; and no township shall be allowed to issue more than fifteen thousand dollars and five per cent, additional of the assessed value of the property of such township; and in no case shall the total amount of county, township and city aid to any railroad company exceed four thousand dollars per mile for each mile of railroad constructed in said county: Provided further, That at any subsequent election to be held for the same purpose the same shall not be held unless upon a petition of a majority of the legal voters of such county, township, or city.” (Comp. Laws of 1885, ch. 84, § 68.) W
It would seem that there could not be very much variem of opinion as to the scope, bearing and effect of this limitatic®. As we construe it, the limitation restricts the power of the county, township or city to issue bonds to aid in the construction of railroads to a certain amount, no matter whether to one or several railroads. No county, township or city can under any circumstances issue, if a county, more than $ 100,000 and an additional five-per-cent, indebtedness of the assessed value of such county, or if a township, more than $15,000 and five per cent, of the assessed value of the property of such township, to aid in the construction of railroads. This is the limit of their power to issue bonds for railroad purposes, under the provisions of this act. Applying every rule of statutory construction to this provision, the words, context, subject-matter, the spirit and reason of the law, and it results in the inevitable conclusion that the intent of the legislature was to place a limit on the amount to be voted to aid railroads. If added strength to plain legislative expression is necessary, it can be found in the concluding words of the proviso : “And in no case shall the total amount of county, township and city aid to any railroad company exceed four thousand dollars per mile for each mile of railroad constructed in said county.” The two preceding provisions are, that “ no county or township shall issue under the provisions of this act more than,” etc., etc. The concluding one is, “in no case" shall the. total amount of county, township and city aid to any railroad company exceed,” etc., etc. The section means that a county can issue only $100,000 and an additional five per cent, of the assessed value. This issue may be to only one railroad company, or it may be divided between several; but if the full amount is at first subscribed to some one railroad company, it has no power to subscribe to the capital stock of any other railroad company. So with a township: it can subscribe $15,000 and an additional five per cent, of its assessed value to aid the construction of railroads through it; the full amount can be subscribed to one railroad company, or it can be divided bgjween several companies; but if it subscribes the full amount a»wed to one company its power is exhausted, and it cannot subscribe to others. These are plain provisions, clearly expressed, easily understood, and not difficult to enforce; and being legislative commands, are as binding on this court as they are on the people and agents of the various municipalities and the railroad companies.
When the legislature of the state, by a series of enactments éxtending through several sessions, and continuing for years, makes it plain that there has been adopted with reference to a certain question a settled state policy, its legislation on that question must be viewed by the court in the light of that policy. The first general act authorizing counties to vote aid in the construction of railroads was passed, by the legislature of this state at the session of 1865, and it authorized the counties to subscribe an amount not exceeding $300,000 in any one corporation. Its practical operation worked great hardships in some of the counties of the state, and the limit has been gradually reduced until now the maximum aid to any one railroad company cannot exceed $2,000 per mile. The first general law authorizing townships to subscribe to the capital stock of railroad companies, and thus aid in their construction, was passed in 1870, and since that time the legislative tendency has been to reduce the amount, so that it can be fairly said that the fixed legislative policy has been to reduce the amount of subscription; and our construction must harmonize with such a policy. The same view of the limitations contained in this section was taken by this court in the case of Turner v. Comm’rs of Woodson Co., 27 Kas. 314. The limitation was applied to a different state of facts, but it is stated in plain terms and unmistakable language in the opinion in that case, that “the prohibition in the statute is on the issue of the bonds, no matter what amount may be issued or voted; the statute steps in and prescribes a limit beyond which the commissioners may not go.” This authoritative construction of the-prohibitory clause necessarily excludes any such construction fis is now contended for. It may be, if only one railroad can-, be built through a township by virtue of this construction, that its existence may encourage monopolistic tendencies; but this is a stricture upon the policy of the enactment, and should be directed to the legislature rather than to the court.
II. It is stipulated that the taxable property of the township of Agency, on the date of the completion of the Chicago, Kansas & "Western Railroad through the township, was the sum of $219,169.22, and as the bonds issued to the Kansas, Nebraska & Dakota Railroad were for the full amount authorized by law, the limitation contained in § 1 prevents an issue of bonds to pay the subscription to the first-named railroad company; and this necessitates the determination of the other question raised and discussed by counsel for the relator.
If there is any legal obligation created against a town ship, by virtue of a subscription to the capital stock of a railroad company, it arises from the fact that the action of the township with respect to the vote, subscription, and other proceedings prescribed by the statute authorizing it, are regarded as a contract. Quite a number of the very many questions presented by such statutory provisions have been determined by courts of last resort in this country, and various other features of such enactments have been incidentally considered, and some of the results of all judicial investigation with reference to these enactments may be thus summarized: That the purpose of an election under the statute is to ascertain whether the popular will would authorize and sanction such a subscription; the people in their primary capacity cannot contract; they can approve or disapprove a contract made by their agents; the power to contract is vested solely in the board of county commissioners; the board must be empowered to so contract, by a vote of the people; when it is so empowered,. j|tcau bind the municipality by a contract. Thus far there s]pms to be unusual unanimity in the decisions, and all these-propositions are conceded by counsel for the relator. They coijcede that there must be a contract; that their right to enforce performance against the defendant county board rests on contract; but their precise contention is, as to the date of the contract. They say that a subscription under the law is conditional upon the performance of a certain act, or a series-of acts, in a certain designated manner, and within a certain prescribed time, and then that there is no undertaking whatever on the part of the railroad company, either that it will perform these conditions, or surrender the stock in exchange-for the bonds upon the performance of the conditions, and that these things distinguish a subscription under the provisions of the statute, from an ordinary subscription of stock by an individual, which contemplates nothing but the payment of money and the reception of the stock.
This statement of the counsel for the plaintiff of the nature-of a municipal subscription, the resulting logic of which is that in all cases there must be an exact and literal performance- of all conditions before any obligation arises as against the municipality, totally ignores the manifest fact that in this case there was, contemporaneous with the subscription by the county clerk, as ordered by the county board, to the capital stock of the Kansas, Nebraska & Dakota Railroad Company, a written acceptance of said subscription, made and filed by the railroad company. So that, independent of the legal consequences of the act of subscription by the county clerk as ascertained and determined by statutory construction, this case presents a written agreement, by which the county clerk, duly empowered, made a subscription upon certain express conditions, and it was accepted by a positive act of the corporation, evidenced by its writing, and signed by its president. This constitutes an express and specific agreement as between the township of Agency and the Kansas, Nebraska & Dakota Railroad Company, which either party could enforce by proper action. The great weight of authority is, that the act of the subscription by the officer duly authorized by a favorable vote of the people, whose agent he is, constitutes a contract. (1 Rorer on Railroads, p. 126, and authorities cited in footnotes; Aspinwall v. Comm’rs of Daviess Co., 63 U. S. 364.) The case of U. P. Rly. Co. v. Comm’rs of Davis Co., 6 Kas. 256, decides the proposition contended for by counsel for the relator, adverse to their views. In that case there was substantial performance of the conditions of the vote authorizing the county commissioners to subscribe, but they never did subscribe, and hence this court holds that there was no contract. The vote authorizing the commissioners to subscribe did not create a contract; it only empowered them to contract; they never did make any contract; they never did subscribe to the capital stock of the railroad company; and although the railroad company built the road through the county in substantial compliance with the terms of the vote, the act of subscription was wanting, and the railroad company could not get the bonds. The logic of this case is in harmony with all others on the subject, that the act of subscription creates the contract.
The contract made with the Kansas, Nebraska & Dakota railroad company, by the act of subscription to its capital stock by the county clerk, on behalf of the township of Agency, having been performed by the railroad company in all respects, and having been made before the contract with the relator was created by a subscription to its capital stock, and the full amount of bonds which the township of Agency was authorized to issue, at the time of performance of the conditions of the contract by the Kansas, Nebraska & Dakota Railroad, having been issued and delivered to that railroad company, a peremptory writ of mandamus is refused the relator.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The error complained of is the rendition of a judgment against the city for the costs of this action, amounting to $213. An action was instituted by the defendant in error against the city of Enterprise, a city of the third class, to recover for his services as surveyor and civil engineer, in establishing a system of grades for streets, buildings and other purposes. The case was tried by a jury, at the January term, 1885, of the district court of Dickinson county, and a verdict was returned and a judgment rendered- against the city for $18 and costs. It is now insisted that the judgment for costs was erroneous because it was not shown that the claim had been presented to the city council “in writing, with a full account of the items, and verified by the oath of the claimant or his agent that the same is correct, reasonable and just,” as is required by § 48 of chapter 19a, Comp. Laws of 1885.
There is an allegation in the bill of particulars filed by the defendant in error, that “he did personally present to the common council of said city, defendant, at one of its regular sessions, a statement or demand of his claim, in the sum of $100, which said council refused to allow and pay.” At the trial the defendant in error produced and had read from the record of the proceedings of the mayor and councilmen of said city of Enterprise, had on the 8th day of September, 1880, the following:
“ Committee on claims report that the bill of James Fowler, county surveyor, be not allowed. Moved that the report of the committee be tabled. Ayes: Hoffman, Upshon, Dees, Wright, (4;) absent, 1.”
And the following entry on the 5th day of October, 1880:
“On motion, the claim of James Fowler, surveyor, taken up. On motion of C. Hoffman, a claim of $10 be allowed. Ayes: Dees, Wright, Upshon, and Hoffman, (4;) absent, 1.”
The defendant in error testified: “I presented a bill for $100; they refused to pay the bill, and offered me *$10. I do not know whether it was a regular meeting or not.”
To all this evidence there were objections noted, and there was also an objection to the introduction of any evidence, because the bill of particulars did not state facts sufficient to constitute a cause of action, because, we suppose, it was not specifically alleged that the claim was presented in writing. This is too technical; there was an allegation in the pleading that justified the introduction of the.evidence. (City of Atchison v. King, 9 Kas. 560; City of Abilene v. Hendricks, 36 id. 196.) And it sufficiently appears that the claim was in writing. It was presented; referred to a committee; reported back from the committee; and then called up and acted upon. The irresistible inference from these recitations in the record is, that the claim was presented in writing. The city council voted to pay a part of the demand, and the defendant in error refused to accept it, brought his suit, and recovered a greater amount than the city offered to pay. In the absence of any showing to the contrary, the presumption is that the claim was presented as is required by the statute. The plaintiff in error, whose city clerk was the custodian of its records and of the claim presented to the council, could easily have shown that the claim was not in writing if such was the fact. It is true that the burden was on the defendant in error to show that he had duly presented his claim to the city council. We think he did so as against all merely technical objections. He had made a prima facie case that could be overcome only by a positive showing that the claim was not presented in the exact form required. We think substantial justice has been done, and recommend the affirmance of the judgment.
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 proceeding is brought to reverse a judgment obtained by Childs & Livingston, in the district court of Barton county, on the 19th day of February, 1885. It appears that Childs & Livingston purchased a pump from Dodge & Co., who were to put it in a drill-well about 230 feet deep, upon the premises of Childs & Livingston, in a good and workmanlike manner, and so that it would operate satisfactorily. Dodge & Co. sent one of their agents, named Mulks, to put in the pump. He proceeded to do so, with the assistance of Livingston, and in lowering the pipes of the pump into the well, a derrick, windlass, rope and dog were used. The manner in which the operation is performed is described by counsel as follows:
“First, the cylinder containing the lower valves was screwed to a joint of pipe 16 feet long; then the rope was ‘hitched’ to the other end of the joint, and by the use of the windlass and a rope passing over a pulley in the derrick, the first section was elevated into a perpendicular position, the lower end being raised just high enough to clear the mouth of the well. Then the dog through which the pipe was passed was set immediately over the mouth of the well. This dog consisted of a piece of heavy plank about one foot square, with a hole in the center large enough to allow the pipe to pass through, and an iron lever hung upon a pivot, the longer and heavier arm of the lever extending toward the hole, and when left free, reaching a little beyond the side of the hole nearest the pivot. Consequently, from its construction, when the pipe was lowered through the hole in the dog, and the lever of the dog was left free, the longer and heavier arm would descend, and the end of it come in contact with the pipe and clamp, and press the pipe against the opposite side of the wooden plank, thus stopping the pipe in its descent into the well, and holding it firmly. The dog was made use of for the purpose of catching the pipe in case by accident it should become loose from the rope and fall. When one joint was thus lowered almost its entire length, the windlass was locked. The upper end of the joint, now about one foot above the mouth of the well, was firmly clasped with tongs made for that purpose, and the second joint was screwed on and lowered into the well. This operation was repeated until about one hundred feet of pipe had been lowered into the well. At this point, in consequence of having been unevenly wound around the drum of the windlass, the rope gave a jerk and slipped off the end of the pipe, and the dog being at that time held open by a monkey-wrench lying upon the shorter arm of the lever, the hundred feet of pipe fell into the well.”
In endeavoring to take,_the pipe out, the tubing in the well was removed and the well caved in, causing the injury for which this action was brought. At the time of the occurrence, Livingston was operating the windlass, and Mulks was attending to the dog.
Childs & Livingston contended that it was through Mulks’s negligence in the hitching of the rope on the end of the pipe and in the operation of the dog, that the pipe fell into the well; and that Livingston only worked under the direction of Mulks. On the other hand, Dodge & Co. contended that Livingston assumed to direct the operation of putting down the pipe, and furnished the appliances which were used; and further, that Mulks left the dog by the direction of Livingston and to assist him in operating the windlass, and that it was while Mulks was applying the brake to the windlass by the order of Livingston that the pipe fell.
Some time after the pipe had fallen, the parties went to a farm house about two miles distant for dinner. While at the dinner table, a conversation occurred in regard to how the pipe happened to fall into the well, and Mulks is said to have admitted that the accident was the result of his own negligence. Several persons who were present at the dinner table were called as witnesses, and, over the objection of plaintiffs in error, were allowed to testify to the admissions of Mulks; and this is the principal error complained of.
From the claims of the parties, and the facts stated, it is obvious that the admissions of the agent Mulks are important, and perhaps were controlling with the jury in the conclusion arrived at. It is equally clear that the testimony was incompetent and inadmissible upon any ground. In general, the declarations and admissions of an agent do not bind the principal. In this case, the declarations and admissions of the agent were not made in the performance of his duty, nor in connection with the act charged to have been negligent and which formed the subject of inquiry. To be admissible, the declarations of the agent must have constituted a part of the res gestee. In other words, they must stand in immediate relation and serve to explain and illustrate the particular act or acts which are in litigation. The controversy here Avas whether the act of Mulks or Livingston occasioned the accident and the injury. The declarations .were made several hours subsequent to the happening of the accident, had no necessary connection Avith it, and are but statements concerning a past transaction. It is true, that Mulks afterward returned and made efforts to fish out the pipe and to properly place the pump, but the declarations complained of were not incidental nor related to any of these acts. They related only to the accident Avhich had already occurred. The inquiry and ultimate fact sought to be proven was whether this accident was the result of the agent’s negligence. The subsequent declaration of the agent regarding the transaction is not the ultimate fact to be proven, and is therefore mere hearsay. (U P. Rly. Co. v. Fray, 35 Kas. 700; K. P. Rly. Co. v. Pointer, 9 id. 620; Stark v. Cummings, 5 id. 85; Luby v. H. R. Rld. Co., 17 N. Y. 131; Bellefontaine Rly. Co. v. Hunter, 33 Ind. 335; Wharton’s Evidence, §§ 258-267; Story on Agency, §135, and note.)
The testimony admitted was clearly incompetent and preju dicial, and hence the judgment of the district court must be reversed, and the cause remanded for another trial.
All the Justices concurring. | [
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Per Curiam:
Upon the motion for a rehearing in this case, we are called upon again to examine the testimony whether Mrs. Beaubien was a purchaser of the land in controversy, for value, without actual or constructive notice. It appears that Mrs. Beaubien received her deed on April 2,1883; John Campbell died September 18, 1882, at his farm in Mission Creek township; the title of the premises in controversy at the time of his death was in Campbell; in November, after his death, Mrs. Hindman moved- back to the Mill creek farm ; remained there about two weeks, and then went to Topeka and boarded; on the 20th of March, 1883, she moved into the new house on - the northwest corner of the south' eighty; Mossman, a tenant, lived in the old house on that same quarter ; Mrs. Beaubien lived directly opposite to the south eighty, and the north eighty was in the same inclosure with the south eighty; Mossman lived upon the south eighty and cultivated the land in 1882, and had a lease of it for 1883.
It is claimed upon the part of Mrs. Hindman, that before Mrs. Beaubien purchased, “she had been notified that if she bought the land, she would buy a law - suit.” Several witnesses testified that Mrs. Beaubien said .that “she had been told by Mrs. Mossman that Mrs. Hindman said if anybody bought that five-eighths, they would buy a law suit.” None of these witnesses, however, fixed the date prior to the purchase by Mrs. Beaubien; and Mrs. Beaubien says that she was not told anything by Mrs. Mossman about having trouble with the land, until she got her deed. Mr. Wade also corroborates her by stating that before the probate court Mrs. Beaubien “testified that after she had bought the land she heard that Mrs. Hindman had said that whoever bought the land would buy á law suit.” Therefore, upon the record, there is no evidence that Mrs. Beaubien knew anything about Mrs. Hindman’s claim to the land until after her purchase.
But it is said that Mrs. Hindman was in possession of the premises at the time of the purchase by Mrs. Beaubien; and therefore that the latter was bound, before purchasing, to inquire of Mrs. Hindman or her tenant, concerning her interest in the property; and failing to do so, that she purchased subject to all the rights and equities of Mrs. Hindman. In order for mere possession of. real estate-to put .a purchaser- upon inquiry, the party claiming possession must have actual, open, visible, notorious and exclusive possession of the premises. It seems that at one time Mrs. Hindman had executed a deed of the south eighty to Campbell, and of this deed Mrs. Beaubien had actual knowledge. Subsequently, this deed was burned, as alleged by Mrs. Hindman, by the common consent of herself and Campbell. The title of the north eighty was in Campbell; therefore Mrs. Beaubien did not have any notice or knowledge that Mrs. Hindman was in the actual possession, of the premises, by herself or tenant. After Mrs. Beaubien purchased, she took possession, cultivated the plow land and put in crops. All this was done without any objection upon the part of Mrs. Hindman, and no trouble grew out of the possession of Mrs. Beaubien until May, 1883. Mrs. Hind-man, on August 14,1883, posted up a notice that she claimed the north eighty, but this was long after Mrs. Beaubien purchased, and long after she had taken actual possession of the premises.
Again, after the death of Campbell, the administrator of his estate asked Mrs. Hindman to give him the numbers of the land belonging to Campbell; she brought the papers to the administrator containing the numbers of the land in: controversy; the administrator, after she had done this, asked her where the deed for the south eighty was, and she said she had burned it up by mutual consent '; the administrator, after the death of Campbell, paid taxes on the land.
Mrs. Beaubien paid five hundred dollars in cash for the land, without having .actual notice of the rights or equities of Mrs. Hindman therein; and the possession of Mrs. Hindman not being so open, visible, notorious and exclusive as to put Mrs. Beaubien upon inquiry, the latter may be regarded, upon the evidence in the record, as a bona fide-purchaser, without knowledge or notice, actual or constructive. (School District v. Taylor, 19 Kas. 287; Sanford v. Weeks, ante, p. 319.)
The motion for a rehearing will be allowed, and the cause remanded for a new trial. | [
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Opinion by
Clogston, C.:
Two questions are raised by the record in this case: First, did Elizabeth James, by her acquiescence and verbal declarations, so accept the provisions of the will as to make it binding upon her heirs ? Second, if so, did the will convey to. Emma James the property at the death of Elizabeth James ? But as a decision on the first proposition is decisive of this case, we shall not consider the second. Our statute in relation to probating wills and the election of the widow to take thereunder specifically points out the course to be pursued, and a substantial compliance therewith must be made in order to make an election to take under the will binding. In this case it is conceded that no such election was made as is pointed out by statute, and that the widow did not consent in writing to the will. Section 41 of chapter 117, Comp. Laws of 1885, provides that if any provision is made in the will for the widow, and she has not consented thereto in writing, the probate court shall issue a citation to her to appear and make her election, and this election shall be made within thirty days of such citation. Section 42 provides that such election of the widow shall be made by her in person, before the probate court, except in case of sickness, and that the court shall make known to her the provisions of the will and her rights under the law; and if no election is made, that she shall retain her share of the estate under the law, as if her husband had died intestate. Section 43 provides that in case the widow shall be unable to appear in the probate court on account of sickness or ill-health, it shall be the duty of the probate court on application made on her behalf, to issue a commission, with a copy of the will annexed, to some suitable person to take her election, which person must explain to her her rights under the will and under the law. Nothing was done looking .toward an election as is contemplated by these sections, and nothing was done by her in regard to the property that would have estopped her, had she been cited as the law requires, from making her election to take under the will. The time had expired in which to make her election, and yet no request was made by her for a commission to take such election; no request to the court in writing was made that she desired to take under the will.
Counsel for plaintiffs in error insists that Sill v. Sill, 31 Kas. 248, is decisive of this case. In this claim we think counsel is mistaken. In that case something was done by the widow toward claiming under the will; a person was appointed to draw up her request, which was signed by her. This appointment, it is true, was irregular, and perhaps also the manner of its execution; but it was an attempt to comply with the statute, and the court held in that case that it was not sufficient to make an election. In this case nothing but a verbal message from the widow to the probate coui’t was given, and it was not shown that she knew what her rights were under the law. It is perhaps true in this case, that her rights under the law were substantially the same as under the will, but no presumptions can be indulged in as to her knowledge of this fact.
In Stilley v. Folger, 14 Ohio, 610, the court said:
“The property mentioned in the agreement, and devised by the will, was received by Mrs. Folger within the time limited to make an election. This was not denied. It was in fact taken very soon after the dissolution of her husband., and in hot haste, though the evidence leaves the fact perfectly clear that his eyes were fully closed before she either seized the property or even announced her intention to break the will. Such an act, however, is not an election, nor can it be proved in this way. An election must be made known to the court of common pleas of the proper county, and the record, unless lost or destroyed, is the only evidence by which it can be established, because it is the best proof of which the nature of the case admits.”
Also in Millikin v. Welliver, 37 Ohio St. 460, it was said:,
“ It is believed no case can be found where the facts are held sufficient to amount to an election to waive the widow’s rights under the law, unless they are of such a marked character and of such long duration as will clearly and distinctly evince a purpose to take the provisions of the will, and to operate as an effectual equitable bar to dower.”
The widow must therefore be deemed to have failed to make her election to take under the will. The law provides in such a case that the widow shall take such share of the husband’s estate as she would have' been entitled to had he died intestate; and as he left no issue, under the law the widow would take his entire property, both real and personal ; and as she died intestate, the plaintiffs (defendants in error) became the owners of the property in controversy, and are entitled to its possession.
We therefore recommend 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
Valentine, J.:
This was an action brought in the district court of Elk county, by Esther A. Confrey against S. B. Oberlander and T. C. Hatton, to recover on an attachment bond. At the May term, 1886, the case was tried before the court .without a jury, and the court made a general finding and rendered judgment in favor of the plaintiff and against the defendants for the sum of $71.95; and to reverse this judgment the defendants, as plaintiffs in error, bring the case to this court.
The first ruling of the court below complained of is, the overruling of an objection made by the defendants below to the introduction of any evidence under the plaintiff’s petition, upon the ground that it did not state facts sufficient to constitute a cause of action. It would be useless to discuss this point. There is nothing in it.
The next ruling complained of is, that the court below, after the plaintiff had introduced all her testimony and rested her case, and after the defendants had demurred to her evidence, upon the ground that it did not prove any cause of action, and while the defendants’ counsel were making their argument upon the demurrer, over the objections of the defendants granted the plaintiff leave to reopen her case and to introduce further testimony. There was no error in this. It was all within the sound judicial discretion of the trial court. (Cook v. Ottawa University, 14 Kas. 548; St. J. & D. C. Rld. Co. v. Dryden, 17 id. 279; A. & N. Rld. Co. v. Reecher, 24 id. 228; Mason v. Ryus, 26 id. 467.)
After the plaintiff below had introduced further testimony, and again rested, the defendants below again demurred to the evidence, for the reason that it did not prove any cause of action ; and the court below overruled the demurrer. This is claimed to be erroneous for several reasons, among which are the following: It is claimed that the attachment proceedings were against Vincent Confrey alone, and not against the plaintiff, Esther A. Confrey; that such proceedings were regular and valid; that the attachment bond was given only to Vincent Confrey; that none of the property of Esther A. Confrey was disturbed; that there is nothing in the case to show that any of the attachment proceedings were irregular or wrongful, except an order of the judge of the court below made at chambers, discharging the attachment, and it is claimed that before this order of discharge was made the entire action in which the attachment proceedings were had had been dismissed. In every one of the foregoing matters the plaintiffs in error, defendants below, are mistaken. In the attachment case no cause of action was stated as against Mrs. Confrey; no sufficient affidavit for the attachment was filed as against her; the attachment bond was given to her as well as to Vincent Confrey; the order of attachment was issued against her as well as against Vincent Confrey; her property was attached by means of garnishment proceedings connected with the attachment proceedings; the attachment suit was not dismissed Avhen the judge of the court below discharged the attachment; her property had not been released at that time from the garnishment proceedings; nor had any notice been given to the garnishee of the supposed dismissal of the action, or the supposed release of the plaintiff's property. On the day preceding the discharge of the attachment, a paper was filed in the attachment case by the plaintiff in that case, Oberlander, purporting to dismiss the action, and notice was given to Mrs. Confrey's attorney, but no judgment was rendered or order made by the court dismissing the case; nor was the supposed dismissal called to the attention of the court until a long time afterward; and therefore the cause was not dismissed. Dismissals under the civil code (article 17) are judgments, which neither of the parties, nor the clerk, nor all together, but only the court, can render. Besides, the plaintiff in that case, Oberlander, did not release Mrs. Confrey’s property from the attachment and garnishment proceedings, nor give notice to the garnishee that it was released, and the only means by which she could procure its release was by obtaining a discharge of the .attachment, as she did. But really, it makes but very little difference in this case whether the suit was dismissed before the attachment was discharged, or not, and it is at least questionable whether this question is properly presented to this court by the assignments of error and the record.
It is further said that the court below erred in excluding evidence offered by the defendants below. No page of the record is cited, however, and we fail to discover any such error.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Holt, C.;
The defendant in error brought this action against plaintiffs in error, upon several township warrants issued by Winfield township to pay for the erection of a certain bridge. On January 23,1879, Winfield township made a contract with S.- Kavanaugh to construct an abutment to a bridge, at that time within the limits of the township. It then also embraced the city of Winfield, a city of the third class; the governor, by proclamation on the 27th of February of the same year, declared it to be a city of the second class. Before that time the contract of Mr'. Kavanaugh had been completed, and the work accepted by the township. Upon the 19th of March, 1879, the orders of the township were issued to Kavanaugh, and shortly afterward he presented them for payment, and payment was refused because there were no funds in the treasury. At the time these warrants were issued all of the officers of the township lived within the limits of the city of Winfield. After the issuing of the warrants that portion of the township which remained after the city of Winfield was incorporated as a city of the second class was divided, a portion being added to Vernon, Fair view and Pleasant Valley townships, and the remainder was formed into the new township of Walnut. The city of Winfield turned over to the treasurer of Walnut township certain sums of money, amounting in the aggregate to about $1,500, to pay for the erection of the bridge. On the 19th of March, 1884, plaintiff brought this action upon these warrants, they having been assigned to him. The action was tried at the April term, 1886, of the Cowley district court, and judgment entered for plaintiff for $1,234.91, of which $812.04 was against Walnut township. The residue of .the judgment was against the other townships, apportioned upon the basis of territory and values.
There is no complaint of the apportionment of the judgment ; it is simply contended that there should have been no judgment at all against Walnut township. From the condition of the record, we can consider only the alleged errors that arose from the overruling of the demurrer to the petition. The township of Walnut was bound to meet the liabilities of Winfield township, being virtually the same municipal corporation. This liability could not be divested by the change of boundary, or change of name; the warrants given by Win-field township were valid obligations against Walnut township, subject possibly to the limitations of difference in territory, and difference in valuation of property. By the petition it was not necessarily inferred that the township officers of Win-field township were residents of the city of Winfield at the time they issued the warrants, but it seems to have been agreed in the arguments of the parties that they all did live within the territorial limits of the city of Winfield. We think that is immaterial in this matter. The city of Winfield, under its powers as a city of the second class, did not elect its officers until April, 1879, and therefore had not fully completed its organization as a city of the second class, and it was for certain purposes still a portion of Winfield township. It is the policy of the law that no city or township shall be left without a government and officers empowered to enforce its laws, and meet and discharge its obligations. By the proclamation declaring Winfield a city of the second class, it was not intended, nor did it have the effect of putting the citizens of that part of the old township of Winfield not embraced in the city of Winfield, outside the pale of government. Its township board still existed, although all its members did live within the limits of the city of Winfield; they were at least de facto officers. (The State, ex rel., v. Jacobs, 17 Ohio, 143.) The theory of the defendant, that the city of Winfield was separated at once from the remaining portion of the township, and that such portion was left without any township government, is not sustained by the authorities cited. In Berlin v. Gorham, 34 N. H. 266, upon which defendant relies, it appears that Gorham was incorporated by the legislature as a town — a municipal corporation somewhat similar to a township in this state — and it was held that the town was liable for the support of a pauper living within the territory at the time of its incorporation, because the act of the legislature incorporating the town was imperative, there being no condition expressed in the law incorporating the town. The court says:
“By the mere passage of the law the town is completely constituted, entitled to the rights and subject to the duties and burdens of a town, whether the inhabitants are pleased or not.”
In People v.Wren, 5 Ill. 279, the question decisive of the case was, whether the county of Marquette was an organized county. By an act of the legislature it was created out of a portion of Adams county, but had failed to elect county officers. The court held that the act of the legislature created the county at once, and it was not necessary that there should be any officers elected to fully complete its organization. The court, speaking by Mr. Justice Shields, says:
“ The act creating the new county is susceptible of but one construction. The intention of the legislature is expressed in the most positive terms. It declares that a new county is absolutely created, etc.”
This decision was only arrived at by a divided court. Mr. Chief Justice Wilson and three of his associates dissented, and very clearly gave his reasons for dissenting. He says:
“But while I admit that the legislature may destroy a county, I am not to be understood as admitting that they can deprive any portion of the territory of the state of a county organization and government. This would be to place a portion of the citizens out of the pale of law and government, and would produce a complete state of anarchy. Such an act of the legislature would, in my opinion, be an abandonment of its highest obligations, and an infringement of the spirit of the constitution, if not its letter. The only manner that occurs to my mind, by which a legislature can destroy a county, is by annexing it to one or more organized counties. No interregnum would then take place; the government of the county to which it was annexed would be extended over and embrace it, simultaneously with its annexation, and thus no evil or inconvenience would occur.”
It will be remembered that the township of Winfield still retained its township organization. It was not organized out of the territory of another municipal corporation, as was the town of Gorham and the county of Marquette in the cases cited. It was the city of Winfield taken from the territory of the township of Winfield, which was declared to be a city of the second class, “subject to the provisions of an act to incorporate cities of the second class.”
The defendant township claims that the cause of action is barred. The petition is perhaps comprehensive enough to state a cause of action upon the original contract made January 23, 1879, or upon the township warrants'issued on the 19th day of March, 1879. This action, it will be remembered, was commenced March 14, 1884. Counsel for the township support this claim by an exceedingly ingenious ar gument. They insist that the issuing of the warrant was not an acknowledgment in writing of the defendant township, because it was not signed by it, claiming that it must be signed by the defendant itself, not by an agent, to bring it within the provision of § 24 of the civil code; and they further contend that the issuing of the township warrants to Kavanaugh was no agreement, contract or promise to him to pay the same ; that they are simply drafts made by one set of officers upon another, stating that there is but one party to the transaction — the township. This is not the law. The township acknowledged its indebtedness in writing by issuing the warrants. It was just as much the act of the township as the original contract with Kavanaugh. The powers of a township are prescribed by statute; the means and manner of their exercise are confined to its officers. No liability can be incurred except through them; no debt can be paid without the issuing of a warrant. The acts of the township officers when acting within the scope of their powers are the acts of the township itself. It is the only way it can act.
A township warrant itself, aside from any question of acknowledgment in writing, is not barred until five years after it is issued. It is a contract in writing — a promise to pay — and of itself is such an instrument as to constitute a cause of action. (Comm’rs of Leavenworth Co. v. Keller, 6 Kas. 510.) This is an agreement in writing with Kavanaugh, executed in the only manner prescribed by law for a township to act. It is not a negotiable instrument, but it can be assigned, and the plaintiff succeeded to all the rights of Kavanaugh as his assignee; and by the petition it is averred it was given as a consideration of a contract fully performed, and it is therefore for the purposes of this action a valid legal instrument in writing.
This disposes of all the questions in the case that we deem material. *We recommend that the judgment of the lower court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The plaintiff in error now complains of the judgment of the court below upon appeal from 'the award of damages for the right-of-way appropriated by it. The errors complained of are, first, that the clerk of the district court of Sedgwick county, in transferring the cause, made a transcript of the papers and proceedings, and did not transmit the original papers and files in said cause to the clerk of the district court of Reno county. It is not claimed that the transcript was not a correct copy of the papers and files, but plaintiff in error insists that it was entitled to have the original papers in the cause, and that it was error to compel defendant to go to trial upon a transcript, or copy thereof. Our attention has not been called to any statute, and we have been unable to find any, requiring the clerk to transmit the original files on a change of venue in a civil action; in fact, there are no provisions of statute regulating the manner in which the cause should be transferred — whether the original papers are to be sent, or a transcript made of them. The statute simply provides that under certain circumstances a change of venue shall be -granted. The object of this change is, that the cause
may be tried where no objections are known to exist to prevent a fair and impartial trial on the merits. This ^ 1 object, then, could be accomplished as well upon a transcript as upon the original files. If the ti’anscript did not contain a correct copy of all the files, then upon a proper showing it could have been corrected. Section 148, chapter 25, Comp.Laws of 1879, provides:
“The clerks of the district courts shall do and perform all duties that may be required of them by law, or the rules and practice of the courts, and shall safely keep and preserve all papers, process, pleadings and awards that may be filed, or by law placed in their respective offices.”
This section defines the duties of the clerk of the district court in regard to the files and papers of his office; and unless there is some provision of the statute authorizing the clerk, in exceptional cases, to transmit the original files, then he must retain them in his office.
The second objection is, that the court permitted John Kuhn, the husband of the plaintiff, to testify to the acts performed by him at the request of the plaintiff, as her agent. • Counsel do not seem to object to the testimony itself, but to the fact that the court permitted the husband to testify to the agency, and to what acts he had done under and by virtue of his authority as agent of his wife. Plaintiff insists that this agency could only be established by some other witness, and not by the husband or the wife. The statute provides that the husband and wife shall be incompetent to testify in any action in which either is a party, “except concerning transactions in which one acted as the agent of the other, or where they are joint parties and have a joint interest” in the action. So far then as the statute permits, they # # 1 ? j could testify concerning those matters excepted, as freely as if there were no restrictions against their testifying. ‘‘An agent may testify under oath as to his authority to act for the principal.” (French v. Wade, 35 Kas. 391.)
Again, plaintiff in error charges that the court erred in permitting witnesses to testify to the measure of damages to the plaintiff’s land. R. J. Razey was permitted to answer the following question, asked by the defendant.
“Q,. How much less, in your opinion, is this farm worth after the railroad company had established its track through it, irrespective of any benefits from any improvements proposed by the railroad company to be derived from said track, taking into consideration all incidental loss, inconveniences and damages, present and prospective, which may reasonably be expected, or shown to exist from the maintaining of said railroad track, to be continued permanently? A. About $2,100.”
Counsel contend that the measure of damages is the difference in value of the land taken at the time it is condemned, and its value immediately thereafter; that is, how much less it was worth thereafter. We think this question comes fairly under that rule. In other words, instead of asking the witness the value before and after, the question was, |10w muci, }ess was the farm worth after than before? To answer this the witness must determine in his mind what it was worth before, and how much it was worth afterward, and the difference would be his answer. The witness was shown to have been well acquainted with the land before and after the construction of the railroad through it, and of the value of the farm and the land taken. (K. C. Rly. Co. v. Allen, 24 Kas. 33; L. T. & S. W. Rly. Co. v. Paul, 28 id. 816.)
The next objection urged is, that the court refused to permit L. B. Bunnell to answer the following questions asked by the defendant below:
“Now in what respect is the farm of the plaintiff benefited or injured by the railroad, if any, outside of any proposed benefits to them in the commencement of the right-of-way proceedings ?
“In what manner, if any, will the plaintiff’s premises be injured or benefited by reason of the ditches on the north and on the south side of the grade on the right-of-way ? ”
The objection was sustained to both of these questions. The only purpose in asking these questions was to bring before the jury the benefits, if any, resulting to the plaintiff by reason of the ditches constructed through her land. This was not competent. It was not material to know, or determine, or bring the knowledge before the jury in any manner, any value or benefit the plaintiff would derive by reason of the construction of this road. The question was, what, if any, was the damage to the farm by the construction of this road over it? — and the question of benefits was not to be taken into consideration. We think the court properly sustained the objection to these questions.
The next complaint is to the refusal of the court to instruct the jury as follows:
“5. The jury have no right to take into consideration any item or element of damages which the plaintiff, may have, or may hereafter sustain, by reason of defendant's embankments obstructing or in any way stopping the flow of surface-water upon plaintiff's land or defendant’s right-of-way, and thus collecting in stagnant pools such surface-water either upon plaintiff's land or defendant's right-of-way.”
The instruction was properly refused. In determining the damages to a farm, it is proper to take into consideration every element of damage that can be reasonably anticipated; or might be reasonably anticipated, before the road is built, and what really does exist and is apparent after the road is constructed. This includes the inconvenience of crossing, the raising of embankments, the digging of ditches, pools of stagnant water, the obstruction to the surface-water by throwing it into channels or by damming it up. These are all proper elements to be considered in determining the damages to the land, in its decreased value after the construction of the road.
It is perhaps true that if at the time of the trial the road had not been constructed, then the damages must be confined to what might be reasonably anticipated, upon the theory that the road would be constructed in a proper manner; and in that case it could not be expected or anticipated that the road would be so constructed as to dam up the surface-water, or that ditches would be so made as to retain pools of stagnant water. But where the road is constructed before the trial, plaintiff then had a right to assume that it was constructed as contemplated at the time the right-of-way was condemned, and that its construction was' proper; and might show that it did dam up and stop the flow of surface-water; that the ditches retained stagnant pools of water, and that thereby plaintiff was injured.
Counsel also insist that the court erred in giving the following instructions:
“ 14. The jury, in estimating the value of the land appropriated, will limit the inquiry to a strip 100 feet in width.”
“13. If the jury find an amount of damages greater than $510, you will allow 7 per cent, interest on the amount awarded from September 7,1885; if you find the sum not greater than $510, no interest will be allowed.”
The evidence clearly shows that the land appropriated was at least a strip 100 feet in width, and in many places much wider. The evidence of the defendant below clearly showed that the intention was to appropriate and condemn a strip 100 feet wide. It was tried upon that theory, and it seems to have been conceded that the amount of land sought to be taken was a strip 100 feet wide. To the last of these instructions it seems that the only objection thereto is, that the court was by this instruction informing the jury of the amount of the award, as found by the commissioners. We know of no other way in which the court could have informed the'jury upon what basis they were to ascertain and allow interest. This instruction did not inform the jury what the award was, but was. a direction to them that in case they found for the plaintiff in a greater sum, that they were also to allow the plaintiff interest at ? per cent. We cannot conceive of any way in which this could have injured the defendant..
Plaintiff was properly entitled to interest at 7 per cent.
The defendant insists that the court erred in rendering a personal judgment on the verdict of the jury. This claim is correct. The judgment should have been to correct the assessment of the commissioners, and to make their award corre spond to the amount found by the jury, and an ordinary personal judgment for costs. (See St. L. L. & D. Rld. Co. v. Wilder, 17 Kas. 239; L. & T. Rly. Co. v. Moore, 24 id. 323.)
It is therefore recommended that the case be remanded to the court below, with the order that the judgment be modified in accordance with the views expressed herein.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Saline county, by Wright Norton against Gotthardt Schippel, for an alleged malicious prosecution. The foundation for this action is the same as WagstafPs in the case of Wagstaff v. Schippel, 27 Kas. 450. The facts of the case, briefly stated, are as follows: On or about December 27,1879, Norton, Wagstaff, and another, through a mistake of boundary lines, went upon the land of Schippel and cut down and carried away one or more trees standing and growing thereon. Immediately thereafter, Sehippel consulted the county attorney, stated to him the facts, and the county attorney advised the commencement of a criminal prosecution against Norton and the others, under §1, chapter 113, of the Compiled Laws of 1879. Such prosecution was so commenced before E. L. Norton, a justice of the peace of said county, on December 31, 1879, the county attorney having charge thereof. About January 6, 1880, the county attorney dismissed this prosecution, and on the same day commenced a new prosecution in the district court against Norton and the others, for the same offense. Afterward, and on March 3, 1880, Norton commenced this present action against the defendant, Sehippel. The case was tried before the court and a jury, and the jury rendered a general verdict in favor of Norton and against Sehippel for $1 as exemplary damages, and also made special findings of fact showing the foregoing facts, and also showing that the one dollar was for exemplary damages, and that nothing was allowed for actual or compensatory damages. The general verdict reads as follows:
“We, the jury impaneled and sworn in this action, do, upon our oaths, find for the plaintiff, and do assess his damages in the sum of one dollar and — cents, exemplary.”
Among the special findings are the following:
“6. What number of other trees were cut about the same time and place on defendant’s land ? Ans.: We don’t know.”
“9. At the time Mr. Sehippel instituted the prosecution complained of before E. L. Norton, did he believe that the plaintiff Wright Norton was guilty of cutting some of his timber as charged in said complaint without right or legal excuse? A. He may have believed so.”
“11. At the time defendant Sehippel verified the complaint before E. L. Norton upon which plaintiff and others were arrested, did he have reason to believe that such complaint was true as to the cutting or carrying away of one or more trees on his land ? A. No, except the cottonwood and hackberry stub.
“12. Before making and verifying said complaint, did defendant make a statement of the facts of the case, as then known by him, to the county attorney, John G. Spivey? A. Yes.
“13. Was such statement substantially full and correct? A. Yes.”
“15. Did Mr. Schippel in good faith go to the county attorney for the purpose of obtaining his advice in the case, and of placing in his control any prosecution that might be had ? A. Not absolutely.”
“17. Did the county attorney, upon being informed of the facts as then understood by Mr. Schippel, advise Mr. Schippel that John I. Norton, Wright Norton and Alonzo Wag-staff were guilty of a criminal trespass, and liable to such prosecution as was instituted against them? A. Yes.”
“ 20. Upon the statement of the case made by Mr. Schippel to the county attorney, and upon the information the county attorney had of the facts, did the county attorney take control of said prosecution as to its being commenced, and as to the disposition that was made of it? A. He did, as attorney.”
“23. Was the county attorney’s action in said prosecution based upon a knowledge of the facts substantially as they existed and as known to Mr. Schippel at the time? A. Yes.”
“ 28. Did the county attorney dismiss the case before E. L. Norton, intending to immediately prefer the same charge in the district court ? A. He did, as attorney.
