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The opinion of the court was delivered by
Johnston, C. J.:
On August 26, 1905, the Salina Implement and Seed Company, through its agent, S. A. Dixon, sold a corn-harvester to W. E. Haley, the price being $125 if paid in cash, or $130 if notes promising payment in the future were given. Haley took the machine to his farm and undertook to operate it, and after using it more or less until September 4, 1905, he decided that it did not serve the purpose for which it was purchased nor come up to the conditions of the warranty under which it was sold. The company, claiming that there was an unconditional sale, brought this action to recover the price of the machine, contending also that Haley kept the machine an unreasonable time, much longer than was necessary for a test of its working qualities, and that, when Haley complained of the machine, Dixon said to him that if he was not satisfied he should return the machine, but that he had then refused to do so or to rescind the contract, and, by continuing thereafter to use the machine, he waived any right he might have had to rescind the sale. There was proof, and plenty of it, tending to show that the sale was made under a warranty that the machine would do good work, and that Haley should take and test it by use until he was satisfied that it met the requirements of the warranty, and, if it did not work to his satisfaction, he could return it to the plaintiff. There was a conflict in the testimony as to the warranty, and also as tc whether Dixon had requested Haley to return the machine if he was not satisfied with it; but the findings of the jury were that the machine was warranted to do good work but did not, that Haley was to run the machine until he was satisfied that it would work well before accepting it, and that if it did not work to his satisfaction he had the privilege of returning it to the company.
It is contended that the testimony of disinterested witnesses, and that which is most credible, shows that the sale was made without a warranty. The jury have decided what testimony is most worthy of credit, and their findings, based as they are on legal evidence, put that question at rest.
The principal contention is that the test of the machine was not honestly made, and that Haley kept and used it too long after discovering that it was unsatisfactory to justify a rescission of the contract and the return of the machine. It was the duty of Haley to give the machine a fair test, availing himself of such suggestions and assistance as the seller could render, and if it proved defective and unsatisfactory he was then entitled to rescind the contract and return the machine, providing it was done within a reasonable time. In speaking of the return of the machine in case it was found that the sale was made upon an agreement that if the machine did not prove satisfactory to Haley it might be returned the court properly charged the jury as follows:
“If in his honest judgment it'did not so operate he would have a right to return the machine and cancel the contract, but under such circumstances it would be his duty to return the machine with reasonable promptness, after having used the machine for such a reasonable time as would be required to give the machine a fair test, and if he failed to return the machine within a reasonable time after having discovered the defects he would be deemed to have waived them, unless his delay in returning the machine and rescinding the contract was occasioned by the promise of the plaintiff to fix the machine so that it would work.’ In a transaction of this kind both parties are required to act in good faith, and neither can be permitted to take advantage of his own wrong.”
What is a reasonable time within which to return property so sold and accomplish a rescission is a question of fact for the jury, where there is conflicting testimony. (Cookingham v. Dusa, 41 Kan. 229, 21 Pac. 95.) Here, as we have seen, the trial of the machine was begun on Saturday, August 26, and upon the following Tuesday Haley notified the agent that it did not work properly. On Wednesday Dixon sent his man to Haley’s farm to adjust the machine, and, not succeeding, it was brought in to Dixon’s store for repairs. Afterward Haley took it out and worked with it most of the time until Saturday, but as it would not bind satisfactorily he brought it back to Dixon for other repairs and adjustment. Dixon put on a new chain-tightener, which it was hoped would remedy the defect. It would not work well, however, and on Monday, September 4, Haley and Dixon took the machine to a blacksmith, who put on a new knotter for them. Again Haley tried the machine for a short time, but finding that the. defects had not been overcome be abandoned any further tests and returned the machine to Dixon. Under the testi-mony it was a fair question for the jury whether the test was made in good faith and whether under the circumstances the machine was returned within a reasonable time. It is true that Haley used the machine from time to time for moré than' a week, and actually cut considerable corn, but at no time did the machine properly bind the corn. At first Haley appears to have thought that the failure was due to the new paint, and that after the machine was operated for a time it would do better work. Dixon appears to have proceeded on the theory that the defects could be remedied, as he made repeated efforts to repair the machine, which continued until it was finally returned to him. The plaintiff is hardly in a position to insist that the test was unreasonably long when it and its agent were assisting Haley in making the test until the last day and holding out assurances that they could remedy the defects. It is fairly inferable that the delay in returning the machine was induced , in great part by the assurances of Dixon that the machine could be made to work satisfactorily and his continued efforts to adjust it. Since the machine was returned promptly after the last in effectual attempt of plaintiff to adjust the machine and put it in working order, the plaintiff has no right to insist that the delay was unreasonable.
There is nothing substantial in the objections to the rulings on the admission of evidence or to the instructions given by the court. The judgment is affirmed. | [
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Per Curiam:
The appellant was indicted by a grand jury and convicted of a violation of the prohibitory law, and in his appeal assigns as error that the court sustained a demurrer to his plea in abatement. The ruling upon the demurrer presents the only question for consideration. The plea alleged that “one Frank L. Travis, by himself and through one L. B. Pearson, and others whose names are to this affiant unknown, corruptly, unlawfully, and in violation of section 8819, General Statutes 1901, solicited, asked and sought to have himself placed upon the said grand jury for the purpose, as defendant verily believes, of indicting a certain class of alleged violators of law, to wit, persons charged with the violation of the prohibitory liquor laws.” It was further alleged:
“And that upon the convening of court at the said term, when the said grand jurors appeared, the said court for good and sufficient cause, without fraud or corruption on his part, excused and discharged three of the said- persons so appearing, and substituted three other persons, one of whom was the said Frank L. Travis. . . . Defendant further says that when said grand jury appeared in court, as aforesaid, the said Frank L. Travis was absent from .the court-room, and that the court, pursuant to the solicitation of the said L. B. Pearson and of the said Frank L. Travis, sent for the said Frank L. Travis to appear and act as a grand juror, and upon his appearance appointed him as foreman of the said grand jury.”
It was also alleged that Frank L. Travis was one of the signers of the petition for calling a grand jury.
It is one of the essential requirements of a plea in abatement that it shall be certain to every intent, and leave nothing to inference. (The State v. Hewes, 60 Kan. 765, 57 Pac. 959.) The first part of the plea expressly exonerates the court from any fraud or corruption. The last portion, however, leaves the facts' uncertain and indefinite as to whether the court, when the name of Travis was suggested for the purpose of filling a vacancy in the grand jury, knew that any solicitation on the part of Travis himself had taken place. It is alleged that Travis was absent, and in the same paragraph it is said that the court, pursuant to the solicitation of Pearson and of Travis, sent for Travis and placed him upon the jury. If it were intended to allege that Travis at some other time solicited the court the plea should have so stated; if it were meant that he solicited the court by an agent or by some other person the plea should have said as much in plain words, and not have left these matters to inference. The inference from the allegation that the court acted without fraud .or corruption must, of cpurse, be taken against the pleader. The statute fixes' the rule which controls this ease. Section 79 of the code of criminal procedure is as follows:
“No plea in abatement or other objection shall be taken to any grand jury duly charged and sworn, for any alleged irregularity in their selection, unless such irregularity in the opinion of the court amounts to corruption, in which case such plea or objection shall be received.” (Gen. Stat. 1901, § 5521.)
It is apparent that the demurrer was rightly sustained. The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
Gibson commenced this suit in the district court of Ellis county to foreclose a mortgage upon a tract of land in that county formerly owned by one Parks, who, with his wife, executed a note for $750 and secured the payment of the same by a mortgage on the land. Gibson alleged proper indorsements and assignments of the note and mortgage. Ast and wife, being made defendants therein, answered and alleged, among other defenses, that the suit of Gibson was barred by the statute of limitations, and that they were the absolute owners of the property by successive conveyances from one who had procured a tax deed to the land, which had been of record more than five years. To these defenses Gibson filed a general demurrer, which the court overruled, and he brings the case here for a review of that decision.
It has been too frequently decided in this court to justify further discussion that one who is not in privity with the maker of a mortgage upon land cannot interpose the statute of limitations as a defense in a suit to foreclose the mortgage thereon. (Robidoux v. Munson, 75 Kan. 207, 88 Pac. 1085; Ordway v. Cowles, 45 Kan. 447, 25 Pac. 862; Trust Co. v. Parker, 65 Kan. 819, 70 Pac. 892; Bare v. Ford, 74 Kan. 593, 87 Pac. 731.)
It is contended on the part of Gibson that the tax deed, a copy of which is attached to the answer, is void upon its face, for the reason that it does not recite the amount of the taxes and charges for which the county treasurer bid the land off for the county. It does recite, however, that it was bid off for the whole amount of taxes and charges then due thereon. The land was bid off at the regular sale on the first Tuesday of September, 1894, for the taxes and charges of 1893. The deed further recites that on the 16th day of August, 1897, the county treasurer gave a tax-sale certificate on the land to one Connell, who paid for the same the sum of $61.78, and that the assignee paid the subsequent taxes for the year 1894, amounting to $11.88, and the year 1895, amounting to $11.61, and the year 1896, amounting to $11.35, and the year 1897, amounting to $12.76. Now, these several amounts of taxes, except for the year 1897, were delinquent at the time the assignment was made by the county treasurer, August 16, 1897, and were included in the sum of $61.78 paid for the assignment, if, as the deed recites, the whole amount of taxes and charges then due was paid. Deducting the sum of these delinquent taxes from the sum paid gives the amount of taxes and charges with the interest thereon for the year 1893, and deducting the accrued interest from the time of the sale to the time of the assignment leaves the amount for which the treasurer bid off the land for the county. Again, if interest be computed at the rate provided by law on the sum paid for the assignment ($61.78) to the date of the issuance of the deed, and the amount of the taxes for 1897 be added to such payment and interest, the sum is a few cents more than the consideration recited in the deed.
The Robidoux v. Munson case, supra, is cited as authority for holding this deed void on its face, but the cases are easily distinguishable. In that case the deed contained no reditals which cured the omission of the deed to state the price at which the land was bid in by the county. As we have seen, the recitals in this deed do cure the defect.
This being the only infirmity in the deed which it is claimed renders it void, the demurrer to the defense was properly overruled, and the demurrer, being general to two defenses, is bad if either states a cause of defense.
The order of the court overruling the demurrer is affirmed. | [
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Per Curiam:
This was an action in replevin to recover certain articles of personal property taken by the defendant in error, Evans, sheriff of Marion county, under an execution against John 0. Morton and his wife, Julia A. Morton. The issues raised by the pleadings were only those arising from the naked legal allegations of the petition claiming that these articles were wrongfully detained by the sheriff, and that the plaintiff was entitled to immediate possession, and of the answer, containing a general denial.
From the statements of fact made by attorneys to the jury it appears that the plaintiff, Hackler, claimed that the Mortons, being indebted to him in quite a large sum of money, sold the property in dispute to him in satisfaction of the debt; that a bill of sale evidencing such transfer of title was at the time made and thereafter filed for record in the office of the register of deeds of the county, and the property turned over to the plaintiff and by him placed in the care of a son of the Mortons. The claim of the defendant was that he had levied an execution in favor of a judgment creditor and against the Mortons upon the property in question, upon the theory that the transaction between the plaintiff, Hackler, and the Mortons was not a bona fide one; that no title actually passed to Hackler, and that the pretended change of possession was merely colorable; that the entire transaction was one designed to hinder and delay the creditors of the Mortons in the collection of their debts. The jury found for the defendant, and judgment was entered on the verdict.
The plaintiff’s first claim of error is that there was no evidence warranting this verdict. The defendant introduced no evidence except the execution under which the property was seized and an admission that this execution was based upon a valid judgment. He relied upon plaintiff’s testimony to establish his claim of fraud. We think there was sufficient in this to warrant the verdict of the jury. Indeed, after a careful reading of the evidence, the conclusion of the jury commends itself to us.
Complaint is also made that the court told the jury in its instructions that the execution plaintiff was “the real party in interest as defendant,” and, further, told the jury that this execution plaintiff was making the defense. It, however, had not been formally substituted as the party defendant under the provisions of section 4473 of the General Statutes of 1901. No prejudicial error, however, can be perceived from this instruction. The defense was in every respect made as though a substitution had been made, and all rights of the plaintiff were as available to them. Nor did the plaintiff suffer any injury because the jury were told in an instruction that the plaintiff’s claim was that the change of possession came about by reason of the turning over of the property by the Mortons to their son directly, when their claim was that the possession was delivered by the Mortons to Hackler, and by him to the son. The evidence shows that whatever was done in the matter of the change of possession was purely technical. The property to all outward appearances remained in exactly the same position as before the alleged sale.
Fault is found with the giving of an instruction that even though the bill of sale was intended as a mortgage, and not as evidencing an absolute sale of the property, the the plaintiff could not recover, the objection to this being that there was no evidence to sustain the theory that it was intended as a mortgage. We think that there was some evidence tending to support that theory, but even if there were not we fail to see how the plaintiff could have been injured by the instruction.
We think the issues were fairly presented to the jury, and their finding fairly sustained by the evidence. The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J. :
An action brought to foreclose a real-estate mortgage resulted in a final judgment, or decree, for the sale of the property to satisfy the debt. No process on such judgment or decree was issued for over five years. Then an order of sale was taken out, under which a sale was made, which the court confirmed. This proceeding is brought to set aside the order of confirmation.
The only question presented is whether the act of the court upon which such order of sale was based is to be regarded as a judgment within the meaning of section 445 of the code of civil procedure (Gen. Stat. 1901, § 4895), which provides that if execution be not sued out within five years from the date of a judgment, or if five years shall intervene between the date of the last execution and the time of suing out another writ, such judgment shall become dormant.
The supreme court of Ohio holds that this provision has no application to a decree in equity for the sale of specific property. (Beaumont et al. v. Herrick, 24 Ohio St. 445; Moore v. Ogden, 35 id. 430.) These decisions have been follow'ed in Nebraska. (Herbage v. Ferree, 65 Neb. 451, 91 N. W. 408.)
The contrary doctrine is announced in Stout v. Macy, 22 Cal. 647; Hughes, &c., v. Shreve, &c., 3 Metc. (Ky.) 547; and The State v. McArthur, 5 Kan. 280. The last-named case has frequently been cited with approval as authority for the proposition that, under the code, the term “judgment” is broad enough to include a decree in equity under the old practice. (1 Freem. Judg., 4th ed., § 14; 1 Black, Judg., 2d ed., § 1; 11 Encyc. Pl. & Pr. 809; 17 A. & E. Encycl. of L., 2d ed., 762.) It was overruled by the original decision in Watson v. Iron-works Co., ante, page 43, 74 Pac. 269, where the arguments on both sides of the question were fully presented in the opinion of the court, written by Mr. Justice Smith, and the dissenting opinion, written by Mr. Justice Burch. In the final decision, however, made at the present session, upon a rehearing (ante, page 61), the majority of the court adhere to the view taken in the earlier case (The State v. McArthur, supra). In harmony with that expression, it must be held that the judgment here involved was dormant when the order of sale was issued, and that the sale made under it should have been set aside.
The judgment is reversed, and the cause remanded for further proceedings in accordance herewith.
Johnston, C. J., Burch, Atkinson, JJ., concurring.
Justices Smith, Cunningham and Greene dissent, for the reasons given in the first opinion in the case of Watson v. Iron-works Co., supra. | [
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The opinion of the court was delivered by
Johnston, O. J.:
This was a proceeding to quiet title in which it was necessary to determine which of the contending parties had the right to redeem from a judicial sale of real estate. A quarter-section of land was owned by John G. McDill, and in 1893 it was mortgaged for $800. In that year he sold eighty acres of the land to his son-in-law, G. W. McPherson, and the consideration was the assumption and payment of the mortgage debt upon the whole tract. McPherson went into possession in 1893, made valuable and lasting improvements, paid the interest on the mortgage debt, and when it matured in 1897 had the mortgage renewed, paying a commission of $40 to secure the renewal. In 1898 John C. McDill made a writing certifying that he had sold the land to McPherson in 1898 for $800, the face of the mortgage, and this was filed for record. Later in 1898 John C. McDill executed an instrument purporting to convey the land to J. L. McDill, who in turn undertook to convey it to D. R. Mercer. In 1901 Mercer began his action to quiet the title as against McPherson, making the owner of the mortgage a party. McPherson answered asserting ownership and denying Mercer’s claim of title. The owner of the mortgage set up his lien and asked foreclosure. The mortgage was foreclosed, leaving the contentions of McPherson and Mercer for a later determination. Under the decree, the eighty-acre tract claimed by McPherson was sold for a price greater than the mortgage debt. The mortgagee and purchaser each moved the court to confirm the sale; McPherson moved to set it aside ; and Mercer filed a motion, asking that he be adjudged the right to redeem the land. These motions were-all heard together, and the court, upon testimony, held that the sale should be confirmed, and, further, that McPherson was entitled to the right of redemption. Of this ruling Mercer complains.
He contends that the question of the title could not be adjudicated on a motion to confirm the sale. It was an unusual proceeding. The court, however, was required to decide who had the right of redemption, and that depended upon ownership. Issues had already been joined between the parties as to title and ownership. The plaintiff asked the court to try the issue of the ownership, and consequent right to redeem, in connection with the motions to confirm, and when the defendant objected to a trial at that time the plaintiff insisted upon proceeding, and the case was tried substantially as if it had been presented on the pleadings alone. Haying invited the action of the court the plaintiff is not now in a position to complain of it. (Insurance Co. v. Heckman, 64 Kan. 388, 67 Pac. 879.)
The testimony showed a sale of the land to McPherson, under which he took exclusive possession and for years exercised dominion over it. While the consideration had not been paid, he did take care of the interest on the mortgage, procured its extension, paid taxes, made substantial improvements, and otherwise obtained and exercised ownership of the land, and it was finally sold for more then enough to discharge the mortgage debt. While the deed had not been made, he had acquired the equitable title and an ownership which McDill had never undertaken to forfeit, and of which Mercer was bound to take notice.
It is contended, however, that the right to redeem is statutory; that none except those expressly named in the statute may avail themselves of its benefits, and that under our statute only an owner holding, the legal title to the land may redeem. This claim is based mainly upon the following provisions of the act:
“The holder of the legal title at the time of issuance of execution or order of sale shall have the same right of redemption upon the same terms and conditions as the defendant in execution, and also shall be entitled to the possession of the property the same as the defendant in execution as hereinbefore provided.” (Gen. Stat. 1901, §4945.)
While the holder of the legal title is expressly mentioned in this section it is not provided that he shall have the exlusive right of redemption. That such was not the intention of the legislature is manifest from the language of the following section, which mentions the assigns of the defendant in execution or order of sale in a class distinct from the holders of the legal title and places them upon an equality of right with the holders of the legal title. (Gen. Stat. 1901, § 4946.)
The rights of assigns and purchasers are also recognized in the preceding section (4944), and in other sections it is provided that a purchaser of an interest may redeem, where no restriction is made with respect to the legal title. The theory of the act relating to redemption is that the owner of a substantial interest, whether or not he is a defendant, may redeem from an execution or mortgage-foreclosure sale, and the like protection is also afforded to creditors, mortgagees, and other lien-holders. The owner of an interest, although he may have no formal conveyance, is more entitled to exercise the right than one holding a naked legal title. The interest and right held by McPherson were certainly paramount to those of Mercer, who took his deed with notice of McPherson’s rights.
The court ruled correctly in the determination of the right to redeem, and the judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
Plaintiffs’ action was for the purpose of obtaining damages for injuries suffered by the alleged illegal diversion of surface-water thrown upon their land by defendants, and for a mandatory injunction restraining the further continuance of such injuries.
The case is before us upon a transcript containing only the pleadings, the findings of fact made by the trial judge, the conclusions of law, and the judgment. As to the facts we have no light, except what is disclosed by these findings. From them we ascertain that the plaintiffs were, and had been for several years prior to the commission of the wrongs of which they complained, the owners of certain land, which they used and occupied as their homestead, lying south of a public highway extending east and west along its north boundary. During this time there was a natural watercourse entering the plaintiffs’ land on its north side and extending in a southerly direction nearly the full length of the land. This natural watercourse is spoken of as the “west draw,” and drains an area of about thirty-eight acres on the north side of the highway. About thirty-five rods east of the point where this west draw crosses the highway is a surface-water drain, and about twenty-seven rods still farther east is another surface-water drain. These two drain an area of forty-eight acres, and are known as the “middle” and “east” draws, respectively.
At the time the plaintiffs became the owners of the land occupied by them as aforesaid, and for some time prior thereto, culverts were maintained across the middle and east draws at the point where the highway intersected them. These culverts were of small dimensions, being eight by twelve inches on the inside. There was also a bridge across the highway at the point where the west draw intersected it. Ve presume that ordinarily the surface-waters coming down the middle and east draws passed through their re spective culverts and over and upon the plaintiffs’ lands to the south in no defined channels, except that their general course was south and east. These waters finally flowed into what is spoken of as Middle creek. The natural watercourse known as the west draw fell into Middle creek some distance west of the point where the middle and east draws joined it.
In 1895 one John Blocklinger, who was then the duly elected, qualified and acting road-overseer of the road district in which this highway was located, for the purpose of improving the same, caused it to be graded up and a ditch dug along its entire north side, emptying into the west draw at its west end. He also removed the culverts which had theretofore intersected the highway at the middle and east draws. The effect of this was to collect all of the surface-water which had theretofore passed down through these draws into this ditch, by means of which the water was carried westward and emptied into the west draw, thereby increasing the volume of water therein. It is of this increase of volume, and the damage caused to them thereby, that the plaintiffs complain.
The court specifically found that “the digging of said ditch, the closing up and removal of said culverts and the grading of said highway were a substantial improvement to the highway, and were done in good faith, with no other intention than to improve it” ; and further, that “the water carried along said ditch on the north side of said highway and emptied into said west draw flows in and upon the plaintiffs’ farm, to their injury.” The court also found that “had said ditch along the north side of said highway not been constructed, the waters accumulating in said middle and east draws could not have gotten into said west draw nor onto the land of plaintiffs, and this would be true even though the culverts at the intersection of said middle and east draws with the highway were removed”; that “the plaintiffs have suffered damages to their said farm by reason of the said surface-water’s being collected from said middle and east draws into said ditch and cast in a body upon their said farm” ; and that “they will continue so to suffer damages from said cause so long as said ditch is permitted to remain as it was when said action was begun and as it now is.”
As a conclusion of law, the court held as follows :
“The surface-water having been accumulated in an artificial ditch, and cast in a body upon the land of Mr. Baldwin, the defendants would be enjoined were it not for the fact that it was cast upon the farm of the plaintiff's by means of a natural watercourse.”
Thereupon judgment was rendered against plaintiffs for costs, and to reverse that judgment plaintiff's appeal to this court.
Several reasons other than the one given by the court are urged by defendants in error for the affirmation of this judgment. We prefer, however, not to give these reasons attention, but to discuss the matter entirely from the standpoint taken by the court below. We shall assume that the party responsible for the making of the ditch and the improvement of the highway, whether such party was the township, township officers, or the road-overseer, occupied the same relation to the plaintiff's as would a private owner, and that they had a right to dispose of surface-water coming upon the highway in the same manner, and to the same extent, as would the private owner of a dominant adjoining estate. In Young v. Comm’rs of Highways, 134 Ill. 569, 25 N. E. 689, the court said :
“The commissioners of highways, where they undertake to drain a public highway, possess the same rights and are governed by the same rules as adjoining landowners who may undertake to drain their own lands, except where they may be proceeding under the eminent-domain laws of the state.”
The common-law rules regulating the rights and duties of adjoining owners of lands relative to surface-water obtain in this state. (A. T. & S. F. Rld. Co. v. Hammer, 22 Kan. 763, 31 Am. Rep. 216; Gibbs v. Williams, 25 id. 214, 37 Am. Rep. 241.) Under those rules it is well settled that the owner of the upper estate may not gather surface-water falling or accumulating thereon, and by means of artificial channels divert it from its natural course and discharge it upon the lower estate, to the damage of the owner thereof. This rule, however, goes hand in hand with the equally well-settled doctrine that, as to such waters, either owner may stand upon the defensive.
The owner of lands through which a natural watercourse flows may, however, accumulate and cast into such watercourse in a body the surface-water falling upon lands adjacent thereto. Such streams are the drains provided by nature for the discharge of surface-water gathered by natural forces and the general contour of the lands. The rule is thus stated in Farnham on Waters and Water Rights, section 186 :
“The force of gravity which causes all waters flowing on the earth to seek the lowest level creates natural drainage, and provides for the distribution of all water, whether surface-water or otherwise. This natural drainage is necessary to render the land fit for the use of man. The streams are the great natural sewers through which the surface-water escapes to the sea, and the depressions in the land are the drains leading to the streams. These natural drains are ordained by nature to be used, and so long as they are used without exceeding their natural capacity the owner of land through which they run cannot com plain that the water is made to flow in them faster than it does in a state of nature. Among the steps which are taken for the improvement of property, one of the first is to remove the water from it as rapidly •as possible. The right to drain upon and over lower lands without making compensation for such privilege is the same whether the higher land is the farm of an individual owner or is a public highway ; and highway commissioners have the right to have the surface-water, falling or coming naturally upon the highway, drain through the natural and usual channel upon and over lower lands; and have the right to construct ditches or drains for the purpose of conducting such •surface-water, even though it is accumulated in ponds, into such natural and usual channels, although the •effect may be to increase the volume of water thus ■carried upon lower lands. In accordance with this principle the flow of the water into the natural streams may be hastened so long as the water is not caused to overflow the banks of the stream to the injury of the land through which it flows ”
In Gould on Waters, section 274, the same rule is stated as follows :
“The owner of land has a right to discharge the natural drainage of his land, and the surface-water accumulating thereon, into a watercourse, whereby it becomes a part thereof, and in so doing he may change or concentrate its flow in artificial channels, thus accelerating the flow and increasing the volume of water in the stream, provided its natural capacity is not ■exceeded, and those whose supply is rendered more variable cannot complain.”
It is said at page 733 of volume 85, American State Reports, in a note to the case of Mizell v. McGowan, 129 N. C. 93:
“We have just noticed the difference between merely draining onto another’s land, and draining into a natural, channel or watercourse which flows across such land. So far as streams or natural water courses are concerned, there can be no doubt that one-may drain into them, and thereby increase their volume, without subjecting himself to liability for any damage suffered by a lower owner.” (Miller v. Laubach, 47 Pa. St. 154, 86 Am. Dec. 521; Cairo and Vincennes Railroad Company v. Stevens, 73 Ind. 278, 38 Am. Rep. 139; Treat v. Bates, 27 Mich. 390; Jackman v. Arlington Mills, 137 Mass. 277; Waffle v. New York Central R. R. Co., 53 N. Y. 11, 13 Am. Rep. 467; McCormick v. Horan, 81 id. 86, 37 Am. Rep. 479; Jenkins v. Railroad, 110 N. C. 438, 15 S. E. 193; Peck et al. v. Harrington, 109 Ill. 611, 50 Am. Rep. 627; Pennsylvania Coal Co. v. Sanderson, 113 Pa. St. 126, 6 Atl. 453, 57 Am. Rep. 447; Rath v. Zembleman, 49 Neb. 351, 68 N. W. 488.)
From a careful study of these and other cases we are not disposed to indorse the broad doctrine announced in the text of the note, or to hold that in no case may the lower riparian proprietor recover damages for injuries inflicted by diverting surface-water into a natural watercourse by an upper riparian owner ;. but we are disposed to hold that such owner may not. gather and divert surface-water from its natural course of flowage and cast it into a natural watercourse, to-the serious damage of the owner of the lower estate-by overflow. In order that there may be a recovery for such damages, or their continuance enjoined, they must, however, be of a serious and sensible nature. It is quite obvious that the rule, as* against the dominant proprietor, cannot be enforced in its minutest detail and for its minutest infraction. To say that no surface-water may be diverted and cast into a natural stream is practically to prohibit the removal or shifting of any of the soil from its natural condition. Such a strict application would result in preventing the processes of agriculture and of other necessary improvement.
In speaking upon another phase of this question, but with equal applicability to this, this court, in Gibbs v. Williams, supra, said (at page 216) :
“If the right to run in its natural channels was annexed to surface-water as a legal incident, the difficulties would be infinite indeed. Unless the land should be left idle, it would be impossible to enforce the right in its rigor ; for it is obvious every house that is built, and every furrow that is made in a field, is a disturbance of such right. If such a doctrine prevailed, every acclivity would be and remain a watershed, and most low ground become reservoirs. It is certain that any other doctrine but that which the law has adopted would be altogether impracticable.”
So the law must, and does, recognize the right of the dominant owner to divert, at least incidentally, for a proper purpose and in good faith, the flow of surface-water from its natural course, especially when it is cast into a natural watercourse, and where but little damage is occasioned. Were this not so, improvements of the land for the purposes of agriculture, road-making and other betterments would be seriously hampered and impeded. Again, it clearly appears from the authorities that not all damages suffered by the owner of the lower estate may be recovered, or the continuance thereof enjoined, but only such damages as result from the overflowing of the stream because its natural capacity has been exceeded. The fact that the flow has been accelerated, or deepened, or that the banks of the stream have been washed away in places and sand-bars created at other points, is something for which it is not within the purview of the law to grant relief.
Upon this point it is said, in Farnham on Waters and Water Rights, section 488 :
“Drainage being necessary to fit the land for sue cessful occupation, and the streams being the natural channels of drainage, the flow of the surface-water-may be hastened into the streams so far as it can be done without flooding lower property.”
See, also, cases cited above, and Drake v. Hamilton-Woolen Company, 99 Mass. 574; Hayes v. Waldron, 44 N. H. 580, 84 Am. Dec. 105; Rutherford v. The Village of Holly, 105 N. Y. 682, 11 N. E. 818.
In Kemper et al. v. The Widows’ Home et al., 6 Ohio Dec. 1049 [reprint, 9 Am. Law Rec. 732] it was said r
‘ ‘ Merely increasing the flow of water in a natural watercourse does not, like increasing the flow of surface-water, give a right of action. Riparian owners-cannot complain when such increase is due to the building or change of grade of streets and the improvement of lots fairly within territory drained by such watercourse, when its capacity is not exceeded.”'
The plaintiffs have argued this case as though the-finding of the court was that the damage suffered by them was occasioned by the flooding of their lands-caused by the overflow of this natural watercourse. Such, however, is not the case. While the court found that the plaintiffs were damaged, it did not find that such damage was consequent upon the overflow off this natural watercourse ; and, as it found that they were not entitled to recover, we must presume that, the damage suffered was such, and only such, as they could not recover for under the law.
Because it here affirmatively appears that the improvements that were made upon the highway were-of a substantial character, and made in good faith, and because -it does not appear that the diversion of' the surface-water occasioned thereby from the middle- and east draws was more than a mere incident to the-making of such substantial-improvements, and because-it does not appear that the damage suffered by the. plaintiffs was occasioned by the overflow of the natural watercourse into which such surface-water was turned, or that such damage was other than what was occasioned by the hastening or increasing of the flow, we conclude that the same was damnum absque injuria, and, hence, no recovery can be allowed.
The judgment of the lower court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
This was an action in ejectment from certain lots in the city of Hutchinson. The plaintiff relied for a recovery upon a condemnation proceeding in 1886 by the Wichita & Colorado Railway Company, in which the lots in question, and other lands, were condemned for a right of way, depot grounds, and terminal facilities. Plaintiff succeeded to all the rights of the Wichita & Colorado Railway Company. The defendants claimed title and right of possession under a tax deed, regular on its face, and the erection of lasting and valuable improvements. Defendants also contended that the company was npt actually using the lots for railroad purposes, and that their occu pancy did not interfere with the company’s use of such of its property as was in actual use by it.
It was admitted that the right of way of plaintiff through the city of Hutchinson had been duly and regularly assessed by the board of railroad assessors of the state of Kansas for the year 1886, and for each and every year thereafter, and that the taxes so assessed for 1886, and for each subsequent year, had been paid by the company.
It was also admitted that the condemnation proceeding by the Wichita & Colorado Railway Company was regular, and that the plaintiff had regularly succeeded to all the rights of such company.
In view of these admissions the sale made by the county in 1896 for the taxes of 1895 was unauthorized and conveyed no title to the purchaser. Possession under a tax deed so acquired cannot be made a defense to an action in ejectment. It appears from the record that the court in rendering judgment adopted defendant’s theory that they might remain in the actual possession of the lots in question, or any portion thereof, so long as they did not actually interfere with the operation of the railroad by the company. This is apparent from the judgment, in which we find the following recital:
“The court having heard all the evidence in the case, and being fully advised therein, doth find that there is involved in this controversy a sum over and above the sum of $100 (one hundred dollars). The court also finds that the occupancy of the defendants of the real estate in question does not interfere with the possession of the plaintiff. The court also finds for the defendants.”
At the time the condemnation proceeding took place, one Miller was the owner of the fee in this property, and, so far as the record shows, he is still the owner. The defendants do not claim through him ; indeed, except for their tax deed, they had no claim of title except that which arises by implication of law from possession. As between a railroad company and one not the owner of the fee, and not claiming under such fee-owner, a railroad company is entitled to the exclusive possession of all property condemned to its use for railroad purposes. The right acquired by a railroad company by condemnation proceeding for right of way, depot grounds and terminal facilities dominates every right of possession, except as to the owner of the fee, and he may use only that portion which is not in immediate use by the company, and not necessary to the safe and convenient use of that which is in actual service. (Dillon v. Railroad Co., 67 Kan. 687, 74 Pac. 251, and cases cited; Railway Co. v. Spaulding, 69 id. 431, 77 Pac. 106, and cases cited.) The whole estate and right of possession were in the fee-owner and the railroad company. The defendants claimed under neither ; therefore, their possession was wrongful.
For the reasons suggested the judgment of the court below is reversed, and the cause remanded.
Johnston, C. J., William R. Smith, Cunningham, Bukch, Mason, JJ., concurring. | [
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The opinion of the court was delivered by
Johnston, C. J. :
Adolphus Scott, H. G. Scott and Fannie Scott gave several promissory notes to C. A. Benbow for a second-hand thrashing-machine, and at' the same time executed a mortgage upon some land to secure the payment of these notes. Before the maturity of the notes two of them were indorsed and transferred to the Geiser Manufacturing Company, and one of them to the Parsons Band-cutter and Self-feeder Company. The notes were not paid when due, and the Geiser Manufacturing Company brought an action against the Scotts to recover on the notes held by the company, and for a foreclosure of the mortgage. The Parsons Band-cutter and Self-feeder Company was made a defendant because it claimed, an interest in the mortgage. The latter company filed an answer and cross-petition setting up the note held by it, upon which it asked judgment, and also asserted a right to share in the security. The Scotts answered admitting the execution of the notes and mortgage, but alleged that the machine purchased by them was defective in several particulars and not up to the representation and warranty made when it was sold by Benbow to them. The answer also denied generally the allegations of the petition not admitted in their answer.
At the trial the Scotts undertook to prove that the thrashing-machine was not as warranted.by Benbow, and to counter-claim in damages for the breach of the warranty against the indorsees of the notes; but after the evidence was introduced a demurrer thereto was sustained and judgment given against them. The ruling was correct. In the petition it was alleged that the notes were indorsed by Benbow to the present holders before maturity, and copies of the notes together with' written indorsements thereon were set forth. There was no verified denial of the allegation as to the indorsement of the notes, and there was no effort to prove that the indorsements were made after the maturity of the notes. The written indorsements on the back of the notes were without date, it is true, but “where there is no evidence as to the date of an indorsement, the presumption of law is, that it was made before maturity, and that the holder is a bona fide holder for value.” (Rahm v. Bridge Manufactory, 16 Kan. 530; Lyon v. Martin, 31 id. 411, 2 Pac. 790; National Bank v. Elliott, 46 id. 32, 26 Pac. 487.) It must be held, therefore, that the indorsees of the notes took them discharged of all equities between the original parties, and that the defense of a breach of warranty, alleged to have been made by Benbow, was not available to the Scotts.
(80 Pac. 955.)
SYLLABUS BY THE COURT.
1. Warranty — Limitation. Ordinarily a general warranty of condition does not cover defects which are plain and obvious to the purchaser, or are at the time known to him.
2. - Obvious Defects Not Included. Representations as to the condition of a second-hand thrashing-machine known to he defective, made to a purchaser who is experienced in handling such machines and competent to repair them, and who actually did repair the machine sold for the seller and thus learned its condition before accepting it, impose no liability on the seller for breach of warranty, since an obvious defect known to the parties when the general warranty was given is not deemed to be included in it.
No error was committed in sustaining the demurrer to defendant’s evidence, and the judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
F. D. Wolcott recovered a judgment on January 20, 1902, against F. M. McConnell and Florence McConnell, his wife, for $2206.50. An execution was issued January 29,1902, which was returned Feb ruary 18,1902, wholly unsatisfied for want of property on which to levy. February 18, 1902, the plaintiff instituted supplementary proceedings in aid of execution by filing an affidavit that the defendants had property which they unjustly refused to apply toward the satisfaction of the judgment, and an order was-issued commanding them to appear before the probate judge on February 20 to answer questions touching their property, which was served upon them on the-same day. At the time of the service Mrs. McConnell had in her possession a draft for $1500. Before-the time set for their examination the defendants used-this draft for the purchase of a residence, into which they at once moved, claiming it as a homestead. These-facts being developed upon the hearing before the probate judge, the plaintiff asked that the real estate so-acquired and held be subjected to the payment of his-judgment. This relief was refused by the probate court, but upon appeal the district court reversed the decision and ordered the property sold to pay the judgment. This proceeding is brought to review the action of the district court.
It is claimed by the defendant in error that the service of the order for the judgment defendant to appear and submit to examination as to her property gave rise to a new status, and that from that moment no-transfer of her funds could be operative as between her and the judgment plaintiff; that the draft in her-hands was in effect impressed with a lien in his favor. This contention finds much support in the authorities. In volume 24 of the American and English Encyclopedia of Law, first edition, at page 656, it is said :
“The creditor, by instituting supplementary proceedings, acquires a lien upon the equitable assets of the debtor, which takes effect from the time of service-of the order.”
The decisions bearing upon the matter are collected and classified in the notes to the paragraph in which this language is used. (See, also, 21 Cent. Dig. cc. 2064—2066; Billson v. Linderberg, 66 Minn. 66, 68 N. W. 771.) The principle announced is seemingly so strongly entrenched in the adjudicated cases that the argument may plausibly be made that the question should be regarded as settled, and the reasoning upon which it is based no longer open to inquiry. This consideration no doubt had great weight with the learned trial judge — a supposition which is strengthened by the circumstance that upon a first submission he approved the ruling of the probate court, and only reached a contrary conclusion upon a rehearing, after he himself had granted a new1 trial. Upon a close examination, however, we think the force of this line of decisions is less than it might at first appear. The doctrine referred to originated in New York, and, so far as it.is applied in cases arising under statutes similar to ours, has been authoritatively approved only in the states of Wisconsin and Minnesota, and there only in decisions made without a full discussion, based expressly upon the prior holdings of the New York courts. The earliest judicial expression in the matter was made by the supreme court of New York in 1850, in Porter v. Williams and Clark, 5 How. Pr. 441, a special-term decision by one judge, in which it was said :
“The code is silent as to the time when the judgment creditor shall be deemed to have acquired a lien upon his debtor’s equitable effects; but I think the order for his examination, made under the 292d section [equivalent to section 483 of the Kansas code] , should be construed to give the creditor the same lien which he acquired under the former practice, by the commencement of a suit by creditor’s bill.”
An appeal was taken to the court of last resort and the judgment of the lower court was affirmed, but upon grounds in no way connected with the proposition stated in the portion of the opinion quoted, which was entirely ignored.
In October, 1857, the question again arose, this time before the supreme court for the fifth judicial district. (Voorhees v. Seymour, 26 Barb. 569.) In the first paragraph of the syllabus (one judge out of four dissenting) it was held :
“A judgment creditor, by commencing supplementary proceedings against the judgment debtor under section 292 of the code, and obtaining an order-for the examination of the debtor, does not acquire a prior right to, or lien upon, the equitable assets of the debtor.”
The opinion presents the fullest discussion of the question under consideration to be found in any of the reports. The earlier case, so far as it bore upon this matter, is there disapproved, branded as dictum, and held to be unsound in principle, attention being called to the fact that the affirmation of the judgment was based upon other considerations. Nevertheless, in March, 1858, in the case of Edmonston v. McLoud, 16 N. Y. 543, when the court of appeals was first required to pass upon the question, it followed Porter v. Williams and Clark, supra, without any discussion and without referring to Voorhees v. Seymour, supra (which seems not to have been cited in the briefs, perhaps because then so recently announced), it apparently being assumed that the affirmance of the former case involved the adoption of all the views there expressed. It is therefore obvious that the construction placed upon the statute by an inferior court, through a misapprehension, and without independent examination by the highest court, became the settled law of the state.
In view of this situation it is probable that the question might thereafter have received further investigation upon its merits by the New York court of appeals, except for a new condition affecting the matter, arising from subsequent legislation. In fact, a doubt of the soundness of the accepted doctrine was expressed in Becker v. Torrance, 31 N. Y. 631; but in 1862 it was decided,in Van Alstyne v. Cook, 25 N. Y. 489, that by the service of an order for the examination of a judgment defendant in supplementary proceedings no lien was acquired upon such personal property of the defendant as was subject to execution, the question as to the effect upon other personal property being explicitly left for future determination. In view of this decision the legislature in the same year amended the statute by adding provisions giving in express terms a lien, defining its extent, and specifying the time when it should take effect. In consequence of this amendment it became unnecessary to make any further judicial inquiry concerning the interpretation of the law as it was originally enacted.
A precedent so established has little force as an authority, and, unless justified by sound logic, it ought not to be followed. The argument offered in its support is this : The filing of a creditor’s bill gave the judgment creditor a lien upon the equitable assets of his debtor, and, inasmuch as the statutory remedy is a substitute for that in equity, the commencement of proceedings under it should be given the same effect. That such a lien results from the beginning of a creditor’s suit is well settled. (12 Cyc. 61.) It may also be granted that the statutory proceeding, although not a complete substitute for the equitable remedy, in the sense of precluding resort to the latter, is so nearly akin to it that it should by analogy be governed by the same rules, except where a special reason to the contrary exists. The reasons for the enforcement of the lien in the equity practice are that the superior diligence of the creditor who first takes steps to enforce his demand out of the debtor’s intangible assets should be rewarded by securing to him the fruits of his own efforts, and that the doctrine of Us pendens applies from the time a bill is filed. It has been said with much plausibility that in order for a creditor’s bill to give a lien it must point out specific property sought to be reached (12 Cyc. 64, e), and a distinction might be made in this regard in the case at bar.
But a more obvious consideration invites attention. The statute, while in a sense providing a substitute for the suit in chancery, purports to afford a complete remedy in itself. One of its provisions (Code, § 491; Gen. Stat. 1901, §4968) is that “the judge may also by order forbid a transfer or other disposition of the property of the judgment debtor not exempt by law, and any interference therewith.” Now, this right to an order which must have the effect of preserving the status of the defendant’s property is not an outside matter. To avail himself of it the plaintiff need not resort to equity, or begin any new action. It is afforded by a part of the very statute under which he is proceeding. He may procure an order for the examination of the defendant, with or without the further order forbidding the transfer of any property. If the mere order for such examination operates as a lien on the debtor’s assets it is difficult to see the purpose of the provision for an order against a disposition of his property, or the effect of such an order when made. In The Union Bank of Rochester v. The Union Bank of Sandusky, 6 Ohio St. 254 (citing with approval Porter v. Williams, supra), it was said that where a third person alleged to be indebted to the judgment defendant is served with notice to appear and answer as to such matter, no order forbidding a transfer need be made in order to bind any property in the hands of such third person, who is in effect a garnishee. The conclusion announced was mere dictum, for the court held that no valid notice of any kind had been served; but it would not be difficult to make a distinction between that case and the one at bar. Such a distinction was recognized by the federal circuit court for the southern district of Ohio in Gregory v. Hewson and Holmes, 1 Bond, 277, Fed. Cas. No. 5801, where it was said :
“The supreme court of Ohio, in the case of. The Union Bank of Rochester v. The Union Bank of Sandusky, 6 Ohio St. 254, hold that where, at the instance of a judgment creditor, a third person had been cited to answer as to property and effects held by him belonging to the judgment debtor, the notice operated as Us pendens, and that the party, from the time of the service of the notice, could make no disposition of the property or effects in his hands. But clearly this principle does not apply to the case of a judgment debtor, as to 'whom there has been a mere order for his examination, without an order restraining him from disposing of his property.”
Cases may be imagined in which the judgment creditor, while desirous of investigating his debtor’s real condition, might not wish to tie his hands by impressing a lien upon his assets, and in which the interests of both might be jeopardized if such a result were the necessary consequence of taking the first step toward such an inquiry. Inasmuch as the statute by specific provision affords ample means by which the judgment plaintiff may prevent the transfer by the defendant of any property pending an inquiry into his condition, we see no occasion for holding that such a result will follow where this provision is not invoked. Since in this case no order was made or asked against the disposition by defendant of the-draft or other property in her possession, we conclude-that, notwithstanding the service upon her of the notice requiring her to appear and answer as to her property, she was at liberty to purchase and pay for a homestead, which could not be sold for the satisfaction of the judgment.
A further argument is made that in view of all the-circumstances of the case, irrespective of any question, of a specific lien, the property claimed as a homestead ought to-be subjected to the payment of the plaintiff’s, judgment for the reason that to refuse this is to allow the defendants to make the exemption given them by the law a means of defrauding the plaintiff. It appears that, prior to the term of court at which the judgment was rendered, the defendants sold some real estate which they owned,'for the express purpose of' placing their property beyond the reach of the expected judgment ;• that after the term began they sold another tract, which it is claimed was their homestead, and which, but for its homestead character,, would have been subject to the lien of the judgment; that the proceeds of these sales were squandered by defendant F. M. McConnell before his examination took place; that the $1500 draft'was not the proceeds of the sale of any of the tracts just referred to, or of any homestead, but was derived from the sale of' property belonging to defendant Florence McConnell, made several years before ; that the draft was used for-the purchase of the real estate in question for the; purpose of exchanging it for property that should constitute a homestead and be beyond the reach of an execution on plaintiff’s judgment.
We do not think that these facts make the investment of the wife’s funds in a homestead a fraud upon plaintiff. The prior sale of other real estate with a view to evade the enforcement of the judgment had no effect upon any question relating to the exemption of the homestead. The plaintiff had no peculiar claim upon the draft with wThich the homestead was purchased, such as, in the case of Long Brothers v. Murphy, 27 Kan. 375, was held to authorize a creditor to hold for the payment of his demand property otherwise exempt. The homestead exemption may be asserted even as to property purchased by an insolvent debtor with the proceeds of non-exempt property, in the absence of any special equity existing in favor of a creditor. (15 A. & E. Encycl. of L., 2d ed., 617.) The fact that the exchange may have been made for the very purpose of acquiring exempt property does not alter the rule. (Jacoby v. Parkland Distilling Co., 41 Minn. 227, 43 N. W. 52; Paxton v. Sutton, 53 Neb. 81, 73 N. W. 221, 68 Am. St. Rep. 589.) The fact that the defendants disposed of one homestead at a time when they were enabled to convey a good title only because it was exempt did not preclude their subsequently acquiring another. At the time of the purchase of the property in question they had no homestead. Nor was any claim of exemption asserted with regard to the proceeds of the former homestead on the theory that it was to be devoted to the purchase of a new one. The sale of the first homestead, so far from being a fraud upon plaintiff, was theoretically beneficial to him, as it converted exempt into nonexempt property. In this situation it was competent for the defendants to acquire a new homestead with any means they might have. To hold otherwise would be to say in effect that if an insolvent head of a family sells his homestead, being enabled to do so by reason of its being exempt, and spends the purchase-money, he may never thereafter acquire another homestead as against creditors whose claims existed at the time of the sale. This, we think, is not the law.
The judgment is reversed, and the cause remanded for further proceedings in accordance herewith.
All the Justices, concurring. | [
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The opinion of the court was delivered by
Burch, J. :
The single question in this case is whether a bowling-alley is exempt from seizure and sale on execution, the term “bowling-alley” being construed to connote pieces of wood so joined as to permit a plane surface 42 inches wide and 72 feet long, and wooden pins and wooden balls, all used in the game of bowling. The party claiming the exemption is the head of a family, has no income except revenue derived from the use of the alley, and the amount of money received from that source is not greater than the'reasonable necessities of life require.
The decision turns upon the meaning of the eighth subdivision of section 3018 of the General Statutes of 1901. The statute reads :
“Every person residing in this state, and being the head of a family, shall have exempt from seizure aud sale upon any attachment, execution or other process issued from any court in this state, the following articles of personal property: . . . Eighth, the necessary tools and implements of any mechanic, miner, or other person, used and kept in stock for the purpose of carrying on his trade or business, and in addition thereto, stock in trade not exceeding four hundred dollars in value.”
By section 3019 a like exemption is allowed in favor of a person not the head of a family, except that the word “instruments” is used in the place of “implements.” Evidently the two words were meant to describe the same species of property, and should be regarded as of identical import, and decisions of this court interpreting the meaning of section 3019 are authoritative when applied to section 3018.
Tools and implements are usable articles employed as means to effect an end. A mechanic works upon wood, metal, and other substances, and fashions them into desired forms or structures. That is his trade, or business. The production of the desired form, or structure, is the end in view. Tools and implements are employed to bring about the desired result. The miner digs minerals from the interior of the earth; the matter of extracting the coveted substance and bringing it to the surface is his trade, or business. In order to conduct it he uses tools and implements.
The exemption law names the mechanic and the miner. Not wishing to compile a catalogue of all tool-using trades, the framers of the statute followed these two particular descriptions by the words, “or other person,” and their meaning is. other persons obliged to use tools or implements to carry on their trades, or business, in the same way that a mechanic or miner requires tools and implements to carry on his trade or business.
The rule of interpretation employed is known technically as that of ejusdem generis. It requires that the meaning of general terms be restricted by particular words preceding them (Small v. Small, 56 Kan. 1, 14, 42 Pac. 323, 30 L. R. A. 243, 54 Am. St. Rep. 581), and it was applied by this court to the section of the statute now under consideration in the case of Guptil v. McFee, 9 Kan. 37. In the opinion in that case Mr. Justice Valentine said:
“The words of the eighth section [subdivision] were intended to comprehend a class of citizens who earn their livelihood by the use of tools and implements, in whole or in part. A man may derive his principal support from some business in the exercise of which tools and implements are necessary, and still not be strictly a mechanic or miner. Such persons were intended to be included by the words ‘or other person,’ in this subdivision of the act, and it should read, ‘the tools and instruments [implements] of every mechanic, miner, or other person, to the exercise of whose trade or business tools or implements are necessary.’ ”
It is obvious that the bowling-alley cannot be used as a requisite to an end like a saw and plane, or a hammer and anvil, or a pick and shovel. Its keeper has no object to accomplish beyond its mere main tenance for hire. He has no trade, or business, beyond the mere keeping and letting. All notions of use and of instrumentality are wanting, and unless an article be adapted to employment as a utensil in the execution of some design or the production of some result after the analogy of the tool or implement of the mechanic or miner the protection of the statute does not extend to it. This distinction is plain from all the cases.
A lamp, show-cases, tables and other pieces of personal property used by a jeweler in the business of manufacturing and repairing watches and jewelry are exempt, because used by him in promoting a mechanical enterprise. (Bequillard v. Bartlett, 19 Kan. 382, 27 Am. Rep. 120.)
Cheese-vats, cheese-presses, curd-knives and other appliances used by a woman in making cheese are exempt. They are tools and implements necessary to her business of making cheese. (Fish v. Street, 27 Kan. 270.)
An iron safe, a set of abstracts, a cabinet and a table used by an abstracter in his business of making and supplying abstracts of title to persons desiring them are exempt. The trade or business is that of an abstracter of titles. The safe and other articles named are means whereby the abstracter carries on that business, through which he procures a livelihood. (Davidson v. Sechrist, 28 Kan. 324.)
A printing-press and printing materials employed in editing and publishing a county newspaper are tools and implements of the editor, printer, and publisher. (Bliss v. Vedder, 34 Kan. 57, 7 Pac. 599, 55 Am. Rep. 237; Jenkins v. McNall, 27 id. 532, 41 Am. Rep. 422.)
The harness and buggy of a man earning a living by driving through the country soliciting life insur anee are true implements when kept and used by the owner for the purpose of carrying on his business of insurance. (Wilhite v. Williams, 41 Kan. 288, 21 Pac. 256, 13 Am. St. Rep. 281.)
The tools of a tinner engaged in putting tin roofs upon buildings are exempt because they are necessary to carry on that kind of work. (Miller v. Weeks, 46 Kan. 307, 26 Pac. 694.)
The omnibus of a hotel-keeper used to carry guests to and from his hotel, and necessary for the successful conduct of the business of keeping a hotel, is an implement of that vocation. (White v. Gemeny, 47 Kan. 741, 28 Pac. 1011, 27 Am. St. Rep. 320.)
In all of these cases the debtor was engaged in some trade, or business, as a means of support, as an incident to which he was obliged to resort to the agency of some article or appliance as a means of effecting the ultimate end, and such use alone converted the article into a tool, or implement, within the meaning of the law.
The distinction between tools and implements which the debtor must use in order to perform some work in which he is engaged, and articles which may be kept for other purposes, is illustrated in the fourth subdivision of the third section of the exemption law (Gen. Stat. 1901, §3018), which withholds from the reach of process, among other things—
“one sewing-machine, all spinning-wheels and looms and all other implements of industry, and all other household furniture not herein enumerated, not exceeding in value five hundred dollars.”
Household implements of industry are analogous to the tools of a trade, but other household furniture, within the limit of value, may consist of pictures upon the walls, mere ornaments, furniture for a guest-room or furniture for persons who may pay for board or rent rooms in the house. (Rasure v. Hart, 18 Kan. 340, 26 Am. Rep. 772.)
By virtue of the same principle the lamp, showcases, tables and other utensils of the jeweler in Bequillard v. Bartlett, supra, when kept and used as an adjunct to his business of keeping a jewelry store, were not exempt; and if the tinner’s tools in Miller v. Weeks, supra, had merely formed a part of the defendant in error’s stock of hardware they would have been mere merchandise.
The debtor claims that he has the same rights as the fiddler in the case of Goddard v. Chaffee, 2 Allen, 395, 79 Am. Dec. 796, and enforces his argument by an illustration from the thrilling drama of Richelieu, as follows :
“As around the sacred form of his beloved niece the aged cardinal drew the magic circle of the church at Rome, the precincts of which no myrmidon of the temporal law dare penetrate, so around certain things the people of this commonwealth have erected a barrier to penetrate which no court can issue a writ sufficiently forceful, and among these certain things are ‘ the necessary implements of a person used and kept in stock for the purpose of carrying on his business.’ ”
The fiddler, however, could operate his own fiddle with some profit; but the debtor in this case might enter his alley in the morning when the sun’s flamboyant beams of gold and fire first break upon the still and pulseless world and stay there until its expiring rays ensanguine the cloud heaps of the west with an angry dye, making the vibrant earth to tremble with the thunder of his rumbling balls and shivering the circumambient air with the crash of his stricken pins without making a cent, or even arousing a suspicion that he was at work, or was using the tools and implements of any kind of trade or business; but, more than this, he does not claim that he is even a bowler, engaged in the business of bowling, and that he cannot work at his trade except by the aid of his alley ; and until he does something equivalent to this, and establishes himself on the plane of the woman making cheese, by showing that his alley is an instrumentality in the same sense as her vats and presses and curd-knives, it is subject to the payment of his debts.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
William R. Smith, J. :
It is unnecessary in arriving at a conclusion to comment on each of the fifteen assignments of error contained in the brief of counsel who contend for a reversal of the judgment. A general discussion of the rules of law applicable to the facts will be sufficient.
The chief contention of plaintiff below in the trial court, and renewed here, was that the city of Wichita gained no rights to the land which is the subject of the action prior to May, 1888, when it was brought into the corporate limits. A further claim of plaintiff below, formulated into an instruction, which the court refused, is to the effect that if the county commissioners in 1885 laid out a highway 60 feet wide south of the land in controversy, which was equally as well adapted for road purposes as the strip adjoining it on the north, and there was no necessity shown for the public to travel out of such legally established highway, then the jury should have inferred that travel over the disputed strip was an accident merely, and did not show an intentional motive to claim adversely.
Counsel for plaintiff in error admitted on the trial that if Griffenstein made either a common-law dedication or a grant of this- property for public purposes before it came into the city limits the city took the same rights that the dedicator gave. Counsel said:
“We further admit that if it was a title to a specific piece of ground referred to had been acquired by the public, if there is such a thing as title by prescription in a highway, before it came into the city, the city would take the same and no further rights than the county had prior to that time. They would just step into the shoes of the county.”
This concession is in accord with the rule found in Elliott on Roads and Streets, section 116. No express grant by Griffenstein is relied on, but a common-law dedication only, operating by way of estoppel in pais; nor is there any claim of express acceptance of the strip in question for the uses of a road or street by the public authorities.
It cannot be denied that the owner of suburban property might by his conduct estop himself from denying that a strip of land through his farm of the present width of Douglas avenue had been acquired as a road by continuous and uninterrupted public use, to his knowledge, after many years of travel over it. Griffenstein, in 1871 or 1872, platted his first addition east of the land involved in this action. It extended to the north line of Douglas avenue. He dedicated a strip 114 feet wide as a street (Douglas avenue) from Lawrence avenue on the east to Water street on the west. Again, in 1872 he platted his second addition, extending Douglas avenue 300 feet west of Water street, to the width of 114 feet. He thus made Douglas avenue, 114 feet in width, abut at the west end on the tract in question, which is but fifty-four feet wide. All the time from 1872 until 1902 the public used the land as a road or street (an extension of Douglas avenue) to the width of 114 feet, with Griffenstein’s knowledge, until 1886, and without interference by the subseqent proprietors.
Much stress is placed on the fact that the county in 1885 laid out a public road 60 feet wide south of the land in controversy and within the strip 114 feet wide. It is contended that the rights of the public were fixed and concluded by this, and that any adverse user of the land adjacent to this county road on the north could not affect the rights of Griffenstein or subsequent owners. There was testimony tending to show that the establishment of this road did not confine public travel to the land within its boundaries ; that pedestrians, teams and vehicles going to and coming from the Arkansas river bridge traveled as much on one side of the 114-foot strip as on the other, to the knowledge of Griffenstein. He seems to have ’made no objection or protest against such use of his property, and asserted no claim of ownership adverse to the public, except in one instance when in 1884 he tendered a plat of the strip in controversy and petitioned the city council to take it into the corporate limits as Griffenstein’s ninth addition, which the governing body of the city refused to do. After this denial of his petition he asserted no dominion over the strip of land. It was shown not to have been assessed for taxes since 1885. In 1874 Griffenstein conveyed property owned by him abutting on the strip 114 feet wide, the north part of which is in controversy.
His other acts while mayor, set forth ip the statement, in recognition of the public character of the. west end of Douglas avenue to the full width now claimed by the city, were competent evidence showing that adverse user of it was known to, and acquiesced in by, Mm. (Ritchie v. City of South Topeka, 38 Kan. 368, 16 Pac. 332.)
It was a question of fact whether the attitude of Griffenstein respecting this land was such as to induce a belief that he intended to dedicate it to highway purposes. (13 Cyc. 485.) This question was submitted to the jury, with all the circumstances showing his acquiescence while the public occupied and used his property, at first for a road, and afterward for a street.
“It is essential that the donor should intend to set the land apart for the benefit of the public, for it is held, without contrariety of opinion, that there can be no dedication unless there is present the intent to appropriate the land to the public use. If the intent to dedicate is absent, then there is no valid dedication. The intent which the law means, however, is not a secret one, but is that which is expressed in the visible conduct and open acts of the owner. The public, as well as individuals, have.a right to rely on the"conduct of the owner as indicative of his intent. If the acts are such as would fairly and reasonably lead an ordinarily prudent man to infer an intent to dedicate, and they are so received and acted upon by the public, the owner cannot, after acceptance by the public, recall the appropriation. Regard is to be had to the character and effect of the open and known acts, and not to any latent or hidden purpose. If the open and known acts are of such a character as to induce the belief that the owner intended to dedicate the way to public use, and the public and individuals act upon such conduct, proceed as if there had been in fact a dedication, and acquire rights which would be lost if the owner were allowed to reclaim the land, then the law will not permit him to assert that there was no intent to dedicate, no matter what may have been his secret intent.” (Ell. Roads & Str. § 124.)
In section 126 of the work last cited the author comments on the rule of law that dedication may exist, although the owner may have a secret intent not to dedicate, on the principle that a man is presumed to intend the usual and natural consequences of his acts. Id this case the jury, deducing intent from acts, might justly have decided that a certain design and motive existed from outward evidence, when in fact the secret and undisclosed purpose of Griffenstein was directly contrary.
The acts of the mayor and council in reaching beyond the limits of the municipality and improving the extension of Douglas avenue before it was brought into the city were competent evidence tending to show that as against Griffenstein the public asserted rights in and over the strip. The public use after the strip became a part of the city did not differ from the public use from' 1872 until it was included within the city limits. The mere fact that after it had been used as a country road for many years its character was changed to a city street did not affect the rights which the public gained in the land for a thoroughfare, nor in any manner make the acquiescence of Griffenstein in such use less effective as an estoppel against him. In Cemetery Association v. Meninger, 14 Kan. 312, 316, Justice Brewer, speaking for the court, said :
“No formal acceptance by any particular authorities is essential. The mere user by the public may be of such a character as to constitute an acceptance. Indeed, such user by the public with the knowledge of the owner may be sufficient evidence of both the dedication and the acceptance. We know this doctrine is denied by some courts, but it seems to us to rest upon the soundest principles.”
The appropriation of the highway by persons traveling over it was evidence of a dedication, whether the users resided in or out of the city. Proof of the use of the way by inhabitants of Missouri, Arkansas or Texas would have been competent in support of a common-law dedication by the owner of the soil.
In section 154 of Elliott on Roads and Streets, under the head of “Acceptance by. Public Use,” the author says :
“The ‘town, county, or parish,’ using Professor Greenleaf’s terms, is represented by the town, county or parish officers, but the officers are not the corporation. The municipal corporation consists of the inhabitants and not the officers; the officers are, in truth, nothing more than the agents of the corporation. The inhabitants, therefore, stand to the officers as principals, and if the principals have, by their conduct, accepted the dedication, it is of no great importance that the agents have taken no action in the matter. The inhabitants of a locality having by long-continued use treated the way as a public one, they make it such without the intervention of those who derive their authority from them. Creating towns, cities, and other public corporations, is ‘but the investing the people of the locality with the government thereof,’ and they may themselves exercise the powers of government of highways quite as effectually by continued use as by any other method.”
The traveling public appropriated the highway. That at a certain period of time after the use began the city took jurisdiction over it is immaterial if the use was continued.
We have examined the instructions given and those refused, and given attention to the alleged erroneous action of the court in admitting evidence, and find nothing requiring a reversal of the judgment. It is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
Plaintiff in error,. James, on March 11, 1901, was engaged by the defendant in •error, Parsons, Rich & Co., to work for it as a traveling salesman until the 1st day of October of the same year, at a monthly salary of $85, the same to be due and payable on the first day of each calendar month. He did so work until the 3d day of May, 1901, when without adequate cause or excuse he was discharged from his employment by the defendant. Estimated at the rate he was to receive by the terms of the contract, he had earned up to this time $53.66, but this •sum included the balance due up to the 1st of May and the amount earned during the first three days of May, but not as yet due. On the 4th day of May the plaintiff commenced a proceeding in the district court of Saline county to recover from the defendant upon two causes of action : (1) For the $53.66 salary ; (2) for $425, the amount of salary that would be due him under the contract for the five months from May 1 to October 1, and, also, for the further sum of $1000, which he alleged he had been damaged because of the defendant’s breach of the contract in discharging him. A demurrer to the second cause of action was sustained, and that was dismissed by the plaintiff without prejudice. Judgment was rendered upon the first cause of action for the amount prayed for, $53.66, which judgment was subsequently satisfied in full by the defendant.
This action was commenced before a justice of the peace of Cloud county, on August 26, 1902, to recover under the contract the salary due to the plaintiff for the five months from May 1 to October 1, 1901, less $140, which he alleged he had been able to earn during that time in other employment. As a defense the defendant pleaded the former proceedings and recovery had in the Saline county district court, and claimed that those proceedings and that recovery were a bar to recovery in this action. The district court so held, and adjudged the plaintiff to pay the costs of his action. This ruling is assigned as error here. It involves the consideration of the rights of one hired for a definite time at a definite wage or salary and discharged from service without adequate excuse before the expiration of such period. The authorities are quite uniform as to the rules which govern in such a case. The discharged servant has the option of two remedies : First, he may take the employer at his word, treat the contract as terminated, and sue as upon a quantum meruit for the value of all services rendered, regardless of whether the same is due by the terms of the contract or not, and regardless of the amount he was to receive under the terms of the contract. This is permitted upon the theory that there is no contract, both parties having elected to rescind it. Second, the discharged servant may stand upon the terms of his contract and insist upon his rights thereunder. Those rights are that he recover all wages due by its terms and as they become due, and also such damages as he may be able to show have, or will, result to him from its breach. Both of these elements of damage are based upon the contract. (Wood, Mast. & Serv., 2d ed., § 127; 20 A. & E. Encycl. of L., 2d ed., 36; Keedy v. Long, 71 Md. 385, 5 L. R. A. 759, note, and cases cited.)
He cannot, however, have both of these remedies, either simultaneously or by successive actions ; having elected to pursue either, he is barred from pursuing the other. It is quite evident he cannot at one time claim relief on the theory of no contract and at another claim under the contract. Now, how was it here? In the Saline county action the plaintiff, while ostensibly counting upon the contract, and in both causes of action seeking to recover under its terms and for its breach, was really in the first cause of action seeking to recover not only the wages for April, which were due and recoverable under the contract, but those for the three days in May, which were not due under the contract, and which were recoverable only on the theory that there was no contract; that is, he was seeking to recover and did recover for those three days upon a quantum meruit, and not under the terms of the contract. This was an election on his part that he would treat the defendant upon its own ground, as if no contract existed, and having so elected he could not thereafter shift his ground and pursue it upon the theory of an existing contract, as he attempted to do in the case subsequently brought in Cloud county. He is bound by his first election. The principle must apply with the same certainty when the value of but three days’ work was recovered for the same as though a much longer time was involved.
The plaintiff insists that the Saline county action was brought upon the contract, and involved only wages due under the terms of the contract, and, therefore, having dismissed that cause of action, which claimed for wages for the balance of the time after May 1 under the terms of the contract, he could subsequently maintain an action for such wages. This would be true if his assumption that his first cause of action was entirely for wages then due were correct; but it is not. His action in Saline county for wages due for the three days in May was not under the contract, for by the contract such wages were not due and could not have been recovered until the 1st day of June. His recovery for these three days was upon a quantum meruit. He probably recovered for those days only the amount that would have become due him under the contract, but he recovered it before it was due. He might have recovered more if he had shown that his services were worth more, as he was suing and recovering, not under the contract, but on the theory of quantum meruit. Again, we doubt the right of the plaintiff to recover in this action even upon his own theory that the Saline county action was based upon the contract, for in that case he recovered a portion of the May wages. In this case he is seeking to recover the balance of the May wages ; that is, he is splitting his cause of action. This is not permissible.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
The appellant was convicted of selling intoxicating liquors and maintaining a nuisance in violation of law. From this conviction he appeals.
The first alleged error is that the court overruled his challenge of juror Hart. This juror, on his voir dire, stated that he was more in favor of the enforcement of the prohibitory law than any other law, and for this reason appellant maintains his challenge should have been sustained. Every man has a standard of morality of his own, and he believes that the enforcement of laws which tend to establish and maintain his standard is of more consequence than the enforcement of other laws; but all good citizens are in favor of the enforcement of all criminal laws. The degree of such desire is not a test of the qualification of one to act as a juror, if he is otherwise qualified. It was not error for the court to overrule appellant’s peremptory challenge of juror Hart.
Another contention is that juror Diehl disqualified himself, and that the court erred in overruling the appellant’s challenge of him. This juror stated that “the mere fact that a man was charged with a violation of law created some presumption in his mind, that the person charged was guilty, and that he-would start into the trial with that presumption.”' In answer to interrogatories put to him by the court,, after the full import of the question had been explained to him, this juror showed that he did not want to be understood as stating that, simply because the appellant was charged with an offense, it was sufficient to, or did, create in his mind an opinion that the accused was guilty.
Errors are also predicated on certain questions asked the appellant’s witnesses, on cross-examination, about having seen Kelley and other persons about defendant’s place in an intoxicated condition. These questions were all proper for the purpose of establishing the fact that the place kept by Kelley was one where intoxicating liquors were sold or given away and diunk in violation of law.
It is urged that the court erred in refusing to instruct the jury as follows :
“You are instructed that there is a presumption that clings to a person charged with crime, through every successive step of his trial, that he is innocent, and this presumption is never weakened, relaxed or destroyed until there is a judgment of conviction, and it is your duty, if possible, to reconcile the evidence with this presumption. The defendant is not required to prove his innocence. All that is demanded of him is to show such a state of facts as to create a reasonable doubt of his guilt.”
This instruction is made up of language used by this court in The State v. Child, 40 Kan. 482, 20 Pac. 275. It was there used in explanation of section 228 of the criminal code, as applicable to the appellant’s alibi. The trial court in that case treated such defense as it would new and affirmative matter pleaded in an answer in a civil action, and instructed the jury that the burden of proof was on the accused to prove the alibi. It was in denying the application of this rule to criminal cases that this court used the language embodied in the instruction requested by the appellant in this case.
It is not error for the trial court to refuse to give the reason for the application of the principle of law in a criminal case, or to refuse to enter into any explanation of the rule. Such practice might tend to confuse the jury, without being of any benefit to the defendant. In the present case the court twice stated the rule contended for correctly, once in the following language:
“The defendant has entered a general plea of not guilty, and hence, before he can be convicted of the crime charged in any one of said counts, you must be satisfied from the evidence, beyond a reasonable doubt, of the truth of the charge in said counts contained, respectively, or some one of them.”
One of the grounds relied on for a new trial was the misconduct of juror Crouse, which consisted of an alleged conversation by him, while a juror, with some unknown person. This was testified to by one J. W. Mann by way of affidavit, to which Crouse filed a counter-affidavit specifically denying any conversation. J. W. Mann was a witness, and was seen by the judge while on the witness-stand, and, in weighing his evidence against that of the juror, the court believed the statement of the juror and disbelieved the statement of Mann. Upon an examination of Mann’s affidavit, and the circumstances related by him concerning this supposed conversation, we think the court was justified in its conclusion.
In support of the alleged misconduct of a juror, W. J. Costigan filed an affidavit in which he stated that one David Miller, a juror in said cause, had told him that “a fellow juror with said Miller on the trial of said cause, at said term, stated to said Miller that a neighbor of his informed him that, if he wanted to purchase any liquors or intoxicants, all he had to do was to go to the place of business kept by J. W. Kelley, the defendant in the above-entitled cause, in Ottawa, and ask for them, and the said Kelley would immediately procure said liquors for him.” The facts thus stated were hearsay, and the court might wholly exclude them in passing upon the motion.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was brought for damages to certain goods caused by the accumulation of surface-water in the cellar of defendants in error, plaintiffs below. The only errors complained of are those supposed to have been committed by the court in charging and in refusing to charge the jury. For this reason only, so much of the evidence as it was supposed would show the relevancy of the instructions-given, and those refused, has been brought to this court. The verdict of the jury was a general verdict, and no special findings of fact were made. Hence we shall not attempt to-comment upon the evidence, nor upon the facts of the case, any further than is necessary in reviewing the instructions, but will confine our remarks to the instructions given and those refused.-
The evidence brought to this court tends to prove that the plaintiffs’goods were injured in the following manner: The cellar of the plaintiffs was located near the middle of the south side of block fifteen in the city of Atchison. Sixth street was situated immediately west of said block. The ground on said block, near the southwest corner thereof, was lower than it was anywhere else. Sixth street was graded so as to prevent the surface water from flowing from said block, and so as to cause it to accumulate on this low ground, and there produce a pond. About the last of October 1870 excessive rains fell and raised this pond much higher than usual. From this pond the water passed eastwardly through several cellars successively, and finally reached the plaintiffs’ cellar, and there caused-the injuries complained of. .The evidence also tends- to show that at one time the city put a box culvert under Sixth street, about half the width of the street, for the purpose of carrying off surface-water from the north half of said block, but “no provision was ever made by the city for draining the south half of said block.”. After-wards the city graded Sixth street, and at the same time so filled up said box culvert that it was never afterwards used as a culvert. Said pond was filled by water flowing from both the north half and the south half of said block.
The rulings of the court below in charging the jury were unquestionably erroneous. But Avhcther the errors affected the substantial rights of the defendant beloAV, (plaintiff in error,) is more difficult for us to determine. . After a careful examination of the Avhole case aatc have however come to the conclusion that wc cannot say that said errors did not affect the substantial rights of the defendant beloAV, but on the contrary AAre think Ave can say that they did. We think that they AArere not only errors of law, but that they tended to mislead the jury as to the facts. The judgment must therefore be reversed for said errors. The substance of the charge, as gathered from the instructions given and from those refused, Avas in brief about as folloAVS: Whenever a city attempts to carry off surface-water by constructing an artificial drain of any kind, of any size, or of any capacity, whether for temporary purposes or for permanent use, the city thereby becomes and forever remains absolutely responsible as an insurer against any and all damages that may be caused by the floAv of surface-water, Avhatever may be the extent of the rains; that if for want of a sufficient drain, certain water for which the city is responsible, whether much or little, contributes, along with other water, however much, for which the city is not responsible, to damage certain goods, the city is liable; that a city has no right for any cause to ever abandon a drain once constructed, but if the city has ever constructed any land of a drain they must keep and continue in operation a sufficient drain forever.
We suppose it is well settled that a city has a right to grade its streets, and if done with proper care it will incur no liability of any kind, or to any person, Avhatever inconvenience may result to individuals. It may incur liability by carelessness' or negligence in grading a street, or by so grading a street as to stop up or obstruct a natural Avatercourse, or by carelessly or negligently alloAving a drain or sewer already constructed ,to “become''filled up or obstructed so as to cause injury to a private individual; but it cannot incur liability by simply grading a street so as to stop, the passage of merely surface-Avater, and thereby cause such water to accumulate on the premises of some private individual. It is undoubtedly true, that a city, in grading its streets, is bound to keep open a sufficient channel for a natural Avatercourse so as not to obstruct in the least the Avaters flowing therein; but it is equally true, and as Avell settled, that a city is not bound to construct any channel, culvert, seAArer, or drain, to carry off merely surface-Avater. The construction of sewers and drains to carry qff merely surface-Avater is purely discretion-' ary Avith a city. It may construct them or not, at its option, and just as it may think best. With these vieAvs Ave think the rulings of the court beloAV harmonize, andaré therefore to this extent not erroneous. " But the court .below Avent further. Upon its rulings Ave think the following questions among others are' raised, to-wit: First.-Wh.en a city .constructs a sewer or drain for the purpose of carrying off surface-water is it bound to construct such a sewer or drain as will be sufficient to carry off all the surface-water, in all cases, and under all circumstances? Second.—After a city has constructed •a sewer or drain, may it ever for any cause abandon or discontinue it,.and make no more use of it? We must answer the first question in the negative, and the second in the affirmative.
First: Whether a city will construct drains of any kind, •and where it will construct them, are purely discretionary. This principle is so well settled that it is not necessary to cite authorities in support of it. This discretionary power exercised by cities is, by many courts, considered as a kind of quasi judicial power. Now, if a city is not bound to construct a drain of any kind, by what system of reasoning can it be made to appear that if it shall'construct a drain it must construct one that shall be sufficient in all cases, and for every •emergency ? Any drain is better than no drain. Any drain instead of being an injury to a party is, so far as it operates, a positive benefit. If it-carries off half the water that falls upon his premises, instead of the whole, how camthat be said to be an injury ? Is it not an actual benefit to' the extent that it operates ? And if a benefit, upon what principle can the city be made liable ? A city in exercising its discretionary or quasi judicial powers acts not merely for a private individual or individuals, but for the general welfare of all its citizens. And in constructing drains it may construct them so as to drain the streets or alleys only, or so as also to drain the property of its citizens; and in draining the property of its citizens the drains may be so constructed as to carry off all the water that may fall or accumulate on the premises of an individual, or only a portion thereof; and they may be so constructed as to carry off all the water that may fall or accumulate on the premises of one person, and only a portion of what may fall or accumulate oh the premises-of some other persons. We think it is true that if a city constricts a drain every individual interested in the drain has a right to rely upon the drain operating to the extent of its capacity, and if the city, through negligence, allows the drain to become obstructed so that injury results to some private individual, the city as a rule becomes liable. But we know of no prin ciple that would give any party a right to demand or expect that the drain should operate to an extent beyond its capacity. This question we think has been fully settled by the decisions r Mills v. City of Brooklyn, 32 N. Y., 489; Barny v. City of Lowell, 8 Allen, 127; Dermont v. Mayor of Detroit, 4 Mich., 435, (and other cases cited in brief of plaintiff in error.) Nor has any person the right to demand or expect that the drain shall carry water from his premises unless it was constructed for the purpose of draining a street or alley. Alone he has no right to expect or demand that it shall drain his premises. In .the case of Leavenworth City v. Casey, McCahon, 125, 132, a different doctrine is laid down. It is there laid down that “a city is bound to make a sewer of sufficient size to guard against accidental obstructions and extraordinary freshets; and it is no excuse for a failure so to • construct it, that the engineer, or other person who> constructed it, -thought it sufficient.” This proposition never was • the law, when applied to surface-water, as was done in that case; and the authorities there referred to do not sustain any such proposition. The Rochester White Lead Co. v. City of Rochester, 3 N. Y., 463, 466, which, is the leading case there referred to, was a case where the city constructed a culvert which, was too. small • and too unskillfully built to allow all the water of a natural watercourse to pass. ■ (See 32 N. Y., 499.) The Mayor of New York v. Furze, 3 Hill, 612, 615, 616, another case there cited', was a.case-where the city through negligence did not keep certain basins, culverts, .and sewers, that had been previously built, in repair, and therefore said basins, culverts, and sewers could not operate to their full capacity. (See 32 N. Y., 499.) The People v. Corp. of Albany, 11 Wend., 539, 543, was an indictment for not removing a nuisance 'created in a basin of the Hudson river at the termination of the Erie canal. The other cases there referred to are alike inapplicable to that case, or to this. These cases were all decided before the case of Mills v. City of Brooklyn, 32 N. Y., 489, and those nearest applicable were reviewed in that case.
Second: After a city has constructed a drain or sewer to carry off surface-water may it ever, for any cause, abandon nr discontinue it, and make no further use of it? This is probably a more important question, so far as this case is •concerned, than the other.. Upon this question we have not been referred by counsel to any authorities, and we have not taken the time to hunt for any. Indeed, it seems scarcely necessary to hunt for authorities, for the proposition that a city has such power seems to be only a necessary corollary from the proposition that a city has the power to construct •drains when and where it chooses, of the kind and capacity it chooses, or not to construct any at all, if it so choosest The proposition of abandoning or discontinuing a drain, or filling it up (as in this case) with the intention never to use it again, • is a very different .proposition from the one of negligently ■ allowing a drain to become obstructed. For the first, the •city is not liable; for the-second, it generally is. The first is the exercise' of that discretionary, or quasi judicial power, possessed by cities; the second is the neglect to perform a ministerial duty.' • Cities may often make mistakes in the first instance, in constructing drains. And-'when they do, it.would seem that they should have the power to correct their . •mistakes, and therefore that they should always have the ■ power to change and alter drains; that -they should always • have the power of abandoning or discontinuing certain drains ¡and building others. Otherwise cities would often be very . much embarrassed in doing what would seem to be best for the general welfare of the city; and could never correct mistakes or errors previously made, if any person should object. Of course cities have no power, discretionary or otherwise, to •create nuisances. And they probably could not abandon or •discontinue a sewer or drain so as to leave an individual in a worse condition than if no sewer or drain had ever been constructed. It is claimed that a city is liable wherever a private individual would be liable under the same circumstances. This is generallj- true, but not always so. But if it. were • always true, would air individual be liable in a-case like the • one at bar? Every individual has, or ought to have, absolute, exclusive, and uncontrolled dominion over his own property, subject only to the qualifying maxim, Sio utere tuo,. ui alienum non Icedas. He is the owner of the soil, and of everything connected therewith, and his dominion over the same reaches to an indefinite extent upwards and downwards. He owns all the water that falls upon his own soil, and may retain it without allowing any portion thereof to reach the premises of a lower proprietor. Livingston v. McDonald., 21 Iowa, 160, 166, 167, and cases there cited. And we know of no .principle of-law or equity that-would prevent him from so filling up or raising his own premises, if such were necessary for the better, enjoyment of the same, so that-no water except what should fall-upon-his own premises, should ever reach the same, whatever inconvenience it might cause an upper proprietor. Livingston v. McDonald, supra. And this seems from the authorities to be a continuing right, which the proprietor, of real estate never surrenders except, by voluntary grant.
There are other questions in this case; but as we have not qll the evidence before us, and cannot know from the record, precisely what the facts are, we shall not now consider them. Among those questions are the following: First.-If the-plaintiffs knew the condition of the said block, the streets, the culvert, the pond, the cellars through which the water passed in getting to their cellar, and'the condition of their own cellar, did not their own negligence in storing the goods in said cellár, and in allowing them to remain there during-such excessive rains, contribute as much or more to the injuries complained of as the negligence of the city in not keep- • ing open or constructing sufficient drains ? and if so, can they recover? Second.—As the city was responsible for the rain that fell on the north half of said block only, and not for what fell on the south half of said block, and as it was the water from both halves of said block, acting together, which caused the injuries complained of, is the city liable? (Moore v. Abbott, 32 Maine, 46; Moulton v. Inhabitants of Sandford, 51 Maine, 127; Marble v. The City of Worcester, 4 Gray, 395. But see Atchison v. King, ante, p. 550.) Only a small portion of the water which contributed to the injuries complained of may have come from the north half of said block, while nearly all of it may have come from the south half of said block. Chief Justice Shaw, in the case of Marble v. City of Worcester, 4 Gray, 397, lays down the following rule: “The general rule of law, we understand, is, that where two or more causes concur to produce an effect, and it cannot be determined which contributed most largely, or whether without the concurrence of both, it would have happened at all, and a particular party is responsible only for the consequences of one of these causes, a recovery cannot be had, because it cannot be judicially determined that the damage would have been done without such concurrence, so that it cannot be attributed to that cause for which he is answerable.” This may be the rule of law; but all that we wish now to say, is, that if such is the rule of law we think it must have many exceptions. We shall not now attempt to determine whát the rule is for this case, because we have so few of the facts. Judgment reversed, and cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant in error sued plaintiff in error for a divorce. By consent all the issues of fact and law were referred. The report of the referee was in favor of plaintiff in error. The district court refused to confirm this report, and on motion of defendant in error set it aside. Plaintiff in error seeks a reversal of this order, and a confirmation of the report.
Of the power of the court to make such an order there can beQ no doubt. The referee is an officer of the court, is appointed Tby and derives his authority from the court. He acts under its orders and is subject to its control. But we are not left to inference. The statute expressly provides for such action: Civil code § 306.
Did the district court err in setting aside this report? or rather, is it so manifest that the court erred, that we ought to reverse its ruling? The effect of setting aside the report is a new trial. The rights of neither party are concluded. Each has full opportunity to establish his claim or defense. As was said by Mr. Justice Valentine in giving the opinion of this court in the case of Kinnear v. Field, 5 Kas., 238, “But this court will require a much stronger and clearer showing of legal error, or abuse of judicial discretion, before, it will interfere where the new trial has been granted than where it has been refused, for the very obvious reason that where a new trial has been granted an opportunity is offered for another full and fair trial upon the merits of the case; but where it has been refused it operates as a final adjudication between the parties.” Six exceptions were filed to the report, among which was this, that “the report of the referee is not sustained by the evidence and is contrary to the evidence.” This, counsel for plaintiff in error earnestly insists, is the only exception entitled to any consideration; and in regard to this, that the rule to guide the district court in acting upon the report of the referee is the same as that which controls this court in acting upon the verdict of a jury returned in the district court. He claims that inasmuch as the judge of that court does not see the witnesses who appear before the referee, does not hear them testify, nor know in what manner their testimony is elicited, his judgment can be based only upon the record of that testimony. Hence the report of the referee should stand unless a great preponderance of the evidence is against it. He further claims that this court has the same opportunity as the district coirrt of weighing correctly the evidence, and that therefore unless the great preponderance of the testimony seems to us against the report we should reverse the order of the district court setting aside the report, and direct its confirmation. These rules applied strictly would make the approval or disapproval of the report of the referee by the district court a mere matter of form, purely a Avork of supererogation. We do not so understand the effect of the action of the district court. We think the district court should not set aside the report of a referee as against the evidence unless it clearly appears to him that the referee has failed to give due consideration to some of the testimony, and that a strong preponderance of the testimony is against the report. He Avill presume that the referee has given due Aveight to all the evidence, and that his conclusions therefrom are correct. He Avill be sIoav to interfere Avith those conclusions. But if he is convinced of the error of that report, and orders it set aside, such judgment of the district judge should and Avill carry great weight with this court, for he is in a better position than Ave are to determine as to -the correctness of the referee’s conclusions. The parties to the suit he may knoAV; the witnesses may have been before him in other trials, or he may have heard their testimony on motions in this case. He may understand peculiarities in the mind of the referee Avhich Avould cause certain kinds of testimony to have undue Aveight Avith him. He may be cognizant of personal friendships or antipathies between the referee and the parties, or counsel. He Avill probably be aAvare of any differences betAveen counsel in the manner of eliciting testimony, in their adroitness in presenting and withholding evidence. In short, being nearer to the parties and the proceedings he is more apt to know whether the report of the referee expresses the absolute truth. And when he has acted upon the report we shall not ignoré that action, and consider the report as though made originally to this court.
"We have examined with great care the report of the referee, and the bill of exceptions in this case, and it seems to us' the weight of the evidence is against the report of the referee.' True, the preponderance' is not so strong that We should set-aside the report if made originally to us. Rut inasmuch as ¡the district court has set it aside, and such action leaves each party full opportunity to establish his claim or defense, we 'shall presume in- favor of the correctness of such ruling and affirm the order.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was commenced in the court below for the purpose of restraining by injunction the county commissioners and the treasurer of Leavenworth county from collecting from the plaintiff two certain taxes, to wit: a “sinking-fund tax,” and a “bridge tax.” The injunction was refused, and'¡the plaintiffs now bring the case to this court. These two taxes are independent of and have no conhection with each other, except that some of the irregularities complained of affect both of them and also all the other taxes levied for that year (1870) in the same manner and to the same extent. The plaintiffs (or a portion of them) have paid all their other taxes, and have paid these two taxes so far as they are levied on their personal property, but none of the plaintiffs have paid these taxes or any portion of them so far as they are levied on their real estate.
I. It has already been several times decided in this court that the remedy of injunction will not lie to restrain the collection of taxes for mere irregularities, and we again affirm' the doctrine. Mo. Riv., Ft. Scott & Gulf Rld. Co. v. Morris, 7 Kas., 210; K. P. Rly Co. v. Russell, 8 Kas., 558; Parker v. Challiss, ante, 155. And this settles nearly all the questions raised in this case.
II. It is claimed in the petition in the court below, 'that the plaintiffs’ property should have been assessed by the county assessor, and not by township assessors, as seems to have been done; but as there was no county assessor and only township assessors for the year 1870, we sujqwse the assessment was properly made.
It is claimed that “the township assessors did not agree upon an equal basis of valuation for 1870, as required by law,” (Laws of 1870, ch. 120.) The real claim as we understand it, is, that the assessors did not meet at all for that purpose, as required by law. This was a mere irregularity. Each assessor was bound to assess the property of his township at its true value, whether the assessors had any meeting or not, or whether the assessors agreed upon any basis of valuation or not.
It is claimed “that there was no assessment roll of said county for the year 1870.” This is exceedingly technical, as we understand the facts. It is not claimed, as we understand, that the township assessors did not properly assess the property of their respective townships, or make the proper returns of their assessments. Neither is it claimed that there was not an assessment roll for each township. Now if there was an assessment roll for each township, then it was not necessary that there should have been another one for the county.
III. It is claimed that the levy of 11 mills for the sinking-fund tax was excessive. The evidence does not show this to be true; but if it does, the excess must have been slight; it could not have been very great, and was therefore only a mere irregularity. Before a court would interfere to set aside a tax for this reason this excess would have to be enormously great. But the plaintiffs have not placed themselves in a condition to raise this question. They have not paid nor offered to pay any part of this sinking-fund tax on their real estate.
It is claimed that the sinking-fund tax was not levied for the sinking fund, but for the purpose of paying the interest on certain bonds. This is not shown to be true by the evidence. The evidence is conflicting, but the weight or preponderance of the same seems to show that the tax was levied for the sinking fund, and not to pay said interest. The .preamble attached to a certain resolution adopted by the county commissioners on the 12th day of April 1871, which reads as follows: “ Whereas, for certain prudential reasons, the Leavenworth county board did, at the levy made September 5 th 1870,/or the payment of interest on the Platte City & Fort Des Moines Railroad bonds, levy the same in the name of the sinking fund, therefore, Be it Resolved,” etc., although supposed to prove so much by the plaintiffs is nevertheless very weak evidence for their purpose, and the other evidence clearly overbalances it.
It is claimed “that some, one or more, of said county commissioners are interested personally and pecuniarily in said Platte City & Fort Des Moines Rid. bonds.” This if true amounted to nothing, unless it tends to explain the reason for adopting the foregoing preamble, and the resolution following it; and in such case it tends to impeach the plaintiffs’ own evidence; it tends to impeach the truthfulness of the preamble itself.
It is claimed “that the tax of eleven mills upon the plaintiffs’ real estate levied for the purpose of paying off the bonds and interest on the same issued by the said board of county commissioners to the Kansas & Missouri Bridge Company, is illegal and void.” Upon this point the plaintiffs have not proved facts enough to raise any question of law. The evidence, meager as it is, is all against them. The plaintiffs have proved nothing, and the defendants not very much. It is true that the plaintiffs have in their petition made bold allegations that the tax was void, etc., but such allegations do not amount to evidence. The plaintiffs seem to have labored under the erroneous notion that they were the defendants, or that they had the negative of the issue, and that upon the defendants rested the burden of proof, while in fact the burden of proving everything rested upon the plaintiffs themselves. The evidence seems to show that everything had been done so as to authorize the commissioners to borrow $250,000, and that the commissioners did borrow that amount, and issued the bonds of the county as evidences of the indebtedness thereby created. That the county had a right to issue some kind of evidence of indebtedness, we suppose will not be questioned. But whether these bonds were such as should have been issued we are unable to say, as no copy of any one of them is given, and the -form of no one of them is described.
The order of the court below refusing the temporary injunction must be affirmed.
Kingman, C. J., concurring.
Brewer, J., did not sit in the ease. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action for the recovery of real property. The facts of the ease are iu brief as follows: James Woodworth was the owner of a certain piece of land. On the 19th of September 1866 he sold it to John M. Courtney (plaintiff in error, defendant below,) for $500. One hundred dollars of the amount was paid down, and four promissory notes, each for $100, were given for the balance. The first note became due January 1st 1868, and was duly paid; the second note became due January 1st 1869, the third January 1st 1870, and the fourth January 1st 1871. The last three notes have not been paid. At the time of the sale, Woodworth gave to Courtney air ordinary title bond, binding himself to make a deed for the land when the purchase-money should all be paid. Courtney was put in possession of the land by Woodworth, in 1866, soon after the sale, and he has remained in peaceable and quiet pos session ever since, and has made valuable improvements thereon. After the second note became due James Woodworth, through his agent Ellis Woodworth, demanded payment of the same, and told Courtney that the time for payment could not be extended. Courtney said he could not pay it then, for the want of ineans. Nothing was then or at any other time said about, a rescission of the contract, or about Woodworth taking the land back. On the 26th of May 1869 James Woodwoi’th conveyed, by a quitclaim deed, all his right, title, and interest in and to said land to said Ellis Woodworth, wdio had full knowledge of Courtney’s rights. On the 30th of June 1869 James Woodworth died. What became of the three notes that were not paid, or whether an administrator -was ever appointed, is not shown by the record. On the 6th of October 1870, (before the last note was yet due,) Ellis Woodworth commenced this action as plaintiff to recover said land from Courtney. 'We do not think that he is entitled to maintain the action. Time -was not of the essence of the contract, as it was originally made, nor did it become such by any subsequent acts of the parties, or by any subsequent circumstances. Under and by virtue of the contract Courtney took possession of the property, took the right to hold and eipoy it, and gave his money and promissory notes in payment therefor. The ■entire equitable estate passed to him. Everything passed to him except the mere legal title, and that was held by Woodworth merely as a security for the payment of the Jiotes. The conversation, or conversations, held between Courtney (and his son) and Ellis Woodworth from January 1st 1869, to May 26th 1869, did. not rescind the contract. There was nothing said during said conversations about rescinding -the same, or about getting the land back. These convei’sations were not even notices that Wood-worth intended or desired to rescind. They were simply notices that Woodworth wanted his money, and would not ■extend the time of payment; and it would have been natural and not unreasonable for Courtney to believe that Woodworth intended to sue him on the note that was due. The court below finds that the contract was not rescinded by these conversations, but that it was subsisting up to May 26th 1869, when James Woodworth attempted to convey the property to Ellis Woodworth. The court below finds that by this attempted conveyance the contract was rescinded; but as no notice had been given that Woodworth intended to rescind the contract this supposed conveyance could not work a rescission of the same. Whether this is a case in which one party could rescind, without the consent of the othei-, we do not decide. Rut supposing it to be such a case, still one party could not rescind without the consent of the other unless he should first give an explicit notice, reasonable in its terms, that unless the other party should perform within a certain time he would then rescind the contract. Such notice was no,t given. Whether mere lapse of time could in any cqse like this give the grantor the right to consider the contract as rescinded, it is not necessary for us now to consider, for the lapse of time in this case was certainly not great enough to authorize Woodworth to rescind, or to consider the contract as rescinded.
When Ellis Woodworth obtained his supposed rights in the property one note only was due, and that had been due-less than five months. In less than six months after this note became due James Woodworth, the payee of the note, died. Whether there has ever been any person in existence-since that time to whom payment of that note, or payment of either of the other two notes, could legally be made, is not-shown by the record; nor is it shown whether the notes still belong to the estate or to some third party. The defendant in error probably relies almost entirely on the case of Kirby v. Harrison, 2 Ohio St., 326. But the case at bar differs in many essential particulars from that case, among which are-the following: In that case there were no notes given; the-grantee was never put in possession of the property; he never made any improvements on it; he never exercised any acts of ownership over it, not even paying the taxes and street assessments on it, (for it was a lot in the city of Cincinnati,) but allowing the grantor to pay them; the delay in payment was much greater in that case than in this, being thirteen and a half months after the first payment became-due before the grantor attempted in any form to rescind the-contract, and two payments were then due; and during this thirteen and a half months the grantor could not even hear from the grantee, who lived in another state, (Virginia,) although the grantor had written two letters to him. The grantee in that case seemed to have plenty of money, but willfully chose to use it for other purposes. No offer was made to pay the grantor until three years and four months after the first payment became due, and then it was a conditional offer, and lacked $180 of being sufficient in amount. A sufficient amount was never offered or tendered, although there was a person in béing in that case at all times to whom payment could legally have been made; and the case was not tried for over six years after the - first payment became due. And in that case the grantor did not even then claim that he- had a right of himself to rescind the contract; but he commenced an action in the court of common pleas for that purpose, (not an action of ejectment, as the action at bar is,) and asked the court to rescind the contract; and it was not then rescinded for more than six years after the first payment became due, and then it was done by the court, and not by the grantor himself.
The judgment of the court below is reversed, and cause remanded, with instructions that the court below render judgment in favor of the defendant .therein .and against the plaintiff for costs.
All the Justices concurring. | [
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The opinion of the court wras delivered by
Brewer, J.:
The main question in this case, that upon which it was decided in the district court is this: Had the-city of Atchison the power to contract in one contract for building sidewalks on different streets, in different parts of the city, and to make assessments therefor on the lots fronting on such sidewalks? The district court held that it had not, but must assess the lots on each street only for the sidewalk built thereon. In this we think the court erred. Atchison is a city of the second class; as such it is given, by § 30, paragraph 2 of the act concerning cities of the second class, (Gen. Stat.r p. 160,) power “to open and improve streets, avenues and alleys, make sidewalks and build bridges, culverts and sewers within the city, and for the purpose of paying for the same shall •have the power to make assessments in the following manner, to wit: * * For making and repairing sidewalks, the assessments shall be made on all lots and pieces of ground abutting on the improvement, according to the front foot thereof.”
The power to make sidewalks is here given, absolutely and without limitation. When and upon what streets they shall be made is committed to the discretion of the mayor .and council. Their determination is final. No party can by mandamus compel them to make, none by injunction restrain them from making. This discretion is not limited to a single street. They may sidewalk the whole city at once, and by a single contract. But the right to assess the lots fronting on the imPr°vement to pay for the same is co-extensive with the power to make it. Nothing in terms or by implication restricts the assessment to a single street. True, as urged, a sidewalk on one street may cost more than a sidewalk on another, and if both be united in one contract and one assessment, the owner of a lot on the latter street may have to' pay more than if his street only was sidewalked. But the same is true not only of two streets, but also of two blocks on the same street, or of two lots in the same block. Still there is no injustice in apportioning the entire cost of a sideAvalk upon the several lots fronting it. The value of a sideAvalk depends greatly upon its extent. One in front of a single lot Avith none in front of the adjacent lots is of comparatively little benefit. One object of a sideAvalk, as of grading or macadamizing a street, is to secure easy and convenient means of approach; and Avithin certain limits the farther those easy and convenient means of approach are extended the greater the benefit to the lot. Injustice may be done by uniting in one contract and assessment streets in different parts of the city, not connected by sidewalks, and upon which the cost of construction is different. But almost any power may be abused. Still, that possibility is no argument against its existence. In this case the right was reserved to each .lot-owner to make the sidewalk in front of ..his lot, and thus, be relieved from any further liability on account of such sidewalks. This right the defendant in error failed to avail himself of.
II. It is urged that as the street fronting the lots of defendant in error had never been graded no. power to sidewalk existed. The findings of fact showed that this street was a regular street of the city, had long been open to public use, and daily used for public travel, but had not been graded at or near the lots of defendant in error, though fbe ground was of an easy grade and the sidewalk nearly even- with the ground., It does not appear from the findings that the street was in a condition even to require grading. In many of our cities and villages, especially those on the prairies, the natural grade is the best, and every shovelful of dirt that is moved injures rather than improves the street. Can such a street never be sidewalked ? But we do not care to put our decision on this ground. The city is not restricted as to the order in which it shall make improvements on a street. There is in the nature of things no fixed .and absolute order in which improvements are needed. The necessities of business, and the convenience of travel, may require that one street be macadamized first, and that another be sidewalked first. There is need that discretion in this matter be vested somewhere. It is vested in the mayor and council. The fact that one power is named in the charter subsequent to the other does not -prove that one is subordinate to the other, or that one must bo used before the other is resorted to; The power to make sidewalks is named before the power to build bridges, culverts, and sewers. Cannot a city build a sewer under a street until after it has made a sidewalk upon*’ it ?
III. The other objections raised by counsel for defendant in error- relate to irregularities in the proceedings to collect tihe tax- These irregularities, if any existed, (and we express no opinion either way upon those points,) cannot be inquired into in this injunction proceeding. Eor, the power to do the work being given by law, and the work being done, equity will not interfere to relieve the lot-owner from the payment of the cost simply on account of irregularities in the proceedings to collect.
This case being here upon special findings of fact, with no motion to set them aside, and no exceptions by defendant in error, the order will be that the judgment of the district court be reversed and the case remanded with instructions to said court to render judgment on the findings in favor of V. W. Parker, treasurei', etc., the defendant below, for costs.
All the Justices concurring. | [
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'The opinion of the court was delivered by
Kingman, C. J.:
The answer and reply were filed out of time, and without leave, or consent. On motion of plaintiff .they were stricken from the files; but with leave of the ■court, on showing made, were refiled, and the cause was tried •on the issues so made up. Whether the order was right or wrong, unless defendants suffered some injury thereby they •cannot claim a reversal of the case on' that ground, as they had the benefit of their answer. But it is urged that by that ■action they were forced into trial, at that term, without preparation. Without such order it is said the case would not have stood for trial, as the issues were not made up ten •days before the commencement of the term. . Let us see how this is: Had an answer been filed in proper time the issues would have been made up in time for trial at the June Term. An answer filed out of time, and without leave, is no answer, .and requires no notice. So that when the court met, the •defendants, were in default, and the case was regularly for hearing at that term. Had the defendants proceeded regularly, and obtained leave to file their answer, it ought to have -been on terms that the delay should not work a continuance. It is not intended that such terms would have necessarily been imposed; but that they would, be proper terms, where no cause was shown for delay.
II. During the term, the reply was filed. If it was a waiver of the irregularity in the filing of the ■ answer, (and we are inclined to hold that it was,) it was at least saying nothing more than .this, that plaintiffs would not insist that there was no answer, but would recognize it as though filed in time. The reply was filed out of time, and defendants could have it struck from the files; but then they would be in default, for they would remove the instrument that gave them a standing in court. .The waiver, at most, was, that the answer would be considered as filed in time if the defendants would consider the reply as filed in time; and on that understanding the issues were made up. So that the case stood for trial at the. June Term. If these views are correct, then the court erred in. striking the pleadings from the file; but as they were refiled, there was no prejudice, for the-case stood for trial at that term.
III. The next objection is that certain questions were asked that were leading in their character. The objection to these questions was general. It is asking too much of a court to analyze each question, as it is asked, to see if it is open to any possible objection. It is the duty of the counsel to point out whether the objection is one to the form of the question, as distinguished from the relevancy, or materiality, of the evidence sought to be elicited. And when the objection is to the form only, it is a matter resting so much in the sound discretion of the court, whether such a course of examination will be allowed, that it will be an exceptional case where this court will reverse a case for that cause only. 1 Greenl. Ev., § 435, and notes. In this case it is sufficient that no objection was made that the questions were leading. ■ Had that objection been made, the party could have so framed his question as to have obviated the objection.
IV. There was no state of facts presented that authorized the plaintiff in error, Luke, to prove damages in consequence of a litigation to the title to the land. Nor was there any error in refusing to permit Luke to prove what was due from Stephens to Luke. The averment in the answer was that Johnnycake took the contract between Luke and Stevens in full payment of onemf the notes. If that was true, that was an end of the matter. . If, as claimed by plaintiff, the contract was only taken for accommodation, it was immaterial how much was owing from Stevens to Luke. The evident?© showed that it was taken as payment in full, or that it was only taken by Johnny cake’s agent to apply what was paid on it to Luke’s notes. In the latter view of the case, it was not relevant to prove what was due. The only question was, what was paid?" In the former view it was entirely immaterial how much was due. The conflicting testimony was for the jury.
V. The instructions submitted the issues fairly to the jury. If the modification made by the court to the fourth instruction asked, by the defendants is' open to the objection made by plaintiffs in error, then the answer is, that the finding of the jury, that Luke knew what he was paying for the land when he bought it of the agent of Johnnycake, and that the deed and notes were not misread to Luke, shows that plaintiff in error suffered no loss by reason of the instruction. "We do not decide however that the modification was wrong.
• VI. The amended petition was upon two notes, both due when the amended petition was filed. The court directed the jury, if they found for plaintiff, to find what amount was due on each note separately. The jury returned their verdict for one amount, evidently the sum of both notes. The court below refused to set aside the verdict for this cause, and the counsel for plaintiffs in error fail to show this court how they can be injured by this disregard of the directions of the court by the jury. It is true, the jury should have followed the direction of the court in this respect; but as no injury followed their error, there ought to be no reversal on account of it.
VII. It is insisted that the verdict is against the weight .of the evidence. This court, as has been often decided, is not in as good a situation to form an opinion as the court below on that question; and when there is evidence to support the verdict, and the court which tried the case has refused to set aside the verdict, this court will not reverse the judgment because it seems from the record to be against the weight of evidence. But as counsel, notwithstanding this well-known rule, have pressed this point, it is deemed proper to state the facts. The controversy Avas, Avhether the price paid for the land Avas $12 or $15 per acre. The plaintiffs in error averring that the agreed price was $12 per acre, and that the notes, mortgage, and deed had been drawn showing-sums amounting to $15 per acre, and that they were fraudulently so drawn, and plaintiffs in error, Avho could not read, were induced to receive.the deed and execute the notes and mortgage by the fraudulent conduct of the defendant in error, or his agent. The evidence on this point is this: The deed, mortgage, and notes were prima fade evidence as to the sums for which they Avere executed. The person who drew them up testifies that they Avere drawn according to the terms of purchase. The defendant in error testifies that the price agreed was $15 per acre. Mr. Todd, who as an attorney had had something to do with the tie contract between Luke and Stevens, testifies that he had often had conversations Avith Luke about the purchase of the land, and Luke stated that he had paid $800, and Avas to pay $1,600 more, and that it was a bargain. TAventy-four hundred dollars is just $15 per acre for the land. Here then is the testimony of three men, and the deed, notes, and mortgage, all directly and positively testifying one way. On the other hand, Luke, and two Avitnesses, testify that the price Avas but $12 per acre. One other fact: Johnnycake had given his deposition in the case, and in that deposition had testified that the -land Avas sold for $14 per acre, and it is insisted that this apparent contradiction destroyed the value of his testimony. It was certainly calculated to lessen the confidence of the jury in his statement, if unexplained; but it Avould not destroy it. The jury and the court heard this testimony, and gave credence to the Avitnesses for the defendant in error. We cannot say they were Avrong. On the contrary, it seems to us that the likelihood is that they were right, looking only to the record. The judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The plaintiff in error applied for a temporary injunction to the judge of the district court of Marshall county, restraining defendants from issuing bonds. The application was refused. This refusal he seeks by this action to have reversed. The bill of exceptions shows that the-application was made on petition and affidavits, but does not set out or include the affidavits. Hence we are not informed upon what the district judge acted. True, there are some copies of affidavits in the transcript, and the certificate of the-clerk shows that they were on file the day after the decision.But it was decided in the case of Backus v. Clark, 1 Kas., 303, that “affidavits on a motion in the court below, to-become a part of the record so as to be reviewable by the supreme court, must be included in the bill of exceptions.” See that authority, and cases cited therein. As all presumptions are in favor of the correctness of the decision of the-judge of the district court, and we are not placed in possession of the testimony upon which he acted, we have no other' alternative than to affirm the decision.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of forcible entry and detainer. The plaintiff commenced the action before a justice of the peace. Judgment was rendered for the plaintiff. The defendant appealed to the district court. The case was there tried on an agreed statement of facts, and judgment was there rendered against the plaintiff and for the defendant. To reverse this judgment the plaintiff now brings the case to this court.
The agreed statement of facts showed that James E. Joy was the original owner of the land in controversy, holding the same by patent from the government of the United States; that he sold and conveyed said land to the Missouri River, Fort Scott & Gulf Railroad Company; that the said railroad company contracted to sell the same to the plaintiff; “that the plaintiff by the terms of said contract became and was possessed of all the rights of his vendor,” and that after-wards the defendant took possession of said land and resided on and occupied the same without any authority, and against the will of the plaintiff.
No question seems to have been raised upon the title of the plaintiff, or of his grantors. The agreed statement of facts shows nothing that any person could construe into an impeachment of Joy’s title, or of those holding tinder him. The only question that seems to have been raised is, whether the plaintiff who was entitled to possession of said land, but who does not seem to have ever had actual possession of the same, could maintain the action of forcible entry and detainer. "Wc think he could; and as the court below decided that he could not, we think the court below erred.
The law upon this question is properly expressed in § 159 of the justice’s act, (Gen. Stat., 809,) being the second section of Art. 13, entitled, “Forcible Entry and Detainer.” That section provides that: “Proceedingsunder this article maybe had in all cases * * * where the defendant is a settler or occupier of lands or tenements without color of title, and to which the complainant has the right of possession.” Neither this section nor any other section of the law provides that before the plaintiffs can maintain this kind of action he must have had actual possession of the property. All that seems to be necessary is that he should have the right of possession thereto.
The judgment of the court below is reversed, and cause remanded to said court with instructions to render judgment upon the agreed statement of facts for the plaintiff and against the defendant for restitution to the plaintiff of the property in controversy.
All the Justices concurring. | [
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The opinion of the court was delivered by
Dawson, J.:
This was a suit to enjoin defendants from grading and ditching a road on land claimed by the plaintiff.
The plaintiff is the owner of the west half of a section of land in Center township, Pottawatomie county, which land is bounded on the west by a public road. The defendants are the officials of Center township. They removed the plaintiff’s fence on the assumption.that it was set too far to the west, and'that it encroached on the public highway. The defendants were about to grade the road and to construct a ditch at the side of it, when plaintiff temporarily stopped that project by this suit.
On final hearing the injunction was denied, and plaintiff appeals. His first'contention is -that it was error to admit in evidence the record of a survey made by the county surveyor in 1898. That survey had permanently established the corners and boundaries of the section in which plaintiff’s land is situated. Plaintiff says he was not a party to that survey. The owner of the land at the,- time of the survey was a party to it. It is also urged that the purpose of that survey was to establish boundary lines for the owner of the west half of the southeast quarter of the section, as against those of the owner of the east eighty of the same quarter, and as against the then owner of the west half of the section, plaintiff’s predecessor in title. That was one purpose, but the parties in interest were notified that the boundaries of the section, as well as its subdivisions, were to be established, and they were so established. This record was competent evidence — perhaps incontestable. At all events, the trial court might well prefer it to the parol evidence offered against it.
It is next urged that the court erred in excluding from evidentiary consideration an agreement between plaintiff and his neighbors on the west and northwest establishing the southeast corner of section 31, and the southwest corner of section 32, in township 7, range 11 east, and also the northeast comer of section 6, township 8, range 11 east, and the northwest corner of section 5, township 8, range 11 east — the latter being the principal and controlling point in dispute in this lawsuit. How this agreement could interfere with the right and duty of the defendant township officials to grade and ditch the road as established by the county surveyor twenty years ago is not clear. .This agreement was made on June 3, 1916, while this lawsuit was begun on May 10, 1916, and it had no bearing whatever on the question whether the township officials were within their powers in grading and ditching the road. Even if the agreement had been made before this lawsuit arose, it would only bind the parties and those who claim under them. It would not, and could not, bind the public and the officers of the public. (Gemienhardt v. Ward, 101 Kan. 250, 251, 252, 167 Pac. 1141.)
Plaintiff’s last contention is that the judgment was contrary to the evidence. That contention is without merit. Since there was some sufficient and competent evidence to sustain the judgment, the fact.that there was other evidence in conflict therewith which the trial court did not believe is of no consequence, and the judgment must be affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Mason, J.:
Prior to 1917 proceedings were begun for the improvement of a highway under a statute providing that one-fourth of the cost should be paid by the township, and that the remainder should be charged against the land in a benefit district. (Gen. Stat. 1915, §§ 8815-8826.) By reason of litigation which resulted in confirming the validity of the steps already taken (Stevenson v. Shawnee County, 98 Kan. 671, 704, 159 Pac. 5), the work was delayed, and in the meantime the statute was amended (Laws 1917, ch. 265), the amendment being specifically made applicable to roads theretofore petitioned for (§14). In the new statute the distribution of the cost was changed so that the township should bear one-fourth, the county one-half, and the land in the benefit district the remainder. (§ 6.) The county commissioners had advertised for bids for doing the work, when a new action was brought to enjoin it by an owner of land in the benefit district and a resident of the township who is liable for taxes on property elsewhere in the county. The plaintiffs were denied relief, and appeal.
They contend that it was beyond the power of the legislature to change the distribution of the cost of the improvement after the petition therefor had been signed and acted upon. We regard the contention as not well founded. The owners of the land within the benefit district were not prejudiced by the alteration, because their burden was diminished. The taxpayers of the township were not aifected as such. The . taxpayers of the county have no legal basis for complaint, for it was competent for the legislature to impose upon the county any part of the cost of the highway. (2 Cooley on Taxation, 1203-1205; see, also, The State, ex rel., v. Comm’rs of Shawnee Co., 28 Kan. 431.) It is true, some of the petitioners might possibly have been opposed to the road if they had known that half the expense was to be borne by the county. But as the legislature could have dispensed with the- petition altogether in the first place, it could do so at a later date as well. (12 C. J. 1091.)
The plaintiffs argue that the statute is invalid under the rule that “before special taxes can be made a fixed and permanent charge upon the property of such individuals, they must have notice, with an opportunity to be heard and an opportunity to contest the validity and fairness of such taxes.” (Gilmore, County Clerk, v. Hentig, 33 Kan. 156, syl. ¶ 2, 5 Pac. 781.) Provision is made for notice to the owners of land in the benefit district. (§ 6.) As to other taxpayers, the tax is a general one. But if it be regarded as special, the property owner is regarded as having notice and hearing through his representatives in the legislature, inasmuch as that body has itself directly determined the apportionment of the burden without committing any essential feature thereof to an inferior tribunal. (Railroad Co. v. Abilene, 78 Kan. 820, 826, 98 Pac. 224; 1 Taxation by Assessment, Page and Jones, § 123; Judson on Taxation, 2d ed., § 418.) So far as relates to the valuation of his property, the taxpayer has the benefit of the notice and hearing provided by the statute relating to general taxation.