“ 29. Did the county attorney, immediately after the dismissal of said case before Justice Norton, and on the same day the case was dismissed, file an information against John I. Norton, Wright Norton and Alonzo Wagstaff for the same offense in the district court? A. Yes.
“ 30. Was the case upon such information pending in the district court when this action was commenced ? A. Yes.
“31. If the jury should find for the defendant, state separately the amounts allowed for actual and exemplary damages, and the several items of each. A. One dollar, exemplary damages.”
Some of the findings with reference to Schippel’s good faith are apparently in conflict with some of these above given. Judgment was rendered upon the verdict and the findings of the jury in favor of Norton and against Schippel for one dollar and costs of suit, and to reverse this judgment Schippel, as plaintiff in error, brings the ease to this court. The principal errors alleged in this court are as follows:
1. It is claimed that Schippel stated the facts to the county attorney, and then took his advice with reference to the com mencement of the aforesaid prosecution, and as the special findings of the jury show these facts, it is therefore shown that Schippel had probable cause to commence this prosecution, and therefore that he cannot be liable to an action for malicious prosecution.
2. It is also claimed that as the criminal prosecution was still pending in the district court when this action for malicious prosecution was commenced, there was no such a termination of such criminal prosecution as would justify the commencement of this action for malicious prosecution.
3. It is also claimed that as the jury did not find any actual or compensatory damages, but only one dollar as exemplary damages, no judgment could rightfully be rendered upon their verdict.
4. It is also claimed that the court below erred in the admission of testimony tending to show the financial condition of Schippel, or in other words, that he was wealthy.
5. It is also claimed that the court below erred in refusing to permit Schippel to show the general bad character and reputation of Norton for honesty, in the neighborhood in which they both lived.
I. We think it is a good defense to an action for malicious prosecution, that the defendant, before commencing the alleged malicious prosecution, it being a criminal prosecution, presented the matter to the county attorney, fairly ’stating to him all the facts, and then in good faith followed the advice of the county attorney. Such a thing completely rebuts the allegation of the plaintiff that there was a want of probable cause for commencing the prosecution, and it of itself shows probable cause. (Bigelow on Torts, 22, et seq.; 3 Suth. Dam. 708; Cooley on Torts, 183; Laughlin v. Clawson, 27 Pa. St. 328.) It would be otherwise, however, if the defendant knowingly misstated the facts, and it might be otherwise if in bad faith he should fail to follow the advice of the county attorney. See the authorities above cited, and also Dennis v. Ryan, 65 N. Y. 385.
II. In legal contemplation, we do not think that the criminal prosecution in the present case had terminated when this action for malicious prosecution was commenced, and therefore this action for malicious prosecution cannot be maintained. (1 Hillard on Torts, 3d ed., 450, et seq.) In the case of Marbourg v. Smith, 11 Kas. 554, 562, the following language is used:
“In an action for malicious prosecution we suppose that the plaintiff must allege and prove that he has been prosecuted by the defendant; that the prosecution was malicious; that it was instituted without probable cause; that the prosecution has terminated in his favor; and that he has sustained damage. But it is not necessary that there should have been a trial upon the merits of the alleged malicious prosecution. If the action has been dismissed, as in this case, that is sufficient, if the action has not been commenced again. (Fay v. O’Neill, 36 N.Y. 11; Burhans v. Sanford, 19 Wend. 417; Secor v. Babcock, 2 Johns. 203; Chapman v. Woods, 6 Blackf. 504; Says v. Blizzard, 30 Ind. 457.) The reasons why an action should be terminated in favor of a defendant before the defendant can commence an action for malicious prosecution would seem to be as follows: hirst, If the action is still pending the plaintiff therein may show in that aotion that he had probable cause for commencing the suit, by obtaining a judgment therein against the defendant, and he should not be called upon to show such fact in a second action until he has had this opportunity of showing it in the first; second, and if the action has terminated against the defendant, then there is already an adjudication against him, showing conclusively that the plaintiff had probable cause for commencing the action. When neither of these reasons applies, we suppose the action for malicious prosecution may be maintained, if the other necessary facts can be shown. If the plaintiff has neither shown nor is attempting to show by an action in which he is plaintiff [or prosecutor] that he had probable cause for commencing his action, then the defendant may show in an action brought by himself that the plaintiff did not have probable cause.”
If the criminal prosecution in the present case had been dismissed with no intention of commencing it again in the district court or elsewhere, or if the delay had been made in commencing the criminal prosecution again, so as to lead the plaintiff to believe that the criminal prosecution had been finally terminated, and if he had then, and at once, com menced his action for malicious prosecution, he might probably maintain the same. But in all reason he should not be allowed to maintain such an action, when substantially the same criminal prosecution as the one upon which he founds his action is still in the courts, undisposed of.
III. Where no actual damage is suffered, surely no exemplary damages can be allowed. Exemplary damages can never constitute the basis of a cause of action. They are never more than incidents to some action for real and substantial damages suffered by the plaintiff; and when given they are given only in addition to the real and actual damages suffered and recovered by him. And when given, they are not given upon any theory that the plaintiff has any just right to recover them, but are given only upon the theory that the defendant deserves punishment for his wrongful acts, and that it is proper for the public to impose them upon the defendant as punishment for such wrongful acts in the private action brought by the plaintiff for the recovery of the real and actual damages suffered by him. No right of action for exemplary damages, however, is ever given to any private individual who has suffered no real or actual damages. He has no right to maintain an action merely to inflict punishment upon some supposed wrongdoer. If he has no cause of action independent of a supposed right to recover exemplary damages, he has no cause of action at all. As lending support to the foregoing views, we would refer to the following cases, to wit: Gilmore v. Mathews, 67 Me. 517; Stacy v. Publishing Co., 68 id. 279; Freese v. Tripp, 70 Ill. 496; Meidel v. Anthis, 71 id. 241; Ganssly v. Perkins, 30 Mich. 492; Maxwell v. Kennedy, 50 Wis. 645, 648, 649.
It is unnecessary to consider the other questions presented by counsel.
The judgment of the court below will be reversed, and the cause remanded, with the order that judgment be rendered on the special findings of the jury in favor of the defendant below and against the plaintiff below.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
There is nothing in this case that merits consideration. The first supposed error is the ruling of the court below upon a motion and affidavit for a continuance, filed by the defendant below, E. H. Sanford, who is now plaintiff in error. The continuance was asked for upon the ground of the absence of material witnesses. Their alleged testimony was set forth in the affidavit, and the plaintiff below, James Gates, who is now' defendant in error, consented that on the trial the affidavit might be read in evidence, and the alleged testimony of the alleged absent witnesses might be treated as their testimony. The court then overruled the application for a continuance. It is claimed that this was error, upon the ground that the plaintiff below should have been required to admit the aforesaid testimony as absolutely true in fact, and not merely as the testimony of the absent witnesses. Section 317 of the civil code, however, is against the contention of the plaintiff in error, defendant below, and under that section the ruling of the court below is unquestionably correct. That section has been in force for nearly twenty years.
There are two points made on the introduction of evidence, but they are so frivolous and trifling that it is unnecessary to consider them.
The next objections are to the instructions of the court to the jury. It is claimed that they are inconsistent, misleading, not embodying all the evidence, and erroneous. The charge of the court is lengthy and contains many separate and independent instructions, and yet only a part of one of such instructions is specifically mentioned by the plaintiff in error as erroneous, or otherwise. We are therefore not called upon to consider any of the instructions except that one. We might, however, in passing say that all the instructions are correct. That one reads as follows:
“You must determine this case upon the law as given to you by the court and the evidence as you have heard it from the witness stand, but in so doing you may call to your aid and use the knowledge and experience you possess in common with the generality of mankind.”
The portion of this instruction of which the plaintiff in error, defendant below, complains, is that portion which is put in italics. The instruction is not erroneous. (M. R. Rld. Co. v. Richards, 8 Kas. 101; Craver v. Hornburg, 26 id. 94.) The first of the above-cited cases was decided nearly seventeen years ago.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
This is a workmen’s compensation case. Judgment was for claimant. Defendant appeals.
After the opinion reversing the judgment of the lower court was filed a rehearing was allowed. The appeal was reargued and submitted in December. This court adheres to the order of reversal. On account of the interest in the case among those who are interested in workmen’s compensation, and because there are some other cases the outcome of which depends on the outcome of this case, it will be reconsidered somewhat at length here.
The first question to be settled is the jurisdiction of the commission to set aside an award. Therefore, the facts bearing on that matter, which are not disputed, will be stated first.
The claimant was injured on July 31, 1937, when a rock rolled down a slope where he was working and hit him on the leg. Toward evening this injury developed a swollen condition. The next morning he was placed under the care of the company doctor. On August 5 he was put in bed in the hospital, where he remained until September 18, 1937. On September 18 he was returned to his home, where he remained in bed for two weeks. On one occasion one of the doctors at the hospital told him he would see the straw boss at the mine and see if he could not get him some light work. The doctor stated that the exercise would be good for him. The boss at the mine told him, however, that they had no light work. During this time the company doctor diagnosed the trouble of claimant as “inflammation of the lymphatics” of the left leg. On October 30, 1937, a joint petition and stipulation was filed with the commission. This petition recited that both parties were operating under the workmen’s compensation act; that respondent was a self-insurer, and that claimant met with a personal injury arising out of and in the course of employment with respondent. The petition then stated the diagnosis of the company doctor and gave his opinion that the disability of the workman would last for about three months, during which time he would be able to do light work. The stipulation then stated that the weekly rate of compensation to which claimant was entitled was $13.68; that all medical and hospital bills which had been incurred would be paid by respondent, and that the claimant had been paid eleven weeks’ compensation at the rate of $13.68 per week, or $150.48.
The parties agreed that the balance of compensation to claimant should be paid in a lump' sum of $150. The reason for the lump-sum payment was given in an affidavit by claimant wherein he stated that such a payment would be more beneficial to him than the payment of a weekly compensation because by the investment of the $150 he could secure light work.
The stipulation then contained the following paragraph:
“The parties hereby waive notice and formal hearing herein and agree that the commissioner of workmen’s compensation may make and enter an award herein, based upon the facts as set forth, said award to be binding and of the same effect as if the facts had been testified to and adduced at a formal hearing (and that said settlement will be accepted in full settlement of all claims arising out of or connected with said injury) that the costs herein may be taxed and assessed to the respondent.”
This stipulation was signed by claimant and his attorney and by respondent, and was submitted to the commissioner of workmen’s compensation on November 2,1937. That officer made an award in which he recited the above facts, and in which it was provided as follows:
“6. That the parties agree the balance of compensation to claimant shall be paid in a lump sum of $150 in full settlement.
“7. The commissioner further finds the parties waive notice and formal hearing and agree that an award may be entered herein based upon the facts as set forth, said award to be binding and of the same effect as if the facts had been testified to and adduced at a formal hearing, and that said settlement will be accepted in full settlement of all claims arising out of or connected with said injuiy, and that the costs herein may be taxed and assessed to the respondent.
“The commissioner is of the opinion by reason of the foregoing stipulated facts that the claimant herein is entitled to compensation in the amount of one hundred fifty dollars ($150) in addition to the compensation heretofore paid, and that the respondent is liable to claimant for same. That in addition to such compensation the respondent, on behalf of claimant, shall pay all medical and hospital expenses incurred.
“Wherefore, award of compensation is hereby made in favor of the claimant, Virgil A. Farr, and against the respondent, Mid-Continent Lead & Zinc Company, a self-insurer, in the amount of one hundred fifty dollars ($150), in addition to the compensation heretofore paid, and the agreement between the parties that the compensation awarded herein be paid in one lump sum is hereby approved.
“Further award is made that the respondent pay the medical and hospital expense incurred herein.”
On November 8, 1937, the receipt of claimant showing payment of the award of November 2, 1937, in full was filed with the commissioner. In this receipt the claimant acknowledged receipt of $300.48, which was the amount of the $150 provided for in the award, together with the amount paid prior to that time.
On June 6, 1938, counsel for claimant filed a letter with the com mission, in which claimant asked that the settlement just referred to be set aside on the ground of fraud and mutual mistake.
Respondent appeared and asked that this application be dismissed on the ground that the commission had no jurisdiction. On the filing of this motion claimant filed a more detailed application to set the settlement aside. This application set out some details with which we are not concerned just now, and alleged that the company-doctor had told claimant that his injuries were only temporary, but that he was mistaken as to that; that both parties had relied on this statement of the doctor and had entered into the stipulation, when in truth and in fact claimant’s condition was a permanent injury to his left leg, which injury would continue for the balance of his life.
The application further recited the treatment claimant had received at the hospital; that he had followed the directions of the doctor who was employed by respondent; that the doctor had stated to claimant that he was practically cured, and that it would be only a matter of three months until he could go back to his work; that the company doctor made the above statements while acting for and on behalf of the respondent, and was authorized to represent them in examining claimant and discovering and disclosing to claimant his physical condition; that being induced by these statements claimant signed a paper of some kind presented by respondent; that at the time of his signing this stipulation claimant’s injuries were not temporary and it was not true that he had suffered no permanent injury, all of which was well known to respondent or with the exercise of reasonable care should have been known to it. The application further stated that the company doctor told both claimant and respondent that the injuries of claimant were only temporary and both claimant and respondent relied on this statement, when in truth and in fact his injuries were not temporary, but permanent.
The application further stated that the settlement in the sum of $150 was grossly inadequate, for the reason that it only embraced compensation due him for three months, whereas as a direct result of the injury claimant was entitled to compensation for permanent disability, and the consideration for the agreement was insufficient and unconscionable, and based upon a false representation by the doctor and mutual mistake of fact by claimant and respondent.
The prayer of the application was that the settlement and final receipt be set aside; that the commission set a date for the hearing and upon this hearing determine the extent of the disability of claimant and make an award of compensation in accord therewith.
Respondent filed a motion to dismiss this application on the ground that the commission had no jurisdiction of it. This motion was overruled and the application was heard on its merits. The commissioner, in his history of the case, made a statement as follow's:
“As to the question of setting aside the final release and award on joint petition and stipulation, the commissioner is of the opinion that the joint petition and stipulation filed on November 1, 1937, was nothing more nor less than a final release. No hearing was had as contemplated by the compensation act for the purpose of taking testimony, and the award issued was nothing more nor less than a written approval of an agreed settlement. Under such circumstances the claimant has a year within which to begin proceedings to set aside a final release, and claimant did institute proceedings to set aside the agreed settlement or final release and award within one year. The commissioner is therefore of the opinion and finds that the agreed settlement as set forth by the joint petition and stipulation, the award and the final receipt and report should be and the same are hereby set aside and held for naught.”
The commission made findings that the weekly compensation rate to which claimant was entitled was $13.68; that the joint petition and stipulation and award and final receipt should be set aside, and the claimant was found to be entitled to compensation for a period not to exceed 415 weeks at the rate of $13.68 per week. The compensation then due and owing claimant was found to be for seventy weeks, or $957, which should be paid in one lump sum, and the balance paid at the rate of $13.68 per week. An award was made accordingly.
From this award the respondent appealed to the district court. That court considered the case on the transcript of evidence that was before the commissioner, and made findings as to the facts about as they have been detailed here, and further made the following finding:
“The court further finds that in making such settlement the. claimant believed, acted and relied upon the statements made to him by respondent’s doctor, M. A. Connell, and respondent’s claim adjuster, Wesley Bullock, as to his condition, the nature and extent of his injury, and, assuming that said doctor and said claim adjuster were acting in good faith in negotiating and making such settlement, the court finds that the claimant and the respondent, acting through its doctor and claim adjuster, as its agents, were mutually mistaken as to the condition of claimant and the character and extent of his injury as same existed at the time of making such settlement; and the court further finds that the amount paid claimant by respondent in such settlement was grossly inadequate, and that the settlement, joint petition and stipulation, and the award of November 2, 1937, and final receipt should be set aside and held for naught and further compensation should be granted.
“The court finds that the award of the workmen’s compensation commissioner made on November 2, 1937, amounted to nothing more or less than the written approval by the commission of an agreed settlement entered into by and between the parties and that section 28 of the compensation act (G. S. 1935, 44-528) is not a bar to claimant’s cause of action, and that, under section 27 of the compensation act (G. S. 1935, 44-527) claimant is entitled to relief on the ground of mutual mistakes of fact.”
Judgment was entered in accordance with the above findings. Respondent has appealed to this court.
The first argument of respondent is that the commission’s award of November 2, 1937, based upon an agreed statement of facts embodied in the joint petition and stipulation was a judgment of the commission and is controlled by G. S. 1935, 44-528, and that after the final payment of the award provided for therein the commission lost jurisdiction of the cause.
G. S. 1935, 44-528, provides as follows:
“At any time before, but not after, the final payment has been made under or pursuant to any award or modification thereof agreed upon by the parties, it may be reviewed by the commission upon good cause shown upon the application of either party, and in connection with such review the commission may appoint a physician or surgeon, or two physicians or surgeons to examine the workman and report to the commission, and the commission shall hear all competent evidence offered, and if it shall find that the award has been obtained by fraud or undue influence, or that the committee, or arbitrator, making the award acted without authority, or was guilty of serious misconduct, or that the award is excessive or inadequate, or that the incapacity or disability of the workman has increased or diminished, the commission may modify such award upon such terms as may be just by increasing or diminishing the compensation subject to the limitations hereinbefore provided in this act; and if the commission shall find that the workman has returned to work for the same employer in whose employ he was injured or for another employer and is earning the same or higher wages than he did at the time of the accident or injury, or is gaining an income from any trade or employment which is equal to or greater than the wages he was earning at the time of the accident or injury, or shall find that the workman has absented himself and continued to absent himself so that a reasonable examination cannot be made of him by a physician or surgeon selected by the employer, or has departed beyond the boundaries of the United States, the commission shall cancel the award and end the compensation: Provided, That the provisions of this section shall not apply to an award of compensation provided for in the schedule of specific injuries in section 10 (44-510) of this act.”
Attention is called to the first provision of the above section, which provides that the action contemplated by the commission may be taken “at any time before, but not after, the final payment has been made under or pursuant- to any award or modification thereof agreed upon by the parties.”
Respondent points out that the application to set aside the award in this case was made after the final payment.
Claimant points out G. S. 1935, 44-527. That section is as follows:
“At the time of making any final payment of compensation, the employer shall be entitled to a final receipt for compensation, executed and acknowledged or verified by the workman, which final receipt may be in form a release of liability under this act, and every such final receipt for compensation or release of liability or a copy thereof shall be filed by the employer in the office of the commission within sixty (60) days after the date of execution of such final receipt or release of liability, and if the employer shall fail or neglect to so file such final receipt or release of liability, the same shall be void as against the workman. The commission shall accept, receipt for, and file every agreement, finding, award, agreement modifying an award, final receipt for compensation or release of liability or copy thereof, and record and index same, and every such agreement, finding, award, agreement modifying an award, final receipt or release, shall be considered as approved by the commission and shall stand as approved unless said commission shall, within twenty (20) days of the date of the receipt thereof, disapprove same in writing and notify each of the parties of its disapproval, giving its reasons therefor, sending a copy of the same to each of the parties by registered mail: Provided, No proceedings shall be instituted by either party to set aside any such agreement, release of liability, final receipt for compensation or agreement modifying an award, unless such proceedings are commenced within one (1) year after the date any such agreement, release of liability, final receipt for compensation or agreement modifying an award has been so filed and approved by the commission.”
The commissioner of workmen’s compensation and the trial court both took the position that the so-called award of November 2 was nothing more than a final release under the terms of the above section, and that proceedings could be begun within a year after the giving of the final release to set it aside pursuant to the rule laid down in Odrowski v. Swift & Co., 99 Kan. 163, 162 Pac. 268, where this court held that releases could be set aside on any ground upon which a contract could be canceled, in this case for fraud or mutual mistake of fact. We thus are confronted with the question of which of the two foregoing sections is applicable to this case. If the action of the commission in this case be held to be an award, as spoken of in G. S. 1935, 44-528, then the proceedings to set it aside were brought too late and should have been dismissed.
The joint petition and stipulation, which was executed by both parties, stated that the commissioner might “make and enter an award based upon the facts set forth.” Both the claimant and respondent were represented by counsel. Their stipulation was submitted to the commission, which acted on it. The instrument by which the commission évidenced its action was called an award. This instrument was in terms an award as plain as language could make it.
This court has considered the question of modification of awards in compensation cases many times. In Corvi v. Crowe Coal & Mining Co., 119 Kan. 244, 237 Pac. 1056, the original award had all been paid but the last payment. A check was given for that payment, but was not cashed.' Subsequently proceedings were commenced to modify the award on the ground that it was grossly inadequate.
This court said:
“The court might have found that the check given by defendant in good faith for the final installment of-the award was accepted by plaintiff as cash, that the award had been paid, and consequently that the action was barred under the statute, which reads as follows: . . .” (p. 245.)
This court then quoted R. S. 44-528, the provisions of which are substantially the same as those of G. S. 1935, 44-528, the section relied on here. This court then said:
“The court did not find, however, that final payment had been made, and on June 29, 1922, it reviewed and modified the award.” (p. 246.)
Thus this court held that had there been a final payment of the first award in that case as there was in this case the matter would have ended there and there would have been no modification at all.
De Millsap v. Century Zinc Co., 123 Kan. 570, 256 Pac. 1036, was a case where the workman filed a petition to review and modify an award. The original award had been for a lump-sum payment of the amount already due and the balance in weekly payments. The defendant made the payments for a time and then tendered the plaintiff eighty percent of the amount still due. Plaintiff refused to accept this payment, and while the application of defendant to compel plaintiff to accept this final payment was pending, filed the application to review and modify the award upon the ground that the disability of the. plaintiff had increased. R. S. 44-531 provided the liability under an award might be redeemed by a payment of eighty percent of the award at any time after payments had been made under the award for six months. This court held that these payments had not been made for six months, as required by the statute, before a lump-sum settlement could be made and that the motion of the defendant to compel the plaintiff to accept the lump-sum payment was correctly overruled.
As to the application of the plaintiff to modify the award, this court quoted the language used in the opinion in Corvi v. Crowe Coal & Mining Co., supra, and said: “Such a review and modification may be made at any time before the final payment has been made.”
In Murphy v. Cook Construction Co., 130 Kan. 200, 285 Pac. 604, the workman was injured by having cement blown in his eyes. He made a timely application for compensation for the loss of his right eye. All the details were stipulated and a proper award was made. Within a little more than four months after the injury the workman made an application for compensation in which he alleged that his left eye had been injured at the same time. This court held that the application was too late because it was filed more than three months after the injury. In addition, this court said:
“It is true, of course, that the statute contemplates the possibility that where a claim has been timely made and an award made thereon, such an award may afterwards be raised or lowered before final payment is made if subsequent developments justify it.”
This court then cited the cases of Corvi v. Crowe Coal & Mining Co. and De Millsap v. Century Zinc Co., supra, and said:
“If appellant had made a timely claim for compensation for injury to his left eye, and some award had been made therefor and not paid in full, it might very well be shown by lapse of time and subsequent developments that such award was insufficient and ought to be increased. But no such case is here. Moreover, in this case the award for the loss of the right eye and for which compensation had been timely demanded had been fully paid.” (p. 202.)
Doss v. Cornelison & Kelly, 124 Kan. 631, 261 Pac. 584, was a case where an award had been made, and later, but before final payment of the award, the workman filed an application to increase the compensation. The trial court dismissed the application apparently on the theory that it was without jurisdiction to review the award because the application for the increased compensation was not filed within a year after rendition of final judgment, as required by the provisions of the civil code relating to petitions for a new trial. This court held that the civil code was not applicable in a workmen’s compensation case, and said:
“The proceeding is controlled by the provisions of the workmen’s compensation act. (Corvi v. Crowe Coal & Mining Co., 119 Kan. 244, 237 Pac. 1056.) The stay of execution and defendant’s bond were executed in accordance with the provisions of section 18 of that act (R. 8. 44-530), which provides for such bond when there is question of the employer’s financial ability to pay. Section 16 of the act (R. S. 44-528) provides for modification of the award at any time before final payment.” (p. 632.)
Indihar v. Western Coal & Mining Co., 119 Kan. 748, 241 Pac. 448, was a proceeding for compensation. A judgment was given the workman for compensation in a lump sum for the amount due and to run a specified time. Subsequently proceedings were had to modify the award, and the award was modified. The defendant appealed on the ground that the trial court had entered a judgment as a result of the first proceeding and once entered this judgment was a finality and could only be disturbed or overthrown in the manner pointed out in the code of civil procedure. This court held that the code of civil procedure did not apply, quoted R. S. 44-528, and the syllabus from Corvi v. Crowe Coal & Mining Co., supra, as follows:
“ ‘The workmen’s compensation act provides that at any time before final payment of an award has been made the award may be reviewed, and if the court shall find that incapacity of the workman has increased, the award may be modified ■ accordingly. This provision authorizes review and modification of an award which has been previously reviewed and modified.’ ” (p. 750.)
In Hardwell v. St. Louis S. & R. Co., 146 Kan. 870, 73 P. 2d 1120, compensation was awarded. On appeal the respondent argued that the evidence was not sufficient to support an award. This court reviewed the evidence and affirmed the judgment. After holding that it was not necessary to prove the duration of disability by medical testimony this court said:
“Moreover, G. S. 1935, 44-528, provides a review may be had at any time before final payment of the award for good cause shown.” (p. 876.)
The foregoing opinions have been cited and quoted from here because they evince a firm determination by this court to hold that it is necessary that a proceedings to modify an award must be started before the final payment of the award has been made.
Some of these cases arose under the workmen’s compensation act as it was before it was amended in so many particulars by chapter 232 of the Laws of 1927. Some of them arose after the enactment of the above chapter. R. S. 44-528 covered the same general subject matter as section 28 of chapter 232 of the Laws of 1927. This sec tion is now G. S. 1935, 44-528. The only change made in R. S. 44-528 by section 28 of chapter 232 of the Laws of 1927 besides substituting the word “commission” in the new act where the word “court” had appeared in the old act was to add the words “but not after” to the first line of the section so that it now reads, “At any time before, but not after final payment has been made.” The addition of these words at a time when the whole act was undergoing a general overhauling can only mean that the legislature reaffirmed what this court had held, that a proceeding to modify an award must be filed before final payment under or pursuant to an award. Any other conclusion would render the addition of these words meaningless. In connection with this it should be noted that among the grounds upon which an award may be modified is that the “award has been obtained by fraud or undue influence.” It was clearly the intention of the legislature that an award could be modified for any proper cause provided the proceedings were commenced before final payment had been made.
Claimant argues that an injustice is done him by the first award, since it was for a lump sum of $150 payment and it was paid within a few days after the award was made, thus depriving him of an opportunity to discover the mistake. The fact is, however, that had this award provided for weekly payments based on the average weekly earnings of the claimant, the final payment would have been made long before the application to modify the award. No injustice was done the claimant on that account.
At this point we must consider the provisions of G. S. 1935,44-527. The section has been set out already in this opinion, but the portion with which we are interested is as follows:
“No proceedings shall be instituted by either party to set aside any such agreement, release of liability, final receipt for compensation or agreement modifying an award, unless such proceedings are commenced within one (1) year after the date any such agreement, release or liability, final receipt for compensation or agreement modifying an award has been so filed and approved by the commission.”
This section first appears in our laws as section 15 of chapter 226 of the Laws of 1917. The proviso last quoted above was not in that chapter, but was added when the compensation act was rewritten in 1927. It will be noted that the legislature contemplated that action to set aside a release, a final receipt or an agreement modifying an award, could still be filed even though it provided that the trial of applications for compensation should be before a commissioner rather than the district court. What we are interested in, however, is that the above section provided for the filing of every “agreement, finding, award, agreement modifying an award, final receipt or release.” While in the proviso limiting the time within which an action to set aside might be brought to one year, “agreement, release of liability, final receipt for compensation, and agreement modifying an award” are mentioned, “award” is not mentioned. This leads us to the conclusion that the legislature did not contemplate that any proceeding could be brought to set aside or overthrow in any way an award except as provided in G. S. 1935, 44-528.
The respondent, on the argument of the rehearing, furnished us with a copy of a rule of the commissioner of workmen’s compensation that was in effect when this proceeding was had. This rule is as follows:
“In those cases where the parties desire to stipulate as to all the facts for the purpose of a determination by the commissioner and the rendition of an award, such may be done by the filing of a joint petition and stipulation containing all the necessary facts on which to base an award. If all the necessary facts are not stipulated to, there is not a proper foundation and an award ■cannot be made.
“All joint petitions and stipulations must be accompanied by a physician’s Teport.”
Surely the commission provided for just the procedure that was had in this case.
The respondent argues that in the practical administration of the act there must be as much finality about an award of the commissioner after the final payment has been made as there is to the final judgment of a court, and that this finality is provided by G. S. 1935, 44-528. This question was considered by this court in Yehle v. Stamey-Tidd Const. Co., 150 Kan. 440, 94 P. 2d 328. This opinion ■ was handed down after the original opinion in this case was filed. In that case the employer began paying compensation without any .application. Later an application was filed and an award was made for compensation at the rate of $9 a week for twenty-six weeks. Later a stipulation was filed alleging that the claimant was desirous of making a lump-sum settlement of the award for ninety-five percent of the balance still owing. This application was approved, the award was modified and the respondent paid the balance due. Some months later the claimant filed an application to reopen the proceedings and to set them aside on alleged grounds of mutual mis takes, inadequacy of the award, and the continued incapacity of the claimant. This application was denied. Subsequently another application was made asking that the former award be set aside on account of a mutual mistake of fact. After some procedural steps, with which we are not interested here, the commissioner of workmen’s compensation held that it was without jurisdiction to hear the application to modify the original award. From this ruling the claimant appealed to the district court. The respondents filed a motion to dismiss the .appeal because of G. S. 1935, 44-528. The trial court held that the commissioner of workmen’s compensation had jurisdiction to hear the application to set aside the award, but that in this case there was no evidence to warrant setting it aside.
The claimant appealed, claiming that the first award and the later modification of it were the result of a mutual mistake of fact, and that G. S. 1935, 44-528, was not controlling. The respondents filed a cross-appeal in which they contended that the commission did not have jurisdiction to entertain claimant’s application to set aside the original award, and that the trial court erred in so holding. This court pointed out the provisions of G. S. 1935, 44-528, as well as G. S. 1935, 44-527, and referred to a statement by the trial court that the two sections were inconsistent, but that “reason, right and justice” demanded that the trial court follow the first section. This court then said:
“Certain aspects of G. S. 1935, 44-527 and 44-528, which provide for enlarging, diminishing or terminating an agreement, concerning compensation or an award of compensation, at the instance of workman or employer, within one year after such agreement has been effected or such an award has been made, have been part of the compensation act since its first enactment. (Laws 1911, ch. 218, secs. 29, 32. G. S. 1915, secs. 5923, 5926.) Those provisions were rewritten with some procedural changes in 1917. (Laws 1917, ch. 226, secs. 15, 16, R. S. 44-527, 44-528.) In 1927 the act was again revised. (Laws 1927, ch. 232, G. S. 1935, 44-501 et seq.) This is the last expression of the legislative will on the two sections of the act under present scrutiny. In section 27 (G. S. 1935, 44-527) the principal change from its earlier text was the addition of a proviso which reads:
“ 1Provided, No proceedings shall be_ instituted by either party to set aside any such agreement, release of liability, final receipt for compensation or agreement modifying an award, unless such proceedings are commenced within one (1) year after the date any such agreement, release of liability, final receipt for compensation or agreement modifying an award has been so filed and approved by the commission.’
“As already quoted, section 28 (G. S. 1935, 44-528) provides for a review of an award or modification thereof agreed upon by the parties ‘at any time before but not after the final payment has been made.’
“It will be noted that in the language of section 27 quoted above the right of workman or employer to institute proceedings within one year to set aside an agreement, release of liability, final receipt or agreement modifying an award, is recognized, although not expressly granted. However, such right is expressly granted in the first five lines of the succeeding section (sec. 28) and such proceedings may be instituted at any time before, but not after final payment has been made. Considering these sections together, it seems reasonably clear that there is a field of practical usefulness for both these statutory regulations. Ordinarily the allowance of compensation, however it was fixed, by agreement, award, or otherwise, may be reviewed — that is, enlarged, dimished, or terminated — at the instance of either party, unless final payment has been made. If final payment has been made, a complete finality is thereby reached, and no further proceedings can be entertained by the compensation commission. It follows that the compensation commission’s ruling that it had no jurisdiction to hear claimant’s application for a further review of the award after final payment of the modified award had been made was correct and should have been sustained by the trial court.”
The above is the latest expression of this court upon the question we are now considering. It will be seen that there is the same finality about an award of compensation by the commission after the final payment has been made that there is to the judgment of a court of competent jurisdiction once the time for appeal has gone by.
It follows that the opinion of reversal published in Farr v. Mid-Continent Lead & Zinc Co., 150 Kan. 292, 92 P. 2d 124, is adhered to. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action originally instituted for divorce and alimony and subsequently changed to one for alimony alone, and from a judgment rendered the defendant appeals, the specifications of error generally covering alleged error in the admission of evidence, in making findings of fact, in the trial court’s assuming jurisdiction with respect to a trust, etc., and in the ruling on a motion for a new trial.
The following statement will tend to explain the matters in controversy. Mary D. Watts, a resident of Butler county, died testate in 1918, and her will was subsequently admitted to probate in that ■county. Under that will she bequeathed and devised to A. L. L. 'Hamilton and J. B. McKay, or the survivor of them, in trust for ■Corwin Grant Watts, who was a foster grandchild, the undivided •one-half interest in certain real estate, including oil and gas royalties and rents and incomes accruing therefrom, with full power and ■control, and directing the trustees to pay to Corwin Grant Watts, at such times as to them might seem necessary, such sums of money as in their judgment were necessary for his proper maintenance, support and education, and after he arrived at the age of twenty-one years to turn over to him all of the trust property remaining in their hands when, in their judgment and discretion, he had attained sufficient business judgment and had otherwise shown himself •capable of handling the property, but the trustees were directed to hold and invest the property until they determined Corwin Grant Watts to be a suitable person to- handle the same. In 1919 the trustees filed an annual report in the district court of Butler county .and that court then assumed full and complete jurisdiction of the trustees and of the trust. Yearly reports were thereafter made to that court. In 1932 Hamilton died and McKay, was appointed sole trustee and at the direction of that court gave bond in the sum of $20,000. Other matters pertaining to the trust will be referred to later.
At a time not definitely shown but not long prior to February 1, 1939, Nellie Watts filed the present action against Corwin Grant-Watts in the district court of Sedgwick county, alleging she was a resident of that county; that she and Corwin Grant Watts were married in El Dorado in 1924 and lived together until about September, 1931, one child being born in April, 1926, the child being constantly in her care since her separation from' defendant. She charged that defendant was guilty of gross neglect of duty, habitual drunkenness and extreme cruelty; that he was the owner of real and personal property of the value of approximately $40,000; that she had been receiving $50 per month from the estate of her husband managed by J. B. McKay, of El Dorado, Kan., etc., and she prayed inter alia for a divorce and permanent alimony. The abstracts do not disclose the contents of any answer that may have been filed.
At the trial plaintiff’s evidence showed the marriage and birth of the child and tended to show that defendant was a drunkard, afflicted with a venereal disease which he had communicated to his wife, seriously affecting her health, causing her to undergo surgical operations, etc., and generally that he acted without regard to his marital duties and obligations.
One of plaintiff’s counsel testified at length that he had made a thorough investigation of all the property and assets of the above-mentioned trust estate. Over objections of the defendant that the trial court was without jurisdiction over that estate, and that the witness was not qualified to testify with respect thereto, the witness placed values on what he stated were the assets of the trust estate. We need not recite the details of his testimony, the repeated objections, etc., nor the interlarded arguments of the witness and counsel and the comments of the trial court. About the time plaintiff concluded presentation of her evidence, she moved the trial court to dismiss without prejudice her cause of action for divorce, and to continue the action as one for permanent alimony.
Thereafter the trial court made findings of fact and conclusions of law which we summarize as follows: That plaintiff and defendant were residents of Sedgwick county, were married at El Dorado on October 4, 1924, separated about September, 1931, and had one child now about thirteen years of age; that defendant was guilty of gross neglect of duty, habitual drunkenness and extreme cruelty toward plaintiff; that the child was suffering from glandular trouble and had bad teeth, and the $50 per month which the mother re ceived was not sufficient for the support of the mother and daughter. Then follows a number of findings with respect to the creation of the trust estate; that the trustees had reported to the district court of Butler county; that the value of the property and securities in the hands of the surviving trustee was in the total sum of $45,172. Finding No. 13 reads:
“The court further finds that the plaintiff should be given sufficient definite sum of money as alimony for herself, and a further additional definite amount for the care, custody and control, education and culture, and medical relief of their minor child. The court makes this finding for the reason that the defendant is irresponsible and unfit to take care of the child, and to relieve the mother of the child of constant worry as to periodical payments for the support of the child.
“The court finds that the sum of fifteen thousand dollars ($15,000) should be set aside immediately for the plaintiff in this action as permanent alimony, and an additional sum of five thousand dollars ($5,000) for the benefit of the said child as above set out, all of this to be under the care and control of the mother.”
By further findings the trial court directed that specific assets of the trust estate valued at $5,000 be assigned to the mother for her child, and that certain other assets and cash totaling $15,000 be transferred to the plaintiff. It also found that defendant should pay plaintiff’s attorneys the sum of $750 upon their fees for bringing the action. Finding No. 15 reads as follows:
“The court further finds that all of said property is now in the possession of J. B. McKay, who took said property as trustee for defendant, and that a proper order should issue out of this court to the said J. B. McKay, .directing him to appear in this court and advise the court fully as to all property now in his hands belonging to defendant, so that this court can, by proper orders, carry out the terms of the decree made herein.”
Briefly stated, the conclusions of law were that the defendant was the actual owner of all the property remaining in the hands of J. B. McKay as trustee and that the language of the will was not sufficient to create a spendthrift trust after defendant had arrived at the age of 21 years; that Mary D. Watts could not establish a spendthrift trust in such manner as to deprive defendant’s wife and child of necessary support and that the trust estate was liable for alimony, and that the trial court had power to enforce its judgment for alimony out of the property held by the trustee. In accordance with the findings and conclusions, the trial court rendered judgment in favor of plaintiff and against defendant for $15,000 as permanent alimony and $5,000 for support of the child, and directed the amounts be paid out of the property and in the manner set forth in the findings; the costs were charged against the trust estate; the defendant was directed to pay plaintiff’s attorneys upon their attorney fees the sum of $750, also to be paid out of the trust estate, and finally it was ordered that a certified copy of the journal entry be served upon J. B. McKay, trustee, and that he be ordered to appear on a day set and show cause why he should not be required to pay the judgments, and in the meantime he was restrained from delivering any of the property in his hands as trustee to the defendant.
In accordance with the above judgment, notice was served on the trustee, and he appeared specially and for the purposes of his motion only and moved to quash the service attempted to be made upon him for four specified reasons: (1) He was not a resident of Sedgwick county, was not a party to the above action, and no service was had upon him in Sedgwick county. (2) He was trustee of a trust being administered in Butler county under the jurisdiction of the district court of that county. (3)' That in October, 1931, Nellie Watts had filed an application in the district court of Butler county in the matter of the trusteeship of Corwin G. Watts, and on hearing an order was made for the support and maintenance of herself and her minor child, and in November, 1932, that order was modified, and that the matters mentioned were a complete and final adjudication of the matters involved in the suit at bar. (4) The district court of Butler county having acquired full and complete jurisdiction of the trust and of the trustee, the district court of Sedgwick county had no jurisdiction to make or enforce orders to show cause or otherwise, as against the trustee. To this motion the plaintiff filed a reply, the contents of which need not be mentioned now. On the hearing of this motion the court made no ruling, indicating by its remarks the matter was going to the supreme court, and it wanted a ruling “to know where we stand.” The court’s, order was that the hearing of the motion to quash was passed and continued to the next term. After the above order was made the defendant appealed to this court, specifying the errors noted above.
Stated broadly, the question before us is the power of the trial court to assume jurisdiction over the trust estate of which the defendant is the beneficiary, to hear evidence as to its value, and to apportion to plaintiff any part of it.
The trust in question was created by will, and after the settle ment of the estate of the testamentary donor in the probate court the trustees invoked the jurisdiction of the district court of Butler county, Kansas. That court assumed jurisdiction and for almost twenty years received the reports of the trustees and surviving trustee, approved their administration of the trust and their accounts, fixed allowances for their services, and in 1931 entertained plaintiff’s petition for support money out of moneys which would otherwise have been paid to her husband, and made an appropriate order in connection therewith. Except for that order the trustee could not have paid her anything out of the trust estate.
We need not pause to inquire as to the correctness of the trial court’s conclusion the trust created was not, after defendant reached the age of twenty-one years, a spendthrift trust, although appellant argues that it was under our decisions in Sherman v. Havens, 94 Kan. 654, 146 Pac. 1030; Pond v. Harrison, 96 Kan. 542, 152 Pac. 655; Everitt v. Haskins, 102 Kan. 546, 171 Pac. 632. Also, see Restatement Trusts, § 152, and comment c. Nor does this case now present the question whether the trust was either a spendthrift trust or a trust for support in which cases the interest of the beneficiary can be reached in satisfaction of an enforceable claim against the beneficiary by the wife and child for support or by the wife for alimony (Restatement Trusts, §§ 152, 154, 157), or a discretionary trust, in which such a result does not follow (Restatement Trusts, § 155).
It is to be observed that the trustee was not a party to the present action. Assuming the trial court had jurisdiction otherwise, it could make no valid order nor render any valid judgment disposing of the trust fund, unless the trustee were properly before it as a party to the action. (See Bridge Co. v. Fowler, 55 Kan. 17, 34, 39 Pac. 727; Benton v. Benton, 84 Kan. 691, 695, 115 Pac. 535; and 65 C. J. 868 [Trusts, § 757]; 26 R. C. L. 1360 [Trusts, § 224] and 20 R. C. L. 667 [Parties, § 8]; also, 2 Perry on Trusts and Trustees, p. 1489, § 873.)
Appellant repeatedly objected to any evidence being received as to the status of the trust funds and to the making of any order in connection therewith for the reason that the trust was within the jurisdiction of the district court of Butler county, Kansas, which not only had supervised the trust for many years, but had made specific orders for the payment of support moneys to the plaintiff. The trust was created by the will of Mary D. Watts, which was duly admitted to probate in the probate court of Butler county, the county of her residence. When her estate was settled the trustees named in her will were residents of Butler county, as was the beneficiary under the trust. In addition, the original corpus of the trust estate was located entirely in Butler county. The trustees properly invoked the jurisdiction of the district court of Butler county and that court assumed and has since retained jurisdiction of the trust estate. Insofar as these matters are concerned, no other district court had concurrent jurisdiction. But if it be assumed that another court now has concurrent jurisdiction, we are confronted with the general rule that as between courts of concurrent jurisdiction the one which first acquires jurisdiction may draw to itself all matters inhering and retain such jurisdiction and control to the exclusion of any other court of concurrent jurisdiction. (See Railway Co. v. Love, 61 Kan. 433, 59 Pac. 1072; Bridgeport Machine Co. v. Arthur A. Beard, Inc., 135 Kan. 711, 11 P. 2d 990; Bank Savings Life Ins. Co. v. Schroll, 141 Kan. 442, 41 P. 2d 731. See, also, 7 R. C. L. 1067 [Courts, § 105]; 14 Am. Jur. 444 [Courts, § 249]; and 15 C. J. 1134 [Courts, § 583].) Here we have not only the rule of law; we have the fact that plaintiff, prior to the filing of her action for divorce and alimony, applied to the Butler county district court for support moneys to be paid out of her husband’s trust estate, and has been receiving them since. Lengthy discussion is not needed to demonstrate that the administration of the trust and the disposition of its assets cannot be permitted by various courts of possibly concurrent jurisdiction. If the present trial court may strike down a part of the trust, then a district court other than the district court of Butler county, if it had before it the defendant and his wife, might direct that other inroads be made. The result would be confusion. We conclude the trial court was without power and jurisdiction to make the order of which complaint is made.
Appellant does not contend the evidence is not sufficient to warrant a decree either for divorce or for separate maintenance. His contention is that the particular decree is not supported by competent evidence, and, as indicated above, that contention is sustained. It is clear that the decree fixing alimony and attorney’s fees is based on the trial court’s conclusion it had jurisdiction over the trust estate, and indeed there is no evidence that defendant had any other property. All parts of the decree fixing alimony and attorney’s fees must therefore be set aside. In view of our conclusions, it is unnecessary that we discuss appellant’s specifications of error with respect to the admission of testimony as to the value of the trust estate, and the finding of the trial court thereon.
The judgment of the trial court is reversed.
Allen, J., dissents. | [
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|
The opinion of the court was delivered by
Thiele, J.
Appellants have filed a petition for a rehearing or, in the alternative, for a modification of our opinion filed December 9, 1939, and reported in 150 Kan. 906 et seq., 96 P. 2d 860, for the reason the journal entry of judgment entered in the trial court did not clearly disclose the status of the action after the motion for judgment was sustained, and the judgment of this court was based on a misapprehension.
It now appears the trial court ruled only on questions of law involved and did not render any judgment as to the amount due to defendant Martin, either for moneys paid out by him on behalf of Bessie Wolcott or due to him for services rendered, and that the order directing Martin to pay $2,000 into court or to give sufficient bond therefor was in the nature of an interlocutory order pending appeal to this court on the questions-of law involved. No rehearing is necessary.
That portion of the opinion on page 910 reading as follows; ■
“The court then found defendant should pay into court the sum of $2,000, etc., and rendered judgment accordingly.
“The record is barren of information as to how this amount was determined, but apparently the trial court assumed defendant had received $3,182.61 and had paid out about $900 as alleged in his answer, leaving him charged with $2,282.61, the difference between that amount and $2,000 being the allowance made for compensation for services rendered.”
and that portion of the opinion on page 912 reading as follows:
. “No complaint is made that, assuming the trial court’s disposition to be otherwise correct, the allowances for expenditures for bills paid and for defendant’s compensation are either wrong or inadequate.
“We are of opinion the trial court properly disposed of the action, and its judgment is affirmed.”
are stricken from the opinion, and in lieu thereof the following shall be the conclusion of our opinion:
“The ruling of the trial court on the questions of law submitted was correct. Upon further hearing the court should hear the matter of accounting by defendant Martin as to the sums received by him from Bessie Wolcott and the credits to which he is entitled for expenditures made by him for her out of said sums, and for his services.
“The judgment of the trial court is affirmed.” | [
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|
The opinion of the court was delivered by
Thiele, J.:
Defendant was convicted of a violation of G. S. 1935, 21-554, and appeals, assigning various claimed errors, which will be discussed.
Defendant was tried on an information containing two counts. He was found not guilty on the first-count and we shall refer to the check there involved only to complete the story with reference to the check involved in the second count, on which a verdict of guilty was returned.
The second count charged that on October 25,1937, the defendant unlawfully, etc., did “draw, make, utter, issue and deliver to the Corwin State Bank, a corporation, his certain check in writing, drawn upon the Southwest National Bank, in Wichita, Kan., in the sum of $1,900, payable to the order of the Corwin State Bank, knowing at the time of the making, drawing, uttering and delivering of said check that he had no funds on deposit in or credits with said bank with which to pay said check upon presentation.”
Defendant’s several pleas in abatement were overruled and his motions to quash the information, and to compel the state to elect, were denied. Upon arraignment, the defendant stood mute, a plea of not guilty was entered for him, and his trial proceeded. The evidence showed that after banking hours on October 25, 1937, the defendant and his brother, E. G. Gillen, came to the banking house of the Corwin State Bank and met one J. R. Goodan, the cashier, and wanted to purchase a bank draft for $4,760. After some conversations, M. E. Gillen drew a check for $1,900 on the Southwest National Bank, of Wichita, signed Gillen & Company by M. E. Gillen, payable to E. G. Gillen, who in turn endorsed the check. This check and another for $2,860 drawn in a similar manner on another bank were delivered to Goodan in exchange for a draft for $4,760, payable to the order of M. E. Gillen, drawn by the Corwin State Bank on the Union National Bank of Kansas City. This draft was cashed at a bank in Wichita on the following day and in due course it was presented to and paid by the drawee bank. The two checks above mentioned were both protested when presented for payment to the banks on which they were drawn, the vice-president of the Southwest National Bank testifying that M. E. Gillen or Gillen & Company did not have an account in that bank in excess of $100 or any credit arrangement with that bank that it would honor checks drawn by either without their having money in the bank. Thereafter on November 4, 1937, E. G. Gillen came to the Corwin State Bank and told Goodan that he had caused M. E. Gillen and their mother to worry about the matter, and at that time E. G. Gillen presented for deposit two checks, one for $4,450 drawn by one Edwards on the Burns State Bank, and one for $4,350 drawn by the same person on the Peabody State Bank. The total of these two checks, $8,800, was thus disposed of: $3,100 was deducted to cover a banking item from Kansas City; $4,764 was deducted to cover the two checks of $1,900 and $2,860 above mentioned, plus $4 protest fees, and the balance of $936 was deposited to the credit of E. G. Gillen. At that time the two checks of $1,900 and $2,860 were returned to E. G. Gillen. For that reason they were not available and offered in evidence at the trial. The two checks of $4,350 and $4,450 were not paid on presentation. There was a great deal of evidence showing the details of the above transactions and tending to prove that the defendant M. E. Gillen and his brother E. G. Gillen-were engaged in “check-kiting” activities of some scope.
Appellant contends the trial court erred in overruling his five pleas in abatement, the general tenor of which was that he had never had a preliminary hearing and had never been legally bound over and held -for trial; that there was no evidence at the preliminary tending to show commission of the offense charged in the complaint; that the district court was without jurisdiction to try him, and that his constitutional rights had been violated. The sum and substance of appellant’s argument is that under G. S. 1935, 52-1702, a check is a bill of exchange drawn on a bank, payable on demand, that a bill of exchange is an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the other to pay on demand a sum certain in money to order or to bearer (G. S. 1935, 52-1001), and that the criminal statute under which the prosecution was had refers to such a check, and that under State v. Avery, 111 Kan. 588, 207 Pac. 838, it is obvious the act is intended to apply to negotiable paper. A particular point is that the evidence offered at the preliminary did not include the check itself from which it might be disclosed whether the check was payable on demand for a sum certain in money to order or to bearer and that no witness so testified, and therefore there was no proof appellant had ever issued or delivered any instrument conforming to the requirements of the crimes act. It may be remarked the same contention with respect to sufficient showing as to the check was made at later stages of the trial. Assuming that the word “check” as used in the crimes act means a “check” as defined in the negotiable instruments act, it may be said that when the witnesses at the preliminary used the word “check” it was used to describe an instrument having the required legal characteristics. It may be observed that at the preliminary it was not required of the state that it prove beyond a reasonable doubt that defendant committed the offense complained of, only that there was probable cause to believe he did. Attached to the abstract is what purports to be a copy of the evidence taken at the preliminary. We have read all of it, and we think the evidence sufficient to warrant defendant’s being bound over and held for trial.
The other grounds of the pleas in abatement have been examined. The trial court did not err in overruling them.
Appellant’s contention the trial court erred in denying his motion to quash the information is divisible. He first contends that as drawn the information stated several offenses in one count. In an early case, State v. Schweiter, 27 Kan. 499, it was held that where a statute makes either of two or more distinct acts connected with the same general offense subject to the same measure and kind of punishment, when separately committed, they may when committed at the same time by the same person be coupled in one count as constituting one offense, and in such case the offender may be informed against as for one combined act in violation of the statute, and proof of either act will sustain a conviction. And see State v. Sherman, 81 Kan. 874, 107 Pac. 33; City of Great Bend v. Shepler, 109 Kan. 568, 572, 201 Pac. 78; State v. O’Donnell, 116 Kan. 182, 185, 225 Pac. 1078, and State v. Clark, 125 Kan. 791, 266 Pac. 37. It is also contended the information was subject to motion to quash in that it used only the statutory language and did not set out the particular facts in that the details of the check are not set forth; that the information does not charge that The Southwest National Bank was a bank, a depository for money, a corporation, a partnership or an individual, etc.; that the information does not charge the check was drawn for money, nor can it be certainly determined as to what bank it was drawn on. Our attention is directed to authorities to the effect that where an act is denounced by a statute creating an offense in generic terms, the information must go further in stating the facts than by using the language of the statute, citing State v. Bellamy, 63 Kan. 144, 65 Pac. 274; State v. Briggs, 94 Kan. 92, 94, 145 Pac. 866, and similar authorities. We have no quarrel with the rule, but do not agree with appellant as to the application he tries to make here. Summarized, the information clearly charges defendant with unlawfully drawing . . . and delivering to the Corwin State Bank his check in writing drawn upon the Southwest National Bank in the sum of $1,900 payable to the order of the Corwin State Bank, knowing he had no funds on deposit in or credits with said bank with which to pay the check upon presentation. We think the use of the word “check” as defined above, and as connected with the other subject matter, is sufficient on that point. The name of the person or institution to whom the check was delivered is clear, as is the sum of money to be paid. The contention that the name of the bank on which the check was drawn is not explicit cannot be sustained. It is not necessary that the bank on which the check is drawn be alleged to be both a bank and a depository. The fact that it is a named national bank at a particular place sufficiently identifies it as a particular bank, it cannot use the word “national” in its title unless it is a banking institution organized under the laws of the United States (U. S. C. A., Title 12, § 583), and the fact it is a national bank indicates its power to receive moneys and be a depository thereof (9 C. J. S. [Banks and Banking, § 690], p. 1245). Appellant likewise contends the informa tion was subject to a motion to quash because there was no averment the check was not paid by the bank on which it was drawn. We think it implicit in the information it was not so paid, for it is stated defendant had no moneys or credits in the drawee bank. It is also contended the information failed to allege intent to defraud. He concedes that in State v. Avery, 111 Kan. 588, 207 Pac. 838, it was held that intent is not an element of the offense with which he stands charged. He says that in that case no consideration was given another part of the same act, i. e., G. S. 1935, 21-556, which provides for abatement if it be shown, under circumstances required, that the drawer of the check had no intent to defraud; and argues that if intent is an element in one instance it is in another. The question of whether intent was to be an element was for the legislature. We are satisfied the Avery case correctly disposes of the matter of intent as an element of the crime of which appellant was charged and convicted.
The trial court did not err in denying the motion to quash the information.
Appellant’s brief contains "a discussion of the proceedings at trial on the merits,” and embraces complaint about rulings with respect to admission and rejection of evidence, the instructions, etc., and with a single exception as to instructions, no part is supported by citation of any authority. We shall consider the matter briefly. At the commencement of the trial and during the voir dire examination, appellant sought to interrogate E. C. Wilcox as to whom he represented. On objection the trial court refused to permit such an examination. It’ is urged this was error and that under G. S. 1935, 7-107, appellant had the right to make such inquiry. The contention is not good. Assuming the statute refers to a criminal action and was properly invoked, the motion was addressed to the trial court’s discretion and its ruling was not prejudiciál error. Respecting complaints as to the instructions, it may be said a careful search of the abstract discloses that the appellant requested no instructions on any point, made no objection to the instructions that were given, and is not in a position to complain. Insofar as complaint is made that evidence offered was erroneously rejected, it is to be noted that such rejected evidence was not produced at the hearing of a motion for a new trial in the manner required by the code, and indeed from the briefs, we are left in the dark as to what it was.
It is also contended there was a variance between pleading and proof in that the proof showed a check payable to the order of E. G. Gillen and not to the Corwin State Bank. The claimed variance is technical. The proof did show the check was drawn by M. E. Gillen payable to E. G. Gillen. But it also showed that E. G. Gillen endorsed it and gave it to M. E. Gillen, who delivered it to the Corwin State Bank, with, another check so drawn, in exchange for the draft. Under G. S. 1935, 52-401, 52-402, 52-405, the endorsement, without more, made the holder the payee. Under G. S. 1935, 62-1718, it is provided that on appeal this court must give judgment without regard to technical errors or defects which do not affect substantial rights of the defendant. If there was a defect by reason of the claimed variance, it did not affect appellant’s substantial rights.
Appellant’s contentions with respect to alleged error in denying his motion for a new trial and in arrest of judgment have been answered by what has been said, with one exception. On hearing of the motion for a new trial, it was contended that no bailiff was ever appointed and qualified. It is clear a deputy sheriff acted in that capacity. The clerk of the court was unable to find any written appointment and the trial court stated it had no recollection of having made a formal appointment in writing and that only at the hearing had its attention been challenged to the matter. It is not contended the deputy sheriff was not properly sworn to act as bailiff and the record does not disclose any questions were asked to bring out that phase of the matter. We can only assume from the trial court’s ruling that it found there was compliance with G. S. 1935, 62-1448, respecting retiral and deliberation of the jury. More complaint is made, however, that the jury asked the deputy sheriff to inform the court they wanted certain records in the case; that he reported to the court, which said they couldn’t have them, and that he so informed the foreman of the jury. He also said he thought maybe he talked with one or two others a little; what he said was not disclosed. The trial court had all of the matter before it and concluded the appellant’s rights had not been invaded. We are now asked to say that what transpired constituted reversible error. We cannot do so.
An intensive search of the record discloses there was no prejudicial or reversible error, and the judgment of the trial court is affirmed. | [
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Per Curiam:
All these appeals are governed by the rule announced in Richardson v. Soldiers’ Compensation Board, 150 Kan. 343, 92 P. 2d 114, and Hicks v. Soldiers’ Compensation Board, 150 Kan. 903, 96 P. 2d 618. The judgment in each case is therefore reversed, and the several causes are remanded with instructions to enter judgment in each case in favor of appellant. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action to enjoin the collection of taxes because of the alleged excessive valuation of the property for taxation purposes. Defendants’ demurrer to plaintiffs’ evidence was sustained and plaintiffs have appealed.
Three pieces of business property situated in Wichita, Sedgwick county, are involved, but since the legal question to be determined, as applied to each of them, is the same we need state the facts only as applied to one. In'the petition it is alleged the Miller Investment Company owned certain'described real property which the evidence discloses was improved and used as a superservice filling station. It was alleged that about March 1, 1938, the county assessor and his deputy placed a valuation of- $16,410 on the real estate and $7,700 on the improvements, making a total of $24,110; that at the time they knew the valuations so fixed were not the actual or true valuations of the real estate or improvements in money, but knew, or by the exercise of ordinary prudence or inquiry should have known and could have learned, that the value of the real estate did not exceed $6,500 and the improvements thereon did not exceed $5,000, or a total of $11,500; that had they endeavored to ascertain the facts concerning the true value of the property they would have ascertained at the time of the assessment, or for the years 1936 and 1937, it had not earned to exceed six percent on a value of $11,500; that by their assessment they fixed the valuation at more than double the true value in money of the property, and that the valuations so placed upon the property were arbitrary, capricious and unlawful and made without a proper regard for the rights of the plaintiffs, and that the same constituted a fraud on plaintiffs. It was further alleged that plaintiffs endeavored to have a corrected return and on failing to do so appealed to the county board of equalization, and failing to get desired relief they appealed to the state tax commission, where they also failed to get the desired relief. In the prayer they ask the court to determine the true value of the property in money and fix the amount of tax which is equitable and right based on a proper valuation of the property. In an amendment to the petition it was alleged that the facts previously pleaded are in violation of the constitution of the United States, and each of its provisions, and especially of section 1 of the fourteenth amendment thereof, in that the property is being taken-without due process of law, and further that the facts pleaded in the petition are in violation of our state constitution, and especially article 11, section 1.
The answer admitted formal matters, also admitted an assessment had been made in a sum stated in the petition, and denied other pertinent allegations of the petition. The record does not show that a reply was filed.
Plaintiffs’ evidence pertaining to the proper method to be used in the valuing of real property for the purpose of taxation is fairly well summarized by a quotation in appellants’ brief from the testimony of one of the witnesses, as follows:
“Q. How do you arrive at it? A. There is only one way if you are fair with the owner of the building; tax him on what the building makes. If you do it any other way you are. cheating him. Q. Do you mean the net return on that property? A. Yes, sir; what the building earns him. Q. Do you take into consideration, in addition to what it earns him, the market value, if any, in the community for the property? A. Well, the market value is what it will earn. That’s the only argument you have got in selling a building; it will earn so much money. Q. When you say earnings; what rate of return on the invested capital? A. All the way from five to six percent; four and a half is pretty good now. Q. Based on that you would capitalize that to arrive at the assessed value? A. Yes, sir.”
The testimony of other witnesses for plaintiffs on this point was to the same effect, namely, that the value of such property could be determined only by its net return. Most of them testified the net return should be six percent of the value of the property. One of them testified he would like to have a net return of ten percent of the value, but that it should not be less than six percent. Some witnesses were asked if in reaching their conclusion as to the value of the property for the purpose of taxation they had considered other methods, or “all known methods” of ascertaining the value of property, and answered in the affirmative, but also testified that after all these things were considered the only true test was the net return to the owner. Indeed, it would appear this action was brought for the purpose of having it judicially, determined that the only method of determining the value of well-managed business property for the purpose of taxation is upon the net income of the property to the owner, and that such income should be six percent, or approximately six percent, of such value. We decline to make such an adjudication.
Excerpts from our pertinent statutes read-
“The deputy assessor from actual view, from consultation with the owner or agent thereof if expedient, and from such other sources of information as are within his reach, shall determine as nearly as is practicable the actual value in money of all taxable real property within his township or city, as the case may be. . . .” (G. S. 1935, 79-411.)
“Each parcel of real property shall be valued at its true value in money, the value thereof to be determined by the assessor from actual view and inspection of the property. . . .” (G. S. 1935, 79-501.)
“All property, real or personal, shall be valued at its actual value in money. . . .” (G. S. 1935, 79-1406.)
The county assessor and his deputy testified that they followed these statutes to the best of their ability, and that they did not make the net return to the owner the sole basis of the valuation of the property; .indeed, that in many instances they did not investigate or know the amount of such net return. It will be observed that our statutes nowhere make the net return to the owner the sole basis of valuation, or necessarily a basis at all. “If expedient” the deputy assessor should counsel with the owner or agent of the property. If such consultation were made the statute does not require that the deputy assessor ascertain the income, or the net income, of the property, and certainly does not require that to be made the basis, or the sole basis, of determining the value of the property for the purposes of taxation.
The allegations in plaintiffs’ petition charging defendants acted arbitrarily, capriciously, and in a manner to constitute a fraud upon plaintiffs is supported only by evidence tending to show that the assessor and his deputy did not follow the theory of plaintiffs respecting the method, or the sole method, of determining the value of their property, but, on the other hand, that they followed our statutes, above quoted, to the best of their knowledge and ability. This was their duty. (Hanzlick v. Republic County Comm’rs, 149 Kan. 667, 88 P. 2d 1111.) We think it clear plaintiffs’ allegations in these respects were not sustained by the evidence. Courts are not charged with the powers and duties of" assessors. (Finney County v. Bullard, 77 Kan. 349, 94 Pac. 129.) Neither do we see any reason for holding that the conduct of any of the defendants violated plaintiffs’ rights under the constitution of the United States or the constitution of this state.
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 was an action to recover damages for death by wrongful act, and from an adverse judgment the defendant appeals. There is also a cross-appeal by the plaintiffs.
Briefly summarized, the petition alleged that on November 4, 1938, W. B. Craig was proceeding west on the north side of highway 160 about three and one-half miles west of Pittsburg, Kan., on his way home. He was driving a team and wagon, and a few minutes after six p. m. the wagon was struck in the rear by an automobile driven by the defendant, and as a result of the collision Craig received injuries which resulted in his death within a short time. The negligence charged was that defendant drove his automobile at a speed between seventy and eighty miles per hour, and without slackening his speed, sounding his horn or giving any signal, drove ■into the rear end of Craig’s wagon; that had defendant kept a vigilant lookout he could and would have seen Craig’s wagon “with a lighted lantern on the rear end at said time and place aforesaid for a distance of one thousand feet” and have so handled his automobile as to have avoided the collision. Other claimed negligence was failure to reduce speed and to turn to the left to avoid striking Craig’s wagon.
Defendant’s answer, after admitting Craig’s death and that plaintiffs were his next of kin, denied generally, and alleged that Craig’s death was not caused by any negligence of defendant, but was caused by the contributory negligence of Craig in driving his horse-drawn wagon along the highway after dark without having any light, lamp, lantern or other illuminating device on the wagon, in his failing to keep and maintain a lookout for vehicles approaching his wagon, and in failing to keep his wagon on the right-hand side of the road. It was further alleged that defendant was properly operating his car and that he was placed in a sudden emergency and that he acted and drove as a reasonably prudent person might drive in similar circumstances. It was also alleged that if the death of Craig was not caused by Craig’s negligence, it was solely the result of an unavoidable accident for which defendant was not responsible.
At the trial defendant’s demurrer to plaintiff’s evidence was overruled, and later his motion for a directed verdict was denied. The jury returned a general verdict in favor of the plaintiffs for $3,000 and answered special questions submitted. Defendant’s motions for a new trial, for judgment notwithstanding the verdict, and for judgment on the special findings and to set aside certain answers were each denied; plaintiffs’ motion to set aside the answer to special question No. 6 was allowed and will be referred to later, and their motion for a new trial was denied, and judgment was rendered in favor of Lee Craig for $1,750 and in favor of Osten Craig for $1,250. Defendant appeals, assigning as error the rulings on his demurrer and various motions and from the.ruling striking out the answer to special question No. 6. The plaintiffs cross-appeal from the adverse ruling on their motion for a new trial.
We are of opinion that consideration of appellant’s specification of error that judgment should have been rendered in his favor on the special findings will dispose of all questions raised on his appeal and on the cross-appeal of the appellee.
Nine special questions were submitted to the jury and answered by it. For present purposes it may be assumed that the answers to all questions except Nos. 4 and 6 were supported by the evidence and could be reconciled with the general verdict. As submitted to the jury, question No. 4 read:
“Did the wagon which W. B. Craig was driving have a lighted lantern on the rear thereof, which lantern displayed a red light visible for a distance of 500 feet to the rear of said wagon?”
The jury struck out the last clause of the question, so that it read: “Did the wagon which W. B. Craig was driving have a lighted lantern on the rear thereof?” And its answer to the question as thus altered was: “A lantern.”
There was no dispute in the testimony that when the collision occurred it was dark enough that lights were required on vehicles using the highway. At the time of the collision it was required by G. S. 1937 Supp., 8-588, that all animal-drawn vehicles on the highway be equipped with a lamp or lantern exhibiting a red light visible from a distance of 500 feet to the rear, at any time from one-half hour after sunset to one-half hour before sunrise, and at any other time when there is not sufficient light to render clearly discernible persons and vehicles on the highway at a distance of 500 rfeet ahead as provided in G. S. 1937 Supp., 8-581.
Apparently anticipating the defense, plaintiffs sought to show "that the wagon of the deceased was so equipped and that he was ■not guilty of negligence for not having such a light, and they offered •.the testimony of three witnesses on that proposition. Hazel Greenwood testified that she lived about three-fourths of a mile east of the point of the collision; that W. B. Craig came to her place about six o’clock in the evening of November 4, 1938, and stayed about twenty minutes, and jüst before he left he got a lantern which he had left at her place; that she lighted the lantern and he took it out and fastened it on the tailboard of his wagon. She was unable to state definitely what color of globe was on the lantern, but did say: “I imagine it was a white globe.” She saw the lighted lantern on the back of his wagon as he drove away. About seven p. m. the ambulance went by and later she went to the scene of the collision, but she did not see the lantern there — “I never even thought about the lantern.” We .shall not detail any part of her examination tending to discredit any of the above. Sam Craig testified he was a brother of the deceased and lived in Pittsburg, and on hearing of the death of his brother went out to the home. On his way back he stopped at the scene of the collision and found a lantern about thirty feet from the wagon. He produced the lantern. It had a bent metal frame and no globe. Charles Mishmash testified he was with Sam Craig when the lantern was found and stated the lantern produced was similar to or the same one found at the scene. There is no evidence that the lantern produced was shown to Mrs. Greenwood or that she identified it in any manner. The marshal of the city court and a highway patrolman who went to the scene both stated they saw no lantern. Plaintiffs also called the defendant as their witness and on cross-examination he stated there was no light on the wagon.
Defendant showed by Hattie Hart that on the particular evening she took Mr. and Mrs. Ball for a ride in her new car and was proceeding west on the particular road about 6:30 p. m., and saw a man driving west with a team and wagon and there were no lights or reflectors on the wagon and she nearly struck it. After going by for some distance she turned and came back the same road and stopped at the place where the collision had occurred in the meantime, but she didn’t get out of her car. Mr. Ball’s testimony was to the same effect as Miss Hart’s. Mrs. Ball did not testify. Mrs. Hallie Gann and her son Fred both testified that on the evening in question they were driving west from Pittsburg and passed the defendant, whom they recognized, and after going some distance came up behind some cars and had to stop as some traffic was coming east. The cars went around a wagon and they then went around it. There were no lights on the wagon.
In considering the force and effect of the answer to the above special question, it is wrell to remember that while a general verdict imports a finding upon all the issues not inconsistent with the special findings, if the special findings cannot be reconciled with the general verdict, the special findings control, and if they are sufficiently full and complete in themselves judgment must follow them. If possible, special findings are to be so construed as to bring them into1 harmony with the general verdict. As against the general verdict, nothing will be presumed in favor of the special findings, but the latter may be viewed and interpreted in the light of the testimony. (See Marley v. Wichita Transportation Corp., 150 Kan. 818, 96 P. 2d 877, and cases cited.) How are question No. 4 and its answer to be interpreted? As. has been shown above, the evidence tended to prove contrary contentions, i. e., that there was a lighted lantern on the wagon at least approximately meeting statutory requirements, and that there was not. As originally propounded, the question clearly stated that issue and could have been answered “yes” or “no” and either answer would have found some support in the evidence. We do not concede it had any right or power so to do, but the jury altered this question in manner above indicated, leaving the question in such form that it could be answered “yes” or “no.” An affirmative answer would have absolved the decedent of negligence, but the jury chose not to return that answer. In view of the evidence, we cannot say the answer “A lantern” meant “lighted lantern”; we are impelled to a contrary conclusion, that there was a lantern, but that it was not lighted. The answer convicted the decedent of negligence that contributed to his death and his next of kin may not recover.
Reference has been made above to special question No. 6, the answer to which was stricken by the trial court. Defendant’s answer pleaded that the death of the decedent was the result of unavoidable accident. One of the instructions to the jury was as follows:
“You are instructed that an accident is an event which takes place without one’s foresight or expectation; an undesigned, sudden and unexpected event which happens unexpectedly and without the fault of anyone. In this connection you are instructed that if you find from all the evidence in this case that the injuries suffered by the deceased, W. B. Craig, were the result of an accident, as herein defined, then and under such circumstances, if you find them to have existed, the plaintiffs are not entitled to recover in this action and your verdict must be for the defendant.”
No objection to that instruction was made by either party. Special question No. 6 and the answer returned by the'jury was:
“Q. Do you believe from the evidence that the collision was the result of an accident as defined in the court’s instructions? A. Yes.”
The plaintiff moved to set aside the answer on the ground it was not supported by the evidence. As shown by the journal entry, the trial court sustained this motion—
“For the reason that, on account of this being the first case tried before an inexperienced juiy, they evidently understood accident to mean an automobile collision as it is commonly used because it is inconsistent with their general verdict and their other special findings.”
We shall not comment on the ability of the jury to understand all of the instructions, except the one quoted, and to render an intelligent verdict thereon, for it seems rather clear the trial court reached its conclusion because the answer was at variance with the general verdict. We are not now concerned with, whether the instruction should or should not have been given — it was within the issues raised by the pleadings and no objection was made when it was given. After the answer was returned, it was sought to be set aside on the ground there was no evidence to support it. The reason assigned by the court for its ruling excludes the ground urged in the motion. If in this case an answer may be set aside because it is inconsistent with the general verdict, then that must be the rule in every case. Such a conclusion is at utter variance with the intent of the code of civil procedure (G. S. 1935, 60-2918), which provides that special findings inconsistent with the general verdict control the latter. The answer should not have been stricken for the reason assigned. With the answer reinstated, standing alone it absolved the defendant. The answer, however, was inconsistent with the special finding made by question No. 9 and its answer, viz.:
“Upon what act or acts of negligence on the part of the defendant do you base your verdict? A. Fast, reckless driving.”
Except for the answer to special question No. 4, that situation would have compelled the granting of a new trial. (Railroad Co. v. Holland, 58 Kan. 317, 49 Pac. 71.) But here that result would not follow. The trial court, by its rulings, approved all the special findings except No. 6, which was erroneously set aside. It absolved both parties of negligence. Special finding No. 9 found defendant guilty of negligence, but special finding No. 4 found decedent guilty of negligence. Under such circumstances his next of kin could not recover, even though defendant was negligent. Any inconsistencies in the special findings themselves may thus be reconciled so that it clearly appears plaintiffs may not recover here.
Plaintiff’s cross-appeal' is predicated solely on the ground the verdict was for an inadequate amount. In view of our conclusions, it is not necessary to discuss the question.
The judgment of the trial court is reversed and the cause remanded with instructions to render judgment for the defendant. | [
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The opinion of the court was delivered by
Harvey, J.;
Plaintiff, an osteopathic physician, sued defendant for $39.50 on account for the treatment of his wife. Defendant admitted owing $19.50, but denied liability for any further sum, and by way of counterclaim attempted to plead a cause of action for damages in the sum of $300 on the theory that plaintiff, by malpractice, breached his implied contract to properly osteopathically treat defendant’s wife. At the close of the evidence the court instructed the jury to return a verdict for plaintiff for the amount sued for. This was done. Defendant has appealed.
The amount involved in the judgment for plaintiff is insufficient to give this court jurisdiction of the appeal. (G. S. 1935, 60-3303.)
In the counterclaim it was alleged that defendant, as the husband of his wife, is entitled to her services, and that as a result of the wrongful, negligent and improper treatment of his wife by plaintiff, defendant had been deprived of her services; that defendant’s wife has suffered permanent and lasting injury, and defendant has been compelled to pay for medical attention by reason of such injuries, and that the reasonable value of such household services and medical attention is the sum of $300. Our statute (G. S. 1935, 23-205), in part, reads:
“That where, through the wrong of another, a married woman shall sustain personal injuries causing the loss or impairment of her ability to perform services, the right of action to recover damages for such loss or impairment shall vest solely in her. . . .”
The trial court was of the opinion that because of this statute plaintiff could not recover on the cause of action he attempted to set out in his counterclaim. We concur in that view. (See Taylor v. 8. H. Kress & Co., 136 Kan. 155, 12 P. 2d 808.)
Appellant stresses the point that since plaintiff was an osteopathic physician, and defendant called him to treat his wife, that the implied contract of employment was that plaintiff should treat her osteopathically; that it is alleged plaintiff did not do so, and that the injuries complained of resulted from plaintiff’s failure to carry out the implied contract. An action for damages for malpractice is a tort, irrespective of the fact that the pleading may attempt to predicate the cause of action upon contract. (Travis v. Bishoff, 143 Kan. 283, 54 P. 2d 955; Coulter v. Sharp, 145 Kan. 28, 64 P. 2d 564.) In any event, plaintiff’s alleged acts, constituting malpractice, were the “wrong of another,” within the meaning of G. S. 1935, 23-205, and the cause of action for injuries resulting therefrom, mentioned in that section, vested solely in defendant’s wife, not in him.
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
Allen, J.:
This action was for commissions under an insurance agency contract. Plaintiff recovered judgment. Defendant appeals.
On July 28, 1933, the defendant insurance company and the plaintiff entered' into a written agreement whereby the defendant company appointed the plaintiff district manager of defendant company “for territory comprised of Pittsburg and Crawford, Cherokee, Labette and Bourbon counties,” and on the same date the parties entered into a separate written agreement designated as an amendment.
On August 16, 1933, the defendant company executed a written contract with one Mark Pinkston, whereby Pinkston was made general agent for defendant company in Bourbon county. The chief question in this lawsuit is whether the plaintiff is entitled to an “overwriting” commission on the business written by Pinkston under his contract as general agent.
The contract with the plaintiff was to continue for an indefinite period, but the company reserved the right to terminate the agreement in cáse plaintiff violated any provisions of the contract, or acted as agent for any other insurance company, or engaged in any other business, or in case plaintiff was guilty of any dishonest or fraudulent act, or in case of his failure to account for at the specified times and pay over all moneys due from him to the company.
Under the agreement plaintiff agreed to devote his whole time to his duties, and the commission he was to receive was specified. Under paragraph 12 it was provided that “on business written with another co-representative the application must be signed by both in order to receive credit for business written.”
The amendment to the agreement, executed on the same date, provided :
“It being to the mutual interest of both parties hereto that the territory covered by this memorandum of agreement be developed and as second party agrees to develop such territory, contracting with new agents, instructing them in the business, doing joint field work with them, and to produce from this agency at least $100,000 of paid-for business within each calendar year, the first party agrees to allow to the second party an extra commission on first year’s premiums on accepted and paid-for business as an allowance to cover any and all expenses incurred by the second party.
“This stipulation, known as amendment number two (2), together with the memorandum of agreement, to which this document is made as a supplement, shall constitute the entire agreement and understanding between first and second parties, the former retaining the privilege of modification of this or other agreements. This amendment modifies or changes only such articles in the memorandum of agreement as are specifically mentioned herein.”
On March 15, 1938, the defendant wrote plaintiff as follows:
“This letter is to advise you of the cancellation of your contract dated the 28th day of July, 1933. It is too bad that you have forced us to do this.
“We are also notifying the Insurance Department to cancel your license, giving as reason the fact that you are holding trust funds that belong to the company. We herewith make a demand on you for those trust funds.”
The petition, after a portion of defendant’s motion to make definite and certain had been sustained, alleged the contract between plaintiff and defendant dated July 28,1933; alleged that plaintiff entered upon his duties under the contract and faithfully performed every term and condition thereof; that the contract gave him “exclusive” rights in the territory named; that defendant- “breached” the contract by installing Mark Pinkston, without the knowledge of plaintiff, in the Bourbon county territory and in violation of the contract with plaintiff; that soon after plaintiff discovered Pinkston was writing in his territory, he, by various means, protested to the defendant, through several of its representatives, and that he was promised by Earle M. Moore that defendant would make an accounting to plaintiff for the business Pinkston wrote. It is also alleged that no such accounting was made; that plaintiff was, on March 15, 1938, informed by the president of the company that he was holding trust funds belonging to the company and that his agency contract had been canceled and the Insurance Department of the state of Kansas requested to cancel his license. It is alleged that these statements were untrue; that the plaintiff was damaged by the wrongful action of the company in canceling his contract. Plaintiff asked judgment for $10,000.
The defendant in its answer admitted the execution of a contract with plaintiff, denied the breach of the contract by defendant and the violation of any of its terms; alleged that plaintiff by his own actions breached the contract and violated the terms thereof, and that by reason of the breach by the plaintiff, his agency contract and agreements with defendant were canceled on March 15, 1938. Defendant denied that the appointment of Mark Pinkston as agent in Bourbon county was a violation of the contract between plaintiff and defendant, and denied any promises were made to plaintiff of an accounting to him upon business written by Pinkston. It is specifically denied that plaintiff was in any way damaged by the actions of defendant or entitled to recover any sum whatsoever from defendant by way of damages or otherwise.
In the cross petition, defendant set up particularly paragraphs 6 and 17 of the agency contract with plaintiff, and alleged that prior to the discharge of plaintiff he had made collections from applicants for insurance of sums of money for premiums, which sums belonged to defendant, and plaintiff failed, neglected and refused to remit them; that defendant had made numerous demands upon plaintiff, to no avail, and that defendant should have judgment against plaintiff for these sums. A reply was filed in which plaintiff denied he owed defendant any sum of money.
Upon the issues thus framed a trial was had before a jury. The defendant objected to the introduction of evidence because of misjoinder of causes of action, fraud and action on contract. The court sustained the objection as to the element of fraud, and the trial proceeded on plaintiff’s right of recovery under the contract. The jury returned a general verdict in favor of the plaintiff in the sum of $1,-485.37. The jury returned answers to special questions as follows:
“1. Did the plaintiff instruct Mark Pinkston in the business of insurance or do any field work with him or assist in any way in procuring any policies in Bourbon county? A. No.
“2. Did plaintiff sign any of the applications for insurance which were submitted to the defendant by Mark Pinkston? A. No.
“3. Did the plaintiff act as the agent for any other life insurance company during the period from July 28, 1933, to March 15, 1938? A. Yes.
“4. At the time of the cancellation of plaintiff’s contract, did the plaintiff owe the defendant any sum for trust funds in his possession? A. Yes.
“5. If question No. 4 is answered ‘Yes,’ have you made allowance for this sum in the amount specified in your verdict? A. Yes.”
The defendant filed a motion for a new trial and a motion for judgment notwithstanding the verdict. These motions were overruled and judgment was entered on the verdict in favor of the plaintiff. The appeal is from rulings and orders of the court in overruling these motions and in rendering judgment in favor of the plaintiff instead of the defendant.
On this appeal defendant argues that the action is one in equity for an accounting, and that it was error to submit the evidence offered by plaintiff to the jury. The point is not well taken. Where the account to be examined is incidental to the action on the contract, a party to the action is entitled to a jury trial as of right. The nature of the action, whether legal or equitable, is determined by the pleadings. (Estey v. Holdren, 126 Kan. 385, 267 Pac. 1098; Hasty v. Pierpont, 146 Kan. 517, 521, 72 P. 2d 69.)
Defendant directs our attention to the special findings of the jury, contends they are inconsistent with the general verdict, and that he was entitled to judgment non obstante veredicto.
In answer to the special questions the jury found that the plaintiff did not instruct Mark Pinkston in the business of insurance, that he did not do any field work with Pinkston, or assist him in any way in procuring any policies in Bourbon county.
In the amendment to the contract, above quoted, these were the specific things plaintiff agreed to do in order to entitle the plaintiff to the extra commission on the business written by agents in the territory. The answer of the jury to question one was a finding that the plaintiff had not performed the conditions precedent which entitled him to the commission on the policies of Pinkston.
Under paragraph two of the contract, plaintiff agreed “to devote his whole time to the performance of his duties” and under paragraph seventeen, if plaintiff should act as agent of any other life insurance company, the defendant company had a right to terminate his agency contract. In answer to question three, the jury found the plaintiff during the term of his contract did act as agent for other life insurance companies.
The answers to the special questions are to be read in the light of the provisions of the contract and the testimony in the case. When so considered it must be held that these answers are inconsistent with the general verdict.
Under our statute, G. S. 1935, 60-2918, when the special findings of fact are inconsistent with the general verdict, the former controls the latter and the court may give judgment accordingly. (See Dye v. Rule, 138 Kan. 808, 28 P. 2d 758; Hiler v. Cameron, 144 Kan. 296, 59 P. 2d 30; Jones v. A., T. & S. F. Rly. Co., 148 Kan. 686, 85 P. 2d 15.) The answers to the special questions being clearly inconsistent with the general verdict, the justment must be reversed and remanded with directions to enter judgment for defendant. It is so ordered. | [
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The opinion of the court was delivered by
Allen, J.:
This action was brought by a number of taxpayers against the board of county commissioners and other county officers of Miami county to enjoin the levy of the tax and the issuance of bonds pursuant to chapter 248 of the Laws of 1939. It stipulated that the defendants were threatening to and would, if not enjoined, levy and collect the tax and issue the bonds. The cause was submitted to the court upon the pleadings and agreed statement of facts. The court rendered judgment for the plaintiffs, and decreed that the defendants be forever enjoined from levying the tax and from issuing bonds under chapter 248 of the Laws of 1939. Defendants appeal.
Under section 1 the act is restricted to counties having (1) a population of more than eighteen and less than twenty-one thousand, (2) having an assessed valuation of more than twenty-two and less than thirty million dollars, and (3) having two cities of the second class having a population of three thousand or more, and (4) counties having adopted the county unit road system, and (5) having benefit-district road systems. .
The section provides that in such counties the county commissioners "shall levy a tax on all tangible and intangible property in said county for the purpose of retiring any and all outstanding benefit-district bond indebtedness in lieu of paying said bond indebtedness by assessments levied against the property in the respective townships in which the benefit-districts are located, and also in lieu of a similar levy against the owners of the property in the various benefit districts as provided for in section 68-706 of the General Statutes of 1935.”
Under section 2 the county commissioners are authorized and directed to “reimburse all benefit payments heretofore made” and outlines the procedure to be followed. It contains a limitation of one year as to the issuance of bonds and a limitation of five years in which reimbursements could be made by tax levy.
Paragraph 5 of the agreed stipulation of facts reads:
“That Miami county, Kansas, was at the time chapter 248, Laws 1939, was passed and now is the only county in the state having more than 18,000 population and less than 21,000 population, and an assessed tangible valuation of less than thirty million and more than twenty-two million, two cities of the second class having a population of 3,000 or more, having adopted the county unit system, and having constructed certain benefit-district roads under the provisions of art. 7, ch. 68 of the R. S. Kan. 1923.”
In the brief of appellant it is stated:
“There are twenty-six counties in the state that have adopted the unit system. There are forty-seven counties having benefit-district roads. However, there is no county in the state which has all of the required qualifications except Miami county. Allen county comes the nearest to filling all of the requirements, having the right population, assessed valuation, unit system, and benefit-district roads, and two cities of the second class, but fails in that one of the cities, Humboidt, lacks a few hundred having the necessary population of 3,000, its population being 2,402.”
Appellees contend that chapter 248 of the Laws of 1939 is unconstitutional for the reason it violates section 17, article 2, as well as other provisions of the constitution.
Does the act violate section 17, article 2, of the constitution? That section provides:
“All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state.”
Appellants present an acute argument supporting the validity of the act. An outline of the theory advanced may be stated: The first clause of the section 17, article 2, provides that “all laws of a general nature shall have a uniform operation throughout the state”; the second clause provides that “in all cases where a general law can be made applicable, no special law shall be enacted”; the third clause was adopted by the people at the November election in 1906.
In Richardson v. Board of Education, 72 Kan. 629, 84 Pac. 538, decided at the January term, 1906, it was said:
“A law of a general nature is one whose subject matter is common to all the people of the state. Sutherland defines a law of a general nature as follows:
“ ‘Laws of a general nature are such as relate to a subject of a general nature, and a subject of a general nature is one that exists or may exist throughout the state, or which affects the people of the state generally, or in which the people generally have an interest.’ (1 Lewis’s Suth. Stat. Con., 2d ed, § 197.)
“General laws are those ‘which apply to and operate uniformly upon all members of any class of persons, places, or things, requiring legislation peculiar to themselves in the matters covered by the laws.’ (Bouv. Law Dict. 877, ‘General Law.’) The difference between a law of a general nature and a general law is that the subject matter of the former must be one common to the people of the entire state, while all that is required of the latter is uniformity of operation.