The petition asked for the improvement of the highway “by constructing a roadway . . . using crushed stone or macadam with a top surface of Burmudez asphalt, or other asphalt equally as good, employing what is known as the ‘penetration method.’ ” The notice to contractors asks for bids “for the constructing of a hard surface road of ‘Bituminous Macadam’ ... as called for in the plans, and specifications . . . now on file in the office of the county clerk.” The plaintiffs suggest that the character of the road described in the bid is not the same as that petitioned for. We perceive no inconsistency. According to Webster’s New International Dictionary, bitumen originally meant mineral pitch, or asphalt, and by extension includes that substance with others; “bituminous macadam” means “bitulithic pavement,” and “bitulithic” is an adjective “designating a kind of paving the main body of which consists of broken stone cemented together with bitumen or asphalt.” The specifications referred to are of course controlling, and presumably conform to the petition.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The motion for a rehearing is denied, but, for the sake of accuracy, it should be stated that the reference in the syllabus and opinion to the answer and cross petition as verified, is wrong. That pleading was not verified. | [
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The opinion of the court was delivered by
West, J.:
The defendant appeals from a judgment rendered in' an action on a judgment. The petition sets up a transcript of the judgment which it alleges” was rendered by a Missouri justice of the peace in an action “wherein said justice of the peace had jurisdiction of the subject matter under the laws of the state of Missouri and jurisdiction of the defendant,” and that the plaintiff therein elected to exercise his option to recover the sum of $225, the value of the personal property found by the justice, and levied execution and applied the proceeds, which left $217.35 still due the plaintiff, for which judgment was asked, with interest. The answer alleged that the justice had no jurisdiction or authority to render such judgment, because there was no statute authorizing such judgment to be rendered; also, that the plaintiff received the goods involved in satisfaction of the judgment. Objection was made to the introduction in evidence of two'sections of the Missouri statute, providing that in a replevin action before a justice of the peace the plaintiff has an election to accept the property or the assessed value thereof, on the ground that the statutes of Missouri had not been pleaded as required in order to admit such proof.
True, they were not formally pleaded, but the allegation that the judgment was rendered in an action wherein the justice had jurisdiction of the subject matter under the laws of the state of Missouri, the averment of the exercise of the option, setting forth the copy of the judgment reciting such option, together with the allegation of the answer that there was no statute authorizing such judgment to be rendered, and the general denial contained in the reply, presented an issue as to the existence of such statute on which the plaintiff had the burden of proof. There was no demurrer or motion to make definite and certain, and the strict rule' followed by many courts does not apply.
“Foreign statutes or the laws of other states must be pleaded, but such statutes are not required to be stated in haec verba. It is sufficient to state the substance of so much of the statute as is relied on, conciseness in pleading being commendable. When the statute is not the foundation of the action, but comes in collaterally as evidence, the same degree of strictness in pleading it is not required.” (L., N. A. & C. Ry. Co. v. Shires, 108 Ill. 617, syl. ¶ 12.)
In Thomson-Houston Electric Co. v. Palmer, 52 Minn. 174, it was held that when the laws of another state consist of mere matters of evidence “they stand on the same footing as any other fact, to be pleaded only when they are issuable, ás distinguished from probative or evidential facts.” (p. 178.) It was further held that under a plea of payment it was competent for a debtor to prove that according to the laws of the state where the contract was made acceptance of the promissory note for a preexisting debt operated as an extinguishment thereof. In Consolidated Tank Line Co. v. Collier et al., 148 Ill. 259, it was held, even in the face of a demurrer, that a plea that a certain instrument was made and delivered in all respects in conformity with the laws of the state of Iowa sufficiently averred the laws of that state as a matter of pleading. In view of the condition of the pleadings, it was not error to admit the statutes in evidence. The justice testified by deposition that the plaintiff’s attorney came to him and elected to have the money judgment in the case instead of possession of the property. This was in response to a question as to what the fact was as to the plaintiff electing to take the goods or their value. In the exceptions to the deposition, this question was objected to because calling for the opinion and conclusion of the witness, and not the best evidence, and hearsay. A request to state the facts cannot be said to merit such criticism. The answer was objected to on the trial on the ground that it was hearsay. It merely stated the substance or effect of what the plaintiff’s attorney said to the witness. It was not hearsay.
The court instructed that if the plaintiff took the goods in satisfaction of his judgment otherwise than by levy of an execution, or that if the defendant turned the property over to him under an election to take the property, they must find for the defendant. It seems from the record that the plaintiff elected to take the money judgment instead of the goods, and then levied execution on the latter to obtain the former. There was no evidence that he elected to take the goods in satisfaction of the judgment, nor that he took them otherwise than by levy of execution, nor that he received them under an election to take them instead of the money. The instruction was not to the effect, as claimed by the defendant in her brief, that the jury could not render a verdict for the plaintiff if they found the goods were taken by levy of execution. The defendant alleged in her answer that the plaintiff received the goods in satisfaction of the judgment, but the jury found to the contrary. There was a square conflict in the evidence on this point. The defendant seems to have been unfortunate in the entire transaction, but we find no material error in the rulings or proceedings on which she can be granted a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The district court made an order directing a garnishee to pay money into court for the benefit of the plaintiff, and the defendant appeals.
The defendant was the defendant in the case of Dondelinger v. Dondelinger, 101 Kan. 179, 165 Pac. 849. In that case the court refused to cancel, at the behest of the defendant, a separation contract settling the property rights of the parties, whereby the defendant’s husband was to pay her certain sums of money, evidenced by nonnegotiable promissory notes payable under certain conditions. The plaintiff in this action sued the defendant on a judgment previously obtained against her in a foreign state, and garnished her husband. The garnishee answered that he had given the notes described, that the litigation over the contract had not terminated, and that he did not know whether or not he was indebted to his wife on the notes. After the termination of that litigation, after judgment in favor of the present plaintiff, and after tipie liability of the garnishee on the notes had become absolute, the order appealed from was entered. The order included a direction to the garnishee to hold, subject to the order of the court, money to become due on the contract.
The defendant says it is hornbook law that a debt must be due when the garnishment summons is served, or it cannot be garnished, and that a contingent indebtedness is not subject to garnishment. The defendant overlooks the provisions of the garnishment statute requiring the garnishee to answer respecting contingent as well as absolute liabilities (Gen. Stat. 1915, § 7126), making the garnishee liable to the plaintiff for debts to become due as well as debts due (§ 7134), postponing judgment for money owed until due absolutely and without depending on future contingency (§ 7135), and authorizing judgment for money owing but not yet payable, but postponing payment (§7135).
The defendant says the money was a trust fund created for her separate maintenance, and so was not subject to garnishment. The separation contract was not a trust agreement at all, and the money was not a trust fund for any purpose. The defendant and her husband settled up their-property and other affairs, and the husband gave notes which became assets of the defendant like any other property she might have acquired in any other kind of a venture.
The defendant says the money was alimony, and that alimony cannot be garnished. Alimony is an allowance made by order of court. This money was not-derived in that manner, but represented what the defendant agreed to take to release her claim on her husband’s property and to his support.
Some other matters are presented which are without merit, and a question is asked which has nothing to do with the validity or propriety of the order appealed from.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment against it for personal and property injury sustained by I. Salisbury in a collision with one of the defendant’s street cars in Wichita.
The first question argued is that the court erred in overruling the defendant’s demurrer to the plaintiff’s evidence. The defendant insists that the plaintiff’s evidence showed that Salisbury was guilty of contributory negligence and that, for that reason, the demurrer to the plaintiff’s evidence should have been sustained. There was evidence to prove the following facts: At the time of the accident Salisbury, with a team and loaded wagon, was attempting to drive across the defendant’s electric street-railroad track in front of an approaching stréet car. The street was being paved and brick were piled along the track from two to five feet high. This prevented Salisbury from crossing the track on the street on which he was driving. He was compelled to turn from that street and go along the street-car track for about 40 feet, where there was a crossing place. From the street on which he was approaching the track, and from the place of the collision, he could see an approaching car for 300 feet. When he approached the track he looked to ascertain if a car were coming, but he did not see any car. He then drove along the track and attempted to cross it, when his wagon was hit by the street car. He looked again when he attempted to cross the track, but the car was then on him.
The defendant’s argument is that if Salisbury had looked when he reached the street on which the track was laid, he would have seen the approaching car. The defendant further argues that Salisbury was guilty of contributory negligence in attempting to cross in front of the car which he had seen, or that if he did not see the car, he must have failed to look. The defendant seeks to invoke the rule which requires one to look and listen when about to cross a railroad track, and if necessary to stop before attempting to cross, and which holds one guilty of contributory negligence if he attempts to cross in front of an' approaching train after he has seen it. That rule does not apply to one who is attempting to cross a street railroad. In Railroad Co. v. Gallagher, 68 Kan. 424, 75 Pac 469, this court said:
“A traveler may cross an electric street-railway track in front of an approaching car which he plainly sees and distinctly hears and not be negligent. If, in view of his distance from the car, the rate .of speed of its approach, and all other circumstances of the event, a reasonably prudent man would accept the hazard and undertake to cross, a traveler may do so, and the propriety of his conduct is ordinarily a question for the jury.” (syl. ¶ 2.)
(See, also, Railway Co. v. Summers, 75 Kan. 342, 89 Pac. 652; Railway Co. v. Schriver, 80 Kan. 540, 542, 103 Pac. 994; Marple v. Railway Co., 85 Kan. 699, 118 Pac. 690; Wiley v. Interurban Railway Co., 89 Kan. 84, 130 Pac. 659; Note, L. R. A. 1917C. 692; 36 Cyc. 1554.)
The question of Salisbury’s contributory negligence was one for the jury and could not be determined on a demurrer to the-evidence.
Another matter urged by the defendant is that the court committed error in refusing to give the following instruction:
“If you find from the evidence that the plaintiff looked to the west for an approaching car before going upon the track, and you further find that, at the time he so looked, the said car was there approaching and within view of him, then you are instructed that plaintiff is chargeable with knowledge of its approach, although plaintiff claims that he did not see said car approaching.”
That instruction correctly stated the law. (Railway Co. v. Agnew, 65 Kan. 478, and Note in 15 L. R. A., n. s., 259.) It was error to refuse to give it, unless it was substantially given in other instructions. The court did instruct the jury as follows:
“You are further instructed that it was the duty of the plaintiff to take notice of the fact that street cars were liable to pass along the tracks of the defendant company at any time.”
The latter instruction was good as far as it went, but it did not give the law concerning an approaching car which the plaintiff did not see. The former charged the plaintiff with knowledge of the approaching car, while the latter charged him with notice of the fact that a street car was liable to pass at any time. There is a material difference between the two when applied to street-car traffic within a city. Knowledge that a street car is approaching is quite different from notice that one may approach at any time. If the instruction requested had been given, it may be that the jury would not have found that the plaintiff exercised diligence before going upon the track.
For the error in refusing to give the instruction requested, the judgment is reversed and a new trial is directed. | [
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The opinion of the court was delivered by
Porter, J.:
The appellants are children and heirs at law of Margaret Noffsinger, who died in September, 1915. She was the widow of Peter Noffsinger and survived him for more than twenty years. By his will she was left a life estate in a valu able farm in Atchison county, near Effingham. The appellee, Ernest Mulligan, is her grandson, and his mother Lona Mulligan, is the only one of the family who was not made a party to the suit, the purpose of which is to set aside a deed executed in 1914, by which Mrs. Noffsinger for a nominal consideration conveyed to her grandsonv 160 acres of land in Finney county which she had purchased with her own funds after her husband’s death. The trial court found in his favor, and the appellants bring the case here for review.
About the time of the marriage of her last daughter, Mrs. Noffsinger took to her home her grandson, Ernest Mulligan, then an infant, and obtained the consent of his parents that he might remain with her. With the exception of occasional visits to his parents, he lived with her until her death. The farm upon which she resided consisted of 560 acres, and she continued to farm a part of it, renting the balance, until about 1905, when she consented to the sale of 400 acres, the proceeds of which were divided among her ten children, she relinquishing her life estate therein. She retained her life interest in 160 acres and farmed that together with some other land she had purchased after her husband’s death and on which she and Ernest resided. While on a visit to the parents of Ernest, who lived in Finney county, she saw the land in controversy and purchased it with her own money. This was about nine years before her death, and there was testimony showing a statement by her to the effect that she bought' the land for Ernest. From the time Ernest was 14 years of age he did the usual farm work on the place, raising crops and stock the proceeds of which were divided between him and Mrs. Noffsinger. In 1912 he and his grandmother -had some slight differences, and he left her, but was induced to return at her solicitation. At the time the deed was executed Mrs. Noffsinger was eighty years of age, and Ernest was twenty. She was uneducated and unable to read or write. The theory upon which the appellants seek to set aside the conveyance is, that she was enfeebled in mind by disease and old age; that her thoughts and actions were dominated by her grandson, and that the deed was procured at his suggestion and request, which amounted to a demand which she was' incapable of resisting, and that the conveyance, being without, consideration, is void.'
The principal contentions of the appellants in this court are, first, that there was no evidence to show a delivery of the deed, and second, that because the evidence shows the grandson occupied a confidential and fiduciary relation to the grantor, and the fact that her mind was enfeebled by disease and age, there is á presumption that undue influence was uséd in obtaining the deed, and the burden was upon the grandson to establish the fairness and honesty of the transaction. This rule of law was applied in the case of Smith v. Smith, 84 Kan. 242, 114 Pac. 245, and in other decisions there cited. The appellee insists that the court below recognized the soundness of the rule throughout the trial, and that the evidence not only wholly failed to sustain the appellants’ contentions, but, on the contrary, showed that Mrs. Noffsinger was not enfeebled in mind, and was not under appellee’s control or influence at the time of the conveyance."
It is purely a fact case, and we think the most that can be said for the appellants’ second contention is, that there was. some conflict in the evidence. There are no special findings, but in our opinion the evidence was sufficient to justify the trial court in finding that while Mrs. Noffsinger was afflicted with the physical infirmities of old age, her mind was .not enfeebled, and she was not dominated or controlled by her grandson. A number of witnesses, who appear to be disinterested and who were well acquainted with her, testified she was a woman of more than ordinary strength of mind and character, and was an exceptionally good business woman. In the opinion of some of the witnesses, she was mentally much stronger than her grandson, and was never subject to any undue influence on his part. Some of them testified that up to the time of her death they saw no change in her mind or in her actions indicating inability to conduct and manage her affairs in the samé way she had always done. Assuming that there were sufficient facts shown to place the burden "of proof on the grandson to show that the transaction was fair and conducted without undue influence, it cannot be said that the burden was not fully met.
We think, too, there was sufficient evidence to establish a delivery of the deed. Mr. Kelley, a banker at Effingham, testified that Mrs. Noffsinger came to the bank accompanied "by her grandson and told him she wished to deed the land in question to her grandson. His recollection was that the grandson said nothing at the time, and that the old lady said she was going to give the land to Ernest and wanted the deed to show a nominal consideration. His testimony is that he did not draw the deed at the time, but promised to prepare it later, and that he got the description from tax receipts left with him. Some time after that Ernest called him by telephone to come with the deed to the house, and he went there with Ernest and presented the deed to Mrs. Noifsinger for her signature; she signed it by her mark, and it was witnessed by one of the neighbors who was called in for that purpose. The witness finished the acknowledgment and shortly afterwards left, taking the deed with him. Some time later, at the request of the grandson, he sent the deed for record. A formal delivery of the deed to the grantee by the grantor was not necessary. The undisputed evidence showed that the deed was prepared in pursuance of a request made by the grantor to Mr. Kelley; and, after she had signed and acknowledged it, the fact that she allowed the notary to take it with him was sufficient to show a delivery.
The case being one involving nothing but facts, upon which the trial court has found against the appellants, the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The state asks for writs of mandamus directing the sheriff of Sherman county to execute three commitments against William Hartstine, John H. Denny and J. H. Jarrett, and to confine them in jail for a period of thirty days. These three men had violated the prohibitory law and were prosecuted before a justice of the peace at Kanorado, in State Line township in Sherman county. They pleaded guilty, and each of them was sentenced to jail for 30 days and to pay fines of $100 and costs of prosecution. Three days later these men paid their several fines and costs, and thereupon the justice of the peace entered on his docket an order, as follows:
“Said fine and costs being fully paid, it is further ordéred and adjudged by the court that the defendant, Wm. Hartstine, be paroled from said jail sentence until further ordered by this court. The court hereby remit the jail sentence. (Signed) J. B. Ford,
Justice of the Peace.”
Similar orders were made in the cases of Denny and Jarrett.
About a week later, and notwithstanding the paroles and remitted jail sentences by the justice of the peace, Hartstine, Denny and Jarrett applied to the district court of Sherman county for paroles. The district court declined to act.
As the justice of the peace had assumed to parole these men and had remitted their jail sentences on payment of their fines and costs, he did not issue formal commitments for their imprisonment, and some weeks later, under circumstances which justify the inference that the duty of sending these men to jail was too distasteful to him, he resigned his office.
Some time later, a new justice of the peace was appointed to fill the vacancy, and after the latter had been in office about six months he issued the commitments for Hartstine, Denny and Jarrett, directing their incarceration in the Sherman county jail pursuant to judgments in their respective cases. Thereupon Hartstine, Denny and Jarrett applied to the probate judge of Sherman bounty for writs of habeas corpus. That court issued writs, to which the sheriff made answer showing the facts narrated above. The probate judge discharged the petitioners. The state made some effort to appeal, but the appeal was not perfected; and on motion of Hartstine, Denny and Jarrett it was dismissed by the district court, with the following additional order— ,
“And it is further ordered, adjudged and decreed by the court that the said defendant, William Hartstine, be and he is hereby released and dis-' missed from the custody of the said H. J. Piper, respondent herein and sheriff of Sherman county, Kansas.”
There are no material facts in dispute in these lawsuits. Examining the legal .questions in order, it may be noted that the original judgments pronounced against the parties were complete and regular in every respect. It is clear also that those judgments were irrevocable when once they were acquiesced in by part satisfaction, that is, by payment of fine and costs.
(The State v. Massa, 90 Kan. 129, 132 Pac. 1182.)
It is also clear that the pretended paroles granted by the justice of the peace were void, for no power to grant paroles is vested in' justices of the peace. So, too, the pretended orders of the justice remitting the jail sentences were nullities. That was an exercise of the pardoning power not vested in a justice of the peace. (Sims v. Kennedy, 67 Kan. 383, 73 Pac. 51.)
.Touching the assumption of jurisdiction by the probate judge and his order discharging the petitioners on habeas corpus, it may be admitted that ordinarily those magistrates who by law are vested with power to issue writs of habeas corpus, probate judges, district and supreme courts and the judges and jústices thereof, always have power to hear applications and to make inquiry as to the cause of a petitioner’s restraint of his liberty, but they do not have jurisdiction to discharge such petitioners under circumstances where the statute plainly forbids such discharge. The statute provides that the sheriff or other person having custody of the petitioner shall show his authority for restraining him. (Civ. Code, § 696.) The sheriff exhibited the commitments in compliance therewith. The statute declares that no court shall inquire into the legality of any judgment of a court of competent jurisdiction nor discharge a petitioner when the term of the commitment has not expired. (Civ. Code, § 699.) This matter was fully and clearly presented to the probate judge, and it was shown that the term of imprisonment imposed on the petitioners had not been served, that the judgment had not been executed (Hollon v. Hopkins, 21 Kan. 638), and that the term of the commitment had not expired. In other words, any inquiry made by the probate court was bound to disclose that it was altogether without jurisdiction, and its decree discharging the petitioners was a nullity. (In re Terry, 71 Kan. 362, 80 Pac. 586; In re Will, 97 Kan. 600, 155 Pac. 934; In re Miller, 97 Kan. 809, 156 Pac. 783.)
Probate judges, like justices of the peace, frequently have little or no learning in the law, and it is not an uncommon occurrence for overzealous counsel to induce them to assume a jurisdiction which they do not possess. The most notorious recent case of this character was the Callahan case (The State v. Callahan, 93 Kan. 172, 144 Pac. 189), where Callahan, a convicted burglar, was repeatedly discharged by the probate judges of Leavenworth and Sedgwick counties from the custody of the sheriff while the latter was endeavoring to place Callahan in the state penitentiary in accordance with a commitment issued by the district court in obedience to a mandate of the supreme court. This court held that the orders of the probate courts of Leavenworth and Sedgwick counties discharging Callahan on writs of habeas corpus were altogether void. The court said:
“The judgments rendered in the probate court of Leavenworth county and the probate court of Sedgwick county are each not merely erroneous, but are void for want of jurisdiction. . . .
“It is a matter in which there is no conflict of authorities, that where a court of competent jurisdiction first acquires jurisdiction in a particular matter no other court can legally assume jurisdiction unless the jurisdiction of the former court is by appeal or otherwise lawfully transferred to it.” (The State v. Callahan, 93 Kan. 172, 176, 144 Pac. 189.)
It has often been decided that a discharge of a petitioner on habeas corpus, where the tribunal had no jurisdiction so to do, is a nullity. (Vorce v. Oppenheim, 37 App. Div. [N. Y.] 69, 55 N. Y. Supp. 596; Spalding v. The People, 7 Hill [N. Y.], 301; Hecker v. Jarret, 3 Binn. [Pa.] 404.)
Since the probate court was without jurisdiction to discharge the petitioners, its judgment was a nullity; no appeal was necessary, and the abortive appeal undertaken by the state may be disregarded. So, too, the supplementary language, of the order of the district court in dismissing the appeal should be disregarded. v That supplementary language directing the discharge of the petitioners was void, as the court had nothing before it except a motion to dismiss a defective appeal.
There remains only the question of delay in the issuance of the commitments. The judgments were pronounced against Hartstine, Denny and Jarrett on February 25, 1916. Owing to the illegal orders of the justice of the peace in paroling the men and remitting their jail sentences, their endeavors to procure paroles from the district court,, the refractory attitude and delay of the justice and his subsequent resignation, the reasonable delay incident in finding another citizen who would serve as justice,'and the necessary and reasonable time the new justice might be supposed to require to familiarize himself with the status of pending judicial business, the commitments were not issued until November 1, 1916. The delay was unusual, but it cannot be said to have been unreasonable, if such a delay would be fatal, and that point need not be decided. There is a well-known, necessary and practical rule to the effect that ordinarily no procrastination of public officials prejudices the state, and that their tardiness neither bars no defeats the state from vindicating its sovereign rights, except where .positive statutes so provide. (The State, ex rel., v. Gerhards, 99 Kan. 462, 465, 162 Pac. 1149; In re Moseley’s Estate, 100 Kan. 495, 164 Pac. 1073.) There is not the difficulty here which arose in the Sapp case (The State, ex rel., v. Sapp, 87 Kan. 740, 125 Pac. 78), where the district court deferred the imposition of judgment and sentence until the term of the district court had expired. Here the judgments were pronounced, and only their execution was delayed. Nor is there the same artificiality of terms of court in the jurisdiction of a justice of the peace. His court- presumptively is always open for business. A delay in the pronouncement of judgment in a criminal case is not fatal in that court, and the justice does not lose jurisdiction by such delay. (The State v. Massa, 90 Kan. 129, 132 Pac. 1182.) Still less does a justice lose jurisdiction to issue a commitment or make other appropriate orders to carry into execution a judgment already decreed. In the case of In re Strickler, 51 Kan. 700, 33 Pac. 620, cited by counsel for defendant, the sentence of imprisonment is indefinite, contingent, and uncertain. No such infirmity affected the judgments in the present cases.
Some precedents are cited by defendant touching the rights of a person to b,e discharged from custody at or after the expiration of the date on which the term of imprisonment would have expired if the person had been promptly incarcerated when the sentence was pronounced. But there are many obvious exceptions to that rule. Delay in beginning the term of imprisonment for any good reason, such as an appeal and stay of proceedings, the death or resignation of the magistrate or of the officer charged with the execution of the commitment, the breach of a recognizance and escape or hiding of the person convicted or his resistance and defiance of the court’s processes —or other delays which might be suggested — would not defeat the state nor give immunity to a person convicted under a penal statute. In Hollon v. Hopkins, 21 Kan. 638, where there was a delay of four years in executing the commitment, owing to the petitioner’s escape from custody, it was held that the essential portion of the sentence of a criminal is the punishment, including the kind of punishment and the amount thereof, and that the “expiration of time without imprisonment is in no sense an execution of the sentence.” (syl. ¶ 2.)
(See, also, Ex parte Vance, 90 Cal. 208; Neal v. The State, 104 Ga. 509.)
The writs of mandamus are allowed. | [
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The'opinion of the court was delivered by
DAWSON, J.:
In 1914, the defendant became the agent of the plaintiff’s business predecessor for the sale of farm implements. Shortly before this agency was undertaken, one Roberts, a representative of plaintiff’s business predecessor, negotated a sale of a threshing outfit to one J. T. Hodge, taking therefor six notes aggregating $1,500. Roberts effected the agency deal with the defendant. A part of the bargain was that the defendant should receive the commission on the sale just made to Hodge, and that the defendant should guarantee the payment of Hodge’s notes. In accordance therewith, the defendant obligated itself as follows:
“Lawrence, Kansas, April 28, 1914.
“In consideration of $239.00 commissions on the J. T. Hodge sale and a commission contract for The Rumely Line, we the undersigned guarantee the payment of two notes signed J. T. Hodge, one for $300.00 due August 1st, 1915, one for $250.00 due September 1st, 1914, within thirty days after maturity of said notes. “Evans Metcalf Imp. Co.
“W. P. Evans, Secy.”
Hodge defaulted; the threshing outfit was sold under a chattel mortgage, and the proceeds applied on the payment of his notes — upon some of them which were not yet due, which was a privilege accorded by the mortgage contract.
The notes and contracts were assigned to plaintiff, and suit was begun against defendant as guarantor of the notes not paid by Hodge, and a separate cause of action was included which covered an account of goods sold to defendant.
The plaintiff prevailed. Defendant assigns certain errors.
It is first contended that the defendant received no consideration for its guaranty. It was awarded the agency contract, and it whs given the commission on the sale to Hodge when the latter should pay his notes. That was a sufficient consideration.
The next contention is that W. E. Evans, the secretary, had no authority to guarantee the Hodge notes. He did not have authority by virtue of his secretaryship; but it was clearly shown, and indeed not denied nor attempted to be disproved, that Evans was the managing officer of the company, that the directors scarcely ever met, and that they intrusted the business entirely to him and one other person. The defendant’s business contracts were all executed and signed exactly as this contract of guaranty was signed. The obligation was one within the usual course of the defendant’s business, and the signature was the usual one used by the corporation in all its business obligations. Both- by estoppel and by acquiescence of the defendant and its directorate, the defendant is bound by the guaranty. (Ross v. Eastham, 73 Kan. 464, 85 Pac. 531.)
The next contention is that the defendant had not corporate power to make the contract of guaranty — that it was ultra vires. The charter of the defendant corporation authorized it to engage in the wholesale and retail implement, vehicle, and merchandise business. Threshing machines are implements. They are generally sold under agency contracts. Defendant sold at least one other machine under this agency contract and claims a commission therefor in this same lawsuit. Both the fair interpretation of its charter powers and the operative interpretation placed thereon by defendant itself justify the court’s ruling that the contract of guaranty was not ultra vires.
A final contention is that the proceeds of the chattel-mortgage sale of the Hodge threshing outfit should have been applied on the notes sued on, or at least prorated on all the notes. The mortgage contract permitted the application of the proceeds to the notes not due.'
No semblance of error being disclosed in the judgment, the decision of the trial court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This appeal questions the propriety of certain incidents which arose in the foreclosure of first and second mortgages on a quarter section of land in Morris county.
The plaintiff, who was the assignee of the second mortgage, brought suit to foreclose. The defendants, Keefer and wife, were the original mortgagors. They conveyed the land to Bashor, who in turn conveyed the north half of the land to his wife. The taxes on the land were in default; and Bashor later paid the delinquent taxes and was given a redemption certificate, therefor. In Bashor’s answer he asked that the county treasurer'be made a party, and that his redemption certificate be reformed and treated as a tax-sale certificate, and that his tax title be quieted against the plaintiff. Plaintiff replied that the deed from Bashor to Bashor’s wife was without consideration and was made for the purpose of avoiding the mortgage lien of plaintiff; that Bashor and wife had conspired to cheat plaintiff and defraud her of her lien, and that Bashor and wife had permitted the taxes to become delinquent with the intent that Bashor should obtain an independent title by tax deed and thereby extinguish plaintiff’s lien.
While the action was thus pending, the holders of the first mortgage interpleaded and asked for its foreclosure. The defendants were duly served with notice of the interplea, but did not appear to contest it and made default.
Both mortgages were foreclosed, and judgments were entered for the interpleaders and for plaintiff according to the precedence of their mortgage liens. The day after these judgments were entered, the defendants Bashor and wife, by new attorneys, filed a motion to set aside the judgment and for leave to answer the interplea. This motion was denied.
In December, 1916, an order of sale was issued, and the then sheriff of the county advertised that the land would be sold on February 6, 1917. The sheriff’s term expired on January 8, 1917, the order of sale was delivered to his successor in office, and the land was sold, the sheriff’s return was made, and the sale confirmed, all in due season.
A third firm of attorneys for defendants Bashor and wife filed a motion to set aside the sale, raising a question of the court’s jurisdiction “because not made by any person legally authorized to make the same.”
This motion, was overruled and denied.
The defendants contend, first, that the reply of plaintiff— that Bashor and wife had conspired to cheat and defraud the plaintiff of her lien and had allowed the taxes to become delinquent so that Bashor might acquire an independent tax title to effect that purpose — raised an issue which should have been tried out. That was an immaterial matter so far as concerns this case. However ingenuous and straightforward Bashor’s purposes might have been, the law could not countenance what he sought to accomplish. Some of these taxes were past due and Bashor was primarily liable therefor when he conveyed, the north eighty acres to his wife. Furthermore, the relationship of husband and wife is so intimate and confidential that a husband cannot acquire a valid and independent tax title to his wife’s real estate by a purchase thereof at a tax sale. (Warner v. Broquet, 54 Kan. 649, 39 Pac. 228; Peck v. Ayres, 79 Kan. 457, 100 Pac. 283.)
Defendants’ next complaint relates to the refusal of the trial court to set aside the judgment and permit an answer to be filed against the interplea of the holders of the first mortgage. It is a familiar rule of law that the granting or refusal of leave to file belated pleadings is within the trial court’s sound discretion, and there is no showing here that that discretion was abused. (Benfield v. Croson, 90 Kan. 661, 136 Pac. 262; Bank v. Badders, 96 Kan. 533, 536, 152 Pac. 651; Scott v. King, 96 Kan. 561, 152 Pac. 653; Bank v. Brecheisen, 98 Kan. 193, 195, 157 Pac. 259; Long v. Railroad Co., 100 Kan. 361, 363, 164 Pac. 175.)
Defendants’ final contention is that the sale was void because there was a change in the personnel of the sheriff’s office between the time the order of sale was issued and the time of the sale and the making'of the sheriff’s return. There is no merit in this contention. When a person holding an office dies or resigns, his successor in office takes up the official duties where the late incumbent left off. The new officer must inform himself, as best he can, of the status of the official affairs entrusted to him and proceed accordingly. This is not only true of sheriffs but of all officers, and not only of executive officers but even of judges, although as to the latter it sometimes happens that the easiest way that a new judge can inform himself of the status of a pending case is to begin anew. There would seldom be such necessity, however, on a mere ministerial duty like that of a sheriff’s sale where the sale had been properly advertised by a prior incumbent in the sheriff’s office.
Section 2751 of the General Statutes of 1915 requires all writs, process, orders, etc., in the hands of an outgoing sheriff to be handed over to his successor; and while section 2752 id-sanctions the practice of finishing the execution and return of writs by a retired sheriff, it is proper for his successor to finish such work in his own official name and character (35 Cyc. 1547; 43 Cent. Dig. 3447, 3451), and ordinarily it is his imperative duty to do so. (Gen. Stat. 1915, §§ 2749, 2757.)
The judgment is affirmed. | [
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The opinion of the court was delivered by •
Burch, J,:
The appeal is taken from an order of the district court appointing a receiver.
The petition prayed for dissolution of a partnership, for an accounting, and for disposition of the partnership property. The appointment of a receiver was asked by way of provisional and auxiliary relief. The chief ground of opposition to the appointment of a receiver was that the subject of the action was- real estate situated in Butler county, and consequently that the court had no jurisdiction to appoint a receiver for it.
The property involved is an oil and gas lease. The lease is of the familiar kind granting the right to enter on described land, explore for oil and gas, and if oil and gas be found in paying quantities, to operate and produce. The decisions of this court are too numerous to require citation, that instruments of that character are not leases, in the strict sense. The term lease is applied to them merely through habit and for convenience. They create no estate in land, but merely a kind of license. In the case of Oil Co. v. McEvoy, 75 Kan. 515, 89 Pac. 1048, it was said they create an incorporeal hereditament, that is, a right growing out of, or concerning, or annexed to, a corporeal thing, but not the substance of the thing itself. In the case of Robinson v. Smalley, 102 Kan. 842, 171 Pac. 1155, this nomenclature was approved and applied.
In this instance the right granted was exclusive to the grantees, and it is said this fact changed the nature of the grant. The circumstance that the grantors precluded themselves from making other leases did not change the thing the grantees acquired from one of an incorporeal to one of a corporeal nature.
Besides what has been said, it is unnecessary that property constituting the subject matter of a receivership be within the jurisdiction of the court, provided the parties in interest be' subj ect to the control of the court. In this instance the court acquired jurisdiction of the persons of the defendants by personal service and by an answer to the merits, and it would have made no difference if the property had been land. (High on Receivers, 4th ed., § 44.)
Cox and Brush negotiated for the lease, which provided the lessors should receive one-eighth of the mineral produced. Cox and Brush took the lease in their own names. Huston and his associates contributed $3,200 Jo the enterprise. Huston and his associates signed a contract relating to the matter, and there was evidence that Cox and Brush were to sign, but refused to do so after the lease was procured. Material portions of the contract follow:
“This agreement is further made with the understanding that the money hereto subscribed is to be used in conjunction with procuring. one certain lease which George W. Cox and 'William H. Brush are obtaining on the northeast quarter (%) of section twenty-six (26), township twenty-five (25), range four (4), containing one hundred sixty (160) acres more or less. The parties subscribing hereto are to receive one-eighth of all oil, gas, or minerals produced on said quarter section, for furnishing said thirty-two hundred ($3,200) dollars as a bonus in securing said lease. The owners of said land are to receive one-eighth of all oil, gas and mineral produced on said quarter section; said George W. Cox and William H. Brush are to receive one-eighth of all oil, gas or mineral produced on said quarter section; and said George W. Cox and William H. Brush and parties subscribed hereto or which may subscribe hereto are to hire parties to develop said quarter section for oil, gas, and mineral, by giving the other five-eighths portion of all production of oil, gas and minerals to such drillers as may be so hired, unless responsible drillers may be secured to develop said quarter section for less than a five-eighths portion of the production, in which case the extra profit at all times shall be divided equally into two equal portions, and said George W. Cox and William H. Brush are to receive one-half, and the subscribers hereto are to receive the other half. No contract for developing shall be let except that a well be drilled at least to a depth of twenty-seven hundred fifty (2,750) feet, unless oil or gas is found in paying quantities at a less depth.
“The subscribers hereto are at all times to share in the profits in the proportion that the amounts set opposite their names and paid in bears to-the total sum of thirty-two hundred, ($3,200) dollars subscribed.
“At all times the total number of subscribers hereto shall háve equal powers and interest with said George W. Cox and William H. Brush in managing and transacting business with reference to said lease.”
The court found that the relationship between the parties constituted a mining partnership. The court was in error. Mining partnerships are indulged between coowners only when they actually engage in working the property. Before actual operations begin, and after actual operations cease, 'they are simply cotenants, unless, of course, an ordinary partnership has been formed. (3 Lindley on Mines, 3d ,ed., § 796, and following sections.)
It is said the order appointing the receiver was erroneous because based on the .finding of a mining partnership. The conclusion does not follow, from the premise. .While the parties are merely cotenants of an incorporeal hereditament, the evidence was that they have reached an impasse. They cannot agree with respect to their rights, or the management of the property, or a disposition of it. There is no reason why a court of equity should not solve the situation; and meanwhile a receiver to hold the lease, protect the property, and perform other functions, is a proper and justifiable auxiliary.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for breach of a contract to locate and maintain a depot and other shipping facilities. A demurrer to the petition was overruled, and the defendant appeals.
The contract provided that the railroad company should permanently establish and maintain, on described land of the plaintiff, a passenger and freight depot and station, stockyards, sidetracks, and other shipping facilities; refrain from ever establishing or maintaining a depot, station, or siding facilities between Ash Grove in Lincoln county and the proposed station in Mitchell county, or within ten miles of the proposed station; do all in its power to obtain for the proposed station post-office and express-office facilities, to the end that there might be established on the real estate described a town equipped with the necessary shipping, express, and postal facilities; and at the time when the proposed station should be completed, run an excursion train for, or assist in advertising, a sale of town lots, free of cost. The consideration was the execution and delivery to the railroad company of subscription notes in the sum of $10,000, with an option to give notes to the amount of $5,000 and subscribe $10,000 to a bond issue of the railroad company. Should the railroad company default in performing any portion of the contract, it was to pay to the plaintiff the sum of $5,000 as liquidated damages.
The petition set out the contract, pleaded performance by the plaintiff and breach by the defendant, and prayed for the stipulated damages. The contract was void because contrary to public policy, and the demurrer to the petition should have been sustained.
The plaintiff argues that it is not per se against public policy to bargain with a railroad company for the location of a station at a particular place; that stations may, of course, always be discontinued when it is proper to do so, and consequently the stipulation for a permanent station may be ignored; and that the admittedly void stipulation not to establish other stations is severable. The plaintiff is not able to point out what part of his subscription was made in consideration of the naked location of a station on his land, with accompanying shipping facilities. On the face of the contract, material portions of the consideration on which the plaintiff made, his subscription were that the station should not be discontinued as soon as established, or at any later time, but should be permanent, and that no .other station should be located within competing distance. To interpret the contract otherwise would be to make a decidedly different engagement between the parties than that expressed by the instrument. The supposedly legal and the illegal things to be done by the railroad company constituted a unit of performance on its part, just as the plaintiff’s subscription constituted a unit of performance on his part, and the entire contract was void.
The court does not agree that the contract would have been valid if it had contemplated no more than the establishing of the station and shipping facilities described. The. public has an interest in the location of stations on a line of railroad, with the accompanying facilities for serving the public. That interest is paramount to the ■ interest of stockholders of the railroad company, and the temptation to gratify private greed rather than satisfy public need by selling out railroad facilities is just great enough that railroad officers and agents ought not to be permitted to expose themselves to it.
The authorities on the subject of the validity of station contracts are not in harmony, and it is not strange that this should be so. On one side transportation by rail is private enterprise, on the other,-public service; and the supremacy of the public interest was not always clearly visualized. Indeed, it was often difficult to do so in the early days of railroad building through great areas of undeveloped territory. Public policy as an operative legal principle was not always clearly visualized. Sometimes the statutory privileges enjoyed by railroad builders and the statutory privileges permitted municipal and quasi-municipal corporations in securing the extension to them of railroad facilities, confused the application of the doctrine of public policy to private contracts.
In this state the subject first-came up for adjudication in 1872, in the case of McClure v. Gulf Railroad Co., 9 Kan. 373. McClure and many others executed bonds to convey land to the railroad company if it would build its road to Baxter Springs and establish a depot and other buildings there. The railroad company brought suit on McClure’s bond. The answer was that the railroad was building in the direction of the south line of the state and toward a terminus in Texas. Two routes, known as the Tar Creek route and the Baxter Springs route, were in contemplation. The Tar Creek route was the more direct, and it would cost about $100,000 more to build, and $20,000 more annually to operate, the Baxter Springs route. In. consideration of the donations of «McClure and others, the Baxter Springs route was adopted. The statute authorized the railroad company to take and hold voluntary grants of real estate made to aid in the construction and maintenance of its road, and left the railroad company free to choose its route. Building the road to Baxter Springs did not constitute a deviation from any previously designated route, and the court concluded the question presented to the railroad company for decision was simply whether it would build a railroad to Baxter Springs or not. Consequently, it was held that the bond was not void as against public policy. The decision was sound, because the contract sued on belonged to a class of contracts sanctioned by public policy, evidenced by statute, al though an unauthorized use might, on occasion, be made of a particular contract of that character.
In the case of St. Jos. & D. C. Rld. Co. v. Ryan, 11 Kan. 602, decided in 1873, the syllabus reads as follows:
“It is the duty of a railroad corporation to furnish reasonable depot facilities for the accommodation of the public in the matter of transportation and travel.
“A contract in contravention of this duty of furnishing reasonable depot facilities is against public policy, and void; and a contract not to have or use a depot within three miles of a given point is such a contract.”
The opinion was written by Mr. Justice Brewer, with his characteristic breadth and lucidity of thought and simplicity of expression, and has been used to fortify the decisions of many courts whose attention has been'occupied by the same subject. The argument concluded with a quotation from the opinion of Chief Justice Shaw in the case of Fuller v. Dame, 35 Mass. [18 Pick.] 472, holding a note to be void the consideration of which was an agreement to locate a depot, because if contracts to pay money for the location of great public works or improvements in such a way as to enhance the value of a landowner’s estate were indulged, the public interest might be overlooked and.sacrificed in a mercenary conflict of separate local and private interests. The convincing reasoning of the principal case applies with equal force to contracts to establish and maintain, and contracts not to establish and maintain, stations.
In the case of Tucker v. Allen, 16 Kan. 312, decided in 1876, a deed of land, blank as to the grantee, was delivered to a railroad company, on condition that a depot should be built at a certain place within a stated time, and on the further condition that no depot should be built at another place within a year. The railroad company filled the blank with the name of a person who had performed services for it, and delivered the deed to him. The cohditions of the deed were performed. Afterwards the grantors quitclaimed to Allen, who brought suit to recover the land because the conveyance contravened public policy. The decision was that, granting the illegal character of the conveyance, the parties to it were in pari delicto, and, the transaction having been fully executed, the law left them and their assignees where it found them.
The writer of the opinion just referred to assumed that the action was not predicated on invalidity of the agreement to build a depot, and assumed that the, contract not to build the other depot was illegal. In the course of the opinion the question was asked how any court, without knowledge of the facts, could know whether or not a contract not to build a depot at a particular place would be void as against public policy. In the discussion of the question, stress was laid on the uncertainty with respect to the future needs of any community, and a leaning was indicated toward the view that illegality depends on public detriment in fact, which the court can see and estimate in the particular case. In the Ryan case the uncertainty with respect to the future needs of any community was offered as a reason for not allowing the railroad company to tie its hands by a restrictive station contract. The reason applies to contracts to establish stations, because legitimate public service should not be burdened with any improvident construction, maintenance, or operation. The notion that illegality depends on detriment in fact in the particular case is now generally repudiated. Actual public benefit in a particular case will not relieve from the taint of illegality, the true test being the tendency of contracts of that character to injure the public. (18 C. J. 444.) The decision in the Allen case, however, was perfectly sound, ■ because it was placed on the -ground already stated.'
In the case of Northern Kas. Town Co. v. Oswald, 18 Kan. 336, Oswald agreed to deed land to the town company when a railroad was completed to Hanover and a depot was erected there. Suit was brought on the agreement, and a demurrer to the petition was sustained. The consideration for the agreement did not appear. So far as the petition disclosed, the agreement bore no relation whatever to the determination of the question whether or not a railroad and depot should be built, and the judgment of the district court sustaining the demurrer was properly reversed.
In the case of A. T. & S. F. Rld. Co. v. Comm’rs of Jefferson Co., 21 Kan. 309, suit was brought to compel delivery of township bonds in payment of a subscription to the capital stock of the railroad company. The. statute authorized' the subscription and bond issue, and further provided that the commis sioners should not cause the bonds to be issued until the railroad was completed through the township voting bonds, or to such point in the township as might be conditioned in the bonds. The subscription contained a condition that the railroad company should construct its road through Valley Falls, a city of the township, and build a depot there. The court held that the bonds should be issued; The decision was sound, because the contract belonged to a class which the law expressly authorized the township to make. Public policy, evidenced by the statute, permitted the township to bargain, to its supposed advantage, with the railroad company with respect to the location of the road, and the inclusion of a stipulation to build a depot did not cancel the warrant of authority.
S.ome state and federal courts hold that because municipal and quasi-municipal corporations may contract for the location of stations, the general public policy of the state is thereby established, and private individuals have the same right. This reasoning is quite fallacious. In one case a public body, the municipal authorities, acting ordinarily on a vote of the qualified electors, is permitted to contract according to the interest of the locality. In the other, private individuals, in furtherance of their own selfish ends, strive to secure special advantages and privileges, without regard to the public welfare.
■The decisions noted are all that have been rendered by this court throwing direct light on the subject under consideration. They do not commit the court to a holding that a town-site promoter, like the plaintiff, may secure a lawful contract binding the railroad company to establish on his land a passenger and freight depot and station, stockyards, and other shipping facilities, and the court declines so to hold. It is a mere quibble to speak of establishing structures and facilities of the character described, as distinct from maintaining them, because to-establish is to fix with appropriate permanence. The field was open to rival promoters to offer more alluring inducements to the railroad company to champion their town sites,' .and in such a contest the public interest is too likely to be found trailing after the successful bidder.
The judgment of the district court is reversed, and the cause is remanded with direction to sustain the demurrer to the petition. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff, John W. Herman, appeals from an order refusing to set aside a judgment rendered against him. In March, 1912, judgment was rendered in favor of the plaintiff and against the defendants, including J. F. Anderson (now deceased) and Mary V. Anderson, quieting title in the plaintiff to certain real property in Finney county. Service was by publication, and judgment was rendered by default. In August, 1914, J. F. Anderson filed his motion to open the judgment and be permitted to defend. That motion was allowed on March 15, 1915, and J. F. Anderson then filed his answer and cross petition. Anderson asked for judgment against the plaintiffs in the sum of $10,000. The plaintiff asked, and was given, 30 days in which to plead to the answer and cross petition. On May 10, 1915, the court, on the motion of the plaintiff, set aside the order giving him 30 days to plead. The plaintiff then announced in open court that he intended to appeal to the supreme court from the order opening the judgment quieting title in his favor. That appeal was afterward taken. On July 28, 1915, judgment was rendered against the plaintiff and in favor of J. F. Anderson for $4,000. The judgment recites that the plaintiff failed to answer, reply, or otherwise plead to the answer and' cross petition of defendant, J. F. Anderson; that the plaintiff did not appear on the trial, either in person or by attorney; and that J. F. Anderson introduced his evidence and rested. On Sept. 15, 1915, the plaintiff filed his motion to vacate the latter judgment on the ground of irregularity in obtaining the same and on the further ground that the judgment was rendered before the action regularly stood for trial. When the plaintiff procured the order setting aside the order granting 30 days to plead to the answer and cross petition; the trial of the cause was, on Anderson’s application, continued until the next adjourned term of the court. The plaintiff’s motion to set aside the judgment against him alleged:
“That trial of the issues in this cause on the 10th day of May, 1915, was continued until the next ensuing adjourned session of said court; that an adjourned session of said court after May 10th, 1915, was held on June 30th, 1915, but this cause was not called for trial nor in any manner presented to the court nor was it continued for trial to any other adjourned session of the court; that at said adjourned session on said June 30th, 1915, local counsel for said Anderson, Mr. Fred J. Evans, was present in Court as was also W. C. Pierce, local counsel for said plaintiff, but the said defendant Anderson took no steps toward bringing said cause to trial at that time; there being nothing done in said cause on June 30th; counsel for defendant Herman was of the impression and believed that said ease would not be called for trial until the next regular term of said court; that afterwards and on July 28th, 1915, another brief adjourned session of said court took place; that said plaintiff and said Anderson were both non-residents of this county and were neither one present at said session; that said W. C. Pearce was present at said session of the Court during a good part of the time the court was in session and during that time said cause was not referred to nor called for trial; that said Pearce was physically unable to attend the entire session of said court and when he left the court room he went home and there remained the balance of the day; that he knew nothing of the matter of said cause being called for hearing on said day and was not advised nor informed that it was the intention of counsel for Anderson to present said case at said time.
“Plaintiff further represents and shows unto the court that at the time of presentation of said case on July 28th, 1915, the record showed that plaintiff intended to appeal from the Order of this court heretofore obtained, and had actually appealed said cause to the Supreme Court of Kansas.”
There was evidence to support these allegations of the plaintiff’s motion. From the order denying that motion the plaintiff appeals;
John W. Herman deliberately put himself in default and thereafter, so far as the record shows, failed to indicate to the court that he intended to further contest with the Andersons, except through an appeal to this court. Under these circumstances, it cannot be said that there was any irregularity in obtaining the judgment; neither can it be said that judgment was rendered before the action regularly stood for trial (Leonard v. Hargis, 58 Kan. 40, 48 Pac. 586.)
To support his contention the plaintiff cites: Sawyer v. Bryson, 10 Kan. 199; Johnson v. Ware, 67 Kan. 840, 73 Pac. 99; Patterson v. Oil Co., 101 Kan. 40, 165 Pac. 661.
These cases do not support the position taken by the plaintiff, but no good purpose will be served by showing wherein they differ from the one now under consideration.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to recover damages for the alleged negligent burning of plaintiffs’ threshing outfit. There have been two trials of the case; at the first of which a demurrer to the evidence was sustained, and the plaintiffs were given leave to amend their petition. At the second 'trial the court again sustained a demurrer to plaintiffs’ evidence, and from that decision they appeal.
It was alleged in the amended petition that the defendant owns and maintains a two-inch pipe-line upon the surface of and along the south side of a public road, for the purpose of conveying fuel oil; that the plaintiffs came along the highway with their threshing outfit, with the intention of entering a field on the south side of the road to do some threshing; that the only entrance to the field was a passageway through a gap in the fence on the south side of the highway; that the pipe-line was entirely concealed from view by a rank growth of weeds; that plaintiffs did not know of its presence or the character of its contents; and that when their engine crossed the pipe the oil gushed out, caught fire, and destroyed the engine aiid threshing machine.
From the testimony introduced, it appears that the pipe-line is at the extreme south edge of the highway, near to the fence and about twenty-five feet from the center of the road; that there is a ditch between it and the roadway; and that at the place where the pipe crossed the passageway into the field the pipe was partially visible through the dirt. Before attempting to enter the field, one of the plaintiffs went ahead and inspected the ditch to ascertain whether the machine could be taken across it. He then started his engine across the ditch and over the pipe without putting anything down to protect it, the wheel of the engine punched a hole in the pipe, and the oil gushing out was ignited from the fire box. Although one witness said that plaintiff’s attention was called to the pipe, the latter testified that he did not see or know that the pipe was there, and that no one told him about it.
Plaintiffs insist that there was sufficient evidence presented to take the case to the jury, and that is the only question presented on this appeal. As against this contention, it is argued that the evidence failed to show that the defendant owned or was in control of the pipe line. The line was used to convey oil from the defendant’s station to the Coffeyville brick plant. In his testimony the foreman of that plant stated that the pipeline “belonged to the Union Traction Company, and it was the same line that was broken when the threshing outfit was burned.” Another witness, in effect, stated that the oil was pumped to the Coffeyville brick plant; that the pump was located on the switch of the Union Traction Company; and that the oil was taken to the defendant’s pump station in tank cars which were operated by the defendant. Still another witness testified that after the fire the company put in a joint of pipe where it was broken, and buried it. The evidence warrants the inference that the defendant owned, or at least controlled, the pipe line.
There is a contention that the evidence failed to show negligence on the part of the defendant. It is true, as defendant contends, that a pipe line for the transportation and distribution of oil for fuel and other purposes may lawfully be laid along a public highway. However, it must be so laid that it will not obstruct or endanger the use of the highway for public travel. (The State v. Natural-gas Co., 71 Kan. 508, 80 Pac. 962.) Plaintiffs were likewise entitled to take their threshing outfit over the highway and, in order to enter the gap or gateway into the field where the threshing was to be done, had the right to use not only the worn part of the highway but the whole width of it. As oil is of an inflammable nature, great care should be exercised in transporting it along a highway. It should be such care as is commensurate with the dangerous nature of the material and the consequences that should have been apprehended from the means employed in carrying it over the“ highway. (Hashman v. Gas Co., 83 Kan. 328, 111 Pac. 468; Luengene v. Power Co., 86 Kan. 866, 122 Pac. 1032.) Pipes carrying such material are usually and easily buried in' the ground, and the right to lay such pipes on the surface of a highway is questioned. It has been held, however, that if pipes are laid on the surface the party who maintains them be comes liable for all damages occasioned by placing them there, although such'damages would riot have been occasioned by the pipes if they had been buried in the ground. (The Lebanon Light, Heat and Power Company et al. v. Leap, 139 Ind. 443; Thornton on the Law Relating to Oil and Gas, 2d ed., § 510.) In Indiana, etc., Gas Co. v. McMath, 26 Ind. App. 154, it was held that the maintenance of a gas pipe, through which gas is flowing, on the surface of the ground within the limits of a public highway renders the owner liable for damages to one who without-his fault breaks the pipe by driving a traction engine over it and is injured by an explosion of the escaping gas.
It is further contended that the plaintiffs were guilty of con-. tributory negligence in driving over the pipe line when it was in plain view. One witness stated that it was actually brought to the attention of one of the plaintiffs. It appears that the pipe line was lying on the surface of the road and was partially visible through the dirt and was about the color of dirt. While a witness stated that when one of the plaintiffs got down and examined the ditch to determine whether he could- take the engine across his attention was called to the pipe line, the latter testified that he heard no such remark and did not have any knowledge that the pipe was there until it was broken and the oil was thrown upon the machine. In the first petition which plaintiffs filed,’ their attorney, it appears, inserted in it an allegation to the effect that a portion of the pipe was visible,, that plaintiffs did not know it contained oil of an inflammable nature, but supposed it was an old discarded gas pipe. The plaintiff testified that he did not know that the allegation was included in the petition and did not in fact see the pipe or know of its existence, and that when his testimony was given on that trial his attorney asked and obtained leave to amend the petition by striking out this allegation. If this averment should be treated as a conflict in the testimony of plaintiff, it.must nevertheless be held that it was within the province of the jury-to decide that conflict. On the demurrer to the evidence that part of his testimony which was favorable to plaintiffs must be taken as true, and, although other testimony given by him or in his behalf may contradict’ that which is favorable to plaintiffs, it is the function of the jury and not of the court to de termine which is credible and controlling. (Acker v. Norman, 72 Kan. 586, 84 Pac. 531.)
Measuring the testimony as we are required to do on a demurrer to the evidence, it must be held that the issues in the case should have been submitted to the jury, and therefore the judgment is reversed and the cause remanded for another trial. | [
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The opinion of the court was delivered by
West, J.:
From an order sustaining a demurrer to their petition the plaintiffs appeal. The allegation, in substance, was that the plaintiffs were the joint owners and holders of two promissory notes executed by R. W. Kibler and wife in September, 1910; that from about August 25, 1916, to January 5, 1917, Kibler was the owner and in possession of a stock of' merchandise at White Water, conducting a retail merchandise business; that about January 5, 1917, he sold all of the stock to the defendant, R. S. Trimmell, who took, possession and retained the same, conducting a retail business; that this sale in bulk was made without compliance with chapter 369 of the Laws of 1915; that on the 16th day of January, 1917, about eleven days after the sale, plaintiffs recovered a judgment against Kibler for $1,597.10, which has never been paid; that the sale from Kibler to Trimmell was void and of no force as to the plaintiffs, and that they are entitled to have the stock of goods and fixtures, or so much thereof as may be necessary, sold to satisfy the judgment and costs and costs of this action. The defendant demurred on the grounds that the court had no jurisdiction of the person of the defendant or subject of the action; that the plaintiffs had no legal capacity to sue; that several causes of action were improperly joined,; and that no cause of action was stated.
The statute provides that such sale shall be void as against the creditors of the seller unless the purchaser receives from the seller a list of names and addresses of the creditors certified as directed, and unless at least seven days before taking possession of the property or. paying therefor the purchaser shall notify in person or by registered mail every creditor whose name is stated in the list, or of whom he has knowledge, of the proposed sale. Provision is made for giving a bond in lieu of such notice. A seller knowingly and willfully omitting the name pf any creditor or his address or making any false or incomplete list, or any surety on any bond provided for who shall falsely verify the same, is punishable by confinement in the county jail not exceeding ninety days or by a fine not exceeding $500, or both. Corporations, associations co-partnerships and individuals are included, but sales by executors, administrators, guardians, receivers, trustees in bankruptcy, or any public officer under judicial process are excluded.
It is ably argued that the act is void as unduly interfering with the right of contract, as a means of punishing criminally the failure of a merchant to pay his debts, and as class, legislation ; also, that it was not intended to cover general creditors who had no lien or were not shown to haye furnished on credit some of the goods that made up the stock which was sold; and further, that the cause cannot be maintained in any event without making Kibler a party. Attention is called to numerous cases holding similar acts unconstitutional, and it is claimed that the one under consideration is peculiar in that the. penalty provided makes the sale void and not presumptively void merely.
The argument presented finds abundant justification in many decisions of the various courts, including that of the New York court of appeals in, Wright v. Hart, 182 N. Y. 330, decided in 1905; but in Klein v. Maravelas, 219 N. Y. 383, the same court upheld a similar statute; calling attention to the former opinion and the dissents therefrom, it was said:
“Since Wright v. Hart was decided, the validity of like statutes has been upheld in two cases by the United States Supreme Court. (Lemieux v. Young, 211 U. S. 489, Kidd, Dater & Price Co. v. Mussellman Grocery Co., 217 U. S. 461.) Objection to this statute on the ground of conflict with the federal constitution has thus been removed. We have still to determine, however, whether there is any conflict with our state constitution; and that requires us to say whether we shall- adhere to our decision in Wright v. Hart.
“We think it is our duty to hold that the decision in Wright v. Hart is wrong. The unanimous, or all but unanimous, voice of the judges of the land, in federal and state courts alike, has upheld the constitutionality of these laws. At the time of our decision in Wright v. Hart, such laws were new and strange. They were thought in the prevailing opinion to represent the fitful prejudices of the hour. . . . The fact is that they have come to stay, and like laws may be found on the statute books of every state.” (p. 384.)
After citing decisions of nearly every state in the Union upholding similar statutes, it was further said:
“Back of this legislation, which to a majority of the judges who decided Wright v. Hart seemed arbitrary and purposeless, there must have been a real need. We can see this now, even though it may have been obscure before. Our past decision ought not to stand in opposition to the uniform convictions of the entire judiciary of the land.” (p. 386.)
This decision, rendered in 1916, voices the prevailing sentiment regarding this sort of legislation.
It is first contended that the sale not being void as .between Kibler and Trimmell the latter had nothing to do with Kibler’s debt; that the goods were not concealed; that Trimmell could not be sued without making Kibler a party. It is suggested that by giving bond to protect Trimmell attachment or garnish-1 ment might lie, but that a straight action against Trimmell cannot be maintained. Authorities1 are cited in • support of these contentions, several of which involve fraudulent conveyances of property. The manifest intention of the legislature was to make the sale in this sort of a case void as to creditors, that is, of no force whatever. Therefore, finding Trimmell in possession of Kibler’s goods, undertaking to handle them in a retail business as his own, they could be taken from him, or'he could be compelled to subject them to the satisfaction of the plaintiff’s judgment for the simple reason that they are not his; as to the plaintiffs they are Kibler’s, and Trimmell has no' business with them. Whether a personal judgment could go against Trimmell need not now be determined. In Marlow v. Ringer, 79 W. Va. 568, holding valid an act making the sale void in toto as against the creditors, the purchaser of a half interest in a retail business who added a stock equal to that purchased, the two becoming confused and commingled, the entire stock was held to be subject to execution and sale to satisfy the creditor holding a prior trust deed on the fixtures and in part reduced to judgment against the debtor. • In a note in L. R. A., 1916 B, 974, it is said that the recent cases show a general disposition on the part of the courts to afford creditors every reasonable remedy, both at law and in equity, to enforce their rights. Supply Co. v. Smith, 182 Mo. App. 212, is cited, which holds that the remedies given to the general creditor áre those of attachment, garnishment, and levy under general execution, in addition to the equitable remedy holding the vendee as a receiver or trustee. As to the remedy in equity, decisions are cited holding that when the seller dies intestate and insolvent a creditor, without waiting to reduce his claims to judgment, may maintain an action against the purchaser in possession for the appointment of a receiver, the disposal of the property, and the application of the proceeds to the payment of his claims, the other creditors intervening if they desire. (Scheve v. Vanderkolk, 97 Neb. 204.) It is said, also, that the creditors may maintain a suit in chancery against the fraudulent vendee to hold him directly liable to them to the extent of their debts when the goods have been resold or their identity lost. (Daly v. Drug Co., 127 Tenn. 412; Mahoney-Jones Co. v. Sams Bros. 128 Tenn. 207.) The authorities cited support the text of the note.
If the plaintiffs could have proceeded by attachment, garnishment,' or levy of execution, why may they not proceed by action to charge the goods in the defendant’s hands with their claim? Some of the features of this case were present in Houghton v. Axelsson, 64 Kan. 274, 67 Pac. 825, which was held not to be a creditor’s bill.
“The action is - based solely upon the claim that by reason of the fraudulent character of the transaction in taking a chattel mortgage on Axelsson’s property for more than was due to them, the defendants became the trustees of that property for the benefit of the creditors.” (p. 276.)
(See, also, Bank v. Creek, 101 Kan. 552, 167 Pac. 1053; Kohn v. Fishback, 36 Wash. 69.)
As to the act itself, it is urged that by reason of the penalty clause the constitutional prohibition against imprisonment for debt except in cases of fraud is infringed. It will be observed that the penalty is not affixed for the failure to pay a debt, but for the willful omission of the name of'any creditor or his address from a list required to be furnished. The power of the legislature to enact bulk-sales statutes has been thoroughly established and upheld as already indicated. Having the power thus to legislate, the authority to punish within reasonable limits the violation of such legislation is necessarily included. Various criminal and other statutes exist for the purpose of preventing or punishing fraud without impairing the constitutional safeguard against imprisonment for debt. Along with this contention is the other, that the legislature has no power to make a sale of this sort more than presumptively void, at most, and that nobody can be punished for anything amounting to fraud without being permitted to show that he had no fraudulent intent ,* but authorities are abundant holding that the legislature has power to make such sales absolutely void as against creditors, and the penalty is not for failure to pay a debt, but for failure to do the thing expressly enjoined by the statute in reference to preparing a list of creditors. (Carriage & Sleigh Company v. McIntosh & Warren, 107 Tex. 307, L. R. A. 1916B, 970; Boise Assn. of Credit Men, Ltd., v. Ellis, 26 Idaho, 438, Note L. R. A. 1915E, 917; Glantz v. Gardiner, (R. I.) 100 Alt. 913, L. R. A. 1917F, 226, Note L. R. A. 1917F, 230.)
The statute punishes only the seller who knowingly and willfully omits the names or makes a false or incomplete list. There is nothing about the language of the criminal feature depriving a defendant of an opportunity to'show lack of knowl edge or intention; so it cannot be argued that a mere void sale ipso facto punishes the seller as a mechanical result, and therefore indirectly penalizes him for nonpayment of debt.
Another contention is that mercantile creditors only are intended, and that general creditors like: the plaintiffs were not to be given the benefit of the statute. It has been held repeatedly, however, that by the term “creditors” is meant all creditors, both mercantile and general, regardless of whether they are judgment creditors or not. (Note L. R. A. 1917F, 232, and authorities there cited; Ekland v. Hopkins, 36 Wash. 179; People’s Sav. Bank v. Van Allsburg, 165 Mich. 524; In re P. Pastene & Co., 156 N. Y. Supp. 524; Nash Hardware Co. v. Morris, 105 Tex. 217; see, also, Supply Co. v. Smith, 182 Mo. App. 212.)
In view of modern legislation and decisions, it is held that the act is valid, and that the petition states a cause of action.
The order sustaining the demurrer is reversed and the cause remanded for further proceedings. | [
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The opinion of-the court was delivered by
BURCH, J.:
The action was one to recover on a bond given to pay the debts of an estate and prevent a sale of real estate for that purpose. A demurrer to the petition was overruled, and •the defendant appeals.
A. F. Shute died, leaving a will devising all his property to his widow, which was duly probated. The plaintiff is executor of the will. The estate was indebted to the amount of more than $40,000, and the value of the personal property was less than $500. An order for the sale of-a section and a half of land to pay debts was duly issued by the probate court, and the sale was advertised to take place on February 10, 1917. On that day, but before the sale occurred, James H. Shute, claiming to be interested in the estate, procured the approval by the probate court of a bond to the plaintiff in the sum of $50,000, signed by the defendant, conditioned according to the statute.. Thereupon the probate court ordered the land withdrawn from sale, which was done. The statute reads as follows:
“An order for the sale of the real estate shall not be granted if any of the persons interested in the estate shall give bond to the executor or administrator, in a sum and with sureties to be approved of by the court, with condition to pay all the debts mentioned in the petition that shall eventually be found due from the estate, with charges of administering-the same, so far as the personal estate of the deceased shall be insufficient therefor.” (Gen. Stat. 1915, § 4603.)
The debts of the estate were not paid, interest accrued in large sums, and the plaintiff brought suit to enforce the bond-The contentions of the defendant are that the bond is void, because not given before the order of sale was granted, and because James H. Shute was not, in fact,, interested in the estate, and consequently was not authorized to interfere with the-. sale. . '.
The first contention is unsound. The law regards substance, and the substance of the matter was the raising of funds to-satisfy the debts of the estate. One method was by the sale of. real estate. Incidental to the method were the granting of an. order of sale by the probate court, and execution, of the order. Another method was payment of debts, insured by bond, by some one interested in the estate. If the bond were given, the-method by sale was superseded. Ordinarily, the subject comes-up for consideration while the petition to sell is pending. But. until the ultimate end in view — the creation of a fund to pay debts — has been accomplished by sale, the other course may be pursued. The precise question was considered in the case-of Davisson v. Burgess, 31 Ohio St. 78, and was decided according to the general principle that a variance in the time of giving a bond from that prescribed by the statute, whether before or after, is immaterial, unless the statute makes validity depend on prescribed time. (9 C. J. 25.)
In support of the second contention, it is said that public policy forbids one having no interest in an estate to interfere with the orderly course of its administration. Consequently, the right to give bond to prevent a sale of real estate is limited to one having an interest. The petition'does not allege that Shute did, in fact, have an interest in the estate, and in fact he did not. Furthermore, the surety on a bond to prevent a sale is entitled to be subrogated, if necessary, to the interest conserved by giving the bond. ' This protection would fail if one not interested were allowed to give the bond. The conclusion is, the bond is utterly void.
For the purpose of the decision, all the- premises may be admitted. The conclusion does not follow.
What happened when the bond was approved by the probate court? The devisee, who had taken title subject to sale for the payment of debts, became absolute owner, freed from the contingency. Creditors were deprived of the security which the real estate afforded, and were relegated to the security afforded by the bond. The executor was disabled from the discharge of an important function, the course of administration was interrupted and diverted, and the probate court was relieved of its statutory authority over real estate as a source of funds for the payment of debts. The executor, creditors, and others interested in the estate did mot appeal, and the consequences stated, which were necessarily in contemplation when the bond was tendered, ensued.
How were the results just noticed brought about? They were brought about by the conduct of James H. Shute, and by his surety, the defendant, which enabled him to succeed by placing in his hand, for tender to the probate court and delivery to the executor, its executed bond.
The bond followed the statute literally. Its tender was adverse to the executor and the interests to be protected and promoted by a sale of real estate. No one was authorized to make such tender except a person interested in the estate, and. by tendering the bond Shute and his surety represented to the probate court that he was interested in the estate. The re- suit was that Shute and his surety brought on for consideration and determination by the probate court the question whether or not he was a person interested in .the estate. If the bond were tendered by one having no right to do so, it was the duty of the court, having ascertained the fact, to withhold approval, and allow the sale to proceed. If the bond were tendered by one having the right to do so, it was the duty of the court, having ascertained the fact and found the security to be 'good, to approve the bond, and desist from further exercise of authority over real estate.
As before indicated, the ultimate question was: Should debts be paid by means of a sale ? And granting an order of sale and recalling an unexecuted order of sale, stand on the same footing. Consequently, the question came up for consideration and decision precisely as if at the hearing on the petition to sell, with the executor urging his petition on one side, and Shute urging his bond on the other. The probate court possessed full jurisdiction to determine whether or not the land should be sold, and, as an incident, to determine the qualification of a person to prevent a sale by giving the statutory bond. In the case of Dunham v. Marsh, 52 N. J. Eq. 256, the statute provided that any person interested in the settlement of an administrator’s account might appear and take exceptions to the account. The question was whether or not a person filing exceptions to ah administrator’s account was an interested person within the meaning of the statute. The court said:
“The orphans’ court is invested with complete and general jurisdiction over the matters which are specially given it in charge by the statute (Pyatt v. Pyatt, 1 Dick. Ch. Rep. 285), among which, is the accounting of executors and administrators. Its action upon an account, duly advertised, is binding upon all persons in interest, and therefore those persons should be heard before the account is allowed. It follows, as a necessary incident to the exercise of this jurisdiction, that the court shall possess the power to determine who the parties in interest are.” (p. 261.)
The result is, the interest or want of interest of James H. Shute in the estate of A. F. Shute is not now of the slightest importance. The court having jurisdiction of the subject has rendered its decision adversely to the executor and a sale, and in favor of Shute and the bond. The public policy un derlying the statute was presumably given due consideration. The court may have misconceived the law, and may have misconceived the force of facts which should have controlled its judgment. If so, it erred, but the judgment was not void, and consequently is not subject to impeachment in this action. (Randolph v. Simon, 29 Kan. 406, 410, action on bond not to go beyond prison bounds; Wolfley v. McPherson, 61 Kan. 492, 496, 59 Pac. 1054, appeal from classification of a claim by the probate court; Clevenger v. Figley, 68 Kan. 699, 75 Pac. 1001, jurisdiction and erroneous exercise of jurisdiction.) Even although the probate court record disclosed the probated will giving all the property of the estate to the testator’s widow,it was necessary for the court to interpret the statute, exercise its jurisdiction, and pronounce upon the potency of that fact to exclude Shute from all interest in the estate. (Ayres v. Deering, 76 Kan. 149, 90 Pac. 794.) It appears from the briefs that Shute was a son of the decedent, and was in possession of the land. If an interest in the estate were claimed on account of those facts, it was necessary for the probate court to determine their sufficiency to' support the claim. Jurisdiction did not depend on whether it should sometime turn out that Shute did or did not have an interest, and an erroneous exercise of jurisdiction did not render the decision void. Not' being void, it cannot be collaterally attacked.
While approval of the bond and recalling the order of sale included an adjudication with respect to the proponent’s right to give bond, the result is-the same if that fact be left out of consideration. Having tendered the bond to the probate court, and procured its approval under color of the statute, and having thereby produced the consequences detailed earlier in this opinion, Shute, and the defendant in privity with him, are estopped to deny validity of the bond. It does not lie in the mouth of one who has affirmed a right under a statute, and has thereby accomplished a design, to deny the right in order to escape the consequences of his conduct.
The defendant says, however, that public policy does not permit any one but a person interested in an estate to give the statutory bond, and that there is no estoppel to assert invalidity of a bond on the ground that it contravenes public policy. The public may be interested, in a way, in the orderly administration of an estate, free from interruption by intruders. But the test of invalidity is tendency to be injurious to the public, and bonds to pay debts of an estate and prevent sales of real estate for that purpose are in furtherance of. public policy. Because the tendency of such bonds is beneficial, the statute expressly authorizes them. The bond sued on was not immoral, or essentially evil, or illegal. It was simply unauthorized, and any bond duly approved and accepted to accomplish a purpose sanctioned, or apparently sanctioned, by the law, is not void as against public policy. No public interest was in fact touched by the giving of this bond. There was no statute expressly condemning it, there was nothing inherently vicious about it,-it was not of a public nature, and. only private interests were affected. To hold it invalid would impinge upon the public good, by encouraging fraud and destroying the obligation of contracts.
The defendant selects the individuals for whom it will become surety, and subrogation to an interest in the' estate, supposedly protected by giving the bond, was a matter which the defendant ought to have investigated when it took Shute’s money to insure the executor that the debts of the estate would be paid.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued to recover on a pledge signed by the defendant July 27, 1913, for $500 payable in installments, “If enough subscribed to pay up the indebtedness this campaign.” The answer alleged that the subscription was conditional upon enough being subscribed to pay off the indebtedness during a certain campaign started in July, 1913, and abandoned shortly thereafter without raising the required amount.
It appears that there was a debt of about $16,000, and a campaign was begun in the spring of 1913 to secure subscriptions enough to cover this amount. It became essential to ascertain what was meant by “this campaign.” There was considerable testimony as to this matter, the secretary of the association testifying that the board never determined a formal date for the beginning or close of the campaign, and that the subscriptions were actually completed in December, 1914, and a report that a sufficient amount had been raised was made in January, 1915. The defendant regarded the campaign closed in the fall of 1913, but. several other prominent and active members of the plaintiff’s board of directors testified that it had not closed until 1915. There was testimony that in December, 1914, the defendant was asked to increase his subscription to $600 and declined, saying he thought $500 was enough for him to give.
In addition to the general verdict for the plaintiff, the jury in answer to a special question found that, while there was no direct evidence that the defendant advocated an extension of the campaign, he did say that his $500 subscription would stand. While it is to be regretted that a misunderstanding •should have arisen with as liberal a subscriber as the defendant appears to have been, the case presented to the jury was a fact case which upon sufficient evidehce was determined adversely to him.
Complaint is made of certain instructions given, and still more of those requested and refused. A careful examination of them all, however, convinces us that no error was committed in respect to either those given or those refused. The result reached by the jury, therefore," cannot be disturbed. | [
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The opinion of the court was delivered by
Mason, J.:
The City of Courtland, a city of the third class, let a contract for curbing and guttering certain streets. An action was brought by several owners of abutting property, seeking to enjoin the carrying out of the contract and the levying of assessments to pay for the work. On final hearing a permanent injunction was granted, but further-proceedings under the resolutions declaring' the improvement necessary were expressly allowed. The defendants appeal.
The principal objection made to the power of the city to make the improvements referred to, by the means employed, is that no ordinance has ever been passed establishing the grade of the streets affected. The plaintiffs contend that the grade can be established only by ordinance, and that it must be established before any contract for curbing, guttering, or paving is let. Cases are cited tending to support this contention. (C. & N. P. R. R. Co. v. City of Chicago, 174 Ill. 439; State v. District Court of Ramsey Cotonty, 44 Minn. 244.) It has,been held sufficient, however, if the grade is fixed before the.improvement is made. (Allen v. City of Davenport, 107 Iowa, 92, 99.) The matter is so largely controlled by statute that little aid is to be derived from decisions in another jurisdiction.
It is true that the passage of an ordinance is the natural method of establishing a permanent, as distinguished from a temporary, rule or condition. (Remington v. Walthall, 82 Kan. 234, 108 Pac. 112.) Yet where the method of the exercise of a power which a city possesses is not prescribed it may ordinarily use its own discretion in the matter, to the extent at least of employing 'any usual and appropriate means for the purpose. (28 Cyc. 275.) It is contended that the establishment of a grade is required to be accomplished through an ordinance, by virtue of a statute enacted in 1909, reading as follows:
“The mayor and council of the cities of the second and third class may by ordinance establish the grade of any street or alley in said city, and when the grade of any street or alley shall have been so established said grade shall not be changed until a resolution shall have been passed by a three-fourths vote of all the councilmen elected declaring it necessary to change.said grade.” (Gen. Stat. 1915, § 887.)
The power of a city to establish a grade cannot be thought to be derived from this statute, for it existed prior to the year named. Nor do we regard the statute as making an ordinance necessary to the establishment of a grade in all cases arising after its adoption. Its effect is to provide that a grade which is once established by ordinance shall be changed only by a three-fourths vote. We think the mayor and council still have authority, outside of this statute, to fix the grade' of a street, and that this result may be brought about by any action, as for instance by a resolution, giving expression to a present intention to accomplish that purpose. (See Wood v. Village of Pleasant Ridge, 12 O. C. C. 177, 181.)
The contention that a grade must be established before a street is curbed or guttered is based upon the statute which reads:
“Cities of the third class in their corporate capacities, are authorized and empowered to enact ordinances for the following purposes, in addition to other powers granted by law: To pave, curb and gutter any street, avenue or alley in said city and to tax the costs and expenses thereof to the abutting property and to issue improvement bonds for the payment of the costs and expenses of such improvements as herein provided. First, For all the paving, curbing, guttering and improvements of the squares and areas formed by the crossing of streets, avenues and alleys, the assessment shall be made upon all the taxable property of the city. . . . Second, For paving, curbing, and guttering all streets, avenues, and alleys and for doing all excavating and grading necessary for the same, except the squares and areas formed by the crossing of streets, avenues and alleys, after said streets, avenues and alleys have first been brought to grade, as now provided by law to be done, the assessments shall be made for each block separately, on 'all lots and' pieces of ground to the center of the block on either side of such street, or avenue, the distance improved or to be improved, or on the lots or pieces of ground abutting on such alley, according to the assessed value of the lots or pieces of ground without regard to the buildings or improvements thereon, which value shall be ascertained by three disinterested appraisers appointed by the mayor and council.” (Gen. Stat. 1915, § 1974.)
We do not regard this as intended to fix the order in point of time in which the grade shall be established with respect to the contracting for the improvements or levying the assessments. Its purpose, as we interpret it, is to insure that the abutting property shall not be required to carry the expense of bringing the street to grade, by providing that it is only the cost that accrues after that has been done which shall be charged to the adjoining lots.
In Keys v. Neodesha, 64 Kan. 681, 685, 68 Pac. 625, it was said:
“Before a city can legally levy a special assessment for building' sidewalks, it must establish a grade and bring that part of the street on which the walk is to be built to the grade so established.”
But the reason is that until the grade is established it cannot be determined what part of the whole cost of the improvement is incurred in bringing the street to grade — that portion of the expense being chargeable to the city generally, and not to the abutting property.
An engineer employed by the city prepared the specifications on which the contract was let. He testified that he made a survey, and ran levels the full distance covered by the improvements, taking into consideration the outlying portion of the town; the curb and gutter were to be built according to these levels — on the grade determined by them, as marked by grade stakes; and that he made or was to make a survey of the town sufficiently to see that it was the correct grade for the draining of any other portion of the town that might be later improved. We think that by entering into a contract (authorized by ordinance) for the making of the improvements in. accordance with these specifications, and levying the assessments to pay therefor, the city authorities adopted the grade so indicated. The method pursued was very informal, but doubtless was sufficient to prevent the city from thereafter disputing the establishment of the grade. (See O’Leary v. Street Railway Co., 87 Kan. 22, 123 Pac. 746.)
The interest of the adjoining owner in having the grade established is to be assured that under color of paying for the curbing and guttering he is not required to pay for any part of the grading. The engineer testified that “the plans, specifications and profile did not call for any street .grading or filling”; that “the excavations referred to in the specifications was simply what was necessary to install the curbing and guttering”; but that “there was some filling necessary to install the curb and gutter”; that “the deepest excavation would not exceed fourteen inches, and that would be at the street intersections”; that “the excavation generally required for the work was from 8 to 10 inches”; and that “in making the estimate of cost for this work he did not consider any excavation or filling other than that actually connected with the. curb and gutter itself.” The representative of the company which took the contract testified that “there would be some slight difference in the cost of the work for the different blocks; that he simply took the entire street into consideration in figuring on the job; that as to excavations necessary for the work, he estimated that, as a whole it would be the thickness of the pavement (6 inches)” — referring to the guttering; that “from a practical standpoint there is no difference in the elevation of the different blocks”; and that “he figured nothing for extra excavation in any one block.” .Other witnesses said that some of the grade stakes were level with the ground, some above the ground, and some below the surface, a variation of twelve inches being indicated.
A decision in favor of the validity of the proceedings would have implied a finding that the variation between the natural grade and that established by the city was not substantial. But there clearly was some difference, and the court must be deemed to have found upon sufficient evidence that although small it was too large to be rejected as inconsiderable, thereby establishing that fact for the purposes of this cas|f Some slight amount of filling and excavating had to be done on account of this situation, and presumably the contract price was influenced by this fact. Therefore, an expense of an unascertained and unascertainable amount, which should have been borne by the city generally, was charged against the abutting' property. This justified an injunction against the carrying out of the contract. The objection was timely, and, as the improvements have not been made, no inequity results.
In Clark v. Lawrence, 75 Kan. 26, 88 Pac. 735, it was said:'
“That some grading is necessary to level or fill the inequalities in the surface of a dirt road to prepare it for receiving the pavement seems' evident; also that such leveling would be a n'e’cessáry incident to the paving of a street, even after it had been brought to grade.” (p.-29.)
The “grading” there referred to was obviously the leveling or smoothing over of slight and inconsiderable inequalities in the surface of the road existing after it had once been completely “graded” in the sense of being brought to the established grade. Here the process was that of bringing the natural grade to that fixed by the engineer.
The conclusion reached requires the affirmance of the judgment, and makes'it unnecessary to pass upon the effect of various other irregularities in the proceedings which are made the grounds of objections by the plaintiff.- The statute already cited seems to' contemplate that the guttering at street- intersections-is' an improvement that requires ah ordinance for its authorization. The ordinance in this instance appears to relate only to curbing and guttering the parts of the streets in front of the various blocks designated. It is suggested that if this were the only defect the special assessments might be upheld by treating the contract as severable. While the- agreed price of the various parts of the work is shown, it may not- be entirely clear that the inclusion of the intersection work was not an inducement to the other. , (Sedgwick County v. The State, 66 Kan. 634, 72 Pac. 284.). Objection is made because where adjoining lots belonged to the same owner they were not separately assessed. If the proceedings were otherwise regular this might not be fatal, but the plan followed in this regard gives opportunity for a question which might better be avoided.
The records of the proceedings of the city council with reference to the proposed improvement, as originally made, failed to show a due compliance with the law in several particulars. After this suit was begun the record was amended by the action of the council, the apparent defects being thus cured. The plaintiffs contend that the amendent could not properly be accomplished in this manner, and at all events that it could not affect their rights in the action already begun. The council had the power to cause the record to be changed so as to show the actual facts. In the absence of a showing to the contrary the presumption must be that as finally adopted the record spoke the truth, and no prejudice appears to have resulted to the plaintiffs from the original defect in the entry. We understand this to':have been the view of the trial court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This lawsuit arose between the second and third mortgagees of a Riley county farm. Some years ago, D. J. Wolfong and wife owned the farm, which was subject to a first mortgage for $4,000 not involved in this suit. The owners gave the ^Manhattan State Bank, the plaintiff herein, a second mortgage on the farm to secure an indebtedness of $8,500. Later they gave the Wamego State Bank, the defendant herein, a third mortgage on the farm to secure an indebtedness of $837.33. Default was made on the principal and interest of the second mortgage, and to satisfy that indebtedness the mortgagors conveyed the property by deed to the Manhattan bank, subject to the first mortgage, which the plaintiff assumed. The.plaintiff then entered into possession; and after a lapse of some months, in which nothing was done by defendant, the Manhattan bank'brought this action to require the redemption of the property by the defendant within a reasonable time, or failing therein, that the defendant bank be barred of its lien.
Issues were joined, the plaintiff prevailed, and on January 16,1918, the court decreed—
“That if said defendant shall fail within six months from this 16th day of January, 1918, to redeem from said plaintiff the real estate in controversy herein by paying to said plaintiff the sum of $8,697.70, with interest thereon at the rate of 8 per cent per annum from December 4, 1917, then that said defendant be forever barred from asserting any right, title or interest in or lien upon said real estate, and that the mortgage of' said defendant upon said real estate be canceled and held for naught, as against said premises.
“And it is by the court further ordered and adjudged that in case said redemption be made as herein provided, then that said plaintiff shall convey said- real estate to said defendant, subject, however, to a first mortgage thereon given to the Merriam Mortgage Company for $4,000.00, with interest thereon as the same may- have accrued or hereafter accrue.”
The third mortgagee appeals. On its behalf it is urged (1) that the demurrer to plaintiff’s petition should have been sus tained, (2) that a similar ruling should have been made on its demurrer to plaintiff’s evidence, and (3) that the plaintiff’s remedy, if any, was a suit in foreclosure, and not an action to require redemption with the alternative of barring the junior mortgagee. So far as the evidence is concerned, it fully sustained the allegations of plaintiff’s petition. The first and third errors cover the same point, and can be determined together. Under our code, the “label” of an action is unimportant. (Civ. Code, § 10.) If a petition recites all the material facts, the prayer for relief may be disregarded, as the court has power to decree whatever relief the facts alleged and proved will justify. (Eagan v. Murray, 102 Kan. 193, syl ¶ 2, 170 Pac. 389.) The petition in this case alleged all the necessary facts upon which to base an action to require the junior incumbrancer to redeem or to bar it for failure to redeem; and the petition, wi,th the same comprehensiveness, stated the necessary facts to warrant relief, by foreclosure. Moreover, the judgment was virtually the same as would be rendered on foreclosure, unless, indeed, the time given to redeem — six months — be at variance with some pertinent provision of statute. .However, the defendant does not complain of the redemptive period fixed by the court, and the court prefers not to conclude that point until it is squarely and necessarily controverted arid properly briefed. Defendant’s attitude is frankly stated by its counsel—
“The defendant asks for no affirmative relief, hut is merely protesting against the plaintiff’s attempt to bar it from the lien and legal rights under its mortgage.”
Our own decisions, as well as those of other jurisdictions, hold that such an attitude is unjust, and that equity will relieve a senior lien holder in possession from that sort of. a predicament, and will permit him to clear his superior title so that he can properly market his property. (Henthorn v. Security Co., 70 Kan. 808, 79 Pac. 653; Jaggar v. Plunkett, 81 Kan. 565, 106 Pac. 280; Tower v. Divine, 37 Mich. 443; Parker v. Child, 25 N. J. Eq. 41; Moulton v. Cornish, 61 Hun, [N. Y.] 438, 16 N. Y. Supp. 267.)
There is no doubt that a senior mortgagee who acquires the legal title of his debtor is still entitled to be considered as a mortgagee with respect to third parties. His equitable lien and his later acquired fee title do not merge against his will, if such merger would place him at a disadvantage with respect to others claiming an interest in the property. (Shattuck v. Bank, 63 Kan. 443, 65 Pac. 643; Loan Association v. Insurance Co., 74 Kan. 272, 86 Kan. 142; James v. Williams, 102 Kan. 231, 169 Pac. 1163.)
The propriety of an action .by a superior claimant to property to compel an inferior claimant to redeem under penalty of being barred of his interest has been distinctly upheld by this court in Henthorn v. Security Co., supra, and in Jaggar v. Plunkett, supra; and the court can discern no difference in principle between an inferior claimant who holds the fee title and one who holds a j unior lien given by the holder of the fee title. The rights of the latter are neither greater nor less than those of the person under whom he claims.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs seek to cancel a gas and oil lease given by them to defendant A. A. Little, and by him assigned to defendant H. V. Foster. Judgment was rendered in favor of defendant Foster, and the plaintiffs appeal.
On December 2, 1915, the plaintiffs, husband and wife, gave to defendant A. A. Little a gas and oil lease, running for ten years, on 80 acres of land in Greenwood county in consideration of $1, one-eighth of the oil produced, $100 for each well from which gas should be sold, and free gas for domestic use. The lease contained the following provision:
“Provided, a well is not commenced on said premises within one year from the date hereof, unavoidable accidents and delays excepted, then this' grant shall become null and void unless second party shall pay to the said first parties a yearly rental of Eighty ($80) Dollars payable quarterly in advance for each quarter thereafter commencement is delayed, it is expressly agreed that payment of all moneys due under this lease may be made by cash or check to parties of the -first part or be deposited to their credit in the Home ‘National Bank of Eureka, Kansas.”
Defendant Foster held other leases covering lands in the vicinity of that owned by the plaintiffs. That territory was undeveloped, so far as gas and oil were concerned, but defendant Foster was drilling a well about two miles southwest of the plaintiffs’ land. On December 2, 1916, that well had been drilled to a depth of about 1,500 feet, at a cost to the defendant of approximately $15,000. On October 18, 1917, the well had been drilled to a depth of 2,600 feet, and, at the time of the trial, was producing oil which was being sold by defendant Foster. Paul Dahlgren was Foster’s general agent at Bartlesville, and J. C. Gibson was Foster’s agent at Eureka. Gibson looked after Foster’s drilling operations in Greenwood county, and paid rentals on Foster’s leases, as specifically directed, when the mbney was sent to him. The rental due the plaintiffs was not paid until December 5, 1916. On November 27, 1916, Foster, through his agent, Dahlgren, by registered letter from Bartlesville, Okla., remitted to J. C. Gibson, at Eureka, a check for $20 with which to pay the rental under the lease. That registered letter should have reached Eureka on the following day. On account of being delayed in the mail, the check was not received by Gibson until December 5, 1916, although he called repeatedly at the post office at Eureka and inquired for his mail. On December 2, Dahlgren, not having received any word from Gibson, and not having received the returned registered-letter receipt, got into telephone communication with Gibson, and learned that the $20 had not been received by him. Dahlgren immediately, by mail, transmitted another check to Gibson for the same amount and for the same purpose. This check was also received on December 5, 1916. On that day Gibson tendered $20 to the plaintiffs through the Home National Bank of Eureka, but the payment was refused. This action was commenced shortly thereafter. The cause was tried without a jury; special findings of fact were made; and the court, in its conclusions of law, said—
“That a state of facts is presented which, in the interest of justice, requires that a court of equity should relieve against the forfeiture attempted to he enforced by the plaintiffs in this action.”
The plaintiff attempted to enforce the forfeiture of Foster’s rights under the lease, although Foster was diligent in doing what the lease required that he should do. He manifested no intention to abandon his rights under the lease, not even by neglecting to make any effort to pay the rental required until after the time fixed for that payment. He attempted to make those payments before the-stipulated time. It was not through any act of his that the payment did not reach the plaintiff in ample time. Under the circumstances, it would have been inequitable to have granted the plaintiff the relief he asked.' The court decreed that Foster had a “good, valid, and subsisting oil and gas lease” on the property in question, and rendered judgment against the plaintiffs for costs.
The judgment rendered was justified by the facts, and is affirmed. | [
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The opinion of the court was delivered by
Allegrucci, J.:
Jimmy W. Campbell was charged in case No. 00CR779 with one count of possession of methamphetamine on September 11, 2000. In a separate case, No. 01CR147, he was charged with one count each of manufacture of methamphetamine, unlawful possession of ephedrine widi intent to manufacture methamphetamine, possession of methamphetamine with intent to sell, possession of drug paraphernalia with intent to use it to manufacture a controlled substance, and possession of marijuana on December 8, 2000. The two cases were consolidated for a bench trial on stipulated facts, and Campbell was convicted on all 6 counts. He was sentenced to 120 months’ imprisonment for possession of ephedrine in violation of K.S.A. 65-7006, and his controlling sentence was 120 months. Campbell appealed the two cases together to tire Court of Appeals, which considered them as one appeal and affirmed the convictions and sentences in State v. Campbell, 31 Kan. App. 2d 1123, 78 P.3d 1123 (2003), declining to follow State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002). Campbell petitioned this court for review of several issues, including sentencing. This court granted Campbell’s petition for review only on the sentencing for possession of ephedrine in violation of K.S.A. 65-7006(a).
The narrow issue before us in this appeal is whether Campbell was properly sentenced for a severity level 1 felony for possession of ephedrine with intent to manufacture methamphetamine. The facts were not in issue in the trial court or the Court of Appeals. In its opinion, the Court of Appeals stated:
“The stipulation of facts . . . sets forth the following:
‘4.- The investigating officers in this case would testify consistently with their prior testimony at the preliminary hearing and the hearing on the motion to suppress held July 30, 2001, and said testimony is hereby incorporated by reference. A summary of the evidence as it would be presented by the investigating officers and witnesses in this case is as follows:
‘a. On the 8th day of December, 2000, officers of the Hutchinson Police Department obtained a search warrant for 16 West 10th, Apt. 4, Hutchinson, Reno County, Kansas. Before executing the warrant, the officers discussed the entry and it was made clear to Sgt. McClarty of the police department that the apartment in question was the apartment at the top of the stairs to the left. Sgt. McClarty stated in his police report of the incident that Sgt. Fesler had informed him that officers were supposed to go in the front doors upstairs and enter the apartment to the left. At approximately 9:28 p.m. on December 8, 2000, Sgt. McClarty, Sgt. Fesler, Officer Robertson and Officer Harcrow executed the search warrant. Upon arrival at the top of the stairs, Sgt. McClarty observed two females in the doorway of apartment # 4, and apartment # 4 was to the right at the top of the stairs. Sgt. McClarty saw the doorway to the left standing open, and that apartment was later identified as apartment # 3. Sgt. McClarty saw that there was no number visible at the top of the stairs at apartment # 3. . .
....
“Subparagraph ‘e’ then sets forth a detailed page of items seized from the apartment claimed to be utilized in the manufacture of methamphetamine; paragraphs 5 and 6 stipulate to a proper chain of custody; paragraph 7 stipulates to the testing of items as being marijuana, pseudoephedrine, methanol, and methamphetamine; paragraph 8 stipulates that Campbell had previously been convicted of possession of marijuana; and paragraph 9 states:
‘9. The evidence in this case is sufficient for this Court to determine in its discretion a verdict on the following charges: manufacture of methamphetamine, a level one drug felony pursuant to K.S.A. 2000 Supp. 65-4159; unlawful possession of ephedrine or pseudoephedrine, a level one drug felony pursuant to K.S.A. 2000 Supp. 65-7006; possession of methamphetamine with the intent to sell, a level three drug felony pursuant to K.S.A. 2000 Supp. 65-4161; possession of drug paraphernalia with intent to manufacture methamphetamine, a level four drug felony pursuant to K.S.A. 2000 Supp. 65-4152(a)(3); and possession of marijuana, a level four drug felony pursuant to K.S.A. 2000 Supp. 65-4162(a)(3).’ ” 31 Kan. App. 2d at 1125-26.
Campbell was charged and convicted of unlawful possession of ephedrine with the intent to manufacture methamphetamine in violation of K.S.A. 65-7006(a). He was sentenced pursuant to K.S.A. 65-7006(d).
K.S.A. 65-7006 provides in part:
“(a) It shall be unlawful for any person to possess ephedrine, pseudoephedrine ... or phenylpropanolamine, or their salts, isomers or salts of isomers with intent to use the product to manufacture a controlled substance.
....
“(d) A violation of this section shall be a drug severity level 1 felony.”
For Campbell’s criminal history category of I, the sentencing range for a drug severity level 1 felony is 138 to 154 months. The sentencing judge granted a durational departure to 120 months. Campbell contends that he was illegally sentenced for possession of ephedrine as a drug severity level 1 felony and that he can be sentenced only under the lesser penalty provision of K.S.A. 65-4152. K.S.A. 65-4152(a) provides: “No person shall . . . possess with intent to use ... (3) any drug paraphernalia to . . . manufacture [or] compound ... a controlled substance in violation of the uniform controlled substances act.” The penalty for violation of 65-4152(a)(3) is a drug severity level 4 felony. K.S.A. 65-4152(c). For Campbell’s criminal history category, the sentencing range for a drug severity level 4 felony is 10 to 12 months. Drug paraphernalia is defined in K.S.A. 65-4l50(c) as including “products and materials of any kind which are used or intended for use in . . . manufacturing ... a controlled substance.”
Campbell relies on Frazier, 30 Kan. App. 2d 398, in arguing that possession of ephedrine with intent to use it to manufacture a controlled substance in violation of K.S.A. 65-7006(a) and possession of drug paraphernalia with intent to use it to manufacture a controlled substance in violation of K.S.A. 65-4152(a)(3) are identical offenses. When two offenses are identical, the defendant must be sentenced under the statute carrying a lesser penalty. State v. Nunn, 244 Kan. 207, 229, 768 P.2d 268 (1989).
With regard to Campbell’s sentence under K.S.A. 65-7006, the Court of Appeals stated:
“The State makes a compelling argument that Frazier was wrongly decided, in that the legislative intent was not followed, that 65-7006 is the more specific statute, and that the elements of the two crimes are in fact different. In addition, since Frazier was announced, we considered in Wilson v. State, 31 Kan. App. 2d 728, 71 P.3d 1180, rev. denied 276 Kan. 974 (2003), whether to apply the Frazier decision retroactively, and we declined to do so. Judge Knudson’s concurring opinion in Wilson expressed dissatisfaction with the Frazier result and suggested it was wrongly decided. Judge Knudson’s concurrence suggested the initial sentence imposed by the trial court in Frazier was not an illegal sentence, that K.S.A. 65-4152(a)(3) and K.S.A. 1999 Supp. 65-7006(a) were not identical offenses, and the extension of the holdings of State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989), and State v. Clements, 241 Kan. 77, 734 P.2d 1096 (1987), to the circumstances of Frazier was unwarranted. 31 Kan. App. 2d at 734-36.
“For the above stated reasons, we will separately consider whether Campbell was properly sentenced. This involves the interpretation of statutes under which our appellate review is unlimited. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). In doing so, we must follow the rules of statutory construction which require us to interpret a statute to give the effect intended by the legislature. Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). Ordinary words are to be given ordinary meaning, and a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English is in it, Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984), and we must read the statutes so as to give effect to every part thereof, KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643-44, 941 P.2d 1321 (1997).
“In this case because there is a clear difference of opinion as to which statute generally deals with the issue and which deals with a certain phase, the holding of State v. Reed, 254 Kan. 52, Syl. ¶ 1, 865 P.2d 191 (1993), is applicable and states: When there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless the legislature intended to make the general act controlling.’
“The issue we face requires us to construe the specific language of two statutes. It is helpful to look to the legislative history and language of each.” 31 Kan. App. 2d at 1133-34.
The court then discussed the legislative history relative to the statutes and concluded:
“It is clear that reducing the severity level was considered, rejected, and the legislative intent is to penalize the possession and intended illegal usage of the named substances as drug severity level 1 felonies. The Kansas Legislature believed the State had or has a serious methamphetamine problem. A construction of K.S.A. 65-7006 that would result in a lesser severity level offense would be contrary to the existing legislative intent.
“We understand the valid argument of Frazier that the generic language of ‘products and materials’ of K.S.A. 65-4152 may include the named substances set forth in K.S.A. 65-7006, but it is also equally logical to look to one statute as generally relating to tools or equipment necessary for manufacturing controlled substances and the other to more specifically cover the precursors to methamphetamine and, thus, find the elements do in fact differ. We agree with the language of Judge Knudson’s concurring opinion in Wilson, where he said:
'Secondly, K.S.A. 65-4152(a)(3) and K.S.A. 1999 Supp. 65-7006(a) are not identical offenses. As correctly noted by the Frazier panel, the statutes use different language to describe the respective offenses. Notwithstanding, the panel then proceeds to conclude tins is a distinction without a difference as both prohibit the same identical conduct. The difficulty is that both statutes do not prohibit the same identical conduct. K.S.A. 1999 Supp. 65-7006(a) prohibits possession of drugs used to malee methamphetamine. K.S.A. 65-4152(a)(3) prohibits possession of drug paraphernalia. To conclude that the offenses are identical required the Frazier panel to construct an interpolation inconsistent with the logic and expressed reasoning in Nunn and Clements’ Wilson, 31 Kan. App. 2d at 735.
‘We also agree with the Wilson concurring opinion that any sentence imposed under K.S.A. 65-7006 is not illegal. It was a valid sentence under a valid statute.
“Finally, we agree with the State’s argument that ‘[t]he legislature’s exclusive role in providing, through our statutes, for the punishment of convicted criminals is clear.’ State v. Reed, 248 Kan. 792, Syl. ¶ 7, 811 P.2d 1163 (1991). We hold the clear legislative intent in K.S.A. 65-7006 was to criminalize the specific items found in Campbell’s possession and with his clearly shown usage a drug severity level 1 felony resulted. He was correctly sentenced.
‘We decline to follow Frazier and respectfully suggest it was wrongfully decided.” 31 Kan. App. 2d at 1136-37.
We disagree.
We note that the statutes are not ambiguous and legislative intent is clear. Thus, it is not necessary to consider legislative history. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). As stated in 4 LaFave, Israel & King, Criminal Procedure § 13.7(a), pp. 96-97 (2d ed. 1999), the overlapping between statutes may be due to poor research or inept drafting in attempting to provide different penalties for overlapping conduct.
It might be useful at this point to back up and take the time to set out the statutes, amendments, and applicable case precedents in order to understand how this issue has developed. The first case with which we are immediately concerned is Frazier, which was decided in March 2002. At all pertinent times, drug paraphernalia has been defined to include “products and materials of any kind which are used or intended for use in . . . manufacturing [or] compounding ... a controlled substance.” K.S.A. 65-4150(c). At the time Frazier was decided, K.S.A. 2001 Supp. 65-4152(a) provided that “[n]o person shall use or possess with intent to use ... (3) any drug paraphernalia to . . . manufacture ... a controlled substance.” K.S.A. 2001 Supp. 65-7006(a) provided that “[i]t shall be unlawful for any person to possess ephedrine [or] pseudoephedrine . . . with intent to use the product as a precursor to any illegal substance.” The Frazier panel commented on the difference between the wording of 65-4152 “to manufacture a controlled substance” and the wording of 65-7006 “to use as a precursor to any illegal substance” and stated that, despite the language difference, the statutes “require the same requisite criminal intent.” 30 Kan. App. 2d at 405. Thus, it concluded that possession of ephedrine or pseudoephedrine and possession of drug paraphernalia were identical offenses. 30 Kan. App. 2d at 405.
On May 17, 2002, the Governor signed a bill that amended both K.S.A. 65-4152 and K.S.A. 65-7006. L. 2002, ch. 155, secs. 3 and 4. Amendments to K.S.A. 65-4152 are not material to this discussion. K.S.A. 65-7006 was amended so that the language difference examined by the Frazier panel was ehminated. K.S.A. 65-7006(a) now states that “[i]t shall be unlawful for any person to possess ephedrine [or] pseudoephedrine . . . with intent to use the product to manufacture a controlled substance.” L. 2002, ch. 155, sec. 4. The legislature also added to the list of products prohibited for possession with intent to use to manufacture a controlled substance. L. 2002, ch. 155, sec. 4.
As noted by the Court of Appeals in Campbell, the legislative history shows that consideration was given to reducing the offense severity level for a violation of K.S.A. 65-7006 but the initiative was defeated in the Senate Judiciary Committee in March 2002. The Court of Appeals correctly stated that the committee minutes include letters from several deputy district attorneys urging retention of the severity level 1 penalty in K.S.A. 65-7006, but its statement that “[t]he letters requested that additional substances be designated in 65-7006,” however, is only partly correct. See 31 Kan. App. 2d at 1136. An assistant district attorney from Sedgwick County expressed support for increasing penalties for possessing items other than ephedrine or pseudoephedrine. The deputy district attorney from Reno County stated that the bill under consideration
“appears to seek new tools to prosecute methamphetamine cases that provide penalties for manufacturing-related crimes that establish presumptive prison sanctions that do not involve the lengthy sentences mandated by level one drug offenses. If that is the goal, it would be more logical to simply amend K.S.A. 2001 Supp. 65-4152 to provide level two drug felony sanctions for the possession of certain chemicals or drug paraphernalia with the intent to manufacture a controlled substance. The provisions of the proposed legislation regarding other chemicals required for the manufacturing process (red phosphorous, lithium metal, sodium metal, iodine, anhydrous ammonia or pressurized ammonia) and paraphernalia unique to the manufacturing process, such as gassing generators, could be easily added to the paraphernalia statute to achieve the result desired by this legislation. I urge you to resist the effort to amend K.S.A. 65-7006.” Minutes, Senate Judiciary Committee, March 18, 2002 (H.B. 2075).
Wilson v. State, 31 Kan. App. 2d 728, 71 P.3d 1180, rev. denied 276 Kan. 974 (2003), is a K.S.A. 60-1507 appeal. Wilson pled no contest to possession of ephedrine or pseudoephedrine in violation of K.S.A. 65-7006 and two other offenses in exchange for the State’s dismissal of a number of other counts against him. Wilson was sentenced in March 2000 to 146 months for possession of ephedrine or pseudoephedrine, and 146 months was his controlling sentence. He did not appeal. After Frazier was decided in March 2002, Wilson filed his 60-1507 motion contending he was illegally sentenced. The trial court ruled that the motion could not be used to attack a sentence that had not been appealed and, moreover, that Frazier was not to be applied retroactively. Wilson appealed, and the Court of Appeals affirmed. 31 Kan. App. 2d at 734.
Judge Knudson wrote a concurring opinion to express his dissatisfaction with Frazier, which he believes was wrongly decided for two reasons. 31 Kan. App. 2d at 734-36. He does not believe that Frazier’s sentence was an illegal sentence where the district court had personal jurisdiction of the defendant and subject matter jurisdiction and imposed the statutory sentence for the charged crime. In addition, he does not believe that the possession of drug paraphernalia and possession of ephedrine or pseudoephedrine offenses are identical. Judge Larson’s synopsis of Judge Knudson’s rejection of the identical offenses argument already appears in this opinion as a quote from Campbell. Here is the further discussion of his second reason:
“The difficulty is that both statutes do not prohibit the same identical conduct. K.S.A. 1999 Supp. 65-7006(a) prohibits possession of drugs used to make methamphetamine. K.S.A. 65-4152(a)(3) prohibits possession of drug paraphernalia. To conclude that the offenses are identical required the Frazier panel to construct an interpolation inconsistent with the logic and expressed reasoning in Nunn and Clements. . . .
“As the Supreme Court could not divine legislative intent when faced with two statutes that were identical as to elements, the common sense result was to conclude only the lesser penalty could be imposed to prevent arbitrary charging by prosecutors. To extend the Nunn and Clements holdings to the circumstances of Frazier is unwarranted. The elements test is tenuous, and the result wholly ignores legislative intent to ratchet up the penalty for possession of ingredients necessary to cook methamphetamine while imposing a less severe penalty for possession of drug paraphernalia.” 31 Kan. App. 2d at 735-36.
In November 2003, a few months after the Wilson opinion was filed, the case now before the court, Campbell, was decided. The Court of Appeals held, counter to Frazier, that K.S.A. 65-4152(a)(3) and K.S.A. 65-7006(a) are not identical offenses. 31 Kan. App. 2d at 1136-37.
In January 2004, this court unanimously decided State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), which was before us on the defendant’s petition for review. The issue pertinent to the present discussion was whether McAdam was illegally sentenced for conspiracy to unlawfully manufacture methamphetamine when he was sentenced for violation of K.S.A. 65-4159(a), a drug severity level 1 felony, rather than for violation of K.S.A. 65-4161(a), a drug severity level 3 felony. K.S.A. 65-4159(a) provides: “Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.” Methamphetamine is a controlled substance. See K.S.A. 2003 Supp. 65-4101(e); K.S.A. 65-4107(d)(3).
K.S.A. 65-4161(a) provides in part:
“Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to sell, offer for sale or have in such person’s possession with intent to sell, deliver or distribute; prescribe; administer; deliver; distribute, dispense or compound any opiates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65-4107 and amendments thereto.”
Methamphetamine is a stimulant designated in K.S.A. 65-4107(d)(3).
McAdam had not raised the issue of his sentence in the trial court, but the Court of Appeals treated it as an illegal sentence and considered the question. See 277 Kan. at 142. This court granted McAdam’s petition for review of the Court of Appeals’ decision on the substantive sentencing issue and denied the State’s cross-petition for review.
In the particular circumstances of the case, the court concluded that McAdam could be sentenced only under the lesser penalty provision of K.S.A. 65-4161(a). The court reasoned as follows:
“In Nunn, the court considered two criminal offenses with identical essential elements but different penalties. The defendant contended that the trial court erred in not instructing the jury on the offense with the lesser penalty as a lesser included offense. The court rejected defendant’s contention and quoted from State v. Clements, 241 Kan. 77, 734 P.2d 1096 (1987), where the same argument already had been turned down:
‘ “Where identical offenses are involved, the question is not truly a matter of one being a lesser included offense of the other. Each has identical elements and the decision as to which penalty to seek cannot be a matter of prosecutorial whimsy in charging. As to identical offenses, a defendant can only be sentenced under the lesser penalty. Here, it would have been the better practice to have instructed on indecent liberties with a child, but the error could have been remedied by sentencing defendant as having been convicted of a class C felony rather than a class B felony. Accordingly, the sentence imposed herein must be vacated.” 241 Kan. at 83.’ 244 Kan. at 229.
The governing principle, as stated by the court in Nunn, is: “Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.’ 244 Kan. at 229.
....
“The statutory provisions either have identical elements or they do not, and the analysis for statutes with identical elements differs from the analysis applicable where statutes do not have identical elements. Thus, if K.S.A. 65-4159(a) and K.S.A. 65-4161(a) have identical elements, the proper analysis is that set out in Nunn. As we have seen, the elements of K.S.A. 65-4159(a) and K.S.A. 65-4161(a) are identical, as the Court of Appeals noted, ‘as applied to this case.’ 31 Kan. App. 2d at 446. For example, in other circumstances, the essential elements of a violation of K.S.A. 65-4161(a) could be that the defendant sold opium. For this reason, a decision that McAdam’s conduct was prohibited by K.S.A. 65-4161(a) as well as by K.S.A. 65-4159(a) so that he may be sentenced only under the lesser penalty provision of K.S.A. 65-4161(a) is limited to the facts of this case.” 277 Kan. at 145-46.
State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989), and State v. Clements, 241 Kan. 77, 734 P.2d 1096 (1987), along with State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992), are relevant cases that preceded the recent batch of drug cases. In Clements, the defendant was charged and convicted of aggravated criminal sodomy with a child under 16 years of age, which was a class B felony. Although he had not raised the issue during trial, on appeal Clements argued that the trial court should have instructed the jury on the lesser included offense of indecent liberties with a child for engaging in sodomy with a child under 16 years of age, which was a class C felony. The State conceded that the offenses were identical and that Clements could have been charged with either offense. The court concluded that Clements’ sentence had to be vacated. 241 Kan. at 83. The same statutes were at issue in Nunn with the same result. 244 Kan. at 228-29.
In Williams, the defendant was charged with indecent liberties with a child, which was a class C felony, for engaging in lewd fondling of a child under 16 years of age with the intent to arouse or to satisfy the sexual desires of the child or offender, or both. Williams should have been charged with aggravated incest because the victim was his step-granddaughter. Aggravated incest, which was a class D felony, was engaging in lewd fondling of a person under 18 years of age who is known to the offender to be related with the intent to arouse or to satisfy the sexual desires of the child or offender, or both. The offenses involved the same physical conduct. They were not identical, however, because aggravated incest re quired a family relationship between the offender and the victim but indecent liberties did not. The court held that the State must charge a defendant with aggravated incest rather than indecent liberties with a child when the defendant is related to the victim. 250 Kan. at 737. The court rejected the State’s position that it was a matter of prosecutorial discretion as to which crime is charged and, instead, based its decision on the rule of statutoiy construction that a more specific statute prevails over a general statute unless it appears that the legislature intended to malee the general act controlling. The Williams court held that the legislature not only intended the more specific statute to prevail but also intended for it to be the exclusive mechanism for punishing lewd fondling of a child the offender knew to be related. 250 Kan. at 732-37.
With regard to the offenses at issue in Williams, the court stated:
“For the general statute versus specific statute rationale to be applicable to the two crimes, the indecent liberties statute must be viewed as a statute generally prohibiting certain sexual behavior and the aggravated incest statute as applying to the identical prohibited conduct by a person related to the victim. . . .
“A statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is specific. Seltmann v. Board of County Commissioners, 212 Kan. 805, Syl. ¶ 2, [512 P.2d 334 (1973)]. Under this broad definition one of the statutes relates a general law and the other a specific law.
“Although the elements of the two crimes are similar, the distinguishing factor is that aggravated incest requires the act to be committed by a biological, step, or adoptive relative of the child. This relationship is not an element in the indecent liberties with a child statute. From a reading of these statutes, it is clear that the legislature intended to establish certain sex offenses applicable where family relationships are not involved. The legislature also intended that aggravated incest, a crime committed by a person related to the victim, constitutes a less serious offense than when a similar prohibited act is perpetrated by a defendant against a child with whom he or she has no family relationship. We hold where a defendant is related to the victim as set forth in K.S.A. 21-3603(1), the State may charge the defendant with aggravated incest for engaging in the acts prohibited therein but not with indecent liberties with a child.” 250 Kan. at 736-37.
In discussing an earlier case on related issues, the court in Williams stated:
‘We observed that the rule that a more specific statute should prevail over a general statute is merely a rule of interpretation which is used to determine which statute the legislature intended to be applied to a particular set of facts and that it had no application in that case. We determined if the rule were to apply as a means of determining legislative intent, the rule must yield where there is a clear indication that the legislature did not intend for one statute to be the exclusive mechanism for punishing a given activity.” 250 Kan. at 734.
When comparing the statutes in the present case, two panels of the Court of Appeals arrived at opposite conclusions. The Frazier panel viewed possession of ephedrine or pseudoephedrine with intent to use it to manufacture a controlled substance in violation of K.S.A. 65-7006(a) and possession of drug paraphernalia with intent to use it to manufacture a controlled substance in violation of K.S.A. 65-4152(a)(3) as identical offenses. The Campbell panel concluded that the offenses were not identical.
Commentators on this subject of overlapping statutes discuss a United States Supreme Court case, United States v. Batchelder, 442 U.S. 114, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979). At issue in Batchelder were two overlapping provisions of the Omnibus Crime Control and Safe Streets Act of 1968. See 18 U.S.C. § 922(h) (2000); 18 U.S.C. App. § 1202(a) (1976) (repealed 1986).
Batchelder was before the Supreme Court on the Government’s petition for certiorari from a Seventh Circuit Court of Appeals decision, which found constitutional infirmities in the imposition of a 5-year sentence under the longer penalty for violation of 18 U.S.C. § 922(h). The Seventh Circuit postulated that the statutes might be void for vagueness, implicate due process and equal protection, or impermissibly delegate the legislature’s responsibility to fix criminal penalties to the executive branch. The Supreme Court reversed, finding no constitutional infirmities. 442 U.S. at 123-26. Although here we do not have a constitutional challenge, the commentators’ discussion of the issue of overlapping charge selection is relevant and instructive.
Batchelder is discussed in 4 LaFave, Israel & King, Criminal Procedure, § 13.7(a), pp. 95-99 (2d ed. 1999). According to La-Fave, Israel & King, although distinctions between duplicative and overlapping statutes are not made in Batchelder, the two demand separate analyses. Here is the LaFave commentators’ discussion of Batchelder:
“In assaying the Batchelder reasoning, it is useful to think about three types of situations in which a defendant’s conduct may fall within two statutes. They are: (1) where one statute defines a lesser included offense of the other and they carry different penalties (e.g., whoever carries a concealed weapon is guilty of a misdemeanor; a convicted felon who carries a concealed weapon is guilty of a felony); (2) where the statutes overlap and carry different penalties (e.g., possession of a gun by a convicted felon, illegal alien or dishonorably discharged serviceman is a misdemeanor; possession of a gun by a convicted felon, fugitive from justice, or unlawful user of narcotics is a felony); (3) where the statutes are identical (e.g., possession of a gun by a convicted felon is a misdemeanor; possession of a gun by a convicted felon is a felony). The Court in Batchelder had before it a situation falling into the second category, but seems to have concluded that the three statutory schemes are indistinguishable for purposes of constitutional analysis. But in terms of either the difficulties which are confronted at the legislative level in drafting statutes or in the guidance which is given to a prosecutor by the legislation, the three schemes are markedly different.