“Whether or not the subject of an act which is either general or special in form is one of a general nature is always a question for judicial determination. If the subject matter is one of a general nature, the rule that it must be governed by a law which shall have uniform operation throughout the state is mandatory. If, however, the subject matter of the act is one not of a general nature, the law falls under the second subdivision of the constitutional provision, and the question whether it shall be governed by a special or a general law is one that lies wholly within the discretion of the legislature. (Rambo v. Larrabee, 67 Kan. 634, 73 Pac. 915.)” (p. 632.)
Counsel for appellant invoke the Richardson case and assert that prior to -the amendment of 1906 this court uniformly held that the first clause of the act “all laws of a general nature shall have a uniform operation” was mandatory; but that whether an act was a general law under the second clause, or a special law, was for the legislature to decide.
Counsel for appellant, in their very able brief, further state:
“The amendment requiring the courts to determine .whether or not a given act is repugnant to the section added nothing to the power of the courts in reference to the first clause of the section relating to ‘laws of a general nature.’ The courts had always exercised that supervision. It must, therefore, have been intended to apply to the second clause which reads ‘and in no cases where a general law can be made applicable no special laws shall be enacted.’
“Prior to the 1906 amendment it was the province of the legislature to pass upon the relative propriety of a general and special act. Now that function by the amendment has been transferred to the courts. It is the function of this court to decide if a general law accomplishes the purpose without public injury, in lieu of the legislature, which enjoyed that prerogative before as stated in Rambo v. Larrabee, supra. The assumption of this duty by the courts is largely responsible for the confusion on this subject, which has naturally and inevitably grown out of a misguided attempt in the amendment to create a justiciable question out of.a political one. In too many cases the courts have been compelled to use the rule of the ‘Chancellor’s Foot.’ This court has again and again, as shown by the above-cited decisions, taken judicial notice of facts upon which to base its decision. It had to.”
It is also urged that the legislature “has facilities which no court can possibly have for determining the degree of restriction of a given act, especially in reference to its application to large political subdivisions like a county or even a city.” In reference to the particular act before us, counsel state:
“In the instant case, it must be assumed that the legislature had before it the representatives of the five counties, having the unit system, and benefit district roads. It must be assumed that presented to it were the peculiar conditions of Miami county, differing from the four other counties. It must have considered the number of benefit-district roads of Miami county, compared with the other counties. Also the particular reasons why the other counties, at this time, did not wish to make the reimbursement; perhaps because of drought, or other economic afflictions which might have been peculiar to them. These must have been considered. Evidence of the importance to Miami county that the reimbursement should not wait, but must be made at this time, in all likelihood was of sufficient force to impress the legislature. Perhaps the universality of the demand, possibly evidenced by petition of the taxpapers [payers] of Miami county may have strongly influenced the legislature. Possible protests filed by taxpayers and the refusal by those taxpayers to pay, alleging the taxes unjust, and the justice or injustice of the .complaint may have been and probably were carefully weighed by the legislature.”
We have thus attempted to give a fair summary of the arguments advanced in favor of the validity of the act. The argument seems to be that adoption of the amendment by the people in 1906 was a mistake — the amendment being a misguided attempt to “create a justiciable question out of a political one” — that as the legislature has facilities that the court could not possibly have for determining the degree of restriction of a given act, the matter should be left to the legislature.
The wisdom of the amendment of 1906 is no concern of this court. It was submitted to the people and is a part of the fundamental law of the state. In express terms it imposed on the courts the responsibility of determining whether an act is repugnant to the limitations in the constitution. For this court to declare that it is for the legislature to determine whether an act is a general law or a special law within the meaning of the second clause of section 17, article 2 of the constitution as urged upon us, would amount to nothing less than striking the amendment of 1906 out of the section.
The act before us applies to Miami county alone. This is conceded. There are twenty-six counties in .the state that have adopted the unit system, and forty-seven counties that have benefit-district roads. It is conceded that at least twelve counties have both the unit system and benefit-district roads. From a careful reading of the act it appears the main objective was to remedy conditions in counties having benefit-district roads and the unit system. As regards the chief purpose of the act, at least twelve counties have the same attributes and conditions and such counties would seem to form a natural class for the uniform operation of a statute.
A law to be regarded as general must embrace all and exclude none whose conditions and wants render such legislation equally necessary or appropriate to them as a class. A law may be special by being so restricted as not to include all the subjects of a class and also where it excludes subjects of a class from its operation. (Board of Education v. Davis, 87 Kan. 286, 123 Pac. 885.)
In Patrick v. Haskell County, 105 Kan. 153, 159, 181 Pac. 611, it was said:
■ “While it is the duty of the courts to uphold laws passed by the legislature, yet it is just as much the duty of the courts to uphold the constitution. If the statute now under consideration be approved, and the principle followed in declaring that approval is observed in the future, the amendment concerning special laws will be of no effect, for the reason that any school district, any township, any city, any county in the state, desiring to accomplish anything not authorized by the general law, can, by the system that has been followed in framing the present act, secure the enactment of a law, general in form, but special in effect, enabling it to accomplish its purpose. Special laws, instead of being direct, will become general in form, but indirectly special, and all the evils of special legislation that brought about the amendment to section 17 of article 2 will be revived.”
See, also, our recent cases, Stevens v. McDowell, ante, p. 316, 98 P. 2d 410; Owens v. City of Coffeyville, ante, p. 263, 98 P. 2d 415.
As stated, the second section of the act contains a time limitation of one year as to the issuance of bonds and a limitation of five years in which reimbursement could be made by a tax levy.
The effect of time limit provisions in an act hás been before this court many times. In Barker v. Kansas City, 149 Kan. 696, 88 P. 2d 1071, paragraph d of the first paragraph of the syllabus reads:
“If a law otherwise general in form and title, and presently applying only to one city or governmental unit, contains a limitation of time in which there can be operations under it, so that there is little or no probability it could or would ever affect any other city or governmental unit, it is a special law.”
See, also, Ashley v. Wyandotte County Comm’rs, 121 Kan. 408, 412, 247 Pac. 859.
Out of proper respect for a coordinate branch of the government this court has gone far to sustain acts formulated in the language of a general law, even though there has been ground for suspecting the act was intended to operate as a local and special law. All presumptions are in favor of the constitutional validity of a statute. (Barker v. Kansas, City, supra.) But in the act before us the presumption of validity cannot prevail because proof to' the contrary is found on the face of its provisions construed in the light of the admitted facts. ■ No higher duty devolves on this court than to uphold the fundamental law.
We conclude the act violates section 17 of article 2 of the constitution and is void. It is therefore unnecessary to discuss other matters presented in the briefs.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Allen, J.:
This was a delinquent tax foreclosure action brought by the board of county commissioners. The action covered various tracts of land and included lots 1 and 2 in Potter, alleged in the petition to be owned by appellant Henry Nieman. Resident service was had on Nieman.
On September 10, 1938, judgment was taken in the action, the judgment against lot 1 being for $8.67 and against lot 2 for $30.29. Order of sale was issued, notice of sale was published and the sale was made on October 25, 1938. Lot 1 sold for $3.50, and lot 2 for $10, both to C. D. Taylor, appellee.
On October 29, 1938, the sheriff filed his return, and on the same day a motion to confirm the sale was filed, and an order of confirmation was entered forthwith. On November 2, 1938, and during the same term of court, appellant Henry Nieman filed his motion to set aside the sale and the order of the court confirming the sale, and asked to be allowed to pay into court the amount of the judgment with interest and costs. Appellant asked for an order restraining the issuance of a deed pending such motion. This motion was granted and a hearing on the motion was set for November 12, 1938. The evidence submitted at the hearing disclosed that the property in question was purchased by appellant in 1920, and that appellant and his wife have occupied the property as their home since that time; that appellant paid about $2,000 for the property and that at the time of the hearing it was reasonably worth $500.
At the conclusion of the hearing on November 12, the court overruled the motion to set aside the order of confirmation.
On November 19, 1938, appellant Nieman filed a motion to set aside the judgment, and to set aside the sale and the order of confirmation. On January 7, 1939, this motion was overruled. The order of confirmation, the motions to set the same aside, and the rulings on the motions were made at the same term of court.
Error is specified in overruling the motion of appellant to set aside the sale and the order of confirmation.
Appellees direct our attention to G. S. 1935, 79-2804, which provides:
“The sheriff shall make return to the clerk, and the same shall, as soon as practicable, be examined by the court, and if found by the court to be regular, it shall be confirmed, and the sheriff ordered to forthwith execute to the purchasers at such sale a good and sufficient deed therefor. . . .”
Appellee contends that under this statute, where the proceedings are regular, the court is not vested with discretion to set aside a sale and the confirmation of the sale.
We have ruled .otherwise. In Isenhart v. Powers, 135 Kan. 111, 9 P. 2d 988, it was held that it was not an abuse of discretion in the trial court in a tax foreclosure action to set aside a sale and confirmation of sale of a lot left in the sale list by mistake. In that case the court had under consideration the provisions of 79-2804. The court considered the spirit as well as the letter of the statute. (See 59 C. J. 964.)
The purpose of the statute in authorizing an action for the enforcement of the lien on real estate for delinquent taxes was to compel the payment of the taxes legally assessed. To that end the real estate is directed to be sold, but under G. S. 1935, 79-2803, provision is made for redemption before the day of sale. Under .seer tion 79-2804 the sale is to be confirmed by the court. WhereThe lot owner appears before the deed is delivered as in this case and offers to pay the amount of the judgment with interest, charges and costs, we think the money should be accepted and the sale and the confirmation of sale be set aside. Here the appellants’ home, worth $500, was sold for $13.50. As the judgment against the lots was for $38.96, the amount bid by the purchaser was about one-third of the amount of the judgment. The end and purpose of the law was to secure the payment of the taxes, not to sell the man’s home. As the appellant stood ready to pay the amount due with interest and costs, we think the court erred in not setting aside the sale and the order of confirmation.
The judgment is reversed with directions to set aside the sale and the order of confirmation of the sale conditioned upon payment of the amount of the judgment with interest and costs. | [
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The opinion of the court was delivered by
Smith, J.:
The plaintiff brought this action for alimony and separate maintenance, claiming to be the common-law wife of the defendant. The trial court made findings of fact and gave judgment in plaintiff’s favor, and defendant has appealed.
The question presented upon the appeal is whether the findings of the court and the evidence contained in the record support the judgment of the court. The contested issue is whether there was in fact a common-law marriage between plaintiff and defendant. The general situation may be gleaned from the findings of fact made by the court. They are in part as follows:
“1. That in the year 19-14, the plaintiff herein, whose name was then Mary Wilson, and who was then a young girl, went to work in the home of Walter Pitney, the father of the defendant, Raymond Pitney, as a domestic. That she continued to work in the home of Walter Pitney at various times from 1914 to 1920; that the family at that time consisted of Walter Pitney and his wife, the defendant, Raymond Pitney, and several minor children of Walter Pitney and wife.
“2. That in the spring of 1920, Walter Pitney and wife, together with all of the family, except the defendant, Raymond Pitney, moved to another farm several miles distant from the farm previously occupied. That the defendant, Raymond Pitney, remained on the farm previously occupied, hereinafter referred to as the Pitney Ranch, and still continues to reside on said farm. That the plaintiff, who is a second cousin of defendant, continued to reside on the Pitney Ranch and to keep house for the defendant.
“5. That during the above-mentioned times the plaintiff was authorized to and did sign the defendant’s name to checks drawn on his bank account for the payment of labor, groceries and supplies and other expense necessary for the operation of the farm. Plaintiff borrowed money at the bank in her own name, which was turned over to the defendant and placed in hisi checking account and used to meet operating expenses, interest and taxes on the farm. Defendant discussed with plaintiff from time to time his business deals, finances and other things in connection with the operation of the farm, and that plaintiff at times expended her own money in purchasing things for the home.
“7. That during all of the above pex-iod of time until about July, 1938, defendant took plaintiff with him to town, to various places in the neighborhood, to parties and gatherings in the neighborhood and to the family reunions and gatherings of plaintiff’s family, and on one occasion defendant took plaintiff with him to central western Kansas on a business trip, where the plaintiff and defendant stayed all night at a hotel in Abilene, Kan., under the name of Ray Pitney and wife. That defendant gave plaintiff px-esents during the above period at Christmas and at other times.
“8. That during the above period of time plaintiff retained her former name of Mary Wilson, although the evidence discloses that in July, 1938, at the instance and request of the defendant, Raymond Pitney, and for the purpose of obtaining credit, the plaintiff signed an agreement to pay to the International Harvester Company by signing the name, Ray Pitney, by Mrs. Ray Pitney. The evidence further discloses that on two different occasions the plaintiff cashed insurance policies which she carried upon her life and that the money received therefrom was placed in the bank account of Ray mond Pitney and used to pay interest and taxes and operating expenses on the Pitney Ranch.
“10. The evidence is conflicting upon the relationship of plaintiff and defendant during the above period of time; however, the court finds that since April, 1920, until plaintiff left the home of the defendant, that plaintiff and defendant resided together in the house on the Pitney Ranch, as man and wife, enjoying all the privileges of such relationship, and that on many occasions the defendant promised plaintiff orally that he would go through a marriage ceremony with plaintiff to make their union look right to the neighbors; however, no such ceremony was ever solemnized.”
The defendant attacks finding No. 10 as made by the court, contending that the evidence does not show that the status of marriage existed between the parties. He also argues that the finding itself is insufficient upon which to base a conclusion that a common-law marriage existed. •
The testimony of the plaintiff herself was the only evidence of an express marriage agreement between the parties. That testimony was:
Q. You will please state what he said. A. He said he would marry me if I would have sexual intercourse with him.
“Q. Did you have sexual intercourse with him at that time? A. Yes. The latter part of April, 1920.”
On cross-examination she testified:
“Q. Where were you when you entered into this conversation? A. In the home.
Q. Please answer the question. A. He wanted intercourse and I told him he would have to marry me first.
Q. Tell what he said. A. That is what he said to me.
Q. And that was all he said? A. I cannot remember everything that was said that far back.
“Q. What day was that on? A. I could not call the date.
“Q. How do you recall it? A. There are things like that you remember.
“Q. What did you say to him, after he wanted intercourse? A. I told him he should marry me first.
“Q. What did he say? A. Said he would that summer.
“Q. He has not since then up to this time? A. No.”
Some further testimony appears in the counter abstract:
Q. Was anything said by the defendant or yourself about your status as to being married? A. He said we had lived together as man and wife and he did not care who'knew it.
“Q. He stated to you, you were man and wife, and he did not care who knew it. A. Yes.
“Q. When was that? A. In the spring of 1920.
“Q. Any other times? A. Yes, he made that remark several times during the years.”
The plaintiff also introduced some ten witnesses who testified that from observing the parties the witness was of the opinion that they were married. But each of these witnesses testified that neither of the parties had ever said that they were married, or held themselves out as man and wife. As found by the court, plaintiff went by her maiden name. There is evidence also as found by the trial court that the parties once spent the night together at a hotel in Abilene after registering as “Ray Pitney and wife”; also, that in July, 1938, plaintiff signed an agreement to buy a piece of farm machinery with defendant’s consent, signing “Ray Pitney, by Mrs. Ray Pitney.”
Is the above evidence sufficient to support the judgment of the court and was the demurrer of the defendant filed thereto correctly overruled?
Much of the evidence introduced by defendant was contrary to the evidence detailed above. Other evidence was introduced which would tend to show that no marriage existed, but under the well-known rules of appellate procedure that will not be considered in determining whether the demurrer was properly overruled.
We shall examine the entire record to ascertain whether there was substantial evidence to sustain the judgment.
In 18 R. C. L. 391, § 12, it is said:
“The two essentials of a valid marriage at common law are capacity and mutual consent, and it is well settled that under the common law the marriage relation may be formed by words of present assent, per verba de praesenti,
Again in 18 R. C. L. 392 it is said:
“To constitute a valid marriage per verba de praesenti there must be an agreement to become husband and wife immediately from the time when the mutual consent is given. An express future condition is absolutely fatal to a claim of marriage, and cannot be explained away by circumstances. It shows mental reservations which are incompatible with consent. This is true whether the condition relates to the creation of the marriage status, or to the duration of the relations of the parties. As there can be no contract per verba de praesenti where the marital status is to become fixed in the future, it is not sufficient to agree to present cohabitation and a future regular marriage when more convenient, or when a wife dies, or when a ceremony can be performed.”
See, also, 18 R. C. L. 393 as to marriage de futuro cum copula, and 38 C. J. 1298, §§ 52 to 58, inclusive.
Plaintiff’s testimony taken as a whole can only reasonably be taken to show that the parties cohabited together upon the promise of the defendant to marry plaintiff in the future — “that summer."
Moreover, there is no evidence that the parties held themselves out as man and wife. There was evidence of opinion or speculation by certain witnesses that they might be. This falls short of that reputation and open conduct upon which an agreement of common-law marriage may be inferred.
In Butler v. Butler, 130 Kan. 186, 285 Pac. 628, the facts bore some similarity to the facts in this case. True, there the trial court had failed to find a marriage and that judgment was affirmed, but in that case both the man and woman agreed there had been a common-law marriage, but this court held the trial court correct in holding that the lack of any open recognition of the status prevented the parties from establishing the marriage.
Of course, cohabitation and repute are only evidence of marriage, but plaintiff’s case shows no evidence of holding out to the public as husband and wife to strengthen plaintiff’s contention that a marriage existed.
See 18 R. C. L. 430, 433, §§ 58, 59, 62.
Plaintiff herself testified:
“Q. Did you tell anyone that you were husband and wife? A. I can’t say as I did.
“Q. You cannot remember anyone you ever told that to? A. No.”
As found by the court in finding No. 11 defendant began keeping company with Frances Rowles in July, 1938. Plaintiff testified Frances Rowles came to the ranch and asked for defendant on different occasions and that plaintiff knew defendant was keeping' company with Frances Rowles. Plaintiff further testified:
"Q. Did you at any timo tell her jmu were Ray’s common-law wife? A. Did not (know) as I was supposed to.
“Q. Will you answer yes or no? A. No.
“Q. You never at any time told her you claimed to be Ray’s common-law wife? A. No. Did not know I had to tell her.”
It appears from plaintiff’s testimony that plaintiff was present when defendant brought his new wife home on November 15, 1938; that plaintiff left at the request of Mrs. Pitney on November 16, without making any claim that she herself was the wife of the defendant.
In the case of Shorten v. Judd, 60 Kan. 73, 55 Pac. 286, it was said:
“Nothing in our statutes prohibits a marriage per verba de pmesenti, or at common law, and so it has been held that where there are no impediments existing a present consent between parties then to take each other as husband and wife, followed by cohabitation, is sufficient to constitute a valid marriage. . . . There is the testimony of Sadie Kunkle that there was a present consent to an immediate marriage, and that they lived together as husband and wife from that time until the death of Judd. ... If the facts as written in the record were submitted to the writer he would hesitate long before he would hold that there was an actual marriage, or that the parties themselves understood that they had assumed the marriage relation. Among other things, it would seem that no publicity was given to the alleged marriage; she never told her parents, relatives or friends that she had been married— not even her sister, who lived in the Judd house with her a part of the time.” (p. 77.)
One difference between this case and the case of Shorten v. Judd is that it does not appear that plaintiff in this case testified that there was a present consent to an immediate marriage.
This court has discussed common-law marriages in the following cases. In each of them a mutual present consent to the marriage was regarded as being essential to the establishment of such a marriage: Renfrow v. Renfrow, 60 Kan. 277, 56 Pac. 64; Matney v. Linn, 59 Kan. 613, 54 Pac. 668; State v. Walker, 36 Kan. 297, 13 Pac. 279; Schuchart v. Schuchart, 61 Kan. 597, 60 Pac. 311; Freeman v. Fowler Packing Co., 135 Kan. 378, 11 P. 2d 276; Jacoby v. Jacoby, 132 Kan. 77, 294 Pac. 857; and Cooper v. Cooper, 147 Kan. 256, 76 P. 2d 867.
See, also, Haywood v. Nichols, 99 Kan. 138, 160 Pac. 982; and Reese v. Reese, 132 Kan. 438, 295 Pac. 260.
A case which is quite similar to this is Marsicano v. Marsicano, 79 Fla. 278, 84 So. 672. The testimony of the woman plaintiff there suing for alimony as to the existence of a common-.law marriage and the mutual assent necessary to establish such a marriage is strikingly like the testimony of plaintiff in this case. But in the Marsicano case the parties had publicly recognized each other as husband and wife, a fact which as noted above does not appear in this case, yet the supreme court of Florida concluded:
“This evidence does not establish the relation of a common-law marriage between the parties that can be recognized as such in this state. The testi mony not only fails entirely to show a marriage per verba de praesenti, but actually negatives it. It may, however, tend to show a relation resembling a so-called marriage per verba de juturo cum copula; and to sustain this decree we would have to sanction this class of marriages in Florida. Marriages per verba de juturo cum copula have never been recognized in this state. In most of the cases where this doctrine seems to be recognized, there was such a condition of facts as almost to bring them within the doctrine of a marriage per verba de praesenti. The ancient doctrine of marriages per verba de juturo cum copula is so nearly, if not entirely, repudiated in this country that we will not give effect to it in this state, fraught as it is with such serious consequences to innocent persons who'might enter into a recognized form of marriage with a person whose prior relations with another partook so nearly of an illicit nature.” (p. 289.)
In the case of Crossett v. The State, 97 Tex. Crim. Rep. 18, 260 S. W. 186, defendant was prosecuted for seduction. It appeared the defendant had promised marriage at a future date; that the parties had stayed together at a hotel for a week as man and wife. Defendant claimed that the court should have instructed upon the theory of common-law marriage; that such a marriage had existed and that he could not be prosecuted on the charge of seduction. The court held a refusal to so instruct the jury was correct; that there was no evidence of a present agreement to become husband and wife immediately.
See, also, Catlett v. Chestnut, 107 Fla. 498, 146 So. 241.
In view of the above authorities plaintiff’s evidence does not support the judgment of the trial court and the demurrer of the defendant to plaintiff’s evidence should have been sustained.
The judgment of the trial court is reversed with directions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for money. Judgment was for the defendants. Plaintiff appeals.
The petition of the plaintiff alleged that in June and July of 1934 he delivered 952 bushels of wheat to the defendants’ elevator; that this elevator was operated by defendants and maintained its place of business on the property of the M. K. & T. Railroad Company at St. Paul, Kan.; that during June and July, 1934, the plaintiff entered into an oral agreement with the 'defendants, whereby he delivered the wheat to the agent of defendants and the payment of the wheat was postponed to a date in the future, on which date defendants would make payment; the price of the wheat was to be fixed by the market price on the day plaintiff should request payment; that no payment was to become due until plaintiff informed defendants of the date when he wished payments to be made; that defendants under the oral agreement had the option of returning to plaintiff in lieu of cash payment an equal amount of wheat of like grade and quality as that delivered by plaintiff to defendants; that plaintiff first requested payment on May 8, 1937, on which date wheat of the grade and quality of that delivered by plaintiff to de fendants was $1.20 per bushel; that defendants had failed and refused to pay plaintiff for his wheat and there was due plaintiff from defendants $1,142.40.
It will be noted that wheat was brought to the elevator in June and July, 1934, and this action was commenced January 20, 1938. Plaintiff seeks to avoid the operation of the statute of limitations, G. S. 1935, 60-306, subdivision 2, by arguing that the cause of action did not accrue until May 8, 1937, when he demanded payment of defendants for his wheat. This argument would be persuasive if the contract pleaded were a contract of sale of the wheat at a price to be fixed in the future. We have concluded, however, that the provision in the contract that the elevator company had the option of returning to plaintiff in lieu of a cash payment an equal amount of wheat of like grade and quality, made the relationship between the parties that of bailor and bailee. In other words, the contract pleaded is a storage contract. This elevator and the contract are the type of elevator and contract with which this court dealt in the case of Kipp v. Goffe & Carkener, 144 Kan. 95, 58 P. 2d 102. In that case this court held that an elevator such as that described here came under the terms of R. S. 1933 Supp. 34-223 et seq., and that the only business in which such an elevator could engage was the buying and selling of grain. Following the decision in that case, we hold that defendants in this case did not have authority to make a contract such as that described in the petition and the only contract made was one to buy and sell wheat; that the wheat was sold during June and July of 1934 and the cause of action accrued then. It follows that since this case was brought more than three years after the accrual of the cause of action, it was brought too late and cannot be maintained.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This was a prosecution for the violation of G. S. 1935, 19-2210, commonly known as the trading-stamp act. The appeal is by the state on a question reserved on the ruling and judgment of the trial court that defendant had not been charged with the commission of a crime in the information, and that under the information and stipulated facts defendant should be discharged.
The statute in question reads:
“Every person, firm or corporation who shall use, and every person, firm or corporation who shall furnish to any other person, firm or corporation to use, in, with, or for the sale of any goods, wares or merchandise, any stamps, coupons, tickets, certificates, cards, or other similar devices, which shall entitle the purchaser receiving the same with such sale of goods, wares or merchandise to procure from any person, firm, or corporation any goods, wares, or merchandise, free of charge, or for less than the retail market price thereof, upon the production of any number of said stamps, coupons, tickets, certificates, cards, or other similar devices, shall before so furnishing, selling, or using the same, obtain a license from the county clerk of each county wherein such furnishing, selling or using shall take place, for each and every store or place of business in that county, owned or conducted by such person, firm, or corporation from which such furnishing or selling, or in which such using shall take place: Provided, however, That the provisions of this sec tion shall not apply to the furnishing or issuance of any stamps, coupons, tickets, certificates, cards, or other similar devices, redeemable at their face value, in cash or merchandise from the general stock of said merchant at regular retail prices at the option of the holder thereof.”
The next section requires one, before transacting such business, to obtain a license, and provides the amount of fee to be paid. A later section makes the violation of the statute a misdemeanor and fixes penalties.
The pertinent portions of the information, filed November 17, 1939, may be summarized as follows: That defendant is doing a personal loan business in Wichita; that on a date named, and under the terms of a printed and written contract, which was set out, he sold to a named borrower certain coupons or trading stamps, designated as Vee Bee profit-sharing certificates, of the face value of $12,60, without having first obtained a license provided by the statute above mentioned. The information contained other usual and necessary allegations. By the written receipt and contract set out the borrower acknowledged the receipt from defendant of $30, in cash, and the purchase for $12 of the book of Yee Bee profit-sharing certificates, which are acceptable as cash at their face value at from five to fifteen percent of the purchase price of foods, clothing, furniture, or general merchandise bought from stores listed by defendant as accepting such certificates as such part payment of merchandise. The purchaser of the certificates agreed to use the certificates in that way, and also agreed he did not then have any of such certificates previously purchased from defendant, and that the written agreement and the note given at the same time to defendant by the purchaser of the certificates contained the entire contract between them. Also, the book of the certificates was set out.
Obviously, one purpose of the prosecution was the desire both of the state and defendant to have an adjudication upon the question of whether this method of doing business violates the statute, G. S. 1935,19-2210 to 19-2214. On the filing of the information defendant, by his attorney, waived the issuance and service of a warrant and entered his voluntary appearance. Thereafter counsel for the state and for defendant entered into a written stipulation of facts, which may be summarized as follows:
Defendant is engaged in the small loan business in Wichita, loaning sums of from $10 to $40, but requires the borrower at the time the loan is made to purchase from him Vee Bee profit-sharing certificates in a sum depending on the size of the loan, and requires the transaction to be evidenced by a note, and a receipt and contract such as the one set out in the information; that defendant’s only business is the loan business, and he never has been engaged in the sale of goods, wares or merchandise in Wichita, except as stated in the stipulation; that on the date, and to the person charged in the information, defendant made a loan of $30 in cash and required the borrower to purchase for $12 a book of the Vee Bee certificates of the face value of $12.60, for which he took the borrower’s note for $42, payable in twelve equal installments of $3.50 per week, without interest until maturity, but thereafter to bear interest at ten percent per annum. A copy of the note, receipt and contract and of the book of Vee Bee certificates were attached to the stipulation, the latter two instruments being the same as those embodied in the information. It was stipulated the certificates could be used at any one of a number of stores in Wichita, and a list of them was set out, in payment of ten percent of the regular retail purchase price of goods sold at the stores. It was stipulated that defendant had no interest in these various stores or places of business, except his agreement with them about redeeming certificates received by the'merchant as ten percent of the purchase price of goods purchased by the persons to whom defendant had sold the certificates. Defendant had a contract with each of these merchants, in which the terms under which defendant redeemed the certificates from the merchants varied as defendant and the individual merchant might agree; for example, with one of the merchants defendant redeemed on a stated day each week all certificates received by the merchant within the previous week at their face value in cash; to three of the merchants he paid $5 per month, and to one $10 per month, for all certificates received by such merchants, whether the face value of such certificates was more or less than the sum paid; while other of the listed merchants regarded the fact that defendant referred his customers to them as advertising of sufficient value that they accepted the certificates without charge to defendant. It was further stipulated that the certificates were not redeemable by anyone at their face value in cash or merchandise’ at regular retail prices at the option of the holder thereof, and that defendant had not obtained a license and paid the license fee required by statute (G. S. 1935,19-2211).
When the case was presented to the trial court counsel agreed that the matter should be submitted to the court for determination, without a jury, upon the stipulation of facts. The case was argued to the court and briefs, of counsel submitted, with the result, as previously stated, that the court held the information did not state an offense, and that under the information and facts stipulated the defendant should be discharged.
We are first confronted with the contention of appellee that the appeal should be dismissed for the reason that there had been a trial of the case to the court upon the merits, and that defendant had been discharged. We think the point is not well taken. The facts stipulated embody all the pertinent allegations of the infor'mation and contain but little more, if anything, than might have been in a bill of particulars, sometimes used to particularize and enlarge upon the allegations of an information. More than that, the trial court held the information bad, and from that the state had a right to reserve the question of its validity and to appeal. (G. S. 1935, 62-1703.) Appellee further contends that the appeal should. be dismissed because there was no actual reservation by the state of the questions appealed from. The record does not sustain this contention.
It is obvious, indeed is frankly stated, that defendant, whose primary business is making small loans, devised this plan to circumvent our usury laws (G. S. 1935, 41-103), as interpreted by this court. (State, ex rel., v. Basham, 146 Kan. 181, 70 P. 2d 24.) We are not called upon in this case to determine whether he has accomplished that purpose, and we do not decide that question. The question is whether, in his effort to circumvent one set of statutes, he has run afoul of another.
Our so-called trading-stamp act (G. S. 1935, 19-2210 to 19-2214) was enacted in 1917 (Laws 1917, ch. 331). It was designed to prevent a recognized, existing evil in trade practices. Promptly, actions were brought to test its validity and to determine its application to particular parties or transactions. (State v. Wilson, 101 Kan. 789, 168 Pac. 679; State v. Mercantile Co., 103 Kan. 733, 176 Pac. 321.) The statute was held valid, and its application to the parties before the court was determined.
Under the facts charged in the information, and conceded in the stipulation, defendant, within the language of the statute (G. S. 1935, 19-2210), is a person who furnishes to others coupons or certificates to be used by them in purchase of merchandise at less than the retail price. It is charged in the information, and conceded by the stipulation, that defendant does not come within any of the exceptions specified in the statutes, and that he had not applied for and obtained the license required by the statute of one who engages in the trading-stamp business.
In support of the judgment of the trial court appellee’s principal contention is that he is not within the purview of this statute because his business is loaning money. It is argued he is not engaged in the mercantile business. It may be conceded that he is not directly so engaged, but the use of these certificates, valuable only when used for the purchase of goods from merchants listed by him, and his agreements with the several merchants as to the manner in which he redeems the certificates, all of which is a part of his business, hardly supports the broad claim that he has no interest in and is not in any manner engaged in the mercantile business. It is argued that the only thing which can be said to be sold by him to a borrower is the cash or money which he loans them, and this cash or money is not a commodity to be sold, but is a measure of value. Enlightening discussions and conclusions of economists and others on that subject are contained in the briefs. Fortunately, we need not decide this much-controverted question. The facts are, as charged in the information and conceded in the stipulation, that defendant sells to persons to whom he loans money certain certificates, which can be used by them only with merchants designated by defendant, in the purchase of merchandise for less than its retail price. We do not regard the questions of whether he is otherwise engaged in the mercantile business, or whether cash or money is a commodity which can be sold, as being questions determinative of the issue before the court. In fact, the very contention relied upon by appellee in this case was decided adversely to him in State v. Mercantile Co., 103 Kan. 733, 176 Pac. 321. The opinion in that case was upon three cases, consolidated in the supreme court, in which three defendants had been arrested for the violation of this statute. One of them, The Sperry & Hutchinson Company, manufactured and sold trading stamps. Another one, The Surety Coupon Company, manufactured and sold coupons. The book of certificates included in the information in this case states on its face that it is copyrighted by defendant, from which it may be presumed that it is printed by him, or with his authority. He stands in this case very much in the position of The Sperry & Hutchinson Company and The Surety Coupon Company in the case above mentioned. Respecting them the court held:
“A trading-stamp company or a trading-coupon company which is not engaged in mercantile business on its own account, but which furnishes trading stamps or coupons for the use of merchants in dealing with their customers, and which prescribes the mode in which such merchants shall distribute and redeem such stamps or coupons, and which mode does not conform to the uses permitted by the statute, is engaged in a business governed by the trading-stamp act, and when such business is undertaken without a license such company is guilty of a misdemeanor.” (Syl. ¶ 6.)
Our conclusion is that the trial court erred in holding that the information did not state an offense and in discharging the defendant. This requires that the judgment of the trial court be reversed for further proceedings in harmony with this opinion. It is so ordered. | [
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The opinion of the court was delivered by
Wedell, J.:
This action was brought by Mabel McCulley and other residents of the city of Wichita engaged in the grocery business, under the declaratory-judgment act, to determine the validity of a city ordinance. In a second cause of action it was sought to enjoin its enforcement. The defendants were the city of Wichita and its officers. The trial court held the ordinance unconstitutional, and defendants have appealed.
The ordinance, No. 12-113, insofar as material, provides:
“An Oedinance relating to the public health; providing certain hours for the retail sale of either cooked or uncooked perishable foods or foods subject to contamination when inspection is available and providing penalties for the violation of its terms.
“Be it ordained by the board oj commissioners of the city of Wichita, Kansas:
. “Section 1. That from and after the effective date of this ordinance, it shall be unlawful for any person, firm or corporation engaged in the retailing of either cooked or uncooked perishable foods, or foods subject to contamination, to sell, offer for sale, or expose for sale such foods at any time other than the hours of the day and the days of the week when inspection of such foods and the places where such foods are sold is available by the health department of the city of Wichita, as is provided for in this ordinance.
“Provided, however, This ordinance shall not apply to foods cooked, baked, or prepared on the premises for immediate consumption on or off the premises.
“Provided further, This ordinance shall not apply to milk, ice cream and frozen deserts [desserts],
“Section 2. The term either cooked or uncooked perishable foods or foods subject to contamination when used in this ordinance shall apply only to such foods as are usually sold under the classification of provisions, groceries or meats.
“Section 3. Inspection by the health department of the city in all cases provided for in this ordinance shall be provided during the following hours: From Monday to Friday, inclusive, during each day from seven a. m. to six-thirty p.m.; Saturdays from seven a. m. to nine p. m.
“Section 4. Any person, firm or corporation violating any of the provisions of this ordinance shall be adjudged guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than ten dollars ($10) nor more than fifty dollars ($50) for each offense. Each day’s violation shall constitute a separate offense.
“Section 5. If any section, subsection, or clause of this ordinance is held to be unreasonable or unconstitutional, it shall not affect the remaining portions of the ordinance which are reasonable and constitutional.”
The petition further alleged:
“The [plaintiffs] have in the past held their stores open for the sale of foods of the type set forth in said ordinance at hours other than those specified in said ordinance, and that they desire to continue to do so, and if not permitted so to do will suffer irreparable damage, and that there is an actual controversy between [plaintiffs] and [defendants]. That the penalties provided for violation of the ordinance are so excessive that they violate the constitution of the United States and the constitution of the state of Kansas. That the ordinance deprives the [plaintiffs] of the equal protection of the law under the fourteenth amendment to the constitution of the United States and the constitution of the state of Kansas.
“(o) The ordinance is not a health measure; (b) classification is unreasonable; (c) the hours provided in the ordinance are unreasonable and constitute a discrimination; (e) the ordinance is discriminatory; (/) the ordinance is indefinite and uncertain . . . that the ordinance would not be enforced.”
The prayer was for judgment holding the ordinance unconstitutional and in the alternative for a decree determining what foods actually came within the provisions of the ordinance.
The answer by general and specific denials put in issue every material averment of the petition. The answer and cross petition further alleged:
“. . . Said ordinance attached to plaintiff’s petition is a good, valid and subsisting ordinance of the city of Wichita and has to do with the protection of the public health, morals and well-being of the citizens of the city of Wichita, and its enforcement will aid in the protection of life, property, health, and morals. The purpose of said ordinance is to protect the citizens of the city against the spread of disease and to aid in the upbuilding of the health and good morals of the citizens and to aid in the enforcement of law and order, and to give further protection to life and property, and to aid the police of said city in the protection of life and property.
“That said ordinance was passed to limit the hours of the sale of goods, wares and merchandise mentioned in said ordinance and in the manner expressed in said ordinance to aid the citizens as heretofore stated. That said ordinance applies to each and every citizen of the city within its classifications and does not discriminate against any citizen of the city, and its provisions are wholly fair and reasonable. That under the terms of said ordinance pro hibition is made of the sale of goods, wares and merchandise of the first day of the week, commonly called Sunday, and does protect the health of the citizens in permitting a day of rest or recreation.
“The defendant, the city of Wichita, has upon its ordinance books an ordinance designated as ordinance No. 11-592, which ordinance has been in effect for a long period of time and is an ordinance in practically the wording of the statute of Kansas relative to the sale and the offering for sale of goods, wares and merchandise on the first day of the week, commonly called Sunday. The ordinance in question, insofar as it pertains to this litigation, is in words and figures as follows:
“Be it Ordained by the Board of Commissioners of the City of Wichita, Kansas:
“Section 59. Selling goods on Sunday. Any person who shall sell or expose for sale any goods, wares or merchandise in the city of Wichita or keep open any grocery, on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine not exceeding fifty dollars ($50).
“Defendants in their cross petition herein are asking this honorable court for an interpretation and construction of both ordinances, the one concerning which plaintiffs complain, and the one set forth by defendants, to wit, ordinance No. 11-592, and ask of this court a declaratory judgment thereon, and for cause show to the court that the plaintiffs herein and each of them have been selling and offering for sale and exposing for sale goods, wares and merchandise and holding open grocery stores on the first day of the week, commonly called Sunday, in direct violation of said ordinance, and they are now doing so and are threatening to sell and expose for sale goods, wares and merchandise in the city of Wichita and are threatening to keep open their grocery stores in violation of said ordinance on the first day of the week, commonly called'Sunday.
“Defendants say there is a bona fide contention between the plaintiffs herein and the defendants as to the constitutionality and validity of said ordinance No. 11-592. The plaintiffs herein and each of them- claim said ordinance is not valid and that they have good right to sell their goods, wares and merchandise on the first day of the week, commonly called Sunday, and are entitled to expose the same for sale and are entitled to maintain their grocery stores open on that day of the week, all contrary to the provisions of said ordinance.
“These defendants say that they have no adequate remedy at law, and Without the aid of a court of equity said plaintiffs cannot be prevented from infringing upon said ordinance. That a declaratory judgment should be made and entered herein determining the validity or lack of validity of said ordinance, and that plaintiffs be enjoined by this honorable court from the violation thereof and enjoined from selling or exposing for sale any goods, wares and merchandise in the city of Wichita and from keeping open any grocery on the first day of the week, commonly called Sunday.”
The answer and cross petition were amended as follows:
“For further answer and cross petition, defendants state that said ordinance attached to plaintiff’s petition is a good, valid and subsisting ordinance of the city of Wichita, and has to do with the protection of the public health, morals, and well-being of the citizens of the city of Wichita, and its enforcement will aid in the protection of life, property, health and morals; and said ordinance is supplemental to ordinances No. 9,166 and No. 11,636, copies of which ordinances are hereto attached and made a part of this answer and cross petition.”
Appellees moved to strike from defendants’ pleading all reference to ordinance No. 11-592, upon the following grounds:
“. . . These plaintiffs have raised no question in this proceeding of the constitutionality of said ordinance No. 11-592; that the matter of closing on Sunday is controlled by state statute; that the city has an adequate remedy at law and has for many years exercised that remedy at law; that said cross petition is not germane to this proceeding, for the reason that the ordinance attacked by plaintiffs herein does not purport to be a Sunday closing ordinance but merely an ordinance enacted in aid of the public health; that the same does not constitute a proper counterclaim, setoff or cross petition under the provisions of the code of civil procedure, or within the provisions of the declaratory-judgment act, or under the practice in equity in this state.”
. The motion was sustained without prejudice to defendants’ right to institute a separate action to determine the validity of ordinance No. 11-592. The trial court made certain findings of fact and rendered judgment in conformity therewith. The findings were:
“That the two provisions in section 1 of the ordinance herein involved, exempting therefrom food, cooked, baked or prepared on the premises, for immediate consumption on or off of the premises, and the exemption of milk, ice cream and frozen desserts, is an unreasonable classification and is discriminatory.
“Section 2 of the ordinance, providing that cooked or uncooked perishable foods, or foods subject to contamination, shall apply only to ‘provisions, groceries and meats,’ does not limit the application of the ordinance to perishable foods, or foods subject to contamination. Provisions, groceries and meats, includes all articles of food, whether or not such foods are of a perishable nature or subject to contamination.
“The court concludes that the ordinance is based upon an arbitrary classification and constitutes an unwarranted and unreasonable interference with the carrying on of lawful business, and is in violation of the federal and state constitutions, in that it deprives the plaintiffs of their liberty and property without due process of law, and denies to them the equal protection of the law.
“The ordinance contains a saving clause to the effect that if one section shall be declared unconstitutional that it shall not affect the remainder. It is impossible for the court to make a separation so as to say that any portion can remain effective.”
We shall first consider the alleged error in striking all reference in the answer and cross petition to the Sunday closing ordinance. Plaintiff’s action was instituted under the declaratory-judgment act. Plaintiffs in nowise challenged ordinance No. 11-592, but only ordinance No. 12-113, and on the ground the latter ordinance did not constitute a valid inspection ordinance. Defendants contend it is a valid inspection ordinance. The validity of that ordinance, as an inspection ordinance, does not depend upon the validity or invalidity of the Sunday closing ordinance, which latter ordinance does not purport to be an inspection ordinance. In other words, the Sunday closing ordinance, in a proper action, might be held valid or invalid, depending upon the reason or reasons which impelled the enactment of that particular ordinance, without in any manner affecting the validity or invalidity of the inspection ordinance. Defendants, however, complain that plaintiffs are selling merchandise on Sunday in violation of both ordinances. That does not preclude the city from pursuing its remedy under the Sunday closing ordinance. On the other hand, if merchandise is being sold on Sunday in violation of the inspection ordinance, the violators thereof can be prosecuted under that ordinance only if that ordinance is valid. That is the only ordinance plaintiffs are challenging, and defendants cannot establish the validity of that ordinance by establishing the validity or invalidity of the Sunday closing ordinance. The latter ordinance did not arise out of the inspection ordinance, the transaction set forth in the petition, which was the foundation of plaintiffs’ claim, nor was it connected with the subject of plaintiffs’ claim, namely, regulation of business for purpose of inspection, nor was the Sunday ordinance necessary or proper in order to have a complete determination or settlement of the question involving the validity of the inspection ordinance. It was properly stricken. (G. S. 1935, 60-710 and 60-711; Bank Savings Life Ins. Co. v. Schroll, 141 Kan. 442, 444, 41 P. 2d 731.) In passing it also may be remarked if the ordinance was valid as an inspection ordinance, then it did not require the aid or supplementing influence of a separate and distinct Sunday closing ordinance to make it valid.
Is ordinance No. 12-113 a valid inspection ordinance? Defendants insist it is. They contend a city of the first class possesses statutory authority to provide for inspection of meat markets and shops (G. S. 1935, 13-411), and to make regulations to secure the general health of the city. (G. S. 1935, 13-436.) Defendants further claim cities possess a wide discretion in enacting legislation to effectuate those purposes, and that courts are not concerned with motives or the wisdom of legislation designed to protect the public health. Concerning those general principles there- is no disagreement between the parties. The real issue on which the parties differ pertains to the validity of the instant ordinance, and with that question the parties all concede courts are concerned. Before examining the ordinance and stating the specific contentions of the parties we shall briefly review the salient facts disclosed by the oral testimony.
Plaintiffs operated grocery stores and sold groceries, foods and provisions for human consumption such as are ordinarily handled by retail grocers. The evidence disclosed a substantial portion of their trade was with customers, who worked during the daytime. Some of them lived in apartments or rooming houses. In some instances customers, both husband and wife, worked the entire day and made purchases after hours designated by the ordinance. Plaintiffs regulated their hours of business in order to accommodate the late trade which constituted a substantial portion of their business. The evidence disclosed if plaintiffs were compelled to operate only during the specified hours they would suffer material financial loss and that some of them would be obliged to close their stores. The evidence also disclosed meats and certain other provisions, such as are ordinarily sold at grocery stores or meat markets, could be and were sold after the hours fixed by the ordinance by those who were not operators of grocery stores or meat markets. The closing hours were fixed to correspond substantially with the working hours of the city’s inspectors.
We shall now direct our attention to the provisions of the ordinance heretofore quoted. The contentions of defendants are: The ordinance and its exceptions apply to everyone alike who is engaged in retailing the foods specified in section one of the ordinance and there can therefore be no objection to the ordinance on the ground of unreasonable or arbitrary classification of foods or on the ground the ordinance discriminates against any business; the time fixed for inspection is reasonable; the ordinance therefore constitutes a reasonable exercise of the city’s police power in its efforts to safeguard and protect the public health. If those contentions are sound the trial court erred in striking down the ordinance.
Plaintiffs contend the ordinance was in reality enacted in the interest of large dealers in groceries and meats and was designed to close, and if upheld will result in closing, small grocery stores and meat markets which operate longer hours than their larger competitors ; that irrespective of the motive or economic wisdom of such legislation, the ordinance is invalid for the following reasons: The ordinance is unreasonable and arbitrary in its classification of foods and is highly discriminatory in character; the alleged inspection ordinance unjustly interferes with the conduct of legitimate business; it is uncertain; as a criminal ordinance it is too indefinite, uncertain and ambiguous to constitute valid legislation.
Defendants emphasize the fact the ordinance was directed at certain foods and not at persons, firms or corporations, and that it therefore applies equally to all who sell, offer for sale, or expose for sale the particular foods described in section one, to wit: “Cooked or uncooked perishable foods, or foods subject to contamination.” As previously stated, defendants contend the exceptions contained in paragraphs one and two of section one also apply to all persons alike. Was the ordinance in fact designed to prohibit the sale, at other than inspection hours, of only those commodities described in section one? If only those particular commodities were intended to be covered, why was section one not ample and sufficient to make entirely plain that specific intent? If only those articles were intended to be embraced in the ordinance, then just why should that clear expression of intent have been rendered doubtful and ambiguous, if not in fact entirely nullified, by adding section two, which latter section defines the terms “cooked or uncooked perishable foods, or foods subject to contamination,” as applying — “only to such foods as are usually sold under the classification of 'provisions, groceries or meats”? (Italics ours.) We think it quite apparent section two was about as clearly designed to prohibit operators of grocery stores and meat markets from functioning at other than the specified hours as if such operators had been specifically named in the ordinance. Provisions, groceries and meats, of course, embrace many articles of food not described in section one. It seems to us the terms “provisions, groceries and meats” embrace about every article of human consumption that can be imagined. Those terms embrace exactly what operators of grocery stores and meat markets retail. The fact operators of such stores are not specifically named is immaterial. The result, if the ordinance is upheld, will be that operators of grocery stores and meat markets can operate only during the specified hours, with the exception of the sale of milk, ice cream and frozen desserts, which latter articles were excepted from the operation of the ordinance.
Were others than operators of grocery stores and meat markets permitted to retail foods specified in section one at any hours, and did the foods permitted to be sold by such other persons constitute a fair and reasonable classification designed to safeguard and protect the public health? Section one contains certain exceptions or ■exemptions, which read:
“Provided, however, This ordinance shall not apply to foods cooked, baked, or prepared on the premises for immediate consumption on or off the premises.
“Provided further, This ordinance shall not apply to milk, ice cream and frozen deserts [desserts].”
It is evident the first exemption was as clearly intended for the benefit of operators of hotels, restaurants, coffee shops, hamburger .stands, drugstores or other similar places where foods are prepared for sale, as though they had been definitely named in the ordinance. It will be noted that while the operator of a grocery store or meat market could sell his meat only during inspection hours, persons ■embraced within exception number one could sell it at any hour, irrespective of how contaminated it might have been when he ground it up for a sandwich, or when he placed it between two slices of bread, or when he began preparing it by a process of cooking, baking ■or frying. Obviously, ample seasoning or frying might render the ■odor of contaminated food less offensive or noticeable, but neither ■of the processes could cure the spoiled character of the food. Nor does the fact that tainted or poisoned meat is consumed immediately when served purify it. Under section two of the ordinance the operator of a grocery store could not sell, during hours other than those specified, fruits or vegetables canned under government supervision and inspection, but persons embraced within exception one could sell, without inspection, fruits and vegetables, so long as the fruits and vegetables themselves or a fruit or vegetable salad was prepared on the premises for immediate consumption. Operators of grocery stores or meat markets could not sell governmentally .supervised and inspected canned meats after six-thirty p. m., but persons within the exemption could sell them at any time, even though they prepared the meal from the contents of the same identical can, irrespective of how long the contents might have been ■exposed to the elements of contamination, and in some places the elements are numerous. A baker might sell pies and cakes, baked in his bakery, at hours other than those specified in the ordinance, but the same baker could not sell the same pies and cakes through his own grocery store at hours other than those specified. The operator of a restaurant or hotel might slice a banana or orange and serve it on the premises, or permit the purchaser to take it off the premises, at any time, but the same identical banana or orange could not be sold at a grocery store to a hungry farmer, child or laborer, who desired to eat it at the store, except during the specified hours. Moreover, what reasonable basis can there be for permitting the sale of milk, ice cream or frozen desserts, at any hour, which products are highly susceptible to contamination, and for prohibiting a groceryman from selling, excepUduring specified hours, a pound of butter or cheese which is carefully protected by wrapper and carton? Numerous other illustrations readily suggest themselves, but these are sufficient to illustrate the unreasonableness in the classification of foods which, under the ordinance, may and which may not be sold without being subject to inspection. The examples noted will also suffice to disclose the discriminatory and oppressive effect of the ordinance upon a legitimate trade or business.
While municipalities have authority to enact ordinances designed to safeguard and protect the public health, discriminations as to particular classifications of food or business effected by such enactments, must be based upon real and substantial distinctions and not upon fictitious distinctions which have no reasonable or substantial relation to the public health or general welfare of the inhabitants. This court, on numerous occasions, has considered and denied the power of municipalities to enact ordinances relating to various subjects where the ordinance did not conform to the above principle. (See City of Atchison v. Beckenstein, 143 Kan. 440, 54 P. 2d 926, wherein former cases of this court were reviewed.) In those cases it was held the ordinance was violative of both the state and federal ■constitutions. The instant ordinance is invalid for the same reasons.
The power of a city to enact an ordinance very similar in its ■effect to the instant ordinance was sustained by an intermediate court of appeals in the state of California (Justesen’s Food Stores v. City of Tulare, 70 P. 2d 529 [1937]), but such power was denied on appeal to the supreme court of that state in Justesen’s F. S., Inc., v. City of Tulare, 12 Cal. 2d 324, 84 P. 2d 140 (1938). In the latter case numerous authorities were reviewed, and it was held:
“A city has the right to insure protection of public health against the manufacture and sale of unwholesome foods, and to that end to regulate certain occupations, but such regulation of a lawful business must be reasonable; and .the test of the reasonableness of a measure involves a determination as to whether it is for the benefit of the community in general, that is, for the public health and general welfare, and whether the means adopted to produce the public benefit are reasonably necessary to accomplish that purpose and not unduly oppressive upon individuals.
“Where a city ordinance prohibits the receiving and selling during stated periods of uncured and uncooked meats, and ‘other foods of any kind intended for human consumption,’ in all establishments except certain designated classes such as boarding houses, restaurants, dispensers of beverages and confectionery stores, which - excepted establishments are permitted, without restriction, to distribute and deal in the very products which the ordinance prohibits grocery stores from handling in any manner ^during said periods, the ordinance arbitrarily imposes burdensome conditions upon a selected class of merchants.
“Where such an ordinance, in addition to prohibiting grocery stores from receiving and selling uncured and uncooked meats and other foods at night and on Sundays and holidays, provides for inspection of such stores, but permits restaurants, confectioneries, dispensers of beverages' and other excepted businesses to deal in such foods at such times free from inspection, the ordinance, as a ‘health measure,’ is unreasonable and arbitrary.
“Such an ordinance may be valid as a health-promoting law when its provisions'relate only to food susceptible to quick spoilage, including uncured and uncooked meats, but when its operation is extended to include ‘other food of all kinds,’ including bottled, packaged and canned products, the ordinance clearly oversteps the bounds of reasonableness, so far as concerns the promotion and preservation of public health, and resolves itself into a discriminatory closing law, which violates the state and federal constitutions.
“It is not a valid exercise of police power to restrict unnecessarily a lawful occupation conducted in a reasonable manner, merely that it may accord with the convenience of inspectors; and an ordinance which prohibits grocery stores from receiving and selling uncured and uncooked meats and other food at nights and on Sundays and holidays, but permits certain other designated establishments to sell such food at such times, cannot be justified as a valid exercise of police power on the ground that the hours of the food inspector and food inspection department created by such ordinance do not extend to nights, Sundays or holidays.” (Syl. ffff 1, 4, 5, 6, 7.) (Italics ours.)
See, also, Chan Sing v. Astoria, 79 Oregon 411 (1916); Chaires v. City of Atlanta, 164 Ga. 755 (1927); Patton v. Bellingham, 179 Wash. 566 (1934); Cowan v. City of Buffalo, 288 N. Y. S. 239, 247 App. Div. 591 (1936); Olds v. Klotz, 131 Ohio St. 447 (1936); Allen v. Colorado Springs, 101 Colo. 498 (1937); Oklahoma City v. Johnson, 183 Okla. 430 (1938).
In the Cowan case, supra, it was held:
“To justify ordinance prohibiting operation of open-air markets at certain times upon ground that ordinance was proper exercise of police power, ordinance must have for its object improvement of social, moral, physical, or economic condition of public in general, and means employed must be reasonably necessary for accomplishment of that end.
“State has no power to interfere arbitrarily with private business or to impose unreasonable or unnecessary restrictions thereon under guise of promoting public welfare.” (Headnotes, Iff 4, 5.)
It is well to remember the validity of such legislation must be determined by an application of the enactment to the particular facts and circumstances involved and that the reasonableness of the enactment is a question for courts to determine in the exercise of sound judicial discretion. No arbitrary rule, therefore, can with justice be made applicable to every circumstance. The concern of courts must be and is with the preservation and evolvement of principles which constitute helpful guides to the process of administering justice. The foregoing decisions are not cited because the facts in all of them are identical to those in the instant case, nor because this court would necessarily adopt and apply everything said in all of them to any situation which might arise in this state. They are cited, however, because they state principles which in our opinion constitute safe and sound guides for judicial deliberation and action relative to the particular questions presented in the instant case.
Defendants rely upon State v. Nesbit, 8 Kan. App. 104; City of Kansas City v. Grubel, 57 Kan. 436, 46 Pac. 714; Kansas City v. Henre, 96 Kan. 794, 153 Pac. 548; State v. Weldy, 113 Kan. 734, 212 Pac. 662; State v. Haining, 131 Kan. 853, 293 Pac. 952, and upon cases from other jurisdictions in which the ordinance in question applied alike to all persons embraced therein. Nothing contained in the Kansas cases is inconsistent with the views herein expressed. The decisions involving ordinances in which all persons embraced therein were affected alike are not in point.
Plaintiffs were not prosecuted under the ordinance for the commission of an offense and it is unnecessary to treat their contention that the ordinance was too indefinite and ambiguous to form the basis of a criminal action.
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The opinion of the court was delivered by
Hoch, J.:
The petitioner seeks a writ of habeas corpus. On February 24, 1937, he pleaded guilty to a charge of larceny from a railroad station 'and was sentenced to the penitentiary under the provisions of G. S. 1935, 21-1909. The merchandise stolen was valued at $17.35. He now asserts that he was unlawfully sentenced under that statute and that the crime was petit larceny for which the maximum sentence is a term in jail not exceeding one year. The question presented is whether the theft of merchandise from a baggage truck, under the facts and circumstances hereinafter stated, is larceny within the meaning of the statute, which reads as follows:
“If any larceny be committed in any railway depot, station house, telegraph office, passenger coach, baggage, express or freight car, or any caboose on any railway in this state, the offender may be punished by confinement and hard labor not exceeding seven years.”
The material portions of the information were as follows:
“. . . that Ralph V. Brenner at the county of Shawnee, in the state of Kansas aforesaid, and within the jurisdiction of this court, on the-day of February, a. d. 1937, did unlawfully, feloniously and willfully take, steal, carry away and convert to his own use, from the immediate premises of the passenger station of the Atchison, Topeka and Santa Fe Railway Company, a corpora tion, at Topeka, Shawnee county, Kansas, i. e., from a baggage truck standing on the platform of said station, within three feet of the wall of said station and under the canopy of said station extending over said platform, certain personal property of another, to wit: [merchandise described] said larceny being wholly committed in the said railway depot above described, contrary to the form of the statutes in such case made and provided and against the peace and dignity of the state of Kansas.”
The sole question is whether the offense was larceny “committed in any railway depot.” The petitioner contends that since the baggage truck was standing on the platform outside the building no larceny was committed “in a railway depot.” Respondents argue that within the meaning of this statute the term “railway depot” includes more than the building or the “station house,” or the warehouse where merchandise is temporarily stored, and that the narrow construction urged by the petitioner would defeat much of the purpose of the statute.
Either construction, if reduced to formal definition, might present difficult and doubtful situations. It may be urged on the one hand that if the words “railway depot” be not limited to the building itself the statute would become so broad as to include the station platform, the railroad yards and the whole territory within the “switching” district of the station. On the other hand, to say that the words mean only the warehouse or station building leads to obvious absurdity. Under such an interpretation, if a person stood on the platform, reached inside the open door of a baggage car being unloaded at the station and stole an article of merchandise he would commit grand larceny (the statute plainly covering larceny from a baggage car); if he took the same article from the baggage truck as the truck was being pulled to the baggage room he would be guilty of petit larceny; and if he waited until the truck had been pulled a foot within the baggage room and then snatched the article his offense would swing back to grand larceny!
What" was the purpose of the statute? It seems clear the legislature, recognizing how easy it is, comparatively, to steal property from railroad stations or railroad cars, and particularly merchandise that is being transported by railroads, deemed it necessary to impose a severe penalty in order to deter such offenders. The statute was enacted in 1871 and contained three sections. Sections 1 and 2 were declared unconstitutional in State v. Ouiney, 55 Kan. 532, 40 Pac. 926, on grounds not here material. It is pertinent to note, however, that the two sections were clearly intended to help effectuate the purpose above stated. They dealt with the burglary feature — the breaking into or the attempt to break into “any station house, depot, ticket office, . . ; caboose or other railway carriage or building . . . with intent to commit therein a felony or misdemeanor.” The present statute dealing with larceny, which was section 3 of the act of 1871, was upheld in the case of In re Tutt, Petitioner, 55 Kan. 705, 41 Pac. 957.
The petitioner argues that the case of In re Spaulding, 75 Kan. 163, 88 Pac. 547, squarely supports his contention. We do not find it so. In that case the larceny was committed from a railroad “box car” “placed at the side of a railroad track and used as a tool and supply house.” The court said that “a box car, dismantled, set off the track and used as a tool and supply house is neither such a building nor such a car as described or contemplated” by the statute. In other words, it was held that since the railroad car was no longer used for passenger, freight or baggage purposes it was no longer within the statute. The case conforms to the view heretofore expressed that a prime purpose of the statute was to protect merchandise being transported for the public. Such being an obvious purpose of the law, it would require plain provisions to the contrary to exclude merchandise in transit from the protection of the statute during the routine period in which it is being moved across the loading platform between the railroad car and the warehouse. In passing, it may be noted that the instant statute applies to larceny “committed in any railway depot, station house,” etc. If the word “depot” means only the building, then the term “station house” is repetition and surplusage. But entirely aside from that, the words “railway depot” not only do not require the narrow interpretation urged by the petitioner, but according to all the many authorities we have examined have a much broader meaning. In 18 C. J. 781, we find the following:
“Depot. — In Railroad Law. The term may mean one thing or- another, under different circumstances. The word has been said to be synonymous with ‘station.’ While it may or may not correctly be used to designate a station at which trains merely stop, as for wood and water, more specifically it means a station at which trains stop for the transaction of the ordinary business of the company, the receiving and delivering of freight and passengers; a place where railroad trains regularly come to a stop for the convenience of passengers and for the purpose of receiving and discharging freight; the place where a carrier is accustomed to receive, deposit, and keep ready for transportation or delivery the merchandise carried by it; a certain place situate alongside of or near its railroad fitted up by it with suitable buildings, erections, appliances, and conveniences for carrying on generally and continuously, in an orderly manner, the business of transporting freights, as is usually done by such companies. The maintenance of either a depot building or an agent is not indispensable to a depot; it depends more upon the business done and the matters incidental thereto.” (Italics ours.)
Similar definition will be found in 2 Words & Phrases, 2d series, p. 3.
Again, in 18 C. J. 783, note 30 (b), it is said, as to the meaning of the word “depot” as related to passenger traffic:
“The term ‘depot’ is sufficiently broad to embrace within its meaning a ‘passway’ used for the convenient and safe egress and ingress of passengers. It is not restricted in its signification to the ‘house’ or structure used also for their convenience in this respect. . . . Galveston, etc., B. Co. v. Thomsberry, (Tex.) 17 S. W. 521, 523 [quot Illinois Cent. B. Co. v. Causey, 106 Miss. 36, 48, 63 S. 336, Ann. Cas. 1917A 12811.”
But it is argued that if the word “depot” be not confined to the building itself there is no way to limit it. That does not at all follow, though we are not here faced with some hypothetical situation where there might be difficulty in drawing the line. If the railroad company should disregard its regular practice and should unload merchandise somewhere at a distance from the platform provided for the purpose and it were stolen from such a place — a place not suitable for the proper handling and guarding which a carrier is obliged to provide — an entirely different question would be presented. How far, if at all, beyond the platform where goods in transit are regularly handled, might be considered part of the freight “depot,” we need not here consider. In the instant case the merchandise-was on the regular baggage truck, standing on the platform, under the canopy and within three feet of the wall of the station house. Under such circumstances the offender certainly stole it from the “depot.”
The petitioner cites 18 C. J. 783, note 28a, wherein it is said that “in construing a statute imposing on railroads the duty of keeping their depots or passenger houses lighted and warmed” “these do not include platforms.” A statute providing that a depot be warmed, as well as lighted, obviously had to be construed as including only the building. If the word “lighted” alone had been used, a different interpretation might have been made. All of which merely illustrates the axiomatic principle that words in a statute must be construed in the light of their context and of the general purpose of the enactment.
Finally, the petitioner invokes the familiar rule of.'law that criminal statutes are to be strictly construed in favor of the accused. That rule is too well established to require any argument in its support. But that rule does not require courts to disregard the generally accepted meaning of words used in a statute simply because some people may attach a different meaning to them. Petitioner’s contention is based upon the erroneous assumption that unless we expand their meaning by interpretation the words “railroad depot” mean only the building itself. The situation is definitely to the contrary. As heretofore stated, the words mean — according to the - authorities — not only the building, if there be one, but the established conveniences connected therewith for the orderly transaction of the business. Indeed, as stated in the definition taken from Corpus Juris, supra, it is not even necessary that there be a “depot building” to constitute the place a “railroad depot.”
We are neither clothed with legislative power nor with the exercise of executive clemency. Our responsibility here is solely to construe the intention of the legislature as expressed in the statute.
We find no error in the conviction or sentence, and the petition for a writ of habeas corpus is denied. | [
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The opinion of the court was delivered by
Wedell, J.:
The defendant was charged and convicted of grand larceny under the provisions of G. S. 1935, 21-533, and from that judgment he has appealed.
The information charged the stealing, taking and carrying away of personal property consisting of two dual tires, tubes and wheels from a truck, the property of one Frank Henderson. In order to constitute grand larceny it was necessary that the value of that property be not less than $20.
Appellant first complains of certain matters which occurred at ' the trial touching the subject of value. One of the complaints is the trial judge interrogated a witness upon that subject. The complaint is without merit. The purpose of a trial in a criminal case is to ascertain the truth of the matters with which a defendant is charged and it is a part of the business of the trial judge to see that this end is attained. (State v. Keehn, 85 Kan. 765, 118 Pac. 851; State v. Miller, 127 Kan. 487, 274 Pac. 245.) Here the trial judge asked only a few helpful questions designed to expedite the trial. It is, of course, not proper for a trial judge to take the examination of a witness out of the hands of counsel nor to assume a partisan attitude. (State v. Ridge, 141 Kan. 60, 67, 40 P. 2d 424.) The interrogatories in the instant case were not remotely open to just criticism.
Complaint is also made that the trial judge interfered with the examination of a witness while the witness was attempting to testify on the subject of value. The trial judge merely defined for the witness the meaning of the words, “market value,” in order that the witness might clearly understand how that value was determined. He advised the witness that market value meant the fair value of property as between one who desired to sell and one who desired to purchase. The statement was correct. (K. C. W. & N. W. Rld. Co. v. Fisher, 49 Kan. 17, 30 Pac. 111; Hamilton v. Railway Co., 95 Kan. 353, 356, 148 Pac. 648.) Such interference by the trial judge was not only permissible, but it was highly commendable. It assisted the witness and the jury in arriving at the truth of the inquiry under consideration.
Appellant contends there was no evidence the value of the property was $20 or more. The contention is refuted by the record. There was ample competent evidence on the subject.
Appellant also urges the complaining witness should not have been permitted to testify for the first time on rebuttal concerning the value of the property. The record discloses no objection to that testimony and there was ample testimony introduced on that subject by the state in its case in chief. On appeal this court must give judgment without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties. (G. S. 1935, 62-1718.)
Appellant insists a witness was permitted to guess at the fair market value of the tires, since the witness had not inspected the inside of the tires. The testimony was not incompetent for that reason. That particular testimony may not have had great weight, but its weight was determinable only by the scales of the jury. Moreover, appellant is in no position to complain concerning that testimony for other reasons. It was the testimony of his own witness and was favorable to appellant. It fixed the value of the property at less than $20.
Appellant argues the case should never have been submitted to the jury and the trial court should have directed a verdict of acquittal for the reason the state relied entirely on circumstantial evidence and that such evidence did not exclude every reasonable supposition or hypothesis other than the defendant’s guilt. The argument cannot be sustained for at least two reasons. In the first place, a careful review of the record discloses no challenge of the sufficiency of the state’s evidence to take the case to the jury. Obviously appellant cannot now complain concerning that matter. In the second place, appellant is in error in his contention the conviction was based entirely on circumstantial evidence. In support of his contention he relies upon a circumstantial-evidence case which is not in point. (State v. Moskowitz, 115 Kan. 485, 223 Pac. 279.) In that case this court reversed a judgment of conviction. The state’s difficulty in that case was that it failed utterly to produce even circumstantial evidence of guilt. (See p. 488 of that opinion, and also State v. Smith, 133 Kan. 765, 766, 3 P. 2d 487, which later case was quite similar to the instant case, and in which the Moskowitz case was •distinguished.)
It will serve no useful purpose to narrate much of the evidence in the instant case. It is sufficient to note that the instant case was not based upon circumstantial evidence alone. Nor was this a case in which the conviction rested upon facts which disclosed merely possession by appellant of recently stolen property. The state’s evidence, among other facts, disclosed the following: Frank Hender son, the owner of the stolen property, operated a pipe-line yard at Cherryvale. He had last used the truck, from which this property was removed, on February 21, 1939. He did not miss the stolen property until March 5, 1939. Appellant was arrested at a junk yard at Independence, Kan., with the property in his possession on March 6,1939. After appellant obtained possession of the property, and prior to his arrest, he made several attempts to sell the property to a man by the name of Graham, who lived about four miles east of Independence. There was direct evidence by Graham and by Graham’s mother that appellant made several attempts to sell this property to Frank Graham. He also tried to trade it to the Grahams for a pig. Both Frank Graham and his mother testified that appellant had stated this property “was hot.” He stated “it was not too hot.” The reason he gave for stating it was not “too hot” was because the owner of the property was in California. The owner of the property was not in California, but was then living in the near-by town of Cherryvale. Graham notified the police at Independence that appellant had the property. Graham then Arranged with appellant for both of them to take the property to an Independence junk yard owned by Clyde Snodgrass, for sale. Appellant attempted to sell the property to the manager of the junk yard. While this transaction was in progress, the police conveniently came upon the scene and arrested both Graham and the appellant. Shortly after the arrest, Graham was released. Appellant apparently realized what had taken place when the police appeared almost immediately upon his arrival at the junk yard. At the time of his arrest appellant made conflicting explanations concerning the manner in which he had obtained the property. One explanation was that he had received the property from Graham. Another explanation was that he found the property in a strawstack east of Cherryvale.
Appellant’s counsel earnestly urge Frank Graham, and not the appellant, stole the property. The jury, unfortunately for appellant, resolved that dispute and contention against the appellant on conflicting evidence. The trial court approved the verdict. We are not concerned with appellant’s evidence, which it appears the jury disbelieved. There is substantial evidence to support the verdict, and in the absence of reversible trial errors we are not permitted to disturb the judgment.
It is also suggested there was error in the instructions. There is no sound basis for the suggestion. The instructions appear entirely adequate, and afforded appellant a fair trial. This court is obliged to affirm the judgment. It is so ordered. | [
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The opinion of the court was delivered by
Hoch, J.:
Plaintiff’s husband was drowned when his car broke through the railing on a Shawnee county bridge and fell into the Kaw river. In an action for damages, the jury found generally for the county, and answered special questions. The trial court granted a new trial on the sole ground that it had submitted the cause to the jury on a wrong theory of law and was therefore dissatisfied with both the general and special verdicts. Appellant contends that the court was right in the instruction, and appeals from the order granting a new trial. Appeal is also taken from an order overruling defendant’s demurrer to the plaintiff’s evidence and from an order overruling a motion for a directed verdict.
The essential facts may be briefly stated. On February 8, 1937, Robert R. Neiswender, husband of the plaintiff, Alice Neiswender, was driving his car west across the Sardou bridge, which spans the Kaw river between Oakland and the city of Topeka. The bridge is maintained by Shawnee county. His car struck the left side of a car going east, was deflected to the south, and went through the south railing of the bridge.
The plaintiff alleged that the railing was defective, being improperly constructed, being built of materials of insufficient strength to meet the ordinary requirements of a public bridge, that it had no wheel guards, that the defective condition constituted a danger to the traveling public which had existed and was known to the chairman of the board of county commissioners for more than five days before the accident.
Two questions are presented:
First, should the order granting a new trial be set aside?
Second, was the plaintiff’s evidence sufficient to take the case to the jury?
The question of appeals from orders granting a new trial was recently considered, in a somewhat similar situation in the case of Pugh v. City of Topeka, 151 Kan. 327, 99 P. 2d 862. The trial court there expressed the opinion that the action had been tried on a wrong theory of law, but also said that it was dissatisfied with the verdict "for many reasons.” The law question upon which the trial court commented not being definitely presented, we did not consider it. But in the instant case the sole ground given for granting a new trial was that the case had been submitted upon a wrong theory of law. The law question is clearly raised by the record and will be considered.
The instruction in question reads as follows:
“From the evidence it appears that there was a collision between the car that the deceased was driving and another vehicle approaching from the opposite direction, immediately prior to the time the car went off the bridge. This makes it necessary for the court to submit for your determination the question whether the collision referred to, or the defective condition of the bridge, was the proximate cause of the death of Robert Neiswender.
“In this connection you are instructed that if you find that the defective condition of the bridge did nothing more than furnish a condition or give rise to a situation by which the death of Robert Neiswender was made possible, and that there intervened between such defective condition of the bridge and his death a distinct, successive and efficient cause of his death, even though his death would not have happened except for such defective condition of the bridge, then such defective condition of the bridge' cannot be made the basis of the plaintiff’s recovery; because; ... if there was no danger existing to Robert Neiswender because of the defective condition of the bridge except for the collision referred to, . . . then such defective condition of the bridge would not be said to be the proximate cause of his death.
“On the other hand, if you find that the death of Robert Neiswender was the result of the defective condition of the bridge irrespective of any intervening cause, then and' in that event such defective condition of said bridge would be said to be the proximate cause of his death.”
In sustaining the motion for a new trial the trial court said:
“1. The court believes and finds that he submitted the cause to the jury upon the wrong theory of law, and for that reason is dissatisfied with both the general and special verdicts in said cause and cannot approve them.
“2. The court finds that the case should have been submitted upon the principle of law set forth in the case of Lincoln Township v. Loenig, 10 Kan. App. 504, and the subsequent line of Kansas decisions following that authority.”
The theory of the instruction as given was that only one, and not both, of the events or circumstances involved could be the proximate cause of the death. Where more than one act or event takes place, either of which might in itself have resulted in death or injury, and the two acts or events are in no way related, but are merely successive, many cases hold that only one can be said to be the proximate cause. But that is not the situation here. The collision and the condition of the railing were directly related in the accident. Moreover, it cannot be said that the collision was such an unusual happening that it could not reasonably have been anticipated by those responsible for maintaining the bridge.
The cases cited, which involve successive events, unrelated in character, have no bearing here. Appellant stresses Smith v. Mead Construction Co., 129 Kan. 229, 282 Pac. 708. That case is readily distinguishable from this one. It involved damage to an automobile which ran into obstructions on a road under repair. The jury found that the construction company was negligent in not placing adequate warning signals and barriers; also, that the driver of the car by the use of ordinary care would have seen the obstruction in time to avoid the accident. The jury found, in answer to a question improperly submitted, that the accident was caused by both the negligence of the company and the negligence of the driver and that the negligence of the company was the proximate cause. This court said that both being found negligent, it was a question of law as to which was the proximate cause, and that the negligent driving being successive to and unrelated to the negligence of the company, it must be declared the proximate cause. In other words, the failure to have signals did not excuse the driver for thereafter driving carelessly.
There are other cases, such as Lincoln Township v. Koenig, 10 Kan. App. 504, 63 Pac. 90, cited by the trial court, wherein two causes have combined to produce an injury, both of which are in their nature proximate, but only one of which involves culpability. In such cases the fact that neither party was guilty of negligence in the one cause does not relieve from liability the party whose negligence was responsible for the other contributory cause.
The instruction in the instant case failed to recognize that two or more events may combine to produce a result and both be a proximate cause. (Street Rly. Co. v. Stone, 54 Kan. 83, syl. ¶ 7, 37 Pac. 1012; Pinson v. Young, 100 Kan. 452, 455, 164 Pac. 1102; Acock v. Kansas City Power & Light Co., 135 Kan. 389, 10 P. 2d 877; Tilden v. Ash, 145 Kan. 909, syl. ¶ 2, 67 P. 2d 614; City of Clay Center v. Jevons, 2 Kan. App. 568, 44 Pac. 745; Restatement, Torts, § 439, and comments a and b.) The instruction was erroneous and a new trial was properly granted.
Second: Did the court err in overruling the defendant’s demurrer to the plaintiff’s evidence?
This issue narrows to two questions. Was there competent evidence that the railing was defective and dangerous, and, if so, did the defendant have notice of it at least five days before the accident, as provided in the statute (G. S. 1935, 68-301) ?
As to the condition of the bridge railing, we find ample evidence in the record to require submission of the issue to the jury. A member of the State Highway Patrol, who visited the scene soon after the accident, said that the timber that was broken was rotten on both sides and that rotten pieces were lying near. Other witnesses, including two construction engineers, testified as to the defective construction and condition of the railing generally. A witness who saw the car go into the river and visited the scene immediately afterward testified: “After it toppled over I went down and examined the railing where the car broke through. The railing was in very poor condition, split and in some places rotted. There were places where you could pull off chunks with your hand.” Other testimony relative to the absence of a “wheel guard” and to other alleged defects in construction need not be recited. We are not the judge of the facts and do not weigh conflicting evidence. As to the construction and condition of the railing, the testimony for the plaintiff was clearly good as against demurrer.
On the question of whether there was substantial evidence show ing or tending to show that the county had statutory notice of the defective and dangerous condition of the railing, we do not find the record quite so convincing. We have concluded, however, after careful examination, that there.was enough to go to the jury. The chairman of the board of county commissioners testified that he made a special personal inspection of the bridge sometime in the spring of 193.6, which would be about eight or nine months before the accident. He testified:
- “We looked over the bridge, at the railing, and saw the condition it was in. The bridge does not have and did not have any wheel guards, and whatever condition the railing was in, I saw it. . . .
“We did not see any places where the rails were rotted out so we could lift them out with our fingers; we did not see any place where the boards had rotted so they could be pushed out by my foot. . . . When I made my inspection in 1936, I did not see any wooden boards along the railing where I could take my foot and kick the upright pieces out. My -only visit there was in the spring of 1936 and I saw nothing of that kind.. Wp.walked by and looked the wooden railing over.”
It will be noted that he did not testify affirmatively that the railing was in good condition. Actual knowledge has been held to be actual notice within the requirements of a similar statute. (Madison Township v. Scott, 9 Kan. App. 871, 61 Pac. 967.) Also, it is not necessary that there be notice of a defective condition existing at the exact spot where the accident occurs. (Mosier v. Butler Co., 82 Kan. 708, 109 Pac. 162.)
Several witnesses testified that they had crossed the bridge frequently during the several years just prior to the accident, had noticed the bad condition of the railing, and that there had been no substantial change generally in the condition of the railing during that time. One such witness testified:
“I cross that bridge frequently and it was in the same condition on the day that Mr. Neiswender was drowned that it had been for several years.”
While other witnesses testified as to certain repairs having been made from time to time, we are here of necessity — upon demurrer— considering only the testimony most favorable to the plaintiff. We think the .plaintiff was entitled to have the jury decide whether there had been sufficient notice. For reasons, already stated, the motion for a directed verdict requires no attention.
We find no error in the record. The judgment is affirmed.
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The opinion of the court was delivered by
Smith, J.:
These were claims against an estate for personal services rendered the deceased. The claims were allowed in part by the probate and district courts of Pratt county. The administrator appeals.
The facts are as follows: The claimants were both daughters of the deceased. They were both widows. Deceased and his wife, who had died before him, were the parents of twelve children. For some years before the death of deceased he had made his home with his son Ralph, who was a bachelor. They both lived on what was known as the home place. Ralph died in 1936. The claim of Jennie Moss was for personal services rendered her father at his request from February 1, 1934, to October 10, 1934, in the amount of $255, and from December 15^ 1935, to the date of his death, July 28, 1938. She claimed the fair and reasonable value of her services was $2,165. The claim of Emma Cox was for personal services rendered deceased at his request from March 15, 1929, to September 19, 1933; from July 21, 1934, to November, 1935, and from July 21, 1937, to July 28, 1938. She claimed that deceased agreed to pay her for these services and that a fair and reasonable compensation was $1,806.
The two claims were consolidated and heard together in the probate court. Each one of the claimants was allowed $540. The administrator appealed from the order making this allowance and the district court consolidated the two claims and allowed each of the claimants $180. At the close of the evidence of claimants the administrator demurred to it. This demurrer was overruled.' The administrator stood upon his clemurrer and did not introduce any evidence. Motion for a new trial was filed by the administrator and overruled.
The administrator argues here that the claimants’ evidence was-insufficient to establish an express contract that their father was to pay them for their services, and that in the event there was sufficient evidence as against a demurrer to establish the express contract, then there was not sufficient evidence to establish the value of the claimants’ services.
Jennie Moss testified that she had six brothers and five sisters; that her father was ninety-four years old when he died; that on February 1, 1934, she came to her father’s home and stayed with him until October 13,1934; that at that time her brother Ralph was there with her father; that Ralph died on April 23, 1936; that in 1934 when she went there she found her father was very nearly blind; that his health was poor and he did not require any attention at night; that from February, 1934, to October, 1934, she raised chickens and made garden, and did the housework and helped with the milking; that she left in October, 1934, and her sister, Mrs. Cox, came when she left; that she returned to her father’s home the 15th or 16th of December, 1935, after she had the “flu” at her son-in-law’s house in 1936; that from that time until her father died she was there helping with the work and caring for him. She did work for her father and the washing and other housework until about July 22 or 23 of 1937; that at that time Mrs. Cox came; that while she was there for the second time her father could see to get around, but his general health got worse; that they had to watch him at all times at night and it took some one’s constant care to look after him; that the last six months they never left him fifteen minutes alone. On cross-examination she testified that she was a widow and that after she separated from her husband in 1924 she stayed with one of her sons-in-law; that her father sent a team and wagon and brought her to his house and she stayed there until 1934; that her brother Ralph had always made his home at the home place and was the provider; that from the time she separated from her husband she made her home partly with her father.
Claimant Emma Cox testified that her husband died in 1923 and since that time she had made her home with her children; that she went to her father’s home in July, 1934; that at that time he was able to be up and around the house, but he was actually failing; that he had to be cared for all the time because of his blindness; that on September 19, 1933, she left home and in 1934 went back; that she was on her way to Colorado from Oklahoma and came that way in July, 1934, and stayed with her father until the middle of December, 1935; that she never returned until 1937, and then she stayed until his death; that she had to look after her father and see that he did not fall; that from the 10th of January, 1938, he had to have constant attention and care day and night.
A son-in-law of Mrs. Moss testified that he had a conversation with deceased about two months before he died; that at that time deceased said that he wanted Mrs. Moss to be paid for her services there in taking care of him.
Another daughter of deceased testified that she visited her father a good many times in 1934; that his health was declining; that he was losing his eyesight; that he should not have been left alone'at all; that on February 9, 1938, she went there and. stayed until the 3d day of March, 1938; that from February 9 to March 3, 1938, when she was there, the father was in bed sick and had to be cared for like a baby; that Mrs. Moss and Mrs. Cox took care of him; that in July, 1936, her father told her, “I want Jennie amply paid for her time and service here, she is so kind and considerate of me”; that in the fall of 1937 he said he wanted the girls amply paid for their time and services there; that he wanted it paid out of what he left after he passed on; that Mrs. Cox did not make her home with her father, but would visit there when not with her children.
H. R. Walter testified that the last three or four months of his life deceased was blind and could not get around; that in March before he died he told the witness he wanted the girls to be amply paid for what they were doing for him.
As has been noted, the administrator interposed a demurrer to this evidence and when the demurrer was overruled stood upon it and did not introduce any evidence. The district court allowed each of the claimants $180. Hence this appeal.
It may be stated at the outset that there is no evidence in this record that either one of the claimants had a contract with their father. There is evidence that the old gentleman stated he wanted them paid for their services, but this falls short of a contract. In the absence of a contract, the law presumes that services rendered by a daughter to her father were performed gratuitously. In Wyley v. Bull, 41 Kan. 206, 20 Pac. 855, in dealing with this proposition, this court said:
“Where a person, lives with a relative as one of the relative’s family, neither has a cause of action against the other for compensation, for wages on the one side, or for boarding, lodging, etc., on the other side, or for anything else furnished by the one to the other as a member of the family, except where an express contract is shown to exist between the parties requiring that one or the other shall have compensation.” (p. 208.)
See Sherman v. Davidson, 123 Kan. 69, 254 Pac. 351, also Nelson v. Peterson, 147 Kan. 507.
Claimants argue that the relationship which they have to the household of their father was not such as to make this rule applicable. We have examined the record on this point and find that taken in its most favorable light for claimants and drawing every inference favorable to them this was a case where the reciprocal relationship existed, that is, claimants received a home, and all that goes with it, and they in turn took care of their father and did the other work commonly performed by a woman on a farm, including the care the father needed.
The judgment of the trial court is reversed with directions to render judgment for the administrator. | [
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|
The opinion of the court was delivered by
Smith, J.:
This was an action under the declaratory-judgment statute to construe a will. Judgment was rendered in favor of the plaintiffs, certain children and grandchildren of the testator. The widow of testator appeals.
After alleging the relationship of the plaintiffs, the petition alleged that the action was brought under the declaratory-judgment statute; that on July 26, 1928, testator made his will, and that his widow consented thereto; that on May 5, 1935, testator died and on the 14th of May, 1935, his will was admitted to probate and the Wheeler-Kelly-Hagny Trust Company wás appointed executor; that on December 10, 1937, the estate was closed and since that time the trust company had been acting as trustee. The petition then set out a paragraph of the will as follows:
“I direct that my executor, or/and trustee, hereinafter named, shall from my estate, or/and if after said property shall have been conveyed and transferred to the Wheeler-Kelly-Hagny Trust Company, as trustee, then from any property in .the hands of said trustee, pay to my widow, Alma Knollenberg, the sum of one hundred dollars ($100) per month, payable monthly in advance and beginning immediately upon my death. Said sum of one hundred dollars ($100) a month shall be paid to my said widow from month to month during her natural life, provided she shall remain my widow. Provided, further, That should the said Alma Knollenberg remarry, then all such payments shall end and cease. It is my will that this provision shall not prevent the closing of my estate and the transfer of the rest and residue of my property to the Wheeler-Kelly-Hagny Trust Company, but the right hereby bequeathed to the said Alma Knollenberg shall continue as the obligation of my trustee from all properties herein transferred to it, or/and properties which it may have subject to this provision.”
The. petition further alleged that on December 8, 1938, Alma Kiiollenberg married one Meyer; on December 15, 1938, Meyer died; that the plaintiffs were all beneficiaries under the trust created by the will; that the trust company refused to make distribution until defendant would waive all rights to the trust fund; that she refused to waive these rights and claimed an interest in such fund to the extent of $100 a month. The plaintiffs ask that judgment be entered that defendant Alma Knollenberg Meyer had no interest of any kind in the trust fund. A copy of the will was attached to this petition. The only paragraph, however, with which we are concerned has already been quoted. The consent to the last will and testament signed by Alma Knollenberg, wife of Gerhard Knollenberg, under date of July 26, 1928, was attached to the petition. The trust company in its answer set out the provisions of the will about the $100' a month to be paid Alma Knollenberg Meyer; admitted that it was trustee under the will; that it refused to continue the payments of $100 a month to Alma because it was of the opinion that she was no longer entitled to it after she remarried; and that the plaintiffs had made demand on it for payment to them pursuant to the trust. The court was asked to direct it as to how it should proceed to perform its obligation under the trust.