“The first of the three is certainly unobjectionable. Such provisions are quite common (robbery-armed robbery; battery-aggravated battery; joyriding-theft; housebreaking-burglary), and usually are a consequence of a deliberate attempt by the legislature to identify one or more aggravated characteristics which in the judgment of the legislature should ordinarily be viewed as making the lesser crime more serious. They afford guidance to the prosecutor, but — as noted in Batch-elder — do not foreclose the prosecutor from deciding in a particular case that, notwithstanding the presence of one of the aggravated facts, the defendant will still be prosecuted for the lesser offense.
“By contrast, the third of the three is highly objectionable. It is likely to be a consequence of legislative carelessness, and even if it is not such a scheme serves no legitimate purpose. There is nothing at all rational about this kind of statutory scheme, as it provides for different penalties without any effort whatsoever to explain a basis for the difference. It cannot be explained in terms of giving assistance to the prosecutor. “Where statutes are identical except for punishment, the prosecutor finds not the slightest shred of guidance.’ It confers discretion which is totally unfettered and which is totally unnecessary. And thus the Court in Batch-elder is less than convincing in reasoning that this third category is unobjectionable simply because in other instances, falling into the first category, the need for discretionary judgments by the prosecutor has not been and cannot be totally eliminated.
“As for the second of the three categories, it clearly presents a harder case. Here as well, the dilemma is likely to have been created by legislative carelessness, though this is not inevitably so. In the illustration given above, where the possession of a gun by a felon is listed in both misdemeanor and felony statutes which otherwise cover distinct circumstances, carelessness in the legislative process seems the most likely explanation. Had the legislature given any thought to the matter, surely it would have put the convicted felon case in one category or an other. However, overlapping statutes are very common at both the federal and state level, and it can hardly be said that in every instance they are a consequence of poor research or inept drafting. Drafting a clear criminal statute and still ensuring that in no instance could it cover conduct embraced within any existing criminal statute in that jurisdiction can be a formidable task. (This fact alone may make courts somewhat reluctant to find overlap per se unconstitutional, although the consequence of such a finding, limiting punishment to that under the lesser of the two statutes until such time as the legislature decides what to do about the now-identified overlap, is hardly a cause for alarm.) Moreover, in the overlap scheme the two statutes will at least sometimes assist the prosecutor in deciding how to exercise his charging discretion. ‘In overlapping statutes, the focus frequently is on different types of conduct, thus giving the prosecutor at least some idea of which statute he should proceed under.’ To the extent of the overlap, however, the conduct is the same, and thus the guidance afforded here falls considerably short of that in the first of the three categories.
....
“Prior to the Batchelder decision, some states held unconstitutional statutes which provided different punishment for exactly the same conduct. Some of the decisions went so far as to also cover criminal statutes which merely overlapped with one another. Though the reasoning in these cases was often similar to that found wanting in Batchelder, meaning that decision has created some chance that the courts so holding will retreat from their earlier position, there is no reason why this must be the case.” 4 LaFave, Israel & King, Criminal Procedure § 13.7(a), pp. 95-99.
As LaFave, Israel & King make clear, the unfettered prosecutorial discretion that is the mischief some courts, including Kansas courts, seek to avoid is significantly curbed when the statutes are overlapping, as contrasted with identical or duplicative statutes. In McAdam, the statutes at issue were duplicative; they prohibited identical conduct. McAdam was charged with conspiracy to unlawfully manufacture methamphetamine. K.S.A. 65-4159(a) makes it illegal to manufacture a controlled substance, and methamphetamine is by statutory definition a controlled substance. K.S.A. 65-4161(a) makes it illegal to compound any stimulant designated in K.S.A. 65-4107(d)(3). Methamphetamine is a stimulant so designated, and, by statutory definition, compounding is manufacturing. See K.S.A. 2003 Supp. 65-4101(n). Both statutes prohibit the making of methamphetamine. Before McAdam, prosecutors had unfettered discretion whether to charge manufacture of metham phetamine under K.S.A. 65-4161(a), a drug severity level 3 felony, or under K.S.A. 65-4159(a), a drug severity level 1 felony.
In its amicus brief, the Kansas County and District Attorneys Association cites the dramatic disparity between the penalty for possession of drug paraphernalia with intent to use it to manufacture a controlled substance and the penalty for possession of ephedrine or pseudoephedrine with the same intent as a reason why the Court of Appeals decision should be affirmed. To do so, however, would allow unfettered prosecutorial discretion, which was the basis for our decision in McAdam. As LaFave notes, the prosecutor should not be given the discretion to effectively make a sentencing decision without the benefit of sentencing information or expertise.
With regard to guidance in prosecutorial charging decisions, the statutes at issue here are overlapping rather than duplicative, which as described in LaFave, Israel & King present the hard case because to the extent of any overlap, the conduct involved is identical. The conduct prohibited by K.S.A. 65-7006(a) is a defendant’s act of knowingly possessing ephedrine or pseudoephedrine with the intent to use the product to manufacture a controlled substance. The conduct prohibited by K.S.A. 65-4152(a)(3) is a defendant’s act of knowingly possessing drug paraphernalia with the intent to use it to manufacture a controlled substance. The definition of drug paraphernalia in K.S.A. 65-4150(c) includes “products and materials of any kind” which are intended for use in manufacturing a controlled substance. Thus, the conduct prohibited by K.S.A. 65-4152(a)(3) may include a defendant’s act of knowingly possessing a product with the intent to use it to manufacture a controlled substance. Ephedrine and pseudoephedrine are products used in the manufacture of a controlled substance, methamphetamine. Indeed, in K.S.A. 65-7006(a) the legislature used the term “product” as a synonym for ephedrine or pseudoephedrine. In the circumstances of this case, the elements of the offense were knowingly possessing ephedrine or pseudoephedrine with the intent to use it to manufacture a controlled substance. The elements were the same whether Campbell had been charged under the ephedrine statute or the drug paraphernalia statute. Consequently, he must be sentenced under the lesser penalty provisions for violation of 65-4152(a)(3).
Judgment of the Court of Appeals affirming the district court on the limited issue subject to our grant of review is reversed. Judgment of the district court on that issue is reversed; we vacate Campbell’s sentence for violation of K.S.A. 65-7006(a) and remand to the district court with directions to resentence Campbell to a drug severity level 4 felony as provided for a violation of K.S.A. 65-4152(a)(3). | [
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The opinion of the court was delivered by
Allegrucci, J.:
This is a medical malpractice case. Neil Aldoroty, M.D., sued three radiologists and HCA Health Services of Kansas, Inc., d/b/a Wesley Medical Center (Wesley), alleging that their negligence caused delay in the diagnosis of his lymphoma, which deprived him of a chance for a better recovery or cure. The radiologists settled before trial. A jury found Wesley 100% at fault and awarded $1,245,000 to Aldoroty. Wesley appeals from the trial court’s denial of its motion for directed verdict, from the jury verdict, and from the trial court’s denial of its motion for new trial.
Defendant Wesley is a for-profit Kansas corporation. Plaintiff Aldoroty is a psychiatrist and a member of the medical staff at Wesley. Before trial began, Aldoroty entered into a settlement agreement with radiologists David Breckbill, M.D., John Lohnes, Jr., M.D., and Charles McGuire, M.D., who had been codefendants with Wesley in this suit. The doctors’ names were deleted from the caption of the lawsuit, but their names appeared on the verdict form for the purpose of comparative fault. Dan Francisco, M.D., Aldoroty’s personal physician, also was identified in the instructions and on the verdict form as a person to whom fault could be attributed.
Aldoroty’s theory of liability was that the radiologists failed to detect changes in his chest X-rays and that their failure was at least partially attributable to the hospital’s failure to furnish them with previous films for comparison. The X-rays were taken when Wesley staged its annual Medical Staff Recognition Week (also called Physicians Appreciation Week). As a member of the medical staff at Wesley, Aldoroty was eligible to and did participate in the health audits provided during Medical Staff Recognition Week. Aldoroty testified that he had a chest X-ray taken as part of his health audit every year, beginning in 1981. When Aldoroty had a chest X-ray as part of his 1993 health audit, an abnormality was found. The radiology report states that the X-ray was interpreted by “Braun, William T. III and Shurtz, Glen L.” on September 30, 1993. The report states:
“OPINION: There is an abnormal soft tissue fullness suggesting a mass overlying the aortic knob in the AP window region. I do not see a definite mass on the lateral view. This is stable over the past year, but is a change from earlier years. I would suggest a CT scan of the chest for further evaluation to check for mediastinal mass/adenopafhy.
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“PA and lateral views show the heart size normal. The lungs are clear, PA view shows slight fullness in the mediastinum overlying the aortic knob. The aortic window appears obscured. This is suggestive of mass here. On the lateral view, however, I do not see any abnormality. There is no other abnormality noted.
“Comparison is made to the previous exam done here one year ago. In retrospect a similar finding was noted at that time although not reported. It has certainly not changed any in the past year. The findings do represent a change, however, from earlier studies from 1991 and 1990.”
The stamped signature, Glen L. Shurtz, M.D., appears at the bottom of both pages of the report.
The 1991 X-ray was interpreted by Drs. Lohnes and McGuire. The report states: “There is no cardiovascular, pulmonary, mediastinal, or pleural disease. IMPRESSION: Negative chest.” The 1992 X-ray was interpreted by Dr. Breckbill. The report states exactly what the 1991 report stated.
Aldoroty received a copy of the 1993 radiology report in the mail on October 8, 1993. He called his physician, Dr. Dan Francisco, to arrange a CT scan. He had two scans, one at Wesley and one at St. Francis. He had bone marrow tested and an enlarged lymph node under his arm biopsied. On the basis of the pattern discernible in the test results, Aldoroty was diagnosed with non-Hodgkin’s lymphoma, Stage IV.
Non-Hodgkin’s lymphoma is cancer that begins as a tumor in the lymph system and then may spread to other places. Hodgkin’s and non-Hodgkin’s are two broad groups of lymphoma that are distinguished by cell type. Within the non-Hodgkin’s category, there are three subcategories of cell-types. Aldoroty’s disease is classified as “low grade.” For the low-grade cell type of non-Hodgkin’s lymphoma, the disease advances from Stage I to II to III and then to IV. The following stage descriptions were given by Jay Zatzkin, M.D., the oncologist who diagnosed Aldoroty’s cancer:
“Stage I, patients with disease in one area, and thus on one side of the diaphragm — diaphragm dividing our chest from our belly.
“Stage II, disease in two areas, but both are on the same side of the diaphragm; chest, under the arm, for example.
“Stage III, lump in the chest — lump in the chest, but also a lump in the lymph glands that are on the back of the belly ....
“Stage IV disease[,] where Dr. Aldoroty’s disease was found[,] is felt with conventional treatment to not be curable, meaning patients such as Dr. Aldoroty may achieve a remission. . . . But I cannot tell him based on the medical literature that that has any reasonable possibility of being a permanent remission, a cure based on the administration of conventional treatment as it’s administered today.”
According to Dr. Zatzkin, the promptness of the diagnosis of low-grade, non-Hodgkin’s lymphoma is important because it correlates with the potential for cure.
“If this disease is discovered at Stage I or II disease, we’ve indicated that the potential exists to cure it. If the disease progresses sequentially starting in a limited area and ultimately disseminating or spreading, catching it early gives a patient a chance to be cured; catching it late eliminates the chance to cure and the patient will die of the disease.”
The potential for cure is “greater than 50 percent” in Stage I.
Dr. Zatzkin stated that most persons with non-Hodgkin’s lymphoma are not diagnosed until the disease is in Stage IV. It is his belief that the “normal manner of evaluating patients in this country, using our present technologies, does not lend itself to our discovering this disease earlier in its natural history.” He viewed Dr. Aldoroty’s annual chest X-rays as providing a unique opportunity to diagnose the disease at an earlier stage. On account of the serial chest X-rays, Dr. Zatzkin believed “this case represents an instance in which we might have been able to enter the natural history of this disease at a substantially earlier point and make a diagnosis.”
Dr. James Touije testified on behalf of the plaintiff as an expert in radiology. He testified that standards of approved medical practice are “what the bulk of individuals practicing in that specialty would do practicing due diligent care.” They apply to doctors in the hospital setting, the same as in any other setting. They also apply to the radiology staff persons, file clerks, medical technologists, and secretaries. Radiology standards promulgated by the American College of Radiology include the following: “ ‘Comparison with previous . . . examinations and reports when possible are a part of the radiologic consultation and report and optionally may be a part of the “impression” section.’ ” Dr. Touije explained that the X-ray films and reports are considered medical records and that they have to be maintained so that comparison films are available.
He testified that the 1981 report of Aldoroty’s health audit chest X-ray complies with the applicable standard in that the last sentence shows comparison of past and present exams: “There has been no change since previous exam.” The report on Aldoroty’s 1983 chest X-ray also notes comparison of past and present: “ ‘Normal chest without change since 6-5-81.’ ” After examining Aldoroty’s chest X-ray reports for 1985, 1987,1988,1989, and 1990, Dr. Touije testified that comparison was stated on each one. The report from September 1991, however, did not show that compar ison had been made. For that reason, Dr. Touije testified, the report does not comply with the applicable standard of care. Moreover, he testified that he disagreed with the findings. The September 1992 report also lacks a comparison. The report from September 1993, when the abnormality was noted, makes a comparison.
Radiology reports are part of a patient’s medical record. The Department of Radiology at Wesley serves three classifications of patients — inpatients, outpatients, and emergency room patients. The term used for the physicians who participated in Wesley’s Physicians Appreciation health audit were “ambulatory care patients,” i.e., outpatients. Aldoroty’s medical record number at Wesley was 81022039, which dated from his admission as a patient in 1981. The space on Aldoroty’s 1991 chest X-ray report where his medical record number would be is blank. His medical record number is included on the report of his 1992 chest X-ray.
The person who was administrative director of the Department of Radiology at Wesley during the period at issue testified that the Wesley radiology staff “racked the film for the radiologist.” That phrase described
“taking the patient’s previous films, if any existed, the previous reports, the current request for the current examination and the films for the current examination, putting those together in a package so the radiologist, when they made the interpretation of the day’s films, had the previous films, if there were any available for review.”
All films belong to Wesley and are stored and retrieved by it. Films are kept in an envelope or jacket on which X-ray examinations and dates are recorded along with the patient’s name and medical record number. The jacket for Aldoroty’s films lists chest X-rays in 1983 and 1985 through 1993.
Dr. Touije testified that it was the hospital’s duty to provide the radiologists with each patient’s film jacket. He also testified that the radiologist has a duty to make sure that the hospital has made the patient’s film jacket available. He knew of no hospital where the radiologist physically retrieved the films, but in every hospital the radiologist can tell a staff person to do so. Dr. Touije testified that if there are previous films but they have not been retrieved from storage and made available to him at the time he is reading new films, he does not dictate his report on the new films until the others are made available to him. He testified that this was standard practice for a radiologist. His explanation for the practice is that “there may be disease which is hidden on the current exam which is evidenced only because of comparison with a previous chest film.” Reading the current film without comparing previous films would be deviating below an acceptable standard of care.
Dr. Lohnes is a radiologist with Wichita Radiological Group, which provides radiology services to Wesley by contract. He was one of the radiologists who read Aldoroty3s 1991 chest X-ray. He testified that when he goes into the room where films are set up for his examination, there will be an envelope (jacket). If there are no previous films, the envelope will be new. If there are previous films, the envelope will fist them. If there is no envelope, he would “go out and ask the clerical staff out front and ask them to track it down.33 He would not read the current films without having previous films tracked down because “having prior films increases your accuracy.33 He agreed that this was standard operating protocol at Wesley. The same procedure is used for Physicians Appreciation health audits. He testified that he compared Aldoroty3s previous films with the 1991 film, even if comparison was not noted in the report. He testified that he would have followed the standard practice and the lack of mention of comparison in the report would have been due to his radiology group’s decision to use a “canned report” when an X-ray was negative, i.e. a normal study. He said, “in an attempt to ease the transcription problems and to try to improve the accuracy of reports, that if there was a negative film, we would use the negative report that was already in the computer system.”
Dr. Lohnes testified that, even with hindsight, he believed that the negative report for the 1991 chest X-ray was correct. He measured a 3-millimeter difference between the aortopulmonary window in the 1990 and 1991 films. He believed that the difference could be accounted for by different timing in the respiration or cardiac cycles from one film to the other. He described the difference as falling “within [the] normal range of variability.”
Dr. Breckbill is a radiologist with the Wichita Radiological Group. He read Aldoroty’s 1992 chest X-ray. He testified that the 1991 film was available to him when he read the 1992 film. He also testified that at the time of trial, he continued to believe the negative report for the 1992 chest X-ray was correct.
Dr. McGuire is a radiologist with the Wichita Radiological Group. He testified that the radiologists would not dictate a report on current films until they had the jacket. He explained that the old films and information on the jacket are needed “in order to make a dictation.” He testified that he would never, in a nonemergency situation, read films without a jacket. With regard to comparing old and new films, he testified: “There are some things that are easier to perceive having old films to compare with first with the new ones. And so anytime there are old films available, we always try to look at them because it’s veiy important in terms of the accuracy of our diagnosis.” He also testified that the absence of any mention of comparing films in the 1991 and 1992 reports did not mean that no comparisons were made. It was due, instead, to the group’s decision to use the canned negative report.
Wesley raises three issues on appeal, all challenging the validity of the jury’s verdict:
1. Was the verdict contrary to the evidence?
2. Was the verdict a product of the jury’s improperly holding Wesley liable, in whole or in part, for the radiologists’ negligence?
3. Was it reversible error for the trial court to instruct the jury that Wesley is responsible for the negligence of the radiology staff?
Wesley first contends that the basic elements of negligent tort liability were not established. Aldoroty’s theory of negligence against Wesley was that the hospital negligently managed its Physicians Appreciation health audits, thus causing his cancer to be undetected until it had become incurable. In terms of the elements of liability, Aldoroty sought to prove that Wesley had a duty to manage its health audits to protect him from his injury, that Wesley failed to perform that duty, and that Aldoroty’s injury was the proximate result of Wesley’s failure. See, e.g., Mellies v. National Heritage, Inc., 6 Kan. App. 2d 910, 912, 636 P.2d 215 (1981).
It is agreed that Wesley s duty was to manage its health audits so that prior films were available to the radiologists for comparison. Wesley contends that there was insufficient evidence to show that it failed to do so. Wesley further contends that, even if there were sufficient evidence to show that it failed to make prior films available to the radiologists for comparison, that failure was not the proximate cause of Aldoroty s injury.
This court’s role was succinctly stated in Cerretti v. Flint Hills Rural Electric Co-op Ass’n, 251 Kan. 347, 361-62, 837 P.2d 330 (1992):
“When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal.”
There is no direct evidence that Wesley failed to make Aidoroty’s prior films available for comparison. From the absence of any mention of comparisons in the 1991 and 1992 reports, it reasonably could be inferred that prior films were not available for comparison. The radiologists who read Aldoroiy’s 1991 and 1992 chest X-rays, however, testified that prior films were available and compared. They explained the absence of any note of comparisons on the 1991 and 1992 reports as being due to their using canned reports.
Aldoroty directs the court’s attention to other aspects of the proof. Aldoroty contends that various witnesses were not credible, but for our purposes the witnesses will be assumed to be credible.
Aldoroty asserts that there was evidence that the standard of care for the radiologists required their noting any comparisons in the X-ray reports. The portions of the record he relies on, however, do not support the assertion. He cited the following two paragraphs of the statement of facts in his appellee’s brief:
“48. Radiologists have a duty to report the comparison. . .. Dr. McGuire followed this standard practice.
“64. Radiologists have a duty to report the comparison. . . . Dr. Breckbill followed this standard practice.”
The testimony referenced is by Dr. McGuire. He was asked, “Now, when prior films do exist, then it is the standard practice — it’s the standard practice for you to note it and to document it when dictating the X-ray report; is that correct?” He answered, “In the . . . routine use of dictations for patients, in general, yes.” Dr. Breckbill is not mentioned. Dr. McGuire also was asked, “Now, there’s been a question in the case about the fact that in previous years, that is previous to 1991, there is mention made in the reports about looking at the old films, but in 1991 and 1992, there is no mention of that. Could you tell the jury why that is?” He answered:
“We decided that the idea of the — of the routine reports is to prevent any transcription — the process of typing and the potential errors for transcription so that if we thought die exam was negative, we would give it the routine A report and leave it at that because we’d always have the old films there, and that was always understood. So we just leave it at that.”
Aldoroty calls to the court’s attention that “each of Dr. Aldoroty’s other reports report comparisons.” This evidence, however, has no tendency to make it more likely than not that the lack of any mention of comparisons signifies that no comparisons were made. McGuire testified that the radiology group’s decision to use canned reports accounted for the difference between the pre-1991 reports and the 1991/1992 reports. With regard to the mention of comparisons in the 1993 report, McGuire explained that there was an abnormal finding in 1993 so that the canned report for a negative finding was not used.
Aldoroty asserts that “other reports from 1991 and 1992, including MSRW [Medical Staff Recognition Week health audit] reports, report the comparison.” He cites the following two paragraphs from his statement of facts:
“50. Dr. McGuire documented comparisons even when the report was normal.
“66. Dr. Breckbill documented comparisons even when the report was normal. . . . Dr. Breckbill reported comparisons on 1992 MSRW normal chest X ray reports.”
The testimony of Dr. McGuire that is cited concerns a non-MSRW report he made in June 1993. It does not support the specific assertion, but more importantly, it does not appear to have been established that the finding for that report was negative. If the finding was not negative, the group’s policy of using canned reports would not apply. Plaintiff’s counsel told Dr. McGuire that he had a report of a chest X-ray of “another patient in 1993.” Defense counsel continued, “And the impression is no significant change from the prior study is evident, and you note the comparison is made to the study of 6-26-93, which would be two days earlier; is that correct?” That is all the information we (and the jury) have about this report. The testimony of Dr. Breckbill is another matter. The first sentence of Aldoroty’s assertion is accurate, but the second is not. Here are the pertinent questions and answers, beginning with a question about Aldoroty’s 1992 chest X-ray report:
“Q. Now, I think you have reported this 1992 X ray report out as negative, have you not?
“A. Yes.
“Q. And there is no documentation of a prior film; is that correct?
“A. Correct.
“Q. And it is your usual practice to go ahead and to document when you compare a prior film?
“A. Correct.
“Q. And in this case there was no documentation of the prior film because his film was a film taken of a Physicians Appreciation Program patient; is that correct?
“A. Correct.
“Q. So with Physicians Appreciation Day program patients, at least in 1992, those patients, like Dr. Aldoroly, did not have the full dictation or have the full comparison noted on the film report itself; is that correct?
“A. Correct.
“Q. So in ‘92 when you were dictating, if it was a regular patient you would note — document the prior film for comparison purposes; is that correct?
“A. Would you — I lost you there.
“Q. In 1992 if you were dictating for a regular patient,- you would note and document on the film report the comparison; is that correct?
“A. Yes.
“Q. But for Physicians Appreciation Day patients you used the canned response—
“A. Correct.
“Q. —is that correct? And you know — and if you would have another physician in 1992 who went through the Physicians Appreciation Program and if he had a negative or abnormal [sic] chest X ray, you would expect that to be a canned response too; is that correct?
‘‘A. Yes.
“Q. Because in 1992 physicians who participated, if they had a normal chest X ray, they had a canned response; is that correct?
“A. Yes, sir.
“Q. And that’s the reason that there’s no notation of the review of prior films in 1992 on your part; is that correct?
“A. Yes, sir.
“Q. Let me hand you another doctor’s chest X ray report in 1992, Exhibit 4.13, and this looks like we don’t have a transparency on this one. This is a Physicians Appreciation Day Program patient; is that correct?
“A. Yes, sir.
“Q. And the doctor is Dr. Dan Francisco; is that correct?
“A. And it was done in 1992, about this same week that Dr. Aldoroty had his Physicians Appreciation chest X ray; is that correct?
“A. Yes.
“Q. And here Dr. Francisco, who was a Physicians Appreciation Day patient like Dr. Aldoroty, Dr. Francisco didn’t get the canned response, did he?
“A. No.
“Q. Dr. Francisco, there is documentation of prior films being pulled and compared; is that correct?
“A. I would assume that’s what he was talking about.
“Q. So in this case Dr. Aldoroty — there’s no documentation of prior films being pulled and compared and documented; is that correct?
“A. Correct.
“Q. And he was a Physicians Appreciation Program patient; is that correct?
“A. Yes, sir.
“Q. Dr. Francisco was likewise a Physicians Appreciation Day Program patient; is that correct?
“A. Yes.
“Q. He got the chest X ray — his was negative — but this time they document the review and the comparison of prior films; is that correct?
“A. That’s correct. And I can tell you why—
“Q. (BY MR. HUTTON) Why, sir?
“A. —if you’d like to know. Because Dr. Reisenauer was a resident at the time. He was not on the staff. And I would imagine Dr. Ahlstrand designated Dr. Reisenauer to report the cases.
“Q. Okay. So a resident would do it a little differently, then; is that what you’re telling this jury?
“A. He — yes. He probably was unaware that we were trying to save a little time.”
In summary, Dr. BreckbilTs testimony differed from that of the other radiologists in that he said he used the canned reports for negative findings for health audit patients but not for regular pa tients. His testimony in this regard, however, has no tendency to make it more likely than not that the lack of any mention of comparisons signifies that no comparisons were made for Aldoroty. Moreover, he explained that a 1992 health audit chest X-ray report with a negative finding and comparisons noted was not made by a radiologist in the Wichita Radiological Group.
Aldoroty asserts that Breckbill’s conversations with Francisco “show that no comparisons were made in 1991 and 1992.” He refers to testimony about a discussion which took place in the radiology department at Wesley in 1993 when Dr. Francisco, Dr. Bauman, and Dr. Breckbill were present. Francisco testified that when he learned of the abnormal finding on the 1993 X-ray, he went to the viewing room in the radiology department at Wesley and looked at the X-ray film with Dr. Breckbill. They also looked at films from earlier years. Dr. Bauman, a radiation oncologist at Wesley, looked at the films with them. He was “very emphatic,” “very confident,” and “very positive” that the 1993 film showed an abnormality, and he recommended further evaluation. Francisco also testified that when they looked at the 1992 and 1991 films, “it was obvious that the abnormality was way back in 1991.” When asked if the prior films had been pulled for comparison each time a current film had been read for Aldoroty, Francisco stated, “[W]e don’t know because I remember one of the radiologists — well, whoever it was, it was one of the two, there were only two there— saying that if we had this 1991 film, and we had only that, if we didn’t have the one to compare it to, it really made it difficult. And if they weren’t pulled up, it would really be difficult.” He added that if the 1990 X-ray had been available for the radiologist’s comparison, the 1991 film “probably could have [been] interpreted correctly.” Asked if he was given the impression during this discussion in the radiology department that the cancer had been missed for 2 years, Francisco testified:
“Right, and it wasn’t my opinion—
“[H]ad the 1990 film been made available by Wesley to the radiologist, it was their own radiologist from Wesley Hospital. That for whatever reason, it was suggested that maybe the technicians in Wesley did not bring up the X-rays from 1990 when the ‘91 was available. When they looked at ‘92, chances are they didn’t have the ‘91. And without the preceding year, it really — you’re dealing with a can of worms, and that’s exactly what has happened.”
Francisco did not say which of the two Wesley radiologists suggested that prior films had not been made available for comparison. It seems very unlikely that this suggestion would have been made by Dr. Breckbill, who testified that the 1991 film was available to him when he read the 1992 film and that he continued to believe at the time of trial that his negative report for the 1992 chest X-ray was correct. If this suggestion were made by Dr. Bauman, it would be nothing more than speculation. In fact, it might be even less. Dr. Bauman’s casting the responsibility for Dr. Breckbill’s oversight onto the support staff when in conversation with Dr. Breckbill would not be an unheard of social accommodation. Nonetheless, this testimony of Dr. Francisco was heard by the jury, over objection, and may be said to constitute some evidence, although quite weak, that prior films were not available for comparison when the 1991 and 1992 films were read.
Finally, in this regard, Aldoroty asserts that Wesley’s “employees prepared and hung the X rays for radiologist interpretation during MSRW, assuming complete responsibility for the task.” If it had been established that no films were made available for comparison in 1991 and 1992, this assertion would be significant for assigning liability. It does not make it more or less likely, however, that films were made available.
In deciding whether the evidence on Wesley’s failure to perform its duty supports the verdict, the court must consider the evidence in the light most favorable to Aldoroty and refrain from weighing the evidence or passing on the credibility of the witnesses. As noted, the evidence supporting the verdict is the failure to indicate a comparison to the 1991-92 chest X-ray and Dr. Francisco’s testimony. Viewing the evidence as prescribed, there is evidence, albeit weak, to support a finding that Wesley failed to perform its duty and thus to support a finding that Wesley was at fault.
Wesley also contends that all the evidence points to the conclusion that any failure by Wesley was not the sole proximate cause of Aldoroty’s injury, the loss of a chance of recovery. The hospital relies on Tinkler v. U.S. by F.A.A., 982 F.2d 1456 (10th Cir. 1992), (applying Kansas law) for the proposition that in order for the hospital to be held liable, any negHgence on its part must be the sole proximate cause of the plaintiff’s injury.
Wesley’s reHance on Tinkler is misplaced because Tinkler involves intervening and superseding causes of the injury, materially different legal principles from those appHcable in the present case. Even if Tinkler were appHcable, the proposition that Wesley urges on the court could not be extracted from that case. Tinkler died in the crash of a small plane. The Dodge City FHght Service Station’s negHgence in failing to provide weather information when requested was held to be remote and not directly linked to the crash. The pilot’s negHgence in failing to obtain preflight weather information, in fading to seek weather information from an alternative source, and in particular in flying at extremely low and unsafe altitudes of 100 to 200 feet was an intervening and superseding cause of the crash. The pilot’s flying was characterized as grossly negHgent, and his conduct cut off HabiHty for the earHer negHgence by the flight service person. Thus, failure to provide weather information was not the legal cause of the crash. 982 F.2d at 1469-70.
In the present case, the jury was not instructed on the principles of intervening and superseding acts of negHgence. Instead, the jury was instructed on comparative fault, and the verdict form allowed the jury to compare the fault of Wesley, the three radiologists, and Aldoroty’s personal physician. Wesley has not appealed the application of comparative fault.
The trial court granted partial summary judgment to Wesley on the issue of vicarious HabiHty. Aldoroty did not cross-appeal the issue. On the basis of a written contract between Wesley and the radiologists, the trial court stated with regard to the radiologists’ status:
“The circumstances and facts raised by the plaintiff ... are insufficient to establish that there was an employer/employee or principal/agent relationship between defendant Wesley Medical Center and the defendant physicians, and are insufficient to overcome the clear and plain meaning of the contract between defendant Wesley and the defendant physicians dated June 7,1977 which states at Paragraph 9.1 that an independent contractor relationship exists.”
The trial court found that the hospital and the radiologists are health care providers as that term is used in K.S.A. 1997 Supp. 40-3403(h). On the basis of the statute, the trial court concluded that Wesley could have no vicarious liability or responsibility for any injury to plaintiff arising out of the radiologists’ rendering of or failure to render health care services to plaintiff.
There is no contention that the trial court’s instruction on this facet of the hospital’s liability was not in accord with the statutes and with the entry of partial summary judgment. The jury was instructed that “Wesley cannot be found negligent for the acts of any physician providing care and treatment to Neil Aldoroty.”
Wesley’s contention on appeal seems to be that the jury did precisely what it was instructed not to do. Wesley contends that the jury held the hospital hable, at least in part, for the failures of the radiologists. In other words, in addition to contending that the verdict is contrary to the evidence, Wesley contends that it is contrary to the law. Aldoroty refuses even to label Issue 2 as a separate issue. He contends that it is exactly the same as Issue 1, but that Wesley has attempted to couch it in terms of law instead of facts so as to change the standard of review to unlimited.
Wesley’s contention is that “[pjlaintiff’s theory and the facts dictate that at least some negligent act by a physician was required for injury to result.” What Wesley seems to be arguing is that it cannot be the only one at fault when the evidence showed fault on the part of the doctors. What Wesley actually argues, though, is that it cannot be held liable unless it really is 100% at fault. Wesley contends that the verdict arguably could have been rationalized if 99% of the fault had been assigned to the hospital, but with 100% of the fault assigned to the hospital, the only possible explanation is that the jury held it liable for the radiologists’ negligence. In other words, the argument continues, “Aldoroty would have no claim against [Wesley] if one of the radiologists had not negligently treated him by misreading an X-ray in 1991 or 1992 or both.” This is where Wesley’s argument goes astray. The phraseology is from McVay v. Rich, 255 Kan. 371, 874 P.2d 641 (1994), which involves the corporate negligence theory. Aldoroty did not proceed against Wesley under the corporate negligence theory, and it has no application in this case.
The issue before the court in McVay was whether Kansas courts would adopt the corporate negligence theory in regard to hospital liability, and the court concluded that it was prohibited from doing so by K.S.A. 65-442(b) and K.S.A. 40-3403(h). Under the usual principles governing employer/employee and principal/agent relationships, a medical care facility would be subject to liability for negligent acts of an employee or agent. In contrast, a medical care facility would not be subject to liability for an independent contractor’s negligent acts, and physicians customarily are independent contractors. The theory of corporate negligence developed as a means of subjecting a hospital to liability in the event that an independent contractor/physician negligently injures a patient. Unlike the theory of employer/employee liability, however, the theory of corporate negligence does not subject the hospital to liability for the physician’s negligent act. Instead, it subjects the hospital to liability for its own negligent act, that is, for negligently extending staff privileges to a physician who was not competent and careful. In other words, the hospital’s negligence would lie in selecting and retaining the physician, and the physician’s negligence would lie in acts or omissions of patient care.
Under the corporate negligence theory, a hospital has an independent duty to its patients to ensure their health by not entrusting the work of health care to an independent contractor/physician who is not competent and careful. Extending staff privileges to an incompetent and careless physician would be a breach of the duty, and the injuries suffered by the patient at the hand of the incompetent and careless physician would be caused by the hospital’s breach. This is not vicarious liability for an independent contractor’s torts; it is the hospital’s liability for its own negligence. Nonetheless, this court rejected the theory on the ground that “McVay would have no claim against the hospital if Rich had not negligently treated her.” 255 Kan. at 377. This language (rationale) seems to have misled Wesley into thinking that something more than the corporate negligence theory was being rejected.
McVay is confined to application to the corporate negligence theory. If applied in circumstances such as those in the present case where several actors allegedly contributed to causing the patient’s injury, it negates the legitimate theory of liability. Aldoroty did not seek to hold Wesley liable for his physical harm caused by the hospital’s negligence in selecting and retaining the radiologists, as McVay had sought to hold Memorial Hospital liable. The duty McVay alleged Memorial owed her was to select and retain only competent and careful physicians. That duty arose in a function completely separate from the surgical services provided by the hospital. The duty Aldoroty alleged Wesley owed him was to retrieve prior X-rays from storage and furnish them to the radiologists, whose duty it was to compare the present and previous films. Wesley’s duty and the radiologists’ duty were close links in the same small chain, and it was up to the jury to compare their fault. McVay is simply inapplicable in the present case. Wesley also cites Lemuz v. Fieser, 261 Kan. 936, 933 P.2d 134 (1997). It, too, involves the corporate negligence theory and is distinguishable from the present case.
Although we reject Wesley’s argument that the verdict is contrary to the law, we find merit in its argument that the verdict is contrary to the evidence. The jury, in disregarding the testimony of all the doctors and finding Wesley 100% at fault, created a “Catch 22” situation. We did find there is evidence to support a finding that Wesley is at fault; however, it does not support a finding that Wesley was 100% at fault. As previously noted, a reasonable inference could be made from the absence of a notation in the 1991 and 1992 reports and Dr. Francisco’s testimony that Wesley failed to make the reports availáble. It is equally reasonable to infer that Wesley made the reports available and the doctors failed to make the comparison. To find Wesley at fault, the jury had to reject the testimony of the three examining radiologists and Wesley’s radiology staff. It appears it did just that. However, to find Wesley 100% at fault, the jury would have to reject all the medical testimony, including the plaintiff’s expert, Dr. Touije. Dr. Tourje testified that it is a breach of accepted medical standards for the radiologists to read Dr. Aldoroty’s chest X-rays without comparison to prior reports. He further opined that failure to note the comparison on the report was also a breach. There is no dispute that the prior reports were available in the hospital and that the radiologists read the 1991 and 1992 X-rays. The jury chose not to believe the doctors’ testimony that they did compare the prior X-rays, but the jury cannot disregard the undisputed facts or the uncontroverted testimony of Dr. Tourje that it is a breach of applicable medical standards for a radiologist to make his or her report unless the prior reports are present and, if not, retrieve them from storage. There is no evidence to indicate the radiologists were misled as to Aldoroty’s status as a prior patient at Wesley. Absent such evidence, it is a violation of medical standards of care to proceed without the prior report available for comparison. In addition, although Dr. Breckbill disagreed, Dr. Tourje testified the 1992 film was abnormal without comparison to the prior X-rays. In Tourje’s opinion, Dr. Breckbill was negligent in reporting the 1992 X-ray as negative.
The finding by the jury that only Wesley was at fault could have been precipitated by the trial court’s instructing the jury that Wesley was responsible for the negligence of the radiology staff. The following statement of an appellate court’s standard of review in matters involving civil jury instructions appears in In re Application of City of Great Bend for Appointment of Appraisers, 254 Kan. 699, 713, 869 P.2d 587 (1994): “If the jury instructions, read as a whole, fairly instruct the jury on the law governing the case, are substantially correct, and the jury could not reasonably be misled by them, the instructions will be approved on appeal.” Otherwise, the court must be firmly convinced of a real possibility that the jury would have returned a different verdict if it had been instructed differently. Noon v. Smith, 16 Kan. App. 2d 818, Syl. ¶ 2, 829 P.2d 922 (1992).
In the present case, the jury was instructed: “Wesley can act only through its officers and employees. The negligence of its radiology staff acting within the scope of their employment is the negligence of Wesley. However, Wesley cannot be found negligent for the acts of any physician providing care and treatment to Neil Aldoroty.” Wesley states that the instruction was based on PIK Civ. 2d 7.13, which provides: “( . . . Name of party . . .) is a corporation and can act only through its officers and employees. The (negligence) (conduct) of an officer or employee acting within the scope of his (employment) (authority) is the (negligence) (conduct) of die corporation.”
Wesley first contends that the instruction conflicts with K.S.A. 1997 Supp. 40-3403(h) and K.S.A. 65-442(b) and the comment to PIK Civ. 2d 7.05. This argument is a continuation of the argument made in Issue 2 to the effect that the overbroad language in McVay can be used to extend the statutory prohibition of derivative liability into a general prohibition of comparative fault in medical malpractice actions. It is not a sound argument.
Wesley also contends that the instruction is simply misleading. Wesley contends that there were reasons why the jurors reasonably could have believed the radiologists were “radiology staff” and, therefore, have held Wesley responsible for the negligence of the radiologists in accord with the jurors’ (mis)understanding of the instruction.
Wesley asserts that it objected to the instruction, but its record references are to a post-trial motion and hearing. Aldoroty asserts that not only has Wesley inaccurately represented that it objected to the instruction, but also Wesley actually proposed the instruction and invited error. The record shows that Wesley proposed the following instruction: “Wesley can act only through its officers and employees. The negligence of its employees acting within the scope of their employment is the negligence of Wesley. However, Wesley cannot be found negligent for the acts of any physician providing care and treatment to Neil Aldoroty.” The only difference between Wesley’s proposed instruction and the court’s instruction to the jury is in the second sentence. Wesley suggested: The negligence of its employees acting within the scope of their employment is the negligence of Wesley. The court instructed: The negligence of its radiology staff acting within the scope of their employment is the negligence of Wesley. The change was made at the instruction conference. The trial judge prepared a packet of proposed instructions that were discussed at the instruction conference. That packet of proposed instructions does not seem to be in the record on appeal. It appears from the transcript of the conference that the packet contained an instruction that corresponded to Wesley s proposed instruction except that in the second sentence the court used nursing staff instead of employees. The following discussion about the instruction was recorded:
“THE COURT: Wesley can act only.’
“MR. HUTTON [Aldoroty’s attorney]: Your Honor, what is most prominent here is we make no contention against the nursing staff; it’s the radiology staff.
“THE COURT: Ah. Good point. That’s a good point. I’m going to change that to ‘radiology.’
“MR. HUTTON: Request the second [sic] sentence be stricken then. Argues the defendant’s case. It’s argumentative. It makes their case for them. That’s what we’ll hear in closing arguments.
“THE COURT: Well, but it’s the correct statement of the law. They can’t be— if the negligence is only of the doctors, they — it’s not on Wesley. It has to be the radiology staff.
“MR. HUTTON: It is the correct statement of the law.
“THE COURT: Oh, okay. I see. Just you never say die, right?
“MR. HUTTON: That’s a tad bit argumentative, but it is strictly the law.
“MR. GIBSON [Wesley’s attorney]: With the change of‘nursing’ to ‘radiology,’ we have no objection to this instruction.”
From this exchange, it is clear that the ultimate wording of the instruction was the result of contributions by each of the parties and the trial judge. It also is clear that Wesley did not object to the instruction, but neither did Wesley suggest that “radiology staff” should be used instead of “employees.”
Wesley contends that the instruction was confusing because “radiology staff” could be interpreted to include the radiologists. Aldoroty counters that the last sentence would clear up any possible confusion by distinguishing physicians from radiology staff. Wesley argues that the last sentence might be interpreted as distinguishing between Aldoroty’s personal physician and his cancer-treating physicians and the radiologists, who were reading health audit X-rays rather than “treating” the plaintiff. This interpretation would focus on the descriptive phrase “providing care and treatment to Neil Aldoroty.” The wording of the last sentence was suggested by Wesley, but the suggestion was made before “radiology staff” was inserted. Without the problematic phrase in the second sentence, there would be little, if any, reason to scrutinize the third sentence for help in interpreting the second. For this reason, it would seem unreasonable to preclude Wesley from complaining on appeal that the third sentence does not clarify the distinction between “radiology staff” and radiologists.
Wesley contends that lawyers’ and witnesses’ use of the term “staff” in referring to doctors with staff privileges at the hospital could have contributed to the possibility of the jury being confused by the instruction. Wesley points out a number of instances when the jury heard the doctors referred to as staff and staff radiologists and members of the medical staff. Aldoroty insists that in statements of counsel and testimony of the witnesses the distinction always was drawn between the radiologists and the hospital employees. Many of the instances he cites, however, include the term staff with reference to the radiologists, and the distinction does not appear to have been so clear that laypersons could not easily have been confused. In fact, one prominent instance, “Medical Staff Recognition Week,” was repeated over and over again in this trial.
As evidence that the jury was confused by the instruction, Wesley points out that during deliberations, the jury sent out the following question: “Why are Drs. Breckbill, Lohnes, and McGuire listed separately from Wesley Medical Center in question No. 2[?]” Questions 1 and 2 on the verdict form stated:
“1. Do you find anyone to be at fault? The term ‘anyone’ includes the defendant hospital.
“2. If you answered Question 1 ‘yes,’ then considering all of the fault at 100%, what percentage of the total fault is attributable to each of the following persons:
Wesley Medical Center (0% to 100%) _%
David Breckbill, M.D. (0% to 100%) _%
John Lohnes, M.D. (0% to 100%) _%
Charles McGuire, M.D. (0% to 100%) -%
Dan Francisco, M.D. (0% to 100%) %”
The trial judge’s response to the jury’s question was: “Please reread the instructions, including instructions #10 + #20, and reconsider all of the evidence.” Instruction No. 10 is the complained-of instruction. Instruction No. 20 stated:
“In interpreting the last instruction, it may help you to keep the following things in mind:
‘Tour first obligation is to determine if any party is at fault.
“Next, assign a percentage of fault to each party you find to be at fault.
“For a party not at fault, show 0% on your verdict form
“For any party at fault, show 1% to 100%, depending on your finding, on your verdict form.
“If any parties are found at fault, the fault of all parties, when added on your verdict form, must total 100%.
“If you find any party to be at fault, you will next determine the amount of damages, if any, sustained by any party claiming damages[.]
“The parties to whom you have the discretion to assign fault are:
David Breekbill, M.D., John Lohnes, M.D., Charles McGuire, M.D., Dan Francisco, M.D. and Wesley Medical Center.
“The party to whom you may award damages is:
Neil Aldoroty, M.D.”
In the blanks in Question 2 of the verdict form, the jury inserted 100 as the percentage of Wesley’s fault and 0 as the fault of each of the doctors.
The jury’s question reveals a fundamental confusion about the scope of fhe hospital’s responsibility. Aldoroty, though, seems to contend that there can be no error because the trial judge’s answer cleared up the confusion, or, in the alternative, that Wesley’s failure to object to the trial judge’s answer ratified it. He provides no authority for the proposition, however. The record contains the transcript of a telephone conference call in which fhe trial judge talked with counsel for both parties about how to answer the jury’s question. It shows that the trial judge suggested answering fhe question by referring the jurors to Instruction No. 10, the complained-of instruction. Wesley’s attorney responded, “I think that’s probably correct, and maybe also 20.” Aldoroty’s attorney wanted the jurors referred to the evidence, too. The trial judge incorporated all suggestions and directed fhe jury’s attention to Instruction No. 20 as well as No. 10 and to the evidence as well as to the instructions.
Both parties cite cases in which error was premised on an answer given to a question asked by the jury during deliberations. The issue in this case, though, is whether an instruction is erroneous. The jury’s question is an indicator of the jury’s confusion about the instruction’s subject matter. The trial judge’s response to the question would be relevant only if it could be clearly ascertained that the response cleared up the confusion. That is not the case here. We conclude the jury could reasonably have been misled by the instructions. While the jury is free to find fault if supported by the evidence, a finding that Wesley was 100% at fault cannot be reconciled with the record. The jury can rely upon only expert medical testimony in determining if the radiologists complied with the appropriate standard of care. The juiy was not free to totally ignore the uncontroverted expert testimony that the radiologists were negligent. The finding by the jury that Wesley was 100% at fault is either the result of the jury’s rejecting the uncontroverted evidence that the radiologists violated the standard of care or holding Wesley, at least in part, responsible for the negligence of the examining radiologists. Consequently, the verdict is either contrary to the evidence or the instructions, and a new trial is required.
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The opinion of the court was delivered by
Lockett, J.;
The issue on appeal is whether there was a material change of circumstances sufficient to justify a change in custody of the parties5 minor child and whether that change was in the child’s best interests. The district court concluded a change in custody was appropriate. The Court of Appeals reversed, finding the district court had not articulated findings of fact to support its conclusion. We granted review.
FACTS:
Christian and Kimberly Whipp were divorced on December 30, 1993. The parties were granted joint custody of their minor daughter, L.W. who was 3 years old at the time. Kim was the primary residential custodian. In addition to a good relationship with her parents, the child had a close relationship with Barbara McGowan, her great aunt, with whom L.W.- lived at times and from whom L.W. lived across the street at other times.
In June 1994, without notifying Chris, Kim moved with the child to Reno, Nevada. Kim failed to comply with the requirement in K.S.A. 60-1620 that she give Chris 21 days’ notice of her intent to move the child. As a result of Kim’s moving, Chris filed a motion to change custody of the child based upon a material change of circumstances. On September 15, 1994, the district court found “[a] material change of circumstances occurred when [Kim] moved to Reno, Nevada, along with the parties’ minor child, without giving the requisite notice to [Chris],” and granted the father’s motion to change custody.
On October 19, 1995, Kim filed a motion to return custody of
L.W. to her. Kim alleged a material change in circumstances since the September 15, 1994, order changing custody to Chris and requested a custody evaluation. The district court determined an independent evaluation was necessary. It was conducted by Dr. Jeff Lane, Ph.D., a licensed psychologist.
On March 28, 1996, after hearing evidence and argument of counsel, the district court stated:
“THE COURT: Okay. It is about, it is past noon. I think rather than take it under advisement, you know, for a week or however long it takes me to write an opinion, I think I am just going to make a decision between now and 3:00 o’clock. Is that bad for everybody or Trish, is that — earlier or —
“MS. ROSE: I have some hearings upstairs, Your Honor.
“THE COURT: What time?
“MS. ROSE: About four o’clock would be a better time for me.
“THE COURT: Okay. 4:00 o’clock. Is that okay for everybody?
“MR. ARBUCKLE: That’s fine with me, Your Honor.
“THE COURT: It will be very brief. I am just going to announce my decision. That will give me time to read that report again and go over my notes. Okay. 4:00 o’clock.
“THE COURT: This is a continuation of Case Number 93 D 397, In Re: Whipp, In The Matter of the Marriage of Kimberly L. Whipp and Christian D. Whipp. We heard this case this morning, and we heard from several witnesses on both sides, and I have considered the report that was submitted by Mr. Lane, I believe is his name, yes, Jeff Lane, Ph.D., and I considered that report and I considered the evidence that was submitted this morning, and I have again reviewed Judge Kumorowski’s decision . . . .”
The district judge found a material change in circumstances had occurred and that the best interests of the child dictated that Kim regain custody. The district judge said:
“I have reviewed . . . the file and the testimony and report and . . . feel that [L.W.] is lucky. She is very fortunate to have all these people on her side and behind her. She has a good father. She has a good mother; and I am sure that she is going to flourish wherever we place her. But considering everything and what I have heard today, the Court finds that, that it would be in the best interests of [L.W.] to be with her mother. And I know that that hurts, Chris, and, and I, and I don't like doing that, but I feel that, that a material change in circumstances has been shown here by the, by the housing situation and of Kimberly, her job situation, and I, I feel that the report had some influence on me, wherein the child has made her decision or at least expressed her desire to five with her mother. The dad at this point will have a new child in his life, and I think Christy [Chris’ present wife] is a good mother and good influence, and Mrs. McGowan has been very influential in this case, but I am going to change the custody of [L.W.]”
The district court also filed written orders on March 28,1996, and April 19,1996, memorializing this decision. The journal entry contained no factual findings. Chris appealed to the Court of Appeals.
APPELLATE COURT STANDARD OF REVIEW:
The standard of review is that an appellate court should only look to evidence supporting the decision of the trial court and determine if there was an abuse of discretion. In an unpublished decision filed December 24, 1997, a divided Court of Appeals reversed the district court.
The majority of the Court of Appeals first noted that K.S.A. 60-1610(a)(2)(A) allows a change of custody where a material change in circumstances is shown. It observed that 1 Elrod, Kansas Family Law Handbook § 13.043 (rev. ed. 1990) defined material change as one that “ ‘must be of a substantial and continuing nature to make the terms of the initial decree unreasonable.’ ”
The majority then noted that there were three reasons given by the district court for its decision to return custody of the child to Kim. First, Kim had moved from a one-bedroom apartment to a four-bedroom house which she shared with another woman. Second, Kim’s work hours and pay improved in that she was off work at 5 p.m. instead of 6:30 p.m. ¿nd she had received a $1.90 per hour raise in pay. Finally, Dr. Lane’s report indicated that the child, who was 4 years old at the time of the report, preferred to live with her mother.
Acknowledging that the burden to prove the need for a change in custody rests on the moving party (Kim), the majority reviewed the evidence and found that the changes in Kim’s job were negligible, the move to a four-bedroom house was not a material change of circumstances, and that a 4-year-old is not capable of knowing what is in her best interests.
The majority then noted:
“Even though there was other evidence in the record that the district court could have considered when deciding whether a material change in circumstances had occurred since the 1994 hearing, no other factors were articulated in support of its decision. We hold that the district court abused its discretion in finding that a material change of circumstances had occurred.” (Emphasis added.)
The majority stated that even though it could simply conclude that the district court erred in granting the change of custody, courts have historically “intermingled the issues of material change of circumstances and the best interests of the child.” It noted that the paramount question for determination of custody as between the parents is what best serves the interests and welfare of the children. All other issues are subordinate thereto. The court must determine which parent will do a better job of rearing the children and provide a better home environment. Simmons v. Simmons, 223 Kan. 639, 642, 576 P.2d 589 (1978).
The majority observed:
“ ‘In order to insure that the interests of the children are fully protected from an adverse change of circumstances, K.S.A. 60-1610(a) vests the trial court with continuing jurisdiction to modify a custody order. Therefore, a decree awarding child custody is res judicata with respect to the facts existing at the time of the decree. [Citations omitted.] However, when facts and circumstances change, custody maybe changed. [Citations omitted.]’ ” (Quoting Simmons, 223 Kan. at 642.)
After citing Simmons, the majority next turned to the factors set forth in K.S.A. 60-1610(a)(3)(B): '
“ ‘(B) In determining the issue of custody or residency of a child, the court shall consider all relevant factors, including blit not limited to:
(i) The length of time that the child has been under the actual care and control of any person other than a parent and the circumstances relating thereto;
(ii) the desires of the child’s parents as to custody or residency;
(iii) the desires of the child as to the child’s custody or residency;
(iv) the interaction and interrelationship of the child with parents, siblings and any other person who may significantly affect the child’s best interests;
(v) the child’s adjustment to the child’s home, school and community;
(vi) the willingness and ability of each parent to respect and appreciate the bond between the child and the other parent and to allow for a continuing relationship between the child and the other parent; and
(vii) evidence of spousal abuse.
“ ‘Neither parent shall be considered to have a vested interest in the custody or residency of any child as against the other parent, regardless of the age of the child, and there shall be no presumption that it is in the best interests of any infant or young child to give custody or residency to the mother.’ ”
Applying these factors, the majority found that the sixth factor, whether one parent is able and willing to respect and appreciate the bond between the child and the other parent, militated in favor of Chris. The majority then noted that Kim had not paid all of the court-ordered child support during the time Chris had custody. Based on these facts, the majority found that the district court abused its discretion in finding that it was in L.W.’s best interests for her mother to have custody.
The majority concluded:
“Chris argues that a stay [of the district court’s order returning the child to the mother] would have avoided any disruption in [L.W.’s] life and would have preserved the status quo. We agree. Without a finding of a material change of circumstances, [L.W.] would have remained in Hutchinson and in her home state of Kansas. Regrettably, [L.W.] will now be subjected to another change.”
Judge Paddock dissented. He pointed out that the majority found evidence supporting the district court that the district judge could have considered in making its ruling. Judge Paddock stated:
“There was testimony that because of the father’s changed work schedule, he only saw and interacted with the child from 7 a.m. to 9 a.m.; thus, the child’s primary care giver in the home was her stepmother. The natural mother’s work schedule permitted her to be a primary care giver for the child. Given the fact that the custody evaluation indicated that the child considered her natural mother as her primary care giver, that factor could indeed be a material change of circumstances.”
Judge Paddock then observed:
“Our standard of review of child custody determinations is abuse of discretion. Dickison v. Dickison, 19 Kan. App. 2d 633, 638, 874 P.2d 695 (1994). Discretion is abused when no reasonable person would take the view adopted by the trial court. Smith v. Printup, 262 Kan. 587, 592, 938 P.2d 1261 (1997).
“I believe that based on the evidence in this case, a reasonable person could conclude that there was a material change of circumstances.”
Judge Paddock opined that the majority had disregarded the standards of appellate review, stating:
“The fact that all the evidence presented to the trial court was not articulated into its findings is not fatal to its conclusion of material changes of circumstances. ‘[I]n the absence of an objection first made in the trial court, omissions in findings will not support reversal because the trial court is presumed to have found the facts necessary to support its judgment.’ ... In re Marriage of Bradley, 258 Kan. 39, 44, 899 P.2d 471 (1995). Our function on appeal when the trial court fails to make adequate findings and conclusions is to review the record to see if it supports a presumption that the trial court found all facts necessary to support the judgment. See United Proteins, Inc. v. Farmland Industries, Inc., 259 Kan. 725, Syl. ¶ 7, 915 P.2d 80 (1996). It is my opinion that the record supports the presumption.”
In seeking review of the Court of Appeals’ decision, Kim now argues that (1) the majority exceeded its standard of review by ignoring evidence supporting the district court’s judgment; (2) the trial court did not abuse its discretion; (3) the evidence in the record supported the finding that a material change of circumstances had occurred since the last order of the trial court; (4) the evidence supports the trial court’s finding the best interests of the child was served by changing custody to Kim; and (5) the majority erred in making an independent finding it was in the best interests of the child to be placed with her father. We granted review.
DISCUSSION:
When the custody issue lies only between the parents, the paramount consideration of the court is the welfare and best interests of the child. The trial court is in the best position to make the inquiry and determination, and in the absence of abuse of sound judicial discretion, its judgment will not be disturbed on appeal. Moran v. Moran, 196 Kan. 380, 386, 411 P.2d 677 (1966). See Struble v. Struble, 19 Kan. App. 2d 947, 879 P.2d 37 (1994) (custody order modified).
K.S.A. 60-1610(a)(2)(A) provides:
“Subject to the provisions of the uniform child custody jurisdiction act (K.S.A. 38-1301 et seq., and amendments thereto), the court may change or modify any prior order of custody when a material change of circumstances is shown.”
A review of Kansas cases reveals courts have been silent as to what constitutes a material change in circumstances. Rather, there has been a universal focus on what is in the best interests of the child in determining whether a change of custody is appropriate. In Simmons, 223 Kan. at 642, we noted:
“The paramount question for determination of custody as between the parents is what best serves the interests and welfare of the children. All other issues are subordinate thereto. The court must determine which parent will do a better job of rearing the children and provide a better home environment. . . .
“In order to insure that the interests of the children are fully protected from an adverse change of circumstances, K.S.A. 60-1610(a) vests the trial court with continuing jurisdiction to modify a custody order. Therefore, a decree awarding child custody is res judicata with respect to the facts existing at the time of the decree. [Citation omitted]. However, when facts and circumstances change; custody may be changed. [Citation omitted].”
In Simmons, the court reviewed the trial court’s decision to change custody from the mother to the father. The mother was awarded custody of the children upon the parties’ divorce. Shortly thereafter, she moved to Texas and purchased two cosmetic studios, bought a house, and hired a live-in housekeeper/babysitter. However, she did iiot have much success with the staff and she went through five housekeeper/babysitters in 8 months. Additionally, the mother’s boyfriend, who had used excessive corporal punishment on the daughter, spent numerous nights with the mother. Finally, when the children visited the father, they were often unclean and starved for attention.
After observing the children’s situation with the mother, the trial court noted the father had remarried and established a household. His wife was at home to care for the children, and the father had rearranged his business affairs so that he could spend more time with the children. Based on these material facts, the Simmons court found sufficient evidence to sustain the district court’s finding of a change of circumstances and awarded custody to the father. 223 Kan. at 643.
In Hoffman v. Hoffman, 228 Kan. 290, 613 P.2d 1356 (1980), we again looked to the best interests of the child to determine whether a change in custody was warranted. The Hoffman court only implicitly addressed whether there was a material change in circumstances. We said:
“In the case now before us, both Deanna and Gregory have established new homes with new mates since the divorce was granted. Their life styles have changed. The trial court had an opportunity to observe the parents and their new spouses in the courtroom, to hear and evaluate the testimony, and to weigh the evidence. There were many things of importance which the court considered in addition to the then unmarried status of Deanna and Cooper. The evidence of drug usage and its impact upon the child, Cooper’s prior felony record, attempted denial of visitation privileges, neglect of Alex’s health and clothing needs, lack of discipline, leaving the child unattended, and taking him to a tavern late at night, all support the trial court’s finding that the home was unfit. We find adequate substantial evidence as a basis for the trial court’s order, and we find no abuse of discretion.” 228 Kan. at 292.
In Merriweather v. Merriweather, 190 Kan. 598, 376 P.2d 921 (1962), the question of whether there was a material change in circumstances was not addressed. Instead, we stated: “It goes almost without saying that the real problem posed here is the question of the best interest of the child involved.” 190 Kan. at 599.
This court did discuss what constitutes a material change of circumstances in In re Marriage of Bradley, 258 Kan. 39, 899 P.2d 471 (1995). There, the mother gave notice she intended to move out of Kansas with fhe children. The children’s father sought a change of custody, claiming the move was a material change in circumstances. The Bradley court noted that K.S.A. 60-1620(c) specifically provides that a change in residence of minor children may be considered a material change in circumstances and upheld the district court’s determination that it was in the best interests of the children to remain in Kansas. 258 Kan. at 44-45.
Kim argues that fhe record contains numerous facts the district judge considered indicating a material change in circumstances:
“At the time of the change of custody [hearing] in September of 1994, [Chris] represented to the Court that he was living with Barbara McGowan, a primary care giver to [L.W.]; attending community college classes; and working the day shift at his employment. Almost immediately after being awarded custody of his daughter, [Chris] moved from living with Ms. McGowan, dropped his courses at the community college, and returned to the night shift at his employer. Moveover, [Chris] remarried since the court’s order of September, 1994 and was expecting a new child at fhe time of the custody hearing held in October of 1995. In addition to these material changes in circumstance, [Kim] had received a promotion at her employer resulting in a wage increase of almost $2.00 per hour and her hours were changed from having to work from 9:30 a.m. to 6:30 p.m. to a 9:00 a.m. to 5:00 p.m. job. [Kim] had also moved from a one bedroom apartment to a four bedroom house.”
As in all child custody cases, a district court’s decision should not be disturbed unless it has abused its discretion. Dickison v. Dickison, 19 Kan. App. 2d 633, 638, 874 P.2d 695 (1994). Discretion is abused when no reasonable person would take the view adopted by the trial court. Smith v. Printup, 262 Kan. 587, 592, 938 P.2d 1261 (1997).
Here, fhe majority in fhe Court of Appeals disregarded Chris’ change to an evening shift which meant he only saw his daughter in the mornings during the week, a significant change in circumstances. Chris no longer lives with McGowan, who had a positive and significant influence on L.W. Based on these facts, we cannot say the trial court abused its discretion in changing the custody of L.W. to Kim.
The dissent below correctly points out that the trial court’s failure to specifically articulate fhe evidence that supports its finding is not fatal. According to the dissent, “ ‘[i]n fhe absence of an ob jection first made in the trial court, omissions in findings will not support reversal because the trial court is presumed to have found the facts necessary to support its judgment.’ ” (Quoting Bradley, 258 Kan. at 44). The dissent continues: "Our function on appeal when the trial court fails to make adequate findings and conclusions is to review the record to see if it supports a presumption that the trial court found all facts necessary to support the judgment.” Here, there is material evidence winch supports the conclusions of the trial court.
In addition to determining the district court abused its discretion in finding a material change of circumstances, the Court of Appeals also examined whether a change of custody was in the best interests of the child. Here, Kim argues that the Court of Appeals again ignored evidence supporting the trial court’s determination that it was in L.W.’s best interests to reside with Kim. Kim points out that Dr. Lane indicated L.W. wanted to live with her mother, and that Kim had been the primary care giver except for the 18 months L.W. lived with her father after custody was changed in September 1994.
The record contains sufficient material evidence, which the majority disregarded or reweighed, supporting the district court’s decision that a material change of circumstances had occurred and it was, therefore, in the child’s best interests to reside with her mother. Consequently, it was error for the majority to determine that the district court abused its discretion.
Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
McFarland, C.J.:
Mark A. Shay appeals the Franklin County District Court’s dismissal of his eminent domain valuation appeal for failure to provide discovery.
The changing cast of players herein must be set forth in some detail as it contributed substantially to the outcome of this case.
Ted and Karen Fogle, the original plaintiffs in this action, foreclosed on the mortgage they held on a piece of real estate involved in eminent domain proceedings for a state highway in Franklin County. The Fogles eventually purchased the real estate at the sheriff’s sale subject to the right of redemption by the former owners, Mark A. Shay and Carol Shay. The certificate of purchase was issued to the Fogles on December 20, 1995, with the redemption period running until December 20, 1996. On January 12, 1996, dissatisfied with the award made by the court-appointed appraisers in the master condemnation case, the Fogles filed a notice of appeal pursuant to K.S.A. 26-508. The Fogles were represented by John Richeson,
In December 1996, Mark Shay redeemed the property. Carol Shay has apparently disclaimed any interest in the real estate and is not a party to this appeal. As will be more fully discussed below, Shay entered this case as the Fogles departed. Shay was represented first by J. Kevin Lund and later by L. D. McDonald.
The defendant at all times was the Kansas Department of Transportation (KDOT). KDOT was represented first by John Strahan and then by Russell Ash, both KDOT staff attorneys.
In summary, this case had numerous changes of parties and attorneys, with no fewer than five different attorneys and two different plaintiffs involved from January 1996, when the valuation appeal was filed, until May 1997, when it was dismissed. Additionally, Judge James J. Smith, who presided over the case at all times, has staff in both Franklin County and Anderson County who assist him with his duties and his calendar. Some of the problems apparently arose out of this arrangement.
Without going into the minute details of these comings and goings, we note that on December 12, 1996, when Shay filed his motion for substitution of parties, the record indicates that, up to that point, discovery had commenced and some information had been exchanged between KDOT and the Fogles. Earlier, on June 24,1996, on the Fogles’ motion, Judge Smith had ordered the case continued until the period of redemption had run, setting a hearing for December 23, 1996.
Judge Smith apparently allowed Shay’s request for a substitution of parties (we note, however, there is no order or transcript of a hearing on this matter), and set the case for hearing on January 7, 1997. Later that day, Judge Smith issued an “ORDER FOR PRETRIAL” in which the parties were directed to proceed with discovery and were given certain dates for exchanging experts’ reports. While the parties were warned that failure to disclose experts’ re ports by the required date might result in "no such undisclosed witnesses [being] used at the trial,” the order did not indicate that dismissal was immediately forthcoming if the parties failed to comply. Discovery was to be completed by April 7, 1897, and the parties were to appear for a pretrial conference on April 15, 1997. According to this order, no trial date had been set.
Shortly after this order was issued, the record indicates that Ash began handling the case for KDOT, replacing Strahan.
On January 15, 1997, 8 days after the order for pretrial was issued, Ash filed a motion to dismiss the action for lack of prosecution. Defendant requested that the court either dismiss the action or, in the alternative, "bind Shay to all decisions and determinations heretofore made by [the] Court.” The motion to dismiss was set for hearing on February 18, 1997.
On January 28, 1997, McDonald entered an appearance for Shay, and on February 13, 1997, Shays former attorney, Lund, filed a motion to withdraw.
On February 18, 1997, the same day the motion to dismiss was set for hearing, defendant filed a motion to compel production. Defendant indicated that it had not received plaintiff’s discovery response due February 13, 1997, and requested that plaintiff be ordered to respond no later than March 1, 1997. The motion to compel was set for hearing on March 4,1997. The March 4 hearing did not occur, and the court never directly ruled upon this motion.
At the February 18 hearing, Ash argued that Shay had done nothing to forward his case and that subsequent discovery problems indicated “a total lack of intent to do anything or have any involvement in this matter.” The transcript of this hearing indicates a great deal of confusion on the part of both parties concerning the January 7 order, specifically, who had the order, when they had it, and what else was said at the January 7 hearing. Nonetheless, McDonald indicated to the court that he would comply with the discovery order within the next 7 days.
In spite of such promises,' Judge Smith found that plaintiff had failed to protect his interests and had not complied with the discovery order. The court dismissed the action with prejudice.
Plaintiff’s motion for reconsideration of the dismissal was plagued with logistical problems. Hearings were set and missed; proposed journal entries were mailed and faxed; some received, some not; and rulings were made and set aside. Finally, on May 27, 1997, a hearing was held and Judge Smith denied plaintiff’s motion. Plaintiff subsequently appealed pursuant to K.S.A. 26-504.
In Hawkins v. Dennis, 258 Kan. 329, 340-41, 905 P.2d 678 (1995), we set out both the standard of review, as well as the basic legal principles surrounding appeals involving the imposition of sanctions and discovery, stating:
“It is well established that the imposition of sanctions for failure to comply with discovery orders is a matter within the discretion of the trial court and that the decision to impose sanctions will not be overturned unless that discretion has been abused. Lorson v. Falcon Coach, Inc., 214 Kan. 670, Syl. ¶ 3, 522 P.2d 449 (1974). In State v. Warden, 257 Kan. 94, 116, 891 P.2d 1074 (1995), we stated:
‘Judicial discretion is abused if judicial action is arbitrary, fanciful, or unreasonable, which is another way of stating that discretion is abused only if no reasonable person would take the view adopted by the trial court. If reasonable persons could differ regarding the propriety of the action taken by the trial court, it cannot be said that the trial court abused its discretion. State v. Brown, 249 Kan. 698, Syl. ¶ 10, 823 P.2d 190 (1991).’
“In Lorson, this court declared that ‘where there is evidence that a party has acted in deliberate disregard of reasonable and necessary orders of a court, and where such party is afforded a hearing and an opportunity to offer evidence of excusable neglect, the imposition of a stringent sanction will not be disturbed.’ 214 Kan. 670, Syl. ¶ 3. Additional principles to aid in ascertaining whether the district court abused its discretion emerge from decisions involving the sanction of default judgment. The sanction should be designed to accomplish the objects of discovery rather than for the purpose of punishment. Fields v. Stauffer Publications, Inc., 2 Kan. App. 2d 323, 328, 578 P.2d 1138, rev. denied 225 Kan. 843 (1978). Where the party failed to comply due to inability to do so rather than bad faith, a severe sanction such as dismissal or default probably would be inappropriate. Vickers v. City of Kansas City, 216 Kan. 84, Syl. ¶ 7, 531 P.2d 113 (1975).”
Dismissal of a lawsuit should only be used as a last resort when other lesser sanctions are clearly insufficient to accomplish the desired end. Burkhart v. Philsco Products Co., 241 Kan. 562, 576-77, 738 P.2d 433 (1987).
K.S.A. 1997 Supp. 60-216 provides, in part:
“(f) If a party or party’s attorney fails to obey a pretrial order, . . . the judge, upon motion or the judge’s own initiative and after opportunity to be heard, may make such orders with regard thereto as are just, and among others any of the orders provided in subsections (b)(2)(B), (C) and (D) of K.S.A. 60-237 and amendments thereto. In lieu of or in addition to any other sanction, the judge shall require the party or the party’s attorney, or both, to pay the reasonable expenses incurred because of any noncompliance with this section, including attorney fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.”
Further, K.S.A. 1997 Supp. 60-237 sets out the sanctions which may be imposed for failure to allow discovery or for failure to obey a trial court’s discovery order, and provides, in relevant part:
“(b) ... (2) Sanctions by court in which action is pending. If a party . . . fails to obey an order to provide or permit discovery, including [an order compelling disclosure or an order imposing sanctions], the judge before whom the action is pending may make such orders in regard to the failure as are just, and among others the following:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting such disobedient party from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
“In lieu of any of the foregoing orders or in addition thereto, the judge shall require the party failing to obey the order or the attorney advising such party or both to pay the reasonable expenses, including attorney fees, caused bythe failure, unless the judge finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
“(c) Failure to disclose; false or misleading disclosure; refusal to admit. (1) A party that without substantial justification fails to disclose information required by subsection (b)(6) [disclosure of expert testimony] or (e)(1) [supplementation of responses] of K.S.A. 60-226, and amendments thereto, shall not, unless such failure is harmless, be permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney fees, caused by the failure, these sanctions may include any of the actions authorized under subparagraphs (A), (B) and (C) of subsection (b)(2) and may include informing the jury of the failure to make the disclosure.”
As is readily apparent from these statutes, the district court is armed with a variety of sanctions which may be imposed when a party fails to comply with a discovery order.
The record shows that Shay initially hired an attorney who entered an appearance and then apparently could not or would not complete the discovery requested by defendant. Within a short period of time, plaintiff changed attorneys, retaining McDonald, who entered an appearance, talked with Shay s former attorney, met with defendant’s attorney in his Topeka office, and promised to comply with defendant’s discovery requests. The record also supports McDonald’s assertions that his noncompliance was not due to willful disobedience of the court’s order but rather due to general confusion and misinformation concerning the nature of the order. Approximately 60 days elapsed from the time Shay became the plaintiff to the time the court initially dismissed his case.
In a motion to compel filed contemporaneously with the Februaiy 18,1997, hearing, even the defendant suggested the deadline for plaintiff’s compliance with discovery should be extended. There is no indication any less severe sanction than dismissal was considered by the court. The imposition of the ultimate sanction was clearly unwarranted under the facts herein and constitutes an abuse of judicial discretion.
We therefore reverse the district court’s order of dismissal and remand the case for further proceedings.
Finally, we note plaintiff has requested that, on remand, the case be reassigned to Judge Thomas Sachse, who apparently heard the master condemnation petition. We concur with that request and remand with that instruction.
Reversed and remanded with instructions. | [
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Per Curiam:
This is an original proceeding in discipline filed by the Disciplinary Administrator’s office against Jeffrey A. Sutton, of Topeka, an attorney admitted to the practice of law in Kansas.
A formal complaint was filed against respondent on January 13, 1998, alleging violations of MRPC 1.1 (1997 Kan. Ct. R. Annot. 268) (competence), 1.15 (1997 Kan. Ct. R. Annot. 316) (safekeeping property), 3.5 (1997 Kan. Ct. R. Annot. 341) (impartiality and decorum of the tribunal); 8.2 (1997 Kan. Ct. R. Annot. 364) (judicial and legal officials), and 8.4 (1997 Kan. Ct. R. Annot. 366) (misconduct).
A formal hearing was held before a panel of the Kansas Board for Discipline of Attorneys, and respondent appeared in person. The Disciplinary Administrator appeared by Marty Snyder, deputy disciplinary administrator.
The disciplinary panel found the following facts were established by clear and convincing evidence:
COUNT I
“Respondent served as an Assistant County Attorney in Labette County, Kansas, in 1992. He appeared on behalf of the State of Kansas . . . before the Honorable Daniel L. Brewster at a prehminaiy hearing in the Matter of State of Kansas v. Jody Malcolm, Case No. 92-CR-88 PA on April 19,1992. During the course of the hearing, Respondent whispered to his own witness, the arresting officer, that Judge Brewster was acting like a cockroach because he was taking evidentiary rulings under advisement during the course of the hearing and not ruling upon objections in open court. The comment was picked up on a tape recording machine that was used in the courtroom.”
COUNT II
“Respondent was arrested on June 13, 1992, in Noel, Missouri, in a bar fight and charged with disturbing the peace. He pled not guilty. Upon the recommendation of the County Attorney, the charges were dismissed.”
COUNT III
“Respondent was arrested for batteiy, disorderly conduct and disobeying a stop sign in connection with an altercation at a road construction site on Highway K-96 on July 30,1992. The highway was under construction and traffic was limited to sharing a single lane through the construction zone. Traffic was stopped for the pilot vehicle which escorted waiting vehicles in each direction in turn.
“Respondent drove east in the north lane past several stopped vehicles waiting for the pilot car to return. Road worker Jessie Mahoney approached Respondent’s car and held out her stop sign. However, Respondent continued east bound striking the sign with his car. Respondent then stopped his car, got out and cursed at Mahoney for ‘striking his car with her sign,’ and stated he only wanted to turn at the next mile section road.
“Mahoney told Respondent he could wait with the other vehicles or back track. Respondent refused and said he intended to continue, and Mahoney replied that she had his license plate number.
“Respondent reached into his car, retrieved a full Pepsi bottle and threw it at Mahoney, striking her in the side. Respondent then drove past the stop sign through the construction zone.
“Respondent was charged with the crimes of Battery, a Class B misdemeanor, Disorderly Conduct, a Class C misdemeanor, and Failure to Stop at a Traffic Control Device, a traffic infraction. He applied for and was appointed a defense attorney due to his indigent status since his contract as Assistant Labette County Attorney had not been renewed the previous month.
“Respondent entered a Diversion Agreement Januaiy 15,1993, which required a mental evaluation, refraining from violating the law, paying the victim’s medical bills and paying the court costs.
“In April of 1993, the Cherokee County Attorney filed a Notice of Intent to Revoke the Diversion due to the Respondent’s failure to comply with the agreement. Following a hearing, the revocation motion was dismissed and the Diversion Agreement was extended for a year.
“The court file contains a motion and order dismissing the matter with prejudice in July of 1994, as well as another motion and order dismissing the criminal matter without prejudice in Januaiy of 1996.
“Jessie Mahoney filed a tort action against Respondent for automobile negligence, intentional tort, assault and extreme and outrageous conduct. The petition was later amended to include a request for punitive damages. The worker’s compensation insurance carrier filed a lien for benefits paid to Mahoney in the amount of $60,885.54, representing a $40,000.00 payment for permanent disability, $13,201.72 for temporary total disability payments and $7,683.82 for medical bills paid on Mahoney’s behalf.
“The matter resulted in a settlement between the parties and dismissal of the Counter-claims.”
COUNT IV
“On September 8, 1995, Respondent in' his capacity as Wabaunsee County Attorney submitted a voucher for advance payment of anticipated expenses for a seminar to be held September 11 through 15,1995, in Kansas City, Missouri. The $419.90 requested represented five (5) nights of lodging at the Adam’s Mark Hotel at $83.98 per night. Check #7416 was made payable to the hotel and was endorsed and deposited on September 13, 1995.
“Respondent attended the seminar and submitted another voucher September 30, 1995, for $44.80, representing his mileage reimbursement, and subsequently received a check from the county for that amount.
“On September 18,1995, Respondent wrote to the Kansas County and District Attorneys Association enclosing his reimbursement form and receipts for the same seminar. Mileage, turnpike, food and lodging totalled $594.70. This reimbursement request was submitted to the National Association of Prosecutor Coordinators which issued check #238 on November 17, 1995, to Respondent in the amount of $545.87, reflecting a deduction for meals provided at the seminar. The check was received by Respondent, endorsed and deposited on or about November 29,1995.
“As of the date the Complaint was filed Respondent had failed to reimburse Wabaunsee County for the duplicative payments he received of $419.90 for lodging and $44.80 for travel totalling $464.70. The money was subsequently paid.”
COUNTV
“Respondent was contacted by David L. Wood, Investigator with the Disciplinary Administrator’s Office regarding the complaints in the spring of 1996. Mr. Wood requested an explanation why Respondent had deposited the check for $545.87 received from the National Association into his personal account without reimbursing Wabaunsee County for $464.70. Respondent told Mr. Wood he was confused and thought the check was actually payment of a bill for legal services from a private client. He indicated he received checks from private clients and did not always remember what work he had done for them.”
COUNT VI
“During the time Respondent served as Wabaunsee County Attorney, a diversion agreement was entered in the absence of criminal charges being filed in State v. Clarence E. Rinke on March 28, 1996. Mr. Rinke was represented- by John Ambrosio. Respondent testified he believed that the controlling statute, K.S.A. 22-2907 et seq., failed to specifically prohibit him from entering into diversion in the absence of criminal charges being filed. As County Attorney, Respondent testified he had the right to decide whether to prosecute Mr. Rinke. He advised the arresting officer that he felt the charges did not warrant prosecution but did merit some action against Mr. Rinke. All fees collected from Mr. Rinke were deposited with the Clerk in Wabaunsee County.”
The panel then concluded:.
“The panel finds no violation of the rules in Counts I and II of the Complaint and the allegations are dismissed. The panel further finds the allegations in Counts V and VI of the Complaint were not proven with clear and convincing evidence and the allegations are dismissed in those counts as well. Respondent’s actions and behavior do amount to a violation of [Model] Rules of Professional Conduct 8.4(b) and (g) in Count III and [Model] Rules of Professional Conduct 1.15, [and] 8.4(c) and (g) in Count IV.”
The panel found for aggravating factors that respondent held a position of trust as a county official and had not fully acknowledged his responsibility for failing to reimburse the county for expenses in a timely fashion. As for mitigating factors, the panel found respondent is relatively inexperienced in the practice of law; although late, restitution was made to Wabaunsee County; the construction traffic incident was remote in time and was settled in June 1995; and respondent has no prior disciplinary offenses.
The panel made the following recommendation:
“The panel recommends Respondent be disciplined by [published] censure pursuant to Rule 203(a)(3) [(1997 Kan. Ct. R. Annot. 201)]. The panel has fully taken into consideration all of the exhibits and the testimony of the witnesses in making this recommendation. The Disciplinary Administrator’s Office recognized Respondent is relatively young and has not had the opportunity to be properly mentored by the Bar. Respondent candidly admitted to the panel he has been unable to find work in the legal field since January of 1997 due to the pending disciplinary matters. The panel believes Respondent has made restitution and is fit to practice law.”
Respondent filed no exceptions to the report and recommendation of the panel. A majority of the court, having considered the record and report of the panel, accepts and concurs in the findings, conclusions, and recommendation of the hearing panel.
It Is Therefore Ordered that Jeffrey A. Sutton be and he is hereby disciplined by published censure in accordance with Su preme Court Rule 203(a)(3) (1997 Kan. Ct. R. Annot. 201) for his violations of the Model Rules of Professional Conduct.
It Is Further Ordered that the costs of these proceedings be assessed to respondent and that this order be published in the official Kansas Reports. | [
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|
The opinion of the court was delivered by
Larson, J.:
This is the direct appeal by Erick Donaldson of his convictions by a jury of first-degree felony murder, K.S.A. 21-3401, and sale of cocaine, K.S.A. 65-4161(a).
Donaldson raises nine issues on appeal, including: (1) improper joinder of charges, (2) insufficient evidence to support felony-murder conviction, (3) erroneous aiding and abetting instruction, (4) erroneous endorsement of State witness during trial, (5) prosecutorial misconduct during closing argument, (6) erroneous amendment of complaint, (7) erroneous admission of defendant’s confession, (8) violation of fair trial by cumulative errors, and (9) insufficient evidence to support the sale of cocaine conviction.
Our jurisdiction is pursuant to K.S.A. 22-3601(b)(1) (conviction of an off-grid crime with sentence of life imprisonment).
This is a companion case to our recent decision in State v. Harris, 279 Kan. 163, 105 P.3d 1258 (2005).
We find no reversible error and affirm both convictions and the resulting sentences.
We first set forth the facts that connect both-convictions. We will then discuss each alleged error.
On December 31, 2001, Donaldson and his friend, Lana Jackson, decided to “jack” Benny Zeigler for $3,000 to $4,000 with a phony drug deal. They were going to sell baking soda, and Jackson was to convince Zeigler that it was cocaine.
Donaldson and Zeigler knew each other. Afraid Zeigler would be suspicious if he saw him, Donaldson asked Vernon Harris to help Jackson steal Zeigler’s money. Donaldson, however, accompanied Jackson and Harris so he could receive part of the money. To avoid being seen, Donaldson was lying down on the backseat of Jackson’s car.
Jackson took a gun with her in case something went wrong. She gave the gun to Harris before they met with Zeigler. They arranged to meet Zeigler at Trisha Shelinbarger’s house.
Just before tire shooting, two black men and a woman Shelinbarger recognized as Jackson approached her house and knocked on the door. Shelinbarger told her daughters to refuse to allow them in the house. Shelinbarger watched as the three individuals returned to the street.
Shelinbarger saw the two men begin fighting. Jackson sprayed Zeigler with mace. Harris demanded Zeigler’s money and during the ensuing struggle, Harris shot Zeigler in tire head, resulting in Zeigler’s death. Jackson and Harris jumped in the car and sped away.
While they were driving away, Harris was counting the money. Donaldson thought Harris had $650 but claimed he never received any of the money.
An investigation led police to Jackson, who told police that Harris shot Zeigler while trying to rob him during a drug sale. Harris ultimately told Wichita Detective Robert Chisholm that Donaldson was involved as the shooter.
Detective Chisholm issued a pick-up order for Donaldson in January 2002, so he could be questioned about Zeigler’s murder. Donaldson left Wichita for some time to avoid arrest. In the fall of 2002, he returned to Wichita and made a videotape for Harris stating he (Donaldson) was in the backseat of the car when Zeigler was killed and that Harris was not there.
Donaldson avoided Wichita police until October 26,2002, when Wichita police received a tip that Donaldson could be contacted using his girlfriend’s cell phone. Officer Eddie Padrón called the number he was given and spoke with Donaldson. Officer Padrón said his name was “T” and asked to buy $100 of crack cocaine. Donaldson told Officer Padrón that he had the drugs, and the two arranged to meet at a parking lot in Wichita.
Because he was in his uniform, Officer Padrón contacted Officer Kevin Kochenderfer, another Wichita police officer who was working undercover with a confidential informant (Cl), to meet with Donaldson. Officer Kochenderfer and the Cl went to the designated parking lot and waited for Donaldson. Donaldson, accompanied by two other men, drove into the parking lot and parked beside Officer Kochenderfer’s car near the Cl. The Cl got out of the car, spoke with Donaldson, and started to hand Donaldson the money for the drugs.
Before Donaldson could hand over the drugs to the Cl, Officer Kochenderfer became concerned that Donaldson recognized him as a police officer. He pulled out his badge and gun and ordered Donaldson to exit the vehicle. Seconds later, several other officers, including Officer Padrón, arrived to assist in arresting Donaldson.
Officer Kochenderfer saw Donaldson drop a small package out of the window of the vehicle before Donaldson got out. When Donaldson got out of the vehicle, he stomped his foot on the ground, complaining that an old gunshot wound caused his leg to go numb. After the officers arrested Donaldson, they found a small package of crack cocaine in the area where Donaldson had been standing and stomping.
Before Donaldson was taken to jail, he made statements about the Zeigler murder. Donaldson told officers he knew why detectives wanted to talk to him. He said he was glad he had finally been caught, and he was tired of looking over his shoulder all the time. Donaldson said he, a female, and another man set up a spoof drug deal involving 4 ounces of baking soda. Since Donaldson had a problem with Zeigler, he stayed in the car and hid. The female maced Zeigler, “Vernon” ended up shooting Zeigler, and the female, “Vernon,” and Donaldson fled.
Detective Chisholm met Donaldson at the jail. Donaldson agreed to talk to him about Zeigler s murder. Donaldson initially told Detective Chisholm the same story he told on the videotape he had made for Harris. But, when confronted with Harris’ statement that Donaldson was the shooter, Donaldson admitted he was there but said Harris shot Zeigler.
Donaldson was charged with felony murder based on the underlying felony of theft for Zeigler’s death and sale of cocaine. Prior to trial, the State moved to consolidate the two charges into one trial and added an alternative count of felony murder based on the underlying felony of aggravated robbery. The motions were granted. Donaldson was convicted of all charges. Donaldson was sentenced to life imprisonment for felony murder and 44 months’ imprisonment for the sale of cocaine conviction, to run consecutive to his sentence for felony murder. Donaldson appeals both his convictions and his sentences.
Improper Joinder
Donaldson first argues it is reversible error for the trial court to consolidate the felony murder and cocaine sale charges into one trial because they do not qualify under the joinder statute.
The trial court’s decision to grant the State’s motion to consolidate is reviewed on appeal using an abuse of discretion standard of review. The trial court’s decision will not be disturbed unless no reasonable person would agree with the trial court’s decision. State v. Plaskett, 271 Kan. 995, 1018-19, 27 P.3d 890 (2001). Even if it is demonstrated that the trial court abused its discretion by consolidating the charges, tire defendant has the further burden of establishing prejudice that requires reversal. State v. Hill, 257 Kan. 774, 780, 895 P.2d 1238 (1995).
We are not constrained to give credence to Donaldson’s argument that we should adopt de novo review for issues such as this. It is essential that trial judges be given necessary latitude in the conduct of trials without appellate courts reviewing judgment issues under a de novo standard. We retain abuse of discretion as our standard of review of consolidation issues.
K.S.A. 22-3202(1) authorizes the joinder of charges and provides:
“Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”
In requesting consolidation, the State argued the crimes charged were acts or transactions that are related or connected together in that (1) both involved drug transactions, (2) the sale of cocaine charge was directly connected to efforts to locate Donaldson for the murder of Zeigler, and (3) when Donaldson was arrested he stated he knew why detectives wanted to talk to him and he was glad he had finally been caught, and he made statements before being taken to jail on the cocaine charge about the Zeigler murder. The State further argued both events were cocaine related and the jury was clearly instructed that: “[e]ach crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge.” Finálly, the State argues there was substantial evidence and admissions that existed as to each charge.
Donaldson argues that the charges are not connected together or of the same or similar character as required by K.S.A. 22-3202(1). Donaldson highlights the differences between the crimes, noting the distinction between the elements of the crimes, the 10-month interval between the crimes, the use of a firearm in only one of the crimes, the different locations of the crimes, and his familiarity with the victim in only one of the crimes.
We have broadly construed the phrase “connected together” in K.S.A. 22-3202(1) to apply in three situations. The first situation occurs when the defendant provides evidence of one crime while committing another. State v. Anthony, 257 Kan. 1003, 898 P.2d 1109 (1995). The State argues that Donaldson’s crimes are “connected together” under the first situation, when the defendant provides evidence of the crime while committing another. The State relies on Anthony, where a drug sale was made to an undercover police officer and the seller bragged about a separate murder and robbeiy during the drug sale. The Anthony court held the crimes were connected together by the incriminating statements made during the drug sale. 257 Kan. at 1016-17. Under our facts, a connection exists between the crimes as argued by the State, although certainly not as directly as in Anthony.
A second situation where the court has found charges to be “connected together” under K.S.A. 22-3202(1) occurs when some of the charges are precipitated by other charges. See, e.g., State v. Dreiling, 274 Kan. 518, 555, 54 P.3d 475 (2002) (affirming the joinder of first-degree premeditated murder and conspiracy to commit murder with conspiracy to commit perjury because the peijuiy would have prevented evidence of the defendant’s motive for murder); State v. Flynn, 274 Kan. 473, 481, 55 P.3d 324 (2002) (same as Dreiling); State v. Walker, 244 Kan. 275, 279-80, 768 P.2d 290 (1989) (upholding the joinder of terroristic threat charges with aggravated sodomy, endangering a child, and child abuse charges because the threat against a hospital worker occurred as a result of the child victim being hospitalized from being abused); State v. Pondexter, 234 Kan. 208, 216-17, 671 P.2d 539 (1983) (consolidating charges for unlawful possession of a firearm and aggravated assault of a law enforcement officer with charges of burglary and attempted murder because the intended murder victim was a witness against the defendant for the first two charges); State v. Moore, 226 Kan. 747, 750, 602 P.2d 1359 (1979) (joining charges of aggravated robbeiy and kidnapping with charges for corruptly influencing a witness and deprivation of property because the de fendant committed the second two offenses while faying to avoid a conviction for the first two charges).
The third situation occurs when all of the charges stem from a common event or goal. See, e.g., State v. Simkins, 269 Kan. 84, 91, 3 P.3d 1274 (2000) (upholding joinder of first-degree murder and domestic batteiy against two different victims because both charges resulted from the victims’ prior extramarital affair and the defendant’s observation of the victims talking together); State v. Stewart, 219 Kan. 523, 528, 548 P.2d 787 (1976) (allowing joinder of charges for an aggravated batteiy against Sanders and a later aggravated robbeiy against Sanders’ wife because both were based on the defendant’s goal to get Sanders to repay a debt).
Although we might individually have ruled differently on the consolidation motion than did the trial court, it is difficult, under an abuse of discretion standard of review, to hold no reasonable person would agree with the trial court’s decision. The crimes both involved drug sales of cocaine, Donaldson was apprehended for the felony-murder charge as the result of the drug sale. His comments at the drug scene arrest immediately connected him to the Zeigler murder. His statements were clearly admissible evidence.
Donaldson has contended that prejudice existed but has not shown prejudice in any direct and tangible manner. The court instructed the jury to decide each crime separately. The jury is presumed to follow the instructions to decide each charge separately. State v. Cromwell, 253 Kan. 495, 510, 856 P.2d 1299 (1993). We hold the trial court’s decision to allow consolidation under K.S.A. 22-3202(1) was not an abuse of discretion sufficient to constitute reversible error under the facts of this case.
Sufficiency of Evidence to Support Felony-Murder Conviction
Donaldson claims his conviction for felony murder is not supported by sufficient evidence. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reason able doubt. State v. Hanson, 277 Kan. 855, 856-57, 89 P.3d 544 (2004).
Donaldson s first argument is that his testimony denying involvement in both crimes must be given prime consideration. Appellate courts do not reweigh evidence and determine the credibility of witnesses. To do so invades the province of the jury. See State v. James, 276 Kan. 737, 753, 79 P.3d 169 (2003). The jury properly weighed the evidence, and there was substantial, credible evidence to support its verdict. It was not unreasonable for the jury to disregard Donaldson’s testimony at trial.
Donaldson next asserts there was insufficient evidence to show he aided and abetted Jackson and Harris in killing Zeigler. He limits his involvement to “mere association” with the perpetrators of the crime. His reliance on State v. Green, 237 Kan. 146, 697 P.2d 1305 (1985), is misplaced. Green is completely different factually.
In State v. Wakefield, 267 Kan. 116, 142, 977 P.2d 941 (1999), we said: “Any person who counsels, aids, or abets in the commission of any offense may be charged, tried, convicted, and sentenced in the same manner as if he or she were a principal.” Our Wakefield opinion relied on State v. Smolin, 221 Kan. 149, 153, 557 P.2d 1241 (1976), and stated:
“In the absence of anything in a person’s conduct showing a design to encourage, incite, aid, abet, or assist in the crime, the trier of the facts may consider failure of such person to oppose the commission of the crime in connection with other circumstances and conclude therefrom that the person assented to the commission of the crime, lent his or her countenance and approval thereto, and thereby aided and abetted the commission of the crime.” 267 Kan. at 121.
The evidence showed Donaldson helped plan the bogus drug transaction and called in Harris to .assist. Donaldson expected to receive part of the proceeds. He knew Jackson had a gun. He went along but hid in the car because he knew Zeigler and did not want to spoil the deal. Zeigler’s homicide was reasonably foreseeable from the commission of either theft or aggravated robbery.
Viewed in the light most favorable to the State, there is clearly sufficient evidence to support the jury’s finding that Donaldson aided and abetted the commission of the felony theft or aggravated robbeiy that led to Zeigler’s murder.
Donaldson’s arguments that there was no evidence of the amount stolen to support felony theft and no evidence that theft by deception is an inherently dangerous crime are without merit.
Testimony showed the plan was to “jack” somebody for $3,000 to $4,000. Donaldson’s statement to Detective Chisholm was that Harris had counted approximately $650 as his share. This is clear evidence as to the amount stolen.
The State charged Donaldson with felony murder based on felony theft as defined by K.S.A. 2004 Supp. 21-3701(a)(2), “obtaining by deception control over property.” This is an inherently dangerous felony pursuant to K.S.A. 2004 Supp. 21-3436(a)(8).
The juiy in this case was instructed, without objection by the defendant, that the underlying felony was “[t]hat the defendant obtained or exerted unauthorized control over the property,” which is the language of K.S.A. 2004 Supp. 21-3701(a)(1). However, Donaldson does not complain about this instructional error on appeal. Rather, he contends the State failed to show that theft by deception was inherently dangerous to human life. Such is not necessaiy, as K.S.A. 2004 Supp. 21-3436(a) states that “[a]ny of the following felonies shall be deemed an inherently dangerous felony.” and the list includes under subsection (8) “felony theft under subsection (a) or (c) of K.S.A. 21-3701 and amendments thereto,” without further limitation. This makes Donaldson’s appellate argument fail.
No claim of error is made as to the language listing the different subsection of K.S.A. 21-3701(a) in the complaint and instruction. This appears to have been inadvertent and unnoticed by the trial court or either counsel below. It was first pointed out in the State’s brief on appeal. We hold it does not entitle defendant to relief because no prejudice has been shown. See K.S.A. 2004 Supp. 22-3201(b).
Additionally, and more importantly, the jury also found Donaldson guilty of felony murder with the underlying felony of aggravated robbeiy. There was clearly sufficient competent evidence of the aggravated robbeiy in this case. Donaldson makes no argument to the contrary. There is no basis for setting aside Donaldson’s felony-murder conviction based on the insufficiency of the evidence. State v. Boone, 277 Kan. 208, 218, 83 P.3d 195 (2004) (quoting State v. Davis, 247 Kan. 566, 573, 802 P.2d 541 [1990]), states that
“ ‘[a] defendant’s conviction for felony murder need not be vacated because of a rule requiring that a general guilty verdict be set aside if the jury was instructed that it could find the defendant guilty of felony murder on any two or more independent felonies, and one of the felonies is insufficient, if the jury expressly found a legally sufficient felony to support the murder conviction.’ ”
Donaldson’s claim of insufficient evidence to support his felony-murder conviction does not entitle him to any relief.
Aiding and Abetting Instruction
Donaldson next argues the trial court erroneously instructed the jury on aiding and abetting, contending there is no evidence to support such a finding.
Donaldson did not object to the aiding and abetting instruction at trial, so we apply a clearly erroneous standard of review on appeal. As we said in State v. Bryant, 276 Kan. 485, 491-92, 78 P.3d 462 (2003): “ ‘Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the juiy would have rendered a different verdict if the trial error had not occurred.’ [Citation omitted.]”
We need not repeat here what we said as to the prior argument regarding the sufficiency of the evidence to support the State’s aiding and abetting theory. See Wakefield, 267 Kan. at 142; Smolin, 221 Kan. at 153. The aiding and abetting instruction was clearly proper.
Endorsement of State's Witness During Trial
Donaldson argues the State should not have been allowed to endorse Clifton Brown as a witness during trial.
K.S.A. 2004 Supp. 22-3201(g) grants the trial court discretion over determining whether to allow a party to endorse witnesses during trial. State v. Valdez, 266 Kan. 774, 782-83, 977 P.2d 242 (1999). We review this issue using an abuse of discretion standard. The test is whether the defendant’s rights have been prejudiced. 266 Kan. at 782.
Donaldson listed Brown as an alibi witness approximately 1 week before trial. Since Brown was in custody, he was transported to Wichita and arrived late on the first day of Donaldson’s trial. He was interviewed by Donaldson’s attorney and a Wichita police department detective.
Immediately prior to the beginning of the second day of trial, the State moved to endorse Brown as a witness. Donaldson objected but did not request a continuance. Finding it was not an unfair surprise to the defendant, the trial court granted the State’s motion.
Brown’s testimony was not favorable to Donaldson. He said Donaldson had been at his house for 30 minutes the morning of the day Zeigler was lulled and had received several phone calls from Jackson. Brown overheard Donald and Jackson discussing a robbery. Brown testified Donaldson later returned to his house looking distraught, like something had gone wrong, and told him that “shit didn’t go right.” Donaldson had a gun, and Brown testified he told Donaldson to leave. About a month later, Brown said he ran into Donaldson, who said he “was on the run again.” Brown arranged for a friend to drive Donaldson to Nebraska.
Donaldson attempted to discredit Brown’s testimony by testifying Brown had a grudge against him for causing Brown’s probation to be revoked and for having sex with Brown’s wife. Brown denied that he had ill will against Donaldson for either reason.
K.S.A. 2004 Supp. 22-3201(g) requires the State to endorse the names of its witnesses on the complaint, information, or indictment. The State may endorse additional witnesses in accordance with the trial court’s rulings. K.S.A. 2004 Supp. 22-3201(g). The purpose for requiring the State to include the names of its witnesses on the complaint, indictment, or information is to prevent surprise by allowing the defendant an opportunity to interview and examine the witnesses prior to trial. Valdez, 266 Kan. at 782.
This is simply a case of a witness who did not, under oath, testify as a defendant expected. There was no surprise once Brown was interviewed. Brown was effectively cross-examined, and Donaldson explained why Brown testified as he did.
We said in State v. Shelby, 277 Kan. 668, Syl. ¶ 1, 89 P.3d 558 (2004), in discussing the late endorsement of a witness, that the defendant must have been surprised and must also have objected and been denied a request for continuance of the trial. There was no surprise here, no request for continuance, and clearly no reversible error.
Prosecutorial Misconduct During Closing Arguments
Donaldson claims he was denied a fair trial because of the prosecutor s comments during closing argument.
There was no objection made at trial to the now complained-of comments. This historically meant there is no basis for finding reversible error.
However, if the prosecutor s comments are so egregious as to violate a defendant’s right to a fair trial and deny his or her Fourteenth Amendment right to due process, an appellate court may find reversible error without a contemporaneous objection. If the appellate court determines the claimed conduct may have violated the defendant’s right to a fair trial, it will consider the error. State v. Ly, 277 Kan. 386, 392, 85 P.3d 1200 (2004).
In considering the alleged errors, we must follow the directions of State v. Tosh, 278 Kan. 83, Syl. ¶¶ 1, 2, 91 P.3d 1204 (2004), which state:
“A two-step analysis is applied to allegations of prosecutorial misconduct. First, the court decides whether the prosecutor’s comments were outside the wide latitude allowed in discussing the evidence. Second, the court must decide whether the comments constitute plain error, that is, whether the statements prejudiced the jury against the defendant and deny him or her a fair trial, thereby requiring reversal. The second step is a particularized harmlessness inquiry for prosecutorial misconduct cases.”
“In the second step of the two-step analysis for alleged prosecutorial misconduct the appellate court considers three factors to determine if the prosecutorial misconduct so prejudiced the jury against the defendant that a new trial should be granted: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor’s part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these three factors is individually controlling. Before the-third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), have been met.”
See State v. Elnicki, 279 Kan. 47, 64-65, 105 P.3d 1222 (2005).
The essence of the defendant’s argument is the prosecutor hinted and said that the defendant was a liar while bolstering the credibility of a State’s witness. In contrast, the State claims the statements were fair comment on the evidence based on Donaldson’s three conflicting stories and testimony. The State further relies on the presumption that the jurors weigh the evidence themselves, determine the weight and credibility to be given to a witness, and use their common knowledge and experience as they are instructed to do.
On appeal, Donaldson complains of 11 comments made by the prosecutor in closing arguments. We have examined them all in isolation and in context, and while we find several to be improper, others are nothing more than attempts to comment on die evidence in a proper persuasive manner.
For example, it is not improper to say: “All they’ve done is attack the credibility of police officers that did excellent police work in this case, excellent police work. What Officer Padrón did in this case, quick thinking, veiy quick thinking.” This was a fair comment on the evidence concerning the drug sale which led to Donaldson’s arrest.
Donaldson objects to the prosecutor saying, when he was discussing the sale of cocaine:
“Now, the sale of cocaine, he makes a decision to sell cocaine. And folks, he’s driving the car. You’ve heard the evidence of what happened. Again, if you don’t believe that it happened the way it happened, you believe what he had to tell you, how does this guy that he doesn’t even know end up with his girlfriend’s phone?”
This is nothing more than pointing out inconsistencies in testimony and Donaldson’s denial of involvement, which is not misconduct.
The following statement by the prosecutor relating to Brown’s testimony is now claimed to be misconduct:
“But [Brown] testifies that he saw Erick Donaldson on that day, and Erick Donaldson talked to Lana Jackson about doing a juke or jack or a robbery, what ever words you want to call it, and that he left and he came back with a funny look on his face, and he said shit went bad and he had a gun. Clifton Brown’s going to come in here and tell you that because of some unsupported allegation that Erick slept with his wife?”
This again is a fair comment on the evidence and is intended to show that Donaldson’s explanation for Brown’s testimony had no basis.
Donaldson objects to the prosecutor saying he should not be given any credibility. The record reflects the prosecutor said: “You have a right to use common knowledge and experience in regard to the matter about which a witness has testified. You decide how much credibility to give somebody. Erick Donaldson shouldn’t be given — Erick Donaldson shouldn’t be given any credibility.” This statement came right after the prosecutor discussed instruction No. 5, which says: “It is for you to determine the weight and credit to be given to the testimony of each witness.” This comment was followed by a discussion of why Donaldson’s trial testimony was not credible. It was not an improper statement.
Donaldson says it was improper for the prosecutor to say: “He’s going to make himself guilty of felony murder to help a friend?” The defendant first told Detective Chisholm the version of events as had been stated on the videotape he had made for Harris. Under that version, Donaldson knew about the bogus drug deal and that Jackson had a gun. Donaldson placed himself in the car, yet claimed he passed out. The prosecutor was appealing to the juiy’s common sense in assessing the credibility of the first statement, which placed Donaldson in the midst of felony murder. This was clearly proper.
We find nothing wrong with any of the previous statements objected to on appeal. Because Donaldson told at least two conflicting stories during interrogation and testified completely differently at trial, it was difficult for the prosecutor to comment on the evidence without suggesting that many untruths existed. For example, Donaldson now objects to the prosecutor saying:
“Now, you maybe saying, well, how does that make Mr. Donaldson guilty when he’s simply lying in the back of the car? Because he was lying in the back of the car. If you believe otherwise, then I’ve got this big old bridge I own right outside San Francisco that I’d like to sell to you . . . .”
“Mr. Donaldson, well, he denies everything, everything. If he was charged with believing that the sky was blue, he would deny that it was blue.”
“Well, it became very apparent while Mr. Donaldson was testifying that he became caught in the web of his own untruths and he couldn’t extract himself. Like when your mother tells you, once you start telling a lie you get into some trouble.”
“Why does he tell the officers when he’s busted for sale of cocaine, I know the detectives want to talk to me. Why, if he had done nothing? And remember, the detectives were completely unaware of this litde home video at the time when he said that, they didn’t know it existed. Detective Chisholm didn’t know it existed when he spoke with Erick Donaldson. Why would Erick Donaldson know the police were looking for him to talk about the murder of Benny Zeigler, because he was there. And what does he testify to when he comes in and he talks to Detective Chisholm, I’ll tell you everything you want to know if you let me talk to my girlfriend. That’s a lie.”
The prosecutorial mischief of accusing the defendant of being a liar is well summarized in State v. Pabst, 268 Kan. 501, 506-12, 996 P.2d 321 (2000), where referring to the defendant as a liar 11 times during closing argument was deemed to be so offensive to the prosecutorial obligation that a guilty verdict was reversed and a new trial was ordered. We need not repeat Justice Six’s often-cited opinion, which clearly says: “When a case develops that turns on which of two conflicting stories is true, it may be reasonable to argue, based on evidence, that certain testimony is not believable. However, the ultimate conclusion as to any witness’ veracity rests solely with the jury.” 268 Kan. at 507.
The first two comments quoted above pass muster as permissible statements, but the second two move into the area of impropriety. Whether they require reversal is, however, another matter.
There are finally two additional comments which Donaldson points to in contending the offensive statements in the prosecutor’s closing require reversal. In addition to arguing a defendant is lying, it is also improper for a prosecutor to attempt to bolster the credibility of the State’s witnesses. See State v. Mosley, 25 Kan. App. 2d 519, 525, 965 P.2d 848, rev. denied 266 Kan. 1113 (1998). In this case, the prosecutor, in closing statement, said:
“Why can’t you believe Detective Chisholm when he swore an oath? Do you need a videotape of what happened? Do you really need a videotape when you have to compare it with what Erick Donaldson had to tell you with the things he wants to make you believe, wants to make you ignore and avoid an awful lot of stuff? . . .
“The fact of the matter is, is that the only person with the incentive to tell you something that is not true is Erick Donaldson. Does Detective Chisholm get some brownie points, does he get additional salary? What does he get for coming in here and making something up, other than possibly ruining his career, and the two other individuals that are already tried and convicted. So, no, Detective Chisholm is simply telling you what happened.”
This statement improperly bolsters the credibility of Detective Chisholm, and the jury is told by the prosecutor the result of previous trials, which is totally improper.
Finally, in considering the cocaine sale where Donaldson was arrested, the prosecutor made a sarcastic remark about the defendant, and we must consider whether it shows ill will. The prosecutor said:
“Mr. Donaldson made the mistake of selling it to police officers and, you know, wants you to believe — really he wants you to believe that this guy he doesn’t know the name of, is using his girlfriend’s phone to set up a drug deal, then giving it back to him. And then the guy says to go to this location, he doesn’t know why, little Erick doesn’t know why, can’t figure it out, but we’re just going to go down to the Eco Water place and go to some parking lot to meet some guy. And he’s getting instructions from some guy he doesn’t know, driving some car he doesn’t know who it belongs to.” (Emphasis added.)
We recognize the stress and combative nature of trials, but the obligations placed on prosecutors are clear. Practically all of the statements objected to on appeal are fair comment on the evidence. But, calling the defendant a liar and vouching for the credibility of State’s witnesses are outside the wide latitude allowed to prosecutors in closing arguments. As such, we must proceed to the second step in the analysis: whether the prosecutor’s statements constitute plain error and denied Donaldson a fair trial.
The three factors we must consider in the second step of the analysis are: (1) Is the conduct gross and flagrant, (2) does the conduct show ill will on the prosecutor’s part, and (3) is the evidence against the defendant of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors? Tosh, 278 Kan. 83, Syl. ¶ 2.
Our situation is similar to one this court considered in State v. Douglas, 274 Kan. 96, 49 P.3d 446 (2002), cert. denied 537 U.S. 1198 (2003), where the prosecutor suggested: “ ‘[I]f you believe every word that came out of Mr. Douglas’ mouth, then you’re pretty naive, because what he said doesn’t make much sense.’ ” 274 Kan. at 106. The prosecutor in five different sentences referred to Mr. Douglas’ testimony as being “unbelievable.”
The Douglas court determined that the prosecutor’s comments were outside the wide latitude allowed in closing argument but concluded they were not so gross and flagrant as to prejudice the jury against the defendant and deny his right to a fair trial. The court in Douglas said: “The prosecutor’s characterization of Douglas’ version of the facts as ‘unbelievable’ did not rise to the level of the conduct in Pabst.” 274 Kan. at 108.
Our facts are more analogous to Douglas than Pabst. Several, certainly not all, of the prosecutor’s arguments were improper; but they do not appear to be so gross and flagrant as to deny Donaldson a fair trial.
When we look to the ill will factor, we must consider the “little Erick” statement. Being spontaneous and “folksy” in argument may be thought to be persuasive and the cold record does not always reflect the courtroom dynamics, but a prosecutor must always be mindful of his or her duty under our codes of conduct. Making an argument based on height, weight, or other physical characteristic is not proper, but it was isolated and does not show sufficient ill will to require reversal.
Finally, the third factor is whether the evidence against the defendant was of such a direct and overwhelming nature that the misconduct would likely have little effect in die minds of the jurors. Answering this question requires die application of the dual standard applied in State v. Donesay, 265 Kan. 60, 85-89, 959 P.2d 862 (1998), which requires the court to evaluate whether the comments affected the defendant’s substantial rights and whether the error had little, if any, likelihood of changing the result of the trial. See Tosh, 278 Kan. at 96-97.
In this case, the comments had little, if any, likelihood of changing the result of the trial. The evidence of Donaldson’s direct participation in both crimes was strong. Donaldson’s confession to Detective Chisholm was corroborated by the testimony of both Brown and Jessica Cruz, an unwilling witness. Cruz testified that Donaldson was with Jackson immediately before Zeigler’s murder and that she made them take her home because she did not want to be involved in what they were going to do. The testimony concerning the drug sale was uncontroverted and easily satisfied all the statutory elements of the crime.
The comments we review as inappropriate were not so gross and flagrant so as to prejudice the defendant. The comment relating to size of the defendant was improper but does not show ill will requiring reversal. The evidence was strong, and while we are mindful of the admonition of Tosh that “[d]enial of a fair trial violates the due process rights of the guilty defendant just as surely as those of the innocent one,” 278 Kan. at 97, we hold the comments complained of on appeal would likely have had little weight in the minds of the jurors. The jury was properly instructed as to the weight to be given to arguments. Reversible error is not shown here.
Amendment of Complaint
At the hearing on its motion to consolidate prior to trial, the State orally moved to amend the information against Donaldson to include an alternative count of felony murder based on aggravated robbeiy or attempted aggravated robbery in addition to the previously charged count of felony murder based on felony theft.
Donaldson objected and requested another prehminary hearing on the amended charges. The trial court found no prejudice, granted the amendment, and denied the request for a new preliminaiy hearing. As has been previously stated herein, Donaldson was found guilty of both alternative counts at his trial.
K.S.A. 2004 Supp. 22-3201(e) states: “The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” Prejudice is the determining factor, and the issue is determined by an abuse of discretion standard of review. State v. Woods, 250 Kan. 109, Syl. ¶ 1, 825 P.2d 514 (1992).
Donaldson’s prejudice argument overlooks his defense of denial. He testified at trial he was at Brown’s house when Zeigler was murdered and was not involved. This same defense applies to either of the alternative underlying felonies to support felony murder.
In addition, the evidence at the preliminaiy hearing supported a probable cause finding for felony murder based on aggravated robbery as well as felony theft. The facts justifying both alternatives have been stated several times previously.
A similar argument was made to this court in State v. Smith, 225 Kan. 796, 594 P.2d 218 (1979), and we held no prejudice was shown; the same defense was presented to either alternative charge, and no error was shown. We make the same ruling in our case. It was not an abuse of discretion to allow the amendment.
Admission of Confession
Donaldson contends the trial court erroneously admitted what amounts to a confession in his statements to Detective Chisholm. He says his confession was involuntary because he was influenced by prescription headache medicine, alcohol, and sleep deprivation.
Our determination on the issue of voluntariness of a confession involves a legal question requiring independent appellate review. In reviewing a trial court’s ruling on a motion to suppress a confession, the appellate court reviews tire factual underpinnings of the decision under a substantial competent evidence standard; the appellate court reviews the ultimate legal decision drawn from those facts de novo. State v. Makthepharak, 276 Kan. 563, 566-67, 78 P.3d 412 (2003).
“To determine whether a defendant’s confession is voluntary, a court looks at the totality of tire circumstances. The prosecution bears the burden of proving that a confession is admissible by a preponderance of the evidence. Factors include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused’s age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry is whether the statement was tire product of the free and inde pendent will of the accused. [Citation omitted.]” State v. White, 275 Kan. 580, 597, 67 P.3d 138 (2003).
The trial court found that although Donaldson appeared to be tired, he was not under the influence of alcohol or drugs. The trial judge specifically noted he gave no credit to Donaldson’s testimony at the hearing on the motion to suppress and concluded the confession was voluntaiy.
The trial court’s findings and conclusions are supported by the record. Detective Chisholm testified Donaldson at all times responded appropriately and did not appear to be under the influence of alcohol or drugs. Detective Chisholm testified Donaldson had stated he was not drunk or high during the interrogation. Donaldson testified at the suppression hearing that he had consumed seven or eight 16-ounce beers within 30 to 45 minutes prior to driving to the parking lot where he was arrested. The trial court did not give any credence to this testimony.
Detective Chisholm testified that Donaldson was yawning, but he did not ask to sleep nor appear to sleep during the interrogation. Detective Chisholm said Donaldson never requested an attorney before being taken to jail, while in contrast Donaldson said he asked for an attorney numerous times after being told his first stoiy was not believed and he was asked to tell the truth.