Alma answered, admitting the relationship of the plaintiffs; that the will contained the items set out in the petition; that she married Meyer on December 8, 1938, and that plaintiffs are the beneficiaries under the trust and that on July 26, 1928, Knollenberg made his will. She denied, however, that when he executed the last will and testament she was the lawful wife' and consented to the will as the lawful wife. She admitted that she signed what purported to be a consent, but denied that it had the effect of consent for the reason that prior to the marriage of Knollenberg she was the lawful wife of one Barnholdt, from whom she was divorced on June 16, 1928, and that on July 25, 1928, she and Gerhard, while acting in good faith, attempted to enter in a marriage ceremony at Newkirk, Okla. She then denied that there was any occasion to interpret the will of Knollenberg and she admitted that the trust company was trustee under a certain trust agreement, but denied that it had any right to dispose of certain property described. She denied that her marriage to Meyer had any effect on the interest in the property described. She stated she did not know whether the plaintiffs were demanding a final distribution under the trusteeship, but stated that if they were such fact did not change her rights. The answer then made the following allegation:
“This defendant alleges that during all the time from July 25, 1928, to the death of Gerhard Knollenberg, that in good faith and under the honest belief that they were lawfully married, they cohabited, lived together and held each other out to the public as husband and wife, by reason of which fact, this defendant became, remained and now is, the common-law wife of Gerhard Knollenberg, but did not discover her full rights under the fact until on or about the 22d day of June, 1939, immediately prior to the filing of this answer. That by reason of the fact and a knowledge of her rights thereunder, this defendant makes claim to an undivided one-half interest in and to the estate of Gerhard Knollenberg, deceased.”
For her cross petition she alleged that she and her husband were residents of Kansas during all the times material to this action; that all the property described in her cross petition was acquired during the period of time from July 25, 1928, when the marriage ceremony took place in Oklahoma to the date of the death of testator and while he and defendant were living together as husband and wife. Her cross petition then alleged that she had never made a widow’s election to take under the will of Knollenberg, but had, without being advised as to her rights, accepted the sum of $100 a month, as provided in the will of Knollenberg, and now that she was advised of her rights she repudiated and rejected all provisions made for her in the will of Knollenberg and elected to take under the laws and offered to return to the estate of Knollenberg all moneys she had received under the $100 monthly payments; that she was the lawful owner and entitled to immediate possession of an undivided interest in all property, both real and personal, owned by Knollenberg, at the time of his death; that the plaintiffs and the trust company had unlawfully taken possession of this property. She asked in the prayer of her cross petition that she be declared to be owner and entitled to immediate possession of all the property, both real and personal, owned by Knollenberg at the time of his death; that the trust company be ejected therefrom and for an accounting and for a partition. ’ The certificate of marriage reciting the marriage of Gerhard Knollenberg and Alma Barnholdt on the 25th day of July, 1928, was attached to this answer. The plaintiffs by way of reply and answer to the cross petition of Alma admitted the divorce and admitted that within less than six months after the divorce Alma and Gerhard Knollenberg entered into a marriage ceremony and that from July 25, 1928, to the date of the death of Gerhard Knollenberg Alma and Gerhard cohabited and lived together and held each other out to the public as husband and wife. For answer to the cross petition of Alma they admitted that certain property was acquired by Gerhard during the time from July 25; 1928, to the date of the death of Gerhard. The awswer further alleged that about July 24, 1928, the defendant Alma, then known as Alma Barnholdt, entered into a prenuptial contract with Ger-hard which provided that Gerhard and defendant would enter into a marriage contract upon certain terms. A copy of this contract was attached to the answer. The date and signatures of the contract are not furnished because the contract could not be found. The answer then alleged 'that by reason of the prenuptial contract Alma was bound by the terms and conditions of it and was bound by her consent to the will of Gerhard Knollenberg, which made provision for her pursuant to the conditions of the- prenuptial contract. The contract was attached to this answer and is of little interest to us except that it contained a'paragraph as follows:'2 '
“Fifth: It is further understood and agreed that in event the said Alma Barnholdt shall live with the said Gerhard Knollenberg, as his wife, until the death of him the said Gerhard Knollenberg, the said Alma Knollenberg, as the', widow of the said Gerhard Knollenberg, shall receive the sum of one hundred dollars ($100). per month, payable monthly, and the said Gerhard Knollenberg will, by trust agreement or/and by will, or other suitable form, and manner, make the provision for the said Alma Knollenberg, said sum of one hundred dollars ($100) per month to continue during the natural life of the said Alma Knollenbérg and so long as she shall remain the widow of the said Gerhard Knollenberg: Provided, however, That should the said Alma Knollenberg remarry after the death of the said Gerhard Knollenberg, then and in such event, said monthly payment of one hundred dollars ($100) shall cease.”
The trust company replied to the answer of Alma Knollenberg, admitting the decree of divorce and the marriage of Knollenberg. By way of answer to her cross petition the trust company referred to the prenuptial contract which has already been referred to herein. Alma Knollenberg replied to the answer of the plaintiffs that the original contract between herself and Gerhard had been found in the possession of her attorney; but that she had no independent recollection of ever having entered into any such contract. The answer further alleged that the allegations referring thereto were inconsistent with plaintiff’s petition and source of title; that it does not vest title in the plaintiffs; constituted a departure from plaintiffs’ petition, were void and ineffective for the reason that no such contract was ever delivered to her and was contrary to public policy.
At the trial the parties stipulated in an agreed statement of facts that plaintiffs were all children or descendants of children of Ger-hard Knollenberg; that defendant Alma was the widow of Gerhard Knollenberg; that the Wheeler-Kelly-Hagny Trust Company was trustee; that Knollenberg entered into a prenuptial agreement with Alma; that Alma was'granted a divorce from Pete Barnholdt on June 16, 1928; that on July 25, 1928, Gerhard and Alma, while acting in good faith,- attempted to- enter-into a marriage ceremony at Newkirk, Okla., which marriage ceremony defendant at the time of. this action claimed was void as a matter of law; that no other attempt to marry was ever made by the parties; that thereafter .on May 5,-1935, Knollenberg died and his will was admitted to probate, and the trust company qualified as executor; that on December 10, 1937, an order and final discharge was entered and since' that time-the trust company has been acting as trustee. On December 8,1938, Alma Knollenberg-married R. D. Meyer, who'died on December 15,, 1938. The trust company refused to make distribution of the properties until a waiver had been obtained from Alma Knollenberg or her rights, if any, to this estate of Gerhard Knollenberg were judicially determined, and that Alma Knollenberg refused to sign any waiver and claimed an undivided orie-half interest in and to all of the properties of Gerhard Knollenberg as his common-law wife, and that Alma and Gerhard Knollenberg were residents of Kansas during all times material to this action and for many years prior to July 25, 1928; that from July 25, 1928, to the date of the death of Gerhard Knollenberg Alma and Gerhard lived together and held each other out to the world as husband and wife; that Alma Knollenberg never had at any times in the proceedings in the estate of Gerhard made a widow’s election to take under the will of Gerhard Knollenberg, but did accept from the trust company $100 a month from May, 1935, to and including December, 1938, totaling $4,400; that Alma Knollenberg offered to tender back this $4,400, which sum was to be deducted from her recovery to be had, if any. It was then agreed as to certain property that it was acquired by Gerhard Knollenberg during the period of the time from July 25, 1928, until the date of his death.
Following the agreed statement of facts certain testimony was taken, which will not be noted at this time.
The court found the facts about as they have been recited here from the agreed statement, and that some fourteen or fifteen thousand dollars represented the increase in value of the property during the years of the marriage and that the widow was seeking to recover a share of that money. The court made conclusions of law as follows:
“conclusions op law
“This case presents a unique situation.
“(A) Alma Knollenberg Meyer and Mr. Knollenberg both knew at the time of their attempted marriage that they could not be legally married in the state of Kansas; they knew at the time they signed the prenuptial agreement that they could not be, and at the time that the will was made, and at the time consent was given by her to its provisions. The attempted marriage after a few months became a common-law'and legal marriage in Kansas, pursuant to their original desires, and continued for approximately six and a half years. She accepted the payments of one hundred dollars per month, as provided in these various instruments, and married again believing and knowing the provision in the contract and will would terminate her monthly payments. Her new nuptial venture proved of short duration by reason of death. During all the lifetime of her previous husband and until her next marriage, it had been their desire and was her desire to carry out the agreements. She' cannot now, by reason of the fact that her last marriage was shortly terminated, again change her mind and recover one-half of the estate.
“(B) She is no longer entitled to the one hundred dollars per month provision under the will of Knollenberg, and, as admitted in the brief, she is not entitled to any of the property covered by the trust agreement.
“(C) She is precluded from recovering the balance claimed of the amount accumulated during the marriage.
“(D) Plaintiffs are the only persons entitled to any of the income or corpus of the trust estates.
“(E) Plaintiffs are entitled to judgment for costs.”
A motion to modify these findings of fact and conclusions of law in certain particulars was made by defendant, also a motion for judgment on the findings and a motion for a new trial. The court overruled all motions. At the request of the plaintiffs the findings of fact were modified so that a particular finding should read as follows:
“On the 25th day of July, 1928, or some five weeks thereafter she entered into a prenuptial contract with the deceased Gerhard Knollenberg knowing the right of a widow to one-half of her husband’s estate, agreeing that they would enter into a contract by which she would claim no interest in any property then owned or thereafter acquired by the deceased, and at his death would accept a provision of $100 per month for the rest of her life, or until she remarried.”
Judgment was rendered for plaintiffs that they were the only persons entitled to any income or the corpus of the trust estates; that defendant Alma Knollenberg Meyer was no longer entitled to one hundred dollars per month under the provisions of the will; that she was not entitled to any of the property covered by the trust agreement of April 10, 1928, and that she was precluded from recovering the balance claimed of the amount accumulated during her marriage to Gerhard Knollenberg, and that the costs be assessed against the defendant Alma Knollenberg Meyer. Hence this appeal.
Defendant contends that the marriage in Oklahoma was void; that it did not become a marriage at common law until six months from the date of the divorce decree, hence the contract entered into by Gerhard Knollenberg and defendant was void because it was given for an illegal consideration.
She next argues that the consent given by her to the will of Gerhard was invalid because she was not his wife at the time the consent was made. A strong argument is made by plaintiffs that while our statutes do not permit the recognition of a marriage within less than six months of the granting of a divorce decree, still this marriage was valid in Oklahoma, and was a good consideration for the contract. We shall not pass on that interesting question, how ever, since there are other grounds that compel an affirmance of the judgment. The prenuptial contract does not contain any date when the parties expected to be married. The mere fact that the contract was made during the six-months period when they could not marry did not render it void. In Cooper v. Bower, 78 Kan. 156, 96 Pac. 59, this court was considering a promise to marry that was made before one of the contracting parties had been divorced six months. The party sought to be held argued that the contract was invalid on that account. This court said:
“A further claim is made that no recovery should have been allowed because the alleged promise to marry was given, and the action for its breach was begun, before the expiration of six months from the date of defendant's divorce. The statute (Gen. Stat. 1901, § 5142) provides that every decree of divorce shall recite that it does not become absolute and take effect until the expiration of six months from its date. This provision, however, has been interpreted as a mere restriction upon marriage within that time. (Durland v. Durland, 67 Kan. 734, 74 Pac. 274, 63 L. R. A. 959.) Upon the rendition of a decree of divorce the parties cease to be husband and wife. Neither may lawfully marry again within six months, but either may during that period make a legal contract to marry after its expiration.” (p. 163.)
It is true that the parties in this case did get married before the expiration of the six months, but that fact of itself does not appear in the contract nor does the contract provide that the marriage should take place within the six-months period. As far as this record shows the decision to get married so soon was made after the contract was made.
In Mitchell v. Clem, 295 111. 150, 128 N. E. 815, the court was considering a case where an agreement to marry was made while one of the parties was under disability on account of just being divorced and the contracting parties did marry within the period of time when the statutes of Illinois declared such a marriage void. The court held:
“An agreement to marry when one of the parties has become qualified to marry by the expiration of the statutory period following her divorce is legal and is not rendered illegal by the fact that the parties thereafter contracted a void marriage in another state before they were legally married.” (Syl. U 2.)
This opinion announces the same rule by this court in Cooper v. Bower, supra, and goes a step further and holds the contract good even though the marriage, which was the consideration for it, was actually performed before the time within which a valid marriage could be performed had passed. This holding was based on the general rule laid down in 17 C. J. S. 545, as follows:
“To invalidate the contract, the illegality must be inherent and not merely collateral. The contract is to be judged by its character and not by what the parties may do, or attempt to do, with the fruits of it, and the courts will look to the substance and not the mere form of the transaction. If the contract itself discloses no illegality and may be performed in a legal manner, it is not rendered unenforceable by the fact that it may also be, or is actually, performed in an illegal manner.”
Keith Furnace Co. v. Mac Vicar, 225 la. 246, 280 N. W. 486, was a case where a property owner had given his note to a furnace company for the installation of a furnace. At the time the note was signed the building code of Des Moines required that before a furnace such as the one in question was installed a permit should be obtained by the furnace company. It was admitted that this was not done. The defendant argued that the failure of the furnace company to do this made the note void.
“As respects enforceability of note given to furnace company for installation of oil-burning heating system after furnace company had failed to obtain permit for installation of burner as required by municipal building code, contract for installation of the system was not invalid as stipulating for an act which was malum in se or malum prohibitum, where contract was not entered into with intent to violate municipal building code, since consideration was legal and contract was not connected with illegal purpose or illegal business, and could have been performed without violation of law.” (Headnote, U 4.)
In Smyth Bros, et al. v. Beresford, 128 Va. 137, 104 S. E. 371, the plaintiff sued for commissions he claimed to have earned by helping defendants sell horses to the British government. The defendants argued that part of the contract had been that he was to use his influence in an unlawful way. The court reviewed the testimony, offered to sustain this claim, and said:
“‘An intention to violate law or morals is not to be presumed.’ (Bergen v. Frisbie, 125 Cal. 168, 57 Pac. 784.)
“‘The law does not presume that parties to a contract intend by it to accomplish an illegal object, but it rather presumes that they intended to accomplish a legal purpose.’ (Elliott on Contracts, section 1065.)
“‘(17) The law will not presume, unless it is forced to do so, that a person intends to do an illegal act. It will not therefore presume that the parties intended to make an illegal contract.’ (Richards v. Weiner Co., 207 N. Y. 59,-100 N. E. 592.)
“‘As tending to indicate the immorality of a contract the contingent character of the fee works no such result.’ (Bergen v. Frisbie, supra, 125 Cal. p. 786, 57 Pac. 784.)
“‘In view of these citations, affording the appropriate rule of interpretation for an instrument sought to be impressed with the implication of an unlawful purpose, the language of the plaintiff’s letter, cited supra, was properly construed to express an innocent intent.’
“‘As was said in Brightman v. Bates, supra, the question before us is not whether or not it would be possible to carry out the contract in a way which would have made the contract bad, if specified in it, but whether it was impossible to carry out the contract in a way which might lawfully have been specified in advance.’ (Carnegie v. Security Trust Co., Ill Va. 1, 68 S. E. 412, 31 L. R. A., n. s., 1186, 21 Ann. Cas. 1287.)” (p. 165.)
In Gardiner v. Burket, 3 Cal. App. 2d, 666, plaintiff had sued the defendant on an oral contract, by the terms of which the plaintiff was to remove a building from her lot in an oil field, and by which defendant was to pay the reasonable value of the house. Defendant argued, among other things, that the plaintiff could not recover because she unlawfully removed the building for the reason that a permit to remove the house had not been obtained from the city. The court said:
“The plaintiff made a contract with the Schuck Construction Company as contractors to remove the house. It is not claimed that such a permit could not have been obtained, and it is apparent that the contract could have been performed in a legal manner. Certainly there is no intention disclosed in the terms of the contract itself to perform it without obtaining a permit.” (p. 669.)
To the same effect is the rule l§,id down in 12 Am. Jur. 647, which reads as follows:
“In order to avoid an agreement which can be legally performed on the ground that there was an intention to perform it in an illegal manner, it is necessary to show that there was the wicked intention to break the law; and if this is so, the knowledge of what the law is becomes of great importance. Accordingly, where a contract could have been performed in a legal manner as well as in an illegal manner, it will not be declared void because it may have been performed in an illegal manner, since bad motives are never to be imputed to any man where fair, and honest intentions are sufficient to account for his conduct.”
See, also, Fox v. Rogers, 171 Mass. 546, 50 N. E. 1041.
While these authorities do not deal with contracts to marry and prenuptial contracts, the general principles announced in them apply to such contracts as well as others. It is clear that no intention to violate the law.appears upon the face of the prenuptial contract. In order for us.to hold that this contract was void because the consideration was to perform an invalid marriage we would be compelled to say that it was void because the marriage referred to in the contract was invalid regardless of the intention of the parties when they entered into the contract. This we cannot do. We will not presume that the parties intended to get married before the six-months period had passed. The presumption is that they intended to obey the law when the contract was made and this presumption is not overcome by the fact that they actually did get married before the six-months period had passed.
In this case we are all agreed that even .if the marriage in Oklahoma be disregarded, this couple became man and wife in the eyes of the law six months after the divorce decree was entered. (See Freeman v. Fowler Packing Co., 135 Kan. 378, 11 P. 2d 1276.) Thus, whether we look to the ceremony in Oklahoma or the relationship that came into being on account of the parties living together as man and wife in Kansas, we find nothing that would make the prenuptial contract void.
There are other reasons urged by plaintiffs as to why the judgment of the trial court was correct. However, we refrain from passing on them, as it is not necessary for us to do so to dispose of this case. We hold that the prenuptial contract was valid, and enforeceable, and by it defendant Alma Knollenberg gave up any rights in her husband’s estate except the right to $100 a month as long as she should live or until she should remarry. There- seems to be no argument but that she forfeited her right to the payments of $100 a month by her marriage after the death of Knollenberg.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action to set aside certain deeds to Butler county lands. Plaintiffs were a daughter and several grandchildren of the late Mrs. Mary A. Beadles, of Butler county. The defendant was her son. He and his wife lived on the old home farm with his mother for many years — with the not unusual result that when she died he was in possession of some unrecorded deeds to certain lands in which his mother had held an interest, about which deeds, however, the other heirs knew nothing.
It appears that on September 10, 1897, one William M. Beadles, of Butler county, died testate, seized of a farm near Leon which he disposed of by devising a life interest to his surviving spouse, Mrs. Mary A. Beadles, with remainder to their four children, Effie, Maxie, Orabelle and Rolden. Effie and Maxie married, had children, and died. Their children, together with Orabelle, are the plaintiffs in this action. Rolden Beadles, a son of William and Mary, is the defendant.
In the years that followed the death of William, oil was discovered on the old home farm — just how extensively is not shown; but the mother’s bank ledger sheets showed that $70,000 in oil royalties had passed through her hands in the last fifteen years of her life.
In 1920 Mary A. Beadles and her son Rolden Beadles acquired a quarter section of land, known as the Overton land, which was situated near the old home farm. From the revenue stamps attached to the deed, it is inferable that the consideration was $8,000. The title was taken in the names of mother and son. On October 7, 1930, another tract of land lying near the Beadles farm, consisting of 120 acres, and known as the Creek land, was bought by the mother and son. The consideration was $6,050. Two of the mother’s checks, one for her half the purchase price, and'another for $2,000, were paid out of her bank account the day after the sale.
The mother, Mrs. Mary A. Beadles, died on June 21, 1937, at the age of eighty-seven years. Four days later two deeds whose validity is challenged in this lawsuit were filed for record in the office of the register of deeds. The first was a deed from Mary A. Beadles to the defendant Rolden Beadles, dated December 16, 1927, with the notarial acknowledgment of Nina S. Jones, notary public, conveying the grantor’s undivided, one-half interest in the Overton land (160 acres described). The second was a deed from Mary to Rolden, dated October 16, 1930, conveying her undivided one-half interest in the Creek land (120 acres described).
Plaintiffs’ petition contained the usual allegations of fact, their ownership in common of the lands described, that at the time of Mary’s death she was over eighty years of age and feeble in mind and body, that defendants Rolden and wife made their home with Mary, that the defendant Rolden was her adviser and business manager, and that a relationship of trust and confidence existed between them, that Rolden caused the deeds purporting to convey the mother's interests in the described lands to be recorded immediately following her death. Plaintiffs further alleged that the deed bearing the date of December 16, 1927, purporting to convey to Rolden his mother’s interest in the Overton land was a forgery, and if it did contain her signature the same was procured by false and fraudulent misrepresentation. The petition also alleged that the deed was given without consideration, that the grantor was under the influence and domination of the defendant, that she was suffering from senile dementia and was incapable of exercising her own free will at the time of the deed’s purported execution.
Plaintiffs further alleged that on October 4,1937, a deed was filed for record, purporting to convey the Overton land from defendant Rolden Beadles to his. wife Mattie A. Beadles, and that such conveyance was made for the purpose of defrauding the plaintiffs.
In a second cause of action, the deed dated October 16, 1930, purporting to convey the interest of Mrs. Mary A. Beadles in the Creek land to Rolden was assailed on grounds of infiriñity similar to those alleged in the first cause of action; and it was-alleged1 also that the filing for record of a deed conveying the Creek'land-from Rolden to his wife was made under the same conditions and-for the same purpose.
Plaintiffs concluded their petition with a prayer for specific; general and equitable relief.
Defendants’ answer contained a general denial’ and^céridití*admissions and alleged that Mrs. Mary A. Beadles executed the';challenged deeds with full knowledge and understanding- of their-fi’átu-re, without any undue influence, and for a good and valuable •’ consideration.
The caiise was tried by the court without a-jury. -The evidence extends to more- than ninety pages1 of the abstract and counter ab stract. It tended to show that a fiduciary relationship did exist between defendant and his mother, and that he gave no consideration for the deeds which he withheld from the record for so many years, but which he promptly recorded after his mother’s death. One remarkable feature of the plaintiffs’ evidence tended to show that the notary who took the acknowledgment of the deed to the Overton land had been duped into the belief that the person executing it was defendant’s mother, when in fact it was some unknown person impersonating the mother. Defendant and his wife drew checks on the mother’s bank account. Defendant transacted his mother’s business, and was irritable, vulgar and contemptuous towards the plaintiffs when they inquired about family business matters in which they had a legitimate interest. The mother was about seventy-seven years old when she executed and acknowledged the deed to the Overton land — if she did execute it (which was persuasively disproved), and eighty years old when the deed to the Creek land was dated.
The trial court made detailed findings of fact, mostly favorable to plaintiffs, none adverse to them. Some of these read:
■“eighth
“There is nothing in the testimony to show when or how the deed to the Overton land, and acknowledged before Nina S. Jones, got into the bank box of Mary, A. Beadles, but it was there either in the winter of 1930 or the spring of 1931, at which time Rolden came to the bank and asked to see Mr. Marshall privately, and he then stated that his mother desired that Mr. Marshall turn over to him the deed from his mother to the Overton land and the deed from her to the Creek land. Mr. Marshall told him that he could not do this, but that he would get the deeds from her box and would go with Rolden to the Beadles home and talk with his mother. They went' to the Beadles home, on this same day and Mr. Marshall, in the presence of Rolden, handed her the two deeds and told her that she could do whatever she desired with them, and she handed them to Rolden and told him to take them and that this land would be enough to keep him. These three were the only persons present. Rolden never paid his mother anything for either of these two deeds. Mary A. Beadles did not consult or advise with Mr. Marshall in any way about the execution or delivery of these deeds or the conveyance of this land to Rolden. Rolden did not have access to his mother’s safety-deposit box and he never asked the bank to let him open it.
“eleventh
“There was at all times a very close and confidential relationship between Rolden and his mother. He advised her on all business matters. She depended upon him for advice and depended upon him to look after her business for her. She did not consult with either of her two daughters, or her grandchildren, and did not talk with any of them about her business affairs.
“thirteenth
“Rolden Beadles kept the two deeds from his mother to himself without filing them for record until June 25, 1937, which was four days after his mother died. He had never told his sister, Orabelle Overstreet, or any of his nephews or nieces, that he had deeds from his mother to the land in question, and the first they knew or heard anything about the deeds was an item in the newspaper stating that these and other deeds had been filed for record.
“About the 1st of October, 1937, Rolden was doing something in connection with the title to oil and gas rights in this real estate, and the oil companies raised the question of whether the two deeds from his mother to him were delivered before her death. Rolden went to an attorney to have him prepare affidavits to that effect to be sworn to by someone familiar with the facts. The attorney talked with Nina S. Jones [the notary] and from her learned that she would say that in her opinion the deed dated December 16, 1927, purporting to have been signed by Mary A. Beadles and covering the Overton land, and purporting to have been acknowledged by Mary A. Beadles before her as a notary public, was not in fact signed or acknowledged by Mary A. Beadles. The attorney communicated this information to Rolden, and under date of October 4, 1937, Rolden filed for record deeds conveying to his wife, Mattie A. Beadles, the land involved in this action, and other lands. Mattie A. Beadles gave no consideration for the conveyance to her of the land involved herein.
“eipteenth
“The court is unable to find that the deed dated December 16, 1927, was either signed or acknowledged by Mary A. Beadles.
“seventeenth
“The court finds that both of the above-mentioned deeds were obtained by Rolden Beadles from his mother under such facts and circumstances as would raise a presumption that they were obtained by him by reason of undue influence upon his part exerted upon his mother; that he has failed to prove that the transactions resulting 'in the execution and delivery of said deeds were fairly conducted, and he has failed to prove that in the matter of the execution and delivery of said deeds his mother exercised her own free will and acted voluntarily by the exercise of her own judgment and reason. The court further finds that if his mother executed and acknowledged said deed of December 16, 1927, both of said deeds from Mary A. Beadles to Rolden Beadles were executed by and obtained from her by Rolden Beadles as a direct result of undue influence of said Rolden Beadles upon her.”
On these findings the trial' court set aside the challenged deeds and set aside the deeds executed by Rolden Beadles so far as they purported to convey to his wife the'undivided half interest of his mother’s estate therein. The court also adjudicated the respective proportionate interests of all the litigants in the lands in controversy.
The usual post-trial motions were filed and disposed of, and from the judgment in favor of plaintiffs, defendant appeals, contending that the evidence was insufficient to establish plaintiffs’ causes of action as against his demurrer, and that plaintiffs’ evidence did not raise a presumption that a confidential relationship existed between defendant and his mother. He also contends that if such confidential relationship did exist his mother did have independent advice, and that it was pursuant thereto that she executed and delivered the deeds to defendant. Defendant also contends that there was an entire lack of evidence on which to base the judgment setting aside the deeds he made to his wife conveying the land in controversy.
This court holds that the evidence in the record which we have briefly summarized above was sufficient to withstand defendant’s demurrer thereto. And in view of the testimony and the facts about which there was no dispute, as well as the evidence inherent in the circumstances, it seems idle to contend that a confidential relationship between Mrs. Mary A. Beadles and the defendant was not sufficiently established 'to place on the latter the burden of showing that the conveyances of the mother’s interest in the Overton and Creek lands to him were made in good faith and for valuable considerations, under many familiar precedents. (Paddock v. Pulsifer, 43 Kan. 718, 23 Pac. 1049; Hill v. Miller, 50 Kan. 659, 32 Pac. 354; Smith v. Smith, 84 Kan. 242, 114 Pac. 245; Coblentz v. Putifer, 97 Kan. 679, 156 Pac. 700; Hoff v. Hoff, 106 Kan. 542, 550, 189 Pac. 613; Flintjer v. Rehm, 120 Kan. 13, 17, 241 Pac. 1087; Madden v. Glathart, 125 Kan. 466, 265 Pac. 42; Grothaus v. Van Cleave, 125 Kan. 560, 264 Pac. 1055.)
The record is completely void of evidence that Mrs. Mary A. Beadles had independent advice at the time the challenged deeds were dated. Touching the deed' to the Overton land, she probably had nothing to do with its making. After that deed had remained in darkness for ten years, it was brought to light just long enough to be recorded, and then it was conveniently “lost” so that the grantor’s signature could not be scrutinized. And in respect to the deed to the Creek land the testimony of the scrivener and of the notary contributed nothing from which it might be- deduced that the grantor had the benefit of independent advice in the transaction which led to its execution or to dispense with its necessity.
While the statute requiring the need of independent advice in the making of a will where a fiduciary relationship exists between the testatrix and the principal beneficiary (G. S. 1935, 22-214, now superseded by Laws 1939, ch. 180, § 41) does not extend to the making of deeds or gifts, yet equity applies the same principles under similar circumstances to test the bona fides of the latter transactions. (Barger v. French, 122 Kan. 607, 612, 253 Pac. 230; Madden v. Glathart, supra, 473-475, and syl. ¶ 3.)
See, also, “Anno. — Fraud—Confidential Relations — Advice,” in 323 A. L. R. 3505 et seq.
Little need be said touching defendant’s transfer of title to the Overton and Creek lands to his wife as soon as he learned that the notary who took the acknowledgment of the "deed to the Overton land in 1927 still persisted in her belief that she had been deceived in that matter. Defendant’s wife gave no consideration for those conveyances. The circumstances precluded any other conclusion than that the deeds were so made to hinder or frustrate the plaintiffs in the recovery of their several interests in the properties as heirs of Mary A. Beadles.
A patient consideration of the entire record reveals nothing which would permit the judgment to be disturbed.
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The opinion of the court was delivered by
Allegrucci, J.:
This is an appeal by the State of Kansas, pursuant to K.S.A. 22-3602(b)(l), from the district court’s orders suppressing evidence and dismissing burglary charges against John Hodges in two cases which have been consolidated on appeal.
The State asserts three issues on appeal:
(1) The district court erred in finding the vehicle stop was not lawful;
(2) the district court erred in finding that defendant Hodges had standing to seek suppression of the evidence seized in the search of the automobile and of the confession of codefendant Robert Lankster; and
(3) even if the officer lacked reasonable suspicion to make the stop, there was not substantial competent evidence to support the district court’s suppression of Lankster’s confession.
There is no dispute as to the facts. On March 3, 1992, Officer Sill was assigned to surveillance of the business district of Manhattan because there had been more than 20 burglaries of businesses in the preceding two-week period. At 10:45 p.m. he saw a car with a Shawnee County tag which was traveling very slowly. There were three black males in the car, and they were slouched low in their seats.
Officer Sill followed the car. It eventually was driven through the parking lot of the Food 4 Less store and stopped at a comer of the lot. Officer Sill temporarily lost sight of the car. When he located it again, there was only one person in the car.
Officer Sill drove out of the parking lot and down a nearby street where he saw two black males walking. He went back to the Food 4 Less store, went in, and checked around for black males. He saw none in the store. Back out in the parking lot, he saw the occupant of the car watching his movements.
The activity observed by Sill seemed suspicious to him because it fit the hypothesized activity of recent burglaries. He testified that the pattern of the burglaries was for several adjoining or nearby businesses to be burglarized on one night. For this reason it was believed that the burglars were going from one business to another on foot. The Food 4 Less store was the only store in the immediate area where the two men were walking which was open for business, and the two men who had been in the car when Sill first saw it were not in the Food 4 Less.
Officer Sill called Officer Howser, who reported that he also had seen two black males on foot on the street where Sill had seen them. Then Officer Sill saw two black males get into the parked car. The car was driven slowly out of the parking lot, down a few blocks, and then three times around a block.
After the men had circled the block, they drove to the Village Inn restaurant. They went inside and stayed for approximately 30 minutes. The police maintained a watch on the car.
When the men came out they got back into the car and headed out of town. Officer Sill followed them, and, as the car neared Interstate 70, Officer Schuck, who was driving a patrol car, stopped the car. The stop was not based on a traffic violation, and the officers had no reason to believe that the suspects were trying to flee or elude them or that a crime was going to be committed.
According to Sill, the suspects’ car was still in Riley County when Officer Schuck turned on his emergency lights. The stop was made, however, in Geary County.
The men were frisked and detained for questioning. Boykins, who was driving, gave Officer Sill permission to search the car. In the trunk he found two screwdrivers and a pry bar. On the front seat there was a glass vial with a burned residue in it. On the floorboard there was a jacket with a large sum of money wrapped inside it.
The men were arrested. The following morning they appeared in court in Riley County. Lankster, who was the third man in the car along with Boykins and Hodges, had his bond set at $25,000, and he was unable to post that amount. By mid-afternoon, Lankster summoned an officer for the purpose of making a deal with the police and making a statement. Hodges was implicated in the business burglaries by Lankster’s confession.
Hodges was charged in the two cases with more than 20 counts of burglary. The facts and issues in the two cases are identical. In each case the district court granted defendant’s motion to suppress the evidence which had been collected in the search of the car and to suppress the confession of Lankster. With no evidence available for use against Hodges, the district court ordered that the charges be dismissed.
In pertinent part, the district court’s journal entry and order of dismissal states:
“If the officers had stopped the vehicle in which the Defendant was a passenger when it was circling the city parking lot, the stop would have been justified, because at that time, there were sufficient facts to justify a reasonable, articulable suspicion that the occupants of the car were about to commit a crime.
“The law enforcement officers lost their basis for stopping the vehicle when the vehicle headed out of town and there was no longer a suspicion that a crime was about to be committed.
“Pursuant to K.S.A. 22-2401a, Riley County law enforcement officers may exercise their powers as long [sic] as law enforcement officers in Geary County if they are invited or requested to do so by Geary County officers, or when in fresh pursuit of a person.
“As defined by the statute, fresh pursuit means pursuit of a person who has committed a crime or who is reasonably suspected of having committed a crime.
“There are no facts in the record to substantiate a reasonable suspicion by the officers that a crime had been committed when the vehicle was stopped in Geary County.
“At the time that the vehicle was stopped, the officers were without jurisdiction to exercise their authority as law enforcement officers within Geary County, and upon this basis, the Court feels that the physical evidence seized pursuant to the stop, must be suppressed.
“The Court further finds that pursuant to U.S. vs. Ceccolini, 435 U.S. 268 (1978), the live testimony of a witness can be subject to suppression as fruit of the poisonous tree, unless it falls within one of the recognized exceptions.
“When considering all the circumstances, the Court finds that the illegal stop of the vehicle in which defendant was a passenger led to the discovery of Lankster as a witness and to the confession by Lankster.
“The Court is persuaded that there were not sufficient attenuating circumstances between the illegal stop and the confession and testimony .of co-defendant Lankster to create an exception to the Exclusionary Rule, and consequently, the co-defendant’s confession and testimony cannot be admitted as evidence against this defendant.”
We first consider whether the automobile stop was lawful. The district court stated that before the suspects went to the Village Inn a stop would have been justified. The district court reasoned, however, that
“at that point in time [the police] lost their basis to stop the vehicle because [of] the fact that the vehicle was no longer doing anything suspicious, and there was no reason to think that there was a crime about to be committed. They were heading south out of town. They were followed all the way to the interstate. The testimony of the officers was that there was no violation of any traffic ordinance whatsoever, the vehicle drove at or below the speed limit all the way. The testimony of the officers was that there was no reason to believe that the vehicle was [going] to flee or elude officer Schuck by the time that he finally got there.”
The linchpin in the district court’s analysis and conclusion was that the suspicious activities had occurred in Riley County, but the stop occurred in Geary County. The stopping officer, Schuck, was with the Riley County Police Department. Officer Sill, also of the Riley County Police Department, had requested an officer in a patrol car to make the stop.
In State v. Hennessee, 232 Kan. 807, Syl. ¶ 2, 658 P.2d 1034 (1983), the court stated:
“A sheriff may exercise his powers outside the county where he holds office in only two instances: (1) where he is in ‘fresh pursuit’ of a person, or (2) where a request for assistance has been made by law enforcement officers from the area for which such assistance is requested. K.S.A. 22-2401a.”
In the present case, the district court’s ruling is based on the general application of this principle to law enforcement officers. The district court considered the circumstances in which Riley County law enforcement officers would have been authorized to pursue suspects into Geary County, and concluded:
“What we have here in fresh pursuit the officer either sees it, knows the crime is committed and pursues him, or reasonably suspects the crime has been committed. There aren’t any facts in this record upon which these officers, in this Court’s opinion, can reasonably suspect that a crime was committed. The burglaries weren’t discovered until afterwards. Therefore, I believe that the fresh pursuit justification for a stop in — and in another jurisdiction is not applicable to this case and these officers were without jurisdiction. Officer Schuck was without jurisdiction at the time that he stopped the vehicle in Geary County.”
K.S.A. 1992 Supp. 22-2402 provides in pertinent part as follows:
“Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand . . . the name [and] address of such suspect and an explanation of such suspect’s actions.”
K.S.A. 22-2401a provides in pertinent part as follows:
“(1) Law enforcement officers employed by consolidated county law enforcement agencies or departments and sheriffs and their deputies may exercise their powers as law enforcement officers:
(a) Anywhere within their county; and
(b) in any other place when a request for assistance has been made by law enforcement officers from that place or when in fresh pursuit of a person.
“(6) As used in this section:
(c) ‘Fresh pursuit’ means pursuit, without unnecessary delay, of a person who has committed a crime, or who is reasonably suspected of having committed a crime.”
What the district court regarded as the central events for the purpose of determining the lawfulness of the stop — the suspects’ stopping at a restaurant and then crossing the county line — the State treats as inconsequential. “Moot” is the term chosen by the State for describing crossing the county line, and the State falls silent on the subject of the restaurant interlude. The State argues:
“Upon the finding that the officers had reasonable suspicion to stop the cream-colored sedan . . . the fact that the vehicle was eventually stopped in Geary County becomes moot due to the fact that an officer may engage in fresh pursuit of a vehicle across jurisdictions when he has reasonable suspicion that defendants have committed a crime.”
Thus, the State’s theory is that the seemingly aimless business district activities of Hodges and his companions gave rise to reasonable suspicion of criminal activity because they occurred in an area plagued by recent break-ins. That reasonable suspicion of criminal activity, according to the State, was not dispelled when the men left the area of criminal activity and stopped for half an hour at a restaurant and then drove out of Manhattan. This theory glosses over both the district court’s conclusion that there was no reason to suspect that a crime had been committed and the absence of statutory authority for Riley County law enforcement officers to make an extraterritorial stop without a reasonable suspicion that a crime had been committed.
The State also relies on United States v. Sharpe, 470 U.S. 675, 84 L. Ed. 2d 605, 105 S. Ct. 1568 (1985), in which the issue was whether a 20-minute detention is too long to be reasonable under the doctrine of Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The State argues that the district court’s ruling is in conflict with Sharpe. The State does not elaborate on this argument, and we fail to see a conflict.
The definition of fresh pursuit in 22-2401a differs from the circumstances in which a law enforcement officer may stop a suspect under 22-2402. A stop under 22-2402 is permitted when an officer reasonably suspects that a person (1) is committing, (2) has committed, or (3) is about to commit a crime. Fresh pursuit into a foreign jurisdiction may be based on an officer’s reasonable suspicion that a person already has committed a crime, but may not be based on a reasonable suspicion that a crime is about to be committed.
Agreeing with the district court, Hodges contends that, even before the car stopped at the restaurant, Officer Sill did not have sufficient articulable facts to support a reasonable suspicion that there was a crime being committed or that one had been committed by the men. Certainly then, when the men headed out of town after stopping at the restaurant, he argues, there was no longer any statutorily permitted reason to stop them.
It seems that an argument could be made that, before the car stopped at the restaurant, it was reasonable for Officer Sill to suspect that a crime had been committed while two of the men were out of the car. The testimony established that the pattern of the business burglaries suggested that they were being committed by a person or persons on foot. There had been a rash of burglaries in the business district of Manhattan within the two-week period preceding March 3. The three men had been observed driving very slowly and without apparent destination in the business district at 10:45 p.m. when very few businesses were open. When the car stopped, two of its occupants got out but were not found in the only open business in the vicinity.
The district court concluded that those circumstances gave rise to a reasonable suspicion that a crime was about to be committed, but not that a crime had been committed. As the district court noted, at a later time burglaries were discovered to have occurred on March 3. At the time the Riley County police had the car in which Hodges was riding under surveillance, it was not known that the March 3 burglaries had been committed.
The State reviews some of this court’s decisions involving stops and extracts several principles regarding reasonable suspicion from them. The State mistakes significant justifying circumstances in individual stop situations for legal requirements for stops.
First, from State v. Potter, 246 Kan. 119, 785 P.2d 989 (1990), the State postulates a “prior knowledge of facts” requirement. Potter involved a car stop and the K.S.A. 22-2402 concept of “reasonable suspicion.” After hearing the report of a convenience store robbery by two men dressed in camouflage suits and with black greasepaint on their faces, a sheriff’s deputy saw a car pass through a Kwik Shop parking lot and drive through the parking lot of a small shopping center several times. 246 Kan. at 119-20.
On appeal, this court considered the Fourth Amendment constitutionality of the stop as well as whether the deputy had reasonable suspicion for the stop as required by 22-2402. 246 Kan. at 121. The district court’s denial of the defendant’s motions to suppress and quash the evidence was affirmed. This court seemed to find it significant that the car was observed in an area previously “subject to vandalism and other crimes,” it drove through the parking lots of businesses without stopping, and the deputy “had reason to believe that the vehicle in which Potter was a passenger was not properly tagged.” 246 Kan. at 122-23.
This court concluded: , “Deputy Lang had reasonable suspicion pursuant to K.S.A. 22-2402. His initial stop of the vehicle was therefore valid.” 246 Kan. at 124.
Second, the State cites State v. Holthaus, 222 Kan. 361, 564 P.2d 542 (1977); City of Garden City v. Mesa, 215 Kan. 674, 527 P.2d 1036 (1974); State v. Jackson, 213 Kan. 219, 515 P.2d 1108 (1973); and State v. Hazelwood, 209 Kan. 649, 498 P.2d 607 (1972). The proposition that the State takes from these cases is that “in addition to prior knowledge, the [stopping] officer must observe furtive behavior.” It is the State’s contention that the slow pace, low crouch, and meandering path in the present case constitute furtive behavior. The State contends:
“In the present case, a vehicle occupied by three men crouched down low in their seats, was driven slowly through a downtown business district before parking and two of the occupants exiting the vehicle, these facts alone on their face would not meet the standards of K.S.A. [22-2402] and Terry v. Ohio. However, when combined with the fact that 20 burglaries had been committed in a two-week period in the downtown area of Manhattan, the activity of the vehicle’s three occupants clearly meets the requirement that furtive behavior was observed under Hazelwood and Holthaus.”
The State describes Jackson as a case in which this court suppressed evidence on the ground that “there was no evidence presented of any recent burglaries in the area, as required by the prior knowledge of facts standard.” In distinguishing Hazel-wood, which the State had relied on, the court commented that there was no evidence of furtive behavior or police knowledge of burglaries in the area, “such as were shown by the evidence in Hazelwood.” 213 Kan. at 223. The court also noted that “there was [no] suspicious conduct such as shown in Terry.” 213 Kan. at 223.
The State describes Mesa as standing for the proposition that an officer is authorized “to stop a person loitering in a public place at 4:00 a.m., when the officer harbors a suspicion of possible burglary.” Mesa was seen by patrolling officers standing in the doorway of the Motor Electric Shop. Lights were on in the shop, but the door was closed. The officers got out of their car, greeted Mesa, and asked him for identification. Mesa refused to provide any identification and walked into the shop. One of the officers caught up with him, blocked his path, and said they were going to the police station. Mesa attempted to push the officer out of the way, and he was arrested. We do not find Mesa to be helpful in the present case.