We do not reweigh the evidence or pass on the credibility of witnesses, and we accept the trial court’s determination that Donaldson’s testimony deserved no weight. All of the trial court’s findings are supported by substantial competent evidence.
In looking at the totality of the circumstances as required by White, 275 Kan. 580, our key inquiry is whether the statement is a product of the accused’s free and independent will. See State v. Harris, 279 Kan. 163, 167, 105 P.3d 1258 (2005).
Donaldson’s argument is focused on the duration and manner of the interrogation; his age, intellect, and background; and his testimony that he was tired, drunk, and under the influence of prescription medication. Donaldson’s confession was clearly voluntary based on his ability to communicate with the outside world and the fairness of the officers in conducting the investigation.
The record and testimony show Donaldson was placed in, an interview room at approximately 11 p.m. Detective Chisholm arrived to interview him at approximately 11:30 p.m. Donaldson asked to see his girlfriend, so Detective Chisholm arranged to have her come to the police station so she could talk to Donaldson. While waiting for Donaldson’s girlfriend, Detective Chisholm asked Donaldson some personal history questions and completed a personal history form. When Donaldson’s girlfriend arrived, Detective Chisholm allowed her to talk to Donaldson for about 17 minutes. Detective Chisholm advised Donaldson of his Miranda rights at approximately 1 a.m. and then interviewed him sporadically until about 3:55 a.m. During the approximately 5-hour interview, Donaldson was allowed to have several cigarettes, a hámburger, a drink, and bathroom breaks.
The record showed Donaldson was 27 years old and that he had substantial experience with the judicial system.
In Harris, this court upheld a statement given to Detective Chisholm under very similar circumstances. Harris, Jackson, and Donaldson were all charged with Zeigler’s murder; Harris was held over a nearly 7-hour period, although only interviewed for about 2Vz hours of that time. Harris supports the conclusion that the duration and manner of Donaldson’s interrogation was not coercive. See 279 Kan. at 167-72. Here, the trial court viewed the available videotape of the interview but did not find it helpful. Donaldson has the burden of showing error and error is not shown in this case. See State v. Navarro, 272 Kan. 573, 588, 35 P.3d 802 (2001). We have previously stated that great reliance must be placed on the finder of fact in determining whether a confession is voluntary. State v. Bell, 276 Kan. 785, Syl. ¶ 8, 80 P.3d 367 (2003).
Viewed in the light of the totality of the circumstances, Donaldson’s confession was voluntary. The trial court correctly admitted Donaldson’s confession into evidence.
Sufficiency of the Evidence to Support the Cocaine Sale Conviction
Donaldson was permitted to file a supplemental brief in which he argued the evidence was insufficient to convict him of sale of cocaine.
We have previously set forth the standard of review of insufficiency of evidence arguments in the issue relating to the sufficiency of the evidence to convict of felony murder.
Donaldson argues the evidence showed that no money or drugs changed hands and there was no physical evidence showing that he sold, attempted to sell, or was in possession of cocaine.
The applicable statute under which Donaldson was charged is K.S.A. 2004 Supp. 65-4161(a), which reads as follows:
“Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to sell, offer for sale or have in such person’s possession with intent to sell, deliver or distribute; prescribe; administer; deliver; distribute; or dispense any opiates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65-4107 and amendments thereto. Except as provided in subsections (b), (c) and (d), any person who violates this subsection shall be guilty of a drug severity level 3 felony.”
The jury instructions, which were not objected to, stated that to establish the charge of unlawfully selling cocaine, it must be proved that “the defendant sold cocaine” and he “did so intentionally.” Instruction No. 12, the “sale” instruction, stated:
“A sale under the Uniform Controlled Substances Act has a broader meaning than ‘sale’ usually has. Sale under the Act means selling for money, and also includes barter, exchange, or gift, or an offer to do any of these things. It is not necessary that the prohibited substance be the property of the defendant or in his or her physical possession.”
This instruction is consistent with what was said in State v. Griffin, 221 Kan. 83, 84, 558 P.2d 90 (1976):
“A ‘sale’ of drugs is given a much wider meaning than a ‘sale’ in the context of commercial law. Questions of the possession and passing of legal title, the existence of consideration, and who possessed the drugs sold are not regarded. A drug ‘sale’ encompasses such transactions as barter, exchange or gift, or offer therefor. [Citations omitted.]”
We further said: “Under this broad definition of sale, each such transaction need not necessarily include an actual, constructive or attempted transfer of a controlled substance.” 221 Kan. at 85.
There was a plethora of testimony that showed an offer of sale and an actual attempt to transfer possession of the cocaine. Officer Kochenderfer testified that he saw Donaldson drop something on the ground through the window. Donaldson immediately began stomping his foot on the ground when he exited the vehicle. The police recovered a rock of cocaine from the ground where Donaldson was stomping. Although Officer Kochenderfer sensed danger and told the Cl to run before the cocaine was in the Cl’s possession, the transfer of the drugs to the Cl was not necessaiy to finalize the sale under the elements of K.S.A. 2004 Supp. 65-4161(a). Likewise, it is not significant under the elements of the statute that the Cl had the $100 in his possession after Donaldson was arrested.
The negotiations were for “a hundred” and Officer Padrón learned the cocaine was in rock form. There was an agreement for a sale. When they met, Donaldson first told the Cl they needed to go elsewhere, then said, “let’s just get it done with.”
Under the facts of this case, the instructions, and our scope of review, viewing evidence in the light most favorable to the prosecution, the jury clearly could have found Donaldson guilty beyond a reasonable doubt of sale and/or possession of cocaine with intent to sell.
Cumulative Error
Donaldson makes a cumulative error analysis and argument which is simply without merit. There were no errors except for several improper comments in the prosecutor’s closing argument, and they are not sufficient to require reversal. The claim of cumulative error has no merit.
Affirmed.
Gernon, J., not participating.
Larson, S.J., assigned. | [
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|
The opinion of the court was delivered by
Davis, J.:
John Leroy Amador was convicted in municipal court of batteiy and criminal damage to property. He appealed his convictions to the district court. The appeal was dismissed without prejudice for failure to prosecute. The City of Salina (City) refiled his case in municipal court and he was convicted again of the same charges. He appealed and the district court dismissed all charges on the basis of double jeopardy. The Court of Appeals in City of Salina v. Amador, 32 Kan. App. 2d 548, 85 P.3d 724 (2004), reversed, and we granted the defendant’s petition for review.
The question before this court is whether the defendant’s double jeopardy rights were violated by a subsequent prosecution of the same charges in municipal court following the district court’s dismissal of his appeal without prejudice. The Court of Appeals answered no to this question. We agree and affirm the Court of Appeals’ decision reversing the district court.
John Leroy Amador was convicted of battery and criminal damage to property in Salina Municipal Court. He perfected his appeal to the Saline County District Court. On the day the defendant’s case was set for hearing before the district court, the City appeared by its attorney and the defendant appeared in person and by his attorney. The City requested a continuance of the hearing because some of its witnesses were not present. The district court denied the City’s request and granted the defendant’s motion to dismiss the charges without prejudice. The key to understanding the decision of this court is that the dismissal before the district court was granted without prejudice.
Following dismissal without prejudice, the City refiled the same charges in municipal court under a new case number, and the defendant was tried and again convicted of battery and criminal damage to property. The defendant again appealed to the district court; he moved to dismiss the charges on double jeopardy grounds.
The district court granted the motion after conducting a hearing. The court reasoned that the proper procedure would have been for the City to file an appeal from the district court order dismissing the case without prejudice. The court cited State v. Derusseau, 25 Kan. App. 2d 544, 966 P.2d 694 (1998), as setting precedent that jeopardy attaches after a hearing and a finding by a magistrate court. As such, the court concluded that prosecution of the defendant in municipal court following the dismissal of charges on appeal violated the defendant’s double jeopardy rights.
The Court of Appeals reversed, concluding that the City was not required to pursue an appeal under 22-3602(b)(1) from the district court’s initial dismissal of charges without prejudice. The court held that the defendant’s initial appeal from his municipal court convictions vacated the defendant’s municipal court convictions and provided for a trial de novo on the charges in the district court. When the defendant’s case was called for hearing, the district court dismissed the City’s charges against the defendant without prejudice. Such a dismissal does not implicate double jeopardy and allowed the City to refile the defendant’s case again before the municipal court. 32 Kan. App. 2d at 550-53.
Review of the district court’s dismissal of the refiled charges against the defendant based upon double jeopardy is a question of law, and this court’s review is unlimited. See State v. Barnhart, 266 Kan. 541, 543, 972 P.2d 1106 (1999).
“The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights provide that no person shall be twice placed in jeopardy for the same offense.” State v. Perry, 266 Kan. 224, 228, 968 P.2d 674 (1998).
“The Double Jeopardy Clause of the United States Constitution 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.” State v. Wittsell, 275 Kan. 442, Syl. ¶ 1, 66 P.3d 831 (2003).
K.S.A. 21-3108 codifies this double jeopardy protection. It provides in relevant part:
“(1) A prosecution is barred if the defendant was formerly prosecuted for the same crime, based upon the same facts, if such former prosecution:
(a) Resulted in either a conviction or an acquittal or in a determination that the evidence was insufficient to warrant a conviction.”
We are able to answer the question posed by considering answers to the following three questions: (1) Were the defendant’s original municipal court convictions vacated when the defendant appealed to district court for a trial de novo, (2) did jeopardy attach after the appeal and charges against the defendant were dismissed without prejudice by the district court, and (3) was the City’s only remedy upon dismissal by the district court an appeal to the Court of Appeals?
(1) Effect of Appeal to the District Court
We first consider whether the defendant’s appeal of his municipal court convictions to the district court vacated his municipal court convictions. If upon the defendant’s initial appeal to the district court, the defendant’s convictions were vacated, a second prosecution would not be barred under K.S.A. 21-3108(4)(c), which provides:
“(4) A prosecution is not barred under this section:
....
(c) If subsequent proceedings resulted in the invalidation, setting aside, reversal or vacating of the conviction, unless the defendant was adjudged not guilty.”
K.S.A. 2003 Supp. 22-3609(1) provides:
“The defendant shall have the right to appeal to the district court of the county from any judgment of a municipal court which adjudges the defendant guilty of a violation of the ordinances of any municipality of Kansas. . . . The appeal shall stay all further proceedings upon the judgment appealed from.” (Emphasis added.)
See also K.S.A. 12-4601.
The plain language of the statute provides that all proceedings are stayed on appeal. “Stay” is defined as “[t]he postponement or halting of a proceeding, judgment, or the like,” or “[a]n order to suspend all or part of a judicial proceeding or a judgment resulting from that proceeding.” Black’s Law Dictionary 1453 (8th ed. 2004). In contrast, “vacate” is defined as “[t]o nullify or cancel; make void; invalidate.” Black’s Law Dictionary 1584 (8th ed. 2004).
K.S.A. 22-3610(a) provides: “When a case is appealed to the district court . . . [t]he case shall be tried de novo in the district court.” De novo review of the municipal court convictions to the district court encompasses a new trial on die convictions appealed from and is not limited to evidence and arguments raised at the municipal court level. See Reddington v. Rank, 176 Kan. 484, 271 P.2d 807 (1954). An examination of the cases relied upon by the Court of Appeals and others supports the conclusion that the effect of an appeal of convictions from the municipal court to the district court is to stay and vacate, under certain conditions, the municipal court convictions.
In State v. Burkett, 231 Kan. 686, 687, 648 P.2d 716 (1982), this court considered whether the State could refile a felony charge in the de novo appeal proceeding to the district court that it had agreed to dismiss through plea bargaining in the proceedings before the magistrate judge. In ultimately concluding that the State was not precluded from asserting the original charges, we reasoned in part:
“The quoted statute, K.S.A. 22-3609a [providing for an appeal from judgment of magistrate judge], gives defendant this privilege as a matter of right. The effect of the appeal is to stay all further proceedings before the district magistrate judge. The case is to be tried de novo before tire district judge or an associate district judge. The pleas entered before the district magistrate judge are automatically vacated; otherwise there would be no reason for a trial. The proceedings start afresh; arraignment must be held; new pleas must be entered; a jury may be demanded; and if conviction results, the judge must direct the disposition, whether by fine, sentence, suspension of sentence, probation or otherwise. The plea, conviction and disposition had before the district magistrate judge are subject to automatic vacation by the appeal; none remain.” (Emphasis added.) 231 Kan. at 690.
In State v. Rose, 29 Kan. App. 2d 355, 28 P.3d 431, rev. denied 272 Kan. 1422 (2001), the magistrate judge suppressed the defendant’s breath alcohol test at the hearing on his driving under the influence charge, and the State did not appeal this ruling. Nevertheless, the defendant was convicted and appealed his convictions to the district court. In a trial de novo, the district court admitted the results of the breath alcohol test and the defendant was again convicted. The defendant appealed, arguing that the State was bound by the magistrate’s suppression order because it did not appeal the ruling pursuant to K.S.A. 2000 Supp. 22-3602 and K.S.A. 22-3603.
The Court of Appeals found that the right of appeal granted the prosecution under these statutes would be an important right if the suppressed evidence were essential to the case, however, when the evidence was not crucial, the prosecution could elect to proceed to trial without the evidence. The court reasoned that the fact “the State could have taken an interlocutory appeal from the suppression order of the magistrate judge is of no consequence under the facts of this case.” 29 Kan. App. 2d at 359. The court found the appeal “automatically vacated all orders entered by the magistrate judge,” and the district court had to determine both the facts and the law in a de novo trial. 29 Kan. App. 2d at 360.
Burkett and Rose are obviously distinguishable from this case in that they dealt with what is now K.S.A. 2003 Supp. 22-3609a, appeals from proceedings before a magistrate judge, and this case deals with K.S.A. 2003 Supp. 22-3609, appeals from the municipal court. However, we have deemed the reasoning in Burkett regarding whether arraignment is necessary on appeal from the magistrate judge to be “instructive” in considering whether arraignment was necessary upon appeal from a municipal court conviction. See City of Wichita v. Maddox, 271 Kan. 445, 452, 24 P.3d 71 (2001); see also City of Halstead v. Mayfield, 19 Kan. App. 2d 186, 865 P.2d 222 (1993) (applying rationale used in determining when a judgment is appealable from magistrate judge to appeals from municipal court).
Further support for this conclusion is found in State v. Legero, 278 Kan. 109, 91 P.3d 1216 (2004), in which the majority concluded that a probation revocation order made by a magistrate judge was not appealable to the district court under K.S.A. 2003 Supp. 22-3609a. In so finding, it cited with approval a Court of Appeals case which had found that an appeal to the district court from a municipal court order revoking probation was not authorized under K.S.A. 2003 Supp. 22-3609(1). Relevant to this case, we discussed the effect of appeals under both statutes:
“The appeal 22-3609a affords a defendant from a judgment does not operate as a review of the propriety of any judicial determination. Rather, the case is transferred to the district court where it will be tried de novo and guilt or innocence determined anew in the district court. On appeal, the case becomes a district court case as if filed there originally. The proceedings in the magistrate court have no bearing on tire case as it comes before the district court. Unless the appeal is dismissed, the proceedings held in the magistrate court leave no footprint.
“This procedure set forth in K.S.A. 2003 Supp. 22-3609a is virtually identical to tire appeal afforded to a defendant who has been convicted in municipal court. . . .
....
“The difference in the wording of K.S.A. 2003 Supp. 22-3609, ‘from any judgment of a municipal court which adjudges the defendant guilty of a violation of the ordinances of any municipality of Kansas/ and the ‘any judgment’ language of 22-3609a applicable herein was held to be a distinction without a difference in State v. Remlinger, 266 Kan. at 107. The procedures set forth in both statutes are virtual mirror images of each other. There is no appellate review of any prior order or judgment. For all practical purposes, the prosecution starts over.” (Emphasis added.) 278 Kan. at 114.
While the dissenting opinion disagreed regarding the right to an appeal under K.S.A. 2003 Supp. 22-3609a, it did not take issue with the practical effect of what happens when convictions are appealed to district court for a trial de novo under two similar statutes. Thus, Legero provides further support for the use of cases concerning K.S.A. 2003 Supp. 22-3609a as persuasive authority in this case.
Additionally, we find the following cases concerning a similar appeal process in Kansas history from a justice of the peace or city court to the district court are instructive. In State v. Curtis, 29 Kan. 384 (1883), the defendant appealed his misdemeanor conviction before a justice of the peace to the district court for trial. In the district court, instead of asking leave to file an amended complaint, the State filed an information for the same offense and moved to dismiss the original appeal. The defendant argued that compelling him to go to trial on the second information, which was filed when a conviction for the same offense already existed, placed him in jeopardy for a second time. This court rejected that argument, reasoning in relevant part:
“It is insisted that the appeal from the judgment of the justice did not vacate such judgment, but only suspended it, and the case of State v. Volmer, 6 Kan. *379, is cited. But there is this difference between that case and the one at bar: there the appeal was from the district court to this [court] for review, and here from the justice to the district court for trial. Yet even in that case it was held that the appeal suspended tire judgment for all purposes. A fortiori, the appeal in this case was equally potent. Further, while doubtless the appellant may dismiss his appeal, and thus reinstate and make final the judgment against him, yet the appeal conditionally vacates the judgment. [Citations omitted.] There is after the perfecting of the appeal only a pending prosecution. The case stands in the district court for trial as an original prosecution there. The state may dismiss the prosecution, and then there is no judgment or case in any court.” (Emphasis added.) 29 Kan. at 386.
In Bankers Commercial Corp. v. Markl, 148 Kan. 789, 84 P.2d 896 (1938), the defendant prevailed in a civil suit in the city court, and the plaintiff appealed the assessment of costs to the district court. The district court dismissed the case without prejudice at the plaintiff s request, and then changed its mind and erroneously dismissed the appeal based on a defective notice of appeal. Regarding the status of the case, this court reasoned:
“ ‘The dismissal of the case without prejudice entirely wipes the slate of the judgment in the city court against the plaintiff for costs and without an adjudication because an appeal from a judgment in die city court or court of a justice of the peace leaves nothing in the city court or court of a justice of the peace, but takes the whole matter to the district court for trial de novo. This is different from an appeal from a district court to the supreme court because the appeal in the latter case is only for a review of errors and not for a trial de novo. G.S. 1935, 61-1003, provides for the manner of taking an appeal from a court of a justice of the peace or city or county court, and further states:
‘The district court shall tiy and determine the same as if originally filed therein. . . ” 148 Kan. at 793.
As the procedure in K.S.A. 2003 Supp. 22-3609a is “virtually identical” to that set forth in 22-3609(1), the above cases provide the same persuasive authority in resolving the question in this case. While we agree with the Court of Appeals’ interpretation of the provisions of K.S.A. 2003 Supp. 22-3609a as vacating the municipal court judgment in this case, we also find the Curtis court’s characterization of the appeal as conditionally vacating the judgment the best description of the effect of appealing a municipal court conviction to the district court. This is because the defendant’s voluntaiy dismissal of the appeal to the district court results in the reinstatement of the municipal court judgment. As an appeal from a municipal court conviction calls for a trial de novo, the appealed conviction before the municipal court must be conditionally vacated. If the defendant does not dismiss his or her appeal, and the case is dismissed by the district court with or without prejudice, or the case is actually heard de novo before the district court, the municipal court conviction appealed from is vacated.
In this case, the defendant did not dismiss his first appeal and the district court dismissed the case without prejudice prior to the commencement of a trial de novo. The phrase “without prejudice” generally means “ ‘ “there is no decision of the controversy on its merits, and leaves the whole subject in litigation as much open to another application as though no suit had ever been brought.” State v. Heigele, 14 Kan. App. 2d 286, 288, 789 P.2d 218 (1990). The defendant’s and the district court’s actions thus had the effect of wiping the slate clean of the judgment in municipal court. See Bankers Commercial Corp., 148 Kan. at 793. We conclude that the appeal for trial de novo under K.S.A. 2003 Supp. 22-3609a, which was not dismissed by the defendant, coupled with the district court’s dismissal of the case without prejudice, had the effect of vacating the municipal court conviction.
(2) Attachment of Teopardy
In his petition for review, the defendant relies primarily upon City of Bonner Springs v. Bey, 236 Kan. 661, 694 P.2d 477 (1985), and State v. Derusseau, 25 Kan. App. 2d 544, 966 P.2d 694 (1998), in arguing that he was improperly prosecuted, convicted, and sentenced twice in municipal court in violation of double jeopardy rights. The defendant argues that jeopardy attached after his first municipal court conviction, prohibiting a second prosecution on the same charges in the municipal court.
In City of Bonner Springs, the defendant appealed his municipal court conviction and the district court dismissed the action because the City failed to introduce evidence that the defendant had been notified of an outstanding warrant. On appeal by the City on a question reserved, this court found that although the district court erred in dismissing die case, jeopardy had attached pursuant to K.S.A, 21-3108 (Ensley 1981) and further proceedings against the defendant were barred by double jeopardy. This was because the de novo case on appeal had commenced. See also City of Liberal v. Witherspoon, 28 Kan. App. 2d 649, 654, 20 P.3d 727 (2001) (double jeopardy prevented remand of case even though district court erroneously dismissed the case on appeal from municipal court for failure to present a prima facie case).
Likewise in Derusseau, the defendant was charged with driving under the influence and attempting to elude a police officer. He was convicted of only the DUI charge and acquitted of the eluding charge following a municipal court trial. The defendant appealed the DUI conviction and the district court required him to stand trial on both charges. Upon conviction of both charges, the defendant appealed the eluding conviction, claiming it violated his double jeopardy rights. The Court of Appeals held that constitutional and statutory prohibitions against double jeopardy precluded retrial on the eluding charge upon appeal for trial de novo on the DUI charge. 25 Kan. App. 2d at 544-51.
As noted by the Court of Appeals, City of Bonner Springs is distinguishable from this case because no evidence was presented at the district court level in the present case and the de novo trial in the district court had not commenced. See State v. Beerbower, 262 Kan. 248, Syl. ¶ 4, 936 P.2d 248 (1997) (defendant is not in jeopardy in a case tried to the court until the court begins to hear evidence). The district court dismissed this case without prejudice prior to any evidence being heard or witnesses being sworn.
Although Derusseau demonstrates that jeopardy can attach in municipal court, the distinguishing factor is that the defendant in Derusseau was acquitted of the charge in municipal court, while the defendant in this case was convicted of the charges in municipal court. The defendant in this case is not undergoing a second prosecution for the same offense after a conviction, because the appeal and dismissal without prejudice had the effect of vacating the municipal court conviction.
We additionally note that the United States Supreme Court has found that a defendant who chose to be tried de novo under Massachusetts’ two-tiered system for trying minor crimes could be prosecuted a second time. The Court drew comparisons to a convicted defendant who successfully appealed and had his or her conviction reversed and remanded for new trial. Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 304-05, 80 L. Ed. 2d 311, 104 S. Ct. 1805 (1984).
Although this case is one step removed from Lydon because the City chose to prosecute the case again in municipal court after the dismissal, its reasoning can be carried through to the facts of this case. If the City was free to prosecute the defendant again in a trial de novo in district court under Lydon, it follows that a second prosecution in municipal court after a dismissal of the appeal by the district court without prejudice would not violate double jeopardy. A second prosecution at the district court level carries a much heavier consequence for a defendant who would not have the benefit of a de novo review on appeal, while the defendant in this case was still entitled to a de novo appeal after a second conviction in municipal court.
The defendant’s municipal court conviction in this case was stayed by his appeal to the district court. The district court’s dismissal of the appeal without prejudice vacated all proceedings in the municipal court. Since the dismissal by the district court was made prior to the court hearing any evidence or swearing any witnesses, jeopardy did not attach at the district court level. Thus, the defendant may be prosecuted again on the same charges in the municipal court without violating double jeopardy.
(3) Failure to Appeal to Court of Appeals
The defendant also argues that once the original case was dismissed, the City’s only option was to appeal the district court’s denial of its request for a continuance and dismissal of the charges pursuant to K.S.A. 2003 Supp. 22-3602(b)(1), which provides in relevant part:
“(b) Appeals to the court of appeals may be taken by the prosecution from cases before a district judge as a matter of right in the following cases, and no others:
(1) From an order dismissing a complaint, information or indictment.”
In his petition for review, the defendant relies primarily upon Ball v. United States, 163 U.S. 662, 41 L. Ed. 300, 16 S. Ct. 1192 (1896), in arguing that the prosecutor failed to follow proper appellate procedure by appealing the district court’s dismissal of her case. In Ball, the defendant was acquitted of the murder charge and his codefendants were found guilty. The codefendants’ convictions were overturned on appeal based on a fatally defective indictment, and on remand the defendant was convicted of murder based on the new indictment. The defendant’s conviction was reversed on appeal on double jeopardy grounds. 163 U.S. at 669-71.
While the defendant does not provide this court with much argument, it appears he is trying to draw an analogy between the two municipal court trials in fhis case and the two district court trials in Ball. However, the Ball case does not provide any authority for the defendant’s position as it involved a conviction after an earlier acquittal and did not involve municipal court convictions or require the State to appeal the charges dismissed in the district court. The fact that the codefendants in Ball appealed their convictions to this court does not suggest that the City in this case was required to appeal the district court’s dismissal of the charges without prejudice.
As noted by the Court of Appeals, nothing in the language of the statute indicates that an appeal to the Court of Appeals was tire City’s only source of redress after the case was dismissed without prejudice. This is evidenced by the statute’s use of the permissive directive “may” rather than a mandatory directive of “shall.” Moreover, nothing in the plain language of die statute prohibits the City from refiling the charges in municipal court rather than appealing to the Court of Appeals.
This conclusion is supported by State v. Zimmerman & Schmidt, 233 Kan. 151, 660 P.2d 960 (1983). In that case, the State appealed the dismissal of the complaint after a preliminary hearing, and the defendant argued that the State should not be authorized to elect between either refiling the complaint and proceeding to a new preliminary hearing or appealing the dismissal under 22-3602(b). This court rejected this argument, reasoning in relevant part:
“This appeal from the order of the district court dismissing the burglary count in the complaint is expressly authorized by statute as a matter of right. The possibility that the State may choose not to appeal the district court’s order and instead refile the complaint should additional witnesses or new evidence be procured does not alter the right to appeal clearly authorized by the statute. It neither contemplates nor requires, as the appellees contend, that an appeal may only be perfected where a complaint, dismissed during pretrial procedures, cannot be refiled. We are mindful of the rule of statutory construction that penal statutes must be strictly construed in favor of the persons sought to be subjected to their operations, which simply means that ordinary words are to be given their ordinary meaning. Such a statute should not be read to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. [Citations omitted.] The rule does not permit or justify a disregard of manifest legislative intention appearing from plain and unambiguous language.” (Emphasis added.) 233 Kan. at 154-55.
Although Zimmerman is clearly distinguishable from tiris case because it dealt with a preliminary hearing rather than an appeal from a municipal court conviction, it demonstrates that this court has concluded that the opportunity to appeal the dismissal of a complaint under 22-3602(b) or to refile the complaint are not mutually exclusive. We conclude that both the plain language of the statute and Zimmerman provide that the City’s remedy to the dismissal was not limited to an appeal but included refiling the charges in municipal court if the original municipal court conviction was vacated or set aside.
Conclusion
In this case, the defendant appealed his municipal court convictions to the district court for a trial de novo and at no time did the defendant voluntarily dismiss his appeal. The appeal coupled with the district court’s dismissal of the defendant’s case without prejudice vacated the municipal court convictions and had the same effect as if the original case had never been prosecuted. The district court dismissed the defendant’s appeal before hearing any evidence or the swearing of any witnesses. Thus, jeopardy did not attach at the district court level.
The City was not required to appeal the dismissal without prejudice pursuant to K.S.A. 2003 Supp. 22-3602(d) and could refile the original charges in the municipal court. Since jeopardy did not attach at the district court level and the defendant’s initial municipal court convictions and sentences were vacated based upon the defendant’s appeal and the district court’s dismissal without prejudice, the City’s prosecution of the defendant on the same charges did not violate the defendant’s jeopardy rights. Thus, we affirm the Court of Appeals’ decision reversing the district court and remand the case to die district court with directions to set aside the order dismissing the case.
Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed, and the case is remanded with directions. | [
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The opinion of the court was delivered
Per Curiam:
This is an administrative appeal pursuant to K.S.A. 77-601 et seq. from the decision of the district court of Haskell County, Kansas, affirming the order of the State Corporation Commission of Kansas (KCC or Commission) granting the application of Chesapeake Operating Inc. (Chesapeake) to allow the compulsory unitization and unit operation of the South Eubank Water-flood Unit (Unit) pursuant to the Kansas Unitization Act, K.S.A. 55-1301 et seq., over the continuing objection of The Trees Oil Company (Trees).
The first issue was one of first impression involving the statutory definition of an oil and gas “pool” as defined in K.S.A. 55-1302, when considered by the KCC and district court. This issue becomes one of last impression as the result of 2004 amendments to K.S.A. 55-1302 which now clearly grant the rights Trees contests, as will be fully discussed in our opinion. See L. 2004, ch. 115, sec. 1.
Trees’ second, third, and fourth issues involve the application of administrative law to the KCC orders and relate to the involuntary inclusion of Trees’ property within the Unit, whether there was substantial competent evidence to uphold the KCC findings and rulings, and if the KCC acted arbitrarily and capriciously in refusing to allow Trees to present additional geological evidence at a second hearing the Commission ordered to consider only the fairness of the terms of the Unit Operating Agreement.
In order to fully understand the issues on appeal, it is necessary that we set forth in considerable detail the procedural history of this appeal, the evidence presented, the findings and orders of the KCC, and the rulings of the district court.
Procedural History and Factual Background
Several oil and gas operators, Chesapeake, OXY-USA, Inc. (OXY), and Anadarko Petroleum Corporation (Anadarko), own 16 oil and gas wells that produce oil out of a 3.7 miles long and 500- to 1,500-foot wide incised Chester and Morrow formation channel and desired to inject water into the Chester formation to produce substantial additional oil production beyond that possible with conventional pumping methods.
Trees owns and operates one oil and gas well on 80 acres within the southern boundaiy of the proposed water flood project and, after attending two planning meetings in mid-2000, informed the other operators it did not wish to voluntarily participate in the project.
Planning on the project continued and, on June 27, 2001, Chesapeake filed an application with the Commission that sought unitization and unit operations of the area above described. OXY and Anadarko were allowed to intervene.
Trees filed a protest and request for a continuance in mid-July 2001. The hearing, which had originally been set for August 2, 2001, was continued, first to September 6, 2001, and later to September 20, 2001.
The hearing took place on September 20, 2001, with the Commission taking testimony from five technical witnesses and admitting exhibits. Posthearing briefs were filed, the record was closed, and the Commission took the matter under advisement.
On March 12,2002, the KCC issued an Interim Order Requiring Additional Evidence, in which it stated: “The Commission has before it ample record and is ready to rule on the conditions in K.S.A. 55-1302(a) and (b),” but reopened the record for the specific purpose of receiving additional testimony as to whether specific terms of the Unit Operating Agreement were fair and equitable to all parties.
On April 3, 2002, the Commission heard additional evidence concerning the fairness of the specific terms of the Unit Operating Agreement. The Commission refused to reopen the record to allow Trees to present additional geological testimony.
On April 18, 2002, the KCC issued a detailed 26-page order of findings and conclusions granting Chesapeake’s application for unitization and unit operations of the South Eubank Waterflood Unit. Trees’ petition for reconsideration was denied, and it then filed a petition for judicial review before the Haskell County District Court.
Briefs were filed, oral arguments were held, and, on December 12, 2003, Haskell County District Judge Tom R. Smith issued a comprehensive 18-page decision in which the ratings and orders of the Commission were affirmed. Trees appealed.
We have jurisdiction by transfer on our own motion pursuant to K.S.A. 20-3018(c).
Ten pages of the Commission order contained a summary of the evidence presented which we will condense somewhat to show the testimony of the proponents and opponents of the application.
Rodney J. Vaeth, a Chesapeake expert landman, presented copies of the Unit Agreement and the Unit Operating Agreement which he testified incorporated the statutory requirements of the Kansas Unitization Act and met the required statutory percentages of both royalty and working interest owners who had approved both agreements. He testified 93.39152 percent of the working interest owners had approved Phase I of the agreements and 94.47862 percent had approved Phase II of the agreements. He further testified 69.396548 percent of the royalty owners on a surface acre basis had approved the agreements, that 64.00343 percent of the royalty owners had approved Phase I and 67.35903 percent of the royalty owners had approved Phase II of the agreements.
Jimmy W. Gowens, a petroleum geologist, testified for Chesapeake and described the reservoir and unit areas as portions of the Morrow and Chester sand formations in an incised channel 3.7 miles long and between 500- to 1,500-foot wide and described how the boundaries were established by the technical committee by seismic data and other factors. He noted that, within the field, Chesapeake operated 12 wells, Anadarko 4 wells, and Trees operates 1 well. He described the Chester sand as continuous from the north boundary of the Unit to the south boundary.
Gowens had personally been involved in drilling all of the Chesapeake wells. He testified seven of the wells within the proposed unit area have commingled production from both the Chester and Morrow formations and, as the result of such dual completions, both of tire formations are in pressure communication.
Gowens testified he had prepared the hydrocarbon pore volume (HPV) maps which were used in determining the participation formulas. On cross-examination, he said the HPV values are a very rehable measure of oil in place.
In rebuttal testimony, Gowens said he doubted the ability of Trees to use the Lou Ethel well (a well south of Trees’ Josephine well which was included in the Unit) as an injection well for a mini waterflood. He questioned whether there was communication between the two wells because of the possibility of a separating fault.
Chesapeake then presented the testimony of Dan Scott, a petroleum engineer with 22 years of experience. He testified the unit area is underlaid by productive Chester sand which is in good pressure communication throughout the Unit making it an excellent waterflood candidate.
Scott testified the project was economic and would result in incremental secondary recovery of at least 690,000 barrels of oil, a figure he believed to be conservative. He said the increased recovery would not be achievable through primary operations and would therefore prevent waste. The project, based on an oil price of $20 per barrel, was expected to achieve a gross profit of $6.2 million.
Scott then testified in detail regarding the determination of the unit participation percentages and formula. The parameters used included remaining primary reserves, current production, Chester well bores, Chester HPV, and Chester ultimate recovery. He opined the use of these parameters and resulting unit formula was fair and equitable and that 94 percent of the working interest owners had approved the two-phase participation formula.
The two-phase formula was described as Phase I with 50 percent remaining primary reserves and 50 percent current production and Phase II being 5 percent Chester well bores, 47.5 percent Chester HPV, and 47.5 percent Chester estimated ultimate recovery. Scott said he had been working on the waterflood since the summer of 1999 and had devoted over 1,000 hours to the study of the project.
Scott also testified in rebuttal to Trees’ witnesses. He opined that the Trees’ Josephine well was in pressure communication with the other Chester wells in the proposed unit. He said the reservoir pressure at that time was approximately 400 psi but that, through injection under pressure, they intended to bring reservoir pressure back to 1,500 psi. He testified the Trees’ Josephine well, if allowed to remain a producer, would become much more productive as the result of the proposed waterflood with much of the production coming from the unit area as the result of migration of oil across the lease line in violation of correlative rights.
Scott strongly disagreed with Trees’ witness Hupp that efficient operation of the Leather’s Land 2-10 well (located directly north of the Josephine well) could prevent migration of oil. He noted that the initial production rate of the Leather’s Land 2-10 well was only 87 barrels of oil a day and that injection rates would be as high as 1,100 barrels per day causing oil to bypass the Leather’s Land 2-10 well and be pushed to the Josephine well in violation of correlative rights. Scott disagreed with Hupp, who had suggested the narrowness of the channel would prevent migration, pointing out a well bore is only 7 or 8 inches wide and the reservoir at the Leather’s Land 2-10 well is over 1,000 feet wide, approximately the length of over 3 football fields. Scott estimated the amount of oil that could be lost by migrating of oil off the Unit onto the Trees’ well could be as much as 18,000 barrels if Trees were omitted from the Unit.
Scott testified the natural state of the formations had been altered by commingling the Morrow and Chester formations in seven of the well bores, and the two zones are in pressure communication which means, from a pressure standpoint, they are one and the same. He further said it was intended to leave both sets of perforations open in the commingled wells that would become injection wells which could lead to additional recovery and production from the Morrow formation.
Scott opined the value of the Josephine lease without water-flooding would be approximately $130,000 but by implementation of the project the value could increase to $390,000 and that the increase in present net worth at a 10 percent discount rate was approximately $250,000.
Finally, Scott testified the wells in the proposed unit are in imminent danger of being abandoned due to economics and low levels of primary production.
Trees presented the testimony of Thomas G. Pronold, a geologist, and Kenton Hupp, a petroleum engineer.
Pronold testified the Chester formation in this area has different pressure compartments which could minimize the effectiveness of the proposed waterflood. He did not present any pressure studies to support this statement. Pronold acknowledged he could not determine whether interest owners were receiving credit for Morrow pay that was not actually producing. He did not present any seismic data on behalf of Trees, although it was available, in support of the possibility that the Morrow formation might be productive in the area of the Josephine well and acknowledged he would not recommend Trees to drill a well there for Morrow production.
Pronold acknowledged that seven of the wells in the area had been commingled between the Chester and Morrow formations as had been permitted by Commission orders.
Hupp testified that the technical committee undervalued the remaining reserves under the Josephine 1-15 well because it did not honor late term amounts of Trees’ production. He did acknowledge that September 2000 through Febraaiy 2001 production amounts would have been below the decline curve and that he did not account for those points in developing his exhibit.
Hupp said that geologic mapping was prepared without input from Trees but did acknowledge that he knew Trees had representatives at two technical committee meetings and a geophysicist present at the meeting on July 10, 2000. Hupp admitted that he believed the project was valid from an engineering standpoint and that the Chester formation is floodable.
Hupp expressed concern that Trees would not get credit for Morrow reserves but did acknowledge that he was not aware of any other operation in the Unit that was to receive credit for Morrow production that was not actually being produced. He acknowledged Trees would be getting a share of Morrow production from the Unit even though there would be no Morrow production from the Trees’ tract itself.
Hupp criticized the use of HPV or oil in place as a parameter in the participation formula as being unreliable and speculative, although he acknowledged he had previously advocated use of oil in place before the Commission and that the Commission had used HPV on unit orders before.
Chesapeake and Trees presented additional testimony on April 3, 2001, in response to the Commission’s interim orders limited to the fairness of the terms of the Unit Operating Agreement.
Professor David E. Pierce of the Washburn University School of Law, who teaches in the oil and gas law area, qualified as an expert witness and testified on behalf of Chesapeake. He was familiar with the agreements and said they were patterned after the model forms of the American Petroleum Institute. They are standardized provisions generally used in the oil and gas industiy and satisfied the statutory requirements of tire Kansas Unitization Act, K.S.A. 55-1301 et seq.
Professor Pierce opined the agreements were fair in that all owners were treated the same. Decisions were required to be made in good faith and provided adequate protection for tire interests of an unwilling participant. Pierce specifically testified the “recovery of costs” provision of the Unit Operating Agreement was authorized by statute and was fair in that if a nonoperating working interest owner elected not to assume additional risk, it compensated the operator for the additional risk it assumed when it financed the operation.
Gayle Gentry Bishop testified on behalf of Trees. She is its president, principal shareholder, and has had operating responsibility for the past 17 years. Bishop said she felt the agreement was unfair to Trees because, as an unwilling participant, it was being forced to take risks it did not wish to take. It had no practical way to protect itself from majority decisions that Trees believed to be adverse to its interests. She objected to lost cash flow and being required to contribute to unit expenses.
Bishop said Trees had not known it could be forced to participate in the project and had not perceived a need to be involved in Unit planning.
There were three provisions of the agreement which Bishop believed to be unfair. Article 4.3 was objected to because it allowed decisions by a majority vote and, consequently, the other participants would effectively control unit operations. She further ob jected to Chesapeake and OXY determining the values of personal property delivered to the Unit and expressed concern about the future use of a tank battery that was also used for Trees’ Lou Ethel No. 15 well.
Chesapeake presented Scott on rebuttal. He testified the cash flow impact on Trees was proportionate to all participants. As to the equipment valuation objection, he testified that all equipment owned by Trees in connection with the Josephine well, except for the casing, would be pulled and returned to Trees so no valuation would be needed. As to the tank batteiy in question, it would not be disturbed by unit operation and would remain fully available for use in connection with Trees’ Lou Ethel well which was not a part of the Unit.
Rulings and Orders of the Kansas Corporation Commission
The Commission order first recited the evidence presented as has been summarized above. It was then noted that Trees' raised a threshold legal issue that the proposed unitization could not go forward because it violated tire statutory requirements for unit operation of a “pool,” defined in K.S.A. 55-1302 as
“an underground accumulation of oil and gas in a single and separate natural reservoir characterized by a single pressure system so that production from one part of the pool affects the reservoir pressure throughout its extent.”
Trees’ argument was said to center on the wording “single and separate natural reservoir” as precluding unitization of two reservoirs connected by well bores completed so that the formations become commingled.
The Commission declined to apply what it characterized as a narrow and restricted reading of the statute because it deemed that doing so would result in substantial waste including loss of 690,000 barrels of oil production and economic loss of approximately $6.2 million of gross profits after expenses.
It was noted this was a matter of first impression in Kansas, although two Oklahoma cases had determined a pool such as exists here would be acceptable under the Oklahoma statute. The word “natural” is not used in the Oklahoma statute, so the Commission determined it must address that feature of the Kansas statute to determine if it should result in denial of the Chesapeake application.
The Commission pointed out that the Kansas Unitization statute is founded on the public policy of prevention of waste, conservation of oil and gas, and protection of correlative rights. Parkin v. Kansas Corporation Commission, 234 Kan. 994, 1006, 677 P.2d 991 (1994). There is no indication the legislature intended to prevent oil bearing reservoirs from unit operation because of commingled production of what was originally separate reservoirs. The fact deemed the most significant was that waste could be prevented by allowing unit operation of the Chester formation.
The Commission’s order then looked to the rule of statutory construction set forth in Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992), that
“ ‘courts are not permitted to consider only a certain isolated part or parts of the act, but are required to consider and construe together all parts in pari materia. When the interpretation of some one section of an act according to the exact and literal impact of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.’ [Citation omitted.]”
The order pointed out the legislature had previously amended the act to make unitization easier to accomplish by lowering the 75 percent sign up requirement in the original act to 63 percent. The clear intent of the statute would not be advanced by giving “natural” the significance Trees urged. It was noted the word “natural” may have been used for unrelated reasons and there was no reason within the statutory scheme for such a narrow interpretation.
The Commission noted this specific question, while not the subject of any Kansas cases, had been addressed by Professor Ernest E. Smith in an article on the Kansas Unitization Act, Smith, The Kansas Unitization Statute: Part II, 17 Kan. L. Rev. 133, 137 (1968), which the Commission quoted as follows in its order:
“ ‘[The Kansas statute] requires “a single and separate natural reservoir characterized by a single pressure system so that production from one part of the pool affects the reservoir pressure throughout its extent.” If “natural” is read as defining “reservoir” and not “single pressure system” — as, indeed seems the most obvious construction — then a series of vertically separated reservoirs which have been brought into pressure communication through multiple-completion drilling and production techniques would qualify as a “pool” under the statute and could be developed as a single unit under the act. Such a construction would be entirely consistent with the definition, in that production from one such reservoir would affect the pressure throughout all the reservoirs. It would also be consistent with the purposes of the act insofar as these include the avoidance of economic waste and uneconomical methods of production.’ ”
The Commission stated it agreed with this reasoning. It also noted the Chester and Morrow formations had previously been authorized to be commingled by a Commission order and there was not expected to be any significant recovery from the Morrow formation, with the primary production coming from the secondary recovery of the Chester formation.
The Commission noted it would not be prudent to separate the formations at this time as it would be costly, without benefit, and any possible Morrow production would be lost. The Commission’s order concluded that the interpretation called for by Trees is not required and it “will not interpret the statute to require foregoing over $6 million in additional production because the reservoir to be unitized for secondary recovery is incidentally connected to a reservoir, such as the Morrow formation, with no secondary recovery potential of its own,”
The Commission order then looked at the additional issues Trees raised as to the fairness of the allocations and the Unit Operating Agreement itself as it impacts a minority working interest owner. The Commission said that it had taken a closer look at the agreement but was satisfied that the proposed unit is fair and equitable to all participants.
As to the allocation formula, it was found to use well recognized measures and was reasonable. The cut-off point was reasonable, and the fact Trees gave fracture treatment to its Josephine well to temporarily increase production in April 2001, after the January to May 2000 period used, did not improperly affect the allocations of interests. The allocation of the Morrow production to Phase I of the allocation was found to be reasonable because of the existence of some Morrow production.
While a short-term revenue loss to Trees would result from conversion of the Josephine well from a producing well to an input well, there was substantial credible evidence that the value of Trees’ lease with unit operation is higher than without. All participants lose short-term cash flow but will recover its allocated share of unit production.
The Commission order then moved to the three Trees’ claims of unfairness in the Unit Operating Agreement addressed by the April 3, 2000, hearing and found: (1) There was nothing inherently unfair about majority rule where the majority was obligated to use good faith and equally treated all participants, (2) valuations of personal property must be treated fairly and, based on the Scott testimony, there would be no valuation questions, and (3) the Trees’ tank battery remained usable in conjunction with another well.
The Commission order noted Trees’ protest had not been helpful in improving the agreement and that “[Trees] only wants out.” Trees’ request to be omitted from the Unit would violate the public interest as well as correlative rights. Under the statute, waste or harm to correlative rights would occur without Trees being included in the Unit. Convincing evidence of this is that omission of the Trees’ tracts and Josephine well would allow as much as 18,000 barrels of oil to migrate from the Unit onto the Trees tracts. The remaining well on that end of the Unit would not adequately prevent this migration. The Commission concluded this discussion by stating: “Prevention of harm to correlative rights is one of the principal goals of the Unitization statute and supports keeping the Trees tract in the Unit.”
The Commission’s order held that the Chester and Morrow formations had been commingled and now constituted one common source of supply, approved the described unit area for a waterflood operation, found without unit operations substantial waste would occur, found participation percentages were fair to Trees and other participants, approved the Unit Operating Agreement as fair and equitable, held exclusion of Trees from the Unit would violate correlative rights by allowing 18,000 barrels of oil to migrate from the Unit to Trees’ tracts, and found all applicable statutory requirements had been satisfied.
It is from these findings and orders that Trees appealed pursuant to the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., to the District Court of Haskell County, Kansas.
District Court Decision
The District Court of Haskell, Kansas received briefs from all the parties, reviewed the testimony and exhibits, heard their oral arguments, and on December 12, 2003, affirmed the KCC in a well-reasoned 18-page written decision which set forth the issues as follows:
1. “The Trees Oil Company alleges the State Corporation Commission erred, because they ordered compulsory unitization and unit operation of two separate natural reservoirs and in so doing, they have misinterpreted or erroneously applied Kansas law and pursuant to K.S.A. 77-621(c)(4) this Court should reverse and set aside the order issued by the State Corporation Commission in this proceeding.”
2. “The Trees Oil Company further claims the finding by the State Corporation Commission to include the tracts of land operated by the Trees Oil Company in the South Eubank Unit is not supported by substantial, competent evidence in the record and should be reversed and set aside by this Court pursuant to K.S.A. 77-621(c)(7).”
3. “A third claim raised by the Trees Oil Company in this proceeding is the exclusion of the Trees Oil Company’s proffered testimony was unreasonable, arbitrary and capricious and should be reversed pursuant to K.S.A. 77-621(c)(8).”
4. “In their fourth claim of error, The Trees Oil Company claims the State Corporation Commission’s finding that the deletion of those tracts of land operated by the Trees Oil Company from the proposed unit would cause correlative rights violations and is not supported by substantial, competent evidence in the record as a whole and should be reversed by this Court pursuant to K.S.A. 77-621(c)(7).”
5. “The fifth and last issue raised in this proceeding by the Trees Oil Company is their claim the unit participation factors or percentages assigned to them did not fairly and equitably assign relative value to the Tree Oil Company’s tract. Therefore, the Order amounts to an unconstitutional taking of the Trees Oil Company’s property and should be reversed and set aside by this Court pursuant to K.S.A. 77-621(c)(1)(7)(8).”
The district court noted the power of review by the courts does not give the court authority to substitute its judgment for that of the Commission, see Farmland Industries, Inc. v. Kansas Corporation Comm’n, 24 Kan. App. 2d 172, 176, 943 P.2d 470 (1997), rev. denied 263 Kan. 885 (1997), and the burden was on Trees to show the Commission’s orders were invalid. See K.S.A. 77-621(a)(1).
The district court first considered Trees’ second and fourth claims of error that the findings of fact of the KCC were not supported by substantial evidence. These claims relate to the inclusion of the Trees’ tracts in the Unit and that deletion of the tracts from the Unit would violate correlative rights. These two contentions were stated to deal with the same issue in a slightly different manner.
The court found there was substantial evidence to uphold the KCC’s findings. It was noted the Commission, as the trier of fact, has the right to determine the credibility of the witnesses and the weight such testimony is to be given. Correlative rights were stated to mean that each owner or producer in a common source of supply can only take a proportional share of the oil obtainable, Aylward Production Corp. v. Corporation Commission, 162 Kan. 428, 431, 176 P.2d 861 (1947), and that the protection of such rights is one of the KCC’s obligations, Mobil Exploration & Producing U. S. Inc. v. Kansas Corporation Comm’n, 258 Kan. 796, Syl. ¶ 1, 908 P.2d 1276 (1995).
The court found substantial evidence in the record showed Trees would cause correlative rights to be violated if excluded from the Unit and, if it was not included, it would gain a substantial amount of oil from the waterflood operations for the oil production from its one well.
As to the third claim of error, that the exclusion of Trees’ proffered testimony is unreasonable, arbitraiy, and capricious and should be reversed pursuant to K.S.A. 77-621(c)(8), the court restated the facts of the dates of the filing of the applications and hearings as we have previously set forth. It was noted that Trees had attended two meetings to discuss the Unit in mid-2000, and the supplemental geographical evidence Trees attempted to submit at the April 3, 2002, hearing was available and could have been presented at the September 2001 hearing.
The proffered evidence was not on the issue of the fairness of the operating agreement, which was the sole purpose of the second hearing. The 2-D seismic study was based on information which could have been presented in September 2001, and there was no objection or request to complete this analysis at that time. The legal concept was found to be the same as existed in Western Resources, Inc. v. Kansas Corporation Comm’n, 30 Kan. App. 2d 348, 42 P.3d 162 (2002).
The district court found the KCC was not arbitrary, capricious, or unreasonable in refusing to consider the proffered testimony submitted by Trees in March 2002.
The district court next visited Trees’ fifth claim of error that the participation factors or percentages assigned to it did not fairly and equitably assign a relative value to the Trees’ tracts.
The court noted there was substantial competent evidence to support the Commission’s findings which were exhaustively detailed in its order. The allocations were found to be fair and equitable as opposed to Trees’ claims they were not protected equally by the order in violation of the Equal Protection Clauses of the United States and Kansas Constitutions. Trees was found to have failed to demonstrate systematic unequal treatment and, thus, did not carry its burden of proof on this contention.
This left the statutory claim relating to the definition of “pool” in K.S.A. 55-1302 to be considered. It was first noted that, by virtue of the two formations being commingled with seven wells, they were in pressure communication and, therefore, no longer separate pools. The Kansas definition we have previously set forth was restated followed by the definition of pool found in Williams and Meyers, Oil and Gas Terms, 554 (1981):
“an underground accumulation of petroleum in a single and separate natural reservoir characterized by a single pressure system so that production of petroleum from one part of the pool affects the reservoir pressure throughout its extent. A pool is so bounded by geological barriers that it is effectively separated from other pools that may be present.”
The district court noted that the above definition is the same as found in K.S.A. 55-1302, with the exception that the last sentence is excluded from the statutory definition.
The court found “that the Kansas definition of 'pool’ is most influenced by a single pressure system. Indeed, to prevent waste, or to most effectively produce oil or gas, reservoir pressure is the single most important issue.”
The court noted the KCC’s reliance on the Smith article in the Kansas Law Review and that Smith relied on two Oklahoma cases, Jones Oil Company v. Corporation Commission, 382 P.2d 751 (Okla.) cert. denied 375 U.S. 931 (1963), and Jones v. Continental Oil Co., 420 P.2d 905 (Okla. 1966).
In the first Jones case, 275 wells were unitized with 61 of the wells producing from two or three separate sands. The Oklahoma Corporation Commission’s finding that, because of the three producing strata, there was one common source of supply and that the pressure in the three strata were substantially tire same was affirmed by the Oklahoma Supreme Court.
The facts were even more striking in the second Jones case as there were 204 wells in the field having 21 different producing sand formations. Some wells px'oduced from as xnany as 14 or 15 well bores although no one well was opexxed in all 21 zones. The court found that openings in common well bores were now a common source of supply having direct or indirect pressure communication.
The distxict court restated Px'ofessor Smith’s analysis which we have previously set foxth and Sxnith’s observations that Kansas should reach the same result despite the difference in statutoxy language.
The court then noted that Trees had argued that cases from Texas supported its position and analyzed two which related to proration orders by contained language stating that separate reservoirs cannot be transformed into one common reservoir by completing the wells in two or more zones. The cases, Railroad Commission v. Groford Oil Corp., 557 S.W.2d 946 (Tex. 1977), and Gage v. Railroad Commission, 582 S.W.2d 410 (Tex. 1979), were not deemed persuasive to the district court because the Texas Legislature amended Texas statutes to give the Railroad Commission the authority to prorate production from commingled reservoirs caused by operation through coxnmon well bores as if they were a common source of supply. See Pend Oreville Oil & Gas v. Railroad Commission, 788 S.W.2d 878 (Tex. App. 1990). The Texas cases were thereby distinguished and discounted.
The court then noted the broad authority of the Commission to regulate production of oil, to prevent waste, and to prevent inequitable or unfair taking from a common source of supply. Mobile Exploration and Producing, 258 Kan. 796, Syl. ¶ 1. It pointed to the long-time holding that the interpretation of a statute by an administrative agency charged with the responsibility of enforcing a statute is entitled to judicial deference, called the doctrine of operative construction, and deference to an agency’s interpretation is particularly appropriate when the agency is one of special competence and experience. See Lyon-Coffey Electric Co-Op, Inc. v. Kansas Corporation Comm’n, 29 Kan. App. 2d 652, 655, 31 P.3d 962, rev. denied 272 Kan. 1418 (2001).
The court stated that legislative intent must be determined from consideration of the entire Unitization Act and every part thereof, that the KCC is an agency of special competence and experience in oil and gas matters with prevention of waste being of primary importance, and held “to this end the decision by the State Corporation Commission to find that two separate oil reservoirs that have been penetrated by common well bores and that are in pressure communication [with each other] are in [e]ffect a single pool and unit operations may be ordered.” With this finding, the orders of the KCC were affirmed, and Trees’ appeal was denied.
Scope of Review of Agency Actions to the Kansas Supreme Court
This appeal by Trees is from the orders and findings of the KCC as allowed by the KJRA and brings into application the following scope of review sections of K.S.A. 77-621:
“(a) Except to the extent that this act or another statute provides otherwise:
(1) The burden of proving the invalidity of agency action is on the party asserting invalidity; and
(2) the validity of agency action shall be determined in accordance with standards of judicial review provided in this section, as applied to the agency action at the time it was taken.
....
“(c) The court shall grant relief only if it determines any one or more of the following:
(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
....
(4) The agency has erroneously interpreted or applied the law;
....
(7) The agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
(8) the agency action is otherwise unreasonable, arbitraiy or capricious.”
As we are instructed by Reed v. Kansas Racing Comm’n, 253 Kan. 602, 609-10, 860 P.2d 684 (1993):
“We exercise the same review of the agency’s action as does the district court. Peck v. University Residence Committee of Kansas State Univ., 248 Kan. 450, 455-56, 807 P.2d 652 (1991). We must accept as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the trial court. We are to disregard any conflicting evidence or other inferences which might be drawn therefrom. Vakas v. Kansas Bd. of Healing Arts, 248 Kan. 589, 604, 808 P.2d 1355 (1991). ‘A rebuttable presumption of validity attaches to all actions of an administrative agency and the burden of proving arbitrary and capricious conduct lies with the party challenging the agency’s action. [Citations omitted.]’ ”
Because one of the principal issues here involves the interpretation of a statute, we are obligated to apply the doctrine of operative construction as we stated in GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 317, 22 P.3d 600 (2001):
“The interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to judicial deference. . . . Further, if there is a rational basis for the agency’s interpretation, it should be upheld on judicial review. If, however, the reviewing court finds that the administrative body’s interpretation is erroneous as a matter of law, the court should take corrective steps. The determination of an administrative body as to questions of law is not conclusive and, while persuasive, is not binding on the court. [Citations omitted.]” ’ ”
However, in State ex rel. Stephan v. Kansas Racing Comm’n, 246 Kan. 708, 720, 792 P.2d 971 (1990), we said that
“when a statute is ambiguous, the interpretation placed upon it by an administrative agency whose duties are to carry the legislative policy into effect should be given great weight and may be entitled to controlling significance when tire scope and limitations of the powers of the agency must be determined in judicial proceedings. [Citations omitted.]”
Additional rules of statutory construction must be considered which we will recite as we discuss the first issue dealing with the interpretation of when a “pool” is subject to a unitization order.
I. Interpretation of the term “pool” in K.S.A. 55-1302 of the Kansas Unitization Act, K.S.A. 55-1301 et seq.
The history of unitization of oil and gas operations is well described in Smith, The Kansas Unitization Statute: Part I, 16 Kan. L. Rev. 567 (1968), where it is observed: “Unfortunately, the very factors which make fieldwide unitization desirable frequently prevent its being achieved through voluntary agreement.”
The factors which must be found for the Commission to order unitization and unit operations are set forth in K.S.A. 2003 Supp. 55-1304 as the following:
“(a) (1) The primary production from a pool or a part thereof sought to be unitized has reached a low economic level and, without introduction of artificial energy, abandonment of oil or gas wells is imminent; or (2) the unitized management, operation and further development of the pool or the part thereof sought to be unitized is economically feasible and reasonably necessary to prevent waste within the reservoir and thereby increase substantially the ultimate recovery of oil or gas;
“(b) that the value of the estimated additional recovery of oil or gas substantially exceeds the estimated additional cost incident to conducting such operations; and
“(c) that the proposed operation is fair and equitable to all interest owners.”
The Unitization statutes make many other references to operations of a “pool,” which is defined in K.S.A. 55-1302 as follows:
“The term ‘pool as herein used shall mean an underground accumulation of oil and gas in a single and separate natural reservoir characterized by a single pressure system so that production from one part of the pool affects the reservoir pressure throughout its extent.”
In its protest to Chesapeake’s Application for Unitization and Unit Operations to the KCC, to the district court, and to our court, Trees argues that the commingled Morrow and Chester formations do not constitute “a single and separate natural reservoir” and that the Commission erred in its interpretation of the statute and must be reversed.
The Commission and the district court refused to apply what each deemed to be Trees’ “narrow” interpretation in the face of establishing a unit that would allow recovery of substantial additional production, prevent unnecessary waste, and protect correlative rights of the parties. We have previously set forth the findings of the Commission and district court which in effect hold that the “pool” definition more properly encompasses a single pressure system where production from one part of the pool affects the reservoir pressure throughout the pool.
This issue brings into focus numerous rules of statutory construction whose applications could give rise to different results. The Commission most strongly relies on the statement from Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992):
“ ‘In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of the act, but are required to consider and construe together all parts in pari materia. When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.’ [Citation omitted.]”
Trees argues that “natural” has a limited meaning that does not justify the expanded definition as found by the Commission because “ordinary words are to be given their ordinary meaning and a statute should not be so read to add that which is not readily found therein as to read out what as a matter of ordinary English is in it. [Citation omitted.]” GT, Kansas, L.L.C., 271 Kan. at 316.
As was said in Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003): “The fundamental rule of statutory construction to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted.” In State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, Syl. ¶ 2, 69 P.3d 1087 (2003), after stating that statutes must be construed to give effect, if possible, to the entire act, it was said:
“To this end it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. The court must give effect to the legislature’s intent even though words, phrases, or clauses at some place in the statute must be omitted or inserted.”
Because there has been an amendment by the 2004 Kansas Legislature to K.S.A. 55-1302, specifically to the “pool” definition, see L. 2004, ch. 115, sec. 1, we must also look to and consider conflicting maxims which state:
“When the legislature revises an existing law, it is generally presumed that the legislature intended to change the law. Board of Sedgwick County Comm’rs v. Action Rent to Own, Inc., 266 Kan. 293, 304, 969 P.2d 844 (1998). This presumption, however, may be weak according to the circumstances and may be wanting altogether. Board of Education of U.S.D. 512 v. Vic Regnier Builders, Inc., 231 Kan. 731, 736, 648 P.2d 1143 (1982). When a statute is ambiguous, an amendment may indicate a legislative purpose to clarify the ambiguities in the statute rather than to change the law. State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 773, 69 P.3d 1087 (2003).” Hallmark Cards, Inc. v. Kansas Dept. of Commerce & Housing, 32 Kan. App. 2d 715, 723, 88 P.3d 250 (2004).
It is clear that the Kansas Legislature has intended for the Unitization Act to be construed so that unit operations can be fostered and enhanced. This is shown by the 2000 amendment to reduce the approval requirement from 75 percent to 63 percent (L. 2000, ch. 15, sec. 2), and the 2004 amendment clarifying the pool definition and not requiring Commission approval if all mineral and royalty owners and not less than 90 percent of working interest owners approve in writing the contract for unit operation. (L. 2004, ch. 115, secs. 1 and 3.)
Trees places an unrealistic emphasis on the single word “natural” in the pool definition as defining “reservoir,” when consideration of all of the wording of K.S.A. 55-1302 much more logically shows that a pool is to be “characterized by a single pressure system so that production from one part of the pool affects the reservoir pressure throughout its extent.” [Emphasis added.]
“Natural” is defined in Black’s Law Dictionary 1054 (8th ed. 2004) as being “[i]n accord with the regular course of things in the universe and without accidental or purposeful interference.” There can be no question but that oil and gas drilling and. producing operations have the effect of changing producing formations from their natural state. This, along with our obligation to look to .the legislative intent of the Unitization Act and the legislative intent, requires us to look beyond the restrictive interpretation Trees requests.
With the absence of prior Kansas cases on this issue, the most on-point discussion does come from Professor Smith’s Kansas Law Review article previously set forth in our summary of both the Commission’s order and the district court’s decision. A reading of the entire pool definition as well as the adjoining sections of the Kansas Unitization Act clearly support Professor Smith’s statement that a “series of vertically separated reservoirs which have been brought into pressure communication through multiple-completion drilling and production techniques would qualify as a ‘pool’ under the statute and could be developed as a single unit under the Act.” 17 Kan. L. Rev. at 137. Smith also correctly notes that such a construction is consistent with the purposes of the Act which are to avoid economic waste and uneconomical methods of production. 17 Kan. L. Rev. at 137. We, like the Commission and the district court, agree with and adopt this construction of the “pool” definition.
Trees correcdy argues that the Oklahoma cases cited in the Smith article and district court ruling relate to an Oklahoma statute which defines an area to be unitized as covering a “common source of supply.” Oída. Stat. Annot. 52 Oil and Gas § 287.4 (2004) and as defined by Oída. Stat. Annot. 52 Oil and Gas § 86.1(c) (2000). Because of this difference in language, we must discount the precedential value of the two Oklahoma Jones cases. However, in doing so, we do point out that K.S.A. 55-1307, which relates to enlargement of unit areas and creation of new units, does state that unit areas may be enlarged to “include adjoining portions of the same common source of supply.” [Emphasis added.]
We will not here discuss the Texas cases which were well considered in the district court decision. The fact they are proration cases and their result nullified as authority by later statutory amendments justifies them not being considered as authoritative.
We do agree with all of the observations of both the Commission’s order and the district court decision as to the purpose of the Unitization Act, the necessity of reading the entire Act together and not one phrase in isolation, the legislative intent, and the overriding obligation of the Commission to prevent waste, foster economic development, and protect correlative rights. These are clearly reasons which require the affirmance of the Commission’s orders.
This then leads us to the final factor that we must consider. After the district court decision in late 2003 was pending on appeal, the 2004 Kansas Legislature enacted House Bill 2652, which amended K.S.A. 55-1302 in the following manner applicable to our case:
“Section 1. K.S.A. 55-1302 is hereby amended to read as follows: 55-1302. As used in this act:
....
“(b) ‘Pool’ means an underground accumulation of oil and gas in a single and separate natural reservoir characterized by one or more natural reservoirs in communication so as to constitute a single pressure system so that production from one part of the pool affects the reservoir pressure throughout its extent. . . .
....
“(d) “Waste,’ in addition to its meaning as used in articles 6 and 7 of chapter 55 of the Kansas Statutes Annotated shall include, and amendments thereto, includes both economic and physical waste resulting from the development and operation separately of tracts that can best be operated as a unit. . . .
....
“New Sec. 2. The amendment by this act of the definition of ‘pool’ shall not be considered a statement of legislative intent for the purpose of interpretation of the definition of‘pool’ prior to its amendments by this act.” L. 2004, ch. 115, secs. 1 and 2.
The arguments of the parties vary. Trees contends the 2004 Legislature intended to change the meaning and intent of the definition of “pool” and points to the testimony of Dr. M. Lee Allison, state geologist, who stated, “The existing law allows only single and separate reservoirs to be unitized.” See Minutes, Sen. Comm, on Utilities, March 10, 2004. Trees argues because of the language of new Section 2, a legislative change was prospectively effected.
The Commission, Chesapeake, and OXY equally persuasively point to the testimony of Edward Cross, executive vice president of Kansas Independent Oil & Gas Association, and E.R. Brewster for BP America, which show the amendment was simply a clarification of legislative intent so there would be no doubt in the future. See Minutes, Sen. Comm, on Utilities, March 10, 2004. They further argue Section 2 was added because tire legislature was aware of this case and did not want to adjudicate its outcome.
Anadarko’s argument differs and suggests any reference in this case to H.B. 2652 and tire amendment to the pool definition “is inappropriate and that such reference, as well as the statute and testimony of conferees . . . should be totally disregarded. . .” There is considerable logic in this argument as new Section 2 states tire amendment “shall not be considered a statement of legislative intent.”
The sharp conflict this case presents leads to the clear conclusion that we are being asked to resolve language which is clearly ambiguous, at least in die minds of the appellees herein. Trees argues against this conclusion. But, different interpretations of the pool definition lead to different results. This is “an uncertainty of meaning or intention, as in a contractual term or statutory provision,” which is how Black’s Law Dictionary, 88 (8th ed. 2004) defines ambiguity.
It is more logical to hold that the amendment does nothing more than “clarify tire ambiguities in the statute rather than to change the law.” State ex rel. Morrison, 275 Kan. at 773, which relies on 1A Singer, Statutes and Statutory Construction §22.01 (6th ed. 2002).
We are also taught that statutes are to be construed to avoid unreasonable results. In re M.R., 272 Kan. 1335, 1342, 38 P.3d 694 (2002). If we follow Trees’ arguments and deny unitization here because of the “pool” definition, the legal effect of our decision is immediately ineffective. Chesapeake has only to file a new application with the Commission and, assuming tire facts remain as previously presented, a unitization order would be expected.
We hold that the 2004 amendment to the “pool” definition contained in H.B. 2652 should either not be considered or, if it is considered, should represent nothing more than a clarification. In either event, it does not change this court’s affirmance of the decisions of the Commission and district court insofar as they relate to allowing unit operation of the commingled Chester and Morrow formations as a single pressure system falling within the K.S.A. 55-1302 definition of a “pool.”
With this conclusion reached, we move on to Trees’ final three issues relating to the Commission’s orders which we state positively.
II. The Commission followed all requirements of the Kansas Unitization Act in including the Trees’ acreage in the Unit for which it will be fairly compensated.
Trees argues that the unit participation factors or percentages assigned to it do not fairly and equitably value Trees’ acreage. It further contends its minority interests were not adequately protected. As the result of these alleged injustices, the KCC unitization order amounts to an unconstitutional taking of Trees’ property. It further contends it is being compelled to take business risks it cannot control and does not want to take.
What this actually boils down to is whether the KCC’s finding that the Unit Operating Agreement was fair and equitable was supported by substantial competent evidence. See K.S.A. 77-621(c)(7) and (8). The district court found these findings were supported by substantial competent evidence, that the order was not in anyway arbitrary or capricious, and that Trees had failed to show that it was in any way treated unequally.
The Commission’s orders are not in any way a “talcing” as Trees argues. K.S.A. 2003 Supp. 55-1304 and K.S.A. 2003 Supp. 55-1305 set out in detail the findings that must be made and the provisions required in the unitization and unit operation order. There is clearly legislative authority for the Commission’s actions, and all of the statutory requirements were followed.
Trees’ argument that the technical committee used outdated production data is based on its late April 2001 fracture treatment of the Josephine well which resulted in higher recent production. The Unit Operating Agreement divides participation into two phases. Phase I weighs current production during December 1999 through May 2000, along with remaining recoverable primary reserves. Trees argues that had late term production been used, it would have received a higher level of unit production.
The KCC order found that the data had to be cut off at some point and computations could not deal with a “constantly moving target.” The order pointed out the fracture treatment did not take place until after notice of the intended unit was known and the formulas for the proposed unit had been discussed. The Commission recognized that fracture treatment resulted in a temporary increase in production but noted that a well then returns to its original decline. It was held to have been extremely difficult and possibly improper to use the enhanced production in the computations.
There was substantial competent evidence to support the Commission’s order approving the use of the prior data. The formula was fair and equitable, and the Commission’s order in approving it was not arbitrary or capricious.
There was clearly sufficient evidence to sustain the use of Morrow formation production in the Unit even though Trees’ acreage was currently unproductive in the Morrow. There was expert testimony of the commingling of the Morrow and Chester formations and that additional Morrow production could be anticipated in which Trees would share. While significant amounts of Morrow production would not be expected from the waterflood, it was prudent to leave the formations open and unnecessary cost and waste would result from closing the Morrow. A review of the record shows substantial competent evidence supports the KCC’s findings relating to the Morrow formation.
Trees’ arguments concerning the usage of the estimated Chester hydrocarbon pore volume (HPV) factor are not persuasive. Gowens’ testimony explained this usage, and it was not refuted. Even Hupp acknowledged he had previously advocated the use of HPV before the Commission. The geology may not be constant and the formula may not be perfect, but it was fairly and logically devel oped, supported by substantial competent evidence, and its adoption by the KCC was clearly justified.
Trees’ argument that its minority interest was not adequately protected is without merit. The Commission ordered a second hearing to satisfy itself precisely on this point. The testimony of Professor Pierce of the Washburn Law School was unchallenged. He said the agreements satisfied all statutory requirements, were fair and equitable in following industry standards, and adequately protected interests of unwilling minority participants. Trees offered no changes or improvement. The small issue of property valuation became a nonissue with control remaining in Trees, and the tank battery usage it questioned remained under its control and usage. There was clearly substantial competent evidence that the Unit Operating Agreement was fair and equitable.
Testimony showed that including Trees’ acreage in the Unit increases its value from approximately $130,000 to $390,000 based on testimony before the KCC. The present net worth of the acreage increases approximately $250,000. Trees will share in the expected $6.2 million profit from the Unit. Trees might lose absolute control of its property, which is statutorily allowed, but it will benefit economically from being in the Unit.
We have examined all of Trees’ arguments, whether responded to in detail or not, and none satisfy its burden of showing improper or unlawful agency action. There was substantial competent evidence for all of the Commission’s findings and orders, and none were arbitrarily or capriciously made.
III. Inclusion of the Trees’ tracts in the South Eubank Unit was clearly supported by substantial competent evidence.
The standard of review of this contention is under K.S.A. 77-621(c)(7) under which an agency’s findings of fact must be “supported by the evidence that is substantial when viewed in light of the record as a whole.”
Trees’ main contention is that Chesapeake failed to provide “tangible evidence” of pressure communication between Trees’ acreage and the other portions of the proposed unit. Trees claims drill stem tests should have been submitted to support Chesapeake’s contention of pressure communication of the Chester sand throughout the Unit. This contention is not persuasive based on the evidence submitted to the KCC through various studies and expert testimony.
Gowens and Scott both opined that the whole Unit, including the Trees’ tracts, were in the same reservoir and were pressure connected. Gowens testified as to how the Unit boundaries were established by the technical committee. Gowens specifically stated the southern boundary of the reservoir was an oil-water contact at the subsea datum of 2515 identified at the Trees’ Josephine well.
Scott testified the unit area including the Trees’ acreage was an excellent waterflood candidate because it is in good pressure communication. Even Trees’ witness Hupp conceded there was pressure communication between the Trees’ Josephine 1-15 well and the balance of the Unit.
Scott further testified that exclusion of the Trees’ tracts and Josephine well from the Unit would violate correlative rights. Correlative rights, as defined in K.A.R. 82-3-101(21) means
“the privilege of each owner or producer in a common source of supply to produce from that supply only in a manner or amount that will not have any of the following effects:
(A) Injure the reservoir to the detriment of others; or
(B) take an undue proportion of the obtainable oil and gas; or
(C) cause undue drainage between developed leases.”
This definition was cited and approved in Southwest Kan. Royalty Owners Ass’n v. Kansas Corporation Comm'n, 244 Kan. 157, 183, 769 P.2d 1 (1989). Scott opined that if the Josephine well were allowed to remain a producer outside the Unit, there would be a migration of oil from the Unit of as much as 18,000 barrels which would violate the correlative rights of the other owners within the Unit. Scott described this increase in Josephine production as a “certainty.”
Trees’ expert Pronold testified there was a significant degree of lateral compartmentalization within the Eubank Unit which resulted in pressure communication making a flood risky. Gowen testified the article Pronold relied on described only sections at the north boundaries of the Unit and that no such compartmentalization existed in the rest of the Unit.
Trees’ disagreement with Gowens’ and Scott’s testimony is not sufficient to establish substantial competent evidence does not exist. This is in fact the very evidence the Commission relied on as is previously stated herein in summarizing its order.
There was substantial competent evidence to support the Commission’s findings that the Eubank Unit should include the Trees’ tracts because there was pressure communication with the rest of the Unit. There was further evidence that the Commission properly protected correlative rights by requiring the Trees’ tracts to be included in the Unit. The Commission is obligated to resolve conflicts of the experts’ opinions. See Suburban Medical Center v. Olathe Community Hosp., 226 Kan. 320, 330-32, 597 P.2d 654 (1979).
There was substantial competent evidence to support the Commission’s findings, and Trees has failed in its obligations to show to the contrary as is required under the KJRA.
IV. The KCC did not err in denying Trees’ motion to present supplemental technical testimony at the April 2, 2002, hearing.
Our scope of review of this issue is set forth in K.S.A. 77-621(c)(8), which requires us to find the “agency action is otherwise unreasonable, arbitrary or capricious.”
The Commission, in an abundance of caution, was concerned about the fairness to Trees of the Unit Operating Agreement. The Interim Order which was issued on March 12, 2002, specifically stated: “The Commission has before it ample record and is ready to rule on the conditions in K.S.A. 55-1304(a) and (b).”
The Commission’s order specifically stated: “[T]he record should be reopened for the specific purpose of receiving explanation or argument as to whether the specific terms of the Unit Operating Agreement are fair and equitable to all parties and to take additional evidence on that issue.”
Despite this clear statement, Trees, on March 25, 2002, filed a motion seeking to introduce supplemental geological and engi neering evidence at the April 2, 2002, hearing. The Commission correctly refused to allow this additional technical evidence.
Trees’ argument that it was somehow denied due process by the Commission’s Interim Order is not persuasive. Trees points to the limited time to prepare for the September 2001 hearing. However, it had early knowledge of the studies of the proposed unit through its representatives’ attendance of early technical meetings. It had knowledge of the proposed unit with its inclusion by May 16,2001.
The initial filing before the Commission on June 27, 2001, was 85 days before the hearing was held.
Virtually, all the data relied on in the supplemental testimony was available before the September 20, 2001, hearing. The data to prepare the 2-D seismic study was done in July 1997 and was available long before Trees finally studied it in March 2002. The Trees’ experts, Hupp and Pronold, were hired 6 weeks before the initial hearing.
Allowance of supplemental technical evidence would in effect allow Trees a second chance to retry the case. It would have forced the applicants to prepare rebuttal testimony. The Commission found that Trees’ belief that it could not be included in the Unit was an erroneous conclusion of Trees’ own making.
The Commission, as the trier of fact, must be given wide latitude and discretion in establishing time limits and admitting evidence. Trees was given several extensions of the initial hearing date, and the denial of Trees’ request is not unreasonable, arbitrary, or capricious.
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|
The opinion of the court was delivered by
Beier, J.:
Defendant Joshua Robertson was convicted of first-degree murder, arson, and aggravated burglary in the killing of Patricia Self and the burning of her home. He received a hard 50 life sentence. He appeals his first-degree murder conviction and sentence.
Robertson raises seven issues before this court: (1) Did the district court err in overruling his motion to suppress his statements to law enforcement? (2) Did the prosecutor commit reversible misconduct during closing argument? (3) Was the evidence sufficient to prove first-degree premeditated murder? (4) Should the district court have instructed the jury on voluntary manslaughter? (5) Did cumulative errors deny defendant a fair trial? (6) Was the evidence sufficient to support a hard 50 sentence? and (7) Is the hard 50 sentencing statute constitutional?
Facts
This case began when Roger and Patricia Self s home in Augusta burned, and fire investigators discovered human remains inside. Roger Self was located at his place of employment, but the whereabouts of his wife, Patricia, and the Selfs’ adult daughter, Jennifer, who was living with the Selfs, were not immediately known. Because authorities could not make a positive identification of the remains, Officer Drew Reed was dispatched to locate Jennifer and her boyfriend, defendant Robertson.
Jennifer and Robertson had been dating approximately 1 month before the fire, and Roger described Jennifer as obsessed with the relationship, despite his and his wife’s disapproval. Robertson had been permitted to stay the night at the Selfs’ home on a couple of occasions earlier in the relationship, but he was no longer welcome to visit after Roger caught him in the same bed with Jennifer.
About 1 week before the fire, Jennifer argued with her parents about letting defendant visit their home again. She became violent and used a small knife to stab books and magazines in her room. Roger took the knife away and hid all of the knives in the house. He was frightened because Jennifer had tried to cut her wrists in the past. The Selfs did not see Jennifer for a couple of days leading up to the fire.
Robertson had been living with his grandparents, where he and Jennifer sometimes spent the night. Also approximately 1 week before the fire, defendant’s grandmother called Patricia to tell her that she had overheard a disturbing conversation between Robertson and Jennifer. Robertson had said “something about making [Jennifer’s] parents disappear.”
The day before the murder, Patricia made homemade bread, and Roger retrieved a serrated bread knife from its hiding place for her to use. They did not rehide the knife after using it; but, before going to bed, Roger made sure that all of the doors and windows of the home were locked. Jennifer did not have a key.
At approximately 3:30 on the morning of the murder, Robertson and Jennifer walked to the Selfs’ home. They arrived about 5 a.m., shortly after Roger left for work. They had a box cutter and a pocket knife with them and cut the telephone line. After they were unable to enter the house through a window, Jennifer knocked on the door. Her mother answered, and Jennifer rushed inside and started cutting Patricia with a knife. Robertson followed Jennifer, and he and Jennifer got Patricia into a chair and stabbed her. Jennifer retrieved the bread knife from the kitchen and began to stab her mother with it. Robertson described his and Jennifer’s actions as “slice, slice, slice; stab, stab, stab.”
At some point during the attack, Robertson’s left hand was cut. While he and Jennifer attended to his hand, Patricia attempted to escape by crawling toward the front door. Robertson and Jennifer each grabbed one of Patricia’s legs and pulled her toward the middle of the living room. Patricia was then lying on her back, making gurgling noises. Robertson and Jennifer stomped on her neck and face until she stopped.
The attack left blood everywhere, according to Robertson. He took a shower, and Jennifer cleaned his boots. Then they placed his bloody clothes on the couch and doused it with alcohol. They took a credit card from Patricia’s purse, lit the couch on fire, and left.
Fire investigators later concluded the fire in the Selfs’ home was set intentionally with a flammable liquid or accelerant. The bread knife was found under Patricia’s hips. The pocket knife was found under the remains of clothing. The box cutter also was found in the debris.
A forensic pathologist testified at Robertson’s trial that she was unable to make an accurate external examination of all of the injuries Patricia suffered because of the severity of her burns. However, the pathologist was able to detect some injuries and to determine that Patricia had died before the fire was started. The pathologist noted that Patricia suffered several fractures to her face and at the base of her brain. She also endured a blunt force injury to the back of her head, consistent with the head hitting a firm surface. She suffered multiple stab wounds to the face and neck, including a wound to her left jugular vein and a wound under her right eyelid across her face and into her brain. Her hyoid bone was fractured; the injury was consistent with “manual strangulation or blunt force injury of the neck.” In all, Patricia suffered seven facial fractures, and the pathologist testified that the face and neck fractures could be consistent with stomping or kicking.
On the morning of the murder and fire, immediately upon being detained, Robertson asked Officer Reed if he was under arrest and if he could have a court-appointed lawyer. Reed had not given Miranda warnings to Robertson because he had not intended to question him; he was merely responsible for transporting him to die sheriff s department. Reed advised Robertson that he was not under arrest, that he was only being detained for questioning, and that he should talk to interviewing officers about getting a court-appointed attorney.
Robertson was placed in an interrogation room with an activated video recording device. Reed waited in the room with Robertson but did not question him. During a part of the time the two men waited for other investigators to arrive, emergency medical technicians treated Robertson’s hand. Robertson made repeated remarks to Reed about his love for Jennifer and her motive for committing the crime. He asked Reed about the case and asked again if he would be appointed an attorney. Robertson also asked what the charges were and what the bond would be. Reed again responded that defendant would have to wait for the interviewing officers to find out more information and that he did not know if there were any charges. Defendant then asked Reed what the bond was for premeditated murder. Reed responded that he did not know.
When investigating officer Kelly Herzet arrived, Reed left. Reed did not tell Herzet that Robertson had requested a court-appointed attorney. Herzet also did not know that the remains had been or would be identified as Patricia.
Before Herzet could ask Robertson his name, Robertson said: “What’s the motive? I tried to stop her. She cut my hand through my gloves. What was her motive?” Robertson asked again about a court-appointed attorney and said immediately that Jennifer had cut the phone line. Herzet interrupted defendant and asked his name, but defendant kept talking. Herzet then pulled out a form so that he could go over the Miranda rights with Robertson. Robertson told Herzet that he was not going to sign a waiver and that he wanted a lawyer present. Before Herzet could say anything, Robertson said that his girlfriend had “pulled some stunt” today, that he had gotten cut, and that he was “just an acquaintance, or an accomplice, I don’t know.” Herzet then said, “We need to talk about that,” and Robertson said, “I can’t speak until I have an attorney.” Herzet responded: “OK.”
Robertson then began talking again, remarking that he loved someone “so much." Herzet asked him who he was talking about, and Robertson said “Jennifer.” Herzet then said he needed to read the rights form, which would protect Robertson. He also told Robertson that he could mark the form to document that he did not want to talk to law enforcement without an attorney. Herzet specifically said that marking the form would not mean that Robertson had to talk to him. Robertson continued talking despite his expressed intention to wait for an attorney. He told Herzet that he had marked the form to say he would talk but “whether or not I decide to answer certain questions is my decision.” Herzet responded, “That is so correct.” The form had been signed within 5 minutes of Herzet arriving to talk to defendant.
Herzet then interviewed Robertson for approximately 4 hours. The officer brought Robertson lunch, gave him a soda break, and gave him restroom breaks whenever Robertson needed to do so. Herzet also asked Robertson several times if he needed to go to the hospital for further treatment of his hand, but defendant said he did not need to go. Herzet testified later that Robertson never refused to talk. Sometimes, he would state, “I’ll take it up with the Judge,” but Herzet understood that Robertson wanted to continue tire interview. Robertson ultimately described the crimes, claiming they were primarily Jennifer’s fault. He was then arrested.
A third officer, Glenn Hopper, arrived to assist Herzet and to take Robertson to the hospital. Hopper placed Robertson in handcuffs and recited the Miranda warnings because Robertson kept saying that he was being charged with first-degree murder. While en route to the hospital, Robertson kept asking Hopper, “Where is your evidence?” Hopper did not question Robertson. Finally, after being asked repeatedly about evidence, Hopper replied that a body was found at the burned house, and this was the evidence. Robertson then said, “First-degree murder? I was just helping my girlfriend. I was just with my girlfriend.” Hopper then gave Robertson the Miranda warnings again.
When Hopper and Robertson arrived at the hospital, defendant continued talking and began to yell, repeating, “Where is your evidence?” and saying he was just trying to stop his girlfriend from stabbing her mother. Robertson began adding details to his descriptions, and Hopper again Mirandized him. Nurses moved them from waiting room to a treatment room, and Robertson announced to a nurse that he was being charged with first-degree murder. Hopper asked Robertson to refrain from telling the nurse about his charges, and the nurse left; but Robertson continued talking. After a few minutes, he also asked about Jennifer, saying he was afraid she might be blaming him for what happened. Hopper said he was unaware of anything she had said or done. Robertson then asked Hopper if telling Hopper what had happened would help his case. Hopper again advised Robertson of his rights and said he should tell the truth if was going to say anything. Robertson then began to describe tire morning’s events, but Hopper interrupted, asking him if he wanted to write his statement down. Hopper could not write as fast as Robertson was talking. Robertson agreed to write his statement, which reads:
“Jennifer and I walked to her home. She cut the phone line. She then tryed [sic] ail the doors to get in to her home. She then knocked on tire door, her mom opened it. She rushed her mom with a box cutter. She then went to the kitchen to get a bigger knife. Her mom tryed [sic] to crawl out of the house. Jennifer then started stabing [sic] her mom, I tryed [sic] to taire the big knife from Jennifer and got my left hand cut. I then spaced out and stabed [sic] her mom 2 or 3 times with the big knife. Her mom was gurgling or chocking [sic] on blood. Jennifer then stomped her mom in tire face and throat. Her mom stoped [sic] gurgling or chocking [sic] on blood. Jennifer then told me to stomp her mom, I did not check the pulse before I started to stomp her mom but I think that she was dead when I started to stomp her mom because I did not hear any gurgling or chocking [sic] when I started. [Signed,] Josh Robertson.”
Robertson moved to suppress his oral statements to Herzet and Hopper and his written statement. The defense argued that Herzet should have walked away as soon as Robertson requested a lawyer without ever giving him tire Miranda form. In addition, the defense argued that Hopper induced defendant to make a written statement by telling defendant that the truth could help his case.
The district judge denied the motion to suppress. The judge determined that Robertson was in custody at the time he was driven to the police station and that he had made repeated clear and unequivocal requests for an attorney. However, in between those requests, Robertson repeatedly began to talk about the case again: “In one breath, he would say I want a lawyer, in the next breath he would say I tried to stop her. I cut my gloves. She started the fire.” The judge also noted that the only person asking questions was Robertson. Any confusion Herzet had about Robertson s intentions was therefore understandable, and he effectively gave the Miranda warnings, including a clear statement that he would walk away if Robertson checked the appropriate box to say he did not want to talk. On these facts, the district judge found Robertson voluntarily and freely signed a waiver of his Miranda rights, and the interrogation by Herzet did not actually begin until then.
The district judge also found that Hopper had not induced Robertson to make a statement. Robertson had instigated the conversation and asked Hopper if telling the truth would help his case. He had received the Miranda warnings numerous times. The making of another statement was at Robertson’s suggestion, not Hopper’s.
During the instructions conference at trial, Robertson requested an instruction on voluntary manslaughter as a lesser included offense. He asserted that there was sufficient evidence to show that, when Jennifer attacked her mother and cut his hand, an extreme emotional circumstance resulted. The instruction would have read:
“In determining whether the defendant is guilty of murder in the second degree, you should also consider the lesser offense of voluntary manslaughter. Voluntary manslaughter is an intentional killing done (upon a sudden quarrel) (in the heat of passion) (upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of [a person] [a dwelling] [property]).
“If you decide the defendant intentionally killed [Patricia Self], but that it was done (upon a sudden quarrel) (in the heat of passion) (upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of [a person] [a dwelling] [property]), the defendant may be convicted of voluntary manslaughter only.” PIK Crim. 3d 56.05.
The district court rejected defendant’s request, finding that, if defendant’s version were believed, any provocation that existed was solely between Jennifer and her mother; an ordinary person experiencing an extreme emotional reaction would not have begun to participate in Jennifer’s crimes. The district judge did instruct on second-degree murder, a voluntary but not premeditated crime. The State requested an instruction setting forth factors from which premeditation may be inferred. This instruction is not included in PIK but the language has been recited in several Kansas cases, including State v. Pabst, 268 Kan. 501, 512-13, 996 P.2d 321 (2000), which reads:
“Premeditation may be inferred from various circumstances, including: (1) the nature of the weapon used; (2) the lack of provocation; (3) the defendant’s conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; or (5) the dealing of lethal blows after the deceased was felled and rendered helpless.”
The district judge rejected the State’s request, finding the PIK definition sufficient. The judge agreed the requested instruction was a correct statement of Kansas law and said the State could argue the factors included in the definition during closing. The prosecutor then used an overhead projection of the rejected instruction language during closing and argued that premeditation could be inferred from the circumstances. A defense objection to this procedure was overruled. The district judge noted that the language was merely a paragraph with no instruction number or case citation. Later, when the jury asked for a copy of the language during its deliberations, the judge denied the request, characterizing the language as “simply part of the prosecution’s final argument.”
After the jury found defendant guilty of first-degree murder, arson, and aggravated burglary, the district judge imposed a hard 50 sentence for the first-degree murder conviction. The judge found one aggravating factor — that the crime was committed in an especially “heinous, atrocious, or cruel” manner — because Patricia had suffered a long and torturous death and her body and the house had been set on fire. The district judge also noted that Patricia was aware of what was happening because she tried to escape from her attackers. In the district judge’s view, the “heinous, atrocious or cruel” finding was supported because there had been infliction of mental anguish or physical abuse before the victim’s death; there had been torture of the victim; and acts of violence had begun before or continued after the killing. See K.S.A. 2004 Supp. 21-4636(f)(3), (4), (5).
The defense argued that several mitigating factors applied, but the district judge rejected each. The judge noted Robertson’s three prior convictions and found one, a felony conviction for aggravated indecent solicitation of a child, to be significant. The judge also rejected Robertson’s contention that he committed the offense while he was under extreme emotional influence. The judge noted Robertson’s demeanor during the videotaped interrogation demonstrated otherwise. In addition, the judge considered that Robertson had been examined by medical professionals to determine if he suffered from a mental disease or defect and yet there was no such evidence at trial. The court also dismissed Robertson’s age of 21 as a mitigating factor.
Motion to Suppress
“In reviewing a trial court decision regarding the suppression of an accused’s statements, ‘[this court examines] the factual underpinnings of the decision by a substantial competent evidence standard of review and review[s] the ultimate legal conclusion drawn from those facts de novo with independent judgment.’ ” State v. Walker, 276 Kan. 939, 944, 80 P.3d 1132 (2003). We are not free to reweigh the evidence and redetermine facts. State v. Alvidrez, 271 Kan. 143, 145, 20 P.3d 1264 (2001).
The State and the defendant agree that the defendant was in custody at all relevant times.
The rules regarding custodial interrogations and an accused’s constitutional rights are well established. The right against self- incrimination, including the right to have a lawyer present during custodial interrogation and the right to remain silent, is guaranteed by the Fifth Amendment to the United States Constitution. The United States Supreme Court requires that any waiver of these rights be knowing and intelligent. Walker, 276 Kan. at 944.
An accused may invoke his or her right to counsel at any time. The accused must make “ ‘some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.’ ” Walker, 276 Kan. at 944 (quoting McNeil v. Wisconsin, 501 U.S. 171, 178, 115 L. Ed. 2d 158, 111 S. Ct. 2204 [1991]). There are two aspects to this rule: “[T]he suspect ‘must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney’ . . .[and] the request must be for assistance with the custodial interrogation, not for subsequent hearings or proceedings.” Walker, 276 Kan. at 945.
The first part of the rule is governed by an objective standard: “If the desire for counsel is presented ‘sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney,’ no ambiguity or equivocation exists, and all questions must cease.” Walker, 276 Kan. at 945. This court has stated that “it is good practice for the interrogator to ask clarifying questions” if an accused makes an ambiguous request for counsel; “however, it is not required and the questioning may continue.” Walker, 276 Kan. at 945.
Once the accused has unambiguously invoked his or her right to counsel, questioning must cease. “Questioning can be resumed only after a lawyer has been made available or the suspect reinitiates conversation.” Walker, 276 Kan. at 946. To ascertain whether the accused has waived a previously invoked right, “the court must first determine whether the accused actually invoked the right and, if so, whether the accused (1) initiated further discussions with police and (2) knowingly and intelligently waived the previously asserted right.” Walker, 276 Kan. at 946-47. The State bears the burden of proving that the waiver of the previously asserted right was “knowing, voluntary, and intelligent under the totality of the circumstances.” Walker, 276 Kan. at 947. This cannot be shown by establishing that the accused “responded to further police-initiated custodial interrogation even if he has been advised of his rights[, and] . . . the accused’s statements must evince ‘a willingness and a desire for a generalized discussion about the investigation’ and "not merely [be] a necessary inquiry arising out of the incidents of the custodial relationship.’ ” Walker, 276 Kan. at 947 (quoting Oregon v. Bradshaw, 462 U.S. 1039, 1045-46, 77 L. Ed. 2d 405, 103 S. Ct. 2830 [1983]).
Under the facts of this case, Robertson made repeated requests for a lawyer, and Herzet demonstrated by his responses that he understood Robertson desired a lawyer’s assistance. Although it was not completely clear that Robertson wanted a lawyer to be present for interrogation rather than later proceedings, we hold there was a valid waiver regardless.
As the district court recognized, before Herzet asked Robertson a single question about the crime, Robertson was blaming Jennifer and questioning her motive. Indeed, every time Robertson mentioned an attorney, he spontaneously reinitiated conversation with the officers about the crimes. Specifically, after Herzet was finally able to deliver the Miranda warnings, Robertson disclosed how he and Jennifer set the fire. This disclosure was not prompted by questioning from Herzet. Herzet then asked Robertson if he wanted to continue talking about the case. Robertson responded that he had signed the Miranda form and would speak with Herzet but might not answer all of his questions. He also advised Herzet that he had been arrested before and therefore understood his Miranda rights and his ability to waive them.
We conclude under the totality of the circumstances that the facts found by the trial court were supported by substantial competent evidence, and we arrive at the independent legal conclusion that Robertson’s motion to suppress his statement to Herzet was properly denied.
We are of a similar mind regarding Robertson’s oral statement to Hopper and his written statement. Robertson received his Miranda warnings from Hopper time and time again. In the face of those warnings, his behavior virtually defined the old phrase, “a compulsion to confess.” Robertson repeatedly reinitiated general discussion of the offense and his role in it. Hopper, finally, merely cautioned Robertson to tell the truth. Again, under the totality of the circumstances, we see substantial competent evidence to support the district court’s factual findings and are satisfied that, as a matter of law, Robertson’s motion to suppress his oral statement to Hopper and his written statement merited denial.
Prosecutorial Misconduct
Robertson next argues the prosecutor committed misconduct by showing the jury language on the definition of premeditation, when an instruction using that language had been proposed and rejected. He asserts the instruction misstated the law and confused the jury because it conflicted with the PIK definition of premeditation already given. This confusion, he contends, was evidenced by the jury’s later request for a copy of the language during deliberations.
Our pattern of review for prosecutorial misconduct claims is well known:
“A two-step analysis is applied to allegations of prosecutorial misconduct. First, the court decides whether the prosecutor s comments were outside the wide latitude allowed in discussing the evidence. Second, the court must decide whether the comments constitute plain error, that is, whether the statements are so gross and flagrant as to prejudice the jury against the defendant and deny him or her a fair trial, thereby requiring reversal. The facts of each case must be scrutinized in determining whether a prosecutor s remarks deny the defendant a fair trial. If the prosecutor’s statements rise to the level of violating a defendant’s right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs without regard to a contemporaneous objection.” State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004).
Robertson’s claim of misconduct is without merit. The language used by the State regarding premeditation was a correct and often-repeated statement of Kansas law. See State v. Boone, 277 Kan. 208, Syl. ¶ 10, 83 P.3d 195 (2004); State v. Hebert, 277 Kan. 61, 84, 82 P.3d 470 (2004); State v. Hoge, 276 Kan. 801, 814-15, 80 P.3d 52 (2003); Pabst, 268 Kan. at 512-13. It does not contain a definition of premeditation contraiy to that in PIK. It merely offers factors a jury may consider in determining whether the PIK definition was met in a given case. The jury’s question is more consis tent with its members finding the language helpful rather than confusing.
The prosecutor’s comments and use of tire overhead projector to show the jury the language on premeditation factors were well within the wide latitude granted the State during closing argument. The prosecutor relied on established Kansas law and drew reasonable inferences from the evidence. There was no misconduct; thus we do not reach tire question of plain error.
Sufficiency of Premeditated Murder Evidence
Robertson argues that there was insufficient evidence to prove first-degree murder beyond a reasonable doubt because of lack of proof on premeditation. He emphasizes he was surprised by Jennifer’s attack on her mother and, when he tried to stop it, he was injured. He thought he and Jennifer went to the house only to get clothes and food and to see tire cat.
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to tire prosecution, the appellate court is convinced Ürat a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003). “Circumstantial evidence may establish even the gravest offenses.” State v. Davis, 275 Kan. 107, 118, 61 P.3d 701 (2003) (citing State v. Murillo, 269 Kan. 281, 286, 7 P.3d 264 [2000]).
As we obseived above in relation to Robertson’s prosecutorial misconduct claim, it is correct that “[premeditation may be inferred by the jury from various circumstances, including (1) the nature of the weapon used, (2) tire lack of provocation, (3) the defendant’s conduct before and after the killing, (4) threats and declarations of the defendant before and during the occurrence, or (5) the dealing of lethal blows after tire deceased was felled and rendered helpless.” Boone, 277 Kan. 208, Syl. ¶ 10.
In this case, when the evidence is viewed in the light most favorable to the prosecution, several of these factors are present: (1) Robertson made a threat against Jennifer’s parents, and her parents’ behavior demonstrated fear of him and Jennifer; (2) Robert son was carrying one of the knives used to stab Patricia; (3) the phone line was cut before Jennifer knocked on the door; (4) Robertson participated in stabbing Patricia; (5) after stabbing Patricia numerous times, Jennifer retrieved a bigger knife; (6) Patricia tried to crawl away, but Jennifer and defendant grabbed her feet and pulled her back into the living room; (7) they then stomped on Patricia’s head and neck until she stopped making gurgling noises; (8) Robertson took a shower and tended to his cut hand as Patricia lay on the floor dying or already dead; (9) he and Jennifer used an accelerant and set the house on fire; and (10) the attack on Patricia was unprovoked.
We have no hesitation in concluding that the State presented ample evidence of premeditation. A reasonable juror could have found the defendant guilty of first-degree murder beyond a reasonable doubt.
Voluntary Manslaughter Instruction
Robertson next challenges the district judge’s refusal to instruct on voluntary manslaughter.
“In a criminal action, a trial court must instruct the jury on the law applicable to the defendant’s theories for which there is supporting evidence. When considering the refusal of the trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction. [Citation omitted.]” State v. Gholston, 272 Kan. 601, 615, 35 P.3d 868 (2001), cert. denied 536 U.S. 963 (2002).
“A defendant is entitled to an instruction on his or her theory of the case even though the evidence thereon is slight and supported only by the defendant’s own testimony. [Citation omitted.]” State v. Barnes, 263 Kan. 249, 265, 948 P.2d 627 (1997).
Voluntary manslaughter is defined by K.S.A. 21-3403(a) as: “[T]he intentional killing of a human being committed . . . [u]pon a sudden quarrel or in the heat of passion.”
Heat of passion is defined as “any intense or vehement emotional excitement which was spontaneously provoked from circumstances. Such emotional state of mind must be of such degree as would cause an ordinary person to act on impulse without reflection.” PIK Crim. 3d 56.04(e).
“ “Whether a provocation is legally sufficient is an objective, rather than a subjective, determination. To be legally sufficient to intentionally kill an individual, a provocation must consist of more than mere words or gestures, and if assault or battery is involved the defendant must have a reasonable belief that he or she is in danger of great bodily harm or at risk of death. A provocation is legally sufficient if it is calculated to deprive a reasonable person of self-control and to cause the person to act out of passion rather than reason.’ ” State v. Ordway, 261 Kan. 776, 785, 934 P.2d 94 (1997) (quoting State v. Cheeks, 258 Kan. 581, Syl. ¶ 7, 908 P.2d 175 [1995]).
Even when viewed in the light most favorable to Robertson, the evidence did not support an instruction on voluntary manslaughter. According to Robertson’s statements, Jennifer attacked her mother. When he tried to stop her, he was cut. He then joined in, apparently without reservations — stabbing Jennifer’s mother, pulling her back into the living room when she tried to crawl away, and stomping on her neck and face to silence her. A cut to the hand is not sufficient provocation for an ordinary person to lose all self-control and participate in this grisly homicide or the setting of a fire designed to cover it up.
Further, even if the failure to give the instruction would otherwise have constituted error, the “skip rule” precludes reversal. See State v. Horn, 278 Kan. 24, 43, 91 P.3d 517 (2004). Horn, 278 Kan. at 43, states: “When a lesser included offense has been the subject of an instruction, and the juiy convicts of the greater offense, error resulting from failure to give an instruction on another still lesser included offense is cured. [Citations omitted.]”
In this case, the jury was instructed on first-degree murder and the lesser included offense of second-degree murder. The jury found defendant guilty of first-degree murder. Because the jury failed to find the defendant guilty of the lesser included offense of second-degree murder, the judge’s refusal to give the still lesser included instruction on voluntary manslaughter cannot be reversible error.
Cumulative Error
Robertson’s last attack on his murder conviction rests on the doctrine of cumulative error. See State v. Plaskett, 271 Kan. 995, 1022, 27 P.3d 890 (2001).
Having found no error, as discussed above, we cannot conclude Robertson’s trial was infected by reversible cumulative error.
Sufficiency of Hard 50 Evidence
Robertson’s first challenge to his hard 50 sentence asserts that the district judge lacked substantial, competent evidence to support the aggravating factor of a heinous, atrocious, or cruel murder; that the judge failed to credit several pertinent mitigating factors; and that the required statutory balance between aggravating and mitigating factors therefore tipped the wrong direction. See K.S.A. 2004 Supp. 21-4635.
K.S.A. 2004 Supp. 21-4636 sets forth circumstances that can lead to a finding that a defendant committed a murder in an especially heinous, atrocious, or cruel manner.
“(f) ... A finding that the victim was aware of such victim’s fate or had conscious pain and suffering as a result of the physical trauma that resulted in the victim’s death is not necessary to find that the manner in which the defendant killed the victim was especially heinous, atrocious or cruel. In making a determination that the crime was committed in an especially heinous, atrocious or cruel manner, any of the following conduct by the defendant may be considered sufficient: ... (3) infliction of mental anguish or physical abuse before the victim’s death; (4) torture of the victim; [and] (5) continuous acts of violence begun before or continuing after the killing.”
Our standard of review is “whether, after a review of all the evidence, viewed in the light most favorable to the State, a rational factfinder could have found by a preponderance of the evidence the existence of the aggravating circumstance.” State v. Spain, 263 Kan. 708, Syl. ¶ 6, 953 P.2d 1004 (1998).
When the evidence in this case is viewed in the light most favorable to the State, it supports a finding that the murder of Patricia Self was committed in an especially atrocious, heinous, or cruel manner. Robertson and Jennifer held Patricia down and repeatedly stabbed her. When Patricia tried to crawl away, Jennifer and Robertson grabbed her and pulled her back. When she made a gurgling noise, they stomped on her face and neck to silence her. They then used an accelerant to set her house on fire. These facts meet the standards set out in K.S.A. 2004 Supp. 21-4636(f)(3), (4), and (5).
Our standard of review on the district judge’s weighing of aggravating and mitigating factors is abuse of discretion. See State v. Boldridge, 274 Kan. 795, Syl. ¶ 10, 57 P.3d 8 (2002), cert. denied 538 U.S. 950 (2003). “Judicial discretion is abused . . . when no reasonable person would have taken the position that was taken by the trial court. [Citation omitted.]” Hebert, 277 Kan. at 77.
The record contradicts Robertson’s assertions about the inadequacy of the district judge’s weighing. The judge carefully considered the mitigating factors proposed by the defense before rejecting them. In addition, the judge exphcitly performed the proper weighing analysis on the record. K.S.A. 2004 Supp. 21-4635(d) requires that the district court must determine whether the aggravating factors are outweighed by the mitigating factors. Here, the district judge weighed the one aggravating factor — that the crime was committed in an especially heinous, atrocious, or cruel manner — against the absence of any persuasive mitigating factors. There was no abuse of discretion.
Hard 50 Constitutionality
Robertson’s final issue is the constitutionality of the hard 50 sentencing scheme. He urges us to revisit our decision in State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001), in light of the United States Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466, 494, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and Jones v. United States, 526 U.S. 227, 243, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999).
This court has considered the cited Supreme Court decisions and nevertheless upheld the hard 50 sentence and Conley as constitutional. See, e.g., State v. Wilkerson, 278 Kan. 147, 160, 91 P.3d 1181 (2004); Hebert, 277 Kan. at 108; State v. Boldridge, 274 Kan. 795, 812, 57 P.3d 8 (2002), cert. denied 538 U.S. 950 (2003). We decline to do otherwise now.
Affirmed.
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The opinion of the court was delivered by
Beier, J.:
This appeal involves modification, termination, and reinstatement of spousal maintenance in this divorce proceeding.
The parties, Nancy and Steven Harbutz, were granted a divorce on September 20, 2001, with the issue of spousal maintenance, among others, reserved for later decision. Four days later, an arbitrator s award ordering Steven to pay Nancy spousal maintenance in the amount of $450 a month until June 2007 was filed with the court. The award provided that the “spousal maintenance shall be terminable on the death of [Nancy] or upon the remarriage of [Nancy]; the spousal maintenance subject to modification in the event of a material change in circumstances pursuant to K.S.A. 60-1610.”
Steven lost his job in February 2002, and he filed a motion to modify the maintenance award. When the motion was heard by Judge David Dewey in May 2002, Steven had obtained a new job but at a substantially reduced salary. Steven’s counsel therefore argued for termination of maintenance; Nancy’s counsel argued for maintenance to be continued until the marital residence was. sold. Judge Dewey ruled that maintenance would be “terminated” at the sale of the residence, but he also said he would reserve jurisdiction “to change this” and added: “[Ijt’s not a final order on spousal maintenance.”
The journal entry recording the outcome of the hearing on Steven’s motion to modify maintenance, which was drafted by Steven’s counsel and signed by both counsel, said only that spousal maintenance would terminate at the sale of the residence. It did not record Judge Dewey’s further comments at the hearing about reserving jurisdiction or the lack of finality of the order.
In October 2002, the parties’ marital residence was sold, and Steven stopped making spousal maintenance payments to Nancy.
In February 2003, Steven filed a motion to terminate maintenance, asking that any order become retroactively effective November 1, 2002. This motion was never heard or ruled upon.
The following month, Nancy, who by then had also lost her job, filed a motion to reinstate maintenance. Judge Anthony J. Powell heard the motion to reinstate. At this hearing, neither side provided him with a copy of the transcript of the earlier hearing before Judge Dewey. Relying on the journal entry memorializing that hearing, Judge Powell ruled that spousal maintenance terminated permanently at the sale of the residence and that he had no jurisdiction to consider the reinstatement sought by Nancy. He wrote:
“[Judge Dewey’s] order of June 26, 2002, consistent with the arbitration award and K.S.A. 60-1610(b)(2), had the effect of terminating all spousal maintenance effective November 1,2002, because the parties’ marital residence sold in October of 2002.
“Because K.S.A. 60-1610(b)(2) prohibits the reinstatement of maintenance after the expiration of the time for maintenance payments in a subsequent order, respondent’s effort to reinstate maintenance is out of time as it was filed after November 1,2002. . . . [Judge Dewey’s] subsequent order . . . specifically cut off maintenance and did not retain jurisdiction. Therefore, respondent was required to seek any reinstatement of spousal maintenance prior to the sale of the marital residence. Since that did not happen, this Court no longer has jurisdiction to consider any modification of spousal maintenance.”
A panel of our Court of Appeals affirmed Judge Powell’s ruling, also without benefit of a transcript of the hearing before Judge Dewey. The panel ruled the original award’s express reservation of jurisdiction to modify maintenance payments “included the authority to change the termination date of payments.” In re Marriage of Harbutz, No. 91,024, an unpublished opinion filed May 28, 2004. When Judge Dewey held that payments would be terminated at the close of the sale of the home, his decision superseded the termination date of May 2007 in the original decree. Nancy’s motion was therefore required to be filed before the closing on the sale of the home.
After this court granted Nancy’s petition for review, we permitted her counsel to add the transcript of the hearing before Judge Dewey to the record on appeal.
The only issue the parties present for this court’s review is whether the district court had jurisdiction to consider reinstatement of maintenance after the residence was sold. “[W]hether jurisdiction exists is a question of law over which the appellate court’s scope of review is unlimited.” In re Care & Treatment of Searcy, 274 Kan. 130, 141, 49 P.3d 1 (2002). In addition, the necessity for us to interpret K.S.A. 2003 Supp. 60-1610(b)(2), which governs the issue, gives this court de novo review. See Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004) (statutory interpretation).
K.S.A. 2004 Supp. 60-1610(b)(2) states in relevant part:
“Maintenance. The decree may award to either party an allowance for future support denominated as maintenance, in an amount the court finds to be fair, just and equitable under all of the circumstances. The decree may make the future payments modifiable or terminable under circumstances prescribed in the decree .... In any event, the court may not award maintenance for a period of time in excess of 121 months. If the original court decree reserves the power of the court to hear subsequent motions for reinstatement of maintenance and such a motion is filed prior to the expiration of the stated period of time for maintenance payments, the court shall have jurisdiction to hear a motion by the recipient of the maintenance to reinstate the maintenance payments. Upon motion and hearing, the court may reinstate the payments in whole or in part for a period of time, conditioned upon any modifying or terminating circumstances prescribed by the court, but the reinstatement shall be limited to a period of time not exceeding 121 months. The recipient may file subsequent motions for reinstatement of maintenance prior to the expiration of subsequent periods of time for maintenance payments to be made, but no single period of reinstatement ordered by the court may exceed 121 months. . . . At any time, on a hearing with reasonable notice to the parly affected, the court may modify the amounts or other conditions for the payment of any portion of the maintenance originally awarded that has not already become due, but no modification shall be made without the consent of the party liable for the maintenance, if it has the effect of increasing or accelerating the liability for the unpaid maintenance beyond what was prescribed in the original decree.”
Before reaching the parties’ arguments over whether Judge Powell had the power to reinstate maintenance, we must first address whether Judge Dewey had the power to terminate maintenance permanently, as Steven insists he had and, in fact, did. If Judge Dewey lacked power to permanently terminate maintenance, then it matters not whether we consider his exact wording from the bench or only the journal entry signed by both counsel. He could not do what he had no power to do.
To determine this question, we first note that the governing statute plainly differentiates between a decree or award preserving power to modify versus one preserving power to terminate. See K.S.A. 2003 Supp. 60-1610(b)(2) (decree may make future payments modifiable or terminable under circumstances prescribed in the decree).
We then reexamine the language on maintenance in the arbitrator’s award before us. It reads: “[Sjpousal maintenance shall be terminable on the death of [Nancy] or upon the remarriage of [Nancy]; the spousal maintenance shall be subject to modification in the event of a material change in circumstances pursuant to K.S.A. 60-1610.”
The award explicitly set forth a condition under which maintenance could be modified during its original term, i.e., “a material change in circumstances” as that phrase has been interpreted under 60-1610. But the award neither explicitly nor implicitly permitted maintenance to be terminated permanently within the original term unless Nancy died or remarried.
Thus, on the facts of this case, Judge Dewey lacked jurisdiction under 60-1610(b)(2) to permanently terminate spousal maintenance during the time period originally set for its payment. Any termination he attempted during that time period was subject to further modification, and Judge Powell was free to order that maintenance resume or continue upon an appropriate showing in a subsequent hearing. Because Judge Powell did not understand that he possessed this power, this case must be reversed and remanded for his reconsideration.
The district court and the Court of Appeals are reversed, and the case is remanded for further proceedings consistent with this opinion.
Gernon, J., and Nuss, J., not participating.
Larson, S.J., and Jackson, S.J., assigned. | [
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|
The opinion of the court was delivered by
Davis, J.:
Ruben de la Cerda pled guilty to one count of possession of cocaine after a previous conviction pursuant to K.S.A. 65-4160. Subsequently, the Kansas Legislature enacted S.B. 123, statutory sentencing amendments, which became effective prior to sentencing in this case. See L. 2003, ch. 135. The district court sentenced the defendant under the statute which was effective on the date of the commission of the crime. The defendant appeals, claiming that S.B. 123 applies. We affirm.
The defendant was charged with one count of possession of cocaine after a previous cocaine conviction and possession of drug paraphernalia regarding an incident that occurred on October 18, 2002. The defendant pled guilty to possession of cocaine after a previous conviction in violation of K.S.A. 65-4160 in exchange for the dismissal of the possession of drug paraphernalia charge. The parties agreed to jointly recommend a dispositional departure to community corrections probation.
The defendant did not appear for the original sentencing hearing scheduled for April 24, 2003, and a bench warrant was issued. He was taken into custody on August 16, 2003, and sentencing was scheduled for October 31, 2003. At this hearing, in support of the motion for dispositional departure, the defense pointed out to the court that if the defendant was sentenced the next day, S.B. 123 (L. 2003, ch. 135, sec. 1) would control, with a sentence to community corrections, placement in a drug treatment program, and an underlying term of imprisonment in the category 4-D. The district court continued the sentencing hearing on its own motion until December 17, 2003, in order to resolve issues raised concerning the defendant’s request for a dispositional departure and defendant’s failure to appear for his original sentencing.
Prior to sentencing, the defendant filed a motion for durational departure on the basis of S.B. 123. The defendant argued that S.B. 123 made his crime a severity level 4-D nonperson felony instead of a level 2-D nonperson felony. He further argues that he fits the target population of S.B. 123, which calls for drug treatment instead of incarceration for certain offenders.
At the sentencing hearing on December 16, 2003, the district court disagreed and denied the defendant’s motions for dispositional and durational departure. The court sentenced the defendant to 51 months’ imprisonment with a postrelease supervision period of 36 months, consistent with the law in effect at the time the defendant committed his offenses, K.S.A. 2002 Supp. 21-4705. We transferred the case by our own motion pursuant to K.S.A. 20-3018(c).
Is the defendant entitled to application of the statutory provisions enacted by S.B.123?
S.B. 123 enacted K.S.A. 2003 Supp. 21-4729, which provides:
“On and after November 1, 2003: (a) There is hereby established a nonprison sanction of certified drug abuse treatment programs for certain offenders who are sentenced on or after November 1, 2003. Placement of offenders in certified drug abuse treatment programs by the court shall be limited to placement of adult offenders, convicted of a felony violation of K.S.A. 65-4160 or 65-4162, and amendments thereto:
“(1) Whose offense is classified in grid blocks 4-E, 4-F, 4-H or 4-I of the sentencing guidelines grid for drug crimes and such offender has no felony conviction of K.S.A. 65-4142, 65-4159, 65-4161, 65-4163 or 65-4164, and amendments thereto or any substantially similar offense from another jurisdiction.” (Emphasis added.)
Effective November 1, 2003, S.B. 123 amended K.S.A. 2003 Supp. 21-4603d to provide:
“(n) Except as provided by subsection (f) of K.S.A. 21-4705, and amendments thereto, in addition to any of the above, for felony violations of K.S.A. 65-4160 or 65-4162, and amendments thereto, the court shall require the defendant who meets the requirements established in K.S.A. 2003 Supp. 21-4729, and amendments thereto, to participate in a certified drug abuse treatment program, as provided in K.S.A. 2003 Supp. 75-52,144, and amendments thereto, including but not limited to, an approved after-care plan.”
S.B. 123 also amended K.S.A. 2003 Supp. 65-4160 to eliminate enhanced severity level offenses for persons violating the statute and provided that violation of the statute was a drug severity level 4 felony. However, this amendment also did not take effect until November 1, 2003. See L. 2003, ch. 135, sec. 7.
Under the facts of this case, substantial differences exist between the prior law and the enactment of S.B. 123. In October 2002, the time the offense was committed in this case, possession of cocaine with a prior conviction was a severity level 2 drug felony. See K.S.A. 65-4160(b). Coupled with the defendant’s criminal history score of H, the presumptive prison sentencing range was 49 to 54 months. K.S.A. 2002 Supp. 21-4705. In contrast, application of S.B. 123 to this case would classify the defendant’s conviction as a severity level 4 drug felony with a presumptive nonprison sanction of certified drug abuse treatment and an underlying presumptive prison term range of 12 to 14 months. See K.S.A. 2003 Supp. 21-4705; K.S.A. 2003 Supp. 21-4729(a); K.S.A. 2003 Supp. 65-4160(a).
The defendant argues that the S.B. 123 enactments clearly and explicitly apply to “offenders who are sentenced on or after November 1, 2003,” and because he was sentenced on December 16, 2003, and falls within the target population, he should have been sentenced pursuant to statutes amended by S.B. 123. The State counters that the defendant should be sentenced under the statute in effect at the time the offense was committed and that he should not benefit from his own actions which caused sentencing to be delayed from April 2003 until December 2003.
Interpretation of a statute is a question of law over which appellate courts exercise unlimited review. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). As a fundamental rule of statutoiy interpretation, the court must look for the legislature’s intent. The court presumes that the legislature expressed its intent through the language of the statutory scheme. If the language is plain and unambiguous, the court must give effect to the language as written without determining what the law should or should not-be. State v. Gordon, 275 Kan. 393, 397, 66 P.3d 903 (2003). Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in it. 275 Kan. at 397.
The defendant argues that the plain language of K.S.A. 2003 Supp. 21-4729(a) clearly establishes a “nonprison sanction of certified drug abuse treatment programs for certain offenders who are sentenced on or after November 1, 2003.” (Emphasis added.) In this case, the defendant would seemingly fall under the plain language of the statute because he was convicted of K.S.A. 65.-4160, and was sentenced on December 16, 2003.
However, the plain language of the statute further provides that the offense must be classified in grid block 4-H based on the facts of this case. See K.S.A. 2003 Supp. 21-4729(a)(1). At the time the defendant committed the offense of possessing cocaine with a prior conviction, it was categorized as a drug severity level 2 offense and his sentencing score was a 2-H. See K.S.A. 65-4160. Although K.S.A. 2003 Supp. 65-4160 now classifies this same offense as a drug severity level 4 felony, this statute did not take effect until November 1, 2003. L. 2003, ch. 135, sec. 7.
The penalty for a criminal offense is the penalty provided by statute at the time of the commission of the offense. The prescription of a punishment for a criminal act is substantive, not procedural, law. State v. Martin, 270 Kan. 603, 608, 17 P.3d 344 (2001). “ The general rule of statutory construction is that a statute will operate prospectively unless its language clearly indicates that the legislature intended that it operate retrospectively .’ ” (Emphasis added.) 270 Kan. at 608-09 (quoting State v. Sylva, 248 Kan. 118, 119, 804 P.2d 967 [1991]); see also State v. Reason, 263 Kan. 405, 417, 951 P.2d 538 (1997) (“In applying [K.S.A.] 21-4705, the critical date is the date of the crime, not the sentencing date, absent express legislative intent to the contrary.”).
Nowhere in the statutory language of K.S.A. 2003 Supp. 65-4160 does it provide that its provisions have any retroactive effect on the severity level of prior convictions under earlier versions of the statute. Absent express legislative intent that the change in severity level was meant to apply retroactively, the defendant’s criminal history score remains a 2-H. As the defendant’s offense is classified in grid block 2-H, he does not qualify for a nonprison sanction under K.S.A. 2003 Supp. 21-4729.
This conclusion is supported by the legislative history and the Kansas Sentencing Commission’s interpretation of S.B. 123. Although the bill was initially proposed to be retroactive, including language which would have clearly modified the severity level of the offense in this case, the Legislature decided to remove all provisions regarding retroactivity from the bill. See S.B. 123 with amendments, p. 4; Minutes of the Senate Judiciary Committee, February 12, 2003, attachment 11-1; 14-1. The addition of the “[o]n or after November 1, 2003” language to K.S.A. 2003 Supp. 21-4729 and the same effective date for K.S.A. 2003 Supp. 65-4160 appear to be a response to KDOC’s concern that it would not be able to have the treatment facilities ready by July 2003 when the bill would be published in the Kansas Register, rather than an attempt to provide for retroactivity. See Minutes of the Senate Judiciary Committee, February 12, 2003, attachment 7-4; Minutes of the Senate Judiciary Committee, February 24, 2003, KDOC Comments on Specific Sections of S.B. 123, p. 9-2 (“We do not believe it is feasible for this bill to be effectively implemented upon publication in the Kansas register.”). These actions demonstrate an intent not to include offenders who were convicted of violating 65-4160 prior to November 1, 2003.
The Kansas Sentencing Commission similarly interprets the bill in its implementation manual: “There is no provision for retroactivity in the legislation. Existing sentences will not be converted. Only those offenders sentenced on or after November 1, 2003, and who meet the target population, will be eligible to receive funds allocated for treatment under this legislation.” (Emphasis added.) Kansas Sentencing Commission, Senate Bill 123: Alternative Sentencing Policy for Drug Offenders-Implementation Manual, p. 55 (October 2003). As discussed above, the defendant’s classification in the 2-H drug grid removes him from the target population under K.S.A. 2003 Supp. 21-4729(a)(1).
In conclusion, the defendant’s conviction does not qualify for sentencing under K.S.A. 2003 Supp. 21-4729, even though he was sentenced after November 1, 2003, because his conviction was classified as a severity level 2 drug felony under K.S.A. 65-4160(b). Moreover, K.S.A. 2003 Supp. 65-4160 does not demonstrate a legislative intent to retroactively alter the severity level of a conviction under an earlier version of the statute. Absent this intent, the penalty for a criminal offense is the penalty provided by statute at the time of the commission of the offense. See Martin, 270 Kan. at 608-09. As such, the district court did not err by calculating the defendant’s criminal history score as 2-H and imposing a presumptive mid-range 51-month prison sentence.
Affirmed.
Gernon, J., not participating.
Larson, S.J., assigned. | [
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The opinion of the court was delivered by
Allegrucci, J.:
Edward Martin was convicted by a jury of one count of conspiracy to commit identity theft and four counts of identity theft. The trial court sentenced Martin to consecutive terms for a controlling term of 34 months’ imprisonment. The presumption of probation was denied and an upward dispositional departure to prison on each count was imposed on the ground that Martin was leader of the ring of identity thefts. Martin appealed his sentence to the Court of Appeals. The Court of Appeals’ majority approved the departures but vacated the sentences and remanded for resentencing because the trial court failed to consider placing Martin at Labette Correctional Conservation Camp, as required by K.S.A. 2003 Supp. 21-4603d(g). See State v. Martin, 32 Kan. App. 2d 642, 87 P.3d 337 (2004). We granted Martin’s petition for review of the Court of Appeals’ decision on the dispositional departure in sentencing. Hence, the single issue before the court is whether Martin’s role as “boss,” “kingpin,” or “ringleader” is a valid upward dispositional departure factor.
Prior to trial, the State filed a motion for an upward dispositional departure sentence, requesting that the jury make a special finding whether Martin was the leader of the identity theft ring. At trial, the State presented evidence that Martin orchestrated a large, interstate identity theft ring, which began in California and then moved to Kansas. The State’s evidence was that Martin obtained several individuals’ identification information and used the information to supply his accomplices with fake IDs. The accomplices would use the IDs to write checks for merchandise at retail stores, then return the merchandise for cash and give the cash to Martin. The accomplices also used the fake IDs to obtain credit at various retail stores. Martin directed his accomplices’ credit purchases, and most of the merchandise was given to Martin.
The jury convicted Martin of one count of conspiracy to commit identity theft and four counts of identity theft. The juiy also completed a special interrogatory verdict form stating that the juiy found beyond a reasonable doubt that Martin acted as the organizing force and directed the criminal activities of three named accomplices.
At sentencing, the trial judge stated that he was departing from the presumptive probation sentences because Martin was the mastermind, and but for Martin’s leadership the crimes would not have taken place, and so this was an egregious case.
In the Court of Appeals, Martin argued that the record does not support the trial court’s finding that but for his leadership the crimes would not have taken place. K.S.A. 21-4721(d) states that, when a departure sentence is appealed, the appellate court shall determine whether the sentencing court’s findings of fact and reasons justifying a departure are supported by the evidence and constitute substantial and compelling reasons for departure.
With regard to the trial court’s findings of fact, the Court of Appeals stated:
“Martin challenges the trial court’s specific finding but ignores its general finding drat Martin was die ringleader, i.e., die ‘originating, motivating, and supervising force behind this conspiracy.’ The trial court made it clear that it found Martin to be the ringleader or kingpin of the conspiracy and it was using Martin’s role as the ringleader to depart. The record on appeal contains substantial competent evidence supporting a finding that Martin acted as the ringleader or kingpin of the conspiracy.” 32 Kan. App. 2d at 644.
In his petition for review, Martin reiterates his contention that the trial court’s finding that but for his leadership the crimes would not have taken place is not supported by the evidence. He attempts to show the lack of substantial supporting evidence by directing the court’s attention to the activities of other conspirators. As the Court of Appeals stated, the trial court’s remark that tire crimes would not have taken place without Martin’s leadership was not a separate finding but an expression of the importance of Martin’s leadership to the criminal enterprise. Moreover, the contention misframes the issue, which is not whether his coconspirators were integral to the crimes, but rather whether Martin was the leader of the crime ring. There is substantial competent evidence showing that he was, including that Martin provided the fake ID’s, told the others where to go, directed their purchases, and collected money and merchandise from them.
In the Court of Appeals, Martin also argued that because his ringleader status was an element of the conspiracy offense, it could not be used as a departure factor. See K.S.A. 2003 Supp. 21-4716(c)(3). The Court of Appeals was unconvinced because the State was not required to prove that Martin was the ringleader of the criminal enterprise in order to prove the conspiracy, even though some of the aspects of the overt acts committed in furtherance of the conspiracy would have supported a finding that Martin was the ringleader. 32 Kan. App. 2d at 646.
The statutoiy elements of conspiracy are an agreement with another person to commit a crime or to assist in committing a crime, and an overt act in furtherance of the conspiracy. K.S.A. 21-3302(a). The State was not required to prove Martin’s status among the conspirators in order to prove conspiracy. The Court of Appeals correctly rejected the argument.
In the Court of Appeals, Martin’s third argument was that the trial court’s reason for imposing a dispositional departure was not substantial and compelling. An appellate court reviews the question whether the departure factors are substantial and compelling as a question of law. State v. McKay, 271 Kan. 725, 728, 26 P.3d 58 (2001). Defendant’s status as kingpin of a crime ring is not included in the nonexclusive list of aggravating factors in K.S.A. 2003 Supp. 21-4716(c)(2). When the trial court does not rely upon statutory aggravating factors in imposing a departure sentence, the appellate court views the decision to depart with stricter scrutiny. State v. Murphy, 270 Kan. 804, 807, 19 P.3d 80 (2001).
On this issue, which is one of first impression for Kansas appellate courts, the Court of Appeals discussed State v. Adames, 631 So. 2d 98 (La. App. 1994), and Fletcher v. State, 508 So. 2d 506 (Fla. Dist. App. 1987), as supporting Martin’s sentencing departure. In Adames, the defendant pled guilty to one count of conspiracy to distribute marijuana. On appeal, the defendant challenged the trial court’s upward departure. The Louisiana Court of Appeals concluded that die defendant’s role as the ringleader was not an element of the conspiracy and could be considered a proper aggravating factor for an upward departure. 631 So. 2d at 101-02. In Fletcher, the defendant was convicted of trafficking in and conspiracy to traffic in marijuana. The trial court upwardly departed from the guidelines sentence, in part because defendant was the ringleader. The District Court of Appeal of Florida affirmed, concluding that that state’s guidelines did not preclude basing an upward departure on defendant’s ringleader status and, as a matter of common sense, the mastermind deserves a greater sentence than his lackeys. 508 So. 2d at 507.
The Court of Appeals also found support for the upward departure in the Kansas statutory scheme. Noting that K.S.A. 2003 Supp. 21-4716(c)(2) does not include an aggravating factor relating to a defendant’s role as a ringleader but that 21-4716(c)(1)(B) identifies the defendant’s playing a minor or passive role in the crime as a mitigating factor, the Court of Appeals concluded that the latter subsection could be interpreted as supporting greater punishment for the leader of a criminal enterprise. 32 Kan. App. 2d at 644-46.
The dissenting judge reasoned as follows:
“Apparently, the premise underlying the State’s argument is that codefendants should receive disparate punishment for committing the same crime based upon their respective roles in the criminal enterprise. The State contends that the defendant who conceives, plans, and directs a criminal activity is more culpable than the persons who execute the plan and actually commit the crime. This argument suggests that an aider and abettor should be more harshly punished than the principal actor.
“As the majority notes, the legislature specifically provided a means for the sentencing court to mete out different sentences to codefendants based upon relative culpability. Under K.S.A. 2003 Supp. 21-4716(c)(1), the district court is permitted to downwardly depart based upon the mitigating factor that the offender had a minor or passive role in the crime. Unlike the majority, I do not read the specific inclusion of the mitigating factor as supporting an argument that we should further widen the disparity in sentencing between codefendants committing the same crime by also permitting an upward departure for the leader and organizer’ of the criminal enterprise. To the contrary, the fact that the legislature considered the concept of relative culpability and chose to include that reason in the mitigating factors, but not in the aggravating factors, cuts against the proposed creation of a ‘ringleader’ upward departure. Cf. State v. Favela, 259 Kan. 215, 234-35, 911 P.2d 792 (1996) (the doctrine of expressio unius est exclusio alterius applied to conclude the legislature must not have intended for the defendant’s young age to be a mitigating factor when the victim’s young age is an enumerated aggravating factor).
“Obviously, Martin’s enlistment of foot soldiers to effect his criminal scheme has subjected him to prosecution, as an aider and abettor, for each and every criminal act committed by his ‘gang.’ However, with respect to each charge, I do not believe that Martin’s role as the leader, rather than the actor, constitutes a valid departure factor. The legislature is charged with the responsibility and invested with the sole authority to establish the punishment for acts it defines as criminal. A policy decision to impose harsher punishment upon the ‘brains’ or ‘leader’ of a group of criminals, based solely upon the leader’s administrative role in the particular crime, should emanate from the legislature, not the judiciary. I would reverse and remand for imposition of the presumptive sentences.” 32 Kan. App. 2d at 647-48 (Johnson, J., dissenting).
As the dissenting judge points out, the majority’s statutory construction breaks with convention. Considering in State v. Favela, 259 Kan. 215, 235, 911 P.2d 792 (1996), whether the defendant’s young age justified a downward departure, the court stated:
“K.S.A. 1994 Supp. 21-4716(b)(2)(A) specifically lists the victim’s young age as an aggravating factor but 21-4716(b)(1) says nothing about the defendant’s young age being a mitigating factor. Even though the list of mitigating factors is nonexclusive, the doctrine of expressio unius est exclusio alterius applies here, and, thus, the legislature must not have intended for the defendant’s young age to be a mitigating factor. The fact the defendant was only 17 years old at tire time of the offense is not a substantial and compelling reason justifying departure as a matter of law, but it may be considered as part of the entire package.”
In the circumstances of the present case, the same reasoning applies. K.S.A. 2003 Supp. 21-4716(c)(1)(B) specifically lists the defendant’s playing a minor or passive role in the crime as a mitigating factor, but 21-4716(c)(2) says nothing about the defendant’s ringleader status being an aggravating factor. Because the legislature expressly identified a minor or passive role as a mitigating factor does not mean, as the Court of Appeals’ majority would have it, that it follows that the ringleader role, although unmentioned, is an aggravating factor. On the contrary, the legislature’s expressing the one and failing to express the other is correctly construed as an indication that the legislature did not intend the other.
In the circumstances of this case, the legislature’s silence on kingpin status is legally significant because it contrasts with the legislature’s expression on a minor role. In other circumstances where the Favela reasoning did not apply, it would be overly broad to say that the legislature’s silence on a proposed factor meant that it could not be a valid departure factor. The expressly nonexclusive nature of the statutory list indicates that the legislature intended there to be valid unlisted factors. Valid unlisted factors, however, according to this court’s reasoning in Favela, do not have counterparts included in a statutory list.
In Fletcher, the Florida court’s perception of what is commonsensical, which appealed to the Court of Appeals’ majority, is not persuasive in light of the Kansas statutory scheme and the reasoning of Favela. And, as the dissenting judge noted, any policy decision to impose harsher punishment on the leader of a criminal enterprise should come from the legislature. We conclude that Martin’s ringleader status does not support an upward dispositional departure.
The decision of the district court to impose an upward dispositional departure sentence on Martin and the decision of the Court of Appeals affirming the district court are reversed, Martin’s upward dispositional departure sentence is vacated, and the matter is remanded for resentencing in accord with this opinion. | [
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The opinion of the court was delivered by
Allegrucci, J.:
Wallace L. Dixon, III, appeals his convictions of two counts of felony murder, five counts of aggravated battery, two counts of burglary, and one count each of theft, criminal damage to property, aggravated assault, and criminal possession of a firearm. He was sentenced to two consecutive life terms (each with no parole eligibility for 20 years) and 120 months consecutive to the life terms. This is a companion case to State v. Griffin, 279 Kan. 634, 112 P.3d 862 (2005).
At approximately 9 a.m. on July 29, 2001, an explosion and fire destroyed a building containing five townhouse apartment units, A through E, at the Eastgate Plaza Apartments in Emporia. Dana Hudson and her infant son Gabriel, who lived in the middle apartment, C, were trapped inside by debris and flames. They died of smoke inhalation and exposure to heat. Other tenants and neighbors were injured. Tena Wright, who lived in apartment A, was injured when she had to jump from a second-floor window, and two neighbors, James Woodling and Nathan Medien, were injured trying to help her. Stacey DePriest was upstairs in her apartment, D, when the ceiling fell on her. A neighbor, Rosalind Harris, was injured trying to. assist DePriest.
The explosion and fire originated in unit B. Alicia Shaw and her young son lived in unit B. Alicia’s sister, Schelese Shaw, and Schelese’s son lived in Topeka with Dixon.
Several weeks before July 29, after quarreling with Dixon, Schelese removed her things from his house and went to stay with Alicia. For hours Dixon called Alicia’s apartment and the sisters’ cell phones and later banged on Alicia’s door. Pie threatened to blow up Alicia’s car if Schelese did not come out of the apartment. Schelese returned home with Dixon after 1 day.
At approximately 7 p.m. on July 28, Alicia and some friends drove to Topeka to get Alicia’s son, who had been staying with Schelese for a few days. Schelese, Schelese’s son, and Alicia’s son came out of Dixon’s house and got in the car with them. Schelese told her sister that she was leaving Dixon. Schelese had told Dixon that she was just going to get diapers. While the sisters were still in Topeka, Dixon began calling the sisters’ cell phones. Schelese then told Dixon that she was going to Emporia to a bar called Fatty’s, and he was angry. Instead of going to Emporia, the sisters left their sons with a sitter and went with their friends to a liquor store. Cell phone records showed that Dixon called Schelese’s cell phone 95 times in the 15-hour period between 9:11 p.m. on July 28 and 12:12 p.m. on July 29. He called Alicia’s cell phone and her apartment phone a total of 20 times during approximately the same period.
Dixon asked some friends to go with him to Emporia. Dixon drove his White Chevrolet Suburban. Rodney Hayes, Jerry Hall, and Ethan Griffin rode with him. They left Topeka for Emporia shortly after 12:20 a.m., when Griffin got off work. They went to Fatty’s until it closed and then drove to an after-hours party at a house.
Later, after riding around awhile, they went to the apartment complex where Alicia lived. Dixon told his friends that he had gotten a lot of the belongings in the apartment and he wanted them back. The four men broke into the apartment. Dixon was angry, and he was barking orders to his friends. Hayes took a television and put it in the Suburban. Griffin took a jewelry box. They also took a video cassette recorder and a lamp.
After putting the belongings in the Suburban, they drove around while Dixon continued to make calls on his cell phone. Hayes complained that he wanted to go back to Topeka. Dixon slammed on the brakes, and he and Hayes jumped out of the vehicle and tried to hit and kick each other. Later, there was a second altercation between Dixon and Hayes. Dixon again slammed on the brakes, and, when he and Hayes got out of the vehicle, Dixon fired his gun at Hayes’ feet until it was empty. When they got back in the Suburban, Dixon drove by the Eastgate apartments at least four or five times.
Dixon then drove to a gas station and had Griffin pump gasoline into a bucket. Griffin left the jewelry box at the station. When they left the gas station, the bucket was in the back seat between Griffin and Hall. Griffin heard Dixon say, “I’ll burn it up.” Hayes, Griffin, and Hall complained about the smell of the gasoline, its sloshing out of the bucket, and that they could not smoke with it in the vehicle. Dixon told Griffin to throw it out the window, and Griffin did.
After driving around some more, Hayes convinced Dixon to go see Donnie Wishon, a friend of Hall. They took the items from Alicia’s apartment into Wishon’s residence. Hayes and Hall stayed there and went to sleep.
Griffin went with Dixon back to Alicia’s ápartment. Griffin testified that after again entering the apartment, Dixon went Upstairs, threw a candle, knocked over a television, and kicked a bookshelf. Back downstairs, he tore a curtain off a front room window, rifled through the kitchen cabinets, and knocked the stove onto its side. It was full daylight when Dixon and Griffin returned to Wishon’s residence to wake up Hayes and Hall and urge them to hurry so they could head back to Topeka.
Peter Lobdell, a special agent, certified explosives specialist, and certified fire investigator with the federal Bureau of Alcohol, Tobacco, and Firearms, led the team that investigated the explosion and fire. He determined from the large debris field and large sections of intact walls which had been blown out that the explosion was a fuel-air explosion. The fuel was natural gas, which combined with air to support combustion. The source of the natural gas was a leak in the pipe that supplied fuel to Alicia’s stove. According to Lobdell, “the supply pipe was manually manipulated,” which caused “it to fail, to leak and emit gas into the apartment.” He was unable to determine what ignited the fuel-air combination.
Additional facts will be developed as we consider the numerous issues raised by Dixon on appeal.
1. DID THE JURY’S FAILURE TO REACH A VERDICT ON AGGRAVATED ARSON AFFECT DIXON’S CONVICTIONS FOR FELONY MURDER AND BURGLARY?
Questions posed by the jury about aggravated arson demonstrate its lack of understanding about whether the defendant had to intend to use fire or explosive to damage property or whether the defendant simply had to intend to damage property and happened to have done so by fire or explosive. The. following response, given by the trial judge to one of the questions, is typical of all his responses: “In addition to the required intent to damage, Element number 1 of Instruction 19 requires that you find that the damage occurred by means of fire or explosion.” He further advised the jurors to “review all of the instructions as you consider this matter.” Among the other instructions was the following: “Ordinarily a person intends all of the usual consequences of his voluntary acts. This inference may be considered by you along with all the other evidence in the case. You may accept or reject it in determining whether the State has met its burden to prove the required criminal intent of the defendant.” The jury was unable to reach a verdict on the aggravated arson count.
Because Dixon was not convicted of aggravated arson, the State takes the position that any question about the offense is moot and not properly before the court. The defendant points out, however, that aggravated arson was a predicate offense for burglary and felony murder. Thus, Dixon contends, the jury’s failing to convict him of aggravated arson ought to be examined relative to the burglary and felony murder convictions.
Dixon was charged with felony murder for the deaths of Dana and Gabriel Hudson. The jury was instructed that the State had introduced evidence on alternative underlying felonies — aggravated arson and burglary. The jury was instructed with regard to the second charge of burglary that the State was required to prove that Dixon knowingly entered a dwelling without authority with the intent to commit theft, aggravated arson, criminal damage to property, or some combination of the three. He was convicted of the second burglary.
Arson is “[k]nowingly, by means of fire or explosive: . . . [d]amaging any building . . . which is a dwelling in which another person has any interest without the consent of such other person.” K.S.A. 2004 Supp. 21-3718(a)(1)(A). Aggravated arson is arson “committed upon a building ... in which there is a human being.” K.S.A. 21-3719. The jury was instructed on aggravated arson as follows in accordance with PIK Crim. 3d 59.22:
“To establish this charge, each of the following claims must be proved:
1. That Mr. Dixon intentionally damaged a building or property in which another person had an interest, and that Mr. Dixon did so by means of fire or explosion;
2. That Mr. Dixon did so without the consent of Eastgate Plaza, Inc.;
3. That at the time there was a human being in the building or property;
4. That the fire or explosion resulted in a substantial risk of bodily harm; and
5. That this act occurred on or about the 29th day of July, 2001, in Lyon County, Kansas.”
Dixon maintains that the correct interpretation of the statutes and pattern instruction is that an accidental fire or explosion ignited as a result of intentional property damage is not aggravated arson because there was no intent to cause a fire or explosion. In other words, he contends that the required intent is the intent to use fire, or explosion to damage property. He cites State v. Walker, 21 Kan. App. 2d 950, 910 P.2d 868 (1996), as suggesting the same construction.
Walker was convicted of attempted aggravated arson resulting in substantial risk of bodily harm for pouring gasoline on the ground in front of the apartment where McCoy, who earlier had poured gasoline on Walker, lived. Walker did not ignite the gasoline and testified that he never intended to do so, but merely wanted to force McCoy to smell gasoline. The Court of Appeals concluded that the legislature had not intended for the arson statute to be interpreted literally. 21 Kan. App. 2d at 954. It reasoned as follows:
“The literal interpretation of the statute would mean that if one pours gasoline on another person’s shrubs in front of their house and the shrubs are damaged, he or she has damaged another’s property with an explosive, gasoline. Pursuant to [the statute], the person would be guilty of arson. Similarly, if one throws an unlit stick of dynamite through the window of a building, he or she has committed arson. This is true even though the dynamite would not have exploded because the fuse was not lit.
“The question for the jury to decide was whether Walker intended to ignite the .gasoline and damage the building by fire or explosion, not whether he intended damage by the pouring of gasoline around the building.
....
“[W]e believe the unmistakable intent of the legislature was that the term ‘explosive’ was to be interpreted as ‘explosion’ and that tire use of the word ‘explosive’ was an error in terminology. [Citation omitted.]” 21 Kan. App. 2d at 953-55.
The problem identified in Walker, the term “explosive,” has been remedied in the pattern instruction and was avoided in the present case by use of the pattern instruction. See PIK Crim. 3d 59.22. The facts in Walker paralleled the illustration of an unlit stick of dynamite causing property damage by being thrown through a window. But in the present case, the property damage at issue is not comparable to the broken window but rather to the total destruction of a dwelling by the dynamite’s exploding when it landed in a blazing fire. In the first instance, there was an explosive but no fire or explosion; in the second, there was a fire and explosion resulting from the ignition of an explosive. Nonetheless, Dixon would have the court apply the lesson from Walker to the facts of the present case to conclude that he could not have been found guilty of aggravated arson because he did not ignite the gas released from the broken supply pipe, nor did he ever intend to ignite it.
Examination of the statutory language does not support Dixon s construction. The legislature defined arson in pertinent part as knowingly, by means of fire or explosive, damaging property. “Knowingly” is an adverb that modifies the verb “damaging,” and the phrase “by means of fire or explosive” is set off by punctuation, making it an independent phrase that could be placed elsewhere in the definition. For example: Arson is knowingly damaging any building or property, which is a dwelling in which another person has any interest, by means of fire or explosive without the consent of such other person. If the legislature had intended to require the specific intent to use fire or explosive in order to damage property, it could have expressed that intent by defining arson as knowingly using fire or explosive to damage property.
This court has long held that an accused need not be prosecuted for or convicted of the underlying felony in order to be convicted of felony murder under K.S.A. 21-3401(b). State v. Beach, 275 Kan. 603, 617, 67 P.3d 121 (2003); State v. Wise, 237 Kan. 117, 123, 697 P.2d 1295 (1985). In such a case, however, a challenge to the felony-murder conviction may be made on the sufficiency of the evidence to support it. In Beach, the court framed the issue and concluded as follows:
“The question in this case ... is whether after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. We conclude that the jury rationally could have found Beach participated in the underlying felony of aggravated robbery. That the jury acquitted Beach of aggravated robbery independent of the felony murder does not impair our conclusion.” 275 Kan. at 622.
Here, we conclude that the jury rationally could have found beyond a reasonable doubt that Dixon committed aggravated arson. Thus, aggravated arson could have supported his felony murder and burglary convictions.
2. WERE INSTRUCTIONS ON LESSER INCLUDED OFFENSES OF FELONY MURDER REQUIRED?
The defendant requested instructions on reckless second-degree murder and reckless involuntary manslaughter as lesser included offenses of felony murder. The trial court declined to so instruct on the ground that the evidence of the underlying felonies was neither weak nor inconclusive.
“A trial court should only instruct on a lesser included offense of felony murder when the evidence of the underlying felony is weak or inconclusive. The reason for the rule is that die killers malignant purpose is established by proof of the collateral felony.” State v. Sandifer, 270 Kan. 591, Syl. ¶ 3, 17 P.3d 921 (2001).
On appeal, Dixon argues that the evidence of the underlying felony, burglary, was weak and inconclusive. The jury was instructed that it could consider only the second of the two burglary counts, Count 11, as a predicate offense for the felony-murder charges. In closing argument, the prosecutor told the jurors that only the second burglary count could be a predicate offense because only during the second burglary was something done to start the chain of events that ended with the deaths of Dana and Gabriel Hudson. Dixon concedes that there was conclusive evidence that he entered Alicia’s apartment the second time, but he disputes that there was conclusive evidence that he entered with a felonious intent. The jury was instructed that it could find that he entered Alicia’s apartment with the intent to commit theft, aggravated arson, or criminal damage to property.
Griffin, who accompanied Dixon the second time he went into Alicia’s apartment, testified that Dixon threw a candle at a television, lacked a bookshelf, knocked the stove onto its side, tore a curtain down off a front room window, and tore up the kitchen going through the cabinets. Viewed in the light most favorable to defendant, as required, State v. Gholston, 272 Kan. 601, 615, 35 P.3d 868 (2001), cert. denied 536 U.S. 963 (2002), Griffin’s testimony provided substantial and conclusive proof of Dixon’s criminal damage to property. And it could reasonably be inferred from the evidence that Dixon entered the apartment with the felonious intent to criminally damage property. No lesser offense instructions were required.
3. SHOULD THE TRIAL COURT HAVE INSTRUCTED ON LESSER DEGREES OF AGGRAVATED BATTERY?
Dixon was charged with five counts of aggravated battery. The juiy was instructed for Counts 4, 5, and 9 that the State had to prove that Dixon recklessly caused great bodily harm to Tena Wright, Nathan Medien, and James Woodling respectively. Counts 4,5, and 9 are severity level 5 felonies. See K.S.A. 21-3414(a)(2)(A) and (b). For Counts 6 and 7, the jury was instructed that the State had to prove that Dixon recklessly caused bodily harm to Stacey Depriest and Rosalind Harris respectively in a manner whereby great bodily harm, disfigurement or death could be inflicted. Counts 6 and 7 are severity level 8 felonies. See K.S.A. 21-3414(a)(2)(B) and (b).
The defendant requested lesser included offense instructions on Counts 4, 5, and 9. Specifically, defense counsel requested that the jury be instructed on aggravated battery severity level 8 or simple battery. The trial court declined to so instruct on Counts 4, 5, and 9 on die ground that the jury could not reasonably conclude that the injuries of Wright, Medien, and Woodling constituted anything other than great bodily harm.
A defendant has a right to an instruction and the trial court has a duty to instruct on a lesser included offense which is supported by substantial evidence. Where there is no substantial evidence applicable to the lesser degrees of the offense charged and all the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to a lesser degree of the offense are not necessary. State v. Brice, 276 Kan. 758, Syl. ¶ 4, 80 P.3d 1113 (2003).
The evidence shows that Tena Wright, whose apartment was next to Alicia’s apartment on the north, was upstairs in her bedroom when the explosion occurred. Her daughter was downstairs. The ceiling of Wright’s bedroom collapsed on her, and fallen rafters blocked the door so that she was unable to get out to go downstairs. Wright made her way through thigh-deep debris to the window, where she could see her daughter standing on the ground below. The smoke was beginning to get heavy, heat was rising up through the ductwork, and the fire was coming into the bedroom. Knowing that she either had to go out the window or be burned, she chose the window. James Woodling was standing on the fence below and reaching up for her, but he was unable to hold her. Wright fell against the fence and landed on the air conditioning unit. Her legs and feet were cut and so severely bruised that they became black and swollen to nearly double normal size. Her left side became numb and immobile, and fluid developed in her abdomen. Wright sustained permanent back injuries including a herniated disk, pinched nerve, and inflammation. She took physical therapy for 3Vz months and, at the time of trial, was considering spinal injections or back surgery to treat continuing pain.
James Woodling lived next door to the Eastgate Plaza Apartments. When he heard the explosion, he told his wife to call 911 and ran toward the apartments. Woodling and another nearby resident got Wright’s daughter out of her apartment. Woodling then got up on the fence to reach up toward the window of Wright’s bedroom. As Wright gripped the windowsill, Woodling was able to reach her legs. The building wall was unstable so that Woodling had to push back the wall with one arm and try to hold Wright with the other. He tried to pull her to him as her grip on the sill loosened, but he was only able to slow her momentum as she fell. While he was trying to rescue Wright and hold the wall back, Woodling’s back was injured. He suffered two herniated disks in his lower back, which have caused nearly constant pain since that day. At the time of trial, he had begun receiving epidural treatments for his back pain.
Nathan Medien, another nearby resident who ran to help after the explosion, was told by Wright’s daughter that her mother was upstairs. When he got about halfway up the stairs in Wright’s apartment, a cylindrical projectile flew through the wall, trapping Medlen’s hand between the railing and fallen sheetrock and breaking his fifth metacarpal. He lost his job as a result, and, at the time of trial, he was still receiving some disability benefits and was only able to do light-duty work. The fracture healed so that he has a big lump on the back of his hand.
In Brice, 276 Kan. 758, the court considered the recurring question whether a trial court acts properly in limiting a jury’s consideration to great bodily harm. The court stated:
“It is a trial court’s time-honored responsibility to examine the evidence to determine whether a defendant can be convicted of a lesser included offense. The trial court accordingly guides the jury’s dehberations by giving or not giving lesser included offense instructions. . . . Whether there is evidence in the case to support the giving of a lesser included instruction is a determination to be made by the trial court. If there is evidence that the harm was slight, trivial, moderate, or minor, then the trial court must give a lesser included instruction. Thus a trial court could determine that a bullet wound, even one that missed bone, major arteries, veins, and nerves, is not slight, trivial, moderate, or minor and will not support a lesser included instruction for battery.” 276 Kan. at 773-74.
Injuries in recent cases where the court affirmed the trial court’s determination that an injury was great bodily harm and would not support a lesser included offense instruction include the following: In State v. Valentine, 260 Kan. 431, 921 P.2d 770 (1996), the defendant fired four or five shots at the victim. One bullet struck him in the arm, another severed his spine and paralyzed him from the waist down. In State v. Whitaker, 260 Kan. 85, 917 P.2d 859 (1996), the defendant shot a police officer in the arm. The bullet did not strike bone. The officer missed 3 days of work on account of the injury. In State v. Moore, 271 Kan. 416, 23 P.3d 815 (2001), the defendant used a hot iron to bum his victim’s legs, breast, and inner thighs. He was charged with intentionally causing great bodily harm or disfigurement. In Brice, the defendant shot his victim in the upper right thigh. Missing bone, major arteries, veins, and nerves, the bullet exited through the victim’s right buttock. He missed a week and a half of work as a result of the injury.
In the present case, each of the three victims suffered an injury with long-term effects. Wright had undergone months of physical therapy for a herniated disk and was considering options for further treatment. Woodling had several herniated lumbar disks and had received an epidural injection to treat his pain. Medien lost his job on account of the injury to his hand and, after many months, was still restricted to light duty. By the measure of lasting effect, the injuries of the victims in this case are more severe than those in Whitaker and Brice where the victims missed 3 days and a week and a half of work respectively. By any measure the injuries of the victims in this case are not slight, trivial, minor, or even moderate. The evidence would not support lesser included offense instruc tions in Counts 4, 5, and 9, and the district court did not err in refusing to give them.
4. DID THE QUESTIONS AND COMMENT ON DIXON’S CONTACTING COUNSEL CONSTITUTE PROSECUTORIAL MISCONDUCT?
The prosecutor asked four witnesses about Dixon’s telephone calls to and a meeting with his attorney shortly after the explosion and weeks before Dixon was charged and arrested. The timing of the contacts is significant to defendant’s complaint because it implies the question of why someone who was not guilty would contact his or her attorney before being arrested or questioned or even contacted by police. The evidence was elicited as follows:
Jeriy Hall testified that after he, Dixon, Griffin, and Hayes returned to Topeka the morning of July 29, Hayes and he went to his apartment. Later in the day, Dixon returned to Hall’s place. Dixon was nervous and agitated. He called someone trying to find out what was on the Internet about news in Emporia. The prosecutor asked: “Who else did he call?” Hall testified that Dixon called his attorney. The prosecutor asked the attorney’s name, and Hall answered that it was Joe Johnson. The following questions and answers occurred:
“Q. Let’s talk a little bit about — you said the defendant called his attorney?
"A. Yes.
“Q. Was it your attorney?
“A. No.
“Q. Okay. Did the defendant ask you to go anywhere with him —
“A. Yes, he did.
“Q. — after, the next day?
“A. Yes, he did.
“Q. Where was that?
“A. To his — to his attorney’s office.
“Q. That would be Joe Johnson?
“A. Yes.
“Q. Is that an attorney here in Topeka?
“A. In Topeka.
"Q. Did you go to the office with the defendant?
“A. Yes.
“Q. How did you get there?
“A. Wallace [Dixon] came, picked me up.
“Q. And why did he say he needed to go talk to this attorney?
“A. He never really gave a reason, he just — he just said, let’s go. will you go with me to talk to my lawyer? Me, him, and Ethan Griffin went.
“Q. Let’s talk about when you arrived at the lawyer’s office. The defendant drove you there?
“A. Yes.
“Q. Did you meet Ethan Griffin there?
“A. Yes.
“Q. The three of you, did you go-in to talk to the lawyer?
“A. Yes.
“Q. Okay. Did you ever — did you ever retain that lawyer, hire him?
“A. No, I didn’t.
“Q. Okay. You walked into where? His conference room? His front room? His office?
“A. His office.
“Q. His personal office?
“A. Yes.
“Q. Did the three of you go in together?
“A. Yes.
“Q. And did you discuss the explosion and fire that had destroyed Alicia Shaw’s apartment?
“A. He really didn’t come right out and say what he did. He had just said that he did something bad, he think he screwed up this time real bad. And he — his lawyer chewed him out and asked if he was willing to take a lie detector test. And the — the lie detector, everyone said yes except for Ethan.
“Q. Did you — or did he tell the lawyer the truth of what had gone on the night before?
“A. I don’t believe so.
“Q. What do you mean by that?
“A. I don’t believe he told it because I don’t — I don’t believe he did.
“Q. Did he lie to his own lawyer at that point?
“A. Yes, because he didn’t tell about the fourth person going down.
“Q. Left Rodney out?
“A. Yes.
“Q. Can you tell the jury what the story was that he related to the attorney?
“A. The story was — I gave him a story to tell because he was — he was — his lawyer advised him to talk to the police. So, I gave him a story to tell but I can’t remember what it was.
“Q. You were helping him with the story?
“A. Yes, I was.”
Defense counsel did not object to this line of questioning.
Kansas Bureau of Investigation Agent William Halvorsen testified as a State’s witness about the billing records for the cellular telephone that Dixon carried on July 28 and the next few days. Halvorsen testified about tracking a number of calls made by Dixon, including the following:
“Q. Did you — did you call any other numbers that you tracked?
“A. Yes.
“Q. What was the next number?
“A. Joe Johnson, an attorney in Topeka. Joe Johnson’s home, and Joe Johnson’s office.
“Q. Okay. The first call to — or the first to Joe Johnson’s home?
[Defense counsel]: Your Honor, I’m going to object on relevance grounds.
THE COURT: Overruled.
“A. The first call to Joe Johnson’s home was at 8:48 p.m. on the 29th, and the last call was at 9:09 p.m. on the 1st of August. There were five calls to Mr. Johnson’s home, one of which was at 1:19 a.m. in the morning on July the 31st.
“Q. To his home?
“A. To his home, that’s correct.
"Q. And what about to Mr. Johnson’s office?
“A. Mr. Johnson’s office, the first call was at 3:04 p.m. on the 30th of July, the last was at 5:18 p.m. on August the 1st, including five phone calls.”
Defense counsel objected, as noted, on the ground of relevance.
The prosecutor asked Dixon’s mother, Gwen Rios, about going to Johnson’s office. Defense counsel objected, and the trial court overruled the objection. Here is the exchange:
“Q. After a couple of days later did you ever have an occasion to go to attorney Joe Johnson’s office in Topeka —
“A. Yes.
“Q. — with your son, the defendant, and others?
“A. I went to Joe —
[Defense counsel]: Your Honor, we would object to any attempt to secure legal counsel as evidence of guilt.
[Prosecutor]: Jerry Hall talked about it, Judge.
THE COURT: I’ll allow the question.
“Q. Who was there?
“A. I was there. Well, not till later. My son was there, Jerry Hall, and a third guy, which later I found out was Griffin.
“Q. Ethan Griffin?
....
“A. Yes.
“Q. And you went in to see Mr. Johnson?
“A. Not — later when they called me in there.
"Q. But you didn’t initially talk or go in with your son, the defendant, Jerry Hall, and Ethan Griffin to talk to Mr. Johnson?
“A. No.”
Ethan Griffin testified that he went to work early on the morning of July 29. Then he was asked and answered the following questions by the prosecutor:
“Q. Was there an occasion after that that you next saw the defendant?
“A. Probably a day or — probably a day or two later I received a phone call from Wallace Dixon, and he was like, I’m in trouble, I’m in some serious stuff. And he said, I’m going to see my lawyer, would you come with me to see my lawyer? And I said I had to wait on my girlfriend to come over, because we were going to go eat somewhere, I believe. So, I told him yes, I’ll go up there, but I rode with my girlfriend.
“Q. Did you go up to his lawyer’s?
[Defense counsel]: I would object. Comment on the right to counsel.
THE COURT: I don’t think that’s a problem here. You can proceed.
“Q. Did you go to the lawyer’s office?
“A. Yes, I did.
“Q. Who was the lawyer?
“A. Johnson.
“Q. Joe Johnson?
“A. I’m not familiar with his first name. I remember Johnson.
“Q. Okay. Who also was there?
“A. Wallace — it was Jerry Hall, Wallace Dixon, Johnson, and myself, his mother, Wallace Dixon’s mother.”
In closing argument, the prosecutor commented on Dixon’s contacting his attorney: “Who else did he call that morning? Called his — after he got back to Topeka, he called his attorney beginning at 8:48 p.m., 7/29. He called him 10 times, including one call at 1:19 a.m. at his home phone number.” In the final portion of his closing argument, the prosecutor directed the jury’s attention to a number of Dixon’s acts that, according to the prosecutor, showed defendant’s consciousness of guilt. The prosecutor did not include Dixon’s contacting his attorney among the actions that purportedly showed consciousness of guilt.
On appeal, Dixon argues that in eliciting testimony about his telephone calls and visit to his attorney, the prosecutor was improperly implying that defendant’s contacting his attorney showed that defendant was guilty. He relies primarily on cases from other jurisdictions for the principle that a defendant’s guilt may not be implied by showing that he sought the assistance of counsel. See, e.g., United, States v. McDonald, 620 F.2d 559, 564 (5th Cir. 1980) (“It is impermissible to attempt to prove a defendant’s guilt by pointing ominously to the fact that he has sought the assistance of counsel.”).
The State questions whether the issue was preserved for appeal. As we have seen, no objection was made when the prosecutor questioned Hall. A relevance objection was made when the prosecutor questioned Agent Halvorsen. The State contends that the objective of the examination was to refute defendant’s alibi, and the State asserts that testimony concerning defendant’s visit to Johnson entirely contradicted his alibi. The State’s point is not well taken for several reasons. First, the objection was to questions that elicited Halvorsen’s testimony about defendant’s telephone calls to his attorney, not the visit to Johnson. In addition, defendant’s alibi was an account of where he was during July 28-29, not of his visit to his attorney’s office several days later.
Having failed with a relevance objection, defense counsel objected to questions to Rios and Griffin on the ground that it was improper for the prosecutor to attempt to elicit information about defendant’s contacts with his attorney. On appeal, Dixon frames the issue as one of prosecutorial misconduct.
Pointing out that an objection must be timely and specific in order to preserve an issue for appeal, see State v. Diggs, 272 Kan. 349, 365, 34 P.3d 63 (2001), the State argues that the only effective objections-were made to the prosecutor’s questioning of Rios and Griffin, who did not testify that defendant had an attorney-client relationship with Johnson. Although the jury reasonably could have inferred from Rios’ testimony about her presence at the meeting at Johnson’s office that Johnson was her son’s attorney, the questions asked of Rios did not expressly identify Johnson as the defendant’s lawyer or ask Rios to so identify Johnson. But Griffin was asked and testified about Johnson being defendant’s lawyer. Thus, the juiy heard during the questioning of Griffin that he viewed Johnson as Dixon’s attorney. More importantly, the establishment of an attorney-client relationship is not an aspect of the issue before us, which is whether the prosecutor’s questioning of witnesses about Dixon’s contacting an attorney shortly after the incident improperly implied defendant’s guilt.
It does not matter whether the objection was to the lack of relevance or otherwise because the rule followed by this court for issues of prosecutorial misconduct maintains the same standard of review whether or not an objection was made at trial. See State v. Davis, 275 Kan. 107, 122, 61 P.3d 701 (2003).
The parties cite no Kansas cases involving a prosecutor’s questioning witnesses in order to elicit information about a defendant’s contacting his or her attorney. Foreign cases cited by Dixon include the following: United States v. Liddy, 509 F.2d 428, 444 (D.C. Cir. 1974); United States ex rel. Macon v. Yeager, 476 F.2d 613, 615 (3d Cir. 1973); McDonald, 620 F.2d at 564; Zemina v. Solem, 438 F. Supp. 455, 466 (S.D. 1977); People v. Schindler, 114 Cal. App. 3d 178, 189, 170 Cal. Rptr. 461 (1981); Riddley v. State, 777 So. 2d 31, 34-35 (Miss. 2001).
The standard of review generally applied in the foreign cases cited by Dixon is that for constitutional error. In such a review an appellate court considers whether improper references to a defendant’s contacting his or her counsel were harmless when measured by a harmless-beyond-a-reasonable-doubt standard. Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967). The standard of Chapman has long been the standard applied by Kansas appellate courts for constitutional error. See State v. Faidley, 202 Kan. 517, 522, 450 P.2d 20 (1969). There is a current statement of that standard in State v. Thompkins, 271 Kan. 324, 335, 21 P.3d 997 (2001):
“An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Thus, before we may declare the error harmless, we must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. [Citation omitted.]”
The State bears the burden of proving that a constitutional error was harmless beyond a reasonable doubt. See State v. Kleypas, 272 Kan. 894, 1084, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002).
Framing the issue as suggested by Dixon as a matter of alleged prosecutorial misconduct rather than strictly as constitutional error, however, would comport with Kansas precedent in which prosecutorial misconduct must involve a constitutional violation. In State v. Pabst, 268 Kan. 501, 504, 996 P.2d 321 (2000), the court stated that “[rjeversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant’s constitutional right to a fair trial.” As in Pabst, the claimed error may implicate a defendant’s right to a fair trial under the Fourteenth Amendment. In other cases, other constitutional rights are implicated. For example, in State v. Higgenbotham, 264 Kan. 593, 600-03, 957 P.2d 416 (1998), the court analyzed a prosecutor’s státement that defendant claimed was a comment on his failure-to testify. And in State v. Williams, 268 Kan. 1, 6-7, 988 P.2d 722 (1999), the question was whether the prosecutor subverted the defendant’s protection against double jeopardy.
As we have seen, for issues of prosecutorial misconduct, this court’s standard of review is whether the error denied the defendant his or her constitutional right to a fair trial, and the court’s review is the same whether an objection was or was not made at trial. Davis, 275 Kan. at 121-22. “The right to a fair trial is a fundamental constitutional right which the trial court has a duty to protect regardless of a defendant’s failure to contemporaneously object.” State v. Sperry, 267 Kan. 287, 308, 978 P.2d 933 (1999).
Dixon cites Schindler for its explanation of the harm caused by the introduction of evidence about a defendant’s consulting with counsel. In Schindler, the defendant’s conviction of killing her husband was reversed due to the prosecutor’s attempt to rebut the defense of diminished capacity, i.e., a state of panic, by eliciting testimony of defendant’s lucidity during an in-custody interview a few hours after the shooting. 114 Cal. App. 3d at 185-90. The evidence included the officer’s statements that defendant declined to make any statement until talking with an attorney and “that he overheard defendant ask her friend who had come to the police station to see if she could get Mr. Geragos for her defense attorney.” 114 Cal. App. 3d at 183. In argument, the prosecutor stressed defendant’s invocation of her rights and her saying she wanted a lawyer as counter-indications of a panic state. In addition, the prosecutor made an issue of the particular lawyer defendant wanted. First, the prosecutor told the jurors that defendant wanted Geragos because he had prosecuted the deceased when the deceased had been charged with killing his former wife. Then the prosecutor suggested that defendant’s naming Geragos rebutted her defense and undermined the credibility of her stating that she knew little about the death of the former wife. Defendant was represented by Geragos, and his motion for a mistrial on her behalf was denied. In final summation, the prosecutor stated to the jury:
“ ‘The reason for bringing that statement in about Mr. Geragos is twofold: One, here is a woman that said she didn’t know any of the circumstances about the death of Lou Schindler’s previous wife, who just got smatters and pieces from people as she went along and who evidently somewhere along the line picked up the idea that Paul Geragos was the prosecuting attorney against Mr. Lou Schindler. Here is a woman who is in a panic state and within this panic state, she has a miraculous ability, this selective amnesia, to turn it off, reach down to the depths of her mind and pull out one attorney and of all of the attorneys in the world she felt could best give her representation that night — we are talking about the night of the lolling- — and that is Mr. Geragos. Where do you think she pulled that name from? Out of a hat?
“ . . And this was a few hours after the commission of the act, the act for which she was in a panic state.’ ” 114 Cal. App. 3d at 184-85.
The California appellate court summarized its ruling as follows:
“Defendant’s constitutional rights to due process and against self-incrimination were violated by the admission in evidence (and use in argument) of her responses asserting her Miranda rights for the purpose of rebutting her diminished capacity defense. Further, exploitation of her choice of counsel for impeachment and rebuttal of her defense impaired her constitutional right to counsel and constituted prosecutorial misconduct. These errors were prejudicial. Accordingly, we must reverse the judgment. However, since the evidence was sufficient to support the juiy’s verdict, defendant can be retried for second degree murder.” 114 Cal. App. 3d at 185.
For its decision on right to counsel, the California court cited Griffin v. California, 380 U.S. 609, 614, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965), which held that a prosecutor’s comment on a defendant’s failure to testily violated the Fifth Amendment to the United States Constitution by making exercise of the right costly, as being “equally applicable to the constitutional right to counsel.” 114 Cal. App. 3d at 188. The California court also discussed its agreement with several cases from lower federal and state courts:
“We agree with the Third Circuit Court of Appeals in United States ex rel. Macon v. Yeager (3d Cir. 1973) 476 F.2d 613, 615, which stated: ‘For the purpose of the “penalty” analysis, ... we perceive little, if any, valid distinction between the privilege against self-incrimination and the right to counsel. It can be argued, with equal rigor and logical support, as to either . . . situation . . . that a prosecutor’s comment seeking to raise in the jurors’ minds an inference of guilt from the defendant’s constitutionally protected conduct constitutes a “penalty” on the free exercise of a constitutional right. [Fn. omitted.]’
“In Macon, the prosecutor in his summation to the jury commented upon the fact that tire defendant called an attorney the morning after the alleged crime and argued that this action cast doubt on the defendant’s claim that the shooting was an accident. The Macon court held this to be reversible constitutional error, 'interpreting Griffin as an absolute prohibition against the imposition of any penalty for tire exercise of a constitutional right in a criminal law context. (Id., at pp. 615-616.)
“Several states have also generally held that a prosecutor cannot properly imply guilt from a defendant’s request for counsel. (See, e.g., People v. Kennedy (1975) 33 Ill. App. 3d 857 [338 N.E.2d 414, 417-418]; State v. Kyseth (Iowa 1976) [240 N.W.2d 671, 674]; Mays v. State (Tenn. Crim. 1972) 495 S.W.2d 833, 836.)
“In United States v. Williams (D.C. Cir. 1977) 556 F.2d 65, 67, the Circuit Court of Appeals for tire District of Columbia pointed out that ‘[t]estimony about the desire or request for a lawyer is impermissible.’ The court noted that a prosecutor is constitutionally precluded from eliciting testimony of a defendant’s action in hiring an attorney in view of the tendency of such testimony to serve as the base for an inference of guilt based on such an act.
“Earlier, in United States v. Liddy (D.C. Cir. 1974) 509 F.2d 428, that same court indicated that the Griffin principle prohibits drawing adverse inferences from not only the fact of hiring an attorney but also the time and circumstances of retaining an attorney. The court specifically warned of the ‘mischief of the approach’ that allows time and circumstances to be taken into account because it ‘raises problems that hobble the right to seek counsel,’ inviting ‘probing of the very process of selection of counsel-who, why, when and where. . . .’ (Id. at p. 444.) As the Liddy court observed (ibid.): ‘It would be a rare case indeed where the prosecutor could not point out that the incriminating feature of the employment of counsel . . . rests not in the employment as such but in the time and circumstances surrounding that event, and inferences therefrom that reflect adversely on the defendant. [Fn. omitted.]’
“Recently, in United States v. Gold (N.D. Ill. 1979) 470 F. Supp. 1336, the federal district court held that it was improper for prosecutors by questions and comments to draw adverse and incriminatory inferences from a corporation’s employment during administrative proceedings and investigation of a particular law firm which had a nationwide reputation as criminal defense lawyers. The court stated (id., at p. 1352): ‘It is not to be doubted that [the corporation] had the constitutional right to employ counsel of its choice in the administrative proceedings, and certainly to be advised with regard to the criminal investigation. ... It is improper, where a right is constitutional, for a prosecutor either to question or comment on its exercise. [Citation.] To do so is to make assertion of the right costly. [Citations.] For this reason, in a criminal law context, it is basically unfair for a prosecutor to urge against a person the time and circumstances of his retention of an attorney.’ ” 114 Cal. App. 3d at 188-89.
The California court reversed Schindler s murder conviction because it concluded that the errors were prejudicial:
“The improper exploitation of defendant’s exercise of her constitutional rights to remain silent and to retain the counsel of her choice cannot be deemed harmless error under either the standard stated in People v. Watson (1956) 46 Cal. 2d 818 [299 P.2d 243], or the higher standard specified in Chapman v. California (1967) 386 U.S. 18 [17 L. Ed. 2d 705, 87 S. Ct. 824, 24 A.L.R.3d 1065], The only issue at trial was defendant’s intent and mental capacity at the time of the commission of the offense. The defense evidence was substantial. The rebuttal evidence direcdy attacked her defense, and the prosecutor’s argument that the evidence showed she was fabricating her ‘panic’ state was most prejudicial. Furthermore, the fact that the jury deliberated 22 hours before reaching a verdict underscores the closeness of the case and the crucial nature of the constitutional violations. (See People v. Rucker, supra., 26 Cal. 3d at p. 391.) The judgment of conviction, therefore, must be reversed.” 114 Cal. App. 3d at 190.
In McDonald, the Fifth Circuit Court of Appeals found merit in a defendant’s claim that “the prosecutor transgressed his Sixth Amendment right to counsel by eliciting testimony that his lawyer was present when Secret Service agents executed a search warrant at his home and by commenting on that fact during closing arguments.” McDonald’s convictions of dealing in counterfeit currency and conspiring to deal in counterfeit currency were overturned. 620 F.2d at 560, 566. When agents entered McDonald’s house to execute a search warrant approximately 4 hours after prior surveillance of an incident at the house, McDonald’s lawyer was there with him. The search produced no evidence. Although he admitted knowing of the counterfeiting scheme of Head and Bums, McDonald denied having any part in it. At trial the prosecutor elicited testimony about McDonald’s lawyer being present during the search. In closing argument, after discussing evidence of activity around the house that would have indicated to McDonald that a search of his house was impending, the prosecutor described the agents’ entry into the house: “ ’And who was there? The defendant’s attorney.’ ” 620 F.2d at 562. The prosecutor continued: ’’ 1 suggest to you if Jimmy McDonald knew all this was going on, and had his lawyer out there three hours later, I believe that would be sufficient time to dispose of any ashes or any evidence, if you were so inclined.’ ” 620 F.2d at 562.
The government denied trying to impute guilt by referring to the lawyer’s presence and argued that it showed McDonald had time to destroy evidence because he had time to summon his lawyer. Noting other evidence of time to destroy evidence, the court “conclude [d] that the real purpose of the reference to the attorney’s presence was to cause the jury to infer that McDonald was guilty. The reference therefore penalized McDonald for exercising his Sixth Amendment right to counsel.” 620 F.2d at 564. The court added: “It is impermissible to attempt to prove a defendant’s guilt by pointing ominously to the fact that he has sought the assistance of counsel.” 620 F.2d at 564. With regard to the government’s contention that the infringement of McDonald’s right to counsel was harmless error, the Fifth Circuit Court of Appeals concluded that the constitutional right was so basic to a fair trial that the infraction could not be considered harmless error. 620 F.2d at 564. The court continued:
“Comments that penalize a defendant for the exercise of his right to counsel and that also strike at the core of his defense cannot be considered harmless error. The right to counsel is so basic to all other rights that it must be accorded very careful treatment. Obvious and insidious attacks on the exercise of this constitutional right are antithetical to the concept of a fair trial and are reversible error.” (Emphasis added.) 620 F.2d at 564.
The italicized portion of the quote at the end of the preceding paragraph shows that the Fifth Circuit Court of Appeals will reverse a conviction on account of a prosecutor’s questioning and comments only where they are directed at the defendant’s essential story concerning the crime for which he or she is charged. Because the implication of the prosecutor’s references to McDonald’s attorney was “that McDonald had destroyed incriminating evidence” and that implication “struck at the jugular of the exculpatory story, the essence of which was that there was no evidence to destroy,” the Fifth Circuit’s second requirement for reversal was satisfied. See 620 F.2d at 563.
In United States v. Liddy, 509 F.2d 428, the defendant was convicted on charges relating to the burglary and wiretapping of offices of the Democratic National Committee (DNC) in the Watergate complex in the early morning hours of Saturday, June 17, 1972. Liddy was not among the men who were apprehended in the offices, but he was seen outside the building with Howard Hunt shortly after police arrived on the scene. At about 3 a.m. Hunt called an attorney, Caddy, and then went to see him. Caddy testified that Hunt arrived at Caddy’s apartment at approximately 3:40 a.m. and arranged with him to secure experienced criminal counsel for the five men arrested in the DNC offices. About an hour later, Hunt called Liddy. Hunt and Caddy explained to Liddy what they had done to retain an attorney for the burglars. “During this conversation, Liddy indicated that he desired to have Caddy represent him in this matter.” 509 F.2d at 443. In closing arguments, the government emphasized the unusual hour at which Liddy retained counsel. The trial court instructed the jury that it “could draw no adverse inferences from the fact that Liddy retained counsel but could ‘consider the time and other surrounding circumstances at which Mr. Liddy retained Mr. Caddy with respect to the state of mind of Mr. Liddy only.’ ” 509 F.2d at 443. Basing his allegation of error on Griffin v. California, 380 U.S. 609, Liddy argued on appeal “that allowing the jury to draw inferences of guilty knowledge from his efforts to obtain counsel imposes a penalty on the exercise of his Sixth Amendment rights.” 509 F.2d at 443. The District of Columbia Circuit Court of Appeals approved the first part of the instruction that prohibited drawing adverse inferences from Liddy’s retaining counsel. 509 F.2d at 443-44. The court stated:
“To the extent that an inference of criminality is operative, it invites probing of the very process of selection of counsel — who, why, when and where — and pressing the defendant to come forward with evidence concerning this process. The mischief of the approach is underlined by its semantic subtleties, which opens the door to maneuver and misunderstanding. It would be a rare case indeed where the prosecutor could not point out that the incriminating feature of die employment of counsel — in the absence of explanation — rests not in the employment as such but in the time and circumstances surrounding that event, and inferences therefrom that reflect adversely on the defendant.” 509 F.2d at 444.
In the circumstances of the Liddy case, however, the Court of Appeals concluded that the error was harmless beyond a reasonable doubt. The court reasoned that
“the effect of the error was mitigated by the fact that evidence of part of Liddy’s 5:00 a.m. conversation with Caddy was clearly admissible to show Liddy’s involvement in his action of retaining counsel for those arrested during the break-in. His assertion of a right to Sixth Amendment protection against any use of his statements to obtain counsel for himself certainly does not prohibit inquiry into portions of his conversation with Caddy relating to his action in obtaining counsel for others. This evidence of Liddy’s efforts on behalf of the five defendants only a few hours after their arrest was probative of his involvement in their venture.” 509 F.2d at 445.
In Hunter v. State, 82 Md. App. 679, 573 A.2d 85 (1990), defendant Hunter, after causing a fatal vehicle accident, went to a nearby house to call 911. He also contacted his attorney. In a non-responsive answer to defense counsel’s questioning, a state trooper mentioned that defendant called his attorney. When defendant testified, the prosecutor referred back to the officer’s testimony and asked Hunter if he had called his lawyer and then asked him why he called his lawyer. Defense counsel’s objection was overruled, and Hunter answered, “ To see if he would defend me.’ ” 82 Md. App. at 684. The prosecutor followed up with this question, “ ‘And the reason you called your lawyer to see if he would defend you is because you were riding down the road with at least a .15 percent ethyl alcohol percentage weight in your blood stream, and you weren’t paying attention to your driving, isn’t that correct?’ ” Hunter answered, “ ‘No.’ ” 82 Md. App. at 684. The prosecutor concluded his closing argument as follows:
“ ‘I suggest to you Mr. Hunter was drunk and his negligence caused this accident by his inability to react properly, by his own admission, and lastly, you have Mr. Hunter who talks to his attorney and the last thing he says is “I wanted to talk to my attorney to see if he would defend me.” A guilty mind. Thank you.’ ” 82 Md. App. at 685.
Although agreeing with the outcome of Macon and a number of cases that followed it, see 82 Md. App. at 689, the Maryland court disapproved the premise on which those cases rest, i.e., the exercise of a Sixth Amendment right to counsel:
“This raises the question whether the obtention or attempted obtention of a lawyer or legal advice prior to that point can properly be regarded as the exercise of a right under the Sixth Amendment for purposes of a Griffin analysis. The harm, of course, occurs at trial, when the evidence is elicited or the comment is made, and surely at that point, the Sixth Amendment right has attached. But as the harm consists of penalizing the earlier exercise of a Constitutional right, one must look back to the event purporting to constitute the exercise of that right. If in fact, or in law, it does not constitute the exercise of a Constitutional right, the whole penalty’ analysis collapses.” 82 Md. App. at 690.
Having rejected the Griffin analysis but being convinced that evidence of or comment on an early contact with counsel was impermissible, the Maryland court turned its attention to the Due Process Clause of the Fourteenth Amendment and the rules of evidence:
“The right of a person to seek the advice and assistance of counsel is not, of course, restricted to the specific right afforded by the Sixth Amendment or its State counterpart. [Citation omitted.] A person has an independent right, protected we think by the general due process clause, of the Fourteenth Amendment and its State counterpart [citation omitted] to seek legal advice or representation at any time, on any matter, and for any reason. This is especially so when the person perceives that civil or criminal litigation against him may be in the offing, as was surely the case here. . . .
“The exercise of this right does not imply a consciousness of guilt. In seeking legal advice or representation, the person may well believe himself culpable of some tortious or criminal conduct. But he may just as well believe himself entirely innocent or only partly culpable, or he simply may not know whether his acts or omissions are in violation of law. And if he has some pre-formed belief as to his culpability or innocence, that belief may turn out to be unfounded. Indeed, common human experience would suggest that, absent some special circumstance not evident here, the most likely purpose for seeking legal advice or representation is to find out what one’s status and exposure may be. If there is a rational inference to be drawn from the seeking of such advice or representation therefore, it cannot be more than that — an uncertainty. To draw an inference of consciousness of guilt from the seeking of such advice, then, is both illogical and unwarranted; the fact to be inferred — the consciousness of guilt — is not made more probable (or less probable) from the mere seeking of legal advice or representation, and so evidence of the predicate fact is simply irrelevant. On pure evidentiary grounds, it is inadmissible.” 82 Md. App. at 690-91.
Concluding that it could not say that the error was harmless, the Maryland court reversed the convictions. 82 Md. App. at 691.
In the present case, the State contends that Dixon’s right to counsel had not attached when he telephoned and met with Johnson in the days immediately after the explosion and before criminal proceedings had been initiated. The State cites Liddy and Riddley as making attachment of the right to counsel the threshold requirement. The Liddy court, contrary to tire State’s assertion, did not conclude that the initiation of criminal proceedings was relevant to the analysis. Instead, it concluded that cases involving a prosecutor’s commenting on a defendant’s request for counsel upon arrest were not useful, based on Griffin, where the defendant’s claim that the jury should not have been permitted to consider when and in what circumstances he contacted an attorney:
“Those cases, though containing language referring generally to the right to counsel, appear to be bottomed on considerations involving the rights of an accused facing police interrogation — a context in which the right to counsel is intimately bound up with the privilege against self-incrimination. They are thus of marginal value in ascertaining the applicability of Griffin to the Sixth Amendment claim raised in the present case.” 509 F.2d at 443.
The Riddley court was evenly split between justices who concluded that Riddley’s contact with his counsel was not constitutionallyprotected because it was made before the defendant’s Sixth Amendment right to counsel attached and justices who believed that Riddley’s contact with counsel was protected by the Due Process Clause of the Fourteenth Amendment. See 777 So. 2d at 34-36 (majority), 36-39 (dissent).
In State v. Pabst, 268 Kan. 501, 996 P.2d 321 (2000), the court prescribed a two-step analysis for alleged prosecutorial misconduct in closing argument. This test was refined in State v. Tosh 278 Kan. 83, 91 P.3d 1204 (2004). First, an appellate court decides whether the complained-of conduct was outside the considerable latitude given a prosecutor in discussing the evidence. Second, the court decides whether the remarks “constitute plain error, that is, whether the statements prejudiced the jury against the defendant and denied him or her a fair trial.” Tosh, 278 Kan. 83, Syl. ¶ 1. The standard of review discussed and applied in Pabst also applies when the complaint is about a prosecutor’s cross-examining a defendant. See Tosh, 278 Kan. 83, Syl. ¶ 1; State v. Dean, 272 Kan. 429, 439, 33 P.3d 225 (2001). No reason appears why the Pabst analysis should not also apply when the complaint is of a prosecutor’s examining other witnesses and then commenting on their testimonies. In the context of the present case, the two-step analysis would be: First, the court decides whether the complained-of conduct was outside the considerable latitude given a prosecutor in ehciting testimony and commenting on it, and, second, the court decides whether the conduct was so gross and flagrant as to prejudice the jury against the accused and deny him a fair trial.
In this case of first impression for Kansas courts, defendant has relied on cases from other jurisdictions. Of those brought to the court’s attention by Dixon and independent research, all but one concluded that ehciting testimony and commenting on a defendant’s contacting counsel are beyond the latitude afforded the prosecution. Only the Mississippi court in Riddley concluded otherwise, and that court affirmed the defendant’s conviction on an even spht, with those favoring affirmance rejecting a Sixth Amendment claim and declining to consider the issue as a matter of fundamental fairness. All the other courts reasoned that a prosecutor is constitutionally precluded from ehciting testimony of a defendant’s contacting an attorney and commenting on it on account of the potent tendency of the evidence and comment to serve improperly as the basis for an inference of guilt. We conclude that it was improper for the prosecutor by questions and comments to draw incriminatoiy inferences from defendant’s constitutional right under the Fourteenth Amendment to employ counsel as an element of the right to a fair trial. We further agree with the Maryland court that such evidence of “obtention or attempted obtention of a lawyer or legal advise” is irrelevant and inadmissible.
The remaining question is whether the conduct prejudiced the jury against the accused and denied him a fair trial. This step requires a particularized harmlessness inquiry for prosecutorial mis conduct cases, as stated in Tosh, 278 Kan. 83, Syl. ¶ 1. We consider three factors:
“(1) Whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor’s part; and (3) whether the evidence is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of jurors. None of these factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), have been met.” Tosh, 278 Kan. 83, Syl. ¶ 2.
Viewing the prosecutor’s conduct in light of the trial record as a whole, as required, we find that the prosecutor’s eliciting testimony from multiple witnesses and then commenting on it in closing argument improperly highlighted defendant’s conduct for the jury on five separate occasions. The prosecutor’s repeated references to defendant’s contacting counsel certainly appears to have been intended to imply that only guilty people contact their attorneys and to cause the jurors to infer guilt on that basis. In these circumstances, the prosecutor’s conduct amounted to a flagrant violation of Dixon’s right to a fair trial in that the conduct penalized him for exercising his right. The jury could have found, based on other evidence, that Dixon was guilty. The jurors, however, also might have decided Dixon was guilty because the prosecutor implied that defendant must be guilty by repeatedly eliciting testimony and commenting on defendant’s contacting counsel. Under such circumstances we cannot conclude that such error was harmless.
5. DISTRICT COURT’S REFUSAL TO GRANT DIXON’S MOTION FOR MISTRIAL.
Defendant requested a mistrial after hearing the testimony of Dr. Mario Gomez. The motion was overruled.
The trial court may declare a mistrial when prejudicial conduct makes it impossible to proceed with the trial without injustice to the defendant. K.S.A. 22-3423(1)(c). Declaration of a mistrial is a matter entrusted to the trial court’s discretion, and the decision will not be set aside on appeal unless an abuse of discretion is clearly shown. The defendant has the burden of proving that he or she was substantially prejudiced. State v. Deal, 271 Kan. 483, Syl. ¶ 2, 23 P.3d 840 (2001).
On appeal, Dixon contends that his defense was hampered when Gomez testified inconsistently with his written report because in hiring experts Dixon relied on Gomez’ written report. During discovery, Dixon received a written report from Gomez stating that there were two possible sources for the gas leak — a burner of the stove or a break in the flexible hose connecting the range to the wall outlet. At trial, Gomez testified that he did not mean just the flexible hose, “Actually, what I meant is a complete assembly that is now Exhibit 70, not the flexible part because I already see the flexible part and it’s intact, so there’s nothing there I can say would help me. I was referring to the assembly of the flexible pipe, the tube plus the pipe.”
In support of the motion for mistrial, defense counsel told the trial court:
“When we received this report we told our metallurgist that we had consulted with that he would no longer be needed because the State was not proceeding on a theory that the rigid pipe had been broken, releasing the natural gas, or at least they were not presenting expert testimony to that effect. We based that on the just plain language of the report.”
Defense counsel added:
“Dr. William Amoult [a metallurgist] drafted this affidavit so that we could . . . subject State’s Exhibit 70 to scanning electron microscopy. We called all over trying to find a facility to do that and then we received this report, and he at this point would say that he lacks sufficient information from the materials we sent him for him to draw any conclusion. And it would have been a costly endeavor for him to get that and so that’s why we quit.”
The State said that its offers to allow defense counsel to have the pipe examined were refused and that it had made Gomez available. The State also suggested that Gomez’ imperfect English might account for some imprecision in his report. Defense counsel conceded that the pipe assembly had been offered to him for inspection. At the State’s suggestion, the trial court examined Agent Lobdell’s preliminary hearing testimony. Lobdell testified at the prehminaiy hearing that the vertical supply pipe through the kitchen floor had been broken off at its threads where it was joined with the horizontal supply pipe just under the kitchen floor.
The trial court’s ruling was issued from the bench:
“THE COURT: This second motion for mistrial hinges upon provisions in Dr. Gomez’s report, and significantly I think it refers to his conclusion number 5, which says, quote, alternatively, NG, referring to natural gas, flow may have started by voluntary or accidental breaking of the flexible hose connecting the range to the wall outlet, end quote. If I’m understanding defense counsel’s argument correctly, that argument is that because of the use of the term ‘flexible hose’ there the defendant terminated efforts to verify or to evaluate the claim that there had been a crack occur in the threads of the rigid or solid wall pipe that is also part of this gas line assembly from the gas supply line. Did I get that right?
“[DEFENSE COUNSEL]: Your Honor, we understood there was a crackthere between the rigid and the union. The question is whether that crack was the reason that natural gas was emitted, that is, whether it occurred before or after the explosion.
“THE COURT: I understand. Okay. Well, in any event, the motion is going to be denied. Under the circumstances it appears that this case has always been pretty much tried on the premise that this defendant was responsible for the creation of a crack that occurred at the joint between the rigid supply line and the •— what I call the gas pipe riser, which is also a rigid gas pipe, where it’s threaded together. Now, Dr. Gomez’s report refers to the flexible hose, which he now indicates he calls the whole assembly, which includes a part flexible line and part rigid line, but it also refers to the wall outlet, which there is no wall outlet, it comes up through the floor. Everybody has agreed to that. Under those circumstances, I don’t think that this report so significantly misled anyone that I would call it the basis for a mistrial under these circumstances. I think it’s already been clear what the State’s contention was where the crack occurred and the circumstances of the claim on the part of the State. So, . . . the motion is denied.”
As noted by the trial judge, in planning a defense strategy Dixon had Lobdell’s preliminary hearing testimony to take into account, as well as Gomez’ report. He should have been aware from the reference to a wall outlet that Gomez’ report contained some imprecise language; he had been offered access to Gomez and to Exhibit 70, the gas pipe assembly. We agree with the trial court that in these circumstances the defendant should not have been significantly misled. What prejudice Dixon may have suffered, if any, from Gomez’ including the supply pipe along with the flexible hose in his trial testimony resulted from defendant’s being less able to cast doubt on the State’s theory by playing up the difference between the opinions of Gomez and Lobdell. This would not be substantial prejudice so as to support a motion for mistrial. In these circumstances, Gomez’ including the supply pipe along with the flexible hose in his trial testimony but not in his report was a matter for cross-examination rather than a mistrial. The trial court did not abuse its discretion in denying defendant’s motion.
6. WAS DIXON DEPRIVED OF HIS RIGHT TO A PUBLIC TRIAL?
The trial of Ethan Griffin, who was charged with nearly all the same charges as Dixon, was scheduled to begin as soon as Dixon’s trial was over. Griffin and Dixon could not be tried simultaneously because there was only one prosecution team. The jury for Griffin’s trial was chosen before Dixon’s trial concluded. Although it had been sworn to tell the truth during voir dire, at the time the Dixon verdicts were returned the Griffin jury had not been sworn and empaneled for the trial. In order to prevent the Griffin jury’s deliberations from being tainted by information about the Dixon verdicts, the trial court closed the courtroom to media and spectators before reading the Dixon jury’s verdicts. Defense counsel objected. In addition to the Dixon jury and court staff, only the defendant, counsel, and Dana Hudson’s parents were allowed to remain in the courtroom while the verdicts were announced. After the verdicts were read, the trial judge told the jurors that they could not disclose their verdicts “until such time as I have directed that [they] may be disclosed in order to try and prevent any undue influence on the subsequent trial that we’re about to start tomorrow. And I have said that [these] verdict[s] would be released once I got the jury impaneled and sworn, which I expect to probably occur before noon tomorrow.” In ruling on this issue, the trial judge announced that as soon as he had the Griffin jury “subject to [his] direct control,” he would release the verdicts and make available a complete transcript of the proceeding.
On appeal, Dixon concedes that the trial court’s concern about jury contamination in Griffin’s trial was legitimate and that criminal proceedings may be closed in certain circumstances. As the United States Supreme Court stated in Waller v. Georgia, 467 U.S. 39, 45, 81 L. Ed. 2d 31, 104 S. Ct. 2210 (1984), “the right to an open trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information. Such circumstances will be rare, however, and the balance of interests must be struck with special care.” The court’s review of this question of law is unlimited. See State v. White, 275 Kan. 580, 597, 67 P.3d 138 (2003).
The State does not suggest that a defendant’s right to a public trial does not apply to announcement of the verdict. The question in Waller was whether a defendant’s right to an open trial applied to a suppression hearing, and the Supreme Court concluded that it did. 467 U.S. at 43, 48-50. The only instance in which Waller has been cited in a Kansas case is State v. Kleypas, 272 Kan. 894, 930, 40 P.3d 139 (2001), where it was cited for another principle — that only improperly seized evidence need be suppressed. Dixon cites several New York cases in which new trials were granted because the courtroom was closed following presentation of the evidence. See, e.g., People v. Singh, 287 App. Div. 2d 748, 749, 732 N,Y.S.2d 415 (2001), in which the defendant’s right to an open trial was said to apply where the courtroom was closed from the time the jury was instructed to the end of the proceedings. Dixon also cites People v. Martinez, 172 App. Div. 2d 428, 568 N.Y.S.2d 940 (1991), in which the defendant’s family was removed from the courtroom before announcement of the verdict.
In Waller, the Supreme Court stated that “under the Sixth Amendment any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press-Enterprise and its predecessors.” 467 U.S. at 47. In Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 509-10, 78 L. Ed. 2d 629, 104 S. Ct. 819 (1984), the Supreme Court quoted Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07, 73 L. Ed. 2d 248, 102 S. Ct. 2613 (1982), as follows:
“ ‘[T]he circumstances tinder which the press and public can be barred from a criminal trial are limited; the State’s justification in denying access must be a weighty one. Where . . . the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest and is narrowly tailored to serve that interest.’ ”
The Supreme Court continued:
“The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” 464 U.S. at 510.
Dixon contends that the decision to close announcement of the verdicts in this case did not satisfy the Waller test because the trial court failed to consider reasonable alternatives to closure. Dixon argues that the trial court could and should have gone ahead and sworn in Griffin’s jury in order to subject it to the trial judge’s direct control and instructed it to avoid media coverage of the verdicts in Dixon’s trial. Defense counsel did not suggest this or any other alternatives to the trial judge. Dixon further argues that any exposure to information about the verdicts in Dixon’s trial could have been cured for Griffin by replacement of jurors. Contrary to Dixon’s contention, the trial judge did consider the possibility of selecting new jurors for Griffin’s trial:
“Item Number 4, change of venire. Basically that means pick a different jury pool. I would challenge anyone in this courtroom to go out and find a different jury pool than what we found. That jury pool was selected as randomly as any one. The publicity would have the same effect on the jury pool. I can’t go out and find a different 50,000 people to try and select a jury pool from. That’s not an option available to me, and that is cold hard fact.
“Next issue or next option available to me is intense voir dire. We had that, and as far as I’m concerned counsel will have another opportunity to ask questions. I don’t know what the result of those questions is going to be. The point is, at this point in time I cannot make a factual conclusion to the contrary that the extent of this publicity, which has been intensive and daily, has not had some effect.
“The next item is additional peremptory challenges. I think I have accommodated that as well in that we have provided for additional alternate jurors when we bring that second jury panel in to choose from in the event that we do have some leave. So, I have considered and adopted that standard as well.”
Although it does not appear that the trial court expressly considered the specific possibility of swearing in Griffin’s jury before hearing the Dixon verdicts, as defendant now advocates, in.the extensive findings made by the trial court it is apparent that the required consideration was given to whether the closure was necessitated by a compelling governmental interest. The outline of the trial court’s analysis was drawn from the reasonable alternative means noted by this court in Kansas City Star Co. v. Fossey, 230 Kan. 240, 249, 630 P.2d 1176 (1981): “ ‘(1) continuance, (2) severance, (3) change of venue, (4) change of venire, (5) intensive voir dire, (6) additional peremptory challenges, (7) sequestration of the jury, and (8) admonitory instructions to the jury.’ ” The court was quoting from the commentary to Fair Trial and Free Press: Standard 8-3.2, which was adopted by the American Bar Association’s Standing Committee on Association Standards for Criminal Justice in August 1978 and adopted by this court in July 1981. 230 Kan. at 247-48, 251.
Upon concluding that closure is necessitated by a compelling interest, tire Waller standard requires the trial court to narrowly tailor the closure order to serve that interest. In this case, the trial judge closed the courtroom for the reading of the verdicts, but announced his intention to disclose the information the following day when Griffin’s jury was in place. There is no suggestion by the parties that his intention was not carried out.
This case is readily distinguishable from the New York cases relied on by Dixon. In both, the trial court closed the courtroom without inquiring whether there was any reason to do so. In Martinez, the New York Supreme Court stated that
“the failure to record any purported compelling reasons justifying closure precludes a proper review by this court and mandates a reversal of defendant’s conviction. [Citations omitted.] A courtroom may be closed where an overriding interest to preserve higher values is demonstrated (see, Waller v. Georgia, 467 U.S. 39; [citation omitted]). However, this interest must be articulated along with findings that are specific enough to permit a reviewing court to determine whether closure was warranted. [Citation omitted.]” 172 App. Div. 2d at 429.
In the present case, in contrast, tire trial court went to great lengths to articulate the interest to be served by closure as well as its findings on reasonable alternative means.
Dixon also cites United States v. Canady, 126 F.3d 352 (2d Cir. 1997), cert. denied 522 U.S. 1134 (1998). The constitutional prob lems in Canady eclipsed that of a closed courtroom in that the defendant first learned of his conviction by reading a newspaper. Hence, the defendant’s right to be present at all stages of a criminal proceeding was at the heart of his appeal along with his right to a public trial. At the close of the evidence in Canady’s bench trial, the trial judge announced that he would read some cases and write an opinion. Instead of reconvening court for delivery of the verdict, the trial judge filed the opinion and mailed copies to the parties. The federal Court of Appeals found error in the failure of the district court to announce its verdict in open court in the presence of the defendant. 126 F.3d at 362-63.
We conclude in the present case that it was error for the trial court to close the courtroom for announcement of the verdicts. Having so concluded, we must determine if such error was harmless. The discussion of harmless error in Canady is instructive. The federal court stated: “This is a critical inquiry because, if harmless error analysis is applicable, we have little doubt that the verdict would be the same and that therefore the error would be harmless.” 126 F.3d at 363.
The federal court continued:
“While there are some errors to which harmless error analysis does not apply, ‘they are the exception and not the rule. Accordingly, if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis.’ Rose v. Clark, 478 U.S. 570, 578-79, 106 S. Ct. 3101, 3106, 92 L. Ed. 2d 460 (1986) (citation omitted). Nonetheless, there are ‘some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.’ Arizona v. Fulminante, 499 U.S. 279, 308, 111 S. Ct. 1246, 1264, 113 L. Ed. 2d 302 (1991) (plurality opinion). These so-called ‘structural errors’ are ‘defects in the constitution of the trial mechanism’ which affect the ‘entire conduct of the trial from beginning to end,’ and include, inter alia, ‘the absence of counsel for a criminal defendant,’ ‘the presence on the bench of a judge who is not impartial,’ and ‘the right to a public trial.’ Id. at 309-10, 111 S. Ct. at 1264-65.
“While the Court in Fulminante listed the deprivation of the right to a public trial as a ‘structural error,’ we have recognized that not every violation of that right is free from harmless error review. See, e.g., Rushen [v. Spain], 464 U.S. [114,] 118-19, [78 L. Ed. 2d 267, 104 S. Ct. 453 (1983)] (finding ex parte communication between judge and juror to be harmless); Yarborough v. Keane, 101 F.3d 894, 898 (2d Cir. 1996) (holding that defendant’s exclusion from hearing to question witness was harmless because hearing was ‘extremely brief,’ ‘not even a part of the trial proper/ and ‘of little significance’), cert. denied, 520 U.S. 1217, 117 S. Ct. 1706, 137 L. Ed. 2d 831 (1997); cf. Peterson v. Williams, 85 F.3d 39, 44 (2d Cir.) (’trivial’ and ‘inadvertent’ closure of trial during defendant’s testimony did not violate public trial guarantee), cert. denied, 519 U.S. 878, 117 S. Ct. 202, 136 L. Ed. 2d 138 (1996). Nonetheless, the rendering of the court’s decision, following a criminal bench trial, is qualitatively different from these minor violations of the public trial guarantee.
“The announcement of the decision to convict or acquit is neither ‘of little significance’ nor ‘trivial/ it is the focal point of the entire criminal trial. To exclude the public, the defendant, the prosecution, and defense counsel from such a proceeding- — -indeed not to have a proceeding at all- — affects the integrity and legitimacy of the entire judicial process. Accord Guzman v. Scully, 80 F.3d 772, 776 (2d Cir. 1996) (‘[I]t is well-settled that a defendant whose right to a public trial has been violated need not show that he suffered any prejudice, and the doctrine of harmless error does not apply.’). “While' the benefits of a public trial are frequently intangible, difficult to prove, or a matter of chance, the Framers plainly thought them nonetheless real.’ Waller, 467 U.S. at 49 & n. 9, 104 S. Ct. at 2217 & n. 9 (‘defendant should not be required to prove specific prejudice in order to obtain relief for violation of public trial right). In view of our long history of public open trials, we hold that die failure to publicly announce in open court the decision following a criminal bench trial is an error of constitutional dimension that affects the framework of the trial itself and is not subject to harmless error review. But see [United States v.] Huntley, 535 F.2d [1400,] 1404 [(5th Cir. 1976)] (pre-Fulminante case subjecting trial court’s failure to announce verdict publicly to harmless error analysis).” Canady, 126 F.3d at 363-64.
Here, the trial court considered the advocated interests and the alternatives. The trial court exercised care in striking a balance of those interests. But the court’s decision was made in response to intervention by area newspapers, whose interests were the First Amendment interests of media freedom. Although defense counsel made a simple statement of objection to closing the courtroom, the Sixth Amendment interest in a public trial seems not to have been pressed. The trial judge’s statement of the interests balanced was that “it appears to me that there is a greater danger that a disclosure of the jury verdict would prejudice [Griffin’s] right to a fair trial than there is a danger to the rights of the public to receive this information.” However, it was Dixon’s right to a public trial that is at issue here.
Because the reasonable and seemingly obvious alternative of empaneling and swearing Griffin’s jury was available but not utilized, the closure was not warranted and thus the trial court erred. As previously noted, an error of constitutional magnitude may not be held to be harmless unless the appellate court can declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. State v. Boldridge, 274 Kan. 795, 808, 57 P.3d 8 (2002), cert. denied 538 U.S. 950 (2003). As the federal court noted in Canady, there is no question that the error would not have changed the verdicts because the verdicts had already been reached. The lack of effect on the verdicts, however, should not necessitate the conclusion that the error was harmless where the trial court’s closing the courtroom was inconsistent with substantial justice. We find the rationale of the court in Canady persuasive and conclude that the closure was inconsistent with the substantial right of Dixon to a public trial and not harmless error.
7. JURY INSTRUCTIONS FOR THE BURGLARY CHARGES.
Dixon was charged with two counts of burglary, one for each time he entered Alicia Shaw’s apartment in the early morning hours of July 29. For each count, the jury was instructed as follows:
“To establish this charge, each of the following claims must be proved:
“1. That Mr. Dixon knowingly entered or remained in a building which is a dwelling;
“2. That Mr. Dixon did so without authority;
“3. That Mr. Dixon did so with the intent to commit a theft, and/or aggravated arson, a felony, and/or criminal damage to property, a felony, therein; and
“4. That this act occurred on or about the 29th day of July 2001 in Lyon County, Kansas.”
For the instruction on the first burglary, defense counsel objected on two grounds — that there was no evidence of any intent to commit aggravated arson and that a multiple acts instruction was needed. The State responded with regard to evidence of an intent to commit aggravated arson that defendant’s statements about stuff going up in flames were sufficient to show his intent to enter Alicia’s apartment to commit arson. The trial judge refused to give a multiple acts instruction on the ground that the burglary presented an alternative means issue rather than a multiple acts issue. He also rejected defendant’s objection to the lack of evidence:
“[T]he evidence of an intent to commit aggravated arson on the first burglary is extremely weak. As I recall, there was a lot of discussion as to when this gas was purchased and when these statements were made that are supposedly attributed to the defendant about things going up in flames and that type, and the jury could certainly conclude that that occurred after the first entrance but prior to the second entrance or it could conclude that it was prior to the first entrance into the apartment. But again all we’re dealing with is an intent here, not the actual carrying out of the act, and so I’m going to allow it to go as charged because the State is entitled to present to the jury all theories of its case.”
On appeal, there are two parts to Dixon’s argument. The first is his right to a unanimous verdict. Dixon argues that the jury should have been required to unanimously agree on the intent with which he entered Alicia’s apartment. He concedes that jury unanimity is not required as to which of alternative means by which a crime was committed, but he argues that the rule ought to be changed. The rule has been confirmed at least as recently as March 2004 in State v. Morton, 277 Kan. 575, 86 P.3d 535 (2004). There is no merit to the first part of the argument. For the second part, Dixon argues that there is no evidence that he entered Alicia’s apartment with the intent to commit aggravated arson. The State fails to address the issue of evidence of intent to commit aggravated arson.
For the proposition that the trial court’s including alternative means for which there is no evidence requires reversal of his burglary convictions, Dixon cites State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994), where the court stated: “ ‘Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.’ [Citations omitted.]” (Emphasis added.) “ ‘In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt.’ [Citations omitted.]” State v. Hoge, 276 Kan. 801, 813, 80 P.3d 52 (2003) (quoting Timley, 255 Kan. at 289).
The trial judge seems to have believed there was a dispute about whether the bucket of gasoline was purchased before or after the first burglary, but Hall, Hayes, and Griffin all testified that it was purchased after the first burglary and before Hall and Hayes were taken to the residence of Hall’s friend. The time indicated on the receipt for the gasoline was 4:23 a.m., and Hall testified that he thought the first burglary occurred an hour or two after Fatty’s closed at 2 a.m. The trial judge also seems to have believed that there was evidence of defendant’s making statements “about things going up in flames” that the jury could conclude were made before the first burglaxy. The evidence the trial judge had in mind, however, seems to be Griffin’s testimony, which is linked to the bucket of gasoline. The pertinent questions and answers were as follows:
"Q. [Prosecutor:] Did the defendant ever say what his plan was with the gasoline, the defendant?
“A. [Griffin:] No, he didn’t.
“Q. Okay. I want you to go to 00 — get the other notebook here. On the second page, go to 00:35:42.
“A. 35:42? 00:35:42?
"Q. Yes, sir. Would you read a couple of lines past that, as well?
“A. (The witness complied with the request.)
“Q. Did the defendant tell you what his plan was with the gasoline?
“A. No, he didn’t. I overheard Wallace Dixon say he would bum her — he would bum up the yard or bum the apartment.
“Q. Referring to the gasoline?
“A. Maybe, yes.
“Q. Would you read or read it to yourself and try to give us the exact quote that Wallace Dixon gave you?
“A. That I overheard?
“Q. Yes.
“A. He didn’t — I heard —• what I heard is, I’ll bum it up, and that’s when all the commotion had started and that’s when I threw the gas out the window.
“Q. And what happened after that? After you got the gas and you guys threw it out the window what did you do?
“A. We went to Donnie Wishon’s house.”
Wishon is Hall’s friend in Emporia. As we have seen, the evidence shows that the bucket of gasoline was purchased after the first burglary and before Hall and Hayes were taken to the residence of Hall’s friend.
From this review of the evidence, it does not appear that a rational trier of fact could have found that Dixon had the intent to commit aggravated arson the first time he entered Alicia Shaw’s apartment on July 29, 2001.
Dixon also asserts that there is not sufficient evidence to support the instruction on entering the apartment with intent to commit criminal damage to property. This argument was not presented to the trial court.
For the instruction on the second burglary, defense counsel objected on two grounds — that there was no evidence of intent to commit theft or criminal damage to property and that a multiple acts instruction was needed. The trial court simply stated that “[tjhose objections have been noted and overruled.” On appeal, Dixon argues there is no evidence that he entered Alicia’s apartment the second time with the intent to commit theft. The State fails to address the issue of evidence of intent to commit theft. Nothing in the testimony of Griffin, the only person who reentered Alicia’s apartment with Dixon, seems to indicate that theft was an intent.
The nonexistence of direct evidence of Dixon’s intent does not end the inquiry. Intent, a state of mind existing at the time the offense is committed, does not need to be and rarely can be directly proven. It may be established by acts and circumstances and inferences reasonably deducible from evidence of acts and circumstances. See State v. Wilkins, 269 Kan. 256, 264-68, 7 P.3d 252 (2000). In Wilkins, we held the evidence was sufficient to convict the defendant of burglary where the evidence was that he was found in a pawn shop, having broken in through a hole in the roof. 269 Kan. at 264. In the present case, there was a second entry into the apartment and from the evidence of his unlawful conduct in the first entry it could reasonably be inferred that Dixon intended to continue such conduct during the second entry.
The remaining question is whether Dixon’s burglary convictions can stand in spite of the absence of evidence sufficient to support each theory for the burglary charges. In State v. Johnson, 27 Kan. App. 2d 921, 923-26, 11 P.3d 67, rev. denied 270 Kan. 901 (2000), the Court of Appeals considered essentially the same question and concluded that the convictions should not be disturbed.
“Our Supreme Court in State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994) (quoting State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988]), stated:
‘ “In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.]” ’
“Under the doctrine set out in Timley, the record must contain substantial competent evidence proving all three means charged in order to uphold a conviction for kidnapping.
....
“Despite the language of Timley, courts of appeal have attained a degree of confidence in jury verdicts of guilt in cases where there is overwhelming evidence supporting the conviction under one of the alternative means. Those courts have concluded that it was harmless error in such cases for the trial court to instruct on all alternatives.
“Our Supreme Court dealt with such a scenario in State v. Grissom, 251 Kan. 851, 840 P.2d 1142 (1992). The Grissom court held that a general verdict of first-degree murder could be upheld if there was sufficient evidence to convict the defendant of either first-degree premeditated murder or felony murder, and the State was not required to prove both. 251 Kan. at 891.
“Grissom adopted the view taken by the United States Supreme Court in Griffin v. United States, 502 U.S. 46, 59-60, 116 L. Ed. 2d 371, 112 S. Ct. 466 (1991), with the following:
‘ “Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law — whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence [citation omitted]. . . .”
‘ “[I]f the evidence is insufficient to support an alternative legal theory of liability, it would generally be preferable for the court to give an instruction removing that theory from the jury’s consideration. The refusal to do so, however, does not provide an independent basis for reversing an otherwise valid conviction.” ’ 251 Kan. at 892.
“A recent 10th Circuit Court of Appeals opinion involving convictions for various conspiracy and mail fraud charges ruled that it was harmless error under the facts of that case where the trial court submitted a properly defined, although factually unsupported, legal theory to the jury along with a properly supported basis of liability. See United States v. Hanzlicek, 187 F.3d 1228, 1236 (10th Cir. 1999).
“This court, in State v. Ice, 27 Kan. App. 2d 1, 6, 997 P.2d 737 (2000), when pondering a rape conviction, after reviewing Griffin, concluded that, where one of the possible bases of conviction was neither unconstitutional nor illegal, but ‘merely unsupported by sufficient evidence,’ there is no constitutional problem with upholding the conviction. The Ice court distinguished its opinion from Griffin with the following:
‘This case differs from those where there was strong evidence supporting one theory and none on another, such as in Griffin. In a Griffin situation, one can reasonably assume the jury did not behave capriciously and convict on a theory in which there was no evidence, when there was strong evidence supporting another theory.’ 27 Kan. App. 2d at 7.
“The task before the jury in this case was to determine whether Johnson was guilty of kidnapping. One cannot tell from the verdict what the basis for that verdict is; however, under the cases cited above, this court can reasonably conclude the jury picked the basis of kidnapping by threat which is supported by overwhelming evidence, rather than by means of force or deception for which there is little or no evidence. K.S.A. 60-261 defines harmless error as any error by a court which is not inconsistent with substantial justice. We conclude, therefore, that including the term ‘deception’ as a means of kidnapping in the jury instructions in this case constitutes harmless error. In light of the overwhelming evidence of Johnson’s guilt on the kidnapping charge, we can see no injustice done by this verdict ." Johnson, 27 Kan. App. 2d at 923-26.
Here, like Grissom, there was strong evidence supporting at least one theory of each burglary and no evidence of at least one other theory. Thus, following Grissom, the erroneous burglary instructions in this case were harmless.
8. DID THE DISTRICT COURT ABUSE ITS DISCRETION IN EXCLUDING EVIDENCE?
Terry Jones testified that he did not want to testily in Dixon s case and received no benefit from doing so. For the purpose of impeachment, Dixon sought to introduce a copy of Jones’ motion seeking a downward departure in his sentence for his cooperating with the State. Jones’ motion recites that he “has provided information and testified on another matter in another jurisdiction.” When asked by the trial judge about the hearsay implications, defense counsel conceded that the exhibit was being offered for the truth of its statement that Jones had cooperated with the State in order to get his sentence reduced. After consulting with cocounsel, defense counsel suggested that it was admissible under the content-of-an-official-record exception to the hearsay record. The trial judge disagreed:
“Yes, if we’re talking about an official record, but we’re talking about a pleading made by an attorney filed in court. And it strikes me that if I buy your argument that 60-460 applies in this case that all I do to make something a truthful argument to be used against somebody is I go up and I file a pleading and I have it certified and then anybody can use it for anything.”
The State echoed the trial judge’s view in stating that the motion documented Jones’ attorney’s belief rather than Jones’, and the State added that it therefore was not relevant to impeach Jones. The trial judge declined to admit the document:
“It’s bad hearsay, but as a practical matter, given the rather vague nature of this, I can’t tell that there is any relevance to this proceeding that we have before us. But if you want to make the efforts to re-call Mr. Jones and shore this up or to modify it in some way beyond what you can, which I am not very doubtful that .you’re going to get much more out of Mr. Jones than you’ve already got because he’s denied he’s testified for anybody on anything, you can do so . . . .”
Defense counsel assured the trial judge that he could be ready the next morning to do whatever further examination of Jones he was going to do.
The next morning, defense counsel again offered the document into evidence, relying on a previously uncited hearsay exception— the statement concerned a matter within the scope of an agency of the parties. The trial court again refused admission. Defense counsel recalled Jones, who testified that he had provided testimony in no other case. Jones, who the day before had said that he did not approve of the downward departure motion being based on his cooperation in another case, further testified that he had not objected at his sentencing proceeding to the basis of the motion.
The admission or exclusion of evidence lies within the sound discretion of the trial court. One who asserts that the court abused its discretion bears the burden of showing such abuse. State v. Jenkins, 272 Kan. 1366, 1378, 39 P.3d 47 (2002). Dixon contends that the trial court abused its discretion in refusing to admit the. document because it was not hearsay and its exclusion impinged his right to confront the witness.
Although at trial the motion was offered as an exception to the hearsay rule, on appeal Dixon contends that the motion was not hearsay. A party may not object at trial to the admission of evidence on one ground and then on appeal argue a different objection. State v. Bryant, 272 Kan. 1204, 1208, 38 P.3d 661 (2002). For this reason, we do not consider the argument Dixon malees on appeal. In any event, it does not appear that admission of the document would have added much, if anything, to the testimony. Thus, even if Dixon had made the proper objection at trial, he has not shown that the trial court abused its discretion in excluding the motion from evidence.
9. DID THE TRIAL COURT ABUSE ITS DISCRETION IN PERMITTING JERRY HALL TO TESTIFY?
During cross-examination, Jerry Hall was shown his Kansas Sentencing Guidelines Journal Entry of Judgment. He agreed that his probation order included that he would “testify on behalf of the State of Kansas in a consistent and truthful manner as set forth in his inquisition.”
The trial judge overruled Dixon’s motion in limine, which sought to prevent Hall from testifying at trial on the ground that the probation order placed him under a strong compulsion to testify in a particular way. At trial, defense counsel’s renewed objection to Hall’s testifying was overruled. The trial court refused to admit Hall’s sentencing journal entry on the ground “it was made quite clear to the jury” that Hall was obligated to testify in a truthful manner consistent with his inquisition testimony. On appeal, Dixon contends that the trial court abused its discretion in permitting Hall to testify and in excluding the journal entry.
K.S.A. 2004 Supp. 22-3101 sets out the procedure for inquisitions in criminal cases. Subsection (3) provides that “[ejach witness shall be sworn to make true answers to all questions propounded to such witness touching the matters under investigation. The testimony of each witness shall be reduced to writing and signed by the witness.”
Dixon relies on State v. Fisher, 176 Ariz. 69, 74, 859 P.2d 179 (1993), in arguing that the consistency requirement undermined the reliability of Hall’s testimony by pressuring him with the threat of imprisonment to persist in one version of the facts. In Fisher, Fisher’s wife entered into a plea agreement “conditioned on an avowal by [her] that if she is called as a witness in the trial of [her husband,] James Fisher, and required to testify, her testimony will not vaiy substantially in relevant areas to the statements previously given to investigative officers . . . .” 176 Ariz. at 80. The Arizona Supreme Court disapproved of the agreement:
“Agreements such as the one involved here undermine the reliability and fairness of the trial and plea bargaining processes and taint the truth-seeking function of the courts by placing undue pressure on witnesses to stick with one version of the facts regardless of its truthfulness. The constraints imposed upon the witness bound by a promise to testify with consistency frustrate the jury’s duty to determine the credibility of the witness. . . .
“. . . The prosecution should have bargained with [Fisher’s wife] only for truthful and accurate testimony. Such an agreement maintains the integrity of the plea agreement process and promotes a fair trial without encouraging unreliable testimony.” 176 Ariz. at 74.
Hall’s probation order differs from the agreement in Fisher in requiring the witness to testify consistently with sworn testimony rather than with statements given to law enforcement officers. Thus, where the Arizona court was concerned that the agreement required the witness to stick with one story regardless of its truthfulness, requiring the witness to testify consistently with previous sworn testimony might seem to alleviate or abate questions about the truthfulness of the previous testimony. In State v. Rivera, 207 Ariz. 383, 388, 86 P.3d 963 (Ariz. App. 2004), however, the Arizona Court of Appeals refused to distinguish Fisher on the ground that the Rivera witnesses agreed to testify truthfully as well as consistently with previous statements:
“We do not agree that such a distinction meaningfully addresses the concerns that gave rise to the law expressed in Fisher. Fisher is designed to preserve the role of a trial as the crucible by which a jury evaluates the truthfulness of testimony. See 176 Ariz. at 74, 859 P.2d at 184. Thus, Fisher prohibits the State from “pre-scripting” testimony by conditioning a witness’s plea agreement on her rendition of a particular version of events. Id. Even if the witness avers in her plea agreement that the specified version of events is true and that the witness will so testify at trial, that avowal is made when the witness is not subject to the testing and confrontation her testimony would receive at trial. Once having entered the agreement, however, the witness is compelled by the desire to preserve her plea agreement to hold to the specified version of events at trial regardless of its truth.”
The State, stating that there is a split in authority as to whether a consistency agreement affects a defendant’s right to a fair trial, places its reliance on People v. Jones, 236 Mich. App. 396, 600 N.W.2d 652 (1999), app. denied 461 Mich. 994 (2000), as counter to the Arizona cases. In Jones, four witnesses entered into use immunity agreements that provided as follows:
“ 7N THE MATTER OF [Witness], that if [Witness] provides a truthful statement to the Detroit Police Department concerning his knowledge of the killing of Tyrone [sic] Hackett and testifies truthfully in all trials, proceedings and hearings in connection with that killing the Wayne County Prosecutor’s Office will not use [Witness’] testimony to bring charges against him.’ ” 236 Mich. App. at 399.
The Court of Appeals commented on the language of the agreements:
“While it would appear from tire text of the immunity agreements that the witnesses agreed to give a truthful statement to the police in the future, that was not the agreement contemplated by tire parties. It is undisputed that the police statements referred to in the immunity agreements were those given by the witnesses when they were first arrested.” 236 Mich. App. at 399.
The trial court granted a new trial on the ground that the prosecutor’s actions with regard to the immunity agreements deprived the defendant of a fair trial. The Michigan Court of Appeals disagreed and held that the immunity agreements had not resulted in a miscarriage of justice. 236 Mich. App. at 404-09.
The circumstances of the present case differ somewhat from those in Jones and cases discussed in Jones in that what is at issue is consistent and truthful testimony as a condition of Hall’s probation rather than as a term of a plea agreement. Thus, with regard to the probation order, there was incentive for Hall to confirm his prior account but no balancing incentive that he not enter into an agreement unless his prior account was true. Examination of the record, however, shows that Hall’s plea agreement also contained the requirement that he “testify on behalf of the State in a consis tent and truthful manner as set forth in his inquisition in any trial that he is requested to do so by the State.”
The State incorporates Jones into its argument by stating that the Jones court approved a three-part test to determine if a consistency agreement violates a defendant’s constitutional rights and then applying the test to the facts of the present case. In fact, the three-part test touted by the State is not the test applied by the Michigan court, but is instead only one factor considered by the court. That factor consists of three safeguards of a defendant’s right to a fair trial said by the Michigan court to be used when the State gives a witness something in exchange for his or her testimony:
“These safeguards include (1) full disclosure of the terms of the agreements struck with such witnesses, (2) the opportunity for full cross-examination of such witnesses regarding the agreements and their effect, and (3) instructions cautioning the jury to carefully evaluate the credibility of witnesses who have been induced by agreements with the prosecution to testify against die defendant.” [Citations omitted.] 236 Mich. App. at 405.
The State contends that the three procedural safeguards were followed in the present case. There was (1) full disclosure of the terms of the agreement, (2) the opportunity for full cross-examination of Hall, and (3) an instruction cautioning the jury to carefully evaluate the credibility of accomplice witnesses. Dixon argues that, because he was not permitted to introduce Hall’s probation order and confront him with it; he did not have the opportunity to fully cross-examine Hall about it. Review of the cross-examination of Hall, however, shows that defense counsel handed Hall the sentencing journal entry at issue here and questioned him about it. Defense counsel also questioned Hall about the pertinent terms of his plea agreement. It appears that there was a full opportunity to cross-examine the witness. With regard to a cautionary instruction, Dixon contends that the accomplice witness instruction did not satisfactorily safeguard his right to a fair trial because it did not caution the jury to carefully evaluate the credibility of a witness who had been induced by an agreement with the prosecution and an attendant probation condition to testify against him.
The Michigan court, in approving a bargain for specific testimony, reasoned that the prosecution ought to be able to proceed with certainty in the truthfulness of a witness’ pretrial statement. See 236 Mich. App. at 405-08. The Nebraska Supreme Court, in State v. Burchett, 224 Neb. 444, 456, 399 N.W.2d 258 (1986), also reasoned that the prosecution ought to be able to rely on the truthfulness of a witness’ pretrial statement. But the Nebraska court did not conclude, as a result, that a bargain for specific testimony was acceptable. The Nebraska court considered a challenge to the testimony of an accomplice witness who had given several different versions of the crime before implicating the defendant. The Nebraska court recognized that the prosecutor treated the final version as truthful for purposes of the plea agreement entered into with the witness and as part of the agreement required the witness’ truthful testimony. The prosecutor, however, did not include in the bargain a requirement that the witness testify consistently with his final statement. In the court’s view, if the witness had been required to testify in conformance with his final statement, his testimony would be so tainted as to require its preclusion. Because the requirement was that the witness testify truthfully, his testimony was admissible. 224 Neb. at 456-57.
We think that Fisher and Rivera represent the better view. Plea agreements may only be conditional upon the accomplice witness testifying completely and truthfully, and consistency provisions in such agreements are not enforceable. As noted in Rivera, this does not leave the prosecutor without an effective remedy should the accomplice witness change his or her testimony at trial:
“The recourse the State has in such a circumstance is to impeach the witness with her previous statements. It would then be the jury’s duty to determine which version of the witnesses’s account to credit, if any. Of course, by changing her testimony from that of a previous version, the accomplice witness would put at issue whether she had testified truthfully at trial, and thus whether she had complied with the terms of her plea agreement and was entitled to receive the benefit of that plea agreement.” 207 Ariz. at 389.
As to retrial, the court held:
“[T]he State cannot introduce the testimony of Valenzuela or Saiz from the previous trial to establish Rivera’s guilt. Additionally, to establish Rivera’s guilt the State cannot introduce any statements made by Valenzuela or Saiz after they entered their plea agreements and before any taint caused by the consistency provisions in their plea agreements has been removed.
....
“[W]e similarly find no reason to preclude the testimony of Valenzuela and Saiz during the new trial if the court takes appropriate steps to remove the taint of the improper provisions. As the facts of this case demonstrate, the accomplice witness herself must be informed that the consistency provision is unenforceable prior to her testimony. If she is not so informed, and thus testifies under the belief that the clause is valid, her testimony will still be tainted by the consistency provision. To ‘not enforc[e] the offending clause’ and to make ‘full disclosure of the terms and circumstances of the agreement,’ a trial court is obliged by Fisher to ensure that the witness, any counsel she may have, the parties to the underlying prosecution, and, in appropriate cases, the jury in the underlying prosecution, are aware that any consistency provision in a plea agreement entered by an accomplice witness cannot be enforced. [176 Ariz.] at 76, 859 P.2d at 186. The State may only condition plea agreements on the completeness and truthfulness of any proffered testimony. This course of action removes any motivation for the accomplice witness to provide particular testimony and will appropriately protect Rivera’s rights while also allowing the State to fairly re-prosecute its charges against Rivera.” 207 Ariz. at 391.
We conclude that it was error to allow Jerry Hall to testify. However, since Hall’s testimony was basically the same as that of Rodney Hayes, the error was harmless. We are reversing on other grounds, and, upon retrial, the State is precluded from using Hall’s trial testimony or any statements made after he entered into the plea agreement. The provision stating that he would “testify on behalf of the State of Kansas in a consistent and truthful manner as set forth in his inquisition” is unenforceable. Hall may testify if, upon retrial, the trial court takes the necessary steps to ensure that Hall, his counsel, the prosecutor, and, if appropriate, the jury, are aware that the consistency provision in the plea agreement and probation order cannot be enforced.
10. DID THE DISTRICT COURT ABUSE ITS DISCRETION IN ALLOWING THE PATHOLOGIST TO TESTIFY THAT THE VICTIMS’ DEATHS WERE HOMICIDES?
Dr. Erik Mitchell testified that the cause of the deaths of Dana and Gabriel Hudson was exposure to heat and inhalation of fire gases. Over the objection of defense counsel, Dr. Mitchell was also allowed to testify that the manner of each death was homicide.
Dixon’s principal argument on appeal is that, although the pathologist was qualified by his medical training and his performing the autopsy to render an opinion on the cause of death, Mitchell was not qualified to determine the cause of the explosion and fire in order to form the opinion that the deaths were homicides. Citing State v. Bressman, 236 Kan. 296, 689 P.2d 901 (1984), and Cimarron Feeders v. Bolle, 28 Kan. App. 2d 439, 17 P.3d 957, rev. denied 271 Kan. 1035 (2001), which involve opinion testimony of experts on an ultimate issue, Dixon also argues that Mitchell’s classification of the deaths invaded the province of the jury.
In Bressman, the defendant was charged with the rape of Mrs. T. All the tests customarily made to determine whether sexual acts had taken place were negative, and there was no evidence, of trauma. The doctor who examined Mrs. T at the hospital was erroneously allowed to testify that in her opinion Mrs. T. was raped. The opinion testimony of an expert on the ultimate issue is admissible only if it will aid the juiy in interpreting technical matters or in understanding the evidence. The opinion testimony of an expert also must be based on the witness’ expertise. Even though the doctor was not trained in psychiatry, her opinions were based on Mrs. T’s story rather than on the physical examination. The Bressman court concluded that the normal experiences of jurors would permit them to draw proper conclusions from the evidence without the aid of the doctor’s opinion testimony. 236 Kan. at 303-04. In Cimarron Feeders, an accounting expert testified that a revised operating agreement and promissory note, from which the dispute arose, was “probably fair.” 28 Kan. App. 2d at 449. The Court of Appeals concluded that the accountant’s opinion invaded the province of the jury because the “fairness” of the agreement and note was a matter within the normal experience possessed by jurors. 28 Kan. App. 2d at 449. The Court of Appeals believed that the erroneous expert testimony may have been harmless as an isolated instance but that the totality of circumstances and cumulative trial court errors required reversal. 28 Kan. App. 2d at 451.