The State’s account of the facts and conclusions from Hazelwood is as follows:
“In Hazelwood, the officers had finished investigating a couple of burglaries and were out looking for suspects when, at 4:10 a.m., they saw a man duck into an alley and get down behind some vehicles. The officers then commanded the man to come out from behind the vehicles. . . . The Court found that under the circumstances, the search and seizure was reasonable considering the early morning hour and the subject’s furtive behavior and the officer’s own knowledge concerning the recent commission of two burglaries in the area.”
The factual circumstances in Hazelwood have little in common with the present case. Defendant Hazelwood was on foot at 4:10 a.m. in an area where police knew two burglaries had occurred that night, and he hid at the approach of a police car. The legal principles operating in Hazelwood also are dissimilar from those applicable in the present case. An individual on the street may be approached for investigative purposes whether or not the officer has reasonable suspicion of criminal activity, but a vehicle stop “always constitutes a seizure.” State v. McKeown, 249 Kan. 506, 510, 819 P.2d 644 (1991). Thus, a vehicle stop always re quires the officer to have “articulable facts sufficient to constitute reasonable suspicion.” 249 Kan. at 510.
The State states the holding of Holthaus to be that “the facts and circumstances known to the arresting officer were sufficient to warrant a man of reasonable caution to believe that an offense had been committed by the appellant.” 222 Kan. at 364. The “facts and circumstances” recited by the State in its brief, however, do not include the factual key to the decision. The State recites that Holthaus had been noticed twice driving by the scene of a burglary, that he appeared nervous upon seeing a patrol car, and that he scooted down in the seat of his vehicle. The State then declares that a “fair reading” of Holthaus (and Hazelwood) “clearly indicates” that the “standards of K.S.A. [22-2402]” were satisfied by the conjunction of the recent burglary and the “harmless, but suspicious activities” of Holthaus.
In fact, there was
“no claim made by the State that when the chief of police sent the appellant to the police station there was probable cause for arrest. He was simply being detained until his story of how he came in possession of the truck could be checked out. When his story was proved untrue, he was arrested. At that time the arresting officer had the information heretofore set out, including the fact that the appellant had no authority to drive the truck.” 222 Kan. at 364.
The information also included that the man who purportedly gave Holthaus permission to drive the truck knew nothing of Holthaus or, for that matter, that a car which Holthaus had mentioned was found near the burglary with its rear end damaged so as to suggest that it had been used to break down the door of the burglarized business, and that Holthaus had been seen earlier driving the car. 222 Kan. at 362. It was this compilation of information which led the court to conclude that “the facts and circumstances known to the arresting officer were sufficient to warrant a man of reasonable caution to believe that an offense had been committed by the appellant.” 222 Kan. at 364.
Potter, Hazelwood, and Holthaus are distinguishable from the present case in that the defendant in each of the other cases was stopped in an area of known criminal activity. In the present case Hodges was not stopped until he had driven out of the particular area of Manhattan where there had been a rash of burglaries, had made an intermediate stop at a restaurant, and had driven all the way out of town. Hodges argues that, away from an area of known criminal activity, the suspicion that a crime is about to be committed is not reasonable or certainly is not as reasonable as it might be in an area of known criminal activity.
Hodges contends that McKeown and the present case are quite similar. In McKeown, an officer was dispatched to check a vehicle parked in a rural location. The dispatch resulted from a call from a citizen. The officer “had no information which indicated any kind of criminal activity related to the car.” 249 Kan. at 513-14. The driver did not act in a furtive, nervous, or suspicious manner when the officer approached. The officer testified that “the vehicle was not doing anything wrong.” 249 Kan. at 514.
Hodges suggests that “|j']ust like McKeown, there was nothing to indicate criminal activity related to the car in which [he] was riding.” Hodges’ comparison is valid for the time when the car in which he was riding was stopped, but it ignores the time when the car was observed in the business district.
Hodges also relies on State v. Epperson, 237 Kan. 707, 703 P.2d 761 (1985). Hodges contends that the circumstances of his stop are like those in Epperson in that “[n]othing indicated there was a crime being committed or was about to be committed nor did the officer have any knowledge of a crime having been just committed.” In Epperson, the stopping officer testified th,at at the time of the stop “he did not have any cause to believe that defendants were committing or had committed any crime.” 237 Kan. at 709. The trial court found that the stop was not based on a reasonable or articulable suspicion of criminal activity, and this court agreed. 237 Kan. at 713.
When first observed by the stopping officer, Epperson and codefendant Auerbach were sitting in a legally parked car in an area where “[t]here was a problem with burglaries.” 237 Kan. at 708. It was approximately 2:00 a.m. 237 Kan. at 708. When Epperson and Auerbach saw the patrol car emerge from an alley, they appeared to be startled and the passenger, Epperson, “made a quick reach to the floorboard area and then straightened back up.” 237 Kan. at 708. Approximately 150 yards from where the car was parked, there was a private club which was open for business. 237 Kan. at 708. The men got out of the car and had walked a few feet away from it when the officer stopped them. The officer entered the car, found cocaine under the passenger’s seat, and arrested the men.
In concluding that the stop of Epperson and Auerbach was unlawful, this court considered the following facts:
“The officer had no knowledge of any prior crime; he had not seen or heard of any nearby break-in or other offense and had no reason to suspect these defendants of any such crime. He did not see them commit any offense. Their car was lawfully parked in an area where cars of customers of the private club frequently parked, although there were closer parking spaces available. They did not appear to be armed. The officer was suspicious but he had no objective facts upon which to form a belief that the men were involved in criminal activity. That the men appeared startled when the patrol car emerged from the alley, that the passenger appeared to reach down to the floorboard area, and that the men got out of the car and started to walk away, is not indicative of criminal activity. The officer was looking for burglary suspects. The defendants, well-dressed occupants of an expensive car, did not appear to be burglars. The officer was not looking for drug users or dealers, or at least he did not testify that he was. The defendants gave him no reason to suspect that they were users, possessors or dealers.” 237 Kan. at 713.
The search of the car also was determined to be illegal. The court rejected the State’s arguments that the search was justified by the violation of a municipal ordinance, that it was justified as a Terry search, that it was justified as an incident to a lawful arrest, and that it was justified under the plain view doctrine. 237 Kan. at 714-16. All evidence, therefore, was suppressed.
The State would distinguish Epperson from the present case on the ground that the officer who stopped Epperson and Auerbach was looking for burglars, but found drug offenders. In the présent case the officer was looking for burglars and found them. The State does not explain how or why this distinction is significant.
If there was reasonable suspicion that the men committed a burglary or burglaries while they were in the business district of Manhattan, 22-2401a(l) would authorize the stop in Geary County as long as it was made “without unnecessary delay.” In this regard, the State makes this policy argument:
“Police officers are encouraged, under the holding of the trial court, to make determinations of reasonable suspicions more hastily. Instead of waiting to make additional observations to confirm or dispel suspicions of possible furtive behavior, law enforcement officers in the State of Kansas will be compelled to seize individuals at the moment they become suspicious for fear that failure to do so has the effect of losing what they have already gained, reasonable suspicion. . . . The holding of the trial court will have a net result — not of decreasing unnecessary seizures of persons but instead— of increasing seizures of persons unnecessarily because of the officers’ fear that they must stop now or maybe never, a policy inconsistent with the spirit of the Fourth Amendment.”
The parties do not delve any further into the question of “without unnecessary delay.”
Most recently the requirements of fresh pursuit have been considered by the Court of Appeals. In City of Prairie Village v. Eddy, 14 Kan. App. 2d 661, 798 P.2d 66 (1990), Eddy was arrested in Overland Park by a Prairie Village police officer. He was charged with driving while under the influence of alcohol. The officer observed Eddy, while in Prairie Village, make a complete stop at a green light and then make a right turn without signalling. The officer followed Eddy and stopped him for violation of the municipal turn indicator ordinance. The Court of Appeals concluded that this was “fresh pursuit” because “the officer’s pursuit of the vehicle was continuous and without delay.” 14 Kan. App. 2d at 663.
Although the facts are dissimilar compared to the circumstances in Eddy, the pursuit in the present case is interrupted rather than continuous and protracted rather than without delay. If the officers’ action constituted pursuit, it was at best a very stale pursuit. The district court’s finding that the officers, Sill and Schuck, were not in “fresh pursuit” is correct.
Had Officer Sill stopped the vehicle in Manhattan after making his observation of the vehicle and its occupants, the stop may have been justified. However, the stop of the automobile in Geary County was not justified. There is substantial competent evidence in the record that the stop was not made “without unnecessary delay.” The officers were not in fresh pursuit of the vehicle, nor were they in Geary County at the request of any Geary County law enforcement officer. Thus, regardless of whether officers had reason to suspect that a crime had been committed, K.S.A. 22-2401a(l) does not authorize Riley County police officers to exercise their power as police officers in Geary County. The district court correctly found that the Riley County officers acted beyond their power in stopping the vehicle in Geary County, and therefore the stop was unlawful.
The State next argues that Hodges does not have standing to seek suppression of the evidence seized in the search of the automobile and of the confession of Lankster.
The following testimony was given by Officer Sill at the preliminary hearing:
“Q. Did you search the vehicle?
“A. Yes, I did.
“Q. Now, did you have consent to search that vehicle?
“A. Yes. I asked Mr. Boykins if — if he would allow me to search the vehicle. And he told me sure, go ahead, it’s not his vehicle.
“And I said but you are in control of the vehicle? And he said yeah. And I asked him again if I could search it and he said sure. So, at that time he handed me the keys to the vehicle.”
The search of the car disclosed burglary tools, a glass vial with a burned residue in it, and a large sum of money wrapped in a jacket on the floorboard.
With regard to the evidence which was found in the car, the State concedes that this court’s ruling in Epperson gives Hodges standing to seek suppression. The State asks that the decision in Epperson be reversed. The State contends that the decision in Epperson stems from “an improper analysis of Fourth Amendment Rights” and directs the court’s attention to Rakas v. Illinois, 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978), reh. denied 439 U.S. 1122 (1979), and Alderman v. United States, 394 U.S. 165, 22 L. Ed. 2d 176, 89 S. Ct. 961 (1969), for the proper analysis.
In Epperson, there was no evidence that defendant claimed a possessory interest in the cocaine. Nonetheless, the court concluded that the cocaine was not admissible as against Epperson. The court stated: “Epperson’s right to challenge the search stems not from the fact that he was previously a passenger in the motor vehicle, but because he is a person who was unlawfully stopped and seized, and because the search followed as a consequence thereof.” 237 Kan. at 718.
The court analogized to cases holding that, where the car and its occupants were improperly stopped, a passenger has standing to challenge a search of a motor vehicle. 237 Kan. at 717-18. The cases cited were: United States v. Santia-Manriquez, 603 F.2d 575 (5th Cir. 1979); State v. Hocker, 113 Ariz. 450, 556 P.2d 784 (1976); People v. Kunath, 99 Ill. App. 3d 201, 425 N.E.2d 486 (1981); and State v. Scott, 59 Or. App. 220, 650 P.2d 985 (1982), appeal after remand 68 Or. App. 386, 681 P.2d 1188 (1984). All but the Arizona case were decided after Rakas, and, of course, Epperson was decided after Rakas.
Further, the present case is distinguishable from Rakas in that the car stop in Geary County was unlawful. There was no issue of probable cause or the legitimacy of the stop in Rakas. 439 U.S. at 130. The following language demonstrates that the Supreme Court was not concerned with the legality of the stop: “Because we are not here concerned with the issue of probable cause, a brief description of the events leading to the search of the automobile will suffice.” 439 U.S. at 130. An officer who had received a radio call stopped the car in which Rakas rode as a passenger because it matched the description of a robbery getaway car. 439 U.S. at 130. The occupants of the car were ordered out and the car was searched. During the search a box of rifle shells was discovered in the locked glove compartment, and a rifle was found under the front passenger seat. 439 U.S. at 130. Rakas moved to suppress the rifle and shells on the ground that the search violated his Fourth and Fourteenth Amendment rights. He had neither an ownership nor a possessory interest in the car or in the rifle and shells. The United States Supreme Court concluded that he had no right to challenge the search. We find no reason to depart from our decision in Epperson.
The State’s argument with regard to Hodges’ standing to seek suppression of the confession of Lankster is that the principle of Rakas and Alderman controls and that the district court’s focus on United States v. Ceccolini, 435 U.S. 268, 55 L. Ed. 2d 268, 98 S. Ct. 1054 (1978), was misdirected. The Rakas and Alderman principle relied on by the State is that a defendant may not “vicariously assert Fourth Amendment rights” of another. According to the State, the error in the district court’s reliance on Ceccolini is that the court’s analysis is limited to the issue of attenuation when it should have been focused on the issue of standing. Thus, the argument continues, the district court failed to determine whether Hodges “had a substantive Fourth Amendment right violated.”
In Ceccolini the Supreme Court reaffirmed its holding in Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963), that “ ‘verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers’ action in the present case is no less the “fruit” of official illegality than the more common tangible fruits of the unwarranted intrusion.’ ” 435 U.S. at 275 (quoting 371 U.S. at 485). It also added these caveats:
“Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet. Witnesses can, and often do, come forward and offer evidence entirely of their own volition. And evaluated properly, the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live-witness testimony than other kinds of evidence.” 435 U.S. at 276-77.
“[T]he exclusionary rule should be invoked with much greater reluctance where the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object.” 435 U.S. at 280.
Ceccolini was charged with perjury for denying that he was aware of or was involved in gambling operations. Long before the charge was filed, an illegal search had occurred. A policeman on break went into Ceccolini’s flower shop to chat with Hennessey, an employee. Dawdling behind the counter, the officer picked up an envelope, examined its contents, and discovered that it contained money and policy slips. In response to the officer’s questions, Hennessey told him that the envelope belonged to Ceccolini and that he had instructed her to give it to someone else. 435 U.S. at 270.
The police officer told detectives of the envelope, and they told an FBI agent. As a result, Ceccolini was investigated and denied knowledge or involvement. At Ceccolini’s bench trial for perjury, Hennessey testified for the government, but the district court granted defendant’s motion to suppress the testimony. The Court of Appeals affirmed. The Supreme Court reversed.
The State’s argument is that the cardinal issue is standing and that the district court’s reliance on Ceccolini, which does not involve a question of Ceccolini’s right to seek suppression of Hennessey’s testimony, is misplaced. It does not appear from the district court’s journal entry whether consideration was given to the issue of standing. The district court’s citation of Ceccolini is for the proposition that “the live testimony of a witness can be subject to suppression as fruit of the poisonous tree.” Even though the State concedes that under Epperson Hodges has a right to seek suppression of the physical evidence seized during the search of the car, the State argues Epperson does not give Hodges a right to seek suppression of Lankster’s confession because the right is “personal to Robert Lankster.”
The State’s argument is misguided because the district court excluded Lankster’s confession as being too firmly connected to the illegal car stop. Hodges was subject to the illegal car stop and is arguing that the confession is a fruit of the poisonous tree. If the State’s argument is that Lankster’s confession, as a matter of law, should be subjected to an analysis different from the analysis applied to the physical evidence, then in Ceccolini the Supreme Court rejected this argument. Moreover, the cases relied on by the State, Rakas and Alderman, both involve physical evidence. We find no merit in the State’s argument and conclude the defendant had standing to seek suppression of Lankster’s confession.
Finally, the State argues the district court erred in suppressing Lankster’s confession. The State asserts that “[i]t is clear error when the trial court finds the State did nothing wrong as it relates to Lankster and then suppresses] Lankster’s confession from being used against defendant Hodges.” The district court did not consider the post-árrest conduct of the police or the prosecutor to have been improper or to have induced Lankster’s confession. The district court did consider the car stop to have been improper. In the district court’s view there was an unbroken chain of causation linking the confession to the illegal stop. For this reason, the district court’s finding, that there were no additional illegalities following the stop, did not affect its determination that the confession should be suppressed as fruit of the poisonous tree.
The State relies on State v. Knapp, 234 Kan. 170, 671 P.2d 520 (1983), and State v. Kirby, 12 Kan. App. 2d 346, 744 P.2d 146 (1987), aff’d 242 Kan. 803, 751 P.2d 1041 (1988). The proposition the State draws from Knapp and Kirby is that the inquiry must be whether the evidence came to light as a result of exploitation of illegal law enforcement activity, not simply whether it would have come to light but for illegal law enforcement activity. This principle was stated as follows in Wong Sun:
“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Maguire, Evidence of Guilt, 221 (1959).” 371 U.S. at 487-88.
This court, in State v. Knapp, 234 Kan. 170, considered the admissibility of physical evidence and statements by the defendant obtained after he was illegally arrested.
Knapp, a staff sergeant in the Army, was placed in a detention cell at a military police station overnight before being questioned by Kansas authorities in connection with the deaths of his former wife and her neighbor. The district court determined that this initial arrest was without probable cause. Nonetheless, Knapp’s extrajudicial statement and evidence which was found pursuant to his consent to search was admitted at trial. The district court concluded that the statement and the consent were freely, voluntarily, and knowingly given, and, therefore, Knapp’s Fifth Amendment rights had not been violated. This court agreed.
The district court also concluded that Knapp’s Fourth Amendment rights were intact because the causal connection between his illegal arrest and his giving the statement and the search consent had been broken by his intervening acts of free will. Those acts include the following: Knapp was advised of his Miranda rights. He read the rights form, altered it to his satisfaction, and signed it. Knapp gave a written statement; he gave verbal and written consents to searches of his quarters and car. The written consent was a form, which he studied and modified. He specified when the searches would take place. When “gaps” in his written statement were pointed out, Knapp agreed to give a detailed account of his recent activities and insisted on doing so immediately.
This court agreed with the district court’s conclusion as to the Fourth Amendment rights. The court stated: “The trial court’s finding that there was sufficient attenuation between the illegal arrest and the obtaining of the statements and consents to search to make the statements and evidence admissible is supported by substantial competent evidence and will not be disturbed on appeal.” 234 Kan. at 178. The proper inquiry was described as follows:
“In determining whether evidence obtained after an illegal arrest is sufficiently separated from the initial illegal police activity and is the result of the free will of the defendant, no single factor is controlling. Factors to be considered include (1) whether Miranda warnings were given; (2) the temporal proximity of the illegal arrest and the statement, confession, or consent to search; (3) the purpose and flagrancy of the officer’s misconduct; and (4) other intervening circumstances.” 234 Kan. 170, Syl. ¶ 3.
In Kirby, the Court of Appeals concluded that there was substantial evidence that the initial stop was based on a reasonable and articulable suspicion of criminal activity. 12 Kan. App. 2d at 354. The officer “stated the stop was based upon his knowledge of deer poaching in the area, the early morning hour, the fact the truck headlights were off and the domelight was on, a tarp was covering something on the truck bed, and the absence of a license tag.” 12 Kan. App. 2d at 353.
After stopping the truck, the officer removed the tarp that was over items in the bed of the truck, removed items which were under the tarp, and ran the serial numbers of the items through police computers to see whether any had been reported stolen. The Court of Appeals concluded that the search was illegal. 12 Kan. App. 2d at 355.
Kirby and the passenger were not taken into custody. Five days later, Kirby contacted the police department about recovering his truck. As instructed, Kirby went to the police station and met with a detective, who read the Miranda warnings before questioning Kirby. Kirby implicated himself in a burglary and signed a statement to that effect.
The Court of Appeals used the analysis of Knapp, but its opinion makes clear that it was aware that the analysis had been formulated for determining whether evidence obtained following an illegal arrest was admissible. The Court of Appeals stated:
“Although the Supreme Court has not directly addressed a case involving a confession following an illegal search, other courts have considered the factors set forth in Knapp in illegal search cases. Wilkerson v. United States, 432 A.2d 730 (D.C. 1981); People v. Robbins, 54 Ill. App. 3d 298, 369 N.E.2d 577 (1977). See Childers, 222 Kan. 32 (statement following illegal search not excluded because not triggered or induced by illegal search).” 12 Kan. App. 2d at 357.
In following the Knapp analysis, the Court of Appeals found that the Miranda warnings were given to Kirby, that the five days between the search and the confession “weighted] in favor of attenuation,” that there was no evidence of bad faith on the part of law enforcement officers, and that other intervening circumstances indicate that Kirby was exercising his free will rather than succumbing to exploitation. 12 Kan. App. 2d at 357-58. The questions considered by the Court of Appeals with regard to the fourth factor, other intervening circumstances, were whether Kirby’s contacting the police about recovering his truck was an act of free will and whether the confession was the result of the detective’s confronting Kirby with the illegally seized evidence. 12 Kan. App. 2d at 358. The Court of Appeals found that Kirby’s initiative was an act of free will which purged the taint of the illegal search and that there was no evidence that Kirby had been confronted with the illegally seized evidence. Thus, the Court of Appeals concluded that the district court’s admission of the confession was supported by substantial evidence. 12 Kan. App. 2d at 359.
Applying the analysis of Knapp and Kirby to Lankster’s confession: (1) Miranda warnings were given to Lankster. (2) The illegal stop of the car occurred probably shortly before midnight on March 3, and by midaftemoon on March 4, Lankster had set the wheels in motion for giving his confession. (3) It does not appear that the officers’ conduct may be characterized as flagrant misconduct. Their purpose in stopping the car later rather than sooner was a desire to “catch them in the act of committing a crime.” Their purpose in stopping the car once it became apparent that its occupants were leaving town rather than engaging in criminal activity is not clear, but appears to have been based on a suspicion that a crime had been committed by the car’s occupants. (4) Other intervening circumstances briefed by the State mirror the circumstances discussed in Kirby. First, the State cites Lankster’s initiating contact with the police for the purpose of making a deal which would benefit him. Second, the State asserts that there is no evidence in the record that Lankster was confronted with seized evidence. We therefore conclude that the district court’s suppression of Lankster’s confession was not supported by substantial competent evidence.
The judgment of the district court is affirmed in part and reversed in part, and the case is remanded with directions to reinstate the complaints. | [
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The opinion of the court was delivered by
Six, J.:
This is an arson case. The two issues concern whether the trial court erred in failing to instruct the jury on attempted second-degree murder and in failing to suppress defendant’s confession.
Delbert McBroom appeals his convictions of attempted first-degree murder (K.S.A. 1991 Supp. 21-3301 and K.S.A. 1991 Supp. 21-3401[a]) and aggravated arson (K.S.A. 21-3719). Our jurisdiction is under K.S.A. 1991 Supp. 22-3601(b)(l) (a direct appeal where a maximum sentence of life imprisonment has been imposed).
The standard of review on the instruction issue is whether there Was any substantial evidence, viewed in the light most favorable to McBroom, which tends to prove attempted second-degree murder. State v. Evans, 251 Kan. 132, 138, 834 P.2d 335 (1992).
The confession issue standard of review is whether the admission of defendant’s confession is supported by substantial competent evidence. State v. Zimmerman, 251 Kan. 54, 62, 833 P.2d 925 (1992).
We find no error and affirm.
Facts
Delbert McBroom had three prior encounters with the Salina police on the day of the arson incident. The first: McBroom and his wife, Tina, filed a child in need of care complaint concerning Tina’s son, Charles Ferris, Jr. (Tina previously had been married to Charles Ferris, Sr.) The second: Tina, in McBroom’s presence, was arguing in a tavern parking lot with Ferris about their child. The third: An officer testified Tina said, at her residence at 1:05 a.m., that she wanted McBroom removed. The officer also testified that McBroom indicated that he was tired of Tina seeing Ferris on the side while she was married to McBroom. The officer testified that McBroom stated that Tina had threatened to kill Ferris and his girlfriend.
McBroom testified that Tina was upset and that she said someone had to stop Ferris or she was going to kill herself. McBroom returned to his trailer, went to a Kwik Shop, and then went on to a friend’s house where he drank three beers in 10 to 15 minutes. He later filled his car tank with gas and drove to his trailer.
Ferris, and two other men, were awakened at about 6:45 a.m. when someone pounded on their duplex door and yelled, “Fire” No one was injured because of the fire. Officer Soldán was called to the fire scene. According to Soldán, Ferris said he thought either Tina or McBroom had set the fire. Soldán drove to the gas stations between McBroom’s residence and the Ferris duplex to determine if gas had been sold to anyone in a car like McBroom’s. Soldán testified that the clerk at Wen’s One informed him that a car like McBroom’s was driven by a black male with straight hair who purchased a dollar’s worth of gas and put it in the front seat of the car. When Soldán returned to McBroom’s residence he noticed that the radiator and the hood on McBroom’s car were warm.
Detective Gerald Shaft was assigned to investigate the arson. His first interview was with Tina. When Shaft saw McBroom the morning after the fire, he noticed that McBroom appeared to have black shoe polish in the left crease of his nose and on his hand, fingernails, and face (the left temple). During the initial questioning, McBroom said that he did not know anything about the fire. Shaft also asked about the shoe polish. McBroom responded that it was dirt or grease. McBroom consented to a search of his car. A black Kiwi shoe polish bottle cap was discovered during the search. The fire inspector’s gas sniffer test of McBroom’s person registered positive.
Detective Shaft interviewed Tina’s roommate, Teresa Wilson. Shaft again spoke with McBroom and advised him of his rights. McBroom responded that he was willing to talk to the detective. Shaft advised McBroom of the evidence collected and of the information obtained from prior interviews. Shaft testified that McBroom then related what had occurred, including a description of the events that led to setting the duplex fire as well as the manner in which he had committed the arson. After the interview, Shaft took a written statement which McBroom read and signed.
Before trial, McBroom filed a motion to suppress his confession. At the supression hearing Shaft testified that he had made no threats or promises to McBroom. Shaft also denied telling McBroom that Tina would be arrested. McBroom testified that Detective Shaft concluded the interview with him by stating: “[S]ince I wasn’t going to admit to it, then I could leave but he was keeping Tina there. ... I started to go out and then he said he was going to arrest Tina for it.” McBroom said at that point he told Shaft that he had set the fire. On cross-examination, McBroom claimed that he lied in the statement to prevent his wife from being arrested.
The Suppression Hearing
At the suppression hearing, .counsel advanced the argument that McBroom’s background and seventh grade education should be considered. Counsel noted that the evidence indicated Tina had threatened her ex-husband and that McBroom, in attempting to protect his wife from prosecution, had made an incorrect statement. According to McBroom’s reasoning, the final straw was the threat to arrest either one of them, and finally the threat to arrest Tina; consequently, the statement was coerced.
The State responded:
“[Prosecutor:] Your Honor, I don’t think the defendant here claimed today he didn’t understand. All his story today is he’s asking you to suppress because he made a statement to protect his wife. He said he was not coerced or threatened in any manner by the police department and he just made a false statement to protect his wife and I don’t think that’s sufficient grounds for a suppression.”
The trial court, in admitting the confession, observed there was no threat or promise made or initiated by the detective which would render McBroom’s statement involuntary. McBroom had steadfastly maintained his innocence in the first interview and, when confronted with the evidence, changed his story. The trial court reasoned that if McBroom wanted to suggest to a jury that he lied to the police officers to protect his wife, then credibility of his statement, rather than the voluntariness, is the issue. The trial court stated that McBroom apparently thought he was smart enough to concoct this story but “it’s certainly not a ground to suppress the statement.”
Defense counsel renewed his objection to the admission of the confession at trial. According to McBroom’s trial testimony, he confessed to the crime during what he identified as a third interview because Detective Shaft told him the following: “[H]e was going to arrest my wife since I wasn’t going to confess to it.” During a second direct examination at trial, Shaft denied that he either threatened McBroom before the statement was made or told McBroom to confess or his wife would be arrested.
An Instruction on Attempted Second-Degree Murder
The State, not McBroom, requested that the jury be instructed on attempted second-degree murder as well as attempted first-degree murder. The trial judge refused to give the instruction.
McBroom argues that a trial court is required by statute to instruct the jury regarding all lesser crimes of which an accused might be found guilty even though such instruction has not been requested. He alleges that the trial judge should have instructed the jury on attempted second-degree murder because the crime of second-degree murder is a lesser included crime of first-degree murder, citing State v. Seelke, 221 Kan. 672, 675, 561 P.2d 869 (1977).
McBroom asserts that the trial court’s determination that “no prior deliberation [was] alleged by the defendant” meant that the State’s ability to prove premeditation was weakened and that “[t]he trial court’s failure to instruct the jury on second-degree murder amounted to a finding as a matter of law that premeditation existed.” Consequently, McBroom believes the determination of premeditation should have been left to the jury. According to McBroom, evidence was presented at trial from which a lack of premeditation could reasonably have been inferred. McBroom emphasizes there were three separate occasions, beginning at 12:00 a.m. on the date of the attempted murder, in which McBroom, his wife, and her ex-husband had been in heated arguments. McBroom was upset and angry after the third incident. Further testimony was offered that Tina implored him to do something about her ex-husband or she was going to kill herself.
The State responds by observing that at trial McBroom denied setting the fife and implied that his wife Tina was the guilty party.
K.S.A. 21-3107(3) establishes the trial court’s duty concerning instructions for lesser crimes. The trial court has a duty to instruct on all lesser offenses established by substantial evidence, however weak, unsatisfactory, or inconclusive the evidence may appear to the court. To refuse to so instruct the jury invades the jury’s province in the trial of a case. The question is not whether, in the mind of the court, the evidence as a whole excludes the idea that the defendant is guilty of a lesser degree of the offense charged, but whether there is any substantial evidence tending to prove a lesser degree of the offense. If there is, then the question of such degree should be submitted to the jury. The unsupported testimony of the defendant alone, if tending to establish such lesser degree, is sufficient to require the court to so instruct. State v. Deavers, 252 Kan. 149, Syl. ¶ 1, 843 P.2d 695 (1992). The duty to instruct exists even though the instructions have not been requested. K.S.A. 21-3107(3).
We have identified attempted second-degree murder as a lesser degree of attempted first-degree murder. State v. Dixon, 252 Kan. 39, Syl. ¶ 2, 843 P.2d 182 (1992). The duty to instruct on a lesser included offense arises only where there is evidence upon which the accused might reasonably be convicted of the lesser offense. Because reasonableness is an element of this test, there is some weighing of the evidence which occurs. A finding of sufficient evidence tending to show the lesser degree of the crime triggers the duty. The weighing of evidence, however, is not a retrial of the case. 252 Kan. at 43.
McBroom denied committing the arson. The steps taken by McBroom, i.e., using black shoe polish as camouflage, purchasing gasoline, dousing the wall with gasoline, preparing the bottle and wick, and lighting the fire, appear to be classic examples of premeditation. There was no substantive evidence to support a conviction of attempted second-degree murder. In the case at bar, the trial judge’s analysis emphasized impossibility in refusing to instruct on attempted second-degree murder. The trial court did not err in failing to give such an instruction.
McBroom’s Confession
McBroom reasons that a variety of facts can support a determination that his confession was involuntary. He notes that this court has stated that the voluntariness of a confession is determined based on the totality of the circumstances surrounding the confession. State v. Zuniga, 237 Kan. 788, 792, 703 P.2d 805 (1985). If the accused was deprived of his or her free will, the statement should be considered involuntary. State v. Prince, 227 Kan. 137, 144, 605 P.2d 563 (1980).
McBroom relies on Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964) (coercion during an interrogation can be mental as well as physical). According to McBroom, the threat to arrest'Tina constituted mental coercion. He observes that while the duration of the interrogation was not excessive, the detective’s use of threats to arrest Tina “tainted the manner of the interrogation to such a degree that it rendered the resulting confession involuntary.”
The State reasons that Detective Shaft testified that no threats or promises were made to McBroom. Also, McBroom was advised of and stated that he understood his Miranda rights. McBroom admitted that “Detective Shaft did not promise to not arrest Tina if he confessed.”
In State v. Zimmerman, 251 Kan. 54, Syl. ¶ 8, 833 P.2d 925 (1992), we explained the analysis that is to be used when evaluating the voluntariness of a confession. We emphasized: (1) the duration and manner of interrogation; (2) the accused’s ability upon request to communicate with the outside world; (3) the accused’s age, intellect, and background; and (4) the fairness of the officers in conducting the interrogation.
McBroom contends that because of his low level of education he was uniquely susceptible to coercion. We have rejected a similar claim. State v. Watkins, 219 Kan. 81, 98, 547 P.2d 810 (1976) (A low education level does not create a per se involuntary confession. The voluntariness of the statements was reflected in the record and defendant was fully aware of his rights.).
McBroom indicated both at the pretrial hearing and at trial that he had been advised of his rights prior to giving his confession and that he had understood them. McBroom also had read and signed a written statement. When the totality of circumstances surrounding the confession is considered, there was substantial competent evidence in support of the trial court’s determination that voluntariness was not an issue.
McBroom alleges that his confession was the involuntary result of a supposed threat to arrest his wife. Detective Shaft denies making the alleged threat. The alleged threat, according to McBroom, did not carry with it any direct promise regarding Tina. Any promise perceived by McBroom regarding his wife is collateral. Additionally, a promise of a collateral benefit is more stringently evaluated. State v. Kanive, 221 Kan. 34, 37-38, 558 P.2d 1075 (1976). The trial court considered the testimony of Shaft and McBroom and found the confession to be voluntary and admissible. The trial judge was in the best position to assess witness credibility. His judgment was supported by substantial competent evidence.
Affirmed. | [
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In September 1992, a complaint was filed with the Office of the Disciplinary Administrator against Mark C. Kuhls, of Kansas City, Missouri, an attorney admitted to practice law in the State of Kansas, asserting that he converted to his own use fees received on behalf of the firm in which he was an associate. Subsequently, respondent admitted to converting funds, in excess of $6,000, to his own use.
On December 23, 1992, following an investigation by the Office of the Disciplinary Administrator, respondent advised the court that he desired to surrender his license and -privilege to practice law in the State of Kansas, pursuant to Supreme Court Rule 217 (1992 Kan. Ct. R. Annot. 175). Respondent also submitted an Application for Voluntary Surrender of License to the Supreme Court of Missouri.
. This court, having reviewed the record of the Office of the Disciplinary Administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred.
It Is Therefore Ordered that Mark C. Kuhls be and he is hereby disbarred from the practice of law in the State of Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Mark C. Kuhls from the roll of attorneys licensed to practice law in the State of Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein be assessed to the respondent, and that respondent forthwith shall comply with Supreme Court Rule 218 (1992 Kan. Ct. R. Annot. 176). | [
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The opinion of the court was delivered by
McFarland, J.:
This is a consolidated appeal by the prosecution pursuant to K.S.A. 22-3602(b)(l) from orders dismissing four informations charging unlawfully arranging sales or purchases of controlled substances using a communication facility (K.S.A. 65-4141). The district court dismissed the informations on two grounds:
1. The counts as charged in the informations lacked sufficient specificity to adequately advise each respective defendant of the criminal act with which he or she was charged; and
2. Successful prosecution for any violation of K.S.A. 65-4141 requires proof of the actual commission of the underlying drug felony, it being agreed such proof is absent herein.
K.S.A. 65-4141 provides:
“(a) Except as authorized by the uniform controlled substance act, it shall be unlawful for any person knowingly or intentionally to use any communication facility in conspiring or soliciting, as defined in article 33 of chapter 21 of the Kansas Statutes Annotated, or facilitating any felony violation of K.S.A. 65-4127a and 65-4127b and amendments thereto. Each separate use of a communication facility may be charged as a separate offense under this subsection.
“(b) As used in this section, ‘communication facility’ means any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures or sounds of all kinds and includes telephone, wire, radio, computer, computer networks, beepers, pagers and all other means of communication.
“(c) Any person who violates this section shall be guilty of a class D felony.”
A total of 16 counts of alleged violations of K.S.A. 65-4141 are spread over the four informations. Each count is identical in form except for the date of the crime and the name of the defendant. The format utilized is illustrated by Count I of State v. Garrison as follows:
“On or about October 26, 1990, in Finney County, Kansas, Susan K. Garrison, did knowingly, intentionally, unlawfully and feloniously use a communication facility, to-wit: a telephone, to conspire or solicit (as defined by K.S.A. 21-3302 and 21-3303) or to facilitate any felony violation of K.S.A. 65-4127a and 65-4127b and amendments thereto, to-wit: cocaine and/or methamphetamine, contrary to the form of the statutes made and provided and against the peace and dignity of the State of Kansas.”
All four informations were filed as a result of a wiretap of Susan Garrison’s residence telephone in Garden City. The dismissal of a complaint against a fifth defendant was determined adversely to the prosecution in State v. [Paul D.] Hill, 252 Kan. 637, 847 P.2d 1267 (1993). Some of the transcripts of the recorded conversations giving rise to the various counts had been provided to us. No tapes have been included in the record. The following list sets forth the dates of each alleged offense (all in 1990) and the conversation number upon which each charge is based (where discernible from the record):
SUSAN K. GARRISON
Count 1 — October 26 No. 6
Count 2 — November 2
Count 3 — November 2
Count 4 — November 3
Count 5 — November 5
Count 6 — November 5
Count 7 — November 9
DOUG HAPES
Count 1 — October 29 Nos. 87 and 90
Count 2 — November 5 No. 256
TAMES HILL
Count 1 — October 29 No. 90
Count 2 — November 2
Count 3 — November 2
Count 4 — November 3
Count 5 — November 5*
Count 6 — November 5*
* One of these two counts apparently arises from conversation No. 256, but there is nothing in the record to indicate which one.
DEANNE GRAHAM
Count 1 — October 26 No. 6
The record reflects much discussion over the fact the recordings involved were of such low quality. The few transcripts furnished to us show many “inaudibles” reflecting nondecipherable portions of the conversations. Further, new versions of the transcripts have been produced by the State at various times reflecting new interpretations of what was said. Additionally, we have affidavits from Special Agent Jeffery Brandau giving his interpretation of drug jargon he believed was being used in some of the conversations and, applying same, what he believed the conversations concerned.
As shown by the foregoing, the record is in considerable disarray and confusion as to the factual background underlying most of the charges herein. However, within the confines of the issues presented, we are, fortunately, not called upon to determine the sufficiency of the evidence supporting each count. We are presented herein with questions of law concerning the legal sufficiency of the informations and whether a conviction under K.S.A. 65-4141 requires proof of the commission of a statutorily defined underlying drug-related felony.
We turn now to the first issue.
SUFFICIENCY OF THE INFORMATION
K.S.A. 22-3201(2) provides, in pertinent part:
“The complaint, information or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged, which complaint, information or indictment, drawn in the language of the statute, shall be deemed sufficient. The precise time of the commission of an offense need not be stated in the indictment or information; but it is sufficient if shown to have been within the statute of limitations, except where the time is an indispensable ingredient in the offense.”
Most issues arising out of K.S.A. 22-3201(2) involve claims that an element of the offense has been omitted, and, thus, no crime has been charged. The rules relative thereto were stated in State v. Smith, 245 Kan. 381, 781 P.2d 666 (1989), as follows:
“In a felony action, the indictment or information is the jurisdictional instrument upon which the accused stands trial.” Syl. ¶ 10.
“A conviction based upon an information which does not sufficiently charge the offense for which the accused is convicted is void. Failure of an information to sufficiently state an offense is a fundamental defect which can be raised at any time, even on appeal.” Syl. ¶ 11.
“If the facts alleged in an information do not constitute an offense within the terms and meaning of the statute upon which it is based, the information is fatally defective. The evidence introduced at trial to show commission of the crime sought to have been charged, and the jury instruction thereon, have no bearing on this question.” Syl. ¶ 12.
“In Kansas all crimes are statutory and the elements necessary to constitute a crime must be gathered wholly from the statute.” Syl. ¶ 13.
“An information which omits one or more of the essential elements of the crimes it attempts to charge is jurisdictionally and fatally defective, and convictions for those offenses must be reversed.” Syl. ¶ 14.
In State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), we modified our prior holdings relative to defective informations, including State v. Smith, in situations where the defect is asserted for the first time on appeal. Reversal of the conviction is no longer automatic but subject to the rules set forth in Hall which are not relevant to the issues herein as the informations before us were challenged, held defective, and dismissed by the district court prior to adjudication.
The claim herein is, in essence, that the charge is so broad that it covers too many possible criminal activities. As noted by the district court, K.S.A. 65-4141 may be violated by conspiring, soliciting, or facilitating. Each count herein charges all three means of commission. The alleged controlled substance is “cocaine and/or methamphetamine.” The title placed on the crime set forth in K.S.A. 65-4141 involves “arranging sales or purchases of controlled substances.” The definition of the crime is much broader. K.S.A. 65-4127a, to which the statute refers, makes it a felony to possess, have under such person’s control, possess with intent to sell, offer for sale, sell, prescribe, administer, deliver, dispense, or compound these drugs. The phrasing of each count is, accordingly, a shotgun approach covering all three means of commission and all possible felony acts of possession, sale, compounding, etc., involving either cocaine and/or methamphetamine. In essence, each count charges the defendant did conspire to commit (as defined by K.S.A. 21-3302), solicit (as defined by K.S.A. 21-3303), or facilitate some felonious activity involving cocaine and/or methamphetamine on the date specified and through the use of a telephone.
The sufficiency of an indictment or information is to be measured by whether it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet, and by whether it is specific enough to make a plea of double jeopardy possible. State v. Michaux, 242 Kan. 192, Syl. ¶ 1, 747 P.2d 784 (1987).
In State v. Snyder, 10 Kan. App. 2d 450, 457-58, 701 P.2d 969 (1985), the Court of Appeals stated:
“The purpose of the information in a criminal case is to advise the accused and the court of the charges alleged to have been committed and the essential facts constituting the crime charged. State v. Carpenter, 228 Kan. 115, 612 P.2d 163 (1980). In a felony action, the information is the jurisdictional instrument upon which the accused stands trial. An information must be stated with enough clarity and detail to inform a defendant of the criminal act with which he is charged. City of Altamont v. Finkle, 224 Kan. 221, 579 P.2d 712 (1978). The failure to so inform the defendant denies the defendant procedural due process and violates his right to be informed of the charges against him. K.S.A. 22-3205; Kansas Const. Bill of Rights, § 10; U.S. Const., 6th Amend.; State v. Daniels, 223 Kan. 266, 573 P.2d 607 (1977).”
We agree therewith.
The State argues on appeal that any problems concerning lack of specificity could be corrected by amendment or the furnishing of a bill of particulars in each of the cases. Such position is a departure from that expressed to the district court. The defendants, through their motions to dismiss, sought narrowing of the charges so they would be informed of exactly what they would be required to defend against. Bills of particulars were requested. The State opposed said requests and forced the court to decide on the validity of the information as written. The State’s position before the district court is reflected in the following excerpts from the hearing in the Garrison case:
Ms. Jack (assistant attorney general): “I’d submit to the Court that just because it’s written that way, and while it may be difficult to defend, that doesn’t require me to elect or to furnish a bill of particulars. And I’m not sure exactly what counsel is asking for when he says a bill of particulars, if he wants a specific time and date or if he wants me to say exactly what it is we’re relying on, either conspiracy or a solicitation or a facilitation. And, quite frankly, I don’t think I’m required to do that.
“Quite frankly, it’s a crime to use a telephone to facilitate, to conspire, to solicit in any felony drug transaction. That’s a crime. And while it might be difficult to defend, that doesn’t mean that I’m required to elect.
“As Mr. Lindner [defense attorney] pointed out, in the Information the purpose is to alert the defendant as to what the charges are, and she’s definitely been alerted. She’s been informed. And there is nothing in his motion to indicate, except for the fact that it would be difficult to defend, any specific reasons why I would be required to elect or to provide him with a bill of particulars.”