The State generally takes the position that there is a split of authority on this issue and, if Mitchell’s opinion on the manner of death was erroneously admitted, it is harmless error. The 1976 annotation cited by the State, 71 A.L.R.3d 1265, discusses the admissibility of testimony of coroners and morticians as to the cause of death in homicide prosecutions at a time, it appears, when coroners tended to lack medical training. The State also mentions that Dr. Mitchell is a coroner and that he was required by K.S.A. 2004 Supp. 22a-232 to investigate and report on the cause of death. The State cites State v. Mondaine, 655 S.W.2d 540 (Mo. App. 1983), for the proposition that Mitchell was qualified to testify as to the manner of death. Mondaine does not support the State’s position. The issue in Mondaine was the sufficiency of the evidence of the cause of death. The coroner’s testimony established death by asphyxiation, and eyewitness testimony established that the victim had been strangled. The combined testimony of those witnesses along with evidence of the condition of the victim’s body, established strangulation as the cause of death. The Missouri court concluded that opinion testimony as to causation was admissible despite its not going beyond mere possibility as long as it was corroborated. 655 S.W.2d at 543.
The admissibility of expert testimony lies within the sound discretion of the trial court, and its determination will not be reversed on appeal absent a showing of an abuse of discretion. State v. Shaw, 260 Kan. 396, 398, 921 P.2d 779 (1996).
K.S.A. 60-456(b) provides: “If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.” To satisfy subsection (1), the prosecutor asked Mitchell whether he reviewed the police investigation reports and investigation findings. Mitchell testified that he had and that he did so in “[t]rying to figure the sequence of events, what is and is not known as possible in the sequence of events that led to these people’s demise.” The prosecutor followed up by asking, “Do you need that information to then determine for the cause of death or, excuse me, for the conclusion required under Kansas law to state manner of death?” The witness answered, “I include that, yes.”
Mitchell is the district coroner for Lyon County. He testified that a coroner is responsible for investigating any death within his or her jurisdiction where the State has some interest in the death and that he is responsible for determining the “cause and manner of death as stated in the statute.” Asked to distinguish cause from manner, Mitchell stated that “[cjause is what kills you” and “[mjanner of death defines the circumstances under which the cause results in your death.” He gave the following examples:
“[S]omebody could point a gun at you, pull the trigger, kill you. The cause would be tlie gunshot injury. The manner in that sequence would be a homicide. You could drop a gun, it would discharge because it’s, let’s say, improperly constructed, the bullet strikes you. The cause of death will be the gunshot. The manner of that instance will be accident. You could get tired of it all, point a gun at yourself, discharge the firearm. The cause of death, what killed you, would be the gunshot. The manner under those circumstances would be suicide.”
He testified that he was required under Kansas law to file a death certificate with the Office of Vital Statistics. Over defense counsel’s objections, the death certificates of Dana and Gabriel Hudson were admitted into evidence. The forms have a space for the “Manner of Death” with six possibilities listed: natural, accident, suicide, homicide, pending investigation, and could not be determined. On the certificates for Dana and Gabriel Hudson, there is an “x” in the box for homicide.
The admissibility of a coroner’s report of death was an issue in State v. Hobbs, 276 Kan. 44, 71 P.3d 1140 (2003). Hobbs was convicted of involuntary manslaughter in the death of Jathan Stevenson. Hobbs argued that the trial court erred in not allowing into evidence the county coroner’s report of death for Stevenson, who died when the vehicle in which he was riding was struck by Hobbs’ vehicle. In the coroner’s report, Stevenson’s manner of death was classified as an accident. In refusing to admit the document, the trial judge told defense counsel that he was “not going to allow [him] to put that into evidence to show this was an accident.” 276 Kan. at 52. On appeal, Hobbs revealed that his purpose in offering the document indeed was to show that “the State’s own investigators . . . concluded that this was a traffic accident, not a murder as charged by the prosecution.” 276 Kan. at 52. This court concluded that the report was an official court record admissible (see K.S.A. 2004 Supp. 60-460[o], which is the hearsay exception for the content of official records) and that it was relevant. Thus, the trial court’s exclusion of the report was error, but this court concluded that it was harmless error. Under the harmless error rule of K.S.A. 60-261, a trial court’s error in the admission of evidence is not grounds for reversal unless failure to set aside the verdict appears inconsistent with substantial justice. State v. Mullins, 267 Kan. 84, Syl. ¶ 4, 977 P.2d 931 (1999). In Hobbs, the exclusion of the coroner’s report did not prejudice the defendant’s substantial rights and was not inconsistent with substantial justice. 276 Kan. at 53.
The State’s reference in the present case to K.S.A. 2004 Supp. 22a-232 is to the statute requiring the sort of death report likely involved in Hobbs. K.S.A. 2004 Supp. 22a-232(a) requires a coroner to “make inquiries regarding the cause of death and reduce the findings to a report in writing” to be filed with the clerk of the district court of the county in which the death occurred. The documents that were admitted into evidence in the present case were death certificates, which are required to be filed with the state registrar and are the official death records. See K.S.A. 65-2412. K.S.A. 65-2416(b) provides that “the state registrar shall not certify a death certificate in which the manner of death is marked other than natural unless the death certificate is signed by a district coroner.” Mitchell, as the district coroner, was required to sign the death certificates of Dana and Gabriel Hudson, and, as a matter of law, he was qualified to do so. The death certificates, which classify the deaths as homicides, were admitted into evidence. Dixon does not complain of their admission. If admission of Mitchell’s testimony as to the manner of death was error for any reason, the error would be harmless because the testimony merely restated the contents of the death certificates. There was no abuse of discretion in permitting Mitchell to testify as to the manner of death.
11. SHOULD THE JURY HAVE BEEN INSTRUCTED, AS DEFENDANT REQUESTED, THAT JERRY HALL’S PLEA
AGREEMENT DOES NOT GUARANTEE THAT HIS TESTIMONY IS TRUTHFUL?
The following instruction was included in the package of requested instructions filed by Dixon:
“Witness Jerry Hall has testified pursuant to a plea agreement which provides that he must give truthful testimony in this case. That portion of Mr. Hall’s plea agreement does not guarantee that his testimony will be truthful. It is your duty to determine the weight and credibility of Mr. Hall’s testimony. The State has no knowledge or information regarding the truthfulness of this testimony beyond that which has been provided to you in the evidence presented during this trial.”
The trial court did not give the instruction. On appeal, Dixon contends that the instruction was necessary to counter the plea agreement’s implied representation by the State that Hall’s testimony would be truthful.
Our standard of review is, if the instructions taken together and as a whole properly and fairly state the law as applied to the facts of the case and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. State v. Peterson, 273 Kan. 217, 221, 42 P.3d 137 (2002).
The State contends that the trial court’s instructions on the credibility of witnesses and the testimony of an accomplice sufficiently informed the jurors to exercise caution in assessing Hall’s testimony. The jury was instructed: “It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.” It was further instructed: “An accomplice witness is one who testifies that he was involved in the commission of the crime with which Mr. Dixon is charged. You should consider with caution the testimony of an accomplice.”
Dixon relies on Commonwealth v. Ciampa, 406 Mass. 257, 547 N.E.2d 314 (1989), to support his contention the jury should have been instructed that the plea agreement did not guarantee the truthfulness of Hall’s testimony. In Ciampa, the government’s case depended greatly on the credibility of a witness named De-Vincenzi. The jury deliberated for 4 days and asked for further instructions on determining the credibility of witnesses. In Ciampa, unlike the present case, the agreement was admitted into evidence and various provisions of the agreement that spuriously bolstered the credibility of DeVincenzi should have been redacted but were not. Over objection, the prosecutor read the agreement to De-Vincenzi and asked him about his understanding of each paragraph. Then, also over objection, the prosecutor introduced DeVincenzi’s testimony that his attorney signed a statement representing that DeVincenzi understood the agreement, his attorney had reviewed the agreement with him, and his attorney believed DeVincenzi’s decision to enter into the agreement to be an informed and voluntary one. The Massachusetts court concluded that the defendant was prejudiced “from admission of the plea agreement with damaging provisions not deleted and from De-Vincenzi’s testimony concerning his attorney’s involvement with the plea agreement.” 406 Mass, at 263. The Massachusetts court further concluded that such prejudice “was not alleviated by the judge’s charge.” 406 Mass, at 263.
Ciampa is distinguishable from the present case on a number of counts. In this case, the State’s case did not depend heavily on Hall’s testimony — because Hall did not accompany Dixon during the second burglary of Alicia’s apartment, he had no testimony to offer relevant to the cause of the explosion and fire. The questions asked by the jurors in this case include no expression of concern about determining the credibility of witnesses. Neither the plea agreement nor the journal entry of sentencing for Hall was admitted into evidence. There was no implication that Hall’s attorney vouched for his truthfulness. Thus, the prejudice found by the Massachusetts court is not apparent in the present case. Because the trial court did not need to alleviate prejudice with cautionary instructions in this case, the instructions deemed necessary by the Massachusetts court in Ciampa are extraneous. In this case, the instructions on the weight and credibility of witness testimony and accomplice testimony, taken together with all the other instructions, fairly stated the law as applied to the facts and a jury could not reasonably have been misled by them. The trial court did not commit error is not giving the requested instruction.
12. WAS THE EVIDENCE SUFFICIENT TO ESTABLISH THAT DIXON WAS CRIMINALLY RESPONSIBLE FOR THE EXPLOSION AND FIRE?
Dixon contends that the State’s evidence showed that he was in Alicia’s apartment in the early morning hours of July 29 and that a malfunction of the stove caused the natural gas explosion, but that the evidence did not prove that he caused the explosion. The State’s response is that this issue is moot because Dixon was not convicted of aggravated arson. The evidence that Dixon caused gas to leak, which eventually exploded and fueled the fire was the basis for his convictions of felony murder for the deaths of Dana and Gabriel Hudson and of aggravated battery for the five injured victims. Hence, evidence showing that Dixon was criminally responsible for the explosion and fire was essential to the case.
There are several related aspects to Dixon’s argument. First, he states that there is no evidence that he left anything in Alicia’s apartment that ignited gas from the stove. Second, he suggests that an extinguished pilot light on the stove or an open burner or two may have been the source of the gas leak. Third, he states that there was scientific evidence that the stove was upright rather than on its side at the time of the explosion. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003).
After reviewing all the evidence, viewed in the light most favorable to the prosecution, we determine the State showed by the process of elimination and by the appearance of the debris field that it was a natural gas explosion and by the testimony of Griffin that Dixon overturned the stove, which, it may reasonably be inferred, damaged the gas supply pipe allowing escaping gas to create an extremely volatile condition where the proportion of natural gas to air required only a spark for combustion. Agent Lobdell determined that the fuel-air explosion and the fire originated in Alicia’s apartment. He concluded that it was Dixon’s fracturing of the pipe that caused the gas leak after ruling out other possible explanations: If Alicia had left her stove with an extinguished pilot light or a leaking burner, gas would have been apparent in the kitchen during the first burglary. Hall did not smell gas during the first burglaiy. Lobdell ruled out sources other than the stove pipe for the escaped gas, including the hot water heater, furnace, and other appliances. Tests for liquid accelerants were negative except for one insignificant sample from the debris in the basement, which probably was a can or bottle of some commercial product containing petroleum distillates. By the condition of remaining furniture, he determined that the point of ignition was not in the basement. Then Lobdell determined from the gas meter to Alicia’s apartment that approximately 1,000 cubic feet more natural gas flowed into her apartment during July than to any of the other apartments.
The State was unable to show what actually touched off the explosion. Lobdell testified that there was no scientific way to determine what ignited the explosion and that it commonly was not possible to do so “because what caused the ignition was destroyed in the resulting fire.” But it was not essential for the State to show that Dixon ignited the gas because the State did show that Dixon’s actions caused gas to be present in explosive quantities. From the absence of a person’s death or injury in Alicia’s apartment, the jury could have reasonably inferred that the gas was not ignited by human action but rather from a spark from some nonhuman source. Viewing all the evidence in the light most favorable to the prosecution, as we must, and keeping in mind that a conviction of even the gravest offense may be sustained by circumstantial evidence, State v. Davis, 275 Kan. 107, 118, 61 P.3d 701 (2003), we conclude that the evidence in this case sufficiently established Dixon’s criminal responsibility for the explosion and fire.
13. DID CUMULATIVE ERRORS DEPRIVE DIXON OF A FAIR TRIAL?
As we have previously found reversible error, we do not reach this cumulative error issue.
Affirmed in part, reversed in part, and remanded for a new trial.
Nuss, Luckert, and Gernon, JJ., not participating.
J. Patrick Brazil, S.J., assigned.
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The opinion of the court was delivered by
Six, J.:
This is a sentencing case. We are required to interpret K.S.A. 22-3424(4) in resolving Peter Spencer’s claim of error. Spencer argues that he is entitled to resentencing because he was not personally given the opportunity to offer evidence in mitigation of his punishment. Spencer is serving a life sentence for a first-degree felony-murder conviction. Our jurisdiction is under K.S.A. 1991 Supp. 22-3601(b)(l).
Our standard of review is harmless error. See State v. Peltier, 249 Kan. 415, 426, 819 P.2d 628 (1991). We hold that, although the trial judge did not follow proper 22-3424(4) procedure in sentencing Spencer, the error was harmless; consequently, we affirm.
Facts
Sherryl Crowder s dead body was found by the police in the trunk of her car in September 1990. The autopsy indicated Sherryl’s death was caused by two blows to her head. Spencer’s fingerprints were found at the crime scene. Spencer was charged with first-degree murder, aggravated kidnapping, aggravated robbery or in the alternative robbery, and aggravated sexual battery.
Spencer pled nolo contendere to felony murder. The other charges were dismissed. The State also dismissed a second case, withdrew a show cause request filed in a third case, and declined to file an additional criminal complaint against Spencer involving an automobile.
After his plea, Spencer, through his counsel, requested the trial judge to proceed with immediate sentencing. The State did not object. Spencer had provided the trial court with a previous presentence investigation report and with portions of his juvenile court file. The trial court: (1) accepted the affidavit filed by the district attorney as the factual basis for the guilty plea, (2) granted Spencer’s request for immediate sentencing, and (3) proceeded to sentence him.
The State requested that Spencer be sentenced to life imprisonment as required by statute. Spencer’s counsel recognized that because the case involved homicide, probation was not a realistic alternative. Immediately prior to sentencing, the trial judge addressed Spencer as follows:
“THE COURT: Mr. Spencer, before I proceed to sentencing, are there any comments that you want to make to the Court?
“THE DEFENDANT: No.
“THE COURT: Very well. Is there any reason why the Court cannot now impose sentence?
“MR. WURTZ [Defense counsel]: We know of none.
“MR. HENDERSHOT [Prosecutor]: I know of none, Your Honor.”
The trial judge then sentenced Spencer to imprisonment for life, indicating the rationale for the sentence and for the denial of probation:
“The Court has also reviewed your juvenile court file as well as the presentence investigation in case number 89-CR-2687, and it shows I think some things that are in your favor, but it also shows some things in your disfavor. And certainly one of the things in your disfavor is something that would argue strongly against any kind of recommendation for probation and that would be from August of ‘85 to the current date a rather consistent pattern of serious behavior. Behavior that the Court cannot look the other way. A case that only months ago you were placed on three years supervised probation. It was indicated that you were a minimal candidate at a time [the previous sentencing] and then only a few months later we end up with someone who died at your hands. And the Court feels very strongly, as everyone suggested, that probation would be entirely out of the question in this case and the Court wouldn’t consider that for a moment. The Court is satisfied that the only appropriate recommendation it can find and it will be the order of the Court that you are to be placed with the Secretary of Corrections for a prison sentence to be life imposed.”
K.S.A. 22-3424(4) — The Failure Of The Trial Judge To Ask Spencer If He Wished To Present Any Evidence In Mitigation Of Punishment
K.S.A. 22-3424(4) states in part:
“Before imposing sentence the court shall afford counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask [the defendant] if [the defendant] wishes to make a statement on [the defendant’s] own behalf and to present any evidence in mitigation of punishment.'’ (Emphasis added.)
K.S.A. 22-3424(4) codifies the defendant’s right to present evidence in mitigation of punishment. (A detailed history of the right to allocution and of the relationship between K.S.A. 22-3422, the traditional allocution statute, and 22-3424(4) appears in State v. Webb, 242 Kan. 519, 522-28, 748 P.2d 875 [1988].)
In State v. Heide, 249 Kan. 723, 822 P.2d 59 (1991), we addressed the issue of failure to accord a defendant the right to allocution (to make a statement on his own behalf and to present evidence in mitigation of punishment before imposition of sentence). The sentence in Heide was imposed following a guilty plea. Heide did not have an opportunity to offer evidence in mitigation of the sentence until after the sentence was imposed. 249 Kan. at 730. Prior to sentencing, the trial judge asked Heide “if he had any legal reason why judgment, order, and sentence should not be imposed.” 249 Kan. at 726. Heide responded in the negative. 249 Kan. at 726. We considered whether the trial court’s “legal reason” question satisfied Heide’s 22-3424(4) right to make a statement in his own behalf. We interpreted 22-3424(4) strictly and held that the statutory requirement must be followed before a sentence is imposed. 249 Kan. at 731. “Before imposing sentence, K.S.A. 22-3424(4) unambiguously requires the court to address the defendant personally and ask if the defendant wishes to make a statement and present evidence in mitigation of punishment.” 249 Kan. at 730.
In State v. Webb, 242 Kan. 519, we considered the failure of the trial judge to personally ask Webb whether he had anything to say in his behalf before a sentence was imposed. We held that although the right of allocution is not waived by a defendant’s silence or by argument of counsel, Webb’s failure to raise the issue in his motion to modify the sentence constituted a waiver of his right to allocution. 242 Kan. at 529.
Spencer recognizes the existence of the Webb rule; however, he reasons that the rule should be overruled or modified.
Spencer asserts that current law is inconsistent and unfair. According to Spencer, if counsel once neglects to pursue a client’s right to allocution (at sentencing), there is no waiver; however, if counsel twice neglects to pursue the right (at sentencing and at a sentence modification hearing), the client suffers the effect of the Webb waiver rule.
Spencer reasons that the unfairness of the waiver rule is exposed by the factual differences between Webb and the case at bar. Unlike Webb, Spencer received no hearing on the motion to modify. See Webb, 242 Kan. at 521-522. Spencer’s modification request was dealt with by a routine motion and order. Spencer argues that Webb should be limited to its facts, i.e., situations where there is an actual hearing on the motion to modify. We agree.
Spencer argues that the general inquiry by the trial judge asking for comments did not satisfy the statutory requirements. A general opportunity to comment is not the same as the 22-3424(4) requirement of personally asking if a defendant wishes to make a statement on his or her own behalf and present evidence in mitigation of punishment.
The State attempts to distinguish Heide based upon both the difference in the severity of the crimes to which Heide pled guilty and the classification of the felonies charged. The State also emphasizes differences between Heide and the case at bar based upon the factual nature of the sentencing process, i.e., the time, place, and request for sentencing. Heide requested the sentencing date be set for 60 days from the date of his plea, rather than the court’s typical 30 days. Heide’s counsel explained that additional time was needed for Heide to be examined by a psychiatrist. (Counsel indicated that he intended to call two additional experts who had been treating Heide.) 249 Kan. at 724.
Spencer not only provided reports at the time the court accepted his plea, but also requested immediate sentencing. According to the State, Spencer thereby exercised his right to present evidence in mitigation of punishment.
Neither the severity of a crime nor the fact Spencer wished to proceed immediately with sentencing supplies a basis for judicially altering a statutory sentencing requirement. A presentence investigation report provided by defense counsel should not be substituted for a defendant’s response on his or her behalf to the statutorily mandated bench inquiry.
The State argues that any 22-3424(4) procedural sentencing error that may have occurred was harmless. “Errors that do not affirmatively cause prejudice to the substantial rights of a complaining party do not require reversal when substantial justice has been done.” State v. Peltier, 249 Kan. 415, 426, 819 P.2d 628 (1991).
The State suggests that granting Spencer’s resentencing request would be an exercise in futility. According to the State: (1) K.S.A.
21-4501 contemplates only life imprisonment for an A felony and (2) the sentencing transcript and Spencer’s brief do not indicate any additional evidence that would have mitigated his punishment for first-degree murder other than the evidence presented by his experienced trial counsel.
In our view, the failure of the trial judge to afford Spencer his 22-3424(4) statutory right to offer evidence in mitigation of punishment, although error, was harmless. Spencer was found guilty of a class A felony. K.S.A. 21-4501, the penalty statute, did not provide the trial judge with any sentence flexibility:
“For the purpose of sentencing, the following classes of felonies and terms of imprisonment authorized for each class are established:
“(a) Class A, the sentence for which shall be imprisonment for life.”
Additionally, the record shows that the trial judge considered and rejected the only available sentencing alternative — probation. (Spencer was on probation at the time he committed Sherryl Crowder s murder.) The trial judge commented: “[T]he Court feels very strongly, as everyone suggested, that probation would be entirely out of the question in this case and the Court wouldn’t consider that for a moment.”
The requirements of 22-3424(4) are not ambiguous. See Heide, 249 Kan. at 730. The reasoning in Heide is affirmed.
The Webb waiver rule does not control because a modification hearing did not occur in the case at bar. We limit the Webb waiver rule to the facts of that case, in which an actual hearing was held on the motion to modify sentence. Although we find error in the trial court’s sentencing procedure, we do not remand for resentencing because under the facts of Spencer’s case the error is harmless.
Affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
Dennis L. Richard appeals his convictions and sentences for one count of aggravated kidnapping, one count of rape, and one count of battery. Defendant claims the trial judge (1) violated his Sixth and Fourteenth Amendment rights by allowing sheriff’s officers to photograph defense witnesses, believed to be gang members, as they exited the courtroom following their testimony and by later refusing to poll the jury to determine the extent of the prejudice caused by the sheriff’s officers’ activity; (2) suppressed evidence essential to the defense; (3) exhibited sympathy for the victim before the jury; and (4) improperly imposed sentence without consideration of the statutory policy and factors. Defendant also claims there was insufficient evidence for a rational factfinder to find defendant guilty of aggravated kidnapping beyond a reasonable doubt.
At approximately 2:00 p.m. on June 9, 1990, M.S., who had been celebrating her birthday in Pratt, Kansas, decided to drive to Wichita, find old friends, and continue her celebration. She stopped at a convenience store in Wichita at about 4:00 p.m.
M.S. saw someone she knew in the convenience store with a black female. The black woman invited M.S. to a party. After she arrived at the party, M.S. drank some wine coolers and allowed crack cocaine smoke to be blown into her mouth while she inhaled. M.S. became frightened and left the party. After leaving the party, she discovered that the money in her purse had been stolen. At approximately 8:30 p.m., she drove into a parking lot where Dennis Richard and Monte Summers, black males, were standing and asked them for directions to U.S. Highway 54.
There was conflicting evidence as to the events that followed. M.S. testified that Richard and Summers commandeered her vehicle, physically battered her, and forced her to perform oral sex twice. She testified she was raped by each of her captors. M.S. was injured when she jumped from the moving car. When the police arrived, they found her sitting on the center median of the street. M.S. had blood on her face, arm, and legs. She was wearing a halter top and had towels draped over her legs and stomach. M.S. had on no clothing underneath the towels.
Richard testified as follows. After he and Summers met M.S. at the convenience store, M.S. agreed to let him and Summers ride in the car with her. After riding around, M.S. agreed to have sex with him and Summers in exchange for cocaine. Subsequent to having consensual sexual intercourse, M.S. purposefully fell out of the car. Because he (defendant) possessed cocaine and M.S. was a semi-naked white woman, he panicked and left in her car.
Richard and Summers were arrested, and each was charged with one count of aggravated kidnapping, one count of rape, one count of battery, and two counts of aggravated criminal sodomy. They were acquitted of the aggravated criminal sodomy charges but convicted of the aggravated kidnapping, rape, and battery charges. Both defendants were sentenced to life imprisonment for aggravated kidnapping, 15 years to life for rape, and 6 months for battery. The sentence for battery was ordered to run concurrently with the sentence for rape. The sentence for rape was ordered to run consecutively to the sentence for aggravated kidnapping. Richard appeals his convictions and sentences.
Photographing Defense Witnesses
The sheriff’s department had been informed that certain defense witnesses were affiliated with a local gang known as “Junior Boys.” The sheriff’s officers obtained permission from the trial court to photograph the individuals after they had testified and left the courtroom. The prosecution was aware of this, but the defense counsel were not.
One of the defense counsel became aware of the fact photographs were being taken after a defense witness, who had testified, bolted and was pursued by warrant officers in the hall outside the courtroom. Defense counsel objected and was informed that permission to photograph had been granted previously by the trial judge. Defense counsel then requested to poll the jury to ascertain if any of the jurors had observed or were aware of the activity in the hall. There is no evidence that any jurors were in the hallway when the photography was taking place. The request to poll the jury and a subsequent motion for a mistrial were denied. Defendant argues the hallway activities had a negative impact on the jury’s determination of defense witness credibility and denied him a fair and impartial trial.
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, a reviewing court presumes that the action of the trial court was proper. State v. Gonzales, 245 Kan. 691, 699, 783 P.2d 1239 (1989).
Neither the defendant’s brief nor the record on appeal provides more than scant factual information regarding the activity to which defendant objects. There is no evidence that any juror was aware of the activity or, if aware, knew that defense witnesses were the object of the photography, or, indeed, that the photography was related in any way to the trial. The fact that a photograph is taken does not, per se, indicate that the subject is a bad or unbelievable person. Richard’s argument is based on the assumption, without evidence, that at least one juror saw some of the activity to which he objects. The assumption is unsupported by the record and is without merit.
Refusal to Poll the Jury
Defendant’s contention that he was denied a fair trial is also based on the unsubstantiated assumption that a juror saw and understood what was occurring in the hall outside the courtroom.
Under the circumstances, polling the jury during the trial as to what it had seen or not seen and its effect was not the solution. In State v. Stewart, 219 Kan. 523, 548 P.2d 787 (1976), a claim of error was made relative to the trial court’s refusal to poll members of a jury during trial as to their knowledge of a prejudicial newspaper article which had been printed after the trial had commenced. The Stewart court noted that a motion to inquire during trial is not a proper method to determine if members of the jury are aware of prejudicial newspaper articles published during a trial. There was no evidence that any member of the jury was aware of or had read the newspaper article. The Stewart court noted that no post-trial effort was made by the defendant to show prejudice. No juror affidavits were filed to show the newspaper article had prejudiced the jury. No motion was filed to inquire of the jurors after the verdict but prior to their discharge, and there was no post-trial motion to .subpoena jurors to see if a juror had knowledge of the article.
Here, the record on appeal fails to show that a single member of the jury was aware of what was occurring in the hallway. In order to prove that members of the jury were aware of what happened, counsel for the defendant could have (1) requested a poll of the jury after it returned its verdict, (2) obtained an affidavit from a juror showing the incident in the hall prejudiced the juror, then filed a motion for a new trial, or (3) subpoenaed the jurors to show that they had knowledge of the hallway activities. Under the circumstances, the trial court acted properly in refusing to poll the jury during trial. There is no showing that Richard was deprived of a fair trial.
Suppression of Evidence
A police officer testified in the State’s case in chief that he had photographed the interior of M.S.’s vehicle. The photographs showed clothing and bloodstains. On cross-examination, defense counsel sought to introduce evidence that an empty syringe had been found in the vehicle. The trial court refused to allow the testimony. Defense counsel wanted the testimony to impeach M.S.’s anticipated testimony that she did not use drugs. The trial court ruled that, inasmuch as M.S. had not yet testified, there was no testimony to impeach. The door was left open to inquire of M.S. as to the syringe when the trial judge stated he would review the issue when M.S. testified. However, after M.S. had testified for the prosecution, she was not asked about drug usage, nor was the matter of the syringe again raised by the defense.
Richard contends the trial court erred by not allowing the syringe to be introduced during Detective Atteberry’s testimony when the detective described the contents he processed from the interior of M.S.’s car. Defendant asserts that the heart of his defense embodies a drug deal which M.S. denied, viz., drugs for sex. Richard claims the syringe was extremely relevant to his theory of defense “because it confirms M.S.’s predisposition for drug usage” and supports his assertion that M.S. had agreed to trade sex for cocaine and, in addition, would serve to impeach M.S.’s denial that she was not involved with drugs.
The problem with Richard’s claim that the evidence should have been introduced during Atteberry’s testimony is that M.S. had not yet testified and there was nothing to impeach at that time. Richard also overlooks the fact that M.S.’s assailants had exclusive possession of her car from the time she jumped out of the vehicle until it was located by police and that the syringe could have been deposited in the car while the assailants were in possession of the vehicle.
Admission or exclusion of evidence is a matter of trial court discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Wagner, 248 Kan. 240, 242, 807 P.2d 139 (1991). Errors which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining do not require reversal when substantial justice has been done. State v. Bell, 239 Kan. 229, 235, 718 P.2d 628 (1986).
The admission of the syringe was sought for purposes of impeachment only, although on appeal defendant contends it would support the defendant’s testimony that M.S. was a drug user who offered to trade sex for cocaine. Because defendant failed to question M.S. about drug usage or the syringe after she had testified for the prosecution, we conclude that if any error relative to the exclusion of evidence of the syringe occurred, it was harmless and does not constitute reversible error.
Exhibition of Sympathy
Because the victim was crying while testifying before the jury, the judge walked over to the victim and handed her a box of Kleenex. During a recess which occurred before M.S. had completed her testimony, defense counsel moved for a mistrial. Richard contended the judge’s act was more than one of common courtesy in that it indicated to the jury that the judge was sympathetic towards the witness. The trial judge denied the motion.
On appeal, Richard asserts the judge’s action was not necessary to facilitate the continuation of the witness’ testimony and that the prosecutor, bailiff, or court reporter could have attended to M.S. Richard argues the court’s expression of sympathy not only enhanced the natural sympathy M.S.’s circumstances evoke, but validated it. He claims that the judge failed to remain neutral and concludes that if the judge wanted to help the victim, he should have called a short recess rather than exhibiting sympathy for the victim before the jury.
Certainly, a trial judge must remain impartial. Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding each alleged misconduct. In order to warrant or require the granting of a new trial, it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party. State v. Kendig, 233 Kan. 890, 896, 666 P.2d 684 (1983).
Trials are frequently emotionally traumatic for witnesses who are personally involved in the events to which they are testifying. Acts of common courtesy should be encouraged, not discouraged. There is nothing in the record before us to indicate that the trial judge exceeded any boundaries or levels of judicial propriety in handing a tissue to a crying witness. We find no error or judicial impropriety.
Sufficiency of Evidence
Richard argues there was insufficient evidence to prove that Richard “took or confined M.S. by force or threat,” an essential element of the crime of aggravated kidnapping. In his argument, Richard attacks the credibility of M.S., emphasizing the different versions of the events she reported to police and testified to at trial, the evidence that her blood alcohol concentration was .172 after the incident, and the evidence that she had inhaled a hit of crack cocaine earlier in the evening.
When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Evans, 251 Kan. 132, Syl. ¶ 1, 834 P.2d 335 (1992).
It was for the jury to determine the credibility of the witnesses, including M.S. In so doing, the jury could have concluded that M.S.’s initial version was affected by her hysteria (a condition reported by the officer questioning her) and embarrassment over her own actions on the day in question. Her blood being found on the defendants and her dangerous act of jumping from the moving vehicle added credence to her version of having been forcibly restrained and raped. Our review of all of the evidence, viewed in the light most favorable to the prosecution, convinces us that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Richard’s contention is without merit.
Sentencing
Absent special circumstances showing an abuse of discretion, an appellate court will not set aside a sentence that is within the statutory limits. State v. Webb, 242 Kan. 519, 530, 748 P.2d 875 (1988). The defendant’s principal complaint on appeal is that the sentencing judge failed to base the sentence upon a proper rationale, failed to follow the dictates of the sentencing statutes, and thereby failed to follow the law when exercising his discretion.
The trial court sentenced Richard and codefendant Monte Summers at the same time. When pronouncing the sentence the judge stated:
“With respect to each defendant, Dennis L. Richard and Monte W. Summers, it is the order, judgment and sentence of the Court that you be taken into custody by the Sheriff of Sedgwick County, by him delivered to the custody of the Secretary of Corrections to serve on Count 1, a term of life, on Count 2, a term of 15 years to life and on Count 3, a term of 6 months. Sentences on Count 3 will be concurrent with sentence on Count 2. Sentences on Count 2 are to be consecutive to terms on Count 1.
“The Court will state that this was as well proved case as the Court has tried. The victim during the course of testifying broke down three times on the stand. The Court had to recess the trial. The demeanor and action of the victim during the course of this trial was completely in accordance with her story and completely contrary to the story as told by the defendants in this case.
“The Court will consider the SRDC report when it is received.”
Richard argues that the sentencing judge did not deal with him as an individual. Rather, he sentenced him and Summers in one brief statement which failed to reflect any individual considerations. Richard points out that the court did not acknowledge that he had no prior record; that he was only 17 years old at the time of the crime; that he was raised on the street; and that his father disappeared when he was only 3 years old and his mother, with whom he has a poor relationship, was in the Lansing, penitentiary. He claims the court’s comments failed to reflect any considerations at all except the fact that the judge believed the defendants were guilty.
Richard concludes that the judge’s statement does not indicate that the judge was aware of the existence of the K.S.A. 21-4606 guidelines for sentencing. He argues that the harsh sentence imposed defies any goal of rehabilitation and that the judge, without any explanation, analysis, or consideration of the statutory factors, ran the sentences consecutively. He contends this was an abuse of discretion.
K.S.A. 21-4601 sets forth the legislative policy to be followed in the sentencing of criminal defendants and is to be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, fine, or assignment to a community correctional services program whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law. Although K.S.A. 21-4601 states the objectives of the corrections system, it does not require the sentencing judge to specifically consider those objectives as the judge must the factors in K.S.A. 21-4606. State v. Webb, 242 Kan. 519, Syl. ¶ 3.
K.S.A. 21-4606(2) provides that:
“(2) The following factors, while not controlling, shall be considered by the court in fixing the minimum term of imprisonment:
(a) The defendant’s history of prior criminal activity;
(b) The extent of the harm caused by the defendant’s criminal conduct;
(c) Whether the defendant intended that his criminal conduct would cause or threaten serious harm;
(d) The degree of the defendant’s provocation;
(e) Whether there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
(f) Whether the victim of the defendant’s criminal conduct induced or facilitated its commission;
(g) Whether the defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.”
It is the sentencing judge alone who uses his or her discretion to determine the appropriate sentence or other disposition of the case. The sentencing judge determines the sentence by exercising his or her best judgment, common sense, and judicial discretion after considering all of the reports, the defendant’s background, the facts of the case, the public safety, and the statutory guidelines for sentencing. State v. McDonald, 250 Kan. 73, 82, 824 P.2d 941 (1992).
Each judge should develop his or her own personal technique for imposing sentence but should be sure to fulfill certain basic requirements. The judge should attempt to personalize the sentence in such a way that the defendant realizes that it is suited both to him or her individually and to the offense committed. The judge should neither add personal condemnation of the offender nor underemphasize the seriousness of the offense. The sentence should be pronounced in a careful and understandable manner, giving the reasons for it. The judge’s approach to the imposition of sentence can affect the whole response of the offender and any rehabilitative efforts to follow.
The statutory factors which the judge shall take into consideration in determining the penalty to be imposed are enumerated in K.S.A. 21-4606. Where the sentence exceeds the minimum, the legislature intended that the sentencing judge place on the record a detailed statement of facts and factors the judge considered. Failure to do so does not always indicate the sentencing court abused its discretion. Each case is to be considered on its facts. See State v. McDonald, 250 Kan. at 82-83.
Although the appellate courts have upheld sentences where the factors considered by the sentencing judge are not specifically enumerated, the appellate courts have repeatedly stated the better practice is for a trial judge to make a detailed record of the facts and factors considered in imposing sentence. See, e.g., State v. Crispin, 234 Kan. 104, 113, 671 P.2d 502 (1983). A sentencing court may be found to have substantially complied with K.S.A. 21-4606 when it incorporates into the record a presentence report which addresses the seven factors which must be considered pursuant to K.S.A. 21-4606(2). State v. Webb, 242 Kan. 519, Syl. ¶ 2.
The record is clear in this case that the sentencing judge neither took into consideration the individual characteristics, circumstances, needs, and potentialities as they applied to appellant, nor the criteria set forth in K.S.A. 21-4606. Judges cannot ignore the legislative policy and sentencing criteria set forth in the statutes when imposing a sentence. It is the duty of the judge to follow the legislative sentencing mandates. If a statutory procedure or guideline is to be followed, the judge’s use of discretion is limited. Under these sentencing circumstances, there is a greater need for articulation by the judge of the statutory procedure or guidelines and the reasons for the judge’s “discretion ary” decision. Discretion must be exercised, not in opposition to, but in accordance with, established principles of law. It is not an arbitrary power. We sometimes speak of a decision which is contrary to the evidence or a statute as an abuse of discretion, but it is nothing more than an erroneous decision, or a judgment rendered in violation of law.
We have carefully reviewed the record and conclude that the trial court’s total failure to consider the mandates of K.S.A. 21-4606 constituted an abuse of discretion, which requires that the sentence be set aside and that the defendant be resentenced in accordance with the proper statutory procedure. Based upon the facts and circumstances of this case, the sentences imposed upon Dennis Richard are vacated, and the case is remanded with directions that the defendant be resentenced in compliance with the provisions of K.S.A. 21-4606.
Convictions affirmed, sentences vacated, and case remanded for resentencing. | [
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Ter Curiam:
This is an original attorney discipline proceeding involving Richard E. Keithley that originated in 1985.
In January 1985, Keithley was charged with one count of aggravated incest with his stepdaughter, contrary to K.S.A. 1984 Supp. 21-3603. At trial, Keithley stipulated “to having engaged in several separate and distinct acts of sexual intercourse and sodomy” with his stepdaughter, A.R. On July 12, 1985, he was found guilty as charged. Keithley received a sentence of two to five years. He served three years.
The Kansas Court of Appeals affirmed Keithley’s conviction in an unpublished opinion (No. 58,696, filed February 5, 1987), and this court denied his petition for review. (241 Kan. 840 [1987]).
Following the trial court conviction, this court ordered Keithley to appear and show cause why he should not be disbarred from the practice of law in the State of Kansas. This court then indefinitely suspended Keithley from the practice of law in the State of Kansas pending the final determination of his appeal and the further order of this court. In re Keithley, 238 Kan. 245, 708 P.2d 984 (1985).
In 1990, Keithley requested that this court modify its previous order and allow him to practice law. On November 21, 1990, by order of this court, Keithley was placed on temporary suspension until the pending disciplinary complaint against him was resolved.
On March 22, 1991, the Disciplinary Administrator filed a formal complaint against Keithley. The Disciplinary Administrator alleged Keithley violated DR 1-102(A)(3), (4), (5), and (6) (1992 Kan. Ct. R. Annot. 189). DR 1-102(A), as set forth in Canon 1 of the Code of Professional Responsibility, provides, in pertinent part:
“A lawyer shall not: . . .
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.”
See Supreme Court Rule 226 (1992 Kan. Ct. R. Annot. 238) (Code of Professional Responsibility governs alleged ethical violations committed before March 1, 1988).
In pertinent part, the hearing panel set forth the following factual basis for its decision:
“Testifying on his own behalf, the Respondent acknowledged that this entire period in his life was very difficult. . . . During this period of time, [A.R.] was encountering a phase which [Respondent] described as an Electra Complex wherein [A.R.] felt that she would be a better wife for the Respondent than her mother. As a result, he admitted that they became close to the extent they were sexually involved. . . .
"The investigation report concerning [A.R.] is extremely detailed. It reveals a somewhat extended history of sexual conduct involving [A.R.]. ... In addition, [A.R.] became pregnant and it appears from the investigation report that the Respondent was in fact the father.
“The Respondent testified concerning his sincere feelings toward [A.R.] during the period in question. Apparently, it was his feeling that attempts could be made to establish a common law marriage with [A.R.].”
The panel concluded Keithley’s conduct with regard to A.R. violated DR 1-102(A)(3), (5), and (6), noting the Disciplinary Administrator had withdrawn the alleged violation of DR 1-102(A)(4). The panel unanimously recommended disbarment.
Keithley filed exceptions, both factual and legal, to the hearing panel’s report. Although he agrees the panel’s statement of facts essentially reflects the evidence presented, he claims several factual statements are wrong or need clarification. The errors of which he complains are either typographical or not necessary to the resolution of this case. We concur with the panel’s statement of facts and will set forth additional facts as needed.
The issue before this court is the appropriate discipline to be imposed upon Richard E. Keithley. In recommending disbarment, the hearing panel reasoned:
“While certain evidence was offered by the Respondent which would indicate that he has undergone rehabilitation; that he now recognizes the impropriety of his acts; and has otherwise expressed remorse, the inescapable conclusion is that his conduct during the period in question was simply unacceptable, by whatever standard of measurement one would choose to use. Even in the absence of a Code of Professional Responsibility, it would be inconceivable that anyone would suggest that the Respondent should retain the right to practice law. The ABA standards recognize that aggravation may be considered when imposing discipline. Standard 9.22(c), (d), and (h) would clearly apply and are supported by the evidence presented to this panel.”
“It is well established that the panel’s findings and recommendations are advisory only and are not binding on the court. [Citations omitted.]” In re Smith, 249 Kan. 227, 229, 814 P.2d 445 (1991).
“[Ajlthough the report of the disciplinary board ‘is advisory only, it will be given the same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicting testimony.’ [Citation omitted.]” In re Carson, 252 Kan. 399, 406, 845 P.2d 47 (1993).
This court has the responsibility “to examine the evidence and determine for itself the discipline to be imposed. [Citation omitted.]” Smith, 249 Kan. at 229. We may impose sanctions lesser or greater than those recommended. Supreme Court Rule 212(f) (1992 Kan. Ct. R. Annot. 169); see In re Veith, 252 Kan. 266, 272, 843 P.2d 729 (1992). In assessing discipline, aggravating and mitigating factors are to be considered. See In re Kershner, 250 Kan. 383, 391, 827 P.2d 1189 (1992); ABA Standards for Imposing Lawyer Sanctions (1991) (hereinafter Standards).
Keithley concedes his behavior violated DR 1-102(A)(3), (5), and (6). He argues that this court should not adopt the hearing panel’s recommendation of disbarment because the panel misapplied aggravating factors, because the panel failed to give proper weight to mitigating factors, because the panel failed to consider cases he cited, and because the panel failed to take into account the length of time he has been suspended. Keithley’s arguments will be addressed in the context of aggravating and mitigating factors.
Keithley contends that, in recommending disbarment, the hearing panel misapplied certain ABA Standards and ignored others. He claims the panel misapplied Standard 9.22, which sets forth aggravating factors to consider in assessing the degree of discipline to impose. According to Keithley, the panel’s reliance upon Standards 9.22(c) and (d) was not appropriate because his behavior was “a one-time lapse of personality in a personal, rather than legal setting.” Standard 9.22(c) refers to “a pattern of misconduct,” and Standard 9.22(d) refers to “multiple offenses.” Standards, p. 49.
The essence of Keithley’s argument is that, because there was one victim, there was no pattern of misconduct nor were there multiple offenses. His argument is not persuasive. In a statement to the police, Keithley admitted having sexual intercourse with A.R. approximately 25 times and having oral copulation several times. A.R. told the police she and Keithley may have had sexual intercourse as many as 70 times. The sexual conduct commenced in 1983 when A.R. was 13 years of age. At age 15, she became pregnant by Keithley. Keithley stipulated the sexual conduct occurred from September 1983 until January 1985.
Keithley also disagrees with the panel’s conclusion that he violated Standard 9.22(h), referring to the “vulnerability of the victim.” See Standards, p. 49. He questions how a blanket classification of 15-year-old girls as vulnerable victims meshes with the fact that, under Kansas law, these girls have the capacity to enter into common-law marriages. Keithley argues that vulnerability cannot be based upon age alone, at least in this case, and that the panel had no evidence before it that A.R. was a vulnerable victim. According to Keithley, the evidence suggested otherwise in that A.R. disobeyed court orders and continuously attempted to contact him, even after being threatened with contempt of court and imprisonment in an adult facility. Additionally, he claims A.R. not only consented to the sexual activity, but did not want it to stop. He suggests the panel’s conclusion was both speculative and chauvinistic.
The panel was not referring to all 15-year-old girls, but to one in particular, A.R. Moreover, A.R. was not 15 years old when the sexual activity began. Keithley stipulated to the fact the aggravated incest occurred between September 1983 and January 1985. A.R. turned 14 years old in December 1983. Thus, A.R. was 13 years of age when the first sexual contact occurred. Not only was Keithley more than 20 years older, he had established a familial relationship with A.R., having been her stepfather since 1977 when he married her mother. The comparison fails because an incestuous act with a stepchild is not comparable to the ability to enter into a common-law marriage.
Keithley’s contention that A.R. was not a vulnerable victim is not persuasive. Furthermore, he fails to demonstrate an appreciation of the impact of his actions upon A.R. See People v. Grenemyer, 745 P.2d 1027, 1030 (Colo. 1987) (in disbarring attorney based upon two counts of sexual assault upon a child, court took into account attorney’s “refusal to acknowledge the nature of his conduct or the vulnerability of, or the effect upon, the victim").
We agree with the hearing panel’s assessment that Standards 9.22(c), (d), and (h) are aggravating factors.
Many of Keithley’s complaints are premised upon the assumption that if the hearing panel did not cite a particular standard, the panel failed to consider it. Neither this court nor the hearing panel are required to cite and discuss every potentially applicable standard. Moreover, discussion of any standard is not required. The Standards are guidelines to assist courts in selecting appropriate and uniform discipline, depending upon the facts and the aggravating and mitigating factors of each case. See In re Anderson, 247 Kan. 208, 212, 795 P.2d 64 (1990), cert. denied _ U.S. _, 112 L. Ed. 2d 1069 (1991); Standards, pp. 6-7.
This court also will take into account mitigating factors. Keithley claims the hearing panel failed to give proper consideration to his mitigation evidence.
Keithley presents a detailed portrait of his background prior to and during his incestuous relationship with A.R. Suffice it to say that prior to his sexual relationship with A.R., he suffered numerous professional, financial, and personal setbacks as well as enduring character assassinations from his wife’s ex-husband.
With regard to rehabilitation, Keithley points out eight years have passed since his incestuous relationship with A.R. He claims that he was a model prisoner during the three years he spent in prison and that since his release he has not received even a traffic citation. Since being released from prison, he has made a new life for himself — complete with a new wife and a young son by that marriage. In May 1990, he began work as a paralegal, which has allowed him to keep abreast of the law. His employer has offered to hire Keithley as an attorney if Keithley is allowed to resume the practice of law. There is some evidence in the record Keithley has undergone and completed treatment for his mental, emotional, and sexual problems. He claims all of this demonstrates he has made progress “towards sanity, towards normalcy, towards being able to be a good, active, competent practitioner.”
In support of his argument that, based upon the mitigating evidence, he should not be disbarred, Keithley directs this court’s attention to cases he cited to the hearing panel. Most of these cases, which are from other jurisdictions, involve attorneys who were found guilty of sexual misconduct, but were not disbarred. These cases are distinguishable.
In Disciplinary Counsel v. King, 37 Ohio St. 3d 77, 523 N.E.2d 857 (1988), the attorney had been convicted of contributing to the delinquency of a child based upon his ongoing affair with a 15-year-old girl. The attorney was suspended from the practice of law for one year. See Disciplinary Counsel v. King, 46 Ohio St. 3d 604, 545 N.E.2d 898 (1989) (attorney reinstated).
In In re Safran, 18 Cal. 3d 134, 133 Cal. Rptr. 9, 554 P.2d 329 (1976), the attorney was convicted of two counts of annoying or molesting a child under 18. He had been convicted of indecent exposure prior to his admittance to the bar. Because the attorney was involved in an ongoing psychiatric treatment program, was candid and remorseful, and received the highest professional performance rating from his firm, the attorney was placed on probation under intensive supervision for three years. King and Safran can be distinguished factually in that neither case involved incest. There is a difference between incest, in which the offender stands in a parental role, and sexual misconduct with a minor who is not related to the offender.
In Matter of Kimmel, 322 N.W.2d 224 (Minn. 1982), the Minnesota Supreme Court discussed the merits of disbarring an attorney who had been convicted of two counts of sexual misconduct with members of the same sex, a 13 year old and a 20 year old. The court noted the attorney was undergoing treatment with “a licensed psychologist specializing in criminal sexual offenders” and was making progress. 322 N.W.2d at 225. Also mentioned was the fact the attorney was successful, had an excellent reputation, had cooperated in his investigation, and was active in community service. The court stated:
“Quite simply, it is the respondent’s contention that it is unnecessary to disbar him because it is highly unlikely that he will again engage in the conduct for which he is being disciplined. When read carefully, the justifications cited by the Director in support of his position that disbarment is the appropriate sanction are primarily directed to the nature of respondent’s misconduct, as opposed to any danger he might present to the public. Respondent’s sexual contacts were unrelated to the practice of law, and there is no indication that disbarment is required to adequately protect the public.
“Respondent argues that the earlier cases that dealt harshly with sexual offenders were decided during an era when medical and psychological understanding of sexual dysfunction was less developed. . . .
“. . . As respondent suggests, current literature seems to indicate that sexual dysfunction is analogous to chemical dependency in the sense that while inner propensities may be difficult to alter, outward behavior is subject to change. This court has traditionally been lenient with attorneys who can trace their misdeeds to the latter disease. Sexual dysfunction is now treatable in much the same manner as chemical dependency. Respondent has demonstrated that he is undergoing and cooperating with treatment and is, consequently, unlikely to be a danger to the public or the profession.
“While, obviously, we do not condone respondent’s misconduct and regard it as serious, we believe the public and the profession will be best served by restricting respondent’s practice to examiner of titles throughout the remainder of his probation, with the right to resume full practice at the conclusion of his probation.” 322 N.W.2d at 226-27.
See Matter of Kimmel, 347 N.W.2d 52 (Minn. 1984) (attorney reinstated).
Keithley focuses upon the Kimmel court’s statement that the recommendation of disbarment made by the Minnesota disciplinary authority was directed to the nature of the misconduct, not to any danger presented to the public. Keithley then relies upon Matter of Oliver, 493 N.E.2d 1237, 1242 (Ind. 1986), in which the Indiana Supreme Court stated:
“In deciding [whether an attorney’s conduct reflects adversely on his fitness to practice law], this Court exercises its duty to assure the public that those who hold licenses to provide service can be trusted to do so in a responsible and competent way. We consider whether an attorney can be trusted to keep his client’s secrets, give effective legal advice, fulfill his obligation to the courts, and so on. The question is whether there is a nexus between [the attorney’s] act of misconduct and his fitness to practice law.”
In Oliver, the attorney was convicted of driving while under the influence.
Kimmel is not helpful on the instant facts because Keithley does not suggest or acknowledge he has a sexual dysfunction— he claims his sexual misconduct was the result of stress and emotional problems. Keithley refers to his behavior as a one-time lapse of character, an aberration. Oliver can be distinguished factually. Although the question raised in Oliver is pertinent, it is only one of several considerations.
Numerous cases have addressed sexual misconduct as a basis for disciplining an attorney. See Comment, Disciplining Attorneys for Non-Professional Conduct Involving Alcohol and Sex, 1975 Ariz. St. L.J. 411; Annot., 43 A.L.R.4th 1062. Attorneys have been disbarred on the basis of incestuous behavior. See, e.g., The Florida Bar v. Hefty, 213 So. 2d 422 (Fla. 1968); Matter of X, 120 N.J. 459, 577 A.2d 139 (1990).
In Hefty, an attorney sexually abused his stepdaughter. In addition to having sexual intercourse with her, he had photographs taken of them in sexual positions. The sexual abuse began when the stepdaughter was 10 years of age. At age 17, she reported him to authorities and then learned she was pregnant. During the course of the investigation, the attorney divorced his wife and, with his wife’s consent, married the stepdaughter. The attorney, his ex-wife, his stepdaughter-wife, and children from both wives all lived together.
The referee recommended disbarment. It was noted the attorney previously had been suspended for six months for unprofessional conduct. The court rejected the attorney’s argument “that a man’s personal life should not gauge his abilities as an attorney and that his personal life should be his own, free from inroads upon it by those charged with policing the Bar.” 213 So. 2d at 424. The court reasoned:
“[W]e do not think the conduct of this man is such that he should be allowed to mix with the honorable members of the profession and their families on the theory that vile as his demeanor has been, he still should be afforded the protection of the Bar in the pursuit of the profession on which he has brought dishonor/’ 213 So. 2d at 424.
Based upon “the enormity of the [attorney’s] depravity,” the Florida Supreme Court disbarred the attorney. 213 So. 2d at 424.
In Matter of X, an attorney pled guilty to three counts of second-degree sexual assault involving his three teenage daughters. It was noted the attorney sexually abused his daughters over a period of eight years for his own sexual gratification because he “found his wife unattractive and prostitutes were too expensive.” 120 N.J. at 461. Disbarment was recommended because the attorney’s ‘behavior was so shameful, so immoral, so vile as to evidence an absolute lack of good moral character.” 120 N.J. at 461.
The New Jersey Supreme Court determined the offense of second-degree sexual assault brought dishonor upon the profession. “A person who does not uphold that which he is obligated to uphold imperils not only himself, but also the honor and integrity of his profession. He undermines the public trust and confidence in his profession as a whole. [Citation omitted.]” 120 N.J. at 462. After considering mitigating and aggravating factors, the court disbarred the attorney, reasoning:
“ ‘[The attorney’s] atrocious acts justify his disbarment. ... A less severe discipline would undermine the gravity of the ethics offenses, the seriousness of the crimes, and the confidence reposed by the public on members of the legal profession and judicial system.’ ” 120 N.J. at 464.
Attorneys also have been disbarred for sexual misconduct involving children to whom they are not related. See, e.g., People v. Grenemyer, 745 P.2d 1027; In re Duggan, 17 Cal. 3d 416, 130 Cal. Rptr. 715, 551 P.2d 19 (1976).
In Grenemyer, an attorney was convicted of two counts of sexual assault on a child. The Colorado Supreme Court took into account that the attorney had no prior disciplinary record and that the attorney failed to acknowledge the victim’s vulnerability and the impact of the crime upon the victim. The court concluded the attorney’s “actions were in total disregard of the fundamental elements of moral standards that the public has a right to expect of a lawyer” and that “a sanction less than disbarment ‘would unduly depreciate the seriousness of the [attorney’s] misconduct in the eyes of both the public and the legal profession.’ ” 745 P.2d at 1030-31.
In Duggan, an attorney pled guilty to contributing to the delinquency of a minor. The California Supreme Court noted that, prior to committing this offense, the attorney “suffered a series of personal tragedies, became emotionally depressed and endured a marked deterioration in his physical and mental health,” and “his psychotic depression developed into a manic depression.” 17 Cal. 3d at 421. The court rejected the attorney’s argument “that his misconduct was largely the product of his mental illness and for that reason protection of the public only requires that he be precluded from practicing law until his mental health has been restored.” 17 Cal. 3d at 423. In disbarring the attorney, the court reasoned that the “reprehensible nature” of the crime warranted severe discipline and that the attorney’s conduct was “ ‘unworthy of a member of the legal profession.’ ” 17 Cal. 3d at 424. The court also noted the attorney became involved with the victim during the course of the attorney’s representation of a client.
The reasoning of the disbarment line of cases is more persuasive than those cases Keithley cites. Additionally, after considering all of the evidence, both mitigating and aggravating, this court is of the opinion the aggravating factors present in this case outweigh the mitigating factors. We adopt the hearing panel’s conclusion that Keithley’s “conduct during the period in question was simply unacceptable, by whatever standard of measurement one would choose to use.” Keithley’s conduct is not within acceptable limits, and the respondent is ordered disbarred.
Because he has been suspended from the practice of law for nearly eight years, Keithley claims it would be “an enormous burden” for him to be disbarred because he would have to wait an additional five years to apply for reinstatement. See Supreme Court Rule 219(e) (1992 Kan. Ct. R. Annot. 180).
“Delay does not justify the dismissal of a disciplinary case, because the overriding purpose of a disciplinary proceeding is the protection of the public. The disciplinary rules do not include any type of statute of limitations. While in some instances a delay in the proceedings may justify the dismissal of disciplinary actions, there must be a showing of prejudice to the party asserting such delay as a defense.” In re Carson, 252 Kan. 399, Syl. 4.
See In re Matney, 241 Kan. 783, 792, 740 P.2d 598 (1987); Annot., 93 A.L.R.3d 1057.
Here, Keithley applied for reinstatement and this court ordered that the indefinite suspension order of November 19, 1985, be abated and that'Keithley temporarily be suspended from the practice of law effective November 21, 1990. In the interest of fairness, the date of disbarment shall be from November 21, 1990, making Keithley eligible to apply for reinstatement pursuant to Rule 219(e) on" November 21, 1995.
It Is Therefore Ordered that Ríchárd E. Keithley 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, effective -November 21, 19907
It Is Further Ordered that the Clérk of the Appellate Courts strike the name of Richard E. Keithley from the roll of attorneys licensed to practice law in the State of Kansas and that respondent forthwith shall comply with Rule 218 (1992 Kan.' Ct. R. Annot. 176).
It Is Further Ordered that the costs of this proceeding be assessed to the -respoñdent and that this order be published in the official Kansas Reports. | [
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|
The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by James Lyndell Poole, Jr., from his conviction of aggravated robbery, K.S.A. 21-3427. He was acquitted of felony murder.
Two issues are raised on appeal. The defendant contends the trial court erred in finding the prosecution’s reasons for striking four black jurors were racially neutral and in giving an Allen instruction.
The issues raised on appeal do not focus upon the facts underlying the crime. The facts do come into play as background for the State’s reasoning on striking certain jurors.
On April 28, 1990, at approximately 12:30 a.m., Sean Malloy, Sara Foulk, and their four-month-old son, Vincent, drove to a Price Chopper grocery store in Kansas City, Kansas. Sara Foulk and Vincent stayed in the vehicle while Malloy went into the store. Vincent was asleep in the back seat, and Sara Foulk was in the right front passenger seat. Poole and Jerrell Edward Larry stole the parked car and, in the process, Sara Foulk was shot. Malloy returned to find Sara Foulk lying on the ground and Vincent and his car missing. Vincent was located a few hours later on the front porch of a house across from the county jail. Sara Foulk subsequently died from the gunshot.
Both Poole and Larry were charged with aggravated robbery and felony murder with the underlying felony being aggravated robbery. The jury convicted Poole of the aggravated robbery charge and acquitted him of the murder charge. Larry pled guilty to felony murder.
Poole, who was sentenced to a term of 15 years to life, appeals his conviction.
I. Peremptory Challenge
At the close of the voir dire process, Poole moved to discharge the jury, arguing the State exhibited purposeful racial discrimination in using peremptory challenges to remove four black venirepersons. Specifically, the defendant questioned the discharging of Wendell Mitchell, Anna Mariner, Grace Tolbert, and Richard Morsden. After hearing the State’s reasons for striking those individuals from the jury panel, the trial court found that the State’s reasons were racially neutral. Poole claims the trial court erred in so finding.
There were 8 black persons on the venire of 36. The prosecution struck 4, and 4 served on the jury of 12. Thus, blacks made up 22 percent of the venire and 33 percent of the jury. The defendant argues that if a black venireperson was struck without a race-neutral reason, it would not matter if the jury panel selected was 100 percent black because the constitutional right involved is the right of the juror or venireperson. Thus, he contends that if a 13th person is black and a race-neutral reason is not given for striking that person, there is error even though the jury ultimately is composed of 12 blacks. The defendant claims he is entitled to a new trial because this constitutional right was violated.
In Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the United States Supreme Court outlined a three-step analysis to determine if the State’s use of peremptory strikes violates the Equal Protection Clause. The Supreme Court recently restated this analysis in Hernandez v. New York, 500 U.S. 352, 358-59, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991):
“First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. [Citation omitted.] Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. [Citation omitted.] Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. [Citation omitted.]”
The State first contends Poole failed to establish a prima facie case because he failed to raise an inference that the State used its peremptory challenges to exclude those individuals because of their race. The State also notes that the trial court applied an incorrect standard to determine whether the defendant had established a prima facie showing. In Hernandez, 500 U.S. at 359, the United States Supreme Court stated that “[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” See also U.S. v. Johnson, 941 F.2d 1102, 1108 (10th Cir. 1991) (“At the outset, the first issue of whether a prima facie case of discrimination exists becomes moot whenever the prosecutor offers a race-neutral explanation for his peremptory challenges and the trial court rules on the ultimate factual issue of whether the prosecutor intentionally discriminated.”); U.S. v. Day, 949 F.2d 973, 978 n.4 (8th Cir. 1991); Wylie v. Vaughn, 773 F. Supp. 775, 777 (E.D. Pa. 1991).
In Hernandez, the Supreme Court reasoned: “Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding will ‘largely turn on evaluation of credibility.’ [Citation omitted.]” 500 U.S. at 365.
With regard to Wendell Mitchell, the State told the trial court it wanted jurors who could empathize with the 17-year-old victim who had a 4-month-old baby. The State asserted that Mitchell had been struck from the jury panel because he did not have any children and that those left on the panel had children. On appeal, the State adds that it was seeking jurors with a maternal or paternal instinct who would understand that the victim would not leave the vehicle when directed to do so at gunpoint because her baby was in the back seat.
The defendant contends that one of the venirepersons selected for the jury, Constance Mason, had no children. According to the transcript of the voir dire proceedings, Mason stated she was married with no children. Included in the record is an affidavit from Mason, which was never presented to the trial court, attesting to the fact that she had two children at the time of these proceedings and that she so testified on voir dire. The State also attaches its notes from voir dire to its brief. These notes indicate that Mason said she had two children. The State’s notes, however, are not part of the record on appeal.
We do not consider affidavits and notes not offered at the trial court level. The trial court, however, heard the evidence and the prosecution’s explanation that all the jurors who had been selected had children. Defense counsel and the trial court did not challenge that statement of fact, and the trial court’s finding that explanation racially neutral is not clearly erroneous.
With regard to Anna Mariner, the State told the trial court that the State anticipated testimony involving Creekside Apartments. The defendant did testify that prior to going to Price Chopper, he and Jerrell Edward Larry spent 15-20 minutes out side one of the Creekside Apartments visiting and drinking with some of Larry’s friends. The State pointed out that although Mariner did not give exact dates, she indicated she lived at Creekside Apartments about the time of the homicide.
During voir dire, Mariner stated she had never seen Poole at the apartment complex during the time she lived there. She also said she did not know Larry.
Poole points out that the following jurors were not struck from the panel: Robinson, who acknowledged familiarity with Creek-side Apartments, and Bilberry, who lived close to the Price Chopper where the murder occurred. The defendant argues:
“It seems rather peculiar that the Prosecution would remove a Juror for having knowledge of an apartment complex that had very little to do with the case when there was another Juror who also had knowledge of the apartment [complex] in question that was not struck and further there was a Juror that lived nearby the actual scene of the murder that was not struck.”
Robinson had been to Creekside Apartments just once. He gave a cub scout who lived there a ride home more than a year before the homicide occurred. Bilberry acknowledged living close to the scene of the murder, but said it would not affect her ability to be a fair and impartial juror. Bilberry was not asked further questions on the matter, and what she meant by close is unknown.
On appeal, the State argues that it was concerned Mariner might have been home the night of the homicide, might have seen the defendants or their friends that evening, or might know some of the defendants’ friends. The State did not have a similar concern with Robinson or Bilberry.
With regard to Grace Tolbert, the prosecutor explained to the trial court that, even after requesting Tolbert to speak up, he still did not understand what she said and that she did not appear interested. The defendant acknowledges the State asked Tolbert to speak up, but argued to the trial court it was only one time and not three times. The State acknowledges that the record does not show Tolbert was requested to speak up. Neither defense counsel nor the trial judge took issue with the prosecutor’s characterization of Tolbert’s responses or with the number of times the prosecutor said he asked her to speak up.
The defendant argued to the trial court the fact Tolbert did not speak up and the fact she was soft-spoken were not “well- grounded, articulate reasons to strike those members of a defined race from the jury.” The defendant does not contend other venirepersons were soft-spoken and did not speak up or were treated differently than Tolbert.
This court has recognized body language as a potentially nondiscriminatory reason to strike a venireperson.
“Hostility toward the prosecution, as evidenced by oral responses, tone of voice, sitting with arms crossed, leaning forward when defense counsel conducts voir dire, or leaning back while the prosecution asks questions, is a matter which the trial court may take into consideration in determining whether the prosecutor has a valid and neutral reason for striking the juror. . . . [T]he trial judge must be particularly sensitive when body language, alone, is advanced as a reason for striking a juror of [a cognizable racial group].” State v. Hood, 245 Kan. 367, 374, 780 P.2d 160 (1989).
See State v. Clemons, 251 Kan. 473, Syl. ¶ 3, 836 P.2d 1147 (1992).
Although the reason given by the State is not one of those listed in Hood, there are similarities. For example, interest in the proceedings can be a subjective determination. Therefore, a trial court also should be “particularly sensitive” under these circumstances. Here, it is impossible to tell if the trial judge was particularly sensitive. The trial judge gave a blanket approval to the State’s reasons and did not discuss the individual circumstances of the four venirepersons struck from the jury panel.
With regard to Richard Morsden, the State told the trial court that Morsden was struck from the jury panel because he is disabled and unable to work due to a back injury. The State expressed its reservations about putting someone on the jury with these problems because of the length and intensity of the trial.
The defendant’s complaint with this reason is that when Morsden said he was disabled because of a back injury, the State did not ask Morsden about his back injury and whether this condition would present a problem in serving on the jury. When another venireperson asked to be excused because a prior accident was bothering her, the State asked if a padded seat would make a difference and if the pain had caused her to miss anything during voir dire. The venireperson stated her injury would not interfere.
The State maintains that a juror’s physical condition is a nonracial concern. Consequently, the State contends it was not ob ligated to ask Morsden further questions because the State already had sufficient reason for striking him. Although the State’s questioning of the two venirepersons differed, this alone does not establish a discriminatory purpose.
Clearly, the percentage of blacks on a venire panel and the percentage that ends up on the jury panel is not the determinative factor. It is, however, a relevant factor the trial court can consider in making the ultimate determination of whether there is proof of racially discriminatory intent or purpose sufficient to show a violation of the Equal Protection Clause. Here, the record supports that the trial court’s finding was not clearly erroneous. Therefore, we will not disturb the trial court’s finding that the State did not exhibit discriminatory purpose in its peremptory strikes.
II. The “Deadlocked Jury” or Allen Instruction
During deliberation, the jury indicated it might not be able to reach a verdict. The trial court then gave the “deadlocked jury” or Allen instruction (PIK Crim. 2d 68.12) over the defendant’s objection. Poole contends this instruction was error because it coerced the jury into a verdict.
In State v. Oswald, 197 Kan. 251, 260-61, 417 P.2d 261 (1966), we approved an Allen-type instruction, based upon the holding in Allen v. United States, 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 (1896), but cautioned against its use after deliberations had commenced. If the instruction is given prior to deliberation,
“all question with regard to the coercive effect of the same would be removed. The practice of lecturing a jury in a criminal case after it has reported a failure to agree is not to be commended and . . . might well be held coercive and erroneous as invading the province of the jury.” 197 Kan. at 261.
We have continued to emphasize the caution with which trial courts should give the Allen-type instruction during jury deliberations.
“The danger in giving an intimidating or coercive instruction arises when a jury has reported its failure to agree on a verdict. Under such circumstances a coercive instruction might induce a jury to return a verdict which they would not otherwise have reached.” State v. Hall, 220 Kan. 712, 719, 556 P.2d 413 (1976).
In State v. Troy, 215 Kan. 369, 372-73, 524 P.2d 1121 (1974), this court held that although the trial court erred in giving an Allen-type instruction during deliberations, the error did not rise to the level of prejudice requiring reversal because of the overwhelming evidence against the defendant. See State v. Boyd, 206 Kan. 597, 600-01, 481 P.2d 1015 (1971), cert. denied 405 U.S. 927 (1972); Bush v. State, 203 Kan. 494, 498-99, 454 P.2d 429 (1969); State v. Hammond, 4 Kan. App. 2d 643, 648-49, 609 P.2d 1171, rev. denied 228 Kan. 807 (1980).
In Hammond, the Court of Appeals commented:
“[T]he giving of an Allen-type instruction after the jury has deliberated for only 3 hours and 27 minutes, and particularly when the giving of same is objected to, is error. The error is compounded when the court calls the jury back less than one hour later and again prompts them. We do not here intend to set a time within which it would be error to give the Allen instruction, in that in each case it must be discretionary with the trial court. However, we have no hesitancy in saying that the shorter the period of deliberation has been, the more suspect is the giving of the instruction, and the more likely it is that the instruction will be coercive in nature. It may well be that there are cases with issues simple enough that such an instruction would be indicated within a few hours of deliberation; however, the instant case was not a simple one. We conclude the court abused its discretion.” 4 Kan. App. 2d at 648-49.
Because of the overwhelming evidence against the defendant in Hammond, the abuse of discretion was not reversible error.
Here, the defendant was charged with aggravated robbery and felony murder, with the underlying felony being aggravated robbery. The jury convicted him of the aggravated robbery, but acquitted him of murder. Poole contends the verdict does not comport with common sense and shows that the verdict was coerced.
As illustrated by the discussion in Hammond, timing can be very important in determining prejudicial error. The record does not indicate when deliberations began, when the Allen-type instruction was given, if the trial judge made additional remarks, and when the jury reached its verdict. The defendant fails to provide a record from which we can determine whether prejudicial error occurred. “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, an appellate court presumes that the action of the trial court was proper.” State v. Milo, 249 Kan. 15, Syl. ¶ 1, 815 P.2d 519 (1991).
Furthermore, there was overwhelming evidence that the defendant committed the aggravated robbery. Sean Malloy testified that after he parked his vehicle in the Price Chopper parking lot, he saw two black men who kept staring at his vehicle and seemingly were discussing the vehicle. The defendant’s sister and her fiance both testified that after the crime had been committed, the defendant told them he had done something bad, he had never done anything like this before, and he acknowledged it was the murder at Price Chopper. Siblings of Jerrell Edward Larry and a friend of the Larry family all testified that the defendant and Larry both admitted their involvement in the crime. When the defendant testified, he admitted having been at the scene and previously having discussed trying to steal a car.
Poole fails to establish that the giving of the Allen-type instruction was reversible error.
Affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
Defendant Lydia Denise Ruff was convicted by a jury of three counts of aggravated assault, K.S.A. 21-3410. The trial judge found that the defendant used a firearm in the commission of the .crimes. Defendant was subsequently sentenced by another district judge serving on the Wyandotte County Board of Probation (Board). Immediately after sentencing, the Board made a finding of manifest injustice under K.S.A. 1992 Supp. 21-4618(3) and granted defendant probation. The State appeals the finding of manifest injustice and the granting of probation. Defendant cross-appeals from her convictions, claiming the trial court erred in denying her motion for mistrial and in failing to sustain her objections to certain comments made by the State during closing argument. She also claims the evidence was insufficient to support her convictions.
On November 24, 1990, Antoinette Clark, Stephanie Stewart, Stephanie Drake, and Dawn Finney planned to meet that evening to go to a nightclub. Sometime around 10:00 p.m., the four women were taking Clark’s 3-year-old daughter to the daughter’s grandmother’s house when they noticed Sharon Ruff’s beige Oldsmobile Cutlass was following them. Sharon Ruff was in the passenger seat of the Cutlass and Sharon’s sister, Lydia, was driving.
The Ruffs followed the women for some distance, at times pulling up beside Clark’s vehicle and yelling at the women inside. At an intersection, Clark stopped her vehicle for a four-way stop sign. The Ruff vehicle pulled up and stopped. Lydia exited the Ruff vehicle, approached the Clark vehicle with a handgun, and said, “Bitches, better not move.” Sharon exited the Ruff car and struck and cracked the windshield of the Clark vehicle with a baseball bat. Sharon and Lydia then returned to their car and left the scene.
Lydia Ruff was charged with four counts of aggravated assault, K.S.A. 21-3410, and one count of misdemeanor criminal damage to property, K.S.A. 1992 Supp. 21-3720. At trial, after the State concluded its case in chief, Judge Lawrence G. Zukel, the trial judge, dismissed one count of aggravated assault because one of the victims, Dawn Finney, failed to appear.
Lydia and Sharon Ruff both testified that the alleged incident had not occurred. Lydia stated she was at home with her three children, talking to a friend on the telephone at 10:00 p.m. that night. She asserted she did not leave her home on November 24, 1990. Sharon also testified that she was at home with her three children on November 24, 1990. She claimed that her car, a yellow 1978 Pontiac Grand Prix, was not running that day.
Lydia Ruff was convicted by a jury of three counts of aggravated assault and acquitted of the charge of criminal damage to property. After the trial judge denied the defendant’s motion for a new trial, the State requested that the court find Lydia Ruff used a firearm in the commission of the crime, so sentencing would be imposed under K.S.A. 1992 Supp. 21-4618. Judge Zukel took the matter under advisement. The judge later found that the defendant used a gun in the commission of the crimes, ordered a presentence investigation, and set the matter for sentencing.
Subsequently, the defendant appeared before the Board for sentencing and for consideration of her application for probation. The Board is composed of three Wyandotte District Court judges. Judge Zukel was not'a member of the Board. The defendant was sentenced by Judge Muriel Y. Harris to the custody of the Secretary of Corrections for a term of not less than two nor more than five years on each of the three counts, with the sentences to run concurrently. The Board then found that, under K.S.A. 1992 Supp. 21-4618(3), manifest injustice would result if mandatory imprisonment was imposed, and it granted probation.
The State appealed the Board’s finding of manifest injustice and the granting of probation. The State now attempts to recraft the issue on appeal, claiming (1) under K.S.A. 1992 Supp. 21- 4618 the judge who determined a firearm was used in the commission of the aggravated assaults must sentence the defendant, (2) an illegal sentence was imposed by the Board, and (3) the Board acted as an appellate court in overturning the trial judge’s finding that probation could not be granted.
A party cannot raise issues on appeal which were not presented to the district court. State v. Crawford, 246 Kan. 231, 234, 787 P.2d 1180 (1990). Therefore, the only issue is whether the Board acted properly in granting probation.
STATUTORY AUTHORITY FOR STATE TO APPEAL
The defendant contends that the State’s appeal should be dismissed for lack of jurisdiction because (1) the sentencing was legal and (2) there is no statutory authority for the State to appeal from a trial court’s imposition of a legal sentence.
An “illegal sentence” is either a sentence imposed by a court without jurisdiction; a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized; or a sentence which is ambiguous with respect to the time and manner in which it is to be served. State v. Frazier, 248 Kan. 963, Syl. ¶ 4, 811 P.2d 1240 (1991). Did the Board have jurisdiction to sentence Ruff?
K.S.A. 1992 Supp. 21-4618 provides in relevant part:
“(1) Except as provided in subsection (3), probation, assignment to a community correctional services program or suspension of sentence shall not be granted to any defendant who is convicted of the commission of the crime of rape, the crime of aggravated sodomy or any crime set out in article 34 or chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime.
“(3) The provisions of this section shall not apply to any crime committed by a person where such application would result in a manifest injustice.”
Kansas statutes do not require that the trial judge be the sentencing judge. Any judge of the judicial district is authorized to pronounce sentence on a person convicted of a crime in that district. The fact that a sentencing judge is sitting as a member of a county board of paroles at the same time that the judge pronounces sentence does not constitute a delegation of judicial authority to the board. The individual judge to whom the case was assigned for sentencing is the person responsible for sentencing, just as if he or she were sitting alone. State v. Blackmore, 249 Kan. 668, Syl. ¶¶ 5, 6, 822 P.2d 49 (1991). In this case, the judge had jurisdiction to sentence Ruff, the sentence conforms to the statutory provisions, and the sentence is not ambiguous in the time and manner to be served. We have reviewed the record and find that the sentence was not illegal.
THE STATE’S APPEAL
The right to appeal is neither a vested nor a constitutional right, but is strictly statutory in nature. State v. McDaniels, 237 Kan. 767, Syl. ¶ 1, 703 P.2d 789 (1985). The defendant argues that neither K.S.A. 22-3602(b) nor K.S.A. 22-3603 or any other statute provides the State with the right to appeal from a sentencing decision with which it disagrees.
K.S.A. 22-3602 states in part:
“(b) Appeals to the supreme court may be taken by the prosecution from cases before a district judge as a matter of right in the following cases, and no others;
“(1) From an order dismissing a complaint, information or indictment;
“(2) rom an order arresting judgment;
“(3) upon a question reserved by the prosecution; or
“(4) upon an order granting a new trial in any case involving a class A or B felony.”
K.S.A. 22-3603 states:
“When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission an appeal may be taken by the prosecution from such order if notice of appeal is filed within ten (10) days after entry of the order. Further proceedings in the trial court shall be stayed pending determination of the appeal.”
The only statutory provision for appeal which could possibly apply to the facts of this case is K.S.A. 22-3602(b)(3), an appeal by the prosecution upon a question reserved. The purpose of permitting the State to appeal on a question reserved is to allow the prosecution to obtain review of an adverse legal ruling on an issue of statewide importance which otherwise would not be subject to appellate review.
Ruff asserts that the State is attempting tó overturn the probation granted to her and require her to be incarcerated. Ruff points out that such relief would have an obvious adverse effect upon her. She claims that under the guise of a question reserved and without any statutory authority, the State is attempting to create a method to appeal a judge’s sentencing decision with which it disagrees.
An appeal on a question reserved is permitted to provide an answer which will aid in the correct and uniform administration of the criminal law. A question reserved by the State will not be entertained on appeal merely to demonstrate errors of a trial court in rulings adverse to the State. Questions reserved presuppose that the case at hand has concluded but that an answer is necessary for proper disposition of future cases which may arise. State v. Puckett, 227 Kan. 911, 912, 610 P.2d 637 (1980).
Under K.S.A. 22-3602(b), an appeal may be taken by the prosecution as a matter of right after a final judgment in the district court only in four situations and no others: (1) from an order dismissing a complaint, information, or indictment; (2) from an order of the district court arresting judgment; (3) upon a question reserved by the prosecution; and (4) upon an order granting a new trial in any case involving a Class A or B felony.
First, we note the present issue is not of statewide importance and will not aid in the correct and uniform administration of the criminal law because the grant or denial of probation is a discretionary determination. The procedure for sentencing and determining probation used by the Board of Probation of Wyandotte County is unique to Wyandotte County and has no statewide application. An order which sentences the defendant and grants probation is not appealable by the prosecution as a matter of right pursuant to K.S.A. 22-3602(b).
The right to appeal from rulings, orders, and judgments in criminal actions rests upon statutory authority which will not be enlarged or expanded by construction. State v. Ramirez, 175 Kan. 301, Syl. ¶ 1, 263 P.2d 239 (1953). The provisions of K.S.A. 22-3602 and 22-3603 do not provide the State the right to appeal a judge’s discretion in granting probation.
CROSS-APPEAL
PROSECUTOR’S MISCONDUCT
Not every trial error or infirmity which might call for application of an appellate court’s supervisory powers correspondingly constitutes á failure to observe the fundamental fairness that is essential to the very concept of justice. When specific guarantees of the Kansas Constitution Bill of Rights are involved, courts must take special care to insure that prosecutorial misconduct does not impermissibly infringe upon those guarantees. State v. Cady, 248 Kan. 743, Syl. ¶¶ 1, 3, 811 P.2d 1130 (1991).
One of the most frequent grounds for granting a new trial is that of improper conduct of the prosecutor in closing argument. These complaints arise from a prosecutor’s comments on the defendant’s silence and matters outside the record and from comments which are abusive or designed to appeal to the jury’s passions or prejudices.
After Ruff’s attorney had completed his argument to the jury, the prosecutor, Larry Hoffman, in his final statement to the jury, said:
“[MR. HOFFMAN]: Ladies and gentlemen of the jury, do not allow this conduct to be tolerated in our county.
“MR. SACHSE [defense counsel]: Judge, I’m objecting. That is absolutely improper argument and I’m pretty sure that the prosecutor’s well aware of that.
“THE COURT: Let’s wind it up.
“MR. HOFFMAN: Thank you. Send that message, ladies and gentlemen, come back with a verdict of guilty. Thank you.”
Defendant points out that it is improper for a prosecutor to ask the jury to send a message to the community that the defendant’s alleged conduct would not be tolerated. She claims the prosecutor’s statements injected an issue which was extraneous to the jury’s duty to decide the case upon the evidence presented at trial. She contends that because defense counsel made a timely objection, and the trial court failed to sustain that objection or instruct the jury to disregard the improper statement, the jury considered the statement in its deliberations, denying defendant her right to a fair trial.
The State asserts there is no evidence that the prosecutor intentionally made the comments to prejudice or inflame the jury or persisted in making the comments. The State claims the comments are vague and would not inflame the prejudice or passions of the jury or rise above the level of harmless error. The State asserts that defendant’s argument fails to consider all of the State’s closing argument. The State further contends that if the comments constituted prosecutorial misconduct, the conduct was harmless error and would not require a new trial because the comments did not prejudicially affect the substantial rights of Lydia Ruff to a fair trial.
The State relies on State v. Murrell, 215 Kan. 10, 523 P.2d 348 (1974). The alleged misconduct in that case dealt with the State’s comment, which did not concern the credibility of the defendant, but bolstered the credibility of its witness who testified against the defendant. The prosecutor stated:
“I would say this, however, ladies and gentlemen, Mr. Burnett [the State’s witness] is at the Industrial Reformatory. He has now come into court and testified against somebody [the defendant]. I will leave that to your imagination as to what that means insofar as he is concerned.” 215 Kan. at 11-12.
The defendant’s counsel failed to object.
The Murrell court noted it is firmly established in this jurisdiction that reversible error cannot be predicated upon a complaint of misconduct of counsel in closing argument to the jury where no objection is lodged. In affirming the conviction, the court stated that “it cannot be said that any prejudice has been shown which would jeopardize the accused’s right to a fair trial.” 215 Kan. at 13. The court noted the general rule that before an objectionable statement made by a prosecutor on matters outside the record will entitle the accused to a reversal of his conviction, it first must appear that it was injurious to him and was likely to affect the jurors to his prejudice. 215 Kan. at 13.
Defendant relies on State v. Zamora, 247 Kan. 684, 803 P.2d 568 (1990). In Zamora, the prosecutor stated in closing argument: “He [Zamora] has raped this victim once. If he is found not guilty, he will get away with it again.” 247 Kan. at 689. The defense’s timely objection was overruled by the judge.
In Zamora, the court noted the Model Rules of Professional Conduct, Supreme Court Rule 226 (now 1992 Kan. Ct. R. Annot. 238), addresses prosecutorial misconduct in closing arguments:
“A lawyer shall not:
“(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.” MRPC 3.4(e) (1992 Kan. Ct. R. Annot. 300).
MRPC 3.4(e) replaced and substantially incorporates Rule 225, DR 7-106(C)(l), (2), (3), and (4) (1992 Kan. Ct. R. Annot. 221). See Code Comparison following MRPC 3.4 (1992 Kan. Ct. R. Annot. 300).
The ABA Standards for prosecutors also consider jury argument:
“(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.
"(e) It is the responsibility of the court to ensure that final argument to the jury is kept within proper, accepted bounds.” 1 ABA Standards for Criminal Justice, The Prosecution Function, Standard 3-5.8 (1980).
Standard 3-5.8(d) is applicable in the instant case. See State v. Zamora, 247 Kan. at 691.
In Zamora we noted that in summing up a case before a jury, counsel may not introduce or comment on the facts outside the evidence, but reasonable inferences may be drawn from the evidence and considerable latitude is allowed in discussing it. The Zamora court stated that counsel may appeal to the jury with all the power and persuasiveness his learning, skill, and experience enable him to use (citing State v. Baker, 219 Kan. 854, Syl. ¶ 9, 549 P.2d 911 [1976]). The Zamora court observed that improper remarks made by the prosecuting attorney in summation to the jury will not provide a basis for reversal where the jury has been instructed to disregard the same, unless the remarks were so prejudicial as to be incurable. The court noted that rather than sustaining Zamora’s objection and instructing the jury to disregard the remarks, the trial court had overruled Zamora’s objection. The court found that the prosecutor’s statement was an improper statement which transcended the limits of fair discussion of the evidence and could not be cured by a general instruction to the jury to disregard statements by counsel which are not supported by the evidence. 247 Kan. at 689-90. See PIK Crim. 2d 51.06.
The State asserts that in Zamora the factual question at trial was one of consent. In Zamora the evidence cut a fine line as to whether rape or consensual sex had occurred.- Under the evidence, this court could not find the prosecutorial misconduct was harmless or that it would not change the outcome of the trial beyond a reasonable doubt. However, in this case, the State argues there is overwhelming evidence of Ruff’s guilt and this was not a case where the passion of the jury could be swayed by a single statement. It concludes it is beyond a reasonable doubt that the State’s comments had no effect upon the outcome of the verdict. We disagree with the State’s conclusion. Here, the three alleged victims testified the incident occurred. In contrast, the two defendants testified the incident never occurred.
Defendant also cites State v. Wilson, 188 Kan. 67, 360 P.2d 1092 (1961), in support of her position. Wilson was convicted of kidnapping in the first degree, forcible rape, and inflicting great bodily harm on or endangering a life. The county attorney, in his closing argument to the jury, read the following from a newspaper report of the Caryl Chessman case:
“ ‘MR. FOSTER: (Reading) “The mother of a raped girl recently was quoted as saying, ‘My daughter was only seventeen when she was kidnapped. Her clothes were tom off and for hours she was terrified; she was abused, and caused her to lose her mind and life among normal human beings.’ ” 188 Kan. at 71.
The county attorney then referred to the victim, stating:
“Miss [P] — Connie—has recovered to a great extent. Miss [P] will, in time, be perfectly normal again, thanks to the wonderful family she has; thanks to her belief in God; thanks to the wonderful people of this town in which she lives. . . .” 188 Kan. at 71.
It is the duty of the prosecutor in a criminal matter to see that the State’s case is properly presented with earnestness and vigor and to use every legitimate means to bring about a just conviction, but he should always bear in mind that he is an officer of the court and, as such, occupies a quasi-judicial position whose sanctions and traditions he should preserve. State v. Wilson, 188 Kan. at 73.
The Wilson court took the opportunity of calling attention to the duty of the district courts in jury trials to interfere in all cases, on their own motion, where counsel forget themselves so far as to exceed the limits of professional freedom of discussion. Where counsel refers to pertinent facts not before the jury, or appeals to prejudices foreign to the case, it is the duty of the court to stop him then and there. The court need not and ought not to wait to hear objection from opposing counsel. The dignity of the court, the decorum of the trial, and the interest of truth and justice forbid license of speech in arguments to jurors outside the proper scope of professional discussion. 188 Kan. at 73.
The Wilson court observed that the prosecutor s statement was an appeal to prejudice and passion and an attempt to introduce facts not disclosed by the evidence and that the statement was extremely improper and prejudicial to defendant’s rights. 188 Kan. at 72-73. The Wilson court found prejudicial error, stating that a prosecutor’s closing argument must be confined to the law and the evidence in the case under consideration, and granted the defendant a new trial. 188 Kan. at 73-74.
Ruff asserts that the prosecutor’s statement violated both her right to a fair trial and the ABA standards as applied in Zamora by injecting an issue broader than her guilt. She argues that the error was not harmless because the State’s evidence was far from conclusive and the trial court’s failure to sustain defense counsel’s objection to the prosecutor’s statement implied to the jury that the statement was proper. Ruff contends that under these circumstances it cannot be said beyond a reasonable doubt that the error had little likelihood of affecting the jury’s verdict.
The State claims that the trial judge was in a far better position to assess the impact of the prosecuting attorney’s conduct on the jury than are members of this court. When discussing a charge of misconduct on the part of trial counsel, it is best left to the trial judge in the first instance who is in position to take immediate corrective action. The State then argues the trial court did not err in failing to admonish the jury to disregard the comments of the prosecutor. The State asserts that for an admonition to be necessary, the trial court must find the comments were improper and prejudicial to defendant. The State argues that the court had no duty to admonish the jury because the State’s closing argument was proper and focused entirely on the evidence. See State v. Murrell, 215 Kan. at 13; Roda v. Williams, 195 Kan. 507, 515, 407 P.2d 471 (1965).
We are surprised by this argument. The prosecutor’s last statement to the jurors prior to their determination as to Ruff’s guilt was that the jury had a duty to send a message to the community that certain conduct will not be tolerated. The prosecutor’s statement implied that if the jury found Ruff not guilty, her conduct would be tolerated.
The prosecutor is under a duty to insure that only competent evidence is submitted to the jury. Above all, the prosecutor must guard against anything that could prejudice the minds of the jurors and hinder them from considering only the evidence adduced. The prosecutor’s statement was improper and transcends the limits of fair discussion of the evidence. The improper remark by the prosecutor in his summation to the jury would not have provided a basis for reversal of Ruff’s conviction if the trial judge, rather than approving the remark after defense counsel objected, had instructed the jury to disregard the remark. Under these circumstances, a general instruction given prior to the improper statement that statements and remarks of counsel are not evidence and should not be considered as evidence does not protect the defendant’s right to a fair trial.
We are unable to find beyond a reasonable doubt that the prosecutor’s misconduct did not deprive the defendant of her constitutional right to a fair trial.
Appeal of the State is dismissed. Reversed on cross-appeal and remanded for a new trial. | [
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The opinion of the court was delivered by
ALLEGRUCCI, J.:
Greg Walker appeals his jury convictions of two counts of aggravated kidnapping, K.S.A. 21-3421, a class A felony; aggravated criminal sodomy, K.S.A. 21-3506(c), a class B felony; aggravated arson, K.S.A. 21-3719, a class B felony; aggravated burglary, K.S.A. 1991 Supp. 21-3716, a class C felony; and two counts of aggravated assault, K.S.A. 21-3410(a), a class D felony.
He also seeks reversal of the district court’s order authorizing the State to prosecute him as an adult.
Defendant’s convictions arise out of two separate incidents. The aggravated arson conviction is based on a Molotov cocktail being tossed into the apartment of Kenneth Lowe. The other convictions are based on the forced entry into Jerome Alcorn’s apartment and the subsequent conduct toward Alcorn and D.G.
Each of these incidents occurred when defendant was with a group of young men. There was trial testimony about this group’s affiliation with the Insane Crips gang, also known as ICG or Crips.
The incident involving the aggravated arson occurred on July 20, 1990. Kenneth Lowe and his roommates had a party at their apartment. After the party was underway, defendant, along with his brother James Walker, Harabia Johnson, Rodney Hooks, and Dejuanaudeiu (Dejuan) Harris, asked if they could join the party. They were told that they were not welcome at the party. They hung around outside and harassed arriving guests.
About 10:00 to 10:30 p.m., they were admitted to the party on the condition that they settle down and stop harassing guests. After being admitted to the party they continued to act up. They poured beer on the floor, put out cigarettes on the floor, bothered female guests, and stood in a circle singing Crips lyrics to popular tunes.
Lowe and his roommates decided to end the party, and they asked people to leave. After only a few people were left, two carloads of people drove up. James Walker spoke belligerently to a man who got out of one of the cars. Defendant, James Walker, Harabia Johnson, and Dejuan Harris began pushing and hitting people, knocking them to the ground, beating them, “whooping” them with a switch off a tree, and even throwing a barbecue grill down on someone.
A man across the street fired a shot in the air. Johnson, Harris, Hooks, and the Walkers ran toward the man with the gun. Johnson broke out a car window.
When the police arrived, everyone scattered. Lowe saw Johnson, Harris, Hooks, and the Walkers go in the back door of Big Momma’s, which was across the street from where Lowe lived.
After the police left, Lowe and his girlfriend, Regina Gripp, went over to Big Momma’s to talk to Johnson, Harris, Hooks, and the Walkers about what had happened. Misty Miller and defendant followed Gripp and Lowe up onto Lowe’s porch, and when Lowe shut the door, someone broke the glass out of it.
Lowe heard several voices outside his apartment. Harabia Johnson broke windows in the apartment with a two-by-four. Lowe called the police, and then he heard defendant outside yelling, “Over here, over here.” Lowe thought that defendant was telling someone else which room Lowe was in. In a short time a Molotov cocktail was thrown through a bedroom window. It set fire to the bed, the curtains, and the walls.
Lowe testified that, in addition to hearing defendant say, “Over here, over here,” he also heard him say, “Stop.” Lowe heard four voices outside, and he identified them as the voices of defendant, James Walker, Harabia Johnson, and Misty Miller.
The remaining charges stemmed from an incident at the apartment of Jerome Alcorn. On July 21, 1990, at approximately 5:00 a.m., Jerome Alcorn answered a knock at his apartment door. Alcorn saw James Walker, Dejuan Harris, and three others. Al-corn had known James Walker for a short time, and he knew Harris as a person who frequently accompanied James Walker.
Alcorn receives social security disability benefits because of his dyslexia. He described himself as having “to take a slower pace than most to gather up on things” and having “a tendency to get very flustrated easily.”
Alcorn was asked if D.G. was there, and when he replied that she was not, the group left. D.G. had moved in with Alcorn a month or so earlier to get away from some bothersome neighbors at her former residence. D.G. knew James Walker and Harris, and they had helped her carry her suitcases into Alcorn’s when she moved in. D.G. generally slept on the couch in Alcorn’s one-bedroom apartment. Occasionally they traded so that she slept in the bed and Alcorn slept on the couch.
Approximately 15 minutes after knocking at Alcorn’s door, the group returned with some groceries. When Alcorn answered the door James Walker pushed past him and entered the apartment along with Harris, defendant, and several other people who were not known to Alcorn. Alcorn asked them to leave, and James Walker said that they would not leave and Alcorn could not make them leave.
Alcorn testified that he knew he could not force the intruders out of his apartment because he was outnumbered. He sat down and smoked his pipe; the intruders sat in the living room. At that time he overheard conversation among the others about, “A Crip’s got to have this; a Crip’s got to have that.”
According to Alcorn, D.G. arrived a short time later, and she and James Walker went, at his request, into another room to talk. James Walker came back to the living room angry — screaming and raving at Alcorn. James Walker picked up Alcorn and threw him down.
While Alcorn was on the floor, defendant, in a very violent tone, ordered him to get up. When Alcorn stood up, defendant picked him up and threw him backwards so that Alcorn landed on his back.
Then Harris twice bit Alcorn’s shoulder, put a trash bag over Alcorn’s head, and tried to strangle him. Between bites, Harris declared that Alcorn did not taste good and went to the kitchen for garlic salt.
Alcorn heard racist comments being made, was spit on, and was called a “faggot.” Harris threatened to sodomize him. Alcorn ran into the bathroom; no one followed him. He changed from his pajama bottoms into street clothes and tried to leave the apartment, but was prevented by the intruders from going out.
While the group was in the apartment, Alcorn was sent out to get a can of soda for James Walker from the vending machine, which was located about three feet from the front door. Someone stood in the doorway while Alcorn went out. He testified that he went back into the apartment rather than trying to run away because D.G. remained in the apartment with the intruders.
Two boys who were friends of Alcorn’s brother came to the apartment while the intruders were there. They wanted to retrieve some maps Alcorn had borrowed. James Walker answered the door and stayed by the door while Alcorn returned the borrowed maps. The boys left. Alcorn did not try to tell them what was occurring in the apartment.
Alcorn testified that while he was being thrown around and threatened, D.G. was in the living room. James Walker made her sit on the couch, he bit her on the cheek, and the othérs got “rowdy, very violent and foul-mouthed.”
D.G. testified that when she arrived at Alcorn’s apartment early in the morning on July 21, 1990, James Walker, Harris, defendant, Johnson, and Hooks were there. She tried to go to bed to get some sleep, but James Walker would not let her. She went into the bathroom and smoked a cigarette.
Later James Walker told her to go into the bathroom. James Walker tried to get her to perform oral sex, but she pushed him away. James Walker pulled D.G.’s head toward him and touched his penis to the “middle top part” of her lips. She threatened to bum him with her cigarette, and he choked D.G. and hit her.
James Walker then brought defendant and Hooks into the bathroom one at a time. James Walker said that he was going to show them “how it’s done,” and he hit D.G. and tried again to get her to perform oral sex. James Walker had defendant and Hooks hit D.G.
Defendant slapped D.G., and, when she refused to perform oral sex for him, he slammed her against the bathtub and hit her. The scene was repeated with Hooks.
After defendant and Hooks left, James Walker returned to the bathroom. D.G. testified that she “got beat up some more” and went down on the floor. James Walker told her she “better shut up,” and he held her down, choked her, and raped her.
Alcorn testified that during the time D.G. was in the bathroom he was being guarded by Hooks. He heard a scuffle and heard D.G. scream.
D.G. testified that after she and James Walker returned to the living room, Harris picked up a knife and said, “Let’s do a homicide.” James Walker agreed, and then the others joined in saying, “Yeah, man, let’s do a homicide.” D.G. testified that Alcorn was upset. He picked up another knife and said that he was going to kill himself. Harris told him not to kill himself because “[w]e want to.”
Alcorn testified that it was James Walker who, with a knife in his hand, asked, “Anyone up for a homicide?” The others said that they were game, but then let the idea fade. They began to calm down and choose their places in the apartment in which to go to sleep.
As the intruders began to fall asleep, D.G. went into the bathroom, turned on the water, and broke something on the window so that it could be opened. She called for Alcorn to come into the bathroom on some pretense. When Alcorn got into the bathroom, the two of them went out the bathroom window and ran to a nearby apartment building where they called the police.
We first consider if the district court erred in overruling defendant’s motion for a mistrial. Defendant is black. Of the 60 venirepersons called for jury service in his trial, only one, Donna Williams, was black. She was one of the 48 venirepersons passed for cause, but then the State used a peremptory challenge to remove her from the panel.
Defendant challenged the State’s removal of Williams pursuant to Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), and requested a mistrial. At the time the mistrial was requested, the jury had been selected, but it had not yet been sworn.
Without making any findings as to the merits of defendant’s motion, the district court judge gave the prosecutor an opportunity to respond. The State denied striking Williams on the basis of her race. The explanation for striking her was that the prosecutor wanted jurors who were older and who were stable. He believed that other pool members better fit those qualifications than Williams, who was “youthful,” divorced, a single parent, and lived with her sister.
. The district court denied defendant’s motion, concluding that the prosecutor had stated nonracial and nondiscriminatory reasons for using his peremptory challenge to exclude Williams.
Defendant first contends that the standard of review is “clear error” rather than abuse of discretion. He relies on the following language from Hernandez v. New York, 500 U.S. 352, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991):
“In the case before us, we decline to overturn the state trial court’s finding on the issue of discriminatory intent unless convinced that its determination was clearly erroneous. It ‘would pervert the concept of federalism’ [citation omitted] to conduct a more searching review of findings made in state trial court than we conduct with respect to federal district court findings.” 500 U.S. at 369.
This court has stated that “appellate review of a trial court’s acceptance of the State’s announced reasons for removal of a juror as being racially neutral is on the basis of abuse of discretion.” State v. Sledd, 250 Kan. 15, Syl. ¶ 2, 825 P.2d 114 cert. denied _ U.S. _ (October 5, 1992). We therefore apply the abuse of discretion standard in the present case; however, our conclusion would be the same under the clear error standard.
Purposeful racial discrimination in using peremptory challenges is forbidden by the Equal Protection Clause of the Fourteenth Amendment to the federal Constitution. State v. Hood, 242 Kan. 115, 744 P.2d 816 (1987), following Batson, 476 U.S. 79. As in any equal protection case, the burden of proving the existence of purposeful discrimination is on the defendant who alleges discriminatory selection. 476 U.S. at 96.
The evidentiary formulation requires the defendant to make a prima facie showing of purposeful discrimination. 242 Kan. at 119, following 476 U.S. at 96. Once a prima facie showing is made, the burden shifts to the State to come forward with a nondiscriminatory explanation. 242 Kan. at 120.
In Hernandez v. New York, 500 U.S. 352, the Supreme Court considered a case where the prosecutor defended his strikes even though the trial court had not ruled whether the defendant had made a prima facie showing. The court concluded that “[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” 500 U.S. at 359.
In the present case, as in Hernandez, the prosecutor resolved the question.of a prima facie showing in the defendant’s favor by jumping in with a defense of his use of the peremptory challenge. The next step for the district court is to determine whether, “assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law.” 500 U.S. at 359.
Defendant does not seem to be arguing that there is a discriminatory intent inherent in the State’s explanation that mature years and stability were the juror characteristics it sought. He does not argue that the criteria will have a disproportionate impact on one race or another.
Defendant argues that Donna Williams satisfied the juror “profile” specified by the State. She had a seven-year employment history with Wichita State University and, at the time of trial, managed an office there. In addition, the State “passed the group of twelve venirepersons, which she was among, for cause without asking any questions.”
Defendant does not dispute the State’s assertion that Donna Williams, being “somewhat youthful,” did not bear the “more mature age” preferred for members of this jury. With respect to stability, defendant correctly notes stability in Williams’ employment but does not refute that her marital history, which was the focus of the State’s inquiry, is not stable. Thus, it does not appear that Williams possesses the juror characteristics sought by the State.
He also argues that, as a matter of law, single parenthood has been rejected in this state as a credible race neutral reason. State v. Belnavis, 246 Kan. 309, 313, 787 P.2d 1172 (1990). Belnavis does not support such a conclusion. In Belnavis, this court concluded that the State’s explanation for challenging a young, single black mother was not credible because similarly situated white jurors were not challenged and because the black mother had not responded to a general question about whether family concerns would prevent her from effectively performing the duties of a juror.
As a matter of fact, defendant argues that the State’s failure to strike jurors comparable to Donna Williams, as well as its striking of venirepersons who matched the preferred “profile,” demonstrates that the explanation is not credible. Defendant relies on the direction in Belnavis to “compare the characteristics of the individuals stricken with those not stricken.” 246 Kan. at 312.
Individuals who were not stricken and who defendant contends are comparable to Williams are Steven Standley and Lois Mitzel. Standley and Mitzel, in part, testified:
“THE COURT: . . . Mr. Steven Standley. Mr. Standley is an air guard technician.
“MR. STANDLEY: Yes, ma’am.
“THE COURT: How long have you been in the air guard?
“MR. STANDLEY: Five years.
“MR. STANDLEY: That’s a full-time job, ma’am.
“THE COURT: Okay. Are you in a position to be possibly activated for service in light of the—
“MR. STANDLEY: At the moment, no.
“THE COURT: Okay. Are you married?
“MR. STANDLEY: No, ma’am.
“THE COURT: Okay. And do you have any children?
“MR. STANDLEY: No.
“THE COURT: Okay. Thank you, Mr. Standley.”
“THE COURT: . . . Ms. Lois Mitzel. Ms. Mitzel has listed two different jobs. She is a dental receptionist for a local dentist, and she also works with Sears in telemarketing. Now, did I do that correctly, Ms. Mitzel?
“MS. MITZEL: That’s correct.
“THE COURT: Okay. How long have you been a dental receptionist?
“MS. MITZEL: Well, for dentist — I worked for my brother, and then he sold his practice, and so all in all, about eleven years.
“THE COURT: And how long have you been employed with Sears now?
“MS. MITZEL: It lacks a month being two years.
“THE COURT: Okay. And are you married?
“MS. MITZEL: No.
“THE COURT: Okay. Are there any children or other adults living in your household?
“MS. MITZEL: No.
“THE COURT: Okay. Thank you very much, Ms. Mitzel.”
The ages of Standley and Mitzel are not revealed in their answers to these questions. Both answered “no” to the question whether he or she was married; neither was asked whether he or she was divorced. Standley said that he did not have any children; Mitzel said that there were no children living in her household. There is not sufficient information in the record on which to base a comparison of the ages and marital histories of Donna Williams and individuals not stricken.
The final part of defendant’s argument is not one suggested in Belnavis. There, the court employed comparison of the characteristics of stricken and non-stricken venirepersons on the ground that the presence in an unchallenged white juror of the characteristic articulated as the reason for challenging a black venireperson “convincingly refutes the State’s racially neutral reason.” 246 Kan. at 313. Defendant advocates comparison of the characteristics of stricken venirepersons with the State’s preferred “profile” characteristics. The question is whether this comparison could achieve the same result, Le., a convincing refutation of the stated reason, as the comparison of characteristics of stricken and non-stricken venirepersons.
Defendant lists 12 individuals who were stricken as married or widowed. Some are retired and/or have grown children. Without more development, however, defendant’s list does not have much significance. It is not reasonable to draw the inference from the sketches provided by defendant that the State was not really seeking older jurors whose marital histories were stable. The State never contended that the only characteristics it preferred were mature age and marital stability. The prosecutor stated that he struck Donna Williams because of her youthfulness and her history of divorce. There is nothing in the record from which this court can discern his reasons for striking the people listed by defendant. We find no abuse of discretion by the district court:
We next consider if the district court erred in denying defendant’s motion to discharge the jury panel. Defendant joined with a number of other defendants in pretrial proceedings in challenging the procedure used by Sedgwick County for selecting jury panels. The district court denied the motions of the defen dants. Darrell Bailey, along with defendant, was one of the challenging defendants. In State v. Bailey, 251 Kan. 156, 161, 834 P.2d 342 (1992), this court considered the question of the jury selection process as it was raised by Bailey in his appeal from jury trial convictions.
This court concluded that Bailey had not made a prima facie showing that Sedgwick County’s practice of using voter registration lists “systematically or purposefully excluded a cognizable group.” 251 Kan. at 163. The deficiency in his proof resulted from the absence of a precise identity between persons who do not choose to register to vote and minority persons. 251 Kan. at 162.
Notwithstanding the filing of this court’s opinion in Bailey in May 1992, defendant failed to include any discussion of Bailey in his reply brief of August 1992. Comparison of the two cases reveals that the grounds on which defendant appeals the district court’s denying the joint motion to discharge the jury panel are no broader than the grounds urged by Bailey. There is a difference between the two cases in that here defendant offered evidence that only one minority person was called for jury service for his trial. Bailey “offered no statistics on how many minority persons were called for jury service for his trial.” 251 Kan. at 160.
What defendant shows is that minorities were underrepresented among the persons called for jury service for his trial. What this court found wanting in Bailey’s presentation was not lack of evidence that minorities were underrepresented, but rather that a cognizable group of persons had been excluded. Thus, the additional showing made by defendant does not remove his case from application of the rule stated in Bailey. We find no merit in defendant’s argument.
Defendant next argues that the district court erred in authorizing defendant’s prosecution as an adult. Defendant urges that there are three grounds upon which the court’s order authorizing his prosecution as an adult should be reversed. First, he argues that the court’s failure to give him individual consideration constituted a denial of due process. Second, he contends that the court failed to give adequate and appropriate consideration to the factors specified in K.S.A. 1991 Supp. 38-1636. Third, he con tends that his life sentence is cruel and unusual punishment for an offender of his age.
Defendant asserts that he turned 14 on July 1, 1990. K.S.A. 1991 Supp. 38-1636, which permitted the adult prosecution of 14-year-old minors, took effect that same day. Three weeks later the incidents at issue occurred. Upon the State’s motion, the court authorized prosecution of defendant as an adult under the applicable criminal statutes. Defendant was convicted on eight felony counts and sentenced to life imprisonment.
We first consider his due process argument. There are two aspects to defendant’s contention that he was deprived of individual consideration and thus denied due process. One is that he and Rodney Hooks were lumped together in joint proceedings before the judge of the juvenile division of the district court. The other is that he was viewed as a member of a gang. Defendant relies on Kent v. United States, 383 U.S. 541, 562, 16 L. Ed. 2d 84, 86 S. Ct. 1045 (1966), for the proposition that the court’s failure to consider him as an individual constituted a violation of due process.
Defendant does not argue that separate hearings should have been conducted on the motions to prosecute him and Hooks as adults. The State argues that the record does not support defendant’s claim that he did not receive individualized treatment.
In Kent, the Supreme Court considered the case of a 16-year-old boy in which the juvenile court, without a hearing, waived its jurisdiction so that the boy could be prosecuted as an adult. The court concluded that
“as a condition to a valid waiver order, [Kent] was entitled to a hearing, including access by his counsel to the social records and probation or similar reports which presumably are considered by the court, and to a statement of reasons for the Juvenile Court’s decision. . . . [T]his result is required by the statute read in the context of constitutional principles relating to due process and the assistance of counsel.” 383 U.S. at 557.
None of the deficiencies of the waiver of the juvenile court’s jurisdiction over Kent is involved in the present case. Moreover, the rationale of Kent has a statutory basis rather than a constitutional one. The case offers no support for defendant’s position.
There is a transcript of the ruling of the juvenile division judge on the State’s motions to prosecute Rodney Hooks and defendant as adults. The court discussed each of the eight factors set forth in K.S.A. 1991 Supp. 38-1636(e).
Examination of the court’s remarks reveals that they were approximately evenly divided between Hooks and defendant. For some of the eight factors Rodney Hooks and the offenses with which he was charged dominated the remarks, and for other factors defendant was spotlighted.
For example, the court’s remarks about the seriousness of the alleged offense and protection of the community focus on Hooks. They are as follows:
“When you look at the charges, and they range from the lowest being a D Felony or the highest being A Felony offenses, they certainly do not get any more serious and in regard to Rodney’s case, the homicide, there is no case that’s considered under the law any more serious, so I think that is established. There’s an issue of whether the protection of the community requires prosecution as an adult. There’s some indication here that this is— both incidents are in essence victimizing people and in the case with Sylvester Johnson and Roseanna Johnson that it didn’t — the incident didn’t start out intending to end up the way it did and it seems like something went completely out of control there so there’s some issue of — of protecting innocent citizens there.”
The incident involving Sylvester Johnson and Rose Ann Johnson occurred the night of July 21, 1990. Defendant was not charged with having any involvement in it. An account of the incident appears in Bailey, 251 Kan. at 158-59.
On the other hand, the court’s consideration of previous history dwells more on defendant than on Hooks:
“Now we’re getting into some more subjective issues, previous history including previous adjudications. Rodney has a list of three prior adjudications. We have two here, they are all misdemeanor — what would be misdemeanors, but there’s also indication of offense against a person there and in Greg’s case we have a more extensive record. We have a — two previous committments [sic] to SRS custody and the fact that the offenses alleged here were committed while Gregory was on conditional release. In reviewing those we have cases that would be felonies if [they] had been committed by adults. We have some — some cases in which they committed [crimes] against persons and as a matter of fact, if Greg would have been sixteen when this offense occurred he would have been an automatic referral.”
Defendant contends that the court failed to differentiate between his conduct and that of Hooks. The contention centers on the assertion that defendant, in contrast to Hooks, was a “minor player” in relatively minor offenses. The court’s pretrial consideration of the seriousness of the alleged offenses cannot be based on evidence; it is based on the charges filed and the State’s allegations. At the time of the hearing on the motion for adult prosecution, defendant had 10 felony charges pending against him. Two were class A felonies, and three were class B felonies. As the court noted, “they certainly do not get any more serious.” The evidence which eventually was presented in this case tends to show that defendant understates his role. Moreover, the seriousness of the alleged offenses is only one of eight factors which must be considered in determining whether a juvenile should be prosecuted as an adult. K.S.A. 1991 Supp. 38-1636(e).
Defendant’s contention that he was considered as part of a gang rather than as an individual seems to be based on the following statements of the court:
“In determining whether the interests of the Respondents or the community would be better served by criminal prosecution, in certain respects I think the community would be better served. Citizens have a right to be protected from this type of activity. Whether the Respondents would benefit, well, there’s a very distinct issue there, but in certain respects if these young men continue in their associations and continue the type of activities they are involved in, running around with the type of people they are running around with, living the lifestyle they’re apparently living, my question is what kind of future would they have at all if something isn’t done to change that right away?”
These comments reflect the court’s concern that defendant, at the impressionable age of 14, was associating with and emulating the actions of unsuitable models. The treatment of defendant is as an individual, and there is no undue emphasis on his gang membership. We find no merit in defendant’s argument that he was denied due process.
Defendant’s argument next centers on K.S.A. 1991 Supp. 38-1636(e)(6). He contends that the court misinterpreted the legislature’s directive to consider the sophistication or maturity of the juvenile. According to defendant, “maturity” as used in the statute should be equated with “mature in the adult sense of the word.” He argues that he lacks this type of maturity.
The court stated:
“Sophistication and maturity, well, we’ve got different concepts of maturity here. Many people would consider a mature fourteen or fifteen year old would be the guy who goes to school every day, gets good grades and maybe is involved in extra-curricular activities, those types of things, that might be considered a mature teenager, somebody that could accept responsibility and be trusted and we also have a different type of sophistication and maturity and that’s based on home environment, patterns of living and in many respects what I see here are two young men who’ve adopted the traits and activities of older people, and these are older people who are not appropriate people to be emulating, but here we are involved in — there’s evidence here of use of alcohol, there’s staying out all hours of the night and day. In many respects these young men are being asked to be treated as mature and sophisticated within that environment they’ve chosen to be involved in. Certainly their activities are inconsistent with what a quote, unquote ‘typical fourteen or fifteen year old’ would be.”
We find the court’s remarks reflect a reasonable interpretation of the statutory factor. The defendant’s interpretation seems questionable. Because it is the lack of maturity “in the adult sense of the word” which earmarks most criminal activity, irrespective of the age of the offender, that lack would not be a very useful standard for determining whether to prosecute as an adult.
The district court considered the eight factors set out in K.S.A. 1991 Supp. 38-1636. As we noted in State v. Hooks, 251 Kan. 755, 840 P.2d 483 (1992):
“Factor seven is but one of eight factors which the statute requires the court to consider in making the determination, but the statute specifically provides that ‘[t]he insufficiency of evidence pertaining to any one or more of the factors listed in their subsection shall not in and of itself be determinative of the issue.’ K.S.A. 1991 Supp. 38-1636(e).” 251 Kan. at 759.
The failure to find one or more of the factors adverse to the juvenile does not preclude the trial court from determining that a juvenile should be prosecuted as an adult.