The issue before us is whether the district court erred in dismissing the informations. The district court could not order the amendment of the information unless requested to do so by the State. The State was satisfied with the informations and elected to stand or fall on the sufficiency of the informations as written. On appeal, the State evinces a willingness to amend, but that is irrelevant herein.
We conclude that the district court correctly held that the informations herein were fatally flawed as they lacked sufficient specificity to inform the respective defendants of the charges he or she must defend against and thus denied procedural due process as guaranteed by K.S.A. 1992 Supp. 22-3205; the Kansas Constitution Bill of Rights, § 10; and the United States Constitution, 6th Amendment.
NECESSITY OF PROVING COMMISSION OF UNDERLYING FELONY
As a second ground for dismissing the informations herein, the district court held that prosecutions under any of the three means of violations of K.S.A. 65-4141 (conspiracy, solicitation, or facilitation) require proof of the actual commission of the underlying drug felony. It is uneontroverted such proof is absent herein. This issue as it relates to conspiracy and facilitation was determined in the companion appeal, State v. Hill, 252 Kan. 637. We held that conspiracy, being an inchoate crime, does not require proof of the actual commission of the underlying felony, but merely commission of an overt apt in furtherance of the object of the conspiracy. We further held that a charge of “facilitation” under K.S.A. 65-4141 requires proof of the actual commission of the underlying felony.
In Hill we stated:
“Facilitation is not in this category. One cannot facilitate the commission of a crime which never occurs within the context of K.S.A. 65-4141. We conclude that the district court correctly held that in a prosecution under K.S.A. 65-4141 charging a defendant with having used a communication facility to facilitate a felony violation of K.S.A. 65-4127a and 65-4127b, the State is required to prove the commission of the underlying felony violation. Dismissal of the information, accordingly, was not erroneous.” 252 Kan. at 645.
Solicitation is another inchoate or anticipatory crime. Thus, proof of the actual commission of the underlying crime is unnecessary. K.S.A. 21-3302 defining conspiracy requires proof of the commission of the overt act in furtherance thereof.
K.S.A. 21-3303 defines solicitation as follows:
“(a) Criminal solicitation is commanding, encouraging or requesting another person to commit a felony, attempt to commit a felony or aid and abet in the commission or attempted commission of a felony for the purpose of promoting or facilitating the felony.
“(b) It is immaterial under subsection (a) that the actor fails to communicate with the person solicited to commit a felony if the person’s conduct was designed to effect a communication.
“(c) It is an affirmative defense that the actor, after soliciting another person to commit a felony, persuaded that person not to do so or otherwise prevented the commission of the felony, under circumstances manifesting a complete and voluntary renunciation of the actor’s criminal purposes.
“(d) Criminal solicitation of a class A or B felony is a class D felony. Criminal solicitation of a felony other than a class A or B felony is a class E felony.”
Thus, commission of an overt act need not be proven to establish solicitation.
CONCLUSION
The district court did not err in dismissing the informations herein on the ground that they lacked sufficient specificity to inform the respective defendants of the charges he or she must defend against. Further, the district court did not err in holding that a prosecution under K.S.A. 65-4141 based upon facilitation requires proof of the actual commission of the underlying felony. The district court did err, however, in concluding proof of the actual commission of the underlying felony is required in a prosecution under K.S.A. 65-4141 based upon conspiracy or solicitation.
The judgments are affirmed in part and reversed in part. | [
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The opinion of the court was delivered by
Herd, J.:
Craig Ryan Shelton appealed from his convictions of aggravated battery against a law enforcement officer, K.S.A. 21-3415, a class B felony, and aggravated escape from custody, K.S.A. 21-3810, a class E felony. In an unpublished opinion, the Court of Appeals found the trial court lacked jurisdiction to try Shelton as an adult and reversed and remanded the case. We granted the State’s petition for review. We reverse the Court of Appeals, affirm the district court, and remand the case to the Court of Appeals for further proceedings.
The factual background for this case follows. In early December 1990, Shelton, then 17 years of age, was one of three residents at the Saline County Juvenile Detention Center (Center). Shelton was being held at the Center while he awaited sentencing in Case No. 90CRM1038 where he had pled guilty to one count of burglary, K.S.A. 1991 Supp. 21-3715(1), a class D felony; one count of theft, K.S.A. 21-3701, a class E felony; and one count of misdemeanor theft.
At approximately 7:00 p.m. on December 8, 1990, the sheriff’s office received word there was an emergency at the Center. Several officers were dispatched to the Center. Upon entering the building, the officers discovered the uniformed officer in charge had been sprayed with a fire extinguisher, hit on the head, handcuffed, and locked in a bedroom by two of the juveniles living in the Center. A part-time deputy and another juvenile resident were locked in another bedroom. Shelton ran out of the building when the officers arrived, but was soon apprehended.
Shelton was tried by a jury and found guilty of aggravated battery against a law enforcement officer and aggravated escape from custody. Following the trial, Shelton moved for arrest of judgment, judgment of acquittal, and new trial. In his motion for arrest of judgment, Shelton argued the trial court was without jurisdiction because the State had failed to present evidence at trial establishing he was subject to the criminal code rather than the juvenile offenders code.
The trial court took up all three of these motions at the same hearing. First, the trial court heard arguments on the motion for arrest of judgment. During those arguments, the prosecutor stated: “We specified in the complaint/information that the person is before the District Court pursuant to having been previously adjudicated a juvenile offender on two prior occasions and being past the age of 16.” Based in part upon this statement, the trial court denied the motion.
The trial court also heard arguments on the motions for judgment of acquittal and for new trial. Both were denied. At the same hearing, the trial court proceeded to sentence Shelton.
First, Shelton’s attorney was allowed to address the court. He stated in part:
“Yes, sir. Thank you, Your Honor. The court has before it an eighteen year old young man, Craig Shelton, who was in the custody of the Saline County Sheriff at the time of this offense for sentencing in this court last December.
“The court is familiar with the background and prior record of this defendant from the sentencing in December and I won’t elaborate on those facts, as I am sure the court is familiar with them.”
After hearing from Shelton’s attorney and the State, the court addressed Shelton. The court stated in part:
“Now, in approaching this important responsibility, Mr. Shelton, I have again reviewed the presentence investigation report relating to your earlier convictions where you pleaded guilty to one count of felony theft and one count of burglary and one count of misdemeanor theft in connection with a co-defendant, Todd Einfeldt. You’re aware of these circumstances, of course.
“Your prior record consists of a number of juvenile activities, such as forgery, burglary and theft, violation of probation, run away. You are accused of perjury and intimidation of a witness, aggravated battery, charges pending against you in McPherson at the time of your earlier sentencing for two counts of burglary, one count of misdemeanor theft and one count of attempted burglary, one count of possession of burglary tools, three counts of misdemeanor criminal damage to property, two counts of misdemeanor theft. This court, of course, has an obligation to consider the record in its entirety and that’s what the record says about you. And I’m not talking about the present case, I’m speaking of your past record, of which you are acutely aware.
“The earlier report mentions your being sent to the Atchison Youth Center in 1986 due to criminal activity. After facing criminal charges, you were ordered to return to the Youth Center of Topeka, but absconded before doing so. The earlier report mentioned both Marion and McPherson Counties charging you as an adult. And at that time, the Saline County Attorney had already indicated that charges of aggravated escape from custody and aggravated assault on a law enforcement officer would be pursued against you. . . .
“The summary section of that earlier case mentions that your conduct had become symptomatic of a pattern of behavior. That you were only seventeen years old and yet appearing before the court as an adult, with pending charges in Marion and McPherson Counties as an adult. . . . '
“The prior record section of the report relating to this current case refers back to the earlier report, which I’ve already quoted and mentions your having been sentenced to one to five years imprisonment on the felony counts in that case. And six months confinement in the County Jail on the misdemeanor case. All sentences being ordered to run concurrently.
“It mentions the charges pending in Marion County, aggravated intimidation of a witness and battery. And charges still pending in McPherson County.”
The trial court sentenced Shelton to 10 to 20 years on the aggravated battery charge and 1 to 5 years on the aggravated escape charge, with the sentences to run concurrently. The sentence in this case is to run consecutively to the sentence Shelton had previously received in Case No. 90CRM1038.
Shelton took a direct appeal to the Court of Appeals. The Court of Appeals held the trial court lacked jurisdiction to try Shelton as an adult. It stated in part:
“The record is silent as to whether Shelton had previously been ‘adjudicated in two separate prior juvenile proceedings as having committed an act which would constitute a felony if committed by an adult.’ K.S.A. 1991 Supp. 38-1602(b)(3). He was convicted of two felonies in a prior proceeding but the record does not demonstrate a second separate proceeding to exclude him from juvenile offender status. Moreover, there is no indication in the record that the court took judicial notice of any prior proceedings. It is not the function of this court to scrape together jurisdictional elements. The State failed to make the necessary showing on the record to support the exercise of jurisdiction over Shelton as an adult.
“Reversed and remanded with instructions to vacate the sentences.”
We granted the State’s petition for review on the sole issue of whether the trial court had jurisdiction to try Shelton as an adult. The rules governing whether a juvenile is subject to the juvenile offenders code are found in K.S.A. 1991 Supp. 38-1602, which provides in pertinent part:
“(a) ‘Juvenile’ means a person 10 or more years of age but less than 18 years of age.
“(b) ‘Juvenile offender’ means a person who does an act while a juvenile which if done by an adult would constitute the commission of a felony or misdemeanor as defined by K.S.A. 21-3105 and amendments thereto or who violates the provisions of K.S.A. 41-727 or subsection (j) of K.S.A. 1989 Supp. 74-8810, and amendments thereto, but does not include:
(3) a person 16 years of age or over who is charged with a felony or with more than one offense of which one or more is a felony after having been adjudicated in two separate prior juvenile proceedings as having committed an act which would constitute a felony if committed by an adult and the adjudications occurred prior to the date of the commission of the new act charged;
(4) a person who has been prosecuted, as an adult by reason of subsection (b)(3) and whose prosecution results in conviction of a crime.” (Emphasis added.)
In State v. Lowe, 238 Kan. 755, 757-58, 715 P.2d 404 (1986), overruled on other grounds Lowe v. State, 242 Kan. 64, 744 P.2d 856 (1987), we acknowledged that “[n]o procedure is contained in the juvenile offenders code for making any jurisdictional showing under the exceptions found in K.S.A. 1985 Supp. 38-1602(b)(l) thru (6).” In that case, the defendant was 17 at the time the criminal acts were committed. He had previously been adjudicated in two separate actions as having committed acts which would have been felonies if he had been an adult. The State argued the defendant was not a juvenile offender pursuant to 38-1602(b)(3) and that the trial court had proper jurisdiction to try him as an adult.
In Lowe, the State took the following steps to show the district court had jurisdiction:
“At the time of the filing of the original complaint, the State attached an affidavit setting forth the necessary allegations to show probable cause for the issuance of a warrant and, in addition, included statements as to the two prior juvenile offender adjudications and attached copies of the journal entries of adjudication in those proceedings.” 238 Kan. at 758.
In addition, the district court took judicial notice of its own records. The State’s affidavit and the journal entries were not made a part of the record on appeal. We, however, upheld the trial court’s jurisdiction over the defendant, stating:
“We think it is clear that the court proceeded properly in this case and there was nothing further required of the State to show the jurisdiction of the court. The procedure of the State, while not necessarily exclusive, of incorporating the proper jurisdictional allegations in an affidavit supported by proof of the prior adjudications was sufficient.” 238 Kan. at 758-59.
In its petition for review, the State argues Shelton was not subject to the juvenile offenders code because he is excluded under K.S.A. 1991 Supp. 38-1602(b)(3) and K.S.A. 1991 Supp. 38-1602(b)(4). In his appeal, Shelton does not claim there is no basis for trying him as an adult; instead, he argues the State failed to show there was jurisdiction on the record.
At the hearing on Shelton’s motion for arrest of judgment the prosecutor was incorrect when she stated the State had specified in the complaint/information that Shelton was before the district court pursuant to having been previously adjudicated a juvenile offender on two prior occasions and being past the age of 16. No mention is made in the complaint/information or the amended complaint/information of the fact Shelton was a juvenile at the time of the crimes alleged against him or that he had previously been adjudicated as a juvenile offender on two prior occasions for felonies. However, the State introduced a journal entry showing Shelton’s guilty pleas in Case No. 90CRM1038 to felony theft, burglary, and misdemeanor theft as an exhibit at trial in this case to prove an element of the aggravated escape from custody charge.
At the time Shelton committed the crimes charged in the case at bar, he was awaiting sentencing in Case No. 90CRM1038. The same district court judge, Gene B. Penland, presided over the proceedings of Case No. 90CRM1038 and the case currently under consideration, 90CRM1352. The presentence investigation (PSI) report prepared for Case No. 90CRM1038 included Shelton’s prior record. Among other convictions, that PSI report reveals Shelton was convicted of the following: (1) in 1986, forgery, K.S.A. 21-3710, a class E felony; (2) in 1987, burglary, K.S.A. 21-3715, a class D felony; and (3) in 1989, perjury, K.S.A. 21-3805, a class D or E felony depending upon the circumstances. In addition, Case No. 90CRM1038 involved Shelton’s conviction of two more felonies. Moreover, the case number of 90CRM1038 reveals Shelton was charged as an adult because juvenile cases in Saline County are assigned a CRJ number. From this information it is apparent Shelton was not subject to the juvenile offenders code because he was excluded under K.S.A. 1991 Supp. 38-1602(b)(3) due to his prior juvenile adjudications. Shelton was also excluded under K.S.A. 1991 Supp. 38-1602(b)(4) due to his conviction as an adult in Case No. 90CRM1038. Thus, it is the juvenile court that lacks jurisdiction, not the district court.
The record on appeal includes the PSI reports from the case under consideration and from Case No. 90CRM1038 in addition to the journal entry admitted as an exhibit. It is clear the trial court was amply apprised of Shelton’s juvenile adjudications.
Shelton argues the State failed to prove through substantial evidence, on the record, that he was exempt from the juvenile offenders code. Essentially, he contends the State should have followed a procedure similar to that used by the State in State v. Lowe, 238 Kan. 755. The argument is without merit. Lowe says there is no specific procedure required to establish that a juvenile is not subject to the juvenile offenders code. Here, there was more than enough evidence on the record before the trial court to establish that Shelton was subject to the criminal code.
The judgment of the district court that Shelton was subject to the criminal code is affirmed, and the judgment of the Court of Appeals is reversed. The case is remanded to the Court of Appeals for consideration of the five issues originally raised by the defendant in his appeal to the Court of Appeals but not considered by the Court of Appeals based on its decision that the trial court had no jurisdiction. | [
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The opinion of the court was delivered by
Six, J.:
This is a plea agreement sentencing case. Stuart Fish, the defendant, received the sentence he bargained for. The single issue is whether the trial court erred in denying a motion for sentence modification.
Our jurisdiction is under K.S.A. 1992 Supp. 22-3601(b)(l) (defendant convicted of a class A felony or received a maximum sentence of life imprisonment).
The standard of review for trial court sentencing is abuse of discretion. A sentence imposed within the statutory guidelines will not be disturbed on appeal if it is within the trial court’s discretion and not a result of partiality, prejudice, oppression, or corrupt motive. State v. McDonald, 250 Kan. 73, 82, 824 P.2d 941 (1992).
We find no error and affirm.
Facts
Fish and another man ordered a pizza to be delivered to an empty house. They enticed the delivery man into the house, forced him into a back room, and stabbed him in the chest (the other man allegedly did the stabbing). Afterwards, Fish took the victim to the basement, told him that he would be killed if he failed to cooperate, tied him up, forcefully took his money, and left him in the basement.
Fish entered into a plea agreement with the State. The trial court ordered a presentence investigation (PSI) report. The State, in return for Fish’s guilty plea, agreed to recommend a controlling sentence of life. The State’s specific sentencing recommendations were contained in a letter to Fish.
Fish appeared before the trial court for sentencing. The court read into the record the State’s recommendations. At sentencing, Fish’s counsel urged the court to sentence according to the plea bargain and to request a new Kansas State Reception and Diagnostic Center (now referenced as Topeka Correctional Facility) (SRDC) evaluation. The trial court accommodated both requests.
The recommendation of the PSI report was that Fish be placed within the penal system to serve the appropriate sentence. He was viewed as a potential danger to others and was not, at that time, motivated for substance abuse treatment.
The SRDC report recommended that Fish should receive mental health counseling and that he serve the appropriate sentence. Fish emphasizes other conclusions from the report i.e., a chronic substance abuse problem, a barely controllable temper, learning disabilities, no high school training, poor employment potential, and borderline retardation. The report did not contain a recommendation for sentence modification. Fish filed a motion for reduction of sentence, which was denied.
Sentence Modification
Did the trial court abuse its discretion in denying Fish’s motion? We think not.
Fish asserts that although his counsel urged the court to follow the sentencing recommendations in the plea agreement, which the court did, Fish did not waive his right to challenge the trial court’s refusal to modify the sentence. He concedes that State v. Crawford, 250 Kan. 174, 177, 824 P.2d 951 (1992), controls any claim of abuse of discretion he might have in the original sentence imposed. In Crawford, we held that when a defendant enters into a plea agreement and urges the trial court to impose recommended sentences and the trial court does so, the defendant is deemed to have waived any consideration or application of the sentencing factors of K.S.A. 21-4601 and K.S.A. 21-4606. However, Fish argues that Crawford should not apply to his motion to modify because the trial court received new information in the SRDC evaluation. According to Fish, the trial court abused its discretion in failing to modify the sentence to the minimum.
The State asserts Fish’s argument represents a thinly veiled attempt to avoid Crawford. The State emphasizes that the sentences imposed were the ones Fish requested in a voluntary plea agreement. The court specifically asked Fish if he understood the agreement he had signed. Fish answered affirmatively. According to the State, Fish was well aware of the sentences being recommended. At no time, did Fish object to any of the recommended sentences.
The State advocates the concept of fairness by observing that it is bound by the plea agreement on a motion to modify absent an indication that the agreement applies only at sentencing. State v. Wills, 244 Kan. 62, 69-70, 765 P.2d 1114 (1988). Accordingly, Fish should also be so bound because any other view would undermine the rationale of Crawford. We do not agree with the State’s analysis of Wills. Wills involved an ambiguous plea agreement. We strictly construed the agreement in favor of Wills. We held that the State’s promise to Wills, to make favorable sentence recommendations, bound the State on the later motion to modify. 244 Kan. at 69-70.
Fish’s SRDC report did not make a recommendation for modification. Fish has failed to demonstrate abuse of discretion. The State details facts which argue against sentence modification, including Fish’s failure to accept responsibility for his actions which shows his lack of remorse. The SRDC report indicates that Fish is barely able to control his temper and has patterned his behavior after an extremely violent alcoholic, heroin-addicted stepfather. During his time in prison, Fish has aligned himself with angry, violent, substance-abusing males. The report concludes that Fish should serve an appropriate sentence based on his prior criminal history, the seriousness of the offense, and programmatic needs.
K.S.A. 1992 Supp. 21-4603(4) requires the trial court to modify a sentence upon the recommendation of the SRDC unless the court finds and sets forth with particularity the reasons for finding that the safety of members of the public will be. jeopardized or that the welfare of the inmate will not be served by such modification. Factual situations may arise in plea-bargained cases where a defendant has received the sentence bargained for and the SRDC report recommends modification of sentence or contains significant new information not previously before the trial court. In such situations, K.S.A. 1992 Supp. 21-4603(4) shall apply.
Affirmed. | [
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Per Curiam:
This is an original proceeding relating to judicial conduct. The Commission on Judicial Qualifications found that respondent, District Magistrate Judge Don L. Alvord, had violated Canon 2 (1992 Kan. Ct. R. Annot. 347) and Canon 3 (1992 Kan. Ct. R. Annot. 348) of the Code of Judicial Conduct, Supreme Court Rule 601, and recommended that he be publicly censured. A majority of the court agrees. The Commission’s findings of fact and conclusions of law were unanimous; however, two members dissented from the recommendation of public censure. (The Commission is composed of two nonlawyers, three lawyers, and four active or retired judges. Rule 602 [1992 Kan. Ct. R. Annot. 361].. Two members voted for the sanction of a Rule 620 admonishment [1992 Kan. Ct. R. Annot. 369].) Admonishment is effected by the Commission and not by this court.
The findings of fact, conclusions of law, and recommendations of the Commission are as follows:
“The Commission concludes the following facts are established by clear and convincing evidence.
“1. Respondent is a district magistrate judge of the 20th Judicial District. Respondent’s duties include judicial duties at the Rice County Courthouse, Lyons, Kansas, and at the Barton County Courthouse, Great Bend, Kansas. At all times relevant hereto, Respondent served in such judicial capacity.
“2. Dara Mollenkamp is 21 years old. In September 1992, she began working as a clerk in the District Court Office in Barton County, Kansas. During the times relevant hereto, she was working part-time in the Office of the Clerk of the District Court in Barton County, Kansas, and also as needed in the Office of the Clerk of the District Court of Rice County, Kansas.
“3. Ms. Mollenkamp was introduced to Respondent several days before an incident that happened at K-Bob’s, a Great Bend restaurant where she also worked part-time in November 1991. On that occasion when she was not working, during a conversation between the two, Respondent suggested that the two of them might date. Ms. Mollenkamp inquired of Respondent how old he was and when he told her “39,” she told him he was old enough to be her father, so she did not think she could go out with him.
“4. Between that occasion and December 17, 1991, on several occasions, Ms. Mollenkamp indicated Respondent rubbed the back of her neck while she was working in the Clerk’s office. Respondent stated he thought he might have touched her shoulder or the back of her neck. Ms. Mollenkamp indicated to her supervisor that she didn’t approve of this touching, but she did not indicate her displeasure to Respondent.
"5. On December 17, 1991, after Ms. Mollenkamp was asked to work in the Rice County Courthouse, as she drove to work she received a traffic ticket in Great Bend, Kansas. On that same day, over the noon hour, she, a third party, and Respondent apparently went to lunch. At lunch there was some discussion between Respondent and Ms. Mollenkamp about her ticket, and the possibility of a diversion as an option to resolve the ticket situation. There was some general discussion between the two about the ticket.
“6. Later after returning from lunch, Respondent approached Ms. Mollenkamp who was standing at the water cooler at the Clerk’s office and informed her that he had talked to the City Attorney of Great Bend, Kansas, about the ticket and the latter was going to see what could be done about it. The essence of Respondent’s conversation with Ms. Mollenkamp informed her that he had contacted the City Attorney and that there would be some consideration of relief of some kind concerning the ticket’s issuance. As this part of the discussion ended, Respondent suggested to Ms. Mollenkamp that she not get another traffic ticket and he then patted Ms. Mollenkamp on her buttocks.
“7. Bob Suelter, Great Bend City Attorney, testified and presented unchallenged testimony concerning the following:
(a) On December 17, 1991, Respondent called Mr. Suelter, said he had a clerk working for him by the name of Dara Mollenkamp, who was charged with going 29 in a 20 m.p.h. school zone and wanted to know if Mr. Suelter could do anything about it. Mr. Suelter indicated he could call in the police officer and look at the ticket and see if there was anything that could be done. Mr. Suelter indicated he would get back to Respondent.
(b) Mr. Suelter then, again using notes in his file, testified that on January 6, 1992, Respondent inquired if Mr. Suelter had found out anything concerning the ticket. Mr. Suelter indicated that his office needed to get a letter to the officer to discuss the matter. Since the matter was on the appearance docket that day, Mr. Suelter caused a plea of not guilty to be entered for Ms. Mollenkamp. Ms. Mollenkamp never spoke with, corre sponded with, or hired- an attorney to visit with any prosecutor concerning this ticket.
“8. Ms. Mollenkamp did only two things concerning the ticket: first, have a conversation with Respondent concerning it; and second, finally at the appropriate time paid the ticket. On January 6, 1992, Respondent called Ms. Mollenkamp over the intercom and told her that he talked to the City Attorney, that they were going to enter a plea of not guilty since that was the appearance day. Ms. Mollenkamp had no knowledge about what happened after that time, she merely paid the ticket.
“9. After the touching incident on December 17, 1991, Ms. Mollenkamp said something to her supervisor, Carolyn Bums, the Clerk of the District Court. Ms. Mollenkamp told Ms. Bums that somebody needed to talk to the Judge about how he was treating her. Ms. Bums reported the incident to Fred Jamison, the District Court Administrator who then interviewed Ms. Mollenkamp, ultimately reducing her responses to his questions to a written form. An investigation followed, and then this proceeding. Ms. Mollenkamp’s statement; a second statement given under oath on January 15, 1992, to Jack Ford, investigator for the Office of the Judicial Administrator; and her testimony in this hearing were all consistent.
“CONCLUSIONS OF LAW
“Count I involves Respondent’s personal relationship with Dara Mollenkamp.
“Canon 2 of the Rules of the Supreme Court Relating to Judicial Conduct provides:
‘A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities.
‘A. A judge should . . . conduct himself at all times in a manner that promotes public confidence in the integrity ... of the judiciary.’
The commentary to that Canon states:
‘Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and the appearance of impropriety. He must expect to be the subject of constant public scrutiny.’
“Respondent’s pattern of conduct toward Ms. Mollenkamp, a 21-year-old clerk in the Office of the Clerk of the District Court, violates this Rule. In particular, the act of Respondent patting this young lady on the buttocks was irresponsible and/or improper and his conduct evidences a violation of this Canon. This evidence establishes the violation by clear and convincing evidence.
“Canon 3A(3) provides in part:
‘A Judge Should Perform the Duties of His Office Impartially and Diligently.
‘A. Adjudicative Responsibilities.
(3) A judge should be patient, dignified, and courteous to . . . others with whom he deals in his official capacity . . . .’
“The conduct identified in the Findings of Fact suggests that Respondent was not dignified and courteous in his treatment of Ms. Mollenkamp. Consequently, the conduct also evidences a violation of Canon 3 of the Rules of the Supreme Court Relating to Judicial Conduct.
“Count II alleges a violation concerning the conduct of Respondent in contacting the City of Attorney of Great Bend with respect to Ms. Mollenkamp’s ticket. Again, the evidence is clear and convincing. It is basically uncontroverted.
“Again, Canon 2 provides:
‘A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities.
‘A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary.
‘B. . . . he (a judge) should not lend the prestige of his office to advance the private interests of others . . . .’
“Respondent made an unsolicited phone call on behalf of Ms. Mollenkamp to a prosecutor asking if anything could be done about a ticket. In view of the prosecutors testimony and Respondent’s testimony that there was no attempt to use the Respondent’s official position to influence the outcome of the case, it is determined that there was no actual use of influence attempted by Respondent, and none was perceived by Mr. Suelter. However, a violation has still occurred. Respondent took it upon himself on two occasions to call the prosecutor on behalf of this young lady. He inquired of the prosecutor whether anything could be done about the ticket (meaning reducing the ticket or scheduled fine in some manner) and conveyed to Ms. Mollenkamp information that he had so contacted the prosecutor. This evidence is uncontradicted. Respondent violated the provisions of Canon 2 of the Rules of Judicial Conduct by these acts.
“MITIGATING FACTORS
“An impressive number of positive references were presented in support of Respondent. From the letter references and from the testimony introduced by character witnesses at the hearing, it is obvious that Respondent enjoys a good reputation among those with whom he must work while in the Courtroom. The witnesses and the letters that constitute Exhibit A attest to Respondent’s dignified and courteous treatment of attorneys, litigants, and witnesses in the Courtroom and the exemplary manner in which he conducts his court.
“RECOMMENDATION
“The Commission finds that Respondent has violated the Canons of Judicial Conduct as set out above. However, he was not advised that his conduct was offensive to Ms. Mollenkamp and did not actually attempt to use his official position to influence the outcome of the traffic case.
“The Commission recommends to the Supreme Court of the State of Kansas that Respondent Donald L. Alvord be disciplined for the violations set forth above by public censure.”
Respondent filed a response indicating acceptance of the findings of fact and conclusions of law. Having accepted the Commission’s findings of fact and conclusions of law, respondent cannot now challenge those findings and conclusions, and he does not attempt to do so. Respondent requested the opportunity to appear in person with counsel to “discuss the recommended discipline.” See Rule 623(d) (1992 Kan. Ct. R. Annot. 371).
Although respondent chose not to address the court, his counsel advanced arguments in support of admonishment. Counsel for the respondent asserts that (1) the findings of fact do not justify public censure, (2) Judge Alvord has suffered from the public airing of these proceedings as reported in the local press, and (3) the letters of support from members of the bar who have appeared before him are persuasive in support of private admonishment. We note that the Commission considered the letters in the portion of its order labeled “Mitigating Factors.”
We adopt the Commission’s findings of fact, conclusions of law, and recommendation of public censure.
More than 20 years ago, Dean Robert McKay wrote: “The ethical expectations of the public have risen even more rapidly than have the perceptions of the judges of what is now expected of them.” McKay, The Judiciary and Nonjudicial Activities, 35 Law & Contemp. Probs. 9 (1970).
More recent commentators have observed that “[w]omen in the courts in any capacity may find themselves subjected to inappropriate, overly familiar and demeaning forms of address; comments on their appearance, their clothing, and their bodies; sexist remarks and jokes; and unwelcome verbal and physical advances.” Shaman, Lubet, & Alfini, Judicial Conduct and Ethics § 2.09 (1990) (citing Women in The Law § 15.04 [1] [C.H. Lefcourt, ed. Release #2, July 1988]).
Perhaps the most significant concept in the Code of Judicial Conduct is the admonishment to avoid the appearance of impropriety. Perceptions may become reality. Heightened sensitivity to respectful relationships in the Kansas judicial workplace is mandatory.
We have previously imposed public censure on a judge for interjecting himself into traffic ticket negotiations. In re Miller, 223 Kan. 130, 572 P.2d 896 (1977). We acknowledge that.in Miller the judge’s request was that another judge dismiss the ticket, with a parting remark after learning that the request would not be successful: “Well, I guess that is one favor I don’t owe you.” 223 Kan. at 131. However, in the case at bar, respondent made an unsolicited phone call on December 17, 1991, on behalf of Ms. Mollenkamp to a prosecutor asking if anything could be done about a ticket. A second inquiry was made by respondent on January 6, 1992, to find out if the prosecutor had discovered anything concerning the ticket. Ms. Mollenkamp never spoke with, corresponded with, or hired an attorney to visit with any prosecutor concerning this ticket.
Respondent has violated Canons 2 and 3. His conduct was not compatible with the high standards of conduct imposed upon members of the judiciary.
It Is Therefore Ordered that respondent Don L. Alvord be and he is hereby publicly censured by this court, and he is directed to pay the costs of this proceeding.
Effective this 5th day of March, 1993. | [
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Per Curiam:
This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against Don W. Lill, of Emporia, an attorney duly admitted to the practice of law in Kansas. A hearing panel of the Kansas Board for Discipline of Attorneys unanimously found a violation of Model Rules of Professional Conduct 1.3 (1992 Kan. Ct. R. Annot. 248) and 1.15 (1992 Kan. Ct. R. Annot. 281) in that Lill failed to act with reasonable diligence and promptness in representing a client and also failed to hold his clients’ property separate from his own.
Russell and Vuanta Sterkel retained Lill to represent them in a Chapter 7 bankruptcy. On October 30, 1990, a hearing was held pursuant to 11 U.S.C. § 341 (1988) at which the bankruptcy trustee told Lill to send any tax refunds due and owing the Sterkels to her. On December 8, 1990, the trustee wrote to Lill requesting he provide her with copies of the 1990 state and federal tax returns and that he contact her if any refunds were due and owing the Sterkels.
In May 1991, the Sterkels provided a copy of their tax returns to Lill. He did not forward copies of these returns to the trustee. Later in the same month, the Sterkels brought their tax refund checks, unendorsed, to Lill’s office. Lill had the Sterkels return to his office and endorse the checks. Lill’s former secretary, Brenda Croy, put the checks in the clients’ file. Lill cashed the federal tax refund check, which amounted to $840.52. At the disciplinary hearing, Lill stated the money was kept locked in his desk drawer. The Disciplinary Administrator presented no evidence to indicate Lili converted these funds to his own use.
Croy hied the complaint in this case in July 1991. On August 1, 1991, Lili was provided with a copy of Croy’s letter of complaint.
On August 8, 1991, Lili wrote to the bankruptcy trustee informing her of the amount of the refunds and requesting instructions on how to proceed in the bankruptcy action. On August 19, 1991, Lili obtained a money order payable to himself in the amount of $840.52. On August 20, 1991, Lili deposited the money order and the state income tax refund check in the amount of $53.81 into his trust account. On August 21, 1991, the trustee requested the refunds be sent to her within 10 days. On August 29, 1991, Lili complied and sent a check drawn on his trust account in the amount of both refunds, $894.33.
In a letter to the deputy disciplinary administrator, Lili explained he did not immediately deposit the tax refund checks into his trust account because both his personal and business accounts had been audited by the Internal Revenue Service in the spring of 1989. He owed the government $16,000 in back taxes. He explained the IRS had been aggressive in its efforts to collect the back taxes and he believed the IRS might contact the Sterkels and attempt to set off the refund amounts against his personal tax obligation if he deposited the tax refunds in his trust account. Lili acknowledged he made a poor decision by failing to deposit the funds into his trust account.
Following a hearing before a panel of the Kansas Board for Discipline of Attorneys, the hearing panel issued a report which stated the parties were in agreement that there was clear and convincing evidence Lili had violated MRPC 1.3 and MRPC 1.15. MRPC 1.3 provides: “A lawyer shall act with reasonable diligence and promptness in representing a client.” MRPC 1.15 provides in part:
“(a) A lawyer shall hold property of clients or third persons that is in the lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the State of Kansas. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer . . . .”
The panel was advised Lili was formerly disciplined by informal admonition on March 26, 1991, for alleged violations of MRPC 1.3 and 1.4 (1992 Kan. Ct. R. Annot. 251). In mitigation, Lili explained his secretary had quit during this time and he had undergone an extensive audit by the IRS. Lili fully cooperated with the Disciplinary Administrator throughout the course of the investigation in this case. Lili accepted full responsibility for his actions and apologized for his behavior. Since the time in question, Lili has worked diligently to pay the taxes he owes the government. By way of mitigation Lili explained he is a recovering alcoholic who has been alcohol-free since 1981. He has been active in community matters relating to alcohol abuse and served on the pre-planning committee to establish the Comer House Halfway House in Emporia. Lili further advised the panel the Sterkels continue to be his clients.
The panel unanimously recommended that Lili be disciplined by public censure pursuant to Supreme Court Rule 203(a)(3) (1992 Kan. Ct. R. Annot. 153) and that costs be assessed to Lili. In response to the panel’s recommendation, Lili stated he agrees with and accepts the recommendation.
We find Lili violated MRPC 1.3 and MRPC 1.15 pursuant to the findings of the panel. We find he should be disciplined by public censure.
It Is Therefore Ordered that Don W. Lili be and he is hereby disciplined by this court by public censure for his previously enumerated violations of the Model Rules of Professional Conduct.
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this order be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Smith, J. :
.Plaintiff in error entered into a contract with the commissioners of Jewell county for the printing of the ballots to be used at the general election of 1898, and did print 17,200 thereof. There were six tickets printed on each official ballot for use in twenty-five townships. He was entitled to charge $13 per thousand or fraction thereof. (Gen.. Stat. 1901, § 2708.) He printed less than a thousand for use in each of the townships except three. For these three he printed and furnished 1150 each. In presenting his bill to the county for the work and material he did not charge in gross for the work, that is, so much for so many thousand ballots or fraction of a thousand, but divided the ballots up between the twenty-five different townships, and doubled his claim by charging for a fraction of one thousand for each separate township. Thus, he charged $13 for 700 ballots for Jackson township, the same amount for 550 for Sinclair township, $26 for 1150 ballots for Buffalo township, and the same amount for Center and Burr Oak townships. He was allowed by the board $364, and a warrant was drawn therefor, and paid by the county treasurer.
This action was brought under section 1649. General Statutes of 1901, to recover back the amount- of the illegal allowance. It is claimed by the county that the defendant below was entitled to be paid the sum of $13 per thousand for 17,000 tickets, and $13 more for 200 additional, or a total amount of $234 only. Judgment was entered against the defendant below for $130, together with $130 penalty, and $25 attorneys’ fees, under section 1649 of the statute, supra.
It is contended that the county could not maintain the action for the reason that the tickets were printed for the townships, and that they alone were interested. This position is untenable. Section 2708, General Statutes of 1901, provides that “the county clerks in their respective counties shall have charge of the printing of the ballots, and the county commissioners shall have the letting of the contracts therefor.” While the expense-is to be apportioned to the townships, and charged to their general funds, under section 2694, yet the county is primarily liable to the person furnishing the ballots, and his right of action against the county to recover any amount due him therefor would not be affected by the fact that the townships were the beneficiaries of his labor. In Comm'rs of Jackson Co. v. R. S. Craft et al., 6 Kan. 145, it was held that the county might maintain an action against its treasurer for a misappropriation of the funds of a township or school district. See, also, Myers v. Kiowa Co., 60 Kan. 189, 56 Pac. 11.
We are clear that the plaintiff in error, in making his claim against the- county, could not separate the items of his bill by charging to each township a fraction of a thousand ballots, and receive $13 pay for each of such fractions. The statute means that, if, in the whole number of ballots furnished to the county clerk for use at the election, there shall be a fraction of a thousand over the total number of thousands supplied, then the printer shall receive $13 for that fraction, when there are as many as six tickets printed on the ballot.
Counsel for plaintiff in error contend that the allowance of the claim was a judicial act by the board of county commissioners, and that the matter is now res judicata. In the case of Commissioners of Leavenworth v. Keller, 6 Kan. 510, the law was held to be otherwise.
It was the duty of the county commissioners to allow to the plaintiff in error legal fees only, and if he received more than was allowed to be charged by statute, he is liable therefor to the county.
We see no error in the judgment and it is affirmed.
All the Justices concurring. | [
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Per Curiam:
In this pase the plaintiff seeks to oust the defendant from the prosecution of the business of selling and contracting for the sale of school-books, and to annul a contract recently made by it with the state text-book commission for supplying certain school-books. The grounds of the application are that the defendant, as a foreign corporation, has not complied with chapter 10, Laws of 1898, and the amendatory statute of 1901 (Gen. Stat. 1901, § 1259 et seq.), entitling it to do business in the state.
The company has complied, although irregularly, informally, and out of time, with the law, except as to section 2 of said act. As to those particulars in which compliance has been attempted, but not technically executed, the statute is directory. Section 2 requires the making of an application to the charter board and the furnishing of certain information to such board. These things the company must do in order to acquire the status of a foreign corporation authorized to do business here. The statute requires the doing of these things by foreign corporations “seeking to do business in this state.” Inasmuch as the defendant had been doing business in this state before the enactment of the law, it contends that it was not ‘c seeking to do business” here. It contends that the words “seeking to do business” apply only to corporations which had not theretofore donó business, but desired to do it in the’ future. This is an erroneous view. The statute does not mean thus to discriminate in the requirements of said section 2, and in other like matters, between foreign corporations which had theretofore been doing business here and those which might thereafter apply to do business.
The claim that, because the defendant company is engaged in interstate trade, it cannot be subjected to the regulations of the law of 1898, is untenable. It may be that it cannot be excluded from doing interstate business here, but it can be laid under such reasonable conditions as the filing of its charter, the payment of charter fees, the making of reports and furnishing of information concerning its business, the appointment of agents to receive service of process, etc. These are not burdens on the company — they are measures of justice and protection to the people of the state.
The plaintiff cannot, in this action, have an annulment of the contract already made. It may be that there are equitable circumstances forbidding the cancelation of such contract. It may be that compliance with the law by the defendant hereafter will retroactively validate the contract, in the event that it, should now be invalid. However, independently of such consideration, we do not have jurisdiction over that branch of the case. Our jurisdiction is in quo warranto alone. A grant of that jurisdiction does not authorize the joinder to a cause of action for ouster of another one for the annulment of a contract merely because the subject-matter of the latter possesses incidental connection with the subject-matter of the former.
The defendant will be ousted of its claimed rights to do business in this state until it complies with the requirements of the law, but the prayer of the petition for the annulment of the contract will be denied.
Dosteb, C. J., Smith, Gbeene, JJ. | [
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Error from Anderson district court. | [
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The opinion of the court was delivered by
Johnston, J. :
This was a proceeding to revive a judgment rendered April 3, 1894. On February 12, 1900, the Kansas & Texas Coal Company filed a motion in the district court for the revival of the judgment. On the following day a notice of the filing of the motion and the time when it would be heard was delivered to the sheriff of the county, and it was served on the defendant, Carey, on the 15th day of February, 1900. The notice stated that the motion would be heard on March 3, 1900, and was otherwise sufficient in matter and form. On the day named the court heard the application, and, while the defendant did not appear, his attorney of record was present in court and heard the motion and the evidence which was introduced. The court entered an order of revivor, but on the 14th day of March, 1900, the de fendant made- a special appearance and moved to set aside the order because of insufficient notice. This motion was sustained, and the order of March 3, 1900, reviving the judgment, was set aside. The contention of the defendant, Carey, was that sufficient notice was not given him of the hearing of the application for the order. As has been seen, the notice was served on the defendant sixteen days before the order reviving the judgment was made. He contends that a notice is to be regarded as a summons, and that, as a defendant is given twenty days after the return-day of the summons in which to answer, the minimum time for notice of an application 'to revive is twenty days.
In the matter of revivor, section 428 of the code (Gen. Stat. 1901, §4878) provides:
“If the order is made by the consent of the parties, the action shall forthwith stand revived; and if not made by consent, notice of the application for such order shall be served in the same manner and returned within the same time as a summons, upon the party adverse to the one making the motion ; and if sufficient cause be not shown against the revivor, the order shall be made.”
Section 534 of the code (Gen. Stat. 1901, § 5011)-provides that the notice of a motion shall be filed in writing and, also, what it shall contain. . Section 535 provides that notices of motions may be served by officers or private persons, and on whom such notices shall be served. Section 536 provides : “The service of a notice shall be made as is required by law for the service of a summons ; and when served by an officer, he shall be entitled to like fees.” The code, as will be observed, does not limit or fix the time which shall intervene between the giving of notice and the 'hearing of the motion. It does provide that the notice shall be served in the same manner as a summons, that is, by delivering a copy of the same, to the defendant personally, or by leaving one at his usual place of residence; .and whether there may be constructive notice we need not now inquire. That provision has reference to the mode of service and not to the time of hearing. There is the further provision that, the notice shall be returned within the same time as a summons, and that is required to be done at the time therein stated and within ten days from its date. That, however, is an injunction to the officer or person who makes the service, and has nothing to do with the hearing, or to the time which shall elapse between the service and the hearing. Another provision of the code does relate to the time of notice of motions, and that is section 534. In addition to specifying what the notice shall contain, it provides that “it shall be served a reasonable time before the hearing.” No other limitation is prescribed in this respect, and the starting-place is the service, and not the date of the notice or the return of the one who serves it.
It is incumbent on the moving party fixing the time of hearing to name a date in his notice that will give the party notified a reasonable time after service in which to prepare for the hearing. A proceeding in revivor, however, is of such nature that a long time is not inquired for preparation. Here sixteen days’ notice was given of the hearing at which the first order was made. In our view, that afforded not only a reasonable, but abundant, time in which to make preparation. Nothing is found in the testimony tending to show that it was insufficient. The district court, therefore, erred in setting aside the order of revivor, and its judgment to that extent will be reversed.
All the Justices concurring. | [
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