Defendant next contends that his life sentence is cruel and unusual punishment in the following circumstances: (1) He was barely 14 at the time of the offenses; (2) he did not commit a homicide; and (3) there is no “clear evidence” that he was liable as a principal for any serious offense, i.e., class A or B felonies. He relies on Stanford v. Kentucky, 492 U.S. 361, 106 L. Ed. 2d 306, 109 S. Ct. 2969 (1989), and Enmund v. Florida, 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982).
The first two circumstances are uncontroverted. As to the third, the testimony of both Jerome Alcorn and D.G. identifies defendant as one of the people who threatened them and beat them. Their testimony also identified defendant as actively involved in forcefully confining them in the apartment or in a room of the apartment. Thus, there is evidence that defendant was an active participant in the aggravated kidnappings of Alcorn and D.G. Aggravated kidnapping is a class A felony.
Defendant is correct in contending that the charges of aggravated criminal sodomy and rape of D.G., class B felonies, were based on the conduct of James Walker. With regard to the aggravated arson, Lowe’s testimony was that he identified the voice of defendant shouting, “Over here, over here” shortly before a Molotov cocktail was lobbed through his window. One might infer that someone other than defendant threw the Molotov cocktail, but, nonetheless, defendant’s active participation is obvious.
The cases relied on by defendant are of litde help to him. The issue in Stanford was whether the imposition of the death penalty for a murder committed when the defendant was 16 or 17 years old constituted cruel and unusual punishment. The Supreme Court concluded that it did not.
At issue in Enmund is the death penalty rather than a sentence of life imprisonment. Moreover, it involves the imposition of the death penalty for felony murder where the defendant’s only participation was driving the escape car. In the present case, the evidence supports a finding that defendant actively participated in at least two counts of aggravated kidnapping and one count of aggravated arson.
We find no error or abuse of discretion in the district court’s determination that the defendant be prosecuted as an adult.
Defendant next argues that the district court erred in excluding evidence of a sexual relationship between James Walker and D.G. Before trial defendant filed a motion, supported by his affidavit, requesting permission to introduce evidence that James Walker and D.G. had had sexual relations before July 21, 1990. In his affidavit, defendant stated that he had been present on one occasion before July 21, 1990, when James Walker had consensual sex with D.G. and that James Walker told the affiant that the sexual relationship was a continuing one.
The basis for the motion (the defendant’s theory of the relevance of the evidence he sought to introduce) is that defendant was charged with aiding and abetting James Walker’s rape and aggravated criminal sodomy of D.G. Because defendant thought that previous sexual activity, between James Walker and D.G. had been consensual, he claims he could not have foreseen that the nonconsensual crimes of rape and aggravated criminal sodomy would be committed. At trial, the district court instructed the jury that a defendant charged with aiding and abetting is guilty of unintended crimes which were reasonably foreseeable. Thus, according to defendant, the evidence was relevant to disprove his aiding and abetting.
K.S.A. 1991 Supp. 21-3525(2) provides in pertinent as follows:
“[Ejvidence of the complaining witness’ previous sexual conduct with any person including the defendant shall not be admissible, and no reference shall be made thereto in the presence of the jury, except under the following conditions: The defendant shall make a written motion to the court to admit evidence or testimony concerning the previous sexual conduct of the complaining witness. The motion must be made at least seven days before the commencement of the trial unless that requirement is waived by the court.”
Defendant’s motion was filed on February 6, 1991. Trial began on February 7, 1991. Defendant concedes that his motion was not timely filed, but adds, “[Hjowever, it appears that the trial judge, in accordance with statute, waived the notice requirement.” There is no record reference for the assertion that the court waived the requirement. The court’s denial of the motion consists in its entirety of a note on a motion docket minutes sheet form. There is no mention of waiver, nor is any reason given for denial.
“On review the trial court’s ruling should stand absent a showing of abuse of discretion.” State v. Stellwagen, 232 Kan. 744, 747, 659 P.2d 167 (1983). Defendant contends that the district court abused its discretion in that it diminished his constitutional right to present a defense. In this regard he cites Michigan v. Lucas, 500 U.S. 145, 149, 114 L. Ed. 2d 205, 111 S. Ct. 1743 (1991); Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973); and State v. Gonzales, 245 Kan. 691, 699, 783 P.2d 1239 (1989).
In Lucas, the Supreme Court upheld the preclusion of evidence of a prior sexual relationship on the basis of a Michigan statutory requirement that a motion and offer of proof be filed within 10 days after arraignment. Michigan, like Kansas, has a rape shield statute which generally precludes evidence of an alleged rape victim’s past sexual conduct. The Michigan statute, however, is unlike our statute in that it is silent as to the consequences for noncompliance with the notice requirement. The Supreme Court held that the Michigan Court of Appeals erred in adopting a per se rule that preclusion of the evidence under the Michigan rape shield statute violated the Sixth Amendment rights of the defendant. 500 U.S. at 152.
In Chambers, the issue was not the exclusion of evidence of prior sexual conduct. Chambers was found guilty of murder after he was prevented from cross-examining a witness who had made three oral confessions and a written confession of the murder. The Supreme Court found that Chambers had been denied a fair trial in violation of due process.
In Gonzales, this court upheld the exclusion of “evidence of the tendency of a victim of attempted rape and felony murder to form ‘social acquaintances with men on a spontaneous basis.’ ” 245 Kan. 691, Syl. ¶ 2. Gonzales argued that it was essential to his defense that he show the possibility that the victim had been with another man as well as with him on the night of her murder. 245 Kan. at 699. This court concluded that Gonzales’ right to a fair trial had not been violated because the excluded evidence “did not constitute an integral part” of his defense. 245 Kan. at 700. Chambers was distinguished as “deal[ing] with evidence which either directly challenged evidence presented by the prosecution or evidence which directly implicated another specific individual as the perpetrator of the crime.” 245 Kan. at 700.
We do not reach the merits of the defendant’s argument. Absent waiver by the district court, failure to file the required motion within the time specified by the statute precludes admission of the evidence at trial. In Stellwagen, we noted that the rape shield statute represented a legitimate State interest in protecting the rape victim. It also provides protection against surprise to the prosecution. The notice and hearing requirements of the statute permit the trial court to determine if the “evidence proposed to be offered by the defendant regarding the previous sexual conduct of the complaining witness is relevant and is not otherwise inadmissible as evidence.” K.S.A. 1991 Supp. 21-3525(2).
The notice requirement of the statute is clear. It was the defendant’s unexplained failure to comply with the notice provision that precluded the district court from determining if the evidence was relevant and admissible. As a result, the defendant’s Sixth Amendment right to present his evidence was not diminished by the district court’s action. We find no error in excluding the evidence.
We next determine if the district court erred in admitting evidence of defendant’s gang membership. Defendant argues that he was deprived of a fair trial as guaranteed by “due process of law” by the State’s introduction of evidence of his gang affiliation. He asserts that the State “prey[ed] on the all-white jury’s fear of minority street gangs” in order to get guilty verdicts. He likens use of the word “gang” in this context to calling someone a communist in the 1950’s or a witch in 17th-century Salem.
Before any evidence was presented at trial, the district court heard the State’s proffer of the testimony of Kenneth Lowe. The purpose of the proffer, as stated by the court, was “to have the opportunity to consider the admissibility of evidence of gang affiliation.” It appears that the State rather than defendant initiated the court’s pretrial consideration of admissibility of the evidence.
The district court ruled that evidence of defendant’s association with members of a gang called the Insane Crips was admissible. The court noted that defendant had told Lowe that he was a member of the Crips. The court concluded that the evidence was relevant in particular to the charge of aggravated arson and that, for the purpose of K.S.A. 60-455, it showed intent, motive, and preparation. The court expressly found that the probative value of the evidence outweighed possible prejudice.
With regard to the applicability of K.S.A. 60-455, in Bailey this court stated:
“As an additional argument on this issue, defendant contends that admission of such evidence violated K.S.A. 60-455 as such was evidence of commission of a crime or other civil wrong. Inasmuch as membership alone in the Insane Crips gang is not a crime or civil wrong, this point lacks merit.” 251 Kan. at 166.
Defendant concedes that no objection was made during trial when evidence of his gang affiliation was introduced. He urges the court to consider the admissibility of the evidence under the “exceptional circumstances doctrine.” He cites State v. Williams, 15 Kan. App. 2d 656, 815 P.2d 569 (1991). In Williams, there was no issue of failure to object to the admission of evidence. The issue was whether constitutional grounds not raised at the trial level should be considered by the appellate court. 15 Kan. App. 2d at 663.
In Bailey, this court declined to entertain the issue of the admission of evidence of gang membership due to defendant’s failure to object. 251 Kan. at 166. The court recited the rule that a motion in limine must be followed by specific objection to the introduction of evidence in order to preserve the issue for appeal. 251 Kan. at 166.
Defendant cites Dawson v. Delaware, 503 U.S. _, 117 L. Ed. 2d 309, 112 S. Ct. 1093 (1992), for the proposition that admission of irrelevant evidence of gang membership offends the First Amendment right to free association.
The issue in Dawson was whether introduction during the capital penalty phase of the murder trial of evidence of defendant’s affiliation with a white racist prison gang violated the First Amendment. It did in the circumstances of Dawson where it was not relevant. The Supreme Court concluded that the evidence showed “nothing more than Dawson’s abstract beliefs.” 503 U.S. at-, 117 L. Ed. 2d at 318. Racial hatred was not involved in the killing — Dawson and the victim were white, and no other circumstances which would warrant introduction of the evidence were identified. 503 U.S. at_, 117 L. Ed. 2d at 318.
In State v. Hooks, we said: “The evidence admitted was a part of the res gestae .... Further, there was considerable evidence that the perpetrators acted in concert with one another. An aiding and abetting instruction was given herein.” 251 Kan. at 765.
In the present case, the district court concluded that evidence of defendant’s gang affiliation was relevant. The evidence was introduced for the most part by complaining witnesses who told of Crips rhymes and sayings being repeated by the defendant and others in his group either during or shortly before the commission of the crimes. There was considerable evidence that they acted in concert, and an aiding and abetting instruction was given.
The following principles are stated in Hooks:
“The admissibility of evidence is governed by its relevancy to the issue in question. State v. Reynolds, 230 Kan. 532, Syl. ¶ 4, 639 P.2d 461 (1982). Relevant evidence is evidence “having any tendency in reason to prove any material fact.’ K.S.A. 60-401(b). The exclusion of evidence is within the discretion of the trial court. State v. Reynolds, 230 Kan. at 536.” 251 Kan. at 765.
Thus, it is concluded that there is “no abuse of discretion in the trial court’s determination that complained-of evidence of gang membership was relevant and should be admitted [against Hooks].” 251 Kan. at 766.
The present case differs somewhat from Hooks in that Hooks relied on a compulsion defense and, in this context, defense counsel asked him some questions about his gang participation. This court, however, did not rely on the assertion of the compulsion defense in concluding that the trial court had not abused its discretion.
The most noteworthy feature of the present case is that a group of young men and boys acted in concert in bullying and brutalizing their neighbors. Their numbers were intimidating to their victims, and it is doubtful that they could have perpetrated their crimes without the strength of the group. It was not necessary for the State to identify defendant with a specific, named gang in order to show the dynamics and effect of the group. On the other hand, it was not irrelevant to show that defendant identified himself as a member of a gang. Here, as in Hooks, the evidence was relevant and part of the res gestae. We find no error in the admission of the evidence in the present case.
The defendant next challenges his conviction of aggravated criminal sodomy. He makes various arguments why his conviction of aggravated criminal sodomy should be reversed. We find none of the arguments has merit.
He first argues that it is fundamentally unfair to convict him of aiding and abetting aggravated criminal sodomy when the principal, James Walker, was convicted of the lesser offense of attempted aggravated criminal sodomy.
K.S.A. 1991 Supp. 21-3205(3) provides as follows:
“(3) A person liable under this section may be charged with and convicted of the crime although the person alleged to have directly committed the act constituting the crime lacked criminal or legal capacity or has not been convicted or has been acquitted or has been convicted of some other degree of the crime or of some other crime based on the same act.”
In State v. Norwood, 217 Kan. 150, 535 P.2d 996 (1975), the defendant argued that he could not be convicted of aiding and abetting his codefendant who had been acquitted of the crime charged. This court quoted subsection (3) of K.S.A. 21-3205 and summarily rejected Norwood’s argument as being in direct contradiction to the statute. 217 Kan. at 157. Norwood is controlling in the present case.
Defendant next contends the evidence was not sufficient to support his conviction of aggravated criminal sodomy. Defendant contends that the evidence “at most showed that James Walker’s penis touched D.G.’s lips.” He further contends that the instruction on penetration permitted the jurors erroneously to conclude, based on this evidence, that the State had proven aggravated criminal sodomy.
The jury was instructed that one of the essential elements which must be proved by the State to establish the commission of aggravated criminal sodomy is “[t]hat there was actual penetration.” The instruction defining penetration states: “Any penetration, however slight, is sufficient. (The lips constitute the entrance to, and are a part of, the mouth.)”
Walker relies on State v. Moppin, 245 Kan. 639, 783 P.2d 878 (1989), and Justice Lockett’s dissenting opinion in State v. Schad, 247 Kan. 242, 247-49, 795 P.2d 406 (1990), in support of his contention that the instruction was erroneous as a matter of law. These cases have no application here. They involve oral stimulation of the genital area of a female. He relies on Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781, reh. denied 444 U.S. 890 (1979), for the proposition that the verdict cannot stand because the evidence would not permit a rational factfinder to find that the offense had been committed. Jackson does not apply. The primary issue was “what standard is to be applied in a federal habeas corpus proceeding when the claim is made that a person has been convicted in a state court upon insufficient evidence.” 443 U.S. at 309.
The prosecutor asked D.G. to demonstrate “how James Walker’s penis touched your lips.” She verbally responded, “Just right there,” and the court reporter noted that the witness was “in- cheating.” The State argues that “[fjrom this demonstration, the jury must have concluded that James Walker’s penis penetrated the victim’s lips, even if only slightly.”
The State argues, with regard to the demonstration, that defense counsel should have made a record of what D.G. showed to the jury. The State further argues that this court must accept that the district court acted properly due to the defendant’s failure to furnish a record affirmatively showing error. We agree. D.G. was asked to demonstrate how defendant’s penis touched her lips, and she did so. However, the record is devoid of any amplification of her demonstration. The jury and the district court observed D.G.’s demonstration, and the record before us is not sufficient for this court to find the evidence insufficient to support a finding by the jury that penetration occurred nor do we find any error in the instruction.
Finally, defendant argues that his convictions for aggravated assault should be reversed on the ground that they are multiplicitous with the convictions for aggravated kidnapping. He asserts that the convictions arose from a single incident and involve only one continuous act of violence. He relies on State v. Racey, 225 Kan. 404, 408, 590 P.2d 1064 (1979), and State v. Lassley, 218 Kan. 758, 761-62, 545 P.2d 383 (1976). He cites State v. Freeman, 236 Kan. 274, 689 P.2d 885 (1984), for the rule that multiplicitous convictions violate the guarantee against double jeopardy.
This court recently stated the following principles:
“Multiplicity exists when the State uses a single wrongful act as the basis for multiple charges. Charges are not multiplicitous if each charge requires proof of a fact not required in proving the other. Charges are also not multiplicitous when the offenses occur at different times and in different places.
“A test for determining whether a continuous transaction results in the commission of but a single offense is whether separate and distinct prohibited acts, made punishable by law, have been committed. A single motive for a series of acts does not necessarily result in a single crime.
“Multiplicity does not exist if an act of violence is intermittent or separate and wholly unrelated to the other acts of violence.” State v. Woods, 250 Kan. 109, Syl. ¶ 6, 7, 8, 825 P.2d 514 (1992), cert. denied _ U.S. _ (October 5, 1992).
The defendant was convicted of aggravated kidnapping of D.G. for confining her in the bathroom where he beat her and tried to get her to perform oral sex for him. He was convicted of aggravated assault of D.G. for aiding another member of the group, who threatened her with a knife. These acts occurred in different rooms at different times. Separate and distinct prohibited acts were committed.
The conduct for which defendant was convicted of aggravated kidnapping and of aggravated assault of Jerome Alcorn seems less easily compartmentalized. Alcorn was confined to his apartment. During his confinement, there were some periods when he was being watched, but generally it seems that he was not being bothered. There also were intermittent bursts of activity. During one of these episodes, defendant struck Alcorn and threw him down. It appears from Alcorn’s testimony that this beating took place before the three men went into the bathroom with D.G. Later, after the three men and D.G. had emerged from the bathroom, there was another episode in which one of the members of the group threatened Alcorn with a knife. It was this later conduct which was the basis for the aggravated assault charge against the defendant.
The defendant’s conviction of the aggravated kidnapping of Al-corn rests on defendant’s inflicting bodily harm on Alcorn, which was separate and unrelated to the knife-waving conduct. These offenses occurred at different times; whether they occurred in different places is subject to question. Separate and distinct prohibited acts were committed. Thus, the convictions are not multiplicitous.
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Per Curiam:
This is an original action in discipline filed by the Disciplinary Administrator against Douglas Veith, presently residing in the Kansas City area, an attorney admitted to the practice of law in Kansas and formerly a member of the bar of the State of Nebraska.
The formal complaint filed by the Disciplinary Administrator is based upon disciplinary proceedings before the Supreme Court of Nebraska, which resulted in the disbarment of Mr. Veith in that state. State ex rel. NSBA vs. Veith, 238 Neb. 239, 470 N.W. 2d 549 (1991). A panel of the Kansas Board for Discipline of Attorneys (Board), which heard this matter, received voluminous evidence, including a complete transcript of the Nebraska proceedings, numerous exhibits from those proceedings, and the testimony of Mr. Veith and a supporting witness. In addition, the Board received numerous letters attesting to Mr. Veith’s good character.
The proceedings before the Board were presented by the Disciplinary Administrator pursuant to Supreme Court Rule 202 (1992 Kan. Ct. R. Annot. 152), which provides in part:
“A final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this state.”
Following the hearing, the Board filed its report in which it recommended that Mr. Veith be indefinitely suspended from the practice of law in Kansas. Respondent’s presentation and evidence before the Board and his exceptions filed to its report do not controvert or question the factual findings of the Nebraska court but are directed solely to issues asserted in mitigation of the discipline to be imposed here. In essence, respondent admits the facts found by the Nebraska court are correct and that he has violated the disciplinary rules as determined by the Nebraska court. In the proceedings before the Board and this court he seeks leniency in the imposition of discipline.
The Nebraska Supreme Court, in a comprehensive opinion, set forth the factual background as follows:
“The undisputed facts in the record here reveal that Veith was admitted to the practice of law in the State of Nebraska in June 1982. At all times relevant, Veith was the managing attorney in a five-attorney office-sharing arrangement in Bellevue, Nebraska. As managing attorney, Veith received the monthly bank statements regarding the general law business and client trust accounts. Each of the attorneys used the trust account for his respective clients’ trust funds.
“In July 1988, Veith was informed by the bank that it had transferred funds from the trust account to the general law business account to cover a shortage of funds. At various other times Veith transferred or authorized the transfer of funds to the business account from the client trust account.
“During the period of August 1988 through February 1989, Veith, although he was generally aware of periodic deficits in both the trust and business accounts, failed to reconcile the accounts or take other action to avoid the deficit problem. Between September 1988 and March 1989, the trust account had negative balances. At a minimum, throughout this period, it should have contained $16,900 in client trust funds. Between July 1988 and March 1989, Veith withdrew as income $70,000 from the business account. On March 3, 1989, one of the associated attorneys questioned Veith about the trust account balance. Veith acknowledged that the trust account had over a $3,000 negative balance. He secured a $10,000 personal loan from a bank and deposited that money into the trust fund that same day to cover the deficiency in the client trust fund account of the complaining associated lawyer. Subsequently, Veith borrowed $25,000 from a friend to cover deficiencies in the other associated attorneys’ trust funds. On March 27, 1989, Veith secured a loan from a relative in the amount of $10,600, which he deposited in the trust account to cover trust funds for which Veith was accountable to his own clients.
“Meanwhile, on March 9, 1989, all the attorneys in the office-sharing arrangement, including Veith, made a conference call to the NSBA Counsel for Discipline, explaining the matter and setting in motion an investigation.
“The Committee on Inquiry of the Fourth Disciplinary District, after an October 16, 1989, hearing, recommended that formal charges be filed against Veith. These charges were reviewed by the Disciplinary Review Board and were filed as an original action in this court on May 29, 1990. The formal charges allege that the actions of Veith, as set forth above, constitute a violation of his oath of office, as provided by Neb. Rev. Stat. § 7-104 (Reissue 1987), and of DR 1-102 and DR 9-102.
“Section 7-104 provides that every attorney admitted to practice law in Nebraska shall take and subscribe an oath swearing to support the Nebraska and U.S. Constitutions and to faithfully discharge the duties of an attorney and counselor to the best of his or her abilities. An attorney’s violation of a disciplinary rule and failure to act competently by neglecting a matter entrusted to him or her is conduct violative of an attorney’s oath as a member of the bar. State ex rel. Nebraska State Bar Assn. v. Divis, 212 Neb. 699, 325 N.W.2d 652 (1982). See State ex rel. NSBA v. Hahn, 218 Neb. 508, 356 N.W.2d 885 (1984) (the oath requires lawyers to observe the established codes of professional ethics). DR 1-102 and DR 9-102 provide as follows:
DR 1-102 Misconduct.
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.
DR 9-102 Preserving Identity of Funds and Property of a Client.
(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank or savings and loan association accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein [with exceptions not applicable here].
(B) A lawyer shall:
(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding time (sic).
“Following a formal hearing on November 16,- 1990, a referee, on December 7, 1990, filed her report with this court. The referee found that Veith had violated the disciplinary rules under which he was charged. The referee recommended, among five components, that Veith be suspended from the practice of law for a period of 8 months. The NSBA filed an exception to the report, arguing that the referee’s recommendation of suspension for a period of 8 months was too lenient under the facts and circumstances as established by the record of this case.
“In his answer to the formal charges, Veith admits violating DR 1-102(A)(1) and DR 9-102(B)(3) but none of the other enumerated provisions of DR 1-102 or DR 9-102. In essence, Veith admits to commingling the business and client trust fund accounts but attributes it to negligence. He denies attempting to intentionally or dishonestly convert the funds, perpetrate a fraud, or deceive or misrepresent matters to his associated counsel or clients. In contrast, the NSBA argues that Veith has gone beyond commingling and has converted or wilfully misappropriated the client trust funds.” 238 Neb. at 242-45.
In finding Mr. Veith guilty of the charges against him, the Nebraska court stated:
“In attorney discipline proceedings, conversion refers to an attorney’s misappropriation of a client’s property to the attorney’s own use or some other improper use. See ABA/BNA Lawyers’ Manual on Professional Conduct 45:106 (1985). Misappropriation is ‘any unauthorized use ... of clients’ funds entrusted to [a lawyer], including not only stealing, but also unauthorized temporary use for the lawyer’s own purpose, whether or not he derives any personal gain or benefit therefrom.’ In re Wilson, 18 N.J. 451, 455 n.1, 409 A.2d 1153, 1155 n.1 (1979). See Baca v. State Bar of California, 52 Cal. 3d 294, 801 P.2d 412, 276 Cal. Rptr. 169 (1990) (an attorney’s failure to use entrusted funds for the purpose for which they were entrusted constitutes misappropriation). Misappropriation caused by serious, inexcusable violation of a duty to oversee entrusted funds is deemed willful, even in the absence of a deliberate wrongdoing. Edwards v. State Bar of California, 52 Cal. 3d 28, 801 P.2d 396, 276 Cal. Rptr. 153 (1990). See, Giovanazzi v. State Bar of California, 28 Cal. 3d 465, 619 P.2d 1005, 169 Cal. Rptr. 581 (1980) (mere fact that an attorney’s trust account balance falls below the amount deposited in and purportedly held in trust supports a finding of misappropriation); Matter of Iverson, 51 A.D.2d 422, 381 N.Y.S.2d 711 (1976) (an act of conversion is complete when the clients’ trust account is overdrawn or when, through mismanagement or misconduct on the part of the attorney, the balance of the account is less than the clients’ interest in it). Thus, under DR 9-102, wrongful or improper intent is not an element of misappropriation. See, In re Wilson, supra; Archer v. State, 548 S.W.2d 71 (Tex. Civ. App. 1977) (DR 9-102 does not require elements of fraud, culpability, or willfulness); State v. Stoveken, 68 Wis. 2d 716, 229 N.W.2d 224 (1975) (attorney’s intent to defraud or lack thereof is irrelevant when drawing checks on clients’ trust account to pay personal expenses).
“We have held that an attorney has a duty to keep separate and properly account for client trust funds entrusted to the attorney and to promptly pay over and deliver such funds to the client upon request. See, State ex rel. NSBA v. Statmore, 218 Neb. 138, 352 N.W.2d 875 (1984). See, also, DR 9-102. An attorney may not use client trust funds to cover business expenses. See, In re Lewis, 118 Ill. 2d 357, 515 N.E.2d 96 (1987) (professional corporation’s operating account); Edmondson v. State Bar of California, 29 Cal. 3d 339, 625 P.2d 812, 172 Cal. Rptr. 899 (1981) (business debts); Bar Assn. v. Thompson, 69 Ohio St. 2d 667, 433 N.E.2d 602 (1982) (overhead and operating expenses). Based upon Veith’s admissions and other clear and convincing evidence in the record, this court finds that Veith, by knowingly commingling and misappropriating trust funds, inexcusably breached his oath of office and his duty to his clients and to the clients of the lawyers sharing office space with him. In short, the clear and convincing evidence reflects that Veith is guilty of each of the charges brought against him.” 238 Neb. at 245-46.
In an equally comprehensive discussion of the discipline warranted by the facts in this case, the court said:
“The next step is to determine the appropriate sanction. To determine whether and to what extent discipline should be imposed it is necessary that the following factors be considered: (1) the nature of the offense, (2) the need for deterring others, (3) the maintenance of the reputation of the bar as a whole, (4) the protection of the public, (5) the attitude of the offender generally, and (6) his present or future fitness to continue in the practice of law. State ex rel. NSBA v. Thor, 237 Neb. 734, 467 N.W.2d 666 (1991); State ex rel. NSBA v. Rhodes, 234 Neb. 799, 453 N.W.2d 73 (1990), cert. denied 498 U.S. 855, 111 S. Ct. 153, 112 L.Ed 2d 119.
"There is no question that misappropriation of client funds, as one of the most serious violations of duty an attorney owes to his client, the public, and the courts, typically warrants disbarment. See, State, ex rel. Hunter, v. Hatteroth, 134 Neb. 451, 279 N.W. 153 (1938) (misappropriation by an attorney of money belonging to his client is such a disregard of duty as to warrant disbarment); State, ex rel. Hunter, v. Boe, 134 Neb. 162, 278 N.W. 144 (1938)(an attorney is subject to disbarment because of delinquency in accounting to clients for money received in his professional capacity, in violation of his duty to the public); State, ex rel. Spillman, v. Priest, 118 Neb. 47, 223 N.W. 635 (1929) (delinquency in accounting for money received in professional capacity is ground for disbarment as violating duty to maintain respect due courts). ‘ “In the hierarchy of offenses for which lawyers may be disciplined, stealing from a client must be among those at the very top of the list.” ’ The Florida Bar v. McShirley, 573 So. 2d 807, 808 (Fla. 1991), quoting The Florida Bar v. Tunsil, 503 So. 2d 1230 (Fla. 1986).
“Misappropriation affects both the bar and the public because it is a serious offense involving moral turpitude. See, In re Phillips, 767 S.W.2d 16 (Mo. 1989) (receiving client’s funds and converting them to personal use by placing them in office account without consent of client is illegal conduct involving moral turpitude); Bambic v. State Bar of California, 40 Cal. 3d 314, 707 P.2d 862, 219 Cal. Rptr. 489 (1985)(misappropriation of client funds involves moral turpitude and undermines public confidence in legal profession); In re Patt, 81 Ill. 2d 447, 410 N.E.2d 870 (1980) (conversion of a client’s funds is an act involving moral turpitude). ‘Misappropriation is more than a grievous breach of professional ethics. It violates basic notions of honesty and endangers public confidence in the legal profession.’ Grim v. State Bar of California, 53 Cal. 3d 21, 29, 805 P.2d 941, 943, 278 Cal. Rptr. 682, 684 (1991). ‘ “The most common definition of an act of moral turpitude is one that is ‘contrary to honesty and good morals.’ [citations.]” . . .“ ‘The paramount purpose of the “moral turpitude” standard is not to punish prac titioners ■ but to protect the public, the courts, and the profession against unsuitable practitioners. . . In re Scott, 52 Cal. 3d 968, 978, 802 P.2d 985, 991, 277 Cal. Rptr. 201, 207 (1991).
“This court disagrees with Veith’s assessment that his violation did not involve moral turpitude. At various times, by his own admission, Veith knowingly transferred money from the client trust account to the business account of his law office. He admitted that during this period 20 percent of the money from the trust fund was used by him personally and 80 percent was used for salaries and other office expenses. During this period he bought himself an automobile, provided a telephone for his automobile, furnished his law office with a new leased computer system that cost $2,000 per month, and updated his law library, all so he would appear successful.
“This court also disagrees with Veith’s assessment that his conduct does not affect his present or future fitness to continue in the practice of law. In his new partnership arrangement Veith has taken steps so that he cannot sign checks on either the trust or business account. While admirable, this situation creates a paralogism. Veith asks this court and his clients to trust him, yet he apparently has some question as to his own trustworthiness.” 238 Neb. at 246-48.
The Nebraska court then considered various factors in mitigation asserted by respondent before concluding that the only appropriate sanction was disbarment. Before this court respondent asserts many of the same mitigating factors considered by the Nebraska Supreme Court and, in addition, asks us to consider his conduct and efforts toward rehabilitaron since being disbarred in Nebraska.
To his credit, respondent has sought professional help for what has apparently been a long-term period of depression. He continues to undergo regular therapy in Overland Park and evidently has made excellent progress in overcoming his mental and psychological problems. Respondent has moved to the Kansas City area where he now resides with his wife and four children. Respondent’s record indicates that he is active in his church and has dedicated considerable time and effort to worthwhile civic and charitable causes, as well as providing pro bono legal services.
Respondent argues at some length here, as he did in Nebraska, that no client suffered any loss as a result of the improper use of his clients’ trust funds. While these assertions may be technically correct, respondent does not recognize, or chooses to ignore, the fact that he borrowed $45,600 to replace the funds misappropriated from the trust account. Subsequent to borrowing such funds from a bank, a friend, and a relative, respondent discharged those loans in a bankruptcy proceeding. While respondent asserts that he intends to repay those loans, apparently no progress has been made toward doing .so and no concrete plans for repayment have been suggested. It appears that the loss and damage which would have been suffered by respondent’s clients and law partners has merely been shifted to other parties, including a family member and a close friend.
Respondent asks that he be allowed to continue the practice of law in Kansas and has submitted a proposed comprehensive plan of probation, including supervision of his law practice, psychological and psychiatric counseling, financial counseling, and other conditions.
The violations found by the Nebraska court also constitute violations of the disciplinary rules applicable to attorneys in Kansas. As noted earlier, the Board recommended that respondent be indefinitely suspended from the practice of law in Kansas. Under our rules, the recommendations of the Board are advisory only, and this court may impose sanctions greater or lesser than those recommended. Rule 212(f) (1992 Kan. Ct. R. Annot 169); State v. Phelps, 226 Kan. 371, 378-79, 598 P.2d 180 (1979); State v. Johnson, 219 Kan. 160, 162, 546 P.2d 1320 (1976). Kansas disciplinary cases have consistently recognized that misappropriation of clients’ funds is one of the most serious offenses an attorney can commit and the sanction generally imposed has been disbarment. We also note that Sec. 4.11 of the A.B.A. Standards for Imposing Lawyer Sanctions (1986), provides that the appropriate sanction for failure to preserve a client’s property is disbarment.
After a careful review of the entire record, we concur with the findings, conclusions, and sanctions of the Nebraska Supreme Court. The admitted disciplinary violations in Nebraska are equally serious when considered under the Kansas disciplinary rules, and we find that the appropriate sanction is disbarment.
It Is Therefore Ordered that the respondent, Douglas Veith, be and he is hereby disbarred from the practice of law in Kansas and the Clerk of the Appellate Courts is directed to strike the name of Douglas Veith from the roll of attorneys in Kansas.
It Is Further Ordered that Douglas Veith shall forthwith comply with the provisions of Rule 218 (1992 Kan. Ct. R. Annot 176).
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of this action be assessed to respondent.
Justice Herd would impose discipline of indefinite suspension and therefore dissents from the sanctions imposed. | [
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The opinion of the court was delivered by
Herd, J.:
Sherwin W. Taylor appeals from an order of the district court in a K.S.A. 60-1507 proceeding denying a new trial sought on the basis of ineffective assistance of counsel. Taylor was originally convicted of one count of aggravated robbery, K.S.A. 21-3427, and one count of felony murder, K.S.A. 1991 Supp. 21-3401(a)(l).
Taylor took a direct appeal of his convictions and this court affirmed. In State v. Taylor, No. 62,629, unpublished opinion filed December 8, 1989, we stated the facts:
“Several nights before he was killed, nineteen-year-old Michael Garcia played a game of pool with Donato Ornales III. To his misfortune Michael lost the game and a $1.00 bet. Michael told Ornales he would pay up the bet on July 21, 1987, to which Ornales agreed. Nevertheless, when Ornales saw Michael in the parking lot of the Golden Cue on July 14, he asked for his money. Michael replied that he got paid on July 21 and would pay the bet then. A few minutes later, Ornales and the defendant followed Michael into the Golden Cue.
“There is disputed evidence as to who entered the restroom first, but while in the restroom of the pool hall Ornales demanded money, from Michael and threatened that his friend, Taylor, would ‘take care’ of Michael if he did not pay. At that point, Ornales pushed Michael. Michael tried to run out of the restroom but Taylor prevented his escape and hit Michael twice in the stomach. Ornales beat Michael with his fists and demanded money until Michael fell to the floor. Ornales then kicked Michael in the face, which caused, his head to slam backward into the restroom wall and knocked Michael unconscious. As payment for the pool debt, Ornales took Michael’s Swatch watch before leaving the restroom and fleeing from the Golden Cue.
“Michael was immediately taken to the hospital. He was in a combative condition, screaming in pain and holding his head. Early the next morning, surgery was required to relieve pressure on the brain due to the formation of a. blood clot over the brain caused by a blow to the head or fall on a hard surface. The surgery was unsuccessful; on July 18, Michael was declared brain dead.
“On March 15, 1988, Taylor was convicted of aggravated robbery and first-degree murder of Michael Garcia under a theory of aiding and abetting.”
On September 4, 1990, Taylor filed a K.S.A. 60-1507 motion. In his motion, Taylor alleged he was not afforded effective assistance of counsel because his trial attorney, Charles O’Hara, prevented him from testifying in his .own behalf. Taylor further alleged O’Hara was ineffective because he failed to attempt to suppress statements Taylor made to law enforcement officers and failed to object to the presentation of the statements at trial. Finally, Taylor alleged O’Hara failed to adequately investigate and present evidence concerning Ornales’ acknowledgment that Taylor had taken no part in the robbery or injury of Garcia.
On May 10, 1991, the trial court conducted an evidentiary hearing on Taylor’s 1507 motion. Taylor’s wife, Kaye, testified she was present during several conversations which Taylor had with O’Hara. Kaye testified that at the initial meeting with O’Hara, it was assumed Taylor would testify in his own behalf. Kaye further stated that during Taylor’s trial, towards the end of the State’s case, she and Taylor met with O’Hara at O’Hara’s office. Kaye stated O’Hara told them “the decision had been made that [Taylor] would not testify.” Kaye testified that Taylor responded, “but I want to testify” and O’Hara replied it was “just an unwise decision so I’m going to say no.” According to Kaye, O’Hara told Taylor it would be pointless for him to testify.
Kaye testified that the next day she was in the hallway of the courthouse when Taylor caught O’Hara by the arm and said, “[Y]ou have got to let me testify.” O’Hara allegedly responded, “[N]o, I’ve already decided you will not testify.” Kaye further testified that after O’Hara presented the defense’s case in chief, Taylor again told his attorney he wanted to testify. Kaye did not hear O’Hara’s reply, but she testified that she observed O’Hara shaking his head no.
Barbara Taylor, Taylor’s mother, testified she had attended Taylor’s trial and had witnessed the confrontation in the hallway between Taylor and O’Hara. Barbara stated O’Hara told Taylor there was no need for him to testify and that “it was a little late for him to testify.” Barbara also testified that during the trial she saw Taylor lean toward O’Hara and say, “I would like to testify.” O’Hara had responded, “[N]ot at this time, Sherwin, I don’t think you should.”
Beverly Hubbs, a friend of Kaye Taylor, testified she went with Kaye to O’Hara’s office on numerous occasions after the trial and during the appeals process. Hubbs testified that on one occasion O’Hara stated he knew Kaye and Taylor did not agree with him regarding Taylor testifying at trial, but it did not matter because it was O’Hara’s decision. On another occasion, Hubbs was present when O’Hara stated the Taylors and he could not agree on whether Taylor should testify at trial, so O’Hara had “made the decision and that’s all there was to it, period, he didn’t wanna hear about it anymore.”
Taylor’s sister, Shirley Ferretti, also testified she attended Taylor’s trial. Ferretti overheard Taylor express a desire to testify, but O’Hara said it was not in Taylor’s best interest to testify. Taylor repeated his wish to testify, but O’Hara said “no.”
Taylor testified that after his preliminary hearing he assumed he would testify at trial on his own behalf, but O’Hara indicated he wanted more information before he made that decision. The day before trial, Taylor told O’Hara he thought it would be best if he testified, and O’Hara made no response. Taylor further testified that several times during trial he told O’Hara he wanted to testify, but O’Hara was very adamant about him not testifying. According to Taylor, O’Hara didn’t want Taylor to testify because it would introduce more variables into the trial.
O’Hara testified he had been an attorney for 15 years and most of his practice was devoted to criminal law. O’Hara testified he had had conversations with Taylor regarding whether he would testify. O’Hara admitted advising Taylor not to testify. O’Hara testified he specifically remembered asking Taylor at trial if he wanted to testify. Taylor, however, responded, “I’m gonna follow your advice, I’m not gonna testify.” O’Hara also admitted he did not have any written documentation to indicate he had informed Taylor of his right to testify. O’Hara testified such was not his practice — “I know what the law is. I know he has a right to testify. And I told him. There’s no doubt that I told him.” O’Hara further testified:
“I told him it was his right [to testify] and his right alone. I have nothing to gain by forcing anyone not to testify. I mean, it doesn’t matter to me. I mean, they’re the ones on trial, not me.
“[0]bviously it’s a decision that every attorney has to look at in every case depending on the case as to whether [a defendant] should or shouldn’t [testify]. And I discussed that and I have strong feelings depending on the case as to how it should go. And, in Mr. Taylor’s case, it was kind of a close call, I thought really, but my advice in the end was for him not to testify. I didn’t force him not to. I advised him that he could still do it if he wanted to.”
O’Hara testified Taylor expressed a desire to testify at various stages of the prosecution. Taylor had stated he wanted to testify at the preliminary hearing, but O’Hara told him he should save his testimony for trial. O’Hara testified that occasionally during trial Taylor would state he wanted to testify in response to a State’s witness’ testimony. O’Hara explained Taylor could not testify at that point because it was not the defense’s turn to present evidence.
O’Hara testified he felt Taylor understood what was happening. O’Hara specifically stated he never told Taylor he could not testify. Finally, O’Hara testified he always told Taylor he had the right to testify and that it was his decision, not O’Hara’s.
Following the evidentiary hearing, the trial court made the following findings of fact:
“14. The Petitioner’s proffer of what his testimony would have been had he testified at his own criminal trial would have offered an explanation of his statements to the police, and such testimony would have been offered for the purpose of showing a lack of knowing involvement or assistance in the crime or crimes of Mr. Ornales.
“15. The evidence presented in this action demonstrates a conflict of testimony concerning the conversations between the Petitioner and his trial counsel.
“16. The important conversation or conversations are not those which were held here at the courthouse during the course of the trial.
“17. The important conversations between the Petitioner and Mr. O’Hara were those conversations or that conversation that was held the evening before the State rested (and prior to the testimony at such trial on the following morning from Detective Abele regarding the lack of fingerprints), when the final decision was made whether or not the Petitioner would testify in his own behalf.
“18. It is more probably true than not that the Petitioner wished to testify.
“19. It is more probably true than not true that Mr. O’Hara did not want him to testify.
“20. It is more probably true than not true that the Petitioner followed his attorney’s advice and decided not to testify even though he wanted to testify.
“21. The Petitioner understood that he had the right to testify.”
The trial court then denied Taylor’s 1507 motion, from which decision Taylor appeals.
I
The first issue on appeal is whether the trial court erred in failing to find Taylor was denied his constitutional right to testify in his own behalf through ineffective assistance of counsel.
When a trial court considers a claim of ineffective assistance of counsel, it must follow the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The Washington two-prong test was adopted by this court in Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985). The test requires:
“First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Washington, 466 U.S. at 687.
An evidentiary hearing held pursuant to K.S.A. 60-1507 is a civil proceeding and, thus, governed by the rules of civil procedure insofar as applicable. Rule 183(a) (1992 Kan. Ct. R. Annot. 143). Rule 183(g) places the burden of proof upon the movant, who must establish his grounds for relief by a preponderance of the evidence. (1992 Kan. Ct. R. Annot. 143). Rule 183(j) also requires the trial court to make findings of fact and conclusions of law on all issues presented. (1992 Kan. Ct. R. Annot. 143). This requirement that the trial court make findings of fact and conclusions of law enables the appellate courts to determine whether the decision reached by the trial court “follows as a matter of law from the facts stated as its basis, and also whether the facts so stated have any substantial support in the evidence.” White v. State, 201 Kan. 801, 804, 443 P.2d 182 (1968).
Thus, the standard for review of an appeal of a 1507 motion is the same as the standard required for other civil proceedings. That standard is well settled.
“ ‘Where the trial court has made findings of fact and conclusions of law, the function of this court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law.’ ” Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991) (quoting Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 676, 750 P.2d 398 [1988]).
Furthermore, “[u]pon appellate review [the appellate court] accepts as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the trial judge.” Short v. Wise, 239 Kan. 171, 178, 718 P.2d 604 (1986).
Taylor argues his four witnesses testified to conversations which tended to prove he did not understand his right to testify well enough to exercise it knowingly and willingly. Taylor also claims the only reasonable interpretation of the evidence is that even if O’Hara was correct in his belief that he properly advised Taylor regarding his right to testify, neither Taylor nor those around him understood.
It is the duty of the trial court to weigh the evidence presented and to pass on the credibility of the witnesses. Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 393, 681 P.2d 1038 (1984). Each witness who testified on Taylor’s behalf was either a family member or a family friend. O’Hara testified he specifically remembered asking Taylor at trial if he wanted to testify. O’Hara testified Taylor said he wanted to testify but made those statements during the State’s case when it was not Taylor’s turn to present evidence. O’Hara further testified if Taylor had told him he wanted to testify, Taylor would have testified.
We find there is substantial competent evidence to support the trial court’s finding of fact that Taylor understood he had a right to testify. Thus, the trial court’s conclusions of law that Taylor had not been denied effective assistance of counsel and had not been denied his right to testify are supported by the facts. We hold the trial court did not err in failing to find Taylor was denied his constitutional right to testify in his own behalf.
II
Next, Taylor raises the issue of whether the trial court erred in refusing to hold as a matter of law that a silent record cannot be sufficient to demonstrate a waiver of the right to testify in a criminal trial. Taylor contends the trial court should be required to make an inquiry, outside the presence of the jury, to determine whether the defendant in a criminal case is making a knowing and voluntary waiver of his right to testify. Taylor further argues that State v. McKinney, 221 Kan. 691, 561 P.2d 432 (1977), which held such an inquiry by the trial court is unnecessary and inappropriate, should be overruled.
Taylor contends a procedure similar to the one used when a criminal defendant enters a plea of guilty or nolo contendere should be implemented to insure that a criminal defendant understands his or her right to testify and is voluntarily waiving that right. In order to protect a criminal defendant’s rights under the Due Process Clause of the Fourteenth Amendment, K.S.A. 22-3210(a)(3) requires the trial court to personally address the defendant and determine whether “the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.” When entering a plea in a felony case, the defendant must appear and plead personally, and a verbatim record of all proceedings is required. K.S.A. 22-3210(4)(b).
Similarly, in juvenile proceedings K.S.A. 38-1633(b) requires the district court to advise the juvenile of his rights before accepting an admission or denial of the allegations or a plea of nolo contendere. This includes advising the juvenile of his right to testify or to decline to testify. K.S.A. 38-1633(b)(5). Thus, in juvenile cases where a plea is entered, the trial court is not allowed to rely upon the juvenile’s attorney to inform the juvenile of the right to testify. Instead, the trial court must instruct the juvenile defendant on the right to testify. In re B.S., 15 Kan. App. 2d 338, 339, 807 P.2d 692 (1991).
In State v. McKinney, 221 Kan. 691, the defendant argued the trial court erred in failing to advise him of his right to testify in his own behalf. The defendant further contended the record must affirmatively show a waiver of his right to testify. 221 Kan. at 693. We concluded, however, that no such inquiry by the trial court was necessary or appropriate. We pointed out it would be difficult to balance such an inquiry with our existing rule that a prosecuting attorney cannot comment upon the defendant’s failure to testify. 221 Kan. at 694.
This issue was addressed by the 9th Circuit Court of Appeals in United States v. Martinez, 883 F.2d 750 (9th Cir. 1989), vacated on other grounds 928 F.2d 1470 (9th Cir. 1991), cert. denied 115 L. Ed. 2d 1052 (1991). In Martinez, the defendant was charged with numerous drug offenses. Martinez expressed a desire to testify in his own behalf at trial. Martinez’s attorney, however, strongly opposed his desire to testify. Martinez did not testify and was subsequently convicted. Martinez secured a new attorney and moved for a new trial on the ground that he was denied his right to testify in his own behalf. The trial court denied the motion for new trial and Martinez appealed. 883 F.2d at 751-52.
On appeal, Martinez argued a waiver of the right to testify cannot be presumed from a silent record. 883 F.2d at 756. The court noted that all circuit courts addressing the issue have held that a trial court has no “duty sua sponte to address a silent defendant and inquire whether he knowingly and intelligently waives the right to testify.” 883 F.2d at 760. The court stated that an express waiver, on the record, was not necessary because “[t]he defendant’s conduct provided a sufficient basis from which to infer that the right to testify [had] been waived.” 883 F.2d at 760. The court listed seven reasons for its holding:
“First, the right to testify is seen as the kind of right that must be asserted in order to be recognized. (Citation omitted.) Second, it is important that the decision to testify be made at the time of trial and that the failure to testify not be raised as an afterthought after conviction. [Citation omitted.] Third, by advising the defendant of his right to testify, the court could influence the defendant to waive his right not to testify, ‘thus threatening the exercise of this other, converse, constitutionally explicit and more fragile right.’ [Citation omitted.] Fourth, a court so advising a defendant might improperly intrude on the attorney-client relation, protected by the Sixth Amendment. [Citation omitted.] Fifth, there is danger that the judge’s admonition would introduce error into the trial. [Citation omitted.] Sixth, it is hard to say when the judge should appropriately advise the defendant— the judge does not know the defendant is not testifying until the defense rests, not an opportune moment to conduct a colloquy. [Citation omitted.] Seventh, the judge should not interfere with defense strategy. [Citation omitted.]” (Emphasis in original.) 883 F.2d at 760.
We agree with the Martinez court. There is a danger that by asking a defendant if he is aware of his right to testify, a trial court may inadvertently influence a defendant to waive the equally fundamental right against self-incrimination. Thus, we adhere to State v. McKinney.
We hold the trial court did not err in refusing to hold, as a matter of law, that a silent record cannot be sufficient to demonstrate a waiver by the defendant of his right to testify in his own behalf.
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|
The opinion of the court was delivered by
Lockett, J.:
Larnell Dykes appeals his convictions of aggravated burglary, aggravated robbery, aggravated kidnapping, and rape. The defendant claims the trial court’s denial of his request for the data base which the FBI used to determine the DNA match denied him his right to a fair trial.
On October 18, 1989, at approximately 10:20 a.m., C.H., a student at Wichita State University, pulled into a parking lot on the university campus. As she opened the car door, a black man reached into the car and pointed a gun in her face. After the man took C.H.’s money and purse, he entered the car, took her driver’s license from her purse, and required her to recite her address.
The robber started the car, threw C.H.’s wallet out the window, and then had her direct him to a bank. When they arrived at the bank, the man discovered the bank card was in the wallet he had thrown out of the car. After retrieving the wallet, he drove to the bank and had C.H. withdraw $150 from her account.
The assailant then drove around, stopped, and made C.H. get into the back seat of the car. After placing a coat over C.H.’s head, he removed her clothes, climbed into the back seat, and raped her. When he withdrew his penis, he ejaculated on her lower abdomen. The assailant pointed the gun at C.H. and threatened to shoot her if she identified him. He eventually parked the car, told C.H. not to leave for five minutes, and departed. C.H. later identified Lamell Dykes as her assailant.
A rape kit analysis revealed the presence of semen on the slacks C.H. was wearing. A sample was sent to the FBI for DNA analysis. At trial, a special agent with the FBI DNA analysis unit testified that the DNA from the semen on the slacks matched the DNA from the known blood sample of Lamell Dykes. He determined the test failed to exclude Dykes as being the donor of the semen on C.H.’s slacks. The agent testified that the probability of selecting another unrelated individual chosen at random from the black population having a profile similar to Dykes’ is approximately one in six million.
Prior to DNA profiling, forensic experts used other DNA techniques to determine paternity and as a means of identification in criminal cases in Kansas. See State ex rel. Hausner v. Blackman, 233 Kan. 223, 662 P.2d 1183 (1983) (evidentiary value of blood grouping test in paternity action); State v. Pioletti, 246 Kan. 49, 51, 785 P.2d 963 (1990) (DNA analysis of blood on door of crematory identified as that of the offspring of the victim’s parents).
In recent years however, a new method of DNA profiling is used to identify the human source of blood, semen, tissue, or hair samples. DNA profiling can inculpate criminal suspects by matching the suspect’s genetic material with human genetic material obtained from a specimen left at the scene, on a murder weapon, or on the suspect’s clothes. This technique is useful in sexual assault cases where the DNA print of semen taken from the victim’s body is compared with a DNA print taken from the suspect’s blood. Although traditional forensic methods exist for comparing blood, hair, and semen, DNA profiling has the advantage of being performed on much smaller samples than traditional tests.
The initial case to accept DNA profiling was Andrews v. State, 533 So. 2d 841 (Fla. Dist. App. 1988), rev. denied 542 So. 2d 1332 (Fla. 1989). In Kansas, the admissibility of DNA profiling was first discussed and found to meet the standard of general acceptance in the scientific community and to be admissible on that basis in Smith v. Deppish, 248 Kan. 217, 807 P.2d 144 (1991).
Dykes asserts that the six million to one figure was devastating to his defense. He states the court’s refusal to grant all of his discovery motion denied him his Sixth Amendment right to obtain an expert witness who could testify as to the DNA data base and denied him the right to cross-examine the State’s expert witness.
K.S.A. 22-3212 provides in part:
“(1) Upon request, the prosecuting attorney shall permit the defendant to inspect and copy or photograph any relevant . . . (b) results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney; . . . [Emphasis added.]
(2) Upon request, the prosecuting attorney shall permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies, or portions thereof, which are or have been within the possession, custody or control of the prosecution, and which are material to the case and will not place an unreasonable burden upon the prosecution.”
K.S.A. 22-3212 requires that the information sought must be material to the particular case and capable of acquisition by the prosecution with the exercise of due diligence, and the production of the information must not place an unreasonable burden on the prosecution. Dykes’ motion to discover the FBI data base is a 12-page blanket request for every conceivable document generated by the FBI and others relating to any and all DNA testing, the calculation of probabilities of population, genetic population, and all information and tests used to compute the DNA data base. In part, the motion requests:
(1) A written copy of a hard or soft copy of any computer program describing the FBI’s method for calculating frequencies of individual alleles and calculating combined frequencies of the various probes used.
(2) For each probe used in this case, the test relied upon for determining whether the population is in Hardy-Weinberg equilibrium, including the tables reflecting the raw phenotypic and genotypic data for the black population.
(3) The source of samples for the black population data base including the type, profession, or geographical region of people selected and the criteria for determining the samples came from blacks.
The motion also requested any information accompanying samples which pertains to the racial origin of the samples subject to proficiency testing, the names of all analysts who performed the test on the samples, and their notes, training, and results of the test.
K.S.A. 22-3212 allows the trial court broad discretion to require disclosure of documents and other tangible objects which may be in the possession of or under the control of the prosecution. The defendant has the burden of showing the materiality and reasonableness of the request. State v. McQueen & Hardyway, 224 Kan. 420, 430, 582 P.2d 251 (1978). One who asserts that the court has abused its discretion bears the burden of showing such abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. Stated another way, discretion is abused only where no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, it cannot be said that the trial court abused its discretion. State v. Heywood, 245 Kan. 615, 621, 783 P.2d 890 (1989).
The judge granted the defendant’s discovery motion, in part, by limiting the discovery to items connected to this case and ordered the FBI to “release to the State lab notes, auto-radiograms] and testing protocol in reference to FBI file number 95-291661, lab number 00109037 S YN, by April 25, 1991.” The State was ordered to produce the documents and give them to the defendant after receipt. The balance of defendant’s motion for discovery was denied. The State provided the defendant with the calculation of the frequencies requested in his motion. The FBI was unable to obtain the information on the black population data base.
Immediately prior to commencement of trial, Dykes again moved to discover the DNA data base. The defendant informed the judge that he had taken the DNA results to an expert. The expert had explained the test and the results. The defendant’s expert was familiar with the FBI data base and the manner in which they used it, but the expert did not know what figures they had used or the exact geographical areas used to obtain the data base. The judge noted that the basic population data used in the DNA tests for this case is the same basic population data that is used in virtually every criminal case handled by the FBI and the same type of population data that is used for medical diagnosis. Dykes’ second motion for unlimited discovery was denied.
Dykes’ mother testified at trial that she had an unknown percentage of Cherokee Indian ancestry. Dykes argues that because of his Indian ancestry the history and details of the data base used by the FBI became relevant to the defense. Dykes argues that because of his “substantial” Cherokee Indian ancestry, a data base without Cherokee genealogy represented would underestimate the frequency of a DNA match occurring in a freely mixing black population which contains some Cherokee genealogy. Dykes contends even if the FBI did not possess specific figures of the data base, it could have supplied the defendant with the hospitals that did the data base. Dykes asserts the trial court erred in denying his motions for discovery.
To show he was entitled to the data base from the FBI, the defendant relies on State v. Humphrey, 217 Kan. 352, 537 P.2d 155 (1975). In Humphrey, the prosecution of the defendant was based on the testimony of an undercover agent for the Kansas Attorney General. Humphrey claimed he was denied his right of discovery by the court’s failure to compel the county attorney to provide the criminal record of the special agent which might be contained in the files of the FBI or in the National Crime Information Center.
The Humphrey court recognized the importance of the right of effective cross-examination as a part of the constitutional right of confrontation of witnesses so that the credibility of a witness can be subjected to exploration to determine the weight to be given to his or her testimony. It noted that under federal statute, the attorney general was required to keep such records and exchange the information with authorized officials of states and cities. The court observed that the defendant’s criminal record was easily requested and received by the State from the FBI. 217 Kan. at 360. It determined such information was of vital importance and, absent some good reason, justice required the trial judge to order the prosecutor to produce information pertaining to prior convictions of the special agent for crimes involving dishonesty or false statement which were admissible under K.S.A. 60-421 to impair the agent’s credibility. 217 Kan. at 359. The Humphrey court found there was no good or sound reason to deny the defendant’s discovery request and ordered a new trial.
In contrast, here, the FBI does not know the identity of the donors used to compile the data base. The data base made of 500 blacks was compiled in 1989 and made up of anonymous donors. It was impossible for the FBI to comply with the request. The defendant’s discovery request placed an unreasonable burden on the State. Humphrey does not support the defendant’s position.
The defendant’s argument that he needed all the information requested in preparation of his defense to attack the one in six million figure is not sufficient for several reasons, and his claim is inappropriate.
First, the defendant’s claim that he has a “substantial” Cherokee Indian genealogy is questionable. Dykes’ mother testified she had an unknown percentage of Cherokee Indian blood. Further, if the defendant needed to delve into whether comparing himself with the American Indian data base would have resulted in a higher frequency of DNA similar to his in the population, he could have cross-examined the State’s expert witness on the matter. The record of the defendant’s cross-examination of the State’s DNA expert witness is devoid of such questions.
Dykes’ explanation as to why the discovery denial was improper is an attempt to challenge the longstanding acceptance of pop ulation studies. That acceptance was stated in Smith v. Deppish, 248 Kan. at 238. We noted that statistics based on population studies are admissible and that any challenge to the reliability of the testimony goes to its weight, not its admissibility, citing State v. Washington, 229 Kan. 47, 58-59, 622 P.2d 986 (1981). We held that population percentages on the possession of certain combinations of blood characteristics, based upon established facts, are admissible as relevant to identification. The data base was not novel to the defendant’s case. The FBI’s data base is used in all criminal cases.
The Hawaii Supreme Court’s discussion of DNA testing in State v. Montalbo, 73 Hawaii 130, 828 P.2d 1274 (1992), is helpful. There, the court found little basis for concern over the theory underlying the statistical evidence. It noted that the statistics and the underlying sampling theory are not novel or controversial. It took judicial notice that the DNA paradigm is not controversial and is widely accepted in the relevant scientific community. It also recognized that the basic techniques underlying the analysis used by the FBI are widely accepted. W. C. Thompson & S. Ford, DNA Typing: Acceptance and Weight of the New Genetic Identification Tests, 75 Va. L. Rev. 45, 60-61, 64-76 (1989). See, e.g., People v. Castro, 144 Misc. 2d 956, 960, 545 N.Y.S.2d 985 (1989). It further noted the theory of DNA testing is “unanimously accepted amongst scientists and lawyers” and techniques are not novel but it is the transfer of the technique to the context of DNA forensic identification which has generated much of the dispute. 73 Hawaii at 141.
For evidence to be discoverable, the defendant must show that the evidence requested is in the possession or control of the prosecution and that it is relevant or material in the preparation of the defense. The mere entertaining of a hope that something of aid may be discovered is not sufficient. State v. Campbell, 217 Kan. 756, 782, 539 P.2d 329, cert. denied 423 U.S. 1017 (1975). Dykes’ request was not limited to material generated in the testing of a sample from the defendant, but for information generated in the examination of individuals in other cases. Moreover, the requested information regarding the 500 donors used to compile the data base could not be obtained because the FBI did not know the identity of those donating for the data base.
The defendant has been unable to show how the requested materials were relevant to his case. In a nutshell, the defendant claims he needed the information to attack the data base of a theory “unanimously accepted amongst scientists and lawyers.” The defendant’s request can be characterized as a mere entertaining of hope that something of aid may be discovered. The information was not relevant or material to the preparation of his defense. See State v. Campbell, 217 Kan. at 782.
While DNA profiling meets the standard of general acceptance in the scientific community and thus is admissible on that basis, such test results may be inadmissible on grounds of relevancy or prejudice as well as under traditional challenges to admissibility of evidence such as contamination of the sample or chain of custody questions. Smith v. Deppish, 248 Kan. at 238.
The defendant failed to meet his burden at trial. On appeal, he fails to show an abuse of discretion in the court’s partial denial of the discovery motion.
Affirmed. | [
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The opinion of the court was delivered by
Holmes, C.J.:
The State appeals the dismissal of a complaint charging Todd A. Field with driving while under the influence of alcohol or drugs. See K.S.A. 8-1567. The district court granted defendant’s motion to dismiss based upon its finding that the arresting officer lacked a reasonable suspicion to stop defendant’s vehicle.
The facts are not in dispute. On February 20, 1992, at approximately 2:00 a.m., Hays police officer David Bunger was on routine patrol in Hays. Officer Bunger testified that while driving northbound on Vine Street, at approximately the 2200 block, he observed a white pickup driven by the defendant. In the 2200 block the truck “weaved from the middle of its lane to the outside of the lane, to the inside of the lane and back to the middle.” Between the 2500 block and the 2700 block of Vine Street, Officer Bunger observed defendant’s vehicle weave within its lane three additional times. In about the 3300 block of Vine, the officer stopped defendant’s vehicle. When asked why he stopped the defendant, the officer testified: “It has been my training that given the hour of day — and this was approximately . . . 2:13 in the morning — and if the driver, regardless whether they make a traffic infraction or not, if they are weaving within their lane a number of times, they may be impaired to some degree.” After further investigation the defendant was arrested for driving while under the influence of alcohol. The district court dismissed the case on the grounds that the officer lacked reasonable suspicion to stop defendant’s vehicle. The State appeals the dismissal of the complaint pursuant to K.S.A. 22-3602(b)(l).
The sole issue the State raises on appeal is whether the officer’s observation of a vehicle weaving within its own lane over the course of several blocks gave rise to a reasonable suspicion to believe that the driver was driving while under the influence of intoxicants to justify a stop for further investigation. K.S.A. 1992 Supp. 22-2402(1) provides:
“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.”
The statute is a codification of the United States Supreme Court decision in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), which held that an officer may stop and frisk an individual even though the officer does not have probable cause to believe a crime has been or is being committed if the officer is able to point “to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” 392 U.S. at 21.
In State v. McKeown, 249 Kan. 506, 819 P.2d 644 (1991), this court, in discussing a stop pursuant to our statute and the requirements set forth in Terry, stated:
“Such a stop always constitutes a seizure. Therefore, to stop a moving vehicle an officer must have articulable facts sufficient to constitute reasonable suspicion under K.S.A. 22-2402 and Terry. Delaware v. Prouse, 440 U.S. 648, 661-63, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979). To stop a vehicle to investigate circumstances which provoke suspicion, an officer must be aware of ‘specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion’ that the vehicle contains individuals involved in criminal activity. United States v. Brignoni-Ponce, 422 U.S. 873, 884, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975).” 249 Kan. at 510.
In State v. Finley, 17 Kan. App. 2d 246, 249-51, 838 P.2d 904, rev. denied 251 Kan. 940 (1992), the Court of Appeals reviewed the distinction between reasonable suspicion and probable cause, stating:
“Reasonable suspicion is not the same as probable cause. In United States v. Sokolow, 490 U.S. 1, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989), the Court conducted a thorough examination into the meaning of reasonable suspicion. The Court stated:
The officer, of course must be able to articulate something more than an “inchoate and unparticularized suspicion or ‘hunch.’ ” [Citation omitted.] The Fourth Amendment requires “some minimal level of objective justification” for making the stop. [Citation omitted.] That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means “a fair probability that contraband or evidence of a crime will be found,” [citation omitted] and the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause.’ 490 U.S. at 7.
“In Alabama v. White, 496 U.S. 325, 330, 110 L. Ed. 2d 301, 110 S. Ct. 2412 (1990), the United States Supreme Court expounded on the differences between reasonable suspicion and probable cause:
‘Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. . . . Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the “totality of the circumstances — the whole picture” (citation omitted) that must be taken into account when evaluating whether there is reasonable suspicion.’
See also State v. Hayes, 2 Kan. App. 2d 517, 597 P.2d 268, rev. denied 226 Kan. 793 (1979), for a discussion of the distinction between probable cause and reasonable suspicion.
“It is important to remember that . . . the law enforcement officer does not have to know that the defendant committed a crime. Merely pointing to some facts that would cause a reasonable person to be suspicious is enough to conduct a Terry stop.”
In applying this standard, the court should consider the totality of the circumstances and the fact that trained law enforcement officers are permitted to make “inferences and deductions that might well elude an untrained person.” United States v. Cortez, 449 U.S. 411, 418, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981). See State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983).
On appeal, defense counsel urges this court to affirm the dismissal, contending that in the absence of a traffic violation, the officer could not have had a reasonable suspicion of criminal activity sufficient to justify stopping defendant’s vehicle. The State, on the other hand, contends Officer Bunger’s testimony regarding the defendant’s erratic driving was enough to create a reasonable suspicion that the driver was operating the vehicle while under the influence of alcohol. The State points out that an officer need not witness a criminal act in order to make a valid stop and that the stop may be made upon grounds separate and apart from the statute. This court’s most recent statement of this principle is found in State v. Vistuba, 251 Kan. 821, Syl. ¶ 1, 840 P.2d 511 (1992): “A civil or criminal infraction is not always essential to justify a vehicle stop. Safety reasons alone may justify the stop if the safety reasons are based upon specific and articulable facts.”
In Vistuba, a police officer observed defendant’s pickup truck drift towards a ditch, swerve back, drift towards the ditch again, and then jerk back onto the roadway. The pickup drove off the roadway onto the dirt shoulder; however, it always returned to the roadway. At no time during the officer’s observation did it cross the center line. The officer followed the defendant out of the city limits for approximately two and one-half to three miles before pulling the defendant over. After further investigation, the defendant was. arrested and charged with driving while under the influence.
The trial court held a hearing on defendant’s motion to dismiss the complaint. On direct examination by defense counsel, the officer testified that during her observation of defendant’s vehicle, she had no reason to believe the defendant had committed, was committing, or was about to commit a crime. The officer testified that the reason she stopped the defendant was because she was concerned that the driver may have been falling asleep.
The trial court dismissed the complaint on the grounds the officer did not have sufficient reasonable suspicion to stop the defendant’s vehicle, as the officer did not suspect any criminal activity on the part of the defendant. This court reversed the trial court’s dismissal of the complaint and held that public safety reasons alone, if based upon specific and articulable facts, may justify an officer’s investigatory stop. In doing so this court relied, upon State v. Pinkham, 565 A.2d 318, 319 (Me. 1989), wherein the Maine court stated:
“ ‘Nothing in the Fourth Amendment requires that the “specific and articulable facts” relate to suspected criminal activity, although that was the factual context of both Terry [v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968),] and [State v.] Griffin, [459 A.2d 1086 (Me. 1983)]. If we were to insist upon suspicion of activity amounting to a criminal or civil infraction to meet the TerrylGriffin standard, we would be overlooking the police officer’s legitimate role as a public servant to assist those in distress and to maintain and foster public safety.” 251 Kan. at 824.
Vistuba, however, is not controlling in the present case. In Vistuba, the officer testified she did not suspect any criminal activity, while in the present case, Officer Bunger suspected the driver of the pickup was driving while under the influence of alcohol or drugs, a crime. The issue here is whether such suspicion was reasonable under the facts of this case.
While counsel have cited no Kansas cases directly on point, and our research has revealed- none, courts in other jurisdictions have held that a police officer’s observations of a vehicle weaving within its own lane of traffic gives rise to a reasonable suspicion of criminal activity sufficient to justify an investigatory stop.
A case factually similar to the case at bar is State v. Bailey, 51 Or. App. 173, 624 P.2d 663, rev. denied 291 Or. 1 (1981). There, the State appealed from an order of the district court granting defendant’s motion to suppress all evidence obtained after a traffic stop.
In Bailey, the defendant was driving his pickup truck about 11:30 p.m. when a police officer observed defendant’s vehicle weaving in its own lane. The officer followed the defendant for approximately four to five blocks; the defendant’s truck continued to weave within its own lane during the time the officer followed him. The officer stopped the defendant about a quarter mile outside the city limits. The only question presented on appeal was whether the officer’s observation of defendant’s truck weaving within its own lane was an adequately specific and articulable fact to give rise to a reasonable suspicion to justify the stop. The court noted that in a past case, it had concluded that an officer had reasonable suspicion to stop a car when the officer (a) observed weaving of the car within its own lane and (b) had been informed by a radio check that the vehicle was registered to a wanted person. The court observed it was now called upon to determine whether the holding of the past opinion indicated two independent bases for stopping the car or whether the two factors together gave rise to reasonable cause to stop. Bailey held that the observation of a vehicle weaving within its own lane for a substantial distance, standing alone, creates sufficient reasonable suspicion to believe that the driver was driving while under the influence of intoxicants and justifies a stop for further investigation. The court reversed and remanded for further proceedings.
Another case directly on point is People v. Perez, 175 Cal. App. 3d Supp. 8, 221 Cal. Rptr. 776 (1985). In Perez, the State appealed from an order of the municipal court dismissing the case. The appellate court held that pronounced weaving within a lane provided an officer with reasonable cause to stop the vehicle on suspicion of driving while under the influence. The facts of Perez are quite similar to those of the instant case and are set forth in the case as follows:
“At approximately 2:15 a.m. on May 31, 1984, Officer Alvemaz observed an orange Opel automobile driven by respondent eastbound on Interstate 8. The officer’s attention was drawn to the vehicle because of a ‘pronounced weaving’ within the lane. The officer described the drift as being two feet in each direction. The officer followed the vehicle while it was weaving for about three-quarters of a mile. Due to the weaving observed by the officer the vehicle was stopped. The detention was predicated on the officer’s belief that the driver was under the influence of alcohol.
“The municipal court found that the detention was unlawful and that weaving alone within a marked lane was not sufficient cause to stop the vehicle.” 175 Cal. App. 3d Supp. at 10.
The court in reaching its decision stated:
“Although it has been clearly established in this state that weaving from one lane to another justifies an investigatory stop [citations omitted] no court in California has yet addressed the issue of whether an officer may lawfully detain a driver who has been observed to be weaving within his lane. However, a motorist driving in an ‘eccentric manner’ on a freeway has been deemed to be indicative of one driving under the influence justifying an investigatory stop. (People v. Manis (1969) 268 Cal. App. 2d 653 [74 Cal. Rptr. 423].) In addition, decisions from outside this jurisdiction have routinely held that weaving within one’s lane for substantial distances are facts which give rise to a reasonable suspicion that one is driving under the influence. For instance, in State v. Bailey (1981) 51 Or. App. 173 [624 P.2d 663], an Oregon court held that weaving within a lane for a period of four or five blocks justified an investigatory stop. Similarly, in Ebona v. State (Alaska 1978) 577 P.2d 698, the defendant’s vehicle was ‘continually weaving’ but at all times remained in its lane. The court ruled that the reoccurring weaving justified the officer’s detention. In State v. Dorendorf (N.D. 1984) 359 N.W.2d 115, an officer observed a vehicle weaving within its own lane of traffic for approximately one-eighth to one-quarter of a mile. Here' too the court determined that such facts gave rise to a reasonable belief that the driver was under the influence, rejecting the defendant’s argument that a smooth continuous weaving within a traffic lane does not give cause to detain. (See also State v. Kvam (Minn. 1983) 336 N.W.2d 525.)” 175 Cal. App. 3d Supp. at 10-11.
Accordingly, the court reversed the municipal court’s dismissal of the case.
The Arizona Supreme Court has reached a similar conclusion in State v. Superior Court, 149 Ariz. 269, 273, 718 P.2d 171 (1986).
The defendant relies upon State v. Epperson, 237 Kan. 707, 703 P.2d 761 (1985), and State v. Jackson, 213 Kan. 219, 515 P.2d 1108 (1973), for the proposition that the officer must have a reasonable and articulable suspicion, based on fact, that the person has committed, is committing, or is about to commit a crime. He then contends that as the officer did not observe any traffic violation, there are insufficient facts upon which to find a reasonable suspicion. Defendant’s reliance upon the two cases is misplaced. The statements from Epperson and Jackson merely emphasize the fact that all that is required under the statute is sufficient facts to support a reasonable suspicion that the suspect “is committing, has committed or is about to commit a crime.” There is no requirement that the officer actually observe a traffic violation being committed. As indicated by the other cases cited herein, the repeated weaving of a vehicle within its own lane may constitute sufficient reasonable suspicion for an officer to stop and investigate the driver of the vehicle.
We conclude that under the facts of this case, including the training and experience of the arresting officer, Officer Bunger has clearly shown articulable facts sufficient to constitute reasonable suspicion under K.S.A. 1992 Supp. 22-2402(1) and the trial court erred in dismissing the complaint.
One final matter remains. In Vistuba, we stated that our standard of review was whether the trial court abused its discretion. 251 Kan. 821. However, in State v. Hayes, 3 Kan. App. 2d 517, 597 P.2d 268, rev. denied 226 Kan. 793 (1979), the Court of Appeals stated, under the facts of that case, the question of whether reasonable suspicion existed under 22-2402 is a question of law to be determined by the appellate court. Our review of the cases cited in this opinion convinces us that the determination of whether an officer has reasonable suspicion to stop a vehicle is a question of law, or in some cases a mixed question of law and fact, for the appellate court to determine under the totality of the facts and circumstances. Our statement in Vistuba that the appropriate scope of review is abuse of discretion is disapproved.
The judgment is reversed, and the case is remanded with directions to reinstate the complaint. | [
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The opinion of the court was delivered by
Lockett, J.:
This wrongful death and survival action was brought by the heirs and estate of a deceased, alleging the hos pital’s negligent operation of its inpatient alcohol treatment unit caused the death, of the patient. Plaintiffs requested a medical malpractice screening panel. More than two years after plaintiffs’ decedent’s death plus 30 days after the panel had filed its report, the plaintiffs filed their petition. The trial court found the action was barred by the statute of limitations. Plaintiffs appealed, claiming that because their designated member of the panel did not participate, the panel’s report was void and the statute of limitations remained,tolled pursuant to K.S.A. 65-4908.
On January 26, 1988, Jack Sade was a patient in the Alcoholic Treatment Unit óf defendant Cedar Vale Regional Hospital (hospital). During his detoxification, Sade developed an alcohol-induced psychosis such that he had to be restrained and heavily medicated. Although restrained and medicated, the hospital staff allowed Sade unsupervised access to a cigarette lighter. Sade accidentally set his clothing afire with, the, lighter and sustained bums to his body. Sade died the next day as a result of those bums. Lawless-, and Nelson are the co-administrators of Sade’s estate and his sole heirs at law.
On December 11, 1989, within two years of the date of Sade’s death and prior to filing an action against the hospital, plaintiffs filed in the district court a request for a medical malpractice screening panel (panel) pursuant to K.S.A. 65-4901 et seq. K.S.A. 65-4901 provides if a claim for damages for personal injury or death on account, of alleged medical malpractice of a health care provider has not been formalized by the filing of a petition, any party affected by such claim may request, by filing a memorandum with the district court, that a panel be convened. The filing of a memorandum tolls any applicable statute of limitations and such statute of limitations shall remain tolled until 30 days after the panel has issued its written recommendations. K.S.A. 65-4908. Therefore, the applicable two-year statute of limitations, K.S.A. 1992 Supp. 60-513(a)(7), was tolled until 30 days after the panel issued its written recommendations. Had the statute not been tolled it would have run on January 26, 1990, as to the survival claim and on January 27, 1990, as to the wrongful death claim. See K.S.A. 60-513(c).
When a request -is made, the judge of the district court convenes a panel. The membership of the panel consists of three health care providers — one designated by the person against whom a claim is made, one designated by the claimant, and one selected jointly by the parties. An attorney, who is a non-voting member of the panel and acts as chairperson of the panel, is selected by the district judge. K.S.A. 65-4901. Judge Richard A. Medley appointed Robert L. Eastman, an attorney, as panel chairman. Plaintiffs designated Richard A. Kimmell, M.D., of Baxter Springs as a panel member. The hospital designated Stephen W. McClain, M.D., as a panel member. Due to Dr. McClain’s change of employment, he resigned from the panel and the hospital subsequently designated Charles Werhan, M.D., to take his place.
If the parties are unable to jointly select a health care provider within 10 days after receipt of notice that' a panel has been convened, the judge of the district court shall select such health care provider. K.S.A. 65-4902. On June 29, 1990, Judge Medley appointed James W. Wilson, M.D., as the third panel member. Although the record does not show that the plaintiffs and the hospital were unable to jointly select a health care provider, the district court’s appointment of Dr. Wilson indicates that is the case.
The panel is required to convene as soon as practical with notice in writing to all parties and their counsel. The panel organizes and conducts its meetings in accordance with rules of procedure adopted by the Supreme Court of Kansas. Strict adherence to the rules of procedure and evidence applicable in civil cases is not required. All meetings of the panel are held in camera. K.S.A. 65-4903. On November 5, 1990, plaintiffs filed a memorandum setting out their contentions and arguments for the panel. On January 18, 1991, the hospital filed its reply memorandum.
Within 90 days after the screening panel is commenced, the panel is required to make written recommendations on the issue of whether the health care provider departed from the standard of care in a way which caused the plaintiffs or claimants damage. A concurring or dissenting member of the screening panel may file a written concurring or dissenting opinion. All written opinions are to be supported by corroborating references to published literature and other relevant documents. The screening panel must notify all parties when its determination is to be handed down and, within seven days of its decision, provide a copy of its opinion and any concurring or dissenting opinion to each party, the attorneys of record, and the district judge. K.S.A. 65-4904.
On September 5, 1991, approximately 20 months after the panel had been requested and 15 months after the third medical member of the panel had been selected, plaintiffs’ counsel wrote the panel chairman to inquire when a decision would be issued by the panel. The chairman replied he needed the new address of Dr. Kimmell. He also needed Dr. Kimmell and Dr. Werhan to sign a qualification statement. To be qualified, each panel member is required to file a statement that the member has no knowledge of material facts of the case, or relationship or contact with any of the parties, that might affect the member’s impartial consideration of the case. The member agrees he or she will not discuss the facts of the case outside the regular meetings of the panel and will report immediately to the chairperson any attempts by anyone to discuss the facts of the case with the member. Supreme Court Rule 142(d)(2) (1992 Kan. Ct. R. Annot. 126).
Plaintiffs mailed the form supplied by the chairman to Dr. Kimmell for the doctor to sign and return to the chairman. Although the panel chairman did not receive a signed statement from Dr. Kimmell, who had again moved, the chairman failed to inform plaintiffs’ attorney. Dr. James W. Wilson and. Dr. Charles Werhan each signed a “Statement of Panel Member” as required.
Because the panel had not made a decision within the statutory 90-day period, on September 20, 1991, the clerk of the district court notified counsel for the parties that the panel proceedings would be dismissed by the district court on October 4, 1991, unless good cause was shown for its continuance. Plaintiffs and the hospital both filed responses asking that the panel proceedings not be dismissed. On October 4, 1991, Judge Medley notified the panel chairman and counsel for the parties by letter that the matter would not be dismissed but also wrote that “it must be completed by December 31, 1991.”
On December 30, 1991, the chairman held the meeting of the panel by telephone conference call with Dr. Werhan and Dr. Wilson. The panel met to decide, after consideration of medical records and medical care facility records, contentions of the parties, examination of x-rays, test results, and treatises, whether there was a departure from the standard practice of the health care provider specialty involved and whether a causal relationship existed between the damages suffered by the claimant and any such departure. K.S.A. 65-4903.
The panel’s report first stated that Richard A.Kimmell, M.D., who was designated by claimants, did not. file his Statement of Panel Member, which precluded his participation in the screening panel. The panel report then noted it knew of no written standard practices in the industry for control of smoking materials, although it believed that treatment units for alcoholism take smoking materials when a patient is admitted. The panel stated that the smoking materials are held at the nursing station tintil the patient wants to smoke, at which time the patient contacts the nurse for smoking materials and matches or lighters. The. panel found that the hospital required that all of the smoking materials were to be kept at the nursing station. The panel concluded that the patient failed to disclose that he had not surrendered all of his smoking materials to the hospital. A copy of the report was mailed to claimant’s attorney December 30, 1991. The ..screening panel’s report was filed on December 31, 1991.
The panel had convened without notifying the parties as required and with only two medical members participating. Instead of requesting the district court to set aside the ¡screening panel’s written findings or to correct any irregularity by the panel, on April 16, 1992, plaintiffs filed the present action . against the hospital. On June 12, 1992, the hospital filed a . motion to dismiss the action against it, claiming that the plaintiffs’ action was barred by the two-year limitations of K.S.A. 1992 Supp. 60-513(a)(7).
At the hearing bn the hospital’s motion to dismiss, the plaintiffs claimed that the panel’s written findings and recommendations were not valid because all three members of the panel did not participate; therefore, the proceedings were.yoid and the statute of limitations continued to be tolled. The .district judge found that the two-year statute of limitations commenced to run when the cause of action occurred on January 26, 1988, or on January 27, 1988, when Jack Sade died. Plaintiffs’ request for a medical malpractice screening panel was filed on December 8, 1989, 50 days before the‘two-year statute of limitations of 60-513 would have expired; -Under K.S.A. 65-4908, the statute of limitations was tolled until 30 days after the screening panel issued its written findings and decision on December 30, 1991. The panel’s written findings and decision were mailed to the attorneys for the parties on that date and were filed of record in the district court on December 31; T991. The statute of limitations was tolled until January 29, 1992.' The plaintiffs were required to file this cause of-action within 50 days of January 29, 1992, i.e., March 19, 1992. This causé of action was filed on April 16, 1992.
In reaching his decision, the district judge pointed out that the panel’s findings are nonbinding. The judge determined that although only two of the health care provider panel members participated, the panel’s decision was valid and the statute of limitations began to run 30 days after the panel’s decision was issued. The district judge determined that the plaintiffs had 30 days to object to- the panel’s decision or the procedure after the decision was rendered. The judge found that because the plaintiffs had failed to object within the 30-day period, the statute of limitations barred plaintiffs’ action and granted the hospital’s motion to dismiss plaintiffs’ action.
Plaintiffs appeal, claiming that screening panel proceedings are not concluded until (1) the panel issues a valid written recommendation, K.S;A. 65-4908, or (2) the district court dismisses the proceedings. Plaintiffs assert that deliberations without the participation of all panel members are not contemplated under the statutes or the rules governing screening panels. Plaintiffs argue that the statutory scheme is designed to be a balance of members selected by each party and one neutral member; therefore, it was fundamentally unfair for a panel to proceed without all members participating. Plaintiffs claim that the panel’s action is void and because the district court failed to dismiss the proceedings, the proceedings were hot concluded and the statute of limitations had not commenced to run 30 days after the issuance of the panel’s written recommendations; therefore, the plaintiffs’ petition was timely filed. As authority, plaintiffs cite White v. VinZant, 13 Kan. App. 2d 467, Syl. ¶ 8, 773 P.2d 1169 (1989).
The hospital notes that the plaintiffs did not object to the district judge regarding the panel recommendations or the -fact that only two panel members qualified to participate. The hospital observes that the screening panel procedure is voluntary and the panel is merely a factfinding group whose decisions are advisory and nonbinding. The hospital points out that , a panel member does not represent a party because the member agrees to consider the facts fairly and impartially. It asserts that a medical malpractice screening panel is not an administrative proceeding or quasi-judicial proceeding where the rights of parties are determined; therefore, the proceedings are proper even if a panel member fails to qualify. The hospital notes even if all panel members had unanimously found that it had not departed from the standard of care, such finding would not have precluded plaintiffs from filing the lawsuit. The hospital concludes if the plaintiffs believed the panel acted improperly, the plaintiffs should have objected to the district judge, who had jurisdiction to act until 30 days after the panel issued its report.
Does the absence of one member of a screening panel render the panel’s action void or voidable? A void act has no legal force or effect. A voidable act is not void in itself but may be declared void usually at the option of an affected party. If the panel’s act was voidable, when were plaintiffs required to request that the district court set aside the report or to file their action against the hospital?
The Medical Malpractice Screening Panels Act, K.S.A. 65-4901 et seq., was enacted by the legislature to provide for the early resolution of many medical malpractice claims without the expense, and often inordinate delay, of actual litigation. Strict adherence to the rules of procedure and evidence applicable to a civil trial are not followed. K.S.A. 65-4903. Once appointed, it is the chairperson’s responsibility to insure that (1) the health care provider members of the panel file the required statement and understand their duties as a panel member; (2) the parties timely file their memoranda; (3) the panel convenes within 90 days after the screening panel is commenced; (4) the parties are notified in writing of the meeting; (5) the panel’s written recommendation is supported by corroborating reference to published literature and other relevant documents; and (6) within seven days of the decision, a copy of the panel’s opinion is pro vided to each party and each of the attorneys and the district judge.
First, we note that because the parties do not actively participate in the decision-making process, the medical malpractice screening procedure is not akin to arbitration, mediation, or an administrative proceeding. Arbitration is the referral of a dispute to an impartial (third) person chosen by the parties to the dispute who agree in advance to abide by the arbitrator’s award issued after a hearing at which both parties have an opportunity to be heard. Black’s Law Dictionary 96 (5th ed. 1979). See K.S.A. 72-5424, which provides that a board of education and a professional employees’ organization may agree to binding arbitration of disputes involving interpretation, application, or violation of agreements covering terms and conditions of professional services. Unlike arbitration, the findings and recommendations of the panel are not binding on the parties.
Mediation and conciliation are recognized legal terms of art for what is commonly referred to as “nonbinding arbitration.” It is the function of a mediator to bring the parties together voluntarily under such favorable auspices as would tend to effect settlement of the dispute, but unlike the arbitrator, the mediator does not have any power of compulsion in the proceedings. See K.S.A. 72-5426, which provides for nonbinding mediation when a board of education and a professional employees’ organization reach an impasse in negotiating the terms of an agreement.
A medical malpractice screening panel is not an administrative body created by law to administer, interpret, or enforce the law. The act provides a procedure where individuals trained in the field of medicine confer and provide an impartial determination of whether the health care provider departed from thé standard of care in a way which caused the claimant damage.
Even though the panel’s written recommendation to the parties is supported by corroborating references to published literature and other relevant documents, it is not binding on the parties. If one or more of the parties rejects the final determination of the screening panel, the plaintiffs may proceed with the action in the district court. K.S.A. 65-4905. If the action proceeds to trial, the written report of the screening panel is admissible in the legal proceeding. Either party may subpoena any and all members of the panel as witnesses for examination relating to the issues at trial. , . jr .
But like arbitration,, mediation, and an administrative procedure, the medical malpractice screening procedure requires that each of the parties or their designee meet with a third person to discuss, deliberate, and reach a conclusion. The legislature directed that screening panels “shall” consist of three panel members. The membership of the panel consists of three health care providers — one designated by the person against whom a claim is made, one designated by the claimant, and one selected jointly by the parties. The statutes provide a process for substitution of members or a method of selecting the third health care provider if the parties cannot jointly select the third health care provider. If the three voting panel members cannot agree, a concurring or dissenting member of the panel may file a concurring or dissenting opinion.
It is a fundamental rule of statutory construction that when a statute is clear and unambiguous, the court must give effect to the legislative intent therein expressed rather than make a determination of what the law should or should not be. In re Mary P., 237 Kan. 456, 459, 701 P.2d 681 (1985). The legislature clearly required that the panel consist of three members and that all three members of the panel participate and reach a conclusion of the issue.
Here, the record indicates the chairman of the screening panel, for whatever reason, was dilatory in undertaking his duties and in conducting the business of the screening panel. The chairman failed to give the notifications to the parties required by statute and Supreme Court Rule 142 (1992 Kan. Ct. R. Annot. 126) and to insure that all three health care providers selected as panel members qualified and participated in the decisional process. The direct result of his failing to follow the statutes and Supreme Court Rule 142 excluded the plaintiffs’ designee from participation in the deliberations of the screening panel.
Under the circumstances, the plaintiffs had 30 days from the issuance of the panel’s recommendation to challenge the validity of the composition of the panel in the district court or to file its civil action against the hospital prior to the expiration of the statute of limitations, which remained tolled until 30 days after the panel’s recommendation was issued. Although the district court was not correct in finding the panel had acted properly, it was correct in determining that the plaintiffs’ cause of action was barred by the statute of limitations.
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The opinion of the court was delivered by
Lockett, J.:
Plaintiff Wayne Kilner, who was injured by an underinsured motorist, appeals the district court’s grant of summary judgment to his insurer, State Farm Mutual Automobile Insurance Company (State Farm). The order allows plaintiff’s insurer, pursuant to K.S.A. 1992 Supp. 40-284(e)(4), to offset against its underinsured motorist coverage liability nonduplicative workers compensation benefits paid by the plaintiff’s employer’s insurer.
The appeal is on an agreed statement pursuant to Supreme Court Rule 3.05 (1992 Kan. Ct. R. Annot. 17). Facts set out in the statement are summarized.
Wayne Kilner was injured in an automobile accident when the vehicle he was driving was struck by a pickup truck being driven by Robert Owen, Jr. At the time of this accident, Kilner was driving a pickup truck owned by his employer, Dick Edwards Ford, and was acting in the scope of his employment. The employer’s pickup was insured through Federated Mutual Insurance Company (Federated) with a $50,000 single limit for liability of uninsured/underinsured motorist coverage. Kilner insured his personal vehicles with State Farm. His uninsured/underinsured motorist coverage limits with State Farm were $100,000 per person and $300,000 per occurrence. Owen’s pickup was insured by Dairyland Insurance Company (Dairyland) with a $25,000 liability limit.
Kilner filed a workers compensation claim against Dick Edwards Ford and its workers compensation insurance carrier, Federated. As of December 4, 1990, Kilner had received workers compensation benefits of $89,872.45. Of this amount, $62,224.45 was paid for medical expenses. Kilner has continued to receive payments for permanent partial disability at the rate of $256 per week. State Farm has paid personal injury protection (PIP) benefits to the plaintiff in the amount of $14,721 for lost wages and interest on lost wages.
Due to the multiple claimants in the accident, Dairyland filed an interpleader action requesting that its liability limits of $25,000/ $50,000 be equitably distributed by the court among the claimants. The district court apportioned the sum of $25,000 to Kilner from the Dairyland policy. The $25,000 was paid to Federated, Kilner’s subrogated workers compensation carrier.
The parties agree that Wayne Kilner’s claim for damages against Robert Owen, Jr. exceeds by more than $75,000 the aggregate of PIP benefits paid and workers compensation benefits paid and payable. The parties also agree that Robert Owen, Jr. was 100% at fault in causing the accident and that the plaintiff would be entitled to recover $75,000 underinsured motorist coverage from State Farm if duplicative workers compensation benefits are excluded.
Prior to the district court’s decision, two pertinent cases were filed. On August 2, 1991, United States District Judge Patrick F. Kelly issued a memorandum and order in the case of Bockwinkel v. American Economy Insurance Company, 1991 WL 171968 (D. Kan.), determining that uninsured or underinsured motorist coverage was not an issue in that case. On January 17, 1992, this court issued its decision in Rich v. Farm Bur. Mut. Ins. Co., 250 Kan. 209, 824 P.2d 955 (1992), construing 40-284(e)(6) with regard to permissible offsets for PIP benefits paid from an automobile insurer’s underinsured motorist coverage.
The district court granted State Farm’s motion for summary judgment, finding Rich inapplicable to the interpretation of 40-284(e)(4) because the insured paid a separate premium for PIP benefits coverage but did not pay a premium for workers compensation benefits coverage. The district judge adopted the analysis of Judge Kelly in Bockwinkel, and determined that the absence of the word “duplicative” in 40-284(e)(4) allows an offset for workers compensation benefits received by the insured. Because the district court granted the defendant’s motion for summary judgment, it also denied plaintiff’s request for prejudgment interest and attorney fees.
In 1968, the Kansas Legislature enacted the uninsured motorist statute, K.S.A. 1968 Supp. 40-284. This statute allowed motorists who incurred damages in an automobile accident with an individual who had no automobile insurance to recover benefits for those damages from their own insurance company, up to the limits of their coverage. In 1981, the legislature amended the law to include within the uninsured motorist statute provisions for coverage for underinsured motorists. Section (b) of this statute now provides:
“Any uninsured motorist coverage shall include an underinsured motorist provision which enables the insured or the insured’s legal representative to recover from the insurer the amount of damages for bodily injury or death to which the insured is legally entitled from the owner or operator of another motor vehicle with coverage limits equal to the limits of liability provided by such uninsured motorist coverage to the extent such coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle.”
The insurer charges a premium for uninsured motorist coverage and a separate premium for underinsured motorist coverage. Rich v. Farm Bur. Mut. Ins. Co., 250 Kan. at 212.
K.S.A. 1992 Supp. 40-284(e) allows an insurer to exclude or limit its uninsured and underinsured motorist coverage. It provides in part:
“(e) Any insurer may provide for the exclusion or limitation of [under-insured motorist] coverage:
“(4) to the extent that workers’ compensation benefits apply;
“(6) to the extent that personal injury protection benefits apply.”
The question is, does 40-284(e)(4) allow the offset of under-insured motorist benefits for every dollar of workers compensation benefits received, or just where underinsured motorist benefits duplicate the workers compensation benefits?
DOES BOCKWINKEL APPLY?
Plaintiff Joseph Bockwinkel was involved in a multi-vehicle accident on 1-70 while driving a pickup truck owned by his employer, Great Western Tire of Oakley, Inc. At the time of the accident, two insurance policies issued by the American Economy Insurance Company and Northwestern National Casualty Company provided coverage to the employer’s pickup truck.
A severe dust storm caused drivers on 1-70 to slow. Defendant, Franklin J. Clayton, slowed to a halt in the righthand lane. While stopped, Clayton’s car was struck by a semi-tractor truck. After this collision, Clayton’s car was damaged, but he was able to push it onto the shoulder.
The dust had caused several vehicles, including Bockwinkel’s pickup truck, to halt behind Clayton’s car. Bockwinkel’s pickup truck was struck from behind by a semi-tractor truck owned by Gray Rock Farms. The pickup was thrown into the lefthand lane by the force of the impact, and then struck by a vehicle driven by defendant Burke Kitchen. Bockwinkel filed a tort action against all parties and his employer’s insurers.
Bockwinkel claimed that* because he was unable to identify the driver of the semi-truck that struck the Clayton’s car, he was entitled to uninsured motorist coverage under his employer’s policies. One of the employer’s insurers argued (1) that no uninsured motorist coverage was available because Bockwinkel had already received workers compensation in excess of the potential uninsured motorist coverage; and (2) that uninsured motorist coverage was not an issue because the plaintiff had failed to prove that the uninsured motorist caused the plaintiff’s injury. The United States District Court, after noting both the policies of American and National contained provisions reducing coverage for amounts received in the form of workers compensation benefits, discussed 40-284(e) and Kansas cases which discussed workers compensation benefits and setoffs allowed an employer’s insurer. The federal district court determined that the plaintiff failed to meet his burden of proof that an uninsured motorist caused or contributed to his injuries and stated, “[E]ven assuming the truck which struck the Clayton vehicle was either genuinely unidentifiable or uninsured, the matter is not controlling since the truck played no causal role in the subsequent accident involving Bockwinkel.” The federal district court determined that Bockwinkel’s additional argument, that there was potential underinsured motorist coverage, was purely a hypothetical matter involving a claim which was premature.
In granting summary judgment in this case, the district court’s reliance on Bockwinkel. and Allied Mut. Ins. Co. v. Gordon, 248 Kan. 715, 811 P.2d 1121 (1991), is misplaced. The federal district court in Bockwinkel merely discussed the provisions of the employer’s insurers’ policies, certain Kansas cases including Gordon, and 40-284(e)(4), but did not determine whether the uninsured/ underinsured motorist benefits were duplicative of workers compensation benefits.
RICH v. FARM BUREAU
In Rich, Lavin was a passenger injured in a one-vehicle accident. Both the driver and the owner of the vehicle paid the liability limits of their policies in settlement with Lavin. Lavin’s underinsured motorist coverage exceeded the combined $75,000 liability coverages of the owner and driver of the vehicle ($50,000 + $25,000) by $25,000. The parties agreed that the maximum liability coverage and PIP benefits plaintiff was entitled to receive was $177,000. Lavin made claim for underinsured motorist benefits against his own automobile liability insurance carrier, KFB Insurance Company, Inc. (KFB).
KFB denied the estate’s claim for $25,000 on grounds the $40,667.52 in PIP benefits it paid Lavin exceeded his $25,000 claim for underinsured motorist benefits; therefore, pursuant to 40-284(e)(6), the $25,000 claim should be offset against the PIP benefits already paid. The parties stipulated that a court or jury would find Lavin’s actual damages exceeded $177,000. The parties also stipulated that none of the damages plaintiff claimed under the underinsured motorist coverage were damages to which PIP benefits “apply.” The issue in Rich was whether Lavin’s estate was entitled to the $25,000 of underinsured motorist benefits or whether the insurer was entitled to offset the $25,000 of under-insured motorist coverage against the nonduplicative PIP benefits it had paid.
In Rich, the district court ruled that 40-284(e)(6) allowed the insurer to reduce the underinsured coverage by payments it already made for personal injury protection. The trial court held the $25,000 of underinsured motorist coverage could be set off against the PIP payments and, thus, the insurer had no further liability to its insured. Lavin’s estate appealed, claiming 40-284(e)(6) allowed setoff of the underinsured benefits only if the benefits were duplicative of the PIP benefits the insurer previously paid.
The Rich court noted that the purpose of legislation mandating the offer of uninsured and underinsured motorist coverage is to fill the gap inherent in motor vehicle financial responsibility and compulsory insurance legislation. This coverage is intended to provide recompense to innocent persons damaged through the wrongful conduct of motorists who, because they are uninsured or underinsured and not financially responsible, cannot be made to respond in damages. 250 Kan. at 215. See Winner v. Ratzlaff, 211 Kan. 59, Syl. ¶ 1, 505 P.2d 606 (1973).
The court observed that the uninsured and underinsured motorist statutes are remedial in nature. The statutes should be liberally construed to provide broad protection to the insured against all damages, caused by the acts of an uninsured or underinsured motorist, resulting from bodily injuries sustained by the insured that are caused by an automobile accident and arose out of the ownership, maintenance, or use of the insured motor vehicle. 250 Kan. at 215. See Simpson v. Farmers Ins. Co., 225 Kan. 508, 512, 592 P.2d 445 (1979).
The Rich court found the purpose of 40-284 is to provide the individual who is covered by the standard automobile liability policy with a right against his or her own insurer equal to that the insured would have against the uninsured or underinsured tortfeasor. 250 Kan. at 215-16. Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, 600, 549 P.2d 1354 (1976). The Rich court held that the legislature intended 40-284(e)(6) to permit an insured to recover underinsured motorist benefits which are not duplicative of PIP benefits. It stated that any other result negates the legislature’s intent to require underinsured motorist coverage protection. 250 Kan. at 216.
State Farm asserts that Rich’s rationale of 40-284(e)(6) does not apply to 40-284(e)(4) because PIP benefits and workers compensation benefits are fundamentally different. It claims for this court to treat (e)(4) and (e)(6) the same would allow an insured, injured in an automobile accident while acting within the scope of employment, to receive a greater recovery from the underinsured motorist covex'age than the insured would have received had the tortfeasor’s liability insurance limits been equal to the injured insured’s underinsured motorist insurance limits. For example, if Kilner had received $100,000 from the tortfeasor’s liability insurer and $100,000 in workers compensation benefits, Kilner would be required to pay the $100,000 recovery from the tortfeasor’s liability insurance to the workers compensation carrier under K.S.A. 1992 Supp. 40-3113a and would receive zero net proceeds from the toitfeasor’s liability insurance. Under this scenario Kilner’s total benefits would be the $100,000 workers compensation benefits. State Farm asserts if we adopt Kilner’s reasoning, Kilner’s total benefits would be $100,000 in workers compensation benefits plus $75,000 underinsured motorist benefits. According to State Farm, this result is inconsistent with the purpose of 40-284 to provide the individual who is covered by the standard automobile liability policy with a right against his or her own insurer equal to that which the insured would have against the uninsured or underinsured tortfeasor.
State Farm notes the fundamental rule of statutory construction is that the intent of the legislature governs and, when construing a statute, a court should give words in common usage their natural and ordinary meaning. State ex rel. Secretary of SRS v. Clear, 248 Kan. 109, Syl. ¶ 2, 804 P.2d 961 (1991); Spor v. Presta Oil Co., 14 Kan. App. 2d 696, 798 P.2d 68 (1990). Where a statute is clear and unambiguous, the court must give effect to the expressed legislative intent without regard to what the court thinks the law should or should not be. Mark Twain Kansas City Bank v. Kroh Bros. Dev. Co., 14 Kan. App. 2d 714, Syl. ¶ 6, 798 P.2d 511 (1990). Legislative intent must be derived from the language of the statute and where the language used is plain and unambiguous the court must follow the intent as expressed by the words used. State v. V.F.W. Post No. 3722, 215 Kan. 693, 695, 527 P.2d 1020 (1974); City of Overland Park. v. Nikias, 209 Kan. 643, 646, 498 P.2d 56 (1972). Where a statute is clear and unambiguous, it must be applied accordingly without judicial construction. Batt v. Globe Engineering Co., Inc., 13 Kan. App. 2d 500, 503, 774 P.2d 371, rev. denied 245 Kan. 782 (1989).
State Farm asserts that these rules of statutory construction support its position that underinsured motorist benefits may be offset against all workers compensation payments whether or not the underinsured motorist benefits are duplicative of the workers compensation payments. It contends that because of the absence of the word “duplicative” in 40-284(e)(4), the standard rules of statutory construction prevent this court from inserting duplicativeness into that statute. It argues that while in Rich there was a compelling reason to maintain consistency between PIP subrogation and PIP setoff, there is no reason to do so for workers compensation.
For support of its argument, State Farm refers to the statutory right of an employer to be subrogated for compensation paid an injured employee. State Farm points out that K.S.A. 1992 Supp. 40-3113a allows an employer to be subrogated only to the extent that duplicative PIP benefits are recovered by the injured worker while the workers compensation subrogation statute, K.S.A. 1992 Supp. 44-504(b), allows the employer to be subrogated by a negligent third party to the extent of compensation and medical aid provided by the employer to the date of recovery, regardless of duplicativeness. Without citing any authority, State Farm concludes that the offset provisions of 40-284(e)(4) were legislatively enacted to allow reduction of workers compensation benefits in uninsured and underinsured motorist coverage similar to the reductions allowed an employers insurer in 44-504(b).
State Farm also notes that K.S.A. 40-287, which allows an underinsured motorist insurer to be subrogated to the proceeds of any tort settlement or judgment on behalf of its insured, does not contain the word “duplicative.” It notes that in State Farm Mut. Auto. Ins. Co. v. Kroeker, 234 Kan. 636, 647, 676 P.2d 66 (1984), this court, referring to K.S.A. 40-287, stated: “The insurance carrier is entitled to be subrogated, to the extent of uninsured motorist payments paid, to the proceeds of any settlement or judgment obtained by the insured without restriction. Certainly the legislature must have intended a different result by using the word ‘duplicative’ in K.S.A. 40-3113a.” State Farm concludes the absence of the word “duplicative” in 40-284(e)(4) requires that workers compensation benefits received by its insured be offset under its underinsured coverage whether duplicative or not.
For support, State Farm cites two cases interpreting other states’ statutory right of an insurer to offset underinsured motorist claims by its insured. The first case is Rudd v. California Casualty Gen. Ins. Co., 219 Cal. App. 3d 948, 268 Cal. Rptr. 624 (1990). In Rudd, the California court determined under the statutes that an automobile insurer was entitled to a setoff against the amount it owed under its underinsured motorist policy provisions by the amount of workers compensation benefits received by the insured. The court noted the fundamental purpose of the statute is to provide the insured with the same insurance protection he or she would have had if the adverse driver had been properly insured, and not to place the insured in a better position than he or she would have occupied had the other driver carried such insurance. The court reasoned that because the statute embraced both types of coverage under the denomination “uninsured motorist coverage,” “the plain language of the statute specifying a workers compensation setoff against the uninsured motorist coverage’ must be construed as permitting such setoff to be applied against either type of coverage provided under the rubric of ‘uninsured motorist coverage.’ ” 219 Cal. App. 3d at 954.
The second case cited by State Farm, although State Farm admits it is not directly on point, is Sulser v. Country Mutual Ins. Co., 147 Ill. 2d 548, 591 N.E.2d 427 (1992). There, the issue appears to be whether an underinsured motorist benefit claimant should be treated differently than an uninsured motorist benefit claimant. The Illinois court stated the statute was designed to offer insurance to “fill the gap” between the claim and the tortfeasor’s insurance and not intended to allow the insured to recover amounts from the insurer over and above the coverage provided by the underinsured motorist policy. 147 111. 2d at 556. To the contrary, plaintiff claims Kansas allows “full recovery.”
State Farm asserts it is significant that PIP benefits are purchased by the insured through the payment of a separate premium, a distinction specifically noted in Rich. State Farm points out that workers compensation benefits are not purchased by the insured but are a collateral benefit to the insured through premiums paid by the insured’s employer. It argues that this distinction between PIP benefits and workers compensation benefits mandates disparate interpretation of the dissimilar setoff provisions of 40-284(e)(4) and (e)(6).
We disagree. First, Rich actually noted that the insurer charges a premium for uninsured motorist coverage and a separate premium for underinsured motorist coverage. Second, Kilner’s employer’s insurer paid its workers compensation insurer premiums as a condition of Kilner’s employment. And finally, Kilner paid State Farm a separate premium for his underinsured motorist coverage.
Kilner notes the uninsured/underinsured motorist statutes are remedial in nature and, as such, they should be liberally con strued to provide broad protection to the insured against all damages resulting from bodily injuries sustained by the insured when the accident is caused by an uninsured or underinsured motorist, Kilner claims the legislative intent of 40-284(e)(4) and 40-284(e)(6) is to permit an insured to recover from his insurer underinsured motorist benefits which are not duplicative. Kilner concludes that permitting him to recover nonduplicative underinsured motorist benefits furthers the statutory purpose of allowing an injured person to recover all losses.
Kilner points out that it is presumed that identical words used in different parts of the same statute are intended to have the same meaning throughout the act. Berndt v. City of Ottawa, 179 Kan. 749, 752, 298 P.2d 262 (1956). Further, when a court attempts to ascertain legislative intent in a statutory enactment, it is required to consider and construe all parts together in pari materia. Guardian Title Co. v. Bell, 248 Kan. 146, Syl. ¶ 8, 805 P.2d 33 (1991). The court may also consider the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have on the various constructions suggested. Watkins v. Hartsock, 245 Kan. 756, Syl. ¶ 1, 783 P.2d 1293 (1989).
Kilner claims that under the standard rules of statutory construction the offset of workers compensation benefits allowed by 40-284(e)(4) is limited to duplicative payments. He first points out that the language of the statute providing for the limitation or exclusion of uninsured motorist coverage is the same in both 40-284(e)(4) and (e)(6). He argues the construction of (e)(4) must be consistent with the interpretation of (e)(6) in Rich. He notes that to construe (e)(4) different from (e)(6) gives a completely different meaning to two statutory provisions whose language and purpose are identical. He concludes construing the two statutes differently is contrary to the rules of statutory construction and would make K.S.A. 1992 Supp. 40-284 internally inconsistent and inharmonious.
Kilner claims State Farm’s argument requires the court to violate the rule of interpreting statutes “in pari materia” because it would result in duplicativeness being read into 40-284(e)(6) (PIP) but not into (e)(4) (workers compensation) where identical language is used. He argues this makes it impossible to interpret the meaning of the same words within the same statute or within the same chapter of statutes, no matter how close together the words appear in the statute or same chapter.
It is the duty of a court when construing statutes to make the various provisions consistent, harmonious, and sensible. Bell v. Simon, 246 Kan. 473, 476, 790 P.2d 925 (1990); State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). The construction of K.S.A. 1992 Supp. 40-284(e)(4) must be consistent with and harmonious with the construction of K.S.A. 1992 Supp. 40-284(e)(6). The failure to construe the two subsections of K.S.A. 1992 Supp. 40-284(e) consistently and harmoniously would be to give wholly different meanings to two statutory provisions whose language is identical.
K.S.A. 1992 Supp. 40-284(e)(4) allows an insurer to exclude or limit its uninsured and underinsured motorist coverage to the extent that duplicative workers compensation benefits apply. The legislature intended K.S.A. 1992 Supp. 40-284(e)(4) to permit an insured to recover underinsured motorist benefits which are not duplicative of workers compensation benefits. Any other result negates the legislature’s intent to require underinsured motorist coverage protection.
Prejudgment Interest
Because the district court determined Kilner was not entitled to any compensation under his underinsured motorist coverage, it did not determine whether prejudgment interest should be awarded. K.S.A. 16-201 provides:
“Creditors shall be allowed to receive interest at the rate of ten percent per annum, when no other rate of interest is agreed upon, for any money after it becomes due; for money lent or money due on settlement of account, from the day of liquidating the account and ascertaining the balance." (Emphasis added.)
Kilner asserts K.S.A. 16-201 requires prejudgment interest to be awarded if the amount owed is a liquidated sum. He argues his claim against State Farm is a liquidated sum and that prejudgment interest is required from the date the stipulation in this case was filed with the clerk of the district court.
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. Johnson v. General Motors Corp., 233 Kan. 1044, 1053, 668 P.2d 139 (1983). See Phelps Dodge Copper Products Corp. v. Alpha Construction Co., 203 Kan. 591, 455 P.2d 555 (1969). Where an amount is due upon contract, either express or implied, and there is no uncertainty as to the amount which is due or the date on which it becomes due, the creditor is entitled to recover interest from the due date. In re Tax Protests of Midland Industries, Inc., 237 Kan. 867, 868, 703 P.2d 840 (1985).
Kilner claims that the parties stipulated that the amount due him is $75,000, the amount due is a sum certain, and there is no dispute as to the amount.
Kilner’s statement that the parties have stipulated that the “amount due” him is $75,000 is erroneous. The parties stipulated that Kilner s damages exceeded the amount of workers compensation benefits paid and payable and the amount of PIP benefits paid by at least $75,000 so the district court could determine a legal issue. Under these circumstances, K.S.A. 16-201 allowance of interest does not apply.
Attorney Fees
Kilner next contends he is entitled to attorney fees pursuant to K.S.A. 40-256. This question was never considered by the district court.
K.S.A. 40-256 provides in relevant part:
“That in all actions hereafter commenced, in which judgment is rendered against any insurance company as defined in K.S.A. 40-201, . . . if it appear from the evidence that such company . . . has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action, including proceeding upon appeal, to be recovered and collected as part of the costs.”
Kilner claims State Farm’s refusal to pay the $75,000 under-insured motorist coverage benefit has been vexatious and unreasonable from the very beginning. He argues there was never any real dispute as to the liability of the underinsured motorist or the fact the motorist was underinsured. He argues that State Farm was aware that it was liable to him under the underinsured motorist provision of his policy and it refused to pay, necessitating the filing of the lawsuit. He contends State Farm’s position on K.S.A. 1992 Supp. 40-284(e)(4) and on the “same damages” language of its own policy was unreasonable. He further contends that once Rich was filed, State Farm should have paid him the $75,000 allegedly due in this case.
Most of Kilner’s argument is conclusory. The few factual statements in his argument, i.e., no dispute as to liability of the underinsured motorist, are irrelevant. The other statements and charges are unsupported by any citations to the record. K.S.A. 40-256 requires the evidence to show a refusal to pay without just cause or excuse. Kilner has failed to point out any evidence showing a refusal to pay without just cause or excuse. Kilner’s position is without merit.
Reversed. | [
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|
Per Curiam:
This is an original proceeding in discipline filed by Bruce E. Miller, Disciplinary Administrator, against John R. Hooge, of Lawrence, an attorney duly admitted to the practice of law in Kansas. The amended complaint filed against respondent alleged violations of DR 9-102(A)(2) and DR 9-102(B)(4) (1992 Kan. Ct. R. Annot. 231).
A formal hearing before the panel of the Kansas Board for Discipline of Attorneys was held on November 30, 1992. Respondent appeared in person and by counsel, Louis F. Eisenbarth. By answer, respondent admitted the allegations set out in the complaint and stipulated that he violated DR 9-102(A)(2) and DR 9-102(B)(4).
The facts which are the basis for the complaint against respondent are included within the panel report. No exceptions to the report were filed by respondent. The panel made the following findings of fact:
“That on or about the 10th day of January, 1985, a client of the respondent whose name was not disclosed gave the respondent the sum of $5,000 to hold in cash in the respondent’s trust account and to be used only for specific purposes, to-wit: To pay bond for bail in criminal proceedings against either [Randall William] Murphy or the co-client or to pay attorney fees to the respondent for representing . . . Muiphy or the co-client in any criminal proceedings.
“That on January 11, 1985, the respondent deposited the sum of $5,000 in his trust account and that thereafter the respondent withdrew funds belonging to the co-client from the trust account and converted at least $4,606.57 of these funds to the respondent’s own use.
“That after the deposit of the funds in the respondent’s trust account, said Randall William Murphy asked the respondent to pay him some or part of the funds and the respondent correctly refused to do so because the funds were not deposited by Randall William Murphy and they were not being used for the purposes of which funds were deposited with respondent. That the co-client, whose name was not disclosed to the Panel, asked for return of the funds. That immediately the respondent told this client about the respondent’s personal usage of these funds and did not attempt to hide the same. That the respondent then told the co-client that he would make repayment of these funds and the record shows that the respondent did make complete repayment to the co-client of the funds so deposited.
“It should be further noted for the record that the co-client did not bring this complaint against the respondent and further did not want to partake in these proceedings in any manner or means.”
The panel unanimously concluded that respondent’s actions violated DR 9-102(A)(2), in that respondent withdrew funds belonging to the client without the client’s permission or authority and uséd the client’s money for his own purposes, and DR 9-102(B)(4), in that respondent did not properly pay or deliver to the client as requested the funds so deposited by the client with respondent.
The panel unanimously recommended that respondent be suspended from the practice of law in the State of Kansas for a period of two years and that the imposition of discipline be suspended and the respondent be placed on supervised probation for two years. In making the recommendation, the panel recognized the seriousness of the violations but, due to the mitigating circumstances, did not recommend a greater sanction. The panel took into consideration the following mitigating factors:
“1.. Absence of a prior disciplinary record.
2. Personal or emotional problems at the time of the occurrence, which is the subject of this complaint.
3. Timely and good faith effort to make restitution or to rectify consequences of misconduct and in fact full restitution was made.
4. Respondent cooperated with the Board of Discipline in relation to the complaints as filed against him.
5. Previous good character and reputation in the community and good character and general reputation of the respondent as an attorney in the community.
6. The delay in the disciplinary proceedings as taking place herein.
7. Remorse as shown by the respondent.
8. The fact that the co-client, name unknown, seems to be expressing satisfaction with the restitution as made to him by the respondent and the co-client has declined to enter into any disciplinary action against the respondent.”
After a careful review of the record, the majority of the court is of the opinion that the serious nature of respondent’s conduct in withdrawing funds entrusted to him by a client and using the funds for his own personal benefit requires that he be suspended from the practice of law in Kansas for a period of one year.
It Is Therefore Ordered that John R. Hooge be and he is hereby suspended from the practice of law in the State of Kansas for a period of one year from this date.
It Is Further Ordered that respondent shall comply with the provisions of Supreme Court Rule 218(a) (1992 Kan. Ct. R. Annot. 176). At the end of the one-year suspension, respondent will be reinstated upon furnishing proof of compliance thereof to the Clerk of the Appellate Courts.
It Is Further Ordered that the costs of these proceedings be assessed to respondent and that this order be published in the official Kansas Reports.
Six, J., not participating. | [
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|
The opinion of the court was delivered by
Harvey, J.:
This is an original proceeding in mandamus to compel the probate judge of Butler county to make an order for the final settlement of the estate of W. F. Oberst, deceased, finding that the plaintiff is the sole heir of the deceased and requiring Fred Oberst, administrator of the estate, to turn over to plaintiff, as such sole heir, the assets of the estate. An alternative writ was issued. The probate judge has made no answer or return thereto. The administrator has filed an answer. Affidavits on behalf of plaintiff have been filed and he has moved that a peremptory writ issue.
The facts disclosed by the record are not seriously controverted and may be thus stated: On April 20, 1928, W. F. Oberst, a farmer residing in Butler county, his wife and five of their children were killed and the home in which they were living was burned. The circumstances indicated they had been murdered. Plaintiff is the only surviving child of W. F. Oberst and wife. He was charged with the murder of each of them. In July, 1929, charges against plaintiff for the murder of his mother, his sisters and brothers, were dismissed. Plaintiff was prosecuted for the murder of his father. Certain questions relating to that, prosecution have been heretofore determined in this court. {State v. Oberst, 127 Kan. 412, 273 Pac. 490; In re Oberst, 133 Kan. 364, 299 Pac. 959.) For this offense plaintiff was tried three times in the district court of Butler county. At each trial the jury disagreed, and on October 10, 1931, the cause of action against him for the murder of his father was, on motion of the county attorney, dismissed without prejudice.
On April 25,1928, Fred Oberst, a brother of W. F. Oberst, was by the probate court of Butler county appointed as administrator of the estate of W. F. Oberst, deceased, and duly qualified as such administrator. In the affidavit and petition for appointment signed by Fred Oberst it was recited that W. F. Oberst died intestate, leaving personal property of the probable value of $7,000, and leaving as his heir Owen Oberst, who is the plaintiff herein. After the arrest of Owen Oberst for the murder of his father, Fred Oberst filed in the probate court an affidavit, supplemental to the petition for letters of administration, in which it was recited that since, the granting of letters of administration Owen Oberst had been charged with the murder of-his father, which charge was then pending in court, and that the affiant does not know and is unable to state who is entitled to the property of W. F. Oberst, or to state who is his heir, or heirs, at law. Fred Oberst proceeded with the administration of the estate of W. F. Oberst, deceased, and among other things converted the personal property into cash and invested most of it in government bonds and retained the custody of the same for the benefit of the estate. The house which burned at the time of the death of W. F. Oberst was insured. Among other things, the administrator brought an action in the district court on the insurance policy. This action pended in court awaiting the outcome of the criminal prosecution against Owen Oberst.
Perhaps anticipating that the criminal action against Owen Oberst would be dismissed, the administrator, Fred Oberst, on 'August 28, 1931, filed his final account as such administrator in the probate court and served notice of the final hearing on such account and request for order of distribution to be had on October 2, 1931, and gave due notice thereof, as provided by statute (R. S. 22-904). On that date the hearing was continued to October 12, to permit the order dismissing the criminal action to be made, which was done on October 10. On October 12, 1931, the matter of the approval of the final account of the administrator, determining who were the heirs of W. F. Oberst, deceased, and making an order for final distribu tion of the estate, came on for hearing. On that date one Dorinda A. McClain appeared in court and filed a claim against the estate in the sum. of $500 for board and lodging of Owen Oberst from June, 1930, to September, 1931. This claim was contested by Owen Oberst and his counsel and was disallowed by the probate court. The claimant gave notice of appeal, and the court fixed the amount of the appeal bond at $500.
Fred Oberst then presented his resignation as administrator of the estate of W. F. Oberst, deceased, which resignation was accepted by the court after a hearing. Counsel for Owen Oberst then suggested the appointment of Owen Oberst and John Madden, Jr., one of his attorneys, as administrators of such estate. They also requested the matter be continued until the next day, which request was granted. On the next day Fred Oberst presented for approval his final account, which had been brought up to date. This was examined and approved by the court. This showed that the administrator, after paying a sum allowed by the court for his services and that of his attorney, had on hand $980.69 in cash, eight government bonds of $1,000 each, and one of $500, and several certificates for shares in farm cooperative associations. No objections were taken to any item of the account or to the order of the court approving the same. The administrator, Fred Oberst, was ordered to bring this property into court for delivery to the administrator to be appointed by the court.
Thereupon, on the application of Owen Oberst, Harry B. Garden was appointed and qualified as administrator de bonis non of the estate of W. F. Oberst, deceased. The matter was then adjourned to October 14, and on that day to October 15. On that day Harry B. Garden, in person and by his attorney, appeared and moved the court to set aside his appointment, and after argument thereon the motion was allowed. The matter was then continued until October 16, and on that date until October 19. On that date Owen Oberst appeared, and as sole heir of W. F. Oberst, deceased, moved the court to make an order of distribution of the estate and to require Fred Oberst to turn over to him the property in his hands belonging to said estate, for the reasons: That the estate had bpen fully administered; that more than three and one-half years had expired since the administrator was appointed; that all debts of the estate had been paid or barred; that the administrator had filed his final account, which had been approved; that the charge against Owen Oberst for the murder of his father had been dismissed in the district court on the motion of the county attorney; that the claim of Dorinda A. McClain was not a debt of the deceased or the administrator and was barred; that he had offered to furnish bond to secure the payment of any judgment she might obtain and had objected to the order of the court accepting the resignation of Fred Oberst as administrator; that, seeking to comply with the rulings of the court, he- had requested the appointment of Harry B. Garden, which appointment was made, and that Garden had moved to set aside the order appointing him as being illegal, for the reason that the estate was fully administered at the time of his appointment, which motion was sustained; that he had endeavored to comply with the suggestion that he be appointed administrator of. the estate, but had been unable to secure a bond from-recognized surety companies; that he had never received any of the property of the estate from the administrator; that he was entitled to it and in need of it and there was no legal reason why it should not be paid -him. The probate court heard this motion and denied it. On October 21 Owen Oberst brought this proceeding in this court.
. Owing to the wide discretion of the probate court in such matters, we pass-by complaints made of the order of the probate court of October 12 accepting the resignation of Fred Oberst as administrator of the estate, and shall direct our attention to the ruling of the court-on October 19, on the motion of Owen Oberst to direct a distribution of the estate. While the probate court was not specifically requested to make a finding as to who is the heir, or who are the heirs, of W. F. Oberst, deceased, it appears to be conceded in this record that Owen Oberst is the only child and heir of W. F. Oberst and entitled to the estate unless precluded therefrom for some of the reasons which will be discussed. The records of the probate court do not show the reasons of the probate court for refusing to find that Owen Oberst was the heir of W. F. Oberst and directing the administrator, Fred Oberst, to turn over the property to him, but in the briefs we are told there were four reasons:
First, the claim of Dorinda A. McClain, which had been heard and denied by the probate court; but she had given notice of appeal, the amount of her appeal bond had been fixed, and the time within which she could give bond had not expired. With respect to that Owen Oberst offered to leave sufficient funds in the hands of the administrator to pay any judgment which might be obtained on that claim, or to give bond to pay it if all of the property were turned over to him. Either of these propositions appears reasonable. But we are no longer concerned with it, for she did not perfect her appeal, and the time for her to do so has expired.
Second, we are told that the administrator, Fred Oberst, had listed the property of the estate in his hands for taxation in the spring of 1931, the taxes were not due and payable until November 1, and this is suggested as a reason for not closing the estate. It was a trivial reason at the best. Since most of the property was in government bonds the taxes could not have been large, the tax rolls had been made up and turned over to the county treasurer, it would have taken but a minute to step into the treasurer’s office and find' the amount of the taxes, and if they could not have been paid on that date there are several ways the matter could have been easily handled so as not to delay the closing of the estate. That item has since been paid by Owen Oberst, hence it is no longer a reason for declining to close the estate.
Third, we are told that the inheritance tax had not been computed or paid, and for that reason a final discharge of the administrator could not be made. Technically this was correct (R. S. 79-1522). It has been previously held by this court that it is improper to discharge an administrator until this tax is paid (In re Moseley’s Estate, 100 Kan. 495, 164 Pac. 1073), but a discharge of the administrator before the tax was paid would not relieve the estate of the tax. (See, also, Skinner v. Mitchell, 108 Kan. 861, 870, 197 Pac. 569.) Whatever impediment that caused to the closing of the estate has been eliminated, for the amount of the inheritance tax has now been computed and paid by Owen Oberst.
Fourth, the administrator had brought a suit on the insurance policy on the home of W. F. Oberst, which burned, and that action was still pending in the district court. Perhaps this suit was improvidently brought, but whatever impediment it offered at that time to the closing of the estate no longer exists, for the action has been dismissed. So all the reasons urged for the refusal of the court to close up the estate were trivial and of no substantial consequence, and they no longer exist.
From some things appearing in the record and said in the argument, perhaps the real motive actuating the defendant Fred Oberst, which prompted him to resign as administrator and which caused him and his bondsmen to oppose the motion for the distribution of the estate, lay in these facts: Under our statute (R. S. 22-133) if Owen Oberst had been convicted of the murder of his father he could not have inherited from him. In that event Fred Oberst would have been an heir to the estate of W. F. Oberst. In one of the previous cases in this court it developed that he was looking with longing eyes toward this estate (see State v. Oberst, supra, p. 424). Perhaps that is what prompted him to make the supplemental petition for the appointment of an administrator. The statute, however, would not apply in this case unless Owen Oberst were convicted of the murder of his father. (Hogg v. Whitham, 120 Kan. 341, 242 Pac. 1021.) Since he has not been convicted, and the cause of action against him for that offense has been dismissed, he is entitled to his inheritance. But the statute of limitations does not run on the offense of murder in the first degree (R. S. 62-501). The thought prevails that at some time in the future Owen Oberst may again be charged with and convicted of the murder of his father. Remote as that contingency may be, perhaps Fred Oberst looks forward to it as a possibility and for that reason prefers that the estate should never be distributed to Owen Oberst, or at least that he, as administrator, be not required to make the distribution to him. His bondsmen, who appeared by counsel in the probate court and here, are fearful that in such a contingency they might be held liable on their bond, particularly if in the meantime the estate had been turned over to Owen Oberst and by him consumed or dissipated. These are not matters which should be allowed to have any influence in the distribution of this estate.
So far as the defendant, Fred Oberst, is concerned he brought about his own appointment as administrator, but whether he did so or not he accepted the appointment, has performed the duties of an administrator of the estate (and apparently has performed them well), and he should make distribution of the estate the same as though he had been appointed administrator of any other estate. The fact that he may entertain the hope, if he does entertain it, that possibly under changed future circumstances, which may or may not arise, he might be the heir of the estate, does not justify him in conniving to defeat the recognized legal rights of the present heir to the estate. To the extent he has, or is, so conniving, his conduct is reprehensible in the extreme.
The sureties on the bond of Fred Oberst, the administrator, while not parties-to this action, out of an abundance of caution have had counsel representing them in the probate court and here. The only concern they can have in the matter is to know that whenever Fred Oberst, as .administrator, turns over the property of the estate in conformity with an order of the probate court, properly made for that purpose, they shall not be further held liable on his bond, whatever contingencies may arise. Of this they may be well assured. In a sense the administrator, acts as an auditor (Beach v. Norris, 127 Kan. 619, 622, 274 Pac. 256) for the purpose of collecting the assets of the estate and distributing them under orders of the court. When no complaint is made about the funds or the property which have come into his hands, or about the method of his handling the estate — and in this case no such complaints are made — and he actually disburses those funds in accordance with an order of the court properly made for that purpose, the bondsmen are no longer liable. (Smith v. Eureka Bank, 24 Kan. 528; Proctor v. Dicklow, 57 Kan. 119, 125, 45 Pac. 86.) In 24 C. J. 1069 it is said:
“The final settlement of the accounts of . . . an administrator and his discharge ordinarily terminate the liability on the bond.”
To the same effect is 11 R. C. L. 182-184. The administrator’s bondsmen would be protected in this case as in any other.
From what has been said it is clear that the estate of W. F. Oberst has been fully administered in the probate court of Butler county, except for a finding by the probate court of who is the heir, or who are the heirs, of the decedent and an order by the court for the assets of the estate to be delivered to such heir or heirs. The trivial objections which existed in October, 1931, to the-making of the necessary findings and orders for the closing of this estate no longer exist. This being an original case in this court, we dispose of it as the facts now appear rather than as they appeared last October. No new administrator is needed, and the appointment of one by the probate court would be an abuse of its discretion. While the resignation of Fred Oberst, as administrator, was accepted by the court, he still has the assets of the estate in his possession and is amenable to appropriate orders of the court for their disbursement. He is a party to this action, and the orders of this court in this cause are binding on him. The time has come when this estate should be settled and closed up.
The writ prayed for will issue. It is therefore adjudged and ordered by this court that the defendant Y. P. Mooney, probate judge of Butler county, make a finding of who is the heir, or who are the heirs, of W. F. Oberst, deceased; that he make an order that Fred Oberst, as administrator of W. F. Oberst, deceased, pay and deliver to the heir or heirs so found the remaining assets of the estate in his hands, taking proper receipts therefor; that the defendant Fred Oberst, as administrator of the estate, pay and deliver to the heir or heirs so found the remaining assets of the estate in his hands'; that upon such payment and delivery and evidence thereof the court make an order discharging Fred Oberst as administrator of such estate and releasing the sureties on his bond from further liability.
The court will retain jurisdiction of this proceeding to see that its orders are carried' out. | [
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The opinion of the court was delivered by
Hutchison, J.:
The original opinion in this case was handed down January 30, 1932, and reported in 134 Kan. 445, 7 P. 2d 95. Later a petition for rehearing was granted, and the matter was very carefully rebriefed and reargued. The briefs and argument have been fully considered, and the court has reached the same conclusion as before and decided to adhere to the former opinion. | [
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is from the order of the trial court sustaining a demurrer to the evidence of the plaintiff in an action to set aside a certain deed executed by her husband, now deceased, three days before his marriage to her, attempting thereby to convey a quarter section of land in Harper county to the defendant herein, his daughter by a former marriage.
The petition in- two counts pleads the invalidity of the deed and grounds for setting it aside, first, for want of delivery, and second, because the deed was fraudulently executed three days before their marriage, fraudulently concealed from, her during their marriage and for the fraudulent purpose of depriving her of her marital rights in and to one-half of the property of her husband. The defendant in answer to the petition admitted the relation of the parties and the execution of the deed but denied all other allegations. The appellant does not seriously press the first point on the failure of delivery except as it relates to and supports the allegations of fraud in the second count. The trial court made findings in the form of an opinion and held there was a valid delivery and that the evidence of the plaintiff failed to show any fraud and after sustaining the demurrer to the evidence rendered judgment for defendant.
Appellant assigns errors which can be grouped in two classes: refusing to consider the failure to record the deed as evidence of fraud and excluding certain evidence offered by plaintiff; and second, sustaining the demurrer to the evidence and ruling that fraud of the plaintiff’s marital rights had not been shown.
Plaintiff and deceased had both been married before and both had grown-children. She owned her residence property in Wichita and about $6,700 cash in bank which she had inherited from her former husband and her father. He owned this quarter section of land in Harper county and cash in bank from sale of personal property and an earlier deposit amounting to about $6,400, besides $1,200 in government bonds kept at the bank. Three days before they were married on December 10, 1918, the deceased went to his banker, Mr. Banta, in Harper county, and told him his intention to marry and that he wanted to convey this land to his daughter Minnie, who lived out homle with him and who had no means of support unless he took care of her. The banker explained to him the necessity of making a delivery of the deed in order to make the transaction valid and binding, and after executing the deed he delivered it to the banker, who put 'it in an envelope with her name indorsed thereon and kept it for her among their papers of that kind and would not have returned it to the grantor or delivered it to anyone except the daughter, and did deliver it to her a few days before the death of her father, which occurred on October 18, 1928, and it was recorded October 5, 1928. After the marriage the husband left his farm in Harper county and lived with the plaintiff in her home in Wichita, where they lived together until his death almost ten years later. During this time he regularly received all the rent from the farm, paid the taxes thereon and withdrew from the Harper county bank all of his deposit therein, including the proceeds from the sale of the government bonds.
Plaintiff attempted to show, and did show, that she paid the taxes on her home property, helped purchase an automobile and loaned her husband $1,500, and offered to show that she gave and loaned to her husband during these ten years of married life many sums, but the court excluded most of it, and in ruling upon the objection thereto indicated that such evidence did not tend to show the conveyance to the daughter was in fraud of the marital rights of the plaintiff.
Appellant cites National Bank v. Jaffray, 41 Kan. 694, 21 Pac. 242; Wafer v. Harvey County Bank, 46 Kan. 597, 26 Pac. 1032; Cox v. Cox, 39 Kan. 121, 17 Pac. 847, and Belknap v. Sleeth, 77 Kan. 164, 93 Pac. 580, in support of her contention, but they all relate to fraud of creditors and hold in a general way that even among creditors the failure to record a deed or chattel mortgage promptly standing alone and disconnected with other suspicious circumstances is not sufficient evidence of fraud. In this case the action of a dependent daughter in receiving a deed, even if it might be a disproportionate share, could not be considered fraud on her part, and she alone was responsible for the delay in recording the deed. In the Wafer case, supra, it was not so much the failure to record the chattel mortgage as it was concealing the fact of its having been given when its holder was in confidential conferences with other creditors which the court emphasized in considering that fact as a circumstance showing fraud. In the last case above cited, a nonresident interested party refused to testify concerning his connection with a transaction alleged to be fraudulent, and his attitude and conduct were regarded as proper circumstances for consideration as to the existence of fraud.
The delivery of the deed by the owner to the banker for delivery to his daughter, as shown by the evidence, was unconditional and such as to part with the control thereof by him and to constitute a valid delivery under the authorities, regardless of when it may have been recorded. And as fraud must be proved and not presumed, it is mainly those surrounding circumstances that are peculiar, unusual or suspicious that are to be considered as tending to prove fraud. The failure to record the deed in this case and the loans and payments of money by the wife to the husband during their married life do not in this case establish or help to establish the fraud here alleged.
Was there error in sustaining the demurrer to the evidence, or was fraud of the marital rights of the plaintiff shown by the evidence? Unlike many cases cited by appellant, there is no evidence whatever here as to any oral or written antenuptial agreement or any promise or assurance on the part of the deceased made prior to the marriage. The evidence of a son of the plaintiff is that on the day of the marriage, after the ceremony, he had a conversation with the deceased, who said they were going to live in his mother’s house in town, and that she would have his farm as hers if anything happened to him. Nearly ten years later, and very shortly before the death of the husband, this same son had another conversation with him, the son relates, to the effect that the husband wanted this son of his wife to come and look after his mother and take care of her, that he was leaving her one-half of his personal property and half of his real estate. A young man was with the son when this last conversation took place and he corroborates it. A real-estate salesman testified that he talked with the deceased four years after the marriage about buying property in Rio Grande valley and interrogated him as to his ability to purchase and that he answered he owned a farm in Harper county. This is the substance of the evidence as to the fraud, and we concur with the trial court that fraud of the plaintiff’s marital rights was not shown and that the demurrer to the evidence was properly sustained.
The case of Butler v. Butler, 21 Kan. 521, is more nearly in line with the facts in this case than any other cited. There the court upheld the deed given to a minor daughter just before the marriage, although the correspondence prior to the marriage specifically mentioned the property as being owned by him. The case of Green v. Green, 34 Kan. 740, 10 Pac. 156, resulted the other way because of a definite promise and agreement as to the land and its proceeds as an inducement towards the making of the marriage contract. In the case of Ross v. Perkins, 93 Kan. 579, 144 Pac. 1004, deeds were given to two nieces who had been members of the family for many years, and the trial court held the deeds were in fraud of the new wife’s marital right to the extent of a one-half interest in the land, and the wife appealed, insisting it was error to not give her the entire interest. The judgment was affirmed, but observe the following sentence in the opinion on page 585:
“There may be grounds for appellees to complain of the decision setting aside the transfer as to one-half of the land and giving appellant a title to one-half of it, but they have filed no cross appeal and are not in a position to allege error.”
The case at bar entirely lacks anything approaching an ante-nuptial agreement or property inducement, and the conveyance was made to a daughter who was without means of support and to whom there existed a parental duty on the part of the father. He took with him into the marriage enterprise considerable cash and the entire rents and profits of the farm. The statements made to her son and a few others are not sufficient alone to show a fraud of marital rights.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages for alienation of affections.
Plaintiff was a lawyer residing in St. Louis, Mo. Defendants were Peter T. Cheuvront, a lumber dealer in Dover, Kan., and Garland James, a brother of plaintiff’s wife, who resided with his codefendant. Cheuvront was an elderly widower whose deceased wife had been an aunt of plaintiff’s wife.
Prior to her first marriage to plaintiff Mrs. Barry had been married twice — once to a man whose name may have been Lqganbill, as the woman had a daughter, Darlene Loganbill, aged 14 years when she gave a deposition in this lawsuit. Mrs. Barry’s second marriage venture was with a man named' Frew. Plaintiff acted as attorney for her when she obtained a divorce from Frew. That divorce was granted on October 18, 1928, and plaintiff married her the following day in Waterloo, 111. — concededly a lawful marriage under Missouri law.
This third marital venture for the woman met an early shipwreck when plaintiff obtained a divorce from her in June, 1929. But after a month’s celibacy hope triumphed once more over experience, and plaintiff and his ex-wife were remarried on July 12, 1929. This last marriage was no more successful or enduring than the preceding venture; and on December 13, 1929, Mrs. Barry and her daughter left plaintiff’s domicile in St. Louis. By telephone arrangement she met defendant Cheuvront at St. Charles, Mo., and accompanied him to Dover, where she and her daughter took up their abode for some time in Cheuvront’s home, in which her brother also resided.
Plaintiff’s petition alleged that following his last marriage on July 12, 1929, he and his wife lived harmoniously for a month or two, until defendant Cheuvront commenced a correspondence with her. The volume of this correspondence increased during the months of October and November and the early part of December, by which time defendant was writing to Mrs. Barry several letters each week. Plaintiff had never read any of these letters, but he alleged that in them defendant Cheuvront urged Mrs. Barry to quarrel with plaintiff, to make unreasonable demands on him, to leave him, and to cease to live with him as his wife.
“Said Grace E. Barry after the commencement of such correspondence, and as a result thereof, became discontented with her marriage to the plaintiff, and quarreled with him without provocation, and demanded of plaintiff that he furnish her funds to leave St. Louis and to join the defendants at Dover, Kan., at Kansas City, Mo., and in the state of California, and at other places.”
Plaintiff also alleged that Cheuvront and his codefendant, Garland James, repeatedly solicited Mrs. Barry to leave plaintiff and to join them in Dover, Kan.:
“. . . And on the 12th day of December, 1929, defendant Peter T. Cheuvront called the said Grace E. Barry on the long-distance telephone from Dover, Kan., and talked to her for nine minutes, urging her to leave plaintiff and come to Dover, Kan.; and directed that the cost of said call be charged to plaintiff, John W. Barry. Thereafter, and on the next day, December 13, 1929, and as a direct result of the solicitations of said defendant, the said Grace E. Barry did leave the plaintiff, and proceeded immediately to the home of defendant Peter T. Cheuvront in Dover, Kan., and defendants furnished and procured the transportation of said Grace E. Barry from the home of plaintiff in St. Louis, Mo., to their home in Dover, Kan.” ,
Plaintiff also alleged that defendants conspired and confederated together to conceal from plaintiff the whereabouts of Mrs. Barry, and persuaded her not to write to plaintiff and to refrain from disclosing to him her whereabouts. It was also alleged that plaintiff wrote to Cheuvront stating he had been informed that he was keeping Mrs. Barry in Dover, and plaintiff demanded that defendant should forthwith terminate her stay in defendant’s home to the end that she might return to plaintiff; that this letter was transmitted to Cheuvront by United States mail, but he ignored the letter and thereby refused to comply with plaintiff’s request. Plaintiff also alleged that—
“Between December 13, 1929, and the present time, plaintiff has written a number of letters to his wife, Grace E. Barry, in care of defendant Peter T. Cheuvront, at Dover, Kan., and the defendants herein have persuaded and induced the said Grace E. Barxy to x’eturn the said letters unopened to the plaintiff, and the said letters have been so returned marked ‘Refused’ and ‘Not here,’ both of which markings are in the handwriting of said Grace E. Barxy.”
It was also alleged that by solicitations and correspondence defendants had caused Mrs. Barry to lose her love and affection for plaintiff, and had enticed her away, and had interfered with the marital relation of plaintiff and his wife; that they had harbored her and prevented her by persuasion and otherwise from returning to plaintiff, and that defendants’ acts as above narrated were the procuring cause of the alienation of plaintiff’s wife’s affection for him, and that those acts were willful, malicious and done with intent to injure the plaintiff.
It was finally alleged that until the affections of his wife were alienated as aforesaid, plaintiff was a successful lawyer in St. Louis; but because of being deprived of his wife’s companionship and affection his nerves had become affected, and it had become impossible for him to concentrate his attention on business, to his loss and damage in the sum of $25,000, for which sum and for an additional like amount as punitive damages he prayed judgment against defendants.
Defendants’ answer was a general denial. On the issues thus made the cause was heard by the court. At the close of plaintiff’s evidence, which included some significant facts elicited in cross-examination of plaintiff and certain witnesses who testified in his behalf, the trial court sustained a demurrer to the evidence and entered judgment for defendants.
Plaintiff assigns error, contending that the evidence was sufficient to withstand a demurrer. Defendants, on the other hand, contend that no evidence was adduced to support the material allegations of plaintiff’s petition. Looking into these allegations in detail, plaintiff alleged that he and his wife lived harmoniously together until defendants Cheuvront and James began to meddle in their affairs. James was a brother of Mrs. Barry, and it is now conceded in this appeal that the allegations of his wrongdoing were not supported by evidence. But there was apparently no evidence to show that plaintiff and his wife lived together more harmoniously after their second marriage than they did during their first marriage; and it appears that their marital discord during the periods of both their first and second marriages was occasioned because plaintiff’s mother lived in their home and Mrs. Barry objected to that arrangement. On cross-examination plaintiff testified:
“Q. I will ask you if Mrs. Barry didn’t say, on several different occasions, that she couldn’t live there on account of the way she [plaintiff’s mother] was treating her? A. To quote her words, she said, ‘You will put her or me out.’ She said this more than once.
“Q. Was it during your first marriage or second marriage that she said your mother would have to leave? A. She said that both times.”
Plaintiff and his wife had other troubles.
“Q. Do you remember the day before she left, of her playing the radio, and you went in and struck her because she wasn’t playing the tune you wanted her to? A. I was ill the day before.
“Q. You were not unconscious? A. No, sir.
“Q. You knew what you were doing? A. Yes, sir.”
The record fails to show the existence of the harmonious relations of husband and wife alleged in plaintiff’s petition, and the excerpts just quoted go far to establish the contrary.
Touching the allegations that the letters from Cheuvront to Mrs. Barry urged her to quarrel with her husband and to leave him, it must be said that the record does not contain any evidence in support of those allegations. Even the allegation that Cheuvront called Mrs. Barry on the long-distance telephone the day before she left plaintiff’s home was not quite in accord with the facts. Cheuvront did not call Mrs. Barry. On the contrary, she put in the call for her brother, not for Cheuvront. She wanted her brother to come to St. Louis for her. He had no automobile so it was arranged that Cheuvront should come for her. Both parties seem to attach importance to this incident and particularly to the opening statement of counsel for appellee. Each litigant prints a part of it. Put together it reads:
“[Mrs. Barry’s] parents at Versailles had no money. She had no money except the fifty cents she had borrowed, and she had no money to get to Versailles, Mo., and she called up her brother at Dover, and told him that her husband had beaten her and had driven her away from home, and that she was hungry, had nothing to eat and had no money, and asked her brother to come to St. Louis and get her. Her brother had no car, and she said, ‘I wish you would call Uncle Pete’s attention to this, and have him call me and reverse the call. I want to talk to him.’ ”
"Mr. Cheuvront was away at the time, and when he returned home Mrs. Barry’s brother told Mr. Cheuvront about what had occurred, and Mr. Cheuvront did call her up by telephone and she told Mr. Cheuvront that she had been driven away from home and had no place to go and nothing to eat. Mr. Cheuvront went and got her and brought her back.”
The record contains no suggestion of immoral relations between Cheuvront and Mrs. Barry, and in the oral argument counsel for plaintiff assured us that there was no claim of anything of that sort in this lawsuit. Cheuvront’s interest in Mrs. Barry was apparently the natural one arising from the fact that his wife, but lately deceased, was Mrs. Barry’s aunt. To Mrs. Barry and her daughter Cheuvront bore the familiar name of “Uncle Pete.”
Touching plaintiff’s complaint that neither of the defendants answered his letters inquiring about his wife, and demanding that they cease to harbor her, and the allegation in plaintiff’s petition that they persuaded her not to return to plaintiff, it will have to be said that defendants owed plaintiff no duty to answer his letters — at least no duty the breach of which would render them liable to him in damages. Nor was it actionable that defendants declined to turn her out of the Dover home — the home of her own brother and of her uncle by marriage. And, we must repeat, there was not a scintilla of evidence to prove the allegation that either of defendants persuaded Mrs. Barry not to return to plaintiff.
Defendants’ alleged concealment of the whereabouts of plaintiff’s wife takes the odd form of a paralogism, as it is alleged that plaintiff’s letters inquiring about her whereabouts were returned with the words “Refused” and “Not here” on the envelopes in Mrs. Barry’s own handwriting. Of course, plaintiff was familiar with Mrs. Barry’s handwriting, so the 'allegation that her whereabouts were concealed from him likewise failed for want of proof and because of its disproof.
It will thus be seen that on critical analysis every material allegation of plaintiff’s petition lacked substantial support in the testimony.
Plaintiff complains because of the admission in evidence of a copy of a verified petition filed in St. Louis by Mrs. Barry against this plaintiff for a divorce, in which she charged him with various delinquencies — striking her on numerous occasions, ordering her out of his house, manifesting ungovernable temper, fault finding in respect to her cooking and the way she took care of his mother, humiliating and cursing her before other people, stopping the supply of groceries for the household, permitting his mother to accuse her of stealing, permitting his mother to dictate the management of the house, and telling her to get out.
Plaintiff objected vigorously to the admission of this verified petition in evidence, but the trial court let it in as evidentiary on the issue of the alleged harmonious relations of plaintiff and wife. On that issue it was competent. Counsel for appellant urge that this petition was filed several months after the incidents on which plaintiff’s cause of action was founded. However, the matters alleged in Mrs. Barry’s divorce petition had a very material bearing on one of the issues involved in this action — the alleged harmonious relations of plaintiff and wife, and whether that relationship was broken up by the wrongdoing of defendants or whether it was caused by the delinquencies of the plaintiff. In Roesner v. Darrah, 65 Kan. 599, 70 Pac. 597, it was said:
“In an action by a husband for damages for alienating the affections of his wife and for her seduction, it is error to reject evidence of the wife’s declarations made to third'persons prior to the alleged seduction, tending to disclose the state of her, feelings towards her husband and towards the alleged seducer.” (Syl. 112.)
If there had been a verdict and judgment against defendant in this ease, the exclusion of the wife’s petition for a divorce would have presented a serious legal question. Its admission, of course, would have helped the defendant and might have prevented a verdict against him. But here where a demurrer was sustained to plaintiff’s evidence, and the only purpose of admitting it was the needless one of its possible contribution to disprove the allegations of plaintiff’s petition, it could not possibly serve as a basis of prejudicial error.
As we regard this appeal, no questions of law are involved. The sole question was whether plaintiff adduced sufficient evidence to withstand a demurrer, and that question we are constrained to answer in the negative. Consequently the judgment must be affirmed. It is so ordered.
Harvey, J., not sitting. | [
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The opinion of the court was delivered by
Hutchison, J.:
The questions here involved are variance or departure of the proof from the pleadings and waiver as applied to both parties. The appeal is by the defendant fire insurance company from a judgment rendered against it upon the findings made by the trial court in an action upon one of its policies.
The errors assigned are concerning the refusal of the court to strike out certain testimony tending to show an agreement to pay the loss because such agreement had not been specifically pleaded; the overruling of defendant’s demurrer to plaintiff’s evidence; the making of findings and rendering judgment not supported by the evidence and overruling the motion for a new trial.
The action was commenced in the city court of the city of Pitts-burg by the filing of a bill of particulars with the usual allegations as to the issuance .of the policy, the loss sustained and due notice and proof of loss. It also alleged knowledge acquired by the agents of the defendant of the transfer of title to the plaintiff and consent by them to the assignment and delivery of the policy of insurance to the plaintiff, and that upon demand for payment defendant by its agent refused because it had never given its consent to said transfer or assignment. On appeal from the judgment in the city court to the district court of Crawford county, an answer was filed by defendant denying specially the giving of consent to the assignment of the policy to the plaintiff and asserting that by reason of the provisions of the policy in that regard it thereby became null and void, and no obligation existed thereunder.
On the trial the plaintiff was permitted to testify, without objection as far as the record before this court shows, as to a promise or agreement made by Mr. Baker, an adjuster of the defendant company, to pay and settle this loss when it could confer with the three other companies similarly concerned. This conversation is said to have occurred about six weeks after the loss when Baker called plaintiff to the office of the company’s agents in Pittsburg. The son of the plaintiff and others testify as to this extended interview, but not as to the agreement to pay. At the close of the testimony of plaintiff the defendant moved to strike out of the plaintiff’s testimony all of that concerning an agreement to pay the loss, because of its being a departure from the pleadings and cause of action. The court overruled this motion and appellant assigns error.
It must be borne in mind that the original pleading in this case was a bill of particulars. This is the only pleading in the case on the part of the plaintiff. Our statute on variance (R. S. 60-753) is exceedingly liberal in its terms, providing that no variance between the allegations and the proof is to be deemed material unless it has actually misled the adverse party to his prejudice. Appellant regards the agreement of the defendant to pay, as mentioned in plaintiff’s testimony, as a new and different cause of action. Most of the testimony of the plaintiff seemed to be directed to what might properly be called waivers. This agreement related by him is in effect a waiver of the provision requiring the consent of the company to the assignment of the policy to plaintiff inasmuch as the evidence apparently shows the agents, the company and the adjuster all knew of the failure to obtain the written consent to the assignment before the agreement to pay was made by the adjuster. And on the other hand, there was a written nonwaiver agreement presented to the plaintiff by defendant during his cross-examination on which he recognized his own signature, but had no recollection of seeing it before. This was introduced as a part of his testimony. All these matters were apparently regarded as being in issue and were therefore fully developed during the trial — one feature of it tending to show a waiver and the other tending to show consent to a non-waiver. (Edwards v. Sourbeer, 73 Kan. 224, 84 Pac. 1033.) No •prejudice has been shown or is apparent, and we think the variance was not material.
“While waiver should have been specifically pleaded instead of alleging, as the petition did, that the policy was in full force at the death of the insured, still as no motion was made for more specific allegations, no showing of injury or application for further time, and the cause was fully tried, no materially prejudicial error was committed by permitting the plaintiff to introduce testimony to show waiver.” (Forney v. Insurance Co., 87 Kan. 397, syl. ¶ 2, 124 Pac. 406.)
“A variance between the pleadings and the proof respecting waiver of the compromise agreement held not to be prejudicial.” (Palin v. Insurance Co., 92 Kan. 401, syl. U 4, 140 Pac. 886. See, also, Allen v. Gheer, 98 Kan. 228, 168 Pac. 17; Crandon v. Insurance Co., 99 Kan. 785, 163 Pac. 458; and Ludlum v. Insurance Co., 113 Kan. 333, 214 Pac. 619.)
Appellant insists that its demurrer to the evidence of plaintiff should have been sustained and the overruling of it was error because there was no consent to the assignment of the policy and there was no waiver of that provision of the policy. The substance of the pertinent findings of fact is as follows:
5. That the agents of the defendant at Pittsburg had knowledge of conveyance to plaintiff and by telephone furnished the number of the insurance policy to be used in connection with the transfer.
11. That no nonwaiver agreement was signed by plaintiff at the agents’ office.
14. That at the office of Ray B. Allen the plaintiff did not knowingly sign the nonwaiver agreement introduced in evidence by de fendant, but in obtaining plaintiff’s signature thereto the defendant’s adjuster, for the purpose of concealing the same, intentionally caused or permitted said nonwaiver agreement to have been intermingled with and partly covered up by the various sheets of typewritten matter written by Ray B. Allen, and thereupon plaintiff, at the request of said adjuster, unconsciously and unintentionally signed said nonwaiver agreement believing he was signing the matter reduced to typewriting by Ray B. Allen.
16. That the nonwaiver agreement was not signed at the office of stenographer Allen until after the discussion between plaintiff and his son and the adjuster, Mr. Baker.
18. That at the conclusion of the conferences and discussion which took place at the offices of Coulter & Ralston and Ray B. Allen, respectively, between defendant’s adjuster, Baker, and plaintiff and the latter’s son, the said Baker admitted defendant’s liability for its pro rata share of plaintiff’s loss and promised plaintiff that the defendant would get in touch with the other insurance carriers and would arrange to pay to plaintiff its said share of said loss.
19. That at the time the defendant, through its adjuster, Baker, promised to arrange to pay to plaintiff its share of said loss, the said Baker had full knowledge of all the facts incident to the fire loss sued upon, the amount of insurance carried, and that the defendant had not, in writing, consented to the assignment to plaintiff of the insurance policy sued on herein.
20. That at the time defendant caused its adjuster, Mr. Baker, to confer with plaintiff concerning the fire loss, both defendant and Baker knew the facts as to whether the company had consented to the assignment and with such knowledge conferred with plaintiff relative to adjusting the loss.
Appellant emphasizes the fact that there was no actual written consent shown in the evidence and consistently argues, by ignoring the evidence of waiver which it moved to strike out, that the demurrer to the evidence should have been sustained. But with the waiver evidence of the plaintiff still in the case there was sufficient to show a waiver of the lack of formal consent to the assignment of the policy. While evidence as to the agreement to pay was given only by the plaintiff, yet evidence as to knowledge of the transfer and assignment and the lack of written consent was given by two or more other witnesses.
Appellant argues that the judgment was based by the trial court upon findings 18 and 19, or a different cause of action than that stated in the bill of particulars. We are unable to follow this reasoning to the same conclusion. The judgment is usually based upon all the findings and the court’s third conclusion of law would so indicate:
“3. That the defendant waived its right to assert a forfeiture of the policy of insurance sued on herein by the plaintiff, on the grounds asserted and alleged by said defendant in its answer.”
It is urged that there is no evidence to sustain the finding that the nonwaiver agreement was not signed in the office of the agent. The evidence of Mr. Coulter, one of the agents of the company, was quite strong as to no such paper having been signed in his office, and the testimony of the plaintiff and his son indicate only one time and place of signing papers that day, which was in Mr. Allen’s office.
Criticism is made of finding 14, that plaintiff signed the non-waiver agreement unconsciously and unintentionally by the act and procurement of the adjuster. If the evidence of the plaintiff and his son is to be credited, such finding is fully supported. If one preparing several papers to be signed by another party tells him they are all concerning one matter, and the party signs all of them in a pile on the lines indicated, and later one of the papers signed by him relates to another and different matter not mentioned or considered, such evidence, if believed, would support such a finding.
The case of Crandon v. Insurance Co., supra, is cited showing the risk in resting waivers of substantial provisions of insurance policies upon “shadowy contentions.” The shadowy feature of such contentions is usually observed in the peculiar surrounding, as in the case cited, but where there is a direct conflict in the testimony concerning ordinary business transactions so that either statement might be reasonable, as they were in this case, the above appellation would not be appropriate.
We think the several findings of the trial court were supported by some evidence and there was no error in overruling the motion for a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action to recover inheritance taxes paid under protest. The trial court sustained a demurrer to plaintiffs’ petition and they have appealed.
The facts are not in controversy and are so alleged that the action may be disposed of on the demurrer. Briefly, they are as follows: Naham I. Dalton and his wife, Louise C. Dalton, owned, individually and collectively, a substantial amount of property. They had no living issue. They entered into a contract between themselves under the terms of which it was agreed that no disposition of their property should be made while both were living, but that the survivor of them should make a will leaving all of the property, one-half to next of kin of Naham I. Dalton and the other one-half to the next of kin of Louise C. Dalton. Naham I. Dalton survived his wife. At his death he left a will leaving all the property to his next of kin. The next of kin of Louise C. Dalton brought an action against the executor of the will, and the beneficiaries therein named, -contending that by virtue of the contract above mentioned they were entitled to an undivided one-half of all the property owned by Naham I. Dalton at the time of his death. Issues were joined, and upon a trial the court found for plaintiffs and decreed that they were the owners of one-half of the property and that they recover the same from the defendants, subject to administration of the estate in the probate court. No appeal was taken from that judgment. It was duly certified to the probate court, where administration was being had on the estate of Naham I. Dalton, and that court directed the executor to make distribution of the estate in accordance with the judgment so certified. The report of this distribution was made to the inheritance tax commission, which made an order assessing an inheritance tax against the next of kin of Louise C. Dalton on the amount of money they received by reason of this distribution. They paid the tax under protest and later brought this action to recover the amount of the tax so paid.
In this action plaintiffs contend that they acquired the property referred to under and by virtue of the contract entered into between Naham I. Dalton and Louise C. Dalton prior to their death, and that the property acquired is not subject to an inheritance tax. The trial court held that the former action by plaintiffs, as a result of which they acquired the property, “was in the nature of an action for specific performance; that is, the plaintiffs there were claiming the right they would have had if Dalton had made a will. . . . While no will was made, the plaintiffs in this case take practically on the theory that what was agreed to be done was in fact done. The devisees under Dalton’s will were, in effect, charged as trustees.” (Citing Matter of Kidd, 188 N. Y. 274.) The trial court further held:
“In addition the right or grant given by Dalton to his wife was made in contemplation of death, and was intended to take effect in enjoyment after his death, within the meaning of section 79-1501, R. S. 1923.”
Judgment was rendered for defendants.
The portion of the statute (R. S. 79-1501) necessary to be considered reads as follows:
“All property, . . . which shall pass by will or by the laws regulating intestate succession, or by deed, grant or gift made in contemplation of death, or made or intended to take effect in possession or enjoyment after the death of the grantor, to any person, absolutely or in trust, except in case of a bona fide purchase for full consideration in money or money’s worth; . . . shall be taxed as herein provided.”
Generally speaking, the design of the statute is that the tax shall be levied upon all property which passes to one person by reason of the death of another, unless there has been a bona fide purchase of the property for which there has been full payment in money or money’s worth. This last situation, of course, could arise only by contract (although the word “contract” is not used in the statute), and the person to whom the property passes is, in effect, a creditor, having become entitled to specific property, or to a specific sum of money, by reason of having paid for the same in money or money’s worth. The law does not contemplate that the creditor of an estate shall be taxed on the sum due him, hence the specific exception is made. It is not contended in this case that the plaintiffs had, by any contract which they made with Mr. or Mrs. Dalton, or both of them, paid in money, or money’s worth, the value of the undivided half interest in the property; hence it is clear they do not come within the exception named in the statute. They made no contract with anyone. The contract was one between Mr. and Mrs. Dalton. Between them there was a consideration for it. These plaintiffs paid no consideration. They were beneficiaries of the contract made between Mr. and Mrs. Dalton. That contract was that these plain tiffs were to receive a half interest in the property by a will. Mr. Dalton made a will. They did not seek to set that will aside. Had that been attempted and accomplished all the property would have passed under the- laws of descent to the next of kin of Mr. Dalton, and these plaintiffs would have received nothing. Stated in one way, their action was to modify the will, enlarge it, or reform it, so that it would conform to the contract made between Mr. and Mrs. Dalton for their benefit. Legally speaking, they charged the executor and devisees under the will as trustees for them. They succeeded in that action, and the half interest in the property, subject to its administration in probate court, passed to them, just as it would have passed had Mr. Dalton made the will as he had agreed with his wife he would make it. It is not inappropriate, therefore, to say that the property passed to them under the will of Mr. Dalton.
The precise question was before the court of appeals of New York in the case of Matter of Kidd, 188 N. Y. 274, 80 N. E. 924. In that case George W. Kidd died possessed of a substantial estate. He left a will by which a stepdaughter, Mrs. Dickinson, was a beneficiary to a limited extent. Mrs. Dickinson brought an action against the executor and beneficiaries under the will, alleging an antenuptial agreement between her mother and George W. Kidd whereby, in consideration of the marriage and the promise of her mother to turn over to him $40,000 to be used in his business, he agreed, in certain contingencies which existed, to make a will leaving all the property to her, and alleging the performance of the agreement by her mother and the failure of George W. Kidd to perform the same on his part. She recovered judgment as prayed. Thereafter she instituted a proceeding to have the estate declared exempt from tax, contending she had received the property by virtue of a contract. The court held against that contention. In the opinion it was said:
“The contract between the plaintiff’s mother and the deceased, . . . was to bequeath and devise to his stepdaughter by will, ... It was not a contract to convey, but a contract to make a will in her favor. ... It does not affect the question of the liability of the estate to taxation that in consequence of the failure of the testator to carry out his promise Mrs. Dickinson was obliged to resort to a court for relief. The method by which a court of equity . . . enforces an agreement of the character of the one before us, is well settled. It does not set aside the will, for in the present case such a judgment would do the plaintiff ... no good; she was neither heir at law nor next of kin; but it converts the devisees under the will, . . . into trustees for the beneficiary under the original agreement. . . . Therefore, the devolution of the property has, in fact, taken place under the will and such devolution is subject to the transfer tax.” (pp. 278, 279, 280.)
The question-was again before the court in Matter of Howell, 255 N. Y. 211, 174 N. E. 457. Changes in the statute and decisions in other New York cases were commented upon and the rule announced in Matter of Kidd, supra, was approved and followed. We regard the reasoning as sound, although a somewhat different view was taken by the prerogative court of New Jersey in In re Soden, 105 N. J. Eq. 595, 148 Atl. 12, relying upon some of the language used in Bente v. Bugbee, 103 N. J. L. 608, 137 Atl. 552. Unquestionably had the will been made in accordance with the contract between Naham I. Dalton and his wife, the property received by these plaintiffs would be subject to tax. (State v. Mollier, 96 Kan. 514, 152 Pac. 771; State, ex rel., v. Gerhards, 99 Kan. 462, 162 Pac. 1149; Krug v. Douglas County, 114 Neb. 517, 208 N. W. 665; State, ex rel., v. Probate Court, 168 Minn. 508, 210 N. W. 398; Lane v. Richardson, 234 Mass. 403, 126 N. E. 44.)
Appellants cite and rely on Nelson v. Schoonover, 89 Kan. 779, 784, 132 Pac. 1183. The case is not convincing. Indeed, it is scarcely persuasive to support appellants’ contention, for two reasons: (1) The opinion cited is one denying a motion for rehearing. The original opinion appeared in 89 Kan. 388, 131 Pac. 147. The question whether the property involved was subject to an inheritance tax was not an issue in the case, nor were parties before the court against whom a binding adjudication could have been made. The question was not briefed. What was said in the opinion was in answer to a suggestion of counsel relative to a question not before the court. For that reason what was said cannot be regarded as authoritative. (2) The pertinent language of the opinion is:
“The plaintiff does not derive title to the property by descent or will, but by contract. . . . The property was in a sense his before his wife’s death. At all events he had paid for it, . . .” (p. 784.)
The writer of the opinion obviously had in mind the provision of the statute (R. S. 79-1501), “except in case of a bona fide purchase for full consideration in money or money’s worth.” As previously pointed out herein, plaintiffs in this case had not paid full consideration in money or money’s worth for the property they received. Indeed, it is not contended they paid anything for it; hence the language referred to is not authority in support of their view. The language of the opinion not in harmony with the views expressed herein is disapproved.
As an additional reason for its judgment in this case the trial court held:
“The right or grant given by Dalton to his wife was made in contemplation of death and was intended to take effect in enjoyment after his death, within the meaning of our statute (R. S. 79-1501).”
Appellants complain of that holding and say “there was never any right or grant given by Dalton to his wife.” But this is hardly accurate. As between Dalton and his wife, under the contract between them, their grants and gifts were reciprocal. Either could have made a .will without the consent of the other disposing of one-half of his or her property as he or she saw fit. They did not desire to do so. Each wanted the survivor to own, possess and enjoy all the property as long as he or she lived, and granted or gave up the right to make a separate disposition of it for the agreement that the survivor would, by will, leave all of it, one-half to his next of kin and one-half to her next of kin. Each of them made such a grant or gift at the time the contract was made. We are not so much concerned here with whether this was a grant or gift “in contemplation of death,” or whether it was “made or intended to take effect in possession or enjoyment after the death.” These phrases are not identical. (Pinkerton and Millsaps on Inheritance and Estate Taxes, § 141.) The phrase, “in contemplation of death,” as used in statutes of this character, has been frequently defined by the courts. The definitions are not entirely uniform. In some states it has been defined by statute. (Schlesinger v. Wisconsin, 270 U. S. 230; United States v. Wells, 283 U. S. 102; Shwab v. Doyle, 269 Fed. 321; Flannery v. Willcuts, 25 F. 2d 951; Commissioner of Internal Revenue v. Nevin, 47 F. 2d 478; Estate of Pauson, 186 Cal. 358, 199 Pac. 331; The People v. Northern Trust Co., 324 Ill. 625, 155 N. E. 768; Worcester County Nat. Bank v. Commissioner of Corp., etc., [Mass.] 175 N. E. 726; In re Estate of Bronzynski, 116 Neb. 196, 216 N. W. 558; Kunhardt v. Bugbee, 3 N. J. Mis. R. 1107, 130 Atl. 660; Matter of Fieux, 241 N. Y. 277, 149 N. E. 867; In re Thompson’s Estate, 72 Utah 17, 269 Pac. 103; In re Gaudette’s Estate, [Wash.] 5 P. 2d 503; State v. Pabst, 139 Wis. 561, 121 N. W. 35; and cases collected in the annotation 49 A. L. R. 864.)
We are not concerned in this case with its specific definition, and shall not undertake to formulate one. It is clear that plaintiffs in this case were not to come into “possession or enjoyment” of the property here in question until after the death of both Mr. and Mrs. Dalton. If the phrase “in contemplation of death,” as used in our statute, does not cover the situation, it is clear that the other phrase does do so. The ruling of the trial court on this branch of the case is sound.
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The opinion of the court was delivered by
Burch, J.:
The action was one to establish plaintiff’s rights as a shareholder in the Bankers Mortgage Company. Directors of the company were made parties defendant as conspirators in excluding plaintiff from the benefits of share ownership. A demurrer to the petition was overruled, and defendants appeal.
Christopher Beneke owned fifty shares of the stock of the company. He complained that representations concerning dividends made to him when he purchased the shares were not being fulfilled. The vice president and the treasurer of the company visited Beneke, and tried to obtain the shares from him by offers of trade. One offer was of Montgomery Ward & Co. shares, which the officers said belonged to a friend of theirs. Beneke refused to trade. Eight days later a woman appeared who represented herself to be Gladys Smith. She said her brother had some Montgomery Ward & Co. shares, and she induced Beneke to trade his shares for Montgomery Ward & Co. preferred stock. Beneke was a feeble old man, and the receipt she gave him was simply for Montgomery Ward & Co. stock. Later she sent him Montgomery Ward & Co. common stock, by mail. This stock was subsequently retired, and the proceeds have been held for Gladys Smith. Christopher Beneke promptly repudiated the transaction with Gladys Smith, and notified the Bankers Mortgage Company not to make any transfer of his shares on the books of the company. The shares have never been presented for transfer, and have never been transferred on the books of the company.
The fraud was committed in 1921. Christopher Beneke died in 1925. Plaintiff is Christopher Beneke’s son, and legatee under Christopher Beneke’s will. Christopher Beneke-was unable in his lifetime to identify Gladys Smith or to discover her whereabouts, and plaintiff has never been able to learn who she is or where she lives or where she -may be found. In 1928 plaintiff demanded that the company issue to him a certificate for the shares, and transfer them to him on the books of the company. Action was commenced in 1929. The demurrer was overruled in August, 1931.
The foregoing facts are gleaned from the petition. The petition further alleged that the individual defendants own a majority of the shares of the corporation, constitute the board of directors-of the corporation, and are in complete management and control of its affairs; that they know who Gladys Smith is, and where she may be found; that they knew all about Gladys Smith’s fraudulent transaction with Christopher Beneke; that the fraud was committed with the acquiescence and consent of the directors and managers of the company, to get rid of Christopher Beneke as a shareholder for a sum less than the value of his shares; and that they have conspired to deprive plaintiff of his rights as a shareholder.
Defendants present seven reasons why plaintiff may not prevail, and support their contentions by pages and pages of printed and typewritten briefs. Cases are cited relating to what the conduct of a normal corporation should be when it is asked to issue a substitute share- certificate without presentation of the original; but no case is relied on by defendants in which the corporation in effect made common cause with a fraudulent transferee.
During his lifetime Christopher Beneke was the registered owner of the shares, and they still stand in his name on the books of the company. Plaintiff is his successor in interest, and is the legal owner of the shares. The corporation was bound to act in good faith toward him and, with safety to itself, was bound to aid him in protecting his interest. The petition discloses, however, that the attitude of the directors and managers of the 'company is one of antagonism toward a shareholder who was defrauded with their knowledge and assent, to further their ends. Incidentally, the com pany itself is benefited by retention and by lapse of declared dividends.. The company could have protected the defrauded shareholder and itself. He was helpless for lack of information which the company, through its directors and managers, possessed. It is true, as defendants say, mere conspiracy is not actionable. Harmful consequence of conduct pursuant to conspiracy is actionable. But silence and inaction in aid of fraud are conduct, as much as action and declaration to circumvent fraud are conduct. The fraud on the shareholder is admitted. There is no innocent holder of the original certificate. The company, in all fairness and good faith, owes it to the shareholder to do what it can to assist and to protect him, and collusion of the company’s directors and managers to oppress the stockholder and keep him remediless, in effect makes them and the company parties to the fraud.
Defendants contend the action is one for rescission of the exchange of shares between Christopher'Beneke and Gladys Smith. The petition affords no basis for this contention, but the contention is made the basis of a valiant defense of Gladys Smith, if the action were one against her for rescission on the ground of fraud. The petition was carefully drawn so it would not disclose on its face that relief was barred by the statute of limitations. Other contentions of defendants need not be discussed.
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The opinion of the court was delivered by
Smith, J.:
This was an action to collect damages for an injury alleged to have been suffered on account of a defective state highway. Judgment was for plaintiff. Defendant appeals.
The injury occurred on highway 36 some miles east of Norton. The highway commission was putting in a bridge on that road. To do this an excavation had been made across the road. This excavation was about six feet deep. The point where the bridge was being constructed is about a half mile east of what will be spoken of as the “Rosborough corner,” where a country road crosses highway 36. For a time prior to the injury highway 36 had been closed to traffic from Norton east, but for somé days prior to the night in question highway 36 had been open from Norton east to the Rosborough corner, where it was closed.
On the night in question appellee, riding as a passenger in an automobile, left Norton going east about 9:30 p. m. The car did not go east out of Norton on highway 36, as it could have done, but instead took a road which had been a detour during the time that highway 36 had been closed between Norton and the Rosborough corner. This road led to the Rosborough corner from the south. The way it was expected that traffic would go was to reach the Rosborough corner on highway 36 and thus go around the bridge where the injury in question occurred. For traffic that approached the corner from the south on the country road it was expected that it would either turn west on highway 36 and go toward- Norton or go on north across highway 36 and continue on the country road. Since the car in which appellee was riding was east bound it should have continued across highway 36 on the country road and eventually reached highway 36 again on the other side of the bridge in question. Instead of this, however, it turned east on highway 36 at the Rosborough comer and proceeded east on that road about half a mile when it ran into the bridge, with the result that appellee was injured.
In order that the case may be understood we will notice the situation at the corner with reference to signs. As the traveler approached the corner from the west there was, about 300 feet from the corner, a standard “turn sign” sixteen inches in diameter and with the word “turn” on it in letters four inches high, and an arrow pointing to the north at a point 200 feet west of the corner, and a “railroad crossing” sign fifteen inches in diameter there. It should be noted that the railroad ran almost parallel with highway 36 here and just a little to the north. Between the railroad crossing sign and the corner was a standard with a “U. S. 36” sign, a “Kansas 22” sign and an arrow pointing to the north. About three or four feet east of the intersection a large sign had been erected by the company which was constructing the bridge. This sign was painted white, was three to four feet wide, two feet high and had on it the words “Danger ahead” across the top, a black stripe across the center, and the words “Road closed” across the lower' part. The letters of these words were painted in red and were four inches in height. This sign was standing approximately in the center of the highway from north to south. The sign was put up with a two-by-six center post, which was about five feet in height, and the post was set in the ground to a depth of about one foot. The sign was braced on each side and in the back by three two-by-six boards, six feet long, which were driven in the ground a short distance.
At night a light was kept in place at the base of and in front of the above-described warning sign. It was what is called a McClosky bombshell torch, about eight inches in diameter. It was set upon a mound of earth. The color of the flame of this torch was a reddish-yellow.
On the country road upon which appellee was traveling just before she turned east on highway 36 there was a “U. S. 36” and a “Kansas 22” sign with an arrow pointing straight ahead. This sign was located eighteen or twenty feet north of highway 36 on the right-hand side of the road.
The statute under which the action was brought is R. S. 1931 Supp. 68-419, and is as follows:
“Any person who shall without contributing negligence on his part sustain damage by reason of . . . any defect in a state highway . . . may recover such damages from the state of Kansas.”
The case was tried on the theory that when the road was made impassable and put in a dangerous condition on account of the construction work it became defective. In fact, in answer to a special question as to what constituted the defect in the highway the jury answered simply “Under construction.” This is not the law. If it were, then roads could not be constructed at all in Kansas. It would be more nearly correct to say that while a road is under construction in the manner that this one was, as far as the traveling public is concerned, there is no road there at all either defective or not defective.
On the night when the injury occurred the road stopped at the Rosborough corner,.much the same as though it had never been laid out beyond that point.
The case of Story v. Brown County, 116 Kan. 300, 226 Pac. 772, was one where a new bridge was being constructed and a temporary bridge had been erected. A traveler was injured by running off the temporary bridge. The jury found that the proximate cause of the injury was “insufficient warning.” In dealing with the question of what constituted the defect this court said:
“The defendant suggests that the statutory liability of the county is limited to injuries by reason of a ‘defective bridge, culvert or highway’ (R. S. 68-301); that when the statute cited was enacted no law required lights to be maintained on bridges or highways or any place, although one has since been passed making it the duty of the county in some circumstances to cause red lights to be used at night to mark detours on account of road repairs (R. S. 68-121); and that it was not the legislative purpose to extend the scope of the county’s liability. Where the subsequent statute imposes upon the county a new duty with the purpose of making highways safer, we regard the omission of that duty as creating a defect in the highway within the meaning of the act establishing the county’s liability. However, the present judgment is not based upon the omission of the statutory duty to provide lights, but upon the county’s permitting the highway to become defective through a failure to adopt some sufficient method of giving warning of dangers due to alterations which were in progress — of conditions making a detour necessary.” (p. 302.)
To the same effect is Rosebaugh v. Allen County Comm’rs, 120 Kan. 266, 243 Pac. 277. These cases establish the rule in Kansas that in cases of the type under consideration the condition of the highway on account of the construction work going on, together with the absence of sufficient warnings and barricades, constitute the defect.
The question of the absence or presence of the signs and warnings, as heretofore detailed herein, was submitted to the jury. These questions and answers were as follows:
“11. And was either or both the warning sign down and the light out at the Rosborough intersection at the time plaintiff passed by? State whether one or both, or which. A. We don’t know.
“12. If you answer question number 11 in the affirmative, did any of the officers or employees of the Kansas state highway commission have notice or knowledge that either or both said warning signs was down and said light out at said time? A. Notified after accident.
“13. If you answer question number 12 in the affirmative, then state the name .of the officer or employee of the Kansas state highway commission who had such knowledge or notice. A. W. D. Scully. ■
“14. Do you find that on the night of the 3d day of July, 1929, a warning sign had been put up and a torch lighted at the Rosborough intersection prior to the accident? A. Yes. •
“15. If you answer both questions number 11 and number 14 in the affirmative, then state what was the cause of said warning sign being down, or said light out, at time plaintiff passed by, A. We don’t know.
“16. Do you find that on the nights immediately preceding July 3, 1929, it was the practice of the parties having charge of the construction of highway number 36 to maintain a warning sign and light at the Rosborough intersection? A. Yes.”
The answer of “We don’t know” to questions 11 and 15 has the same legal effect as though the questions were answered flatly in the negative. (Pioneer Trust Co. v. Combs, 123 Kan. 356, 255 Pac. 81.) Since this is true, then with the answer to the other questions we have the sign in the middle of the road with a light burning at the foot of it, and undisputed evidence of a sign just aheád of the car in which appellee was riding just before it turned east to the bridge, warning travelers that those who wished to travel on highway 36 should continue on north. We have concluded that these questions and answers amount to a positive finding that there were sufficient signs and warnings of the condition of the highway in question to warrant this court in saying as a matter of law that the highway was not defective. On account of what has been said; it is our conclusion that the motion for judgment on the special questions should have been sustained.
The judgment of the district court is reversed with directions to dismiss the case. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from the ruling of the trial court on the pleadings. Plaintiff, formerly the wife of Chester Rooney, a son of the defendant, Edward Rooney, from whom she was divorced in April, 1921, filed her petition in this case in four counts or causes of action. The first alleged that she had inherited from her parents, and owned in her own right, the southeast quarter of section 36, in township 31, range 33, in Seward county; that in December, 1918, at a time when her husband, Chester Rooney, was ill and in dire need of money, at his solicitation and that of the defendant, she assisted her husband in borrowing the sum of $1,000, as she understood, from the defendant, Edward Rooney; that she and her husband executed a note for that sum and secured the same by a mortgage upon her land, above described; that defendant and her hus band represented to plaintiff that it would be necessary, also, to execute a deed for the land above described by reason; of the fact that she had inherited it; that a deed reciting a consideration of $1,000 was executed to defendant; that in fact there was no consideration for the deed other than the loan for which the note and mortgage •were given; that at various times up until April, 1926, plaintiff had personally, or by her designated agent, asked defendant to state the amount due on said note or mortgage, or the amount for which he claimed to have a lien upon the property, but on each occasion he refused to do so; that in June, 1926, plaintiff commenced an action in the- district court of Seward county wherein the issues tendered, causes of action stated, and relief demanded, were substantially the same as in this action, which prior action failed otherwise than on its merits and was dismissed without prejudice in November, 1928. This action was brought within one year thereafter.
In her second cause of action plaintiff made the pertinent allegations of the first a part of it and alleged that she was the legal and equitable owner of the land and entitled to the immediate possession thereof, and that defendant wrongfully and unlawfully keeps her out of possession of the same.
For her third cause of action plaintiff made the material allegations of the first and second a part of it and alleged that in May, 1921, defendant fraudulently and by stealth entered upon the land in question and since then has wrongfully deprived plaintiff of the use, benefits and profits thereof, and that the same were of the reasonable value of $160 per year, amounting to $1,280.
For her fourth cause of action plaintiff alleged that she was the owner of the real property in controversy, that defendant claimed some right, title, or interest therein adverse to plaintiff, the nature and extent of which she specifically set out, so far as she knew them, and, among other things, alleged that she obtained a divorce from Chester Rooney in the district court of Ford county in April, 1921; that by the decree of the court in that action Chester Rooney was required to pay the lien upon the land in question by reason of the loan previously obtained, and to free the land from all encumbrances for the benefit of the plaintiff, and further alleged that she believes that has been done.
The prayer was for the possession of the real property, for the rental value in the sum of $1,280, that defendant be required to set up and establish any claim he has to the property, that any claim of title he has be adjudged to be void, and that plaintiff have judgment quieting her title.
Defendant answered by a general denial, admitted the marriage of plaintiff to Chester Rooney and her divorce from him, as alleged, and admitted the execution of the note for $1,000 and the mortgage and deed referred to in the petition, pleaded generally the statute of limitations, and specifically pleaded the two-year statute of limitations on account of fraud; pleaded that the former action brought in Seward county in June, 1926, did not toll the statutes for several reasons stated, and was a final adjudication.
In the seventh paragraph of the answer defendant alleged that he was the legal and equitable owner and in possession of the property in question; that plaintiff claimed some right, title or interest therein adverse to defendant, the exact nature of which is unknown to him, but which constitutes a cloud upon his title, and which he is entitled to have removed; and “that he is entitled to have plaintiff’s claims determined and adjudicated inferior to the rights of defendant, and his title and possession of said premises quieted as against the plaintiff.”
In the eighth paragraph defendant alleged that he was required to indorse the note for $1,000 and thereafter compelled to pay it, and that he was the owner of it; “that thereafter the indebtedness represented by said note was settled between plaintiff and defendant as hereinbefore set out,” but if the court should find the indebtedness was not so settled, then it should be adjudged a lien on the premises and foreclosed. In paragraph nine defendant makes the preceding paragraph a part thereof and alleges that in February, 1920, plaintiff and her then husband were indebted to the defendant in various sums, of which items aggregating $2,400 are stated, in addition to the $1,000 note and mortgage previously mentioned, and that “plaintiff and her husband orally proposed to defendant to sell him said lands in consideration of his releasing plaintiff and her husband from the payment of said indebtedness”; that the proposition was accepted, plaintiff and her husband were released from the indebtedness, defendant took possession of the land, and since has been in continuous, open, notorious, exclusive and adverse possession thereof; that no writings were executed by the parties at the time, but that their contract was fully performed; that the indebtedness has become barred by the statute of limitations, and plaintiff should not now be heard to deny or rescind that agreement. “In the alter native, if the court should find that the defendant is not the owner of said land, and that plaintiff is not barred nor estopped to claim it, then defendant should, by reason of the premises, be adjudged to have a lien on said lands to secure payment of said indebtedness, and his lien should be foreclosed.”
The tenth paragraph recites the taxes which defendant has paid on the land, and alleged, if plaintiff has any interest therein, that the taxes, with fifteen per cent interest since the dates of payment, should be foreclosed as a lien thereon. The prayer was that plaintiff take nothing by her petition, that defendant’s title and possession of the premises be quieted against plaintiff, and that he have judgment for costs; and, in the alternative, if defendant is not adjudged to be the owner of the land in fee, that he have judgment against the plaintiff for the $1,000, with ten per cent interest thereon since ■December, 1918, and a further lien for $2,400 for the items set up in paragraph nine, with interest; that he have a further lien for the taxes paid, with fifteen per cent interest, and the liens be foreclosed.
Plaintiff’s reply was a general denial.
The cause was heard by the court on defendant’s motion to try certain issues of law in advance of the facts. On this hearing the records of the court in the case brought in June, 1926, were offered in evidence. The court, having heard the evidence offered on the issues of law and the argument of counsel, found:
“That the questions of law submitted relate to the limitation of plaintiff’s action. The court finds as a matter of law that the plaintiff’s causes of action set out in paragraphs 1, 2 and 3 ... are barred . . . but that paragraph 4 of the petition sufficiently states a cause of action for quieting title in plaintiff generally and is not barred.
“Defendant is asking for affirmative relief and that his title be quieted, and when such relief is asked by the defendant where the plaintiff also asks that the title be quieted the question of possession becomes immaterial and the court has jurisdiction to settle and determine the rights of the parties in the real property which is the subject matter of the action, and the fact that the causes of action set out in the first causes of action of plaintiff’s petition are barred by the statute of limitations does not prevent plaintiff from setting up the facts therein alleged and her claim of fraud as a defense to defendant’s action, and under said fourth cause of action and defendant’s answer the court has authority to settle and determine the legal and equitable rights of the parties in said land without regard to the possession thereof or any bar of the statute of limitations as against either party.”
Defendant has appealed from that part of the court’s order which holds plaintiff’s fourth cause of action is not barred. Plaintiff has filed a cross appeal from the holding of the court that her first, second and third causes of action are barred.
Neither party has any just reason to complain seriously of the findings and holdings of the trial court. It gives each of them full opportunity to try out this entire controversy, which obviously should be heard and determined.
Turning now to the specific rulings of the court. In her first cause of action plaintiff alleged that the deed was procured in December, 1918, by the false and fraudulent representations of defendant and her then husband, Chester Rooney. So- far as plaintiff’s case is predicated on that fraud, the two-year statute of limitations applies from the time she discovered the fraud. We understand her petition to allege that she discovered the fraud in March, 1926. The action she filed in June, 1926, did not ask to have this deed canceled because of the fraud now alleged, but asked to have the deed construed as a mortgage. That could have been done irrespective of the fraud now alleged if the facts warranted it; hence, the pendency of that action did not toll the running of the statute of limitations in so far as it pertained to the relief sought on the grounds of the fraud now alleged. The first cause of action in the present petition is predicated entirely, or substantially so, upon the allegations of fraud, and the trial court correctly held it barred, for the reason that the fraud alleged could not be used as the basis of a cause of action. In addition to the fraud, however, the first cause of action did allege that the deed was without consideration, a matter that will be later noted.
Plaintiff’s second cause of action was in ejectment, to which the fifteen-year statute of limitations applied. It was, however, tied up with the allegations of fraud in the first cause of action, and, so far as they were necessary to sustain .this cause of action, it was barred. But if fraud which induced the execution of the deed was not essential to this cause of action it was not barred.
The third cause of action, for rents and profits, was also barred to the extent it was linked up with the allegations of fraud in the first cause of action.
The fourth cause of action was to quiet title generally. Generally speaking,'they are never barred {Cooper v. Rhea, 82 Kan. 109, 107 Pac. 799), although relief may be denied sometimes because of the bar of the statute of limitations. Plaintiff did not allege she was in possession of the property, hence did not bring herself within R. S. 60-1801 relating to quieting title. But that section does not prohibit one out of possession from bringing an equitable action to quiet title in which all of the facts, so far as known to plaintiff, are set up. (Grove v. Jennings, 46 Kan. 366, 26 Pac. 738; Westbrook v. Schmaus, 51 Kan. 558, 32 Pac. 892.) This is what plaintiff did; hence the court correctly ruled a cause of action to quiet title was stated.
At the time of the ruling the court had before it not only plaintiff’s petition, but defendant’s answer and the evidence which had been offered, being the files and records in the former case. The court correctly observed that defendant having sought to quiet title, the question of which of the parties was in possession was of but little consequence, so far as the jurisdiction of the court was concerned. {Reitz v. Cooper, 123 Kan. 755, 256 Pac. 813.) The court also correctly ruled that the pleadings of both parties, as a whole, presented a controversy which should be determined, and even plaintiff’s allegations of fraud might be used as a defense to defendant’s effort to quiet title. Since the petition in the former case did not state a cause of action, the bringing and dismissal of that action has little, if any, effect upon the rights of the parties in this action.
The petition alleges that there was no consideration for the- deed executed in December, 1918, and defendant’s answer does not allege any consideration for this deed except the parol agreement made in February, 1920, about fourteen months after the deed was executed. Taking the pleadings as they stand, it must be held that the deed was not intended as a conveyance of title at the time it was executed, but that its only purpose, whether fraudulently executed or not, was additional evidence of the loan made at that time and then evidenced by a note and mortgage.
The ruling of the court below is affirmed. | [
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The opinion of the court w;as delivered by
Harvey, J.:
This is an appeal from an award of damages for land taken in a condemnation proceeding by a drainage district. The appellee owned a stock farm of about 80 acres, of which about 15 acres was meadow, about 15 acres farm land, and the balance pasture. The farm land was in the Delaware river bottom and was ordinarily used for raising com, which appellee fed to the stock. The drainage district, to prevent floods, straightened the channel of the river by cutting a new channel across a part of plaintiff’s farm land. The area of the farm land taken by the new channel and its banks was 5.2 acres. By appropriate proceedings the drainage district condemned this land, and appraisers Were appointed. Appellee, not being satisfied with their award, appealed to the district court, where there was a trial to a jury. The jury allowed plaintiff at the rate of $200 per acre for the land actually taken, and also allowed $30 for growing wheat and $10 for trees destroyed. No complaint is made of these small items. The jury allowed no damages to the land of the appellee which was not taken, although evidence was offered with respect to such damages and the court instructed the jury thereon.
The drainage district has appealed and contends that the court erred in receiving evidence and instructing the jury ■ concerning damages to the land not taken by the ditch and its banks. Since the verdict of the jury, approved by the trial court, wh,s favorable to appellant on this question we are unable to see how appellant is harmed. Appellant argues that perhaps the jury allowed more for the land taken than it would have allowed if this evidence had not been received and instructions relating thereto had not been given. The record does not disclose a fair basis for this argument. Appellee testified that the land taken was worth $500 per acre, and a number of witnesses called on his behalf testified that the reasonable market value of the land taken was $300 per acre. Witnesses called on behalf of the drainage district placed the value of the land taken at $85 to $90 per acre. In view of this testimony, the finding of the jury that the land taken was worth $200 per acre cannot be said to be without substantial evidence to support it, nor that the finding of such value indicates prejudice. As to damages to the land not taken, the evidence w;as in conflict. Some witnesses testified that the farm as a whole was decreased in value by reason of the fact that practically a third of the only good farm land on the place had been taken. Other witnesses were of the view that the value of the remaining land was not affected by the taking of the 5.2 acres for the new channel of the river.
Perhaps there is some room for criticism of some 'of the evidence received on behalf of appellee with respect to the depreciation of the income which might be made from the farm as a whole because of the taking of the 5.2 acres, and of some of the language used in one of the court’s instructions, on the ground that the testimony received Was too remote and speculative. In view) of the fact that the appellant won on that point in the court below we do not deem the question properly before us.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
Jesse Callabresi was convicted of grand larceny of wheat, and appeals.
W. B. Shank lived about four miles northeast of New Cambria. He farmed land south of New Cambria on which there was a granary. Before harvest in 1930 he put in the east end of the granary twenty-five bushels of white wheat he had raised on the home place in 1929. When he harvested the wheat on 'the land south of New Cambria, he filled the bin, and put new wheat on top of the white wheat. He called the new wheat Blackhull wheat. When he finished harvesting he had about 200 bushels in the granary. About August 15 he took out a load of wheat for seed, and later he took out four or five bushels more, about sixty-two bushels in all. In taking out wheat he did not get down to the white wheat. On September 5 he found the granary practically empty. There was some wheat in the bin and on the ground.
The Shank home place was west of the Niles road. Defendant’s brother, Earl Callabresi, lived in Salina, but farmed land east of the Niles road, opposite Shank’s land. In the summer of 1930 defendant lived alone on his brother’s land. There was a granary on the place which contained wheat owned by Earl Callabresi, which was part of Earl Callabresi’s 1930 crop.
When Shank missed his wheat, he made an investigation, and learned defendant had sold three loads of wheat to a dealer at Niles whom neither defendant nor Earl Callabresi were in the habit of patronizing. One load was delivered on August 14, another on August 15, and another on August 30.
On September 7 the sheriff and deputy sheriff visited Earl Callabresi’s granary. It contained red wheat, and inside the door on top of red wheat was a pile of mixed wheat — white mixed with red. The sheriff took a sample of the mixed wheat, and then engaged defendant in conversation. The abstract of the sheriff’s testimony shows the following:
“I saw Jesse Callabresi, asked if he was getting ready to sow wheat, and he said he was. ... I asked Jesse Callabresi if he had any wheat sown last year, and he said he didn’t have. I asked him if Earl had any dark hard wheat that would do for seed. He said he had 300 bushels, and I pulled the sample out of my pocket and asked if that was the kind of wheat Earl had, and after hesitating quite a while, he said it was. I had obtained that sample out of the granary where this came from. I asked him where the white grains came from that were in there, as it was dark hard Turkey. He said that came out of the slew, that was water-killed over on Earl’s place, where the wheat was killed. I asked him if he had been selling any wheat, and he said he had not. I asked him where he got the load he sold at Niles on the 30th of August, and he said he got it out of Earl’s granary. He further said he did not raise any wheat.”
Defendant also told the sheriff he had no wheat. Earl Callabresi testified that all the wheat put in the granary belonged to him, and he did not sell any of it. Jesse Callabresi had no interest in the crop, and no interest in the wheat in the granary. On September 23 Earl missed some wheat from the granary, and afterwards found out Jesse had taken it. Earl did not tell Jesse he might take it, and Earl did not know Jesse had taken it until long after it was taken.
There was a trailer at the Callabresi place. The trailer box was larger than a wagon box, and would hold about 70 bushels of wheat. The quantity of wheat sold by defendant on August 14 was 67 bushels; on August 15, 68 bushels; and on August 30, 70 bushels and 20 pounds. Defendant testified this was wheat from Earl Callabresi’s granary. Of course it was, and if all the Shank wheat were then put in the Callabresi granary, it would lack 62 bushels of making up the deficiency. When the sheriff was at Callabresi’s place on September 7, there was a little wheat in the trailer. It was white wheat mixed with red, and the sheriff took a sample.
On September 13 defendant undertook to sell another load of wheat from Earl Callabresi’s granary. Defendant used the trailer, which was drawn by a Ford automobile. On the way to Niles the condenser of the Ford engine burned out. Defendant procured a tractor, and took the wheat back to the granary. He testified he scooped the wheat out of the granary and into the trailer through the granary door, and then out of the trailer and into the granary through the granary door.
The deputy sheriff went back to the granary on September 23. The appearance of the wheat in the granary was about the same as it was on September 7. Inside the door was white wheat mixed with red, and the deputy sheriff took a sample of it.
There was testimony that the wheat defendant sold on August 14 and 15 was ordinary red Turkey wheat, and there was testimony it was dark wheat. There was testimony the wheat he sold on August 30 was Turkey red wheat, and there was testimony it was not Turkey wheat, it was red wheat. It will be recalled the sheriff asked defendant if Earl Callabresi had any dark hard wheat, and defendant said Earl had 300 bushels like the sample the sheriff had taken from the granary, which the sheriff described as dark, hard Turkey. There was testimony the most of the wheat in Earl’s granary was dark wheat, and there was testimony it was red wheat. The samples taken from the granary and the trailer were introduced in evidence. There was no testimony the name Blackhull wheat was descriptive of the color of the thrashed grains. A sample of wheat remaining in the Shank granary was taken from the east end of the granary, where the white wheat had been placed. Another sample was taken from the ground in front of the Shank granary. Still another sample was taken from the west end of the granary, where there had been no white wheat. These samples were introduced in evidence. No witness testified specifically to any marked difference between a mixture of white and other grains from the Shank granary and a mixture from the Callabresi granary. The jury saw the wheat, and so far as this court knows, the mixtures were the same.
When trapped by the sheriff, defendant explained the presence of white wheat in the Callabresi granary by saying the white grains were from water-killed wheat, and defendant offered testimony that the white grains were red grains which were bleached. The director of the state seed laboratory at Manhattan and the state grain inspector at Salina testified the white grains were not bleached, they were white by nature, and they were a distinct variety, a class established by the United States department of agriculture under the grain standard act.
The white wheat was soft wheat. Earl Callabresi testified his red wheat was mixed with some soft wheat; some of the heads of Shank’s soft wheat blew across the road into Earl’s hard wheat. Shank testified his white wheat was raised half a mile or more from the Callabresi land, and there never was any white wheat near the Callabresi land.
Defendant contends the evidence was not sufficient to identify him with theft of the wheat, and in any event he could not be convicted of more than petty larceny, the twenty-five bushels of white wheat being worth less than $20.
The white grains of wheat in the Callabresi granary belonged to Shank, and had been stolen. In the Shank granary the white wheat was covered with and partly surrounded by other wheat, and could not be removed from the granary and carried away separately. All the wheat in the granary was stolen, and the white grains necessarily identified the mass with which they became mixed and of which they were a part. On September 7 a pile of Shank’s wheat was inside the Callabresi granary next to the door. On September 13 defendant exercised dominion over it. He shoveled it into a trailer, and started to market with it. Circumstances prevented him from selling it. He brought it back, and shoveled it into the granary. On September 23 the appearance of the wheat in the granary was the same as it was September 7.
The court gave an instruction relating to other larcenies. The only complaint made of the instruction is, there was no basis for it in the evidence. The taking and selling of each load of wheat belonging to Earl Callabresi constituted a larceny, and counsel for defendant does not favor the court with any authority to the contrary. Defendant’s explanation of why he needed the money was not in accord with an explanation he had given at a former, trial, and the explanation led to disclosure of the fact that he had changed the numbers on a stolen car, and had sold the car to his brother. Defendant testified that after selling his brother’s wheat, he still needed money.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is from an order of the trial court denying the plaintiff an injunction against the city of Wichita to restrain and enjoin it from enforcing and collecting a certain tax imposed upon the plaintiff by reason of his being engaged in the business of dispensing gasoline and other petroleum products through a service station in the city of Wichita. It involves the question of the validity of ordinance No. 11,062, passed by the city, which the trial court found and concluded to be not a license-tax ordinance but an occupation-tax ordinance and not to be illegal as claimed by the plaintiff.
When this action was instituted the city was collecting a tax from such station owners under a different ordinance, and this new ordinance, No. 11,062, was then passed, repealing the old one. The plaintiff then filed an amended and supplemental petition attacking the legality of the new ordinance. Issues were joined on the one question only of the validity of this ordinance, and certain facts were stipulated as to the amount of tax raised in the city under the old ordinance and estimated under the new and under other assess ments and also the amount of expenditures per year for different purposes, and from these facts the trial court made findings.
There is no serious contention that the ordinance is not an occupation-tax ordinance as the trial court found it to be. The apparent reason for the change after the commencement of this action was to have the ordinance more nearly one imposing an occupation tax instead of a license tax, so as to conform to the provisions of section 6 of chapter 287 of the Laws of 1929, the gasoline tax law, which is as follows:
“That the tax herein provided for sh,all be in lieu of all other taxes or license fees (except occupation taxes) upon the sale or use of said motor-vehicle fuels.”
The following is the title of the ordinance in question:
“An ordinance providing for the levying of an occupation tax upon the business or occupation of operating gasoline service or filling stations within the city of Wichita, providing penalties for the violation thereof, and repealing such part or parts of ordinance No. 10-812, directly in conflict herewith, and relating thereto.”
The body of the ordinance very regularly and consistently refers to the tax imposed as an occupation tax except in section 4, where it provides that a separate license shall be issued for each separate place of business, and it is suggested that this should be construed as being equivalent to a separate receipt. After a careful examination of the ordinance we have no difficulty in concluding with the trial court that it is an occupation-tax ordinance and not a license-tax ordinance.
The distinction between these two taxes was clearly made in the recent case of Duff v. Garden City, 122 Kan. 390, 251 Pac. 1091, as follows:
“A regulation charge is one exacted for a privilege or as a condition precedent to the carrying on of the business and is an exercise of the police power, while an occupation tax is imposed under the' power of taxation.” (p. 393.)
In that case the charge imposed by ordinance on the business of selling gasoline and oil was interpreted to be a license fee rather than an occupation tax and in conflict with the provisions of chapter 274 of the Laws of 1925, which was the same, as to exempting occupation tax alone as section 6 of chapter 287 of the Laws of 1929, above quoted. The same distinction is made between such taxes in section 1091 of 3 McQuillin on Municipal Corporations (2d ed.), a license tax being regulatory in purpose and effect while an occupation tax is for the purpose of raising revenue.
Appellant insists that the trial court was in error in holding the ordinance to be legal because a city of the first class has no authority to pass an occupation-tax ordinance and no power to impose an occupation tax, citing R. S. 13-902 and R. S. 13-910, the former section authorizing it to impose a general tax on the real, personal and mixed property in the city, and the latter authorizing the imposition of a license tax in the following language:
“The governing body may levy and collect a license tax upon and regulate any and all callings, trades, professions and occupations conducted, pursued, carried on or operated within the city limits of such city, including auctioneers, artists, agents . . . and any and all other business, trades, avocations or professions not above mentioned.”
Our attention is also directed to the different language used in a corresponding statute with reference to cities of the second and third class, which is as follows:
“That the governing body of any city of the second or third class shall have the power by ordinance to classify and license for purpose of regulation or revenue any and all occupations, businesses or professions pursued, conducted or carried on within its corporate limits which are not prohibited by law. . . .” (R. S. 1931, Supp. 12-1650.)
Appelle.e calls our attention to this statute before it was amended in 1925, being R. S. 14-415, which begins as follows:
“The city -council shall have exclusive authority to levy and collect a license tax on auctioneers, artists, agents . . .”
Neither this old statute nor the 1925 amendment thereof was especially construed in the Duff case, because that decision was based upon the conclusion that the ordinance provided for a license tax which was not permissible under the gasoline tax law, R. S. 1931 Supp. 79-3001 to 79-3012.
A noticeable distinction between the amended act applicable to cities of the second and third class and the act applicable to cities of the first class is with reference to the specific words used to express the purposes of the act. In the latter the governing body may levy and collect “a license tax upon and regulate.” In the former the governing body shall have the power to classify and “license for purpose of regulation or revenue.” For the smaller cities the tax may be imposed either for regulation or for revenue, while first-class cities may levy and collect a license tax and regulate, plainly excluding the alternative privilege and limiting the purpose to licensing and regulating.
The powers of municipal corporations with reference to taxation are generally construed strictly. (25 R. C. L. 1092.) The delegation of power for one purpose should not be construed to confer power for the other purpose.
“Ordinarily the power to tax for revenue will not be implied from a general grant of authority, as power ‘to regulate,’ or ‘to license and regulate.’ ” (3 Mc-Quillin on Municipal Corporations, 2d ed., 455.)
"The general rule that the powers of a municipal corporation are to be construed with strictness is peculiarly applicable to the case of taxes on occupations, and the authorities concur in holding that if it is not manifest- that there has been a purpose by the legislature to give authority for collecting a revenue by taxes on specific occupations, any exaction for that purpose will be illegal.” (1 Cooley on Taxation, 4th ed., 291.)
Appellee cites early Kansas decisions where this distinction was not strictly observed, as in the cases of In re Chipchase, Petitioner, 56 Kan. 357, 43 Pac. 264, and Fretwell v. City of Troy, 18 Kan. 271, where the words “license tax” were held to have been used in a broad sense by the legislature, and to decisions from other states placing a liberal construction upon the term “license and regulate,” but they can hardly be controlling here where our legislature from all appearances deliberately used the different words and term in different enactments, and in the gasoline-tax- law of 1929, since the plain and clear distinction as to these terms was pointed out in the Duff case, supra, two years before.
The decisions cited by appellee from California deserve special attention because they appear to completely sustain the contention of the appellee that power to license and regulate includes and authorizes the city to tax for purposes of revenue, but the progressive history of the situation in that state fully explains the basis of the recent decisions to that effect. It will be observed that the power and authority of a municipal corporation in that state is conveyed and expressed in the charter issued to it by the legislature instead of a general enactment. The following extract from the able opinion in the case of In re Nowak, 184 Cal. 701, gives a full and complete reason for the rulings on this subject in that jurisdiction:
“However persuasive we might find the reasoning of the eases and texts thus called to our attention, had the language in question never received interpretation in this state, we are now bound by previous decisions wherein a grant by the legislature of authority to ‘license and regulate’ has been held to include authority to impose a license tax for revenue only. . . . The question is, What, as a matter of fact, was the intent of the people and of the legislature when in amending the city charter in 1913, a time subsequent to the decisions above cited, they again incorporated in the charter the words ‘license and regulate’ in defining the power of the city over lawful businesses and occupations? Whether correct or incorrect as to reasoning, the decisions of this court had given to the words ‘license and regulate,’ as used in this connection, a precise and technical meaning. When, therefore, at a subsequent time, the people and the legislature undertook to use these exact words in this particular connection, the presumption is almost irresistible that they used them in the precise and technical sense which had been placed upon them by this court.” (p. 705.)
Appellee further urges the inclusion of an occupation tax within the taxing power of cities of the first class having a population of over 75,000, as Wichita has, by reason of the reference in R. S.13-2704 directing that the funds derived from certain sources, including “all occupation licenses,” be credited to the general fund of the city, inasmuch as the general fund under the arrangement as prescribed by R. S. 13-2701 does not include the expenses of the police department. But this inferential situation can hardly be said to supply the need of a direct authorization.
We conclude that cities of the first class do not have power and authority to pass an occupation-tax ordinance nor impose an occupation tax for the purpose of revenue, and that the defendant city should have been enjoined and restrained from collecting the same, and that the amount and proportion of the tax imposed cannot in this case affect the result.
The judgment is reversed and the cause is remanded with directions to render judgment for the plaintiff. | [
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The opinion of the court was delivered by
Harvey, J.:
Plaintiff recovered a judgment for damages for personal injuries sustained in an automobile casualty, and defendant has appealed.
The facts are substantially as follows: On the evening of September 26, 1930, plaintiff, with her ten-months-old babe, was riding ■in an Essex coupé with B; A. Kersting, her husband’s business associate, who owned and was driving the automobile, going from Lyons to her home at Hutchinson. They were traveling on a paved state highway. It was after dark and between 7:30 and 8 o’clock in the evening. When nearly four miles south of Lyons they met an automobile coming from the south. As they got almost even with that car plaintiff saw, directly ahead of them, what first looked like a shadow in the road,- but which proved to be defendant’s 'unlighted Ford truck, and called “Look out” to Kersting. He saw the object about the same time, applied his brakes and turned his car to the left. The approaching automobile interfered with his turning very far, and before he could stop, his automobile collided with the truck. The right front portion of his automobile collided with the left rear portion of the truck. Plaintiff was injured. She was taken to Lyons and given emergency treatment, and later went to Hutchinson, where she was treated. Her mouth was cut and her face badly scratched with broken glass, a hand and arm were bruised, her knees and shins were cut and bruised, one ankle was badly sprained, and perhaps a bone in it was fractured. It was necessary for her to employ help to look after the house and her baby. She also incurred obligations for medical attention. On December 8, which was as soon as she was able to do so, she went to the home of her parents in St. Louis, and while there had an X-ray made of her ankle.
It is not seriously contended that defendant was not negligent. He was driving his Ford truck without a light of any kind on it along one of the main traveled state highways after night. His conduct was in violation of the statute. (R. S. 1931 Supp. 8-122.) Even if there were no such statute his conduct showed a lack of due care. He lived near this highway, was familiar with it, and his being without lights on his truck was not an accident, for he had operated this truck for some time, perhaps for several years, without lights of any kind.
The principal defense was that plaintiff was guilty of contributory negligence. Under the facts in this case that was a jury question.
Appellant complains of the use in evidence before the jury of the X-ray picture taken at St. Louis. When plaintiff was on the witness stand she identified this picture, and it was marked as an exhibit, and she told the circumstances under jvhich it was taken — that she went to the office of the X-ray expert at St. Louis, whose business was to do X-ray work for physicians, that he took the X-ray photograph and developed it while she was there and gave it to her, and she brought it to her home in Hutchinson. Plaintiff offered it in evidence. Defendant objected to it, and the court at the time reserved its ruling and later sustained the objection, for the reason that its explanation or analysis would be a subject for expert or medical testimony. Later in the trial the physician who treated plaintiff first after her injury was called as a witness for defendant. His testimony disclosed that, among other things, he did X-ray work, and his qualifications were admitted. He had testified that when he examined plaintiff the ankle was badly swollen and he was unable to tell by feeling of the ankle whether the bone was fractured, and advised her to have an X-ray made of it. He examined the X-ray picture which plaintiff had identified and testified that it showed that the bone had been fractured at some time. We see nothing seriously wrong with this testimony. The only thing material to this case, shown by the X-ray picture, was that one of the bones of the ankle had been broken at some time. Plaintiff had testified without objection that a bone of her ankle had been broken.
Plaintiff had alleged in her petition, among other things, that the acts and conduct of defendant in driving his unlighted truck after night on a much-traveled state highway with which he was familiar were reckless and wanton, and she asked for exemplary as well as for actual damages. She called defendant as a witness and he was interrogated as to his property. Appellant complains of that evidence. When wantonness is charged and there is evidence fairly tending to sustain it the financial ability of defendant is a proper subject of inquiry. {Winans v. Chapman, 104 Kan. 664, 180 Pac. 266; Townsend v. Seefeld, 102 Kan. 302, 306, 169 Pac. 1157; White v. White, 76 Kan. 82, 90 Pac. 1087; 8 R. C. L. 607; 17 C. J. 995.) From the record it is not possible to determine whether the jury allowed anything for exemplary damages. The verdict was for $1,-346.50, which is less than the sum claimed by plaintiff for actual damages. The jury was not asked toi itemize damages nor to answer special questions.
Some complaint is made of the instructions of the court. We have carefully examined these and find nothing seriously wrong with them.
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The opinion of the court was delivered by
Sloan, J.:
This was an action to recover damages growing out of the sale of diseased hogs. The plaintiff recovered, and the defendants appeal.
The appellants were on and for many years prior to October 16, 1927, engaged in buying and selling hogs at Kanorado, Kan. On October 16, 1927, the appellants had in the stockyards a number of hogs which had been purchased by them in that community. On that date one of the appellants solicited the appellee to purchase nine head of hogs described as “thin sows.” The appellee inspected the hogs and inquired about their origin, as he had heard that there was hog cholera in the vicinity of Coolney’s. He was informed that the hogs came from the neighborhood of Idalia and that the original seller had been hailed out, which accounted for the condition of the hogs and the reason for their being on the market. The appellee purchased the hogs and gave his check for $145. The following day he removed the hogs to his farm by truck, a distance of about twenty-five miles. A witness who saw the hogs in the stockyard testified: “Well, they seemed to not be in a healthy condition; they acted sick and droopy.” When the hogs were unloaded in appellee’s pens two or three of them refused to eat. He discovered in a few days that the hogs were sick and on the following Monday called a veterinarian, who diagnosed the trouble as hog cholera in an advanced' stage. The veterinarian testified that the incubation period of infection was about four days, that a person not familiar with hogs probably would not notice anything wrong within a week from the time of the direct infection. The appellants were advised immediately of the condition of the hogs and when told that the hogs were sick, and asked where they were originally purchased one of them said: “I just don’t know where they did come from, but it kinda runs in my mind these hogs came from Coolney’s.”. There was other evidence to the effect that during the time the hogs were in the stockyards they showed signs of sickness and a lack of inclination to eat. On this evidence the jury found for the appellee.
The principal contention of the appellants is that the evidence was insufficient to support the verdict of the jury. The jury was properly instructed. The law is that any person who sells hogs infected with cholera with knowledge of such infection, or notice of such facts that would put a prudent person upon inquiry — and a reasonable inquiry prosecuted by him would lead to the knowledge of such infection before the sale — is liable to the purchaser for damages resulting from the sale of such infected hogs. (R. S. 47-603; Chessman v. Felt, 92 Kan. 688, 142 Pac. 285.) The appellants were experienced hog buyers, and the evidence, we think, was sufficient to put a prudent person upon inquiry, which, under the evidence in this case, would hav.e led to the discovery that the hogs were infected with cholera. There was, of course, conflicting testimony which was weighed by the jury and the trial court approved the verdict, and its conclusion will not be disturbed by this court.
Appellants complain that the court erred in the admission of certain testimony. We have examined the testimony and find, that there is no merit in this contention.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The construction of a will, about which there was an actual controversy among the beneficiaries mentioned in it, was the purpose of this action. Charles W. Sherman, the owner of real and personal property, executed a will on April 26, 1927. He died on July 15, leaving two sons, Robert Kos Sherman, thirty-nine years old, Charles Glenn Sherman, thirty-four years old, and a daughter, Gracie Fay Critzer, thirty-seven years old. When the will was executed, his wife, Martha L. Sherman, was living, but she died about two weeks prior to his death. In the will the testator, after providing for payments out of his estate of his debts and the expenses of his last illness, stated:
“2d. I give, devise and bequeath to my wife, Martha L. Sherman, all property of which I may die seized or possessed, both real and personal, except such as is hereinafter specifically devised to others, to have and to hold unto my said wife for a period of ten years after the date of my decease. It is my will and bequest that during said ten-year period she is to have all the rents and profits arising from my real estate and that my personal estate, now located on my ranch in Comanche county, Kansas, including live stock and fanning implements, shall remain there during said ten-year period and that the farming operation during said period shall be continued under my said wife’s direction and management in like manner as such ranch has heretofore been operated by me, except that my said wife shall have the power and authority during said ten-year period to sell or dispose of, from year to year, such of the personal property and the increase from the live stock as may be reasonably necessary for her maintenance and support and such of it as it becomes necessary to market from time to time.
“3d. It is my further will and bequest that at the end of said ten-year period my entire remaining estate, not hereinafter specifically devised or bequeathed, shall pass to and become the property of my said wife and my three living children in equal shares, to be by them divided at such time, among themselves, on that basis, providing they can at such time mutually agree upon such division.
“In making this will, it is my intention and purpose to keep my estate intact for said ten-year period, believing that it will be to the best interest of my said wife and our children.
“In case any of my said three children, now living, should die prior to the expiration of said ten-year period, then it is my will and bequest that the share herein devised to any such deceased child, shall go and pass to the children of his or her body, if any survive, and if there be no surviving children, to his or her surviving brother or sister.
“áth. I give, devise and bequeath to my daughter, Gracie Fay Critzer, my residence property located at 811 East Murdock avenue, Wichita, Sedgwick county, Kansas, to have and to hold as her absolute estate and property forever.
“5th. Any and all moneys, notes or accounts that I own or of which I am possessed at the date of my decease, except such as are necessary for the payment of all debts, I bequeath to my said wife and my said three children, share and share alike.
“6th. I hereby nominate and appoint my said wife, Martha L. Sherman, and F. S. Butts, of Protection, Kan., as the executors of this, my last will and testament.
“In testimony whereof, I do hereunto subscribe my name this 26th day of April, 1927. Chas. W. Sherman.”
It was alleged and shown that a contract was made by the heirs on June 21, 1929, providing for a division and equalization of the property. So much of it as is pertinent, follows:
“That whereas, The said Robert Kos Sherman, Gracie Fay Critzer and Charles Glenn Sherman are the sole and only children and heirs at law of Charles W. Sherman, deceased, formerly of Comanche county, Kansas;
“And whereas, The said Charles W. Sherman died testate possessed of the hereinafter described land;
“And whereas, The said parties desire to partition said hereinafter described property in a fair and equitable manner between the parties hereto, without the intervention of any court, so that each shall receive his or her proper share of said real property;
“Now, therefore, it is mutually agreed by and between all of the parties hereto, as follows: (Here follows description of land allotted to each child and amount of difference in money that is to be paid.)
“It is further agreed that abstracts of title shall be procured as to all of the above-described lands showing good and merchantable title in the maker of the respective deeds herein provided for, the total cost of which shall be borne by the parties hereto one-third each.
“All taxes for the year 1928 and prior years on all of said above-described lands shall be paid by the heirs of Charles W. Sherman, deceased.
“It is further agreed that the landlord’s share of all crops harvested during the year 1929 on all of the above-described real property is to be divided equally among Robert Kos Sherman, Gracie Fay Critzer and Charles Glenn Sherman.
“Full possession and use shall be delivered to the respective parties to whom said deeds are executed, upon the delivery of said deeds, subject to the 1929 crop as herein provided for, except that as to the southeast quarter of section 27, township 23, range 20, west of the sixth P. M., being the home place, the said Robert Kos Sherman shall have the right to occupy the improvements, consisting of the residence, barns, corrals, etc., until June 1, 1930, at which time he shall deliver possession of the same to the said Gracie Fay Critzer, in as good condition as the same are now, less usual wear and tear.”
When the case was submitted to the trial court, the following stipulation was made:
“It is hereby stipulated by and between the plaintiffs and the defendants herein, that Martha L. S'herman was ten (10) years younger than her husband, the testator, Charles W. Sherman.
“It is further stipulated that the testator, Charles W. Sherman, was ill at the time of the death of Martha L. Sherman, and that such illness of the testator continued from the time of the death of the said Martha L. Sherman, up to the date of the death of the said Charles W. Sherman.”
The determination of the trial court was that as Martha L. Sherman died prior to the death of Charles W. Sherman, upon the death of Charles W. Sherman the three children took a fee-simple title in and to all of the real property of which Charles W. Sherman died possessed, except that located in the city of Wichita, which was specifically devised to Gracie Fay Critzer. The court further found that the proceeds from the sale of personal property on the lands in Comanche county owned at the time of the death of the testator, is now subject to distribution by the administrator de bonis non, and that one-third thereof should be paid to each of the plaintiffs, Robert Kos Sherman, Charles Glenn Sherman, and the defendant Grade Fay Critzer, less any costs of the administration that may be now unpaid, all subject to the supervision of the probate court.
There were findings that the spouses of the children of the testator and their children, have no right, title or estate in or to any of the real or personal property of which the said Charles W. Sherman died possessed. The court further found and adjudged that the parties are entitled to the partition of the property, and that commissioners be appointed at once to make the division as provided by law.
There is a contention by the plaintiffs that the title passed by the will consists of an estate for years, terminating ten years after the death of the testator, and that until the termination of that estate it cannot be definitely determined in whom the remainder will vest. They contend that the interpretation of the will made by the court wipes out the ten-year period which is specifically provided for in the will.
Plaintiffs contend that the estate for years given to Mrs. Sherman, upon her death became a part of the residuary estate. They say that she had not only this legacy in the form of an estate for years, but that she was also one of the residuary legatees in the will. It is their contention, too, that the income and use of the premises during this ten-year period is owned by the three children in equal shares, and is a separate property, distinct from their share in the remainder. The estate and its proceeds, they insist, should be held intact for ten years and is not subject to distribution until the end of that period.
On the other side it is contended that the provision for the ten-year period was for the benefit and protection of the wife, and since the wife was dead before the will took effect it cannot be assumed that it would be to the best interest of the children to keep the estate intact for ten years. It is their contention that the wife having died before the testator, the ten-year provision became an impossibility and automatically dropped out, somewhat like a life tenancy drops out in case the life tenant dies. They urge that the principle of acceleration is applicable and distribution should be made at once.
It will be observed that the will purports to give all of the property of the testator to his family; that is, to his wife and three children. The testator undertook to create a ten-year period during which the wife would have the absolute management and control of the estate and receive all the rents and profits derived from it. His desire was that the estate should be kept intact and operated as it had been in the past by himself. The wife, it appears, was ten years younger than he was and he assumed that she was likely to outlive him at least that period of time, and hence provided that she should have the use and benefit of the estate during the period. The provision was evidently intended to be for her special benefit and protection, although it was recited that he believed that her management and control would be for the best interests of the wife and children. The children had already passed maturity and were, respectively, thirty-four, thirty-seven and thirty-nine years of age, but the management and control was to be exercised by her and no one else, and she was given power during this period to sell and dispose of such of the personal property as was reasonably necessary for her support and maintenance. It is plain that he did not desire that there should be a distribution of the property during the period, but it is clear he intended that all of it was to go to the surviving members of the family. He assumed that'his wife would live, manage and enjoy the use and benefit of it for ten years after his death. It turned out that his assumption that she would outlive him was not justified, as she died prior to the death of the testator. The will did not become effective until he died, and at that time there was no wife to keep the estate intact or to control and manage it. His plan was that this personal privilege and responsibility was to be exercised and assumed by her and her alone and not by some representative or substitute. There being no wife, no manager to hold the estate intact or to enjoy the use of the property during the stated period and no way to carry out the contemplated plan, that provision of the will became an impossibility and was practically eliminated from the will.
The situation was somewhat similar to a devise of a life estate with a gift over to remaindermen so that when the life period ended, or was out of the way for some reason, the remainder was accelerated and the title passed at once to those who were to take at the end of the life estate. (Miller v. Miller, 91 Kan. 1, 136 Pac. 953.) Here, as the death of the wife occurred before the death o.f the testator, the provision for a ten-year period never in fact came into existence and is to be treated as though it had not been created. Under those circumstances the principle of acceleration applies. The estate was to go to the surviving wife and children when the ten-year period ended or became ineffectual. In McLean v. Stanley, 134 Kan. 234, 5 P. 2d 839, a life estate wias given to a wife and it was provided that if any of the children to whom the remainder was to go should die before the death of the wife the property devised to the deceased child should go to the children of such deceased child. As the child to whom the property was devised died while Alvina, the wife of the testator, was living, it was said as to that provision of the will:
“Also, the fifth paragraph of the will has no practical application to the facts in the case, as it only provides for the passing of the life estate given to Alvina. This by her death before the death of the wife of the testator was simply eliminated or merged.” (p. 238.)
So here, the death of the wife prior to the death.of the testator eliminated the ten-year period of the will, and the estate was ready for distribution among the children after the death of the testator.
The principle of acceleration has been recognized in this state. In Miller v. Miller, supra, it was said:
“If a testator devise an estate for life to his widow, with remainder over in fee, and the widow elect to take under the law and not under the will, the remainder is ordinarily accelerated to take effect as if the widow had died. The rule is equitable in character and proceeds upon the assumption that the gift over of the fee was the principal thing in the testator’s mind, that the life estate was a mere charge on that gift, and that he desired the gift in fee to take effect whenever the life estate for any cause was out of the way.” (p. 6.)
In In re Schultz’ Estate, 113 Mich. 592, a testator bequeathed to his wife all of his household goods and gave her a life estate in the residue of the property, real and personal. Specific bequests were made to five persons who were also made residuary legatees in pro-' portion to the sums bequeathed to them. The widow elected to take under the law and not under the will, and it was held that the life estate in the widow was as effectually terminated by her election as it could be by her death, and that it was clear that the testator intended that upon the termination of the life estate the property should be distributed at once to his legatees.
In Slocum v. Hagaman, 176 Ill. 533, it was decided:
“A remainder postponed merely to let in a life estate in the widow takes effect immediately upon the determination of that estate, whether such determination arises from the widow’s death or her renunciation of the will and her election to take dower or her statutory allowance.”
“Rights of second takers which are postponed merely to let in the widow’s life estate are accelerated by her renunciation of the will and election to take her statutory share in lieu of dower, and distribution may be had before the widow’s death.” (See, also, Randall v. Randall, 85 Md. 430.)
It is suggested that-the ten-year provision in effect carved out a separate and distinct estate which became a part of a residuum, that the testator’s wife should be regarded as a residuary legatee and the right under the ten-year provision should be treated as a lapsed legacy, citing Corbett v. Skaggs, 111 Kan. 380, 207 Pac. 819. There being a gift over to the children to whom the title was to go, there was no residuum.
It being determined that by reason of the death of the wife before that of the testator the contemplated ten-year period of control, possession and enjoyment of the estate never came into existence and was practically eliminated from the will, it follows that there was no lapsed legacy nor room for the application of the rule of the Corbett case. It appears that the wife died leaving no children other than those named in the will, who were the children of both testator and his wife, and hence the share she would have taken if she had lived goes under the will to the three living children.
Our conclusion is that the trial court correctly interpreted the will, and its judgment is affirmed. | [
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|
The opinion of the court was delivered by
Dawson, J.:
The Bank of Idana brought this action to collect the cash surrender and investment values of a life insurance policy which had been assigned to it as security for a loan which the bank had made to the policyholder.
Briefly the facts were these: On May 23, 1910, Charles Ross Worrall received from the Illinois Life Insurance Company a lifé survivorship investment policy of insurance for $2,000. Worrall kept this policy in force for many years by paying the prescribed periodical premiums thereon. On January 26, 1929, Worrall borrowed from the Bank of Idana the sum of $1,000, payable in eighteen months with interest at 8 per cent per annum payable annually. As security he assigned to the bank his policy of insurance, his wife, who was the beneficiary named in the policy, joining with him in the assignment. The Illinois Life Insurance Company, appellant herein, executed its written consent to the assignment subject to conditions of no present consequence.
Worrall defaulted in payment of his note, at which time the total realizable value of the policy was $895.51, consisting of two items designated as its cash surrender value $522 and a so-called survivor-ship investment value of $373.51. The plaintiff bank notified the insurance company of Worrall's default and offered to furnish proof of the amount due it on Worrall’s note secured by the policy assigned to it, and notified the insurance company, also, of its desire to collect the cash surrender and investment values of the policy. The insurance company replied that it would only pay the bank the amount demanded upon condition that a release of the policy signed by Worrall and wife were delivered to the insurance company. The bank could not procure any further or additional signatures from Worrall and wife than they had already executed when the policy was assigned to the bank.
Hence this lawsuit — for a judgment against Worrall on his note, and to bar Worrall and wife of any interest in the policy assigned to the bank, and for judgment against the insurance company for the cash surrender and investment values of the policy, $895.50, and for a decree that upon payment thereof the insurance company be released from liability to the Worralls, and that the bank have judgment against the insurance company for costs.
Service of summons was had on Charles Ross Worrall by publication only and he made no appearance in the action. His wife entered appearance and filed a formal disclaimer of any interest in the policy and prayed to be protected against costs.
The insurance company’s demurrer was overruled and it then answered alleging, admitting, and pleading various matters — that plaintiff had no insurable interest in the life of Worrall; that the assignment was void; that plaintiff was neither a competent nor proper party to bring the action; that the options in the policy were per sonal to Worrall and could not be legally transferred to plaintiff; that personal service of summons had not been obtained on Worrall and that no judgment against him nor foreclosure of his interest in the policy had yet been obtained; and that defendant could not safely accept the policy from plaintiff and pay the sum demanded without the written consent of Worrall and wife.
Plaintiff replied denying some of the allegations of the answer and demurred to the others.
The cause was tried on the pleadings and on an agreed statement of facts submitted by plaintiff and the insurance company. Judgment was rendered in favor of the bank, and the insurance company appeals.
The errors assigned are predicated on the overruling of appellant’s demurrer to the petition, the trial court’s failure to render judgment for the appellant, and the overruling of its motion for a new trial. This specification scarcely enlightens the court as to what appellant contends was actually wrong with the judgment, and we are not a little perplexed to discover it on our own account. We have, however, carefully perused the briefs of counsel and shall make such observations on the case as are prompted thereby.
Since Worrall was shown to have become a nonresident, service of summons on him by publication was valid. (R. S. 60-2525.) The situs of the assigned policy was that of the plaintiff bsmk (Heston v. Finley, 118 Kan. 717, 236 Pac. 841), and an action in rem could properly be brought against Worrall in Clay county, where the bank was located, where Mrs. Worrall could be and was served personally with summons, and where the defendant company was sufficiently served to bring it into court.
Appellant projects the point that the bank took no step to cut off the rights of Worrall in the policy before bringing this action. An action by a creditor’s bill was not a prerequisite to this action. The present cause of action grew out of what was in effect a tripartite transaction in which plaintiff, Worrall, and the insurance company participated; and all the pertinent facts relating thereto were matters of inducement proper to be considered either in the pleadings or in the agreed statement of facts; and not only were all the parties concerned properly brought in, but the judgment might have been ineffective if any of them had been left out.
It is suggested that the bank did not have a power of attorney to collect the cash surrender value of the policy. We hold that the assignment executed by Worrall and consented to by the appellant, together with Mrs. Worrall's disclaimer, had all the potency of a power of attorney. No court would countenance the idea that the insurance company’s consent to the assignment was a mere idle gesture without legal significance. If the insurance company had any objection to the assignment of the policy its time to speak was when its consent was requested. It is a sheer waste of words for the insurance company to suggest that the options in the policy were personal to Worrall and could not be exercised by anyone except himself and such -other persons as he had duly authorized to exercise them. It is familiar law that where the insured has the right to change the beneficiary or where the beneficiary assents thereto, as in this case, a policy of insurance may be pledged or assigned to a creditor as security for a debt. If there was anything in this policy which took it out of the ordinary rule appellant has failed to indicate it. And the execution of the assignment and its delivery to the bank, together with the simultaneous delivery of the policy, was a sufficient grant of power to the bank to exercise the option of drawing down the surrender and investment values of the policy.
Among other matters discussed in appellant’s brief it expresses a doubt that the bank had an insurable interest in the life of Worrall. But a painstaking examination of our decisions should have dissipated any doubt appellant may have entertained on the question whether the -bank as creditor of insured and as assignee of his policy — the wife 'of the insured having consented thereto — had an enforceable interest in the realizable proceeds of that policy to the extent of what is due it. It had such interest. (Shawnee State Bank v. Royal Union Lije Ins. Co., 127 Kan. 456, 274 Pac. 132; Elmore v. Continental Life Ins. Co., 131 Kan. 335, 281 Pac. 755. See, also, Jenkins v. Insurance Co., 112 Kan. 552, 212 Pac. 363; Antley v. N. Y. Life Ins. Co., 139 S. C. 23, 60 A. L. R. 184 and note; Vance on Insurance, 138-144; 37 C. J. 444.)
The judgment in this case amply safeguards the insurance company against any fanciful claim of Worrall. His interest in the policy passed to plaintiff by valid assignment and was foreclosed by the court’s decree which directed that it be delivered to appellant upon its satisfaction of the judgment.
The other matters suggested in the laborious and exhaustive brief of appellant’s counsel have not been overlooked, but we discern nothing further therein which would warrant discussion. According to our view there was nothing in this tripartite transaction out of which to make a lawsuit. The transaction itself was one of commonplace' with which banks, borrowers and insurance companies are familiar. The legal questions presented by the record are too simple to justify juridical dissertation.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Dawson, J.:
This was a suit to set aside and enjoin an order of the public service commission which granted a certificate for the operation of a truck line.
In May, 1930, the Ark Warehouse Company made application to the public service commission for a certificate of convenience and necessity to operate trucks for carrying property between Wichita and the Kansas-Oklahoma state line. The proposed route was to run through the intermediate points of Derby, Udall, Mulvane, Akron, Winfield and Arkansas City.
A public hearing was set for June 16, 1930, at which time representatives of four truck lines, one railway company, and the Southern Kansas Stage Lines Company, plaintiff herein, appeared and resisted the application. The applicant, the Ark Warehouse Company, adduced testimony to show that it had adequate assets, equipment and related facilities to engage in the proposed business; that it was already hauling a large volume of traffic incidental to its general corporate business; that in the five months preceding the hearing it had received 760,000 pounds of personal property for redistribution; that it had available fifty-four tons per month, half of which was for redistribution in consignments which would not pay to handle for each consignee separately; that Arkansas City was a jobbing center which originated a large amount of freight shipments in small consignments which could only be handled economically and profitably by combining them for delivery; and that there was no truck-line service between Wichita and Arkansas City on the north-and-south route proposed by the applicant. It also submitted a considerable number of “commitments” from merchants of Arkansas City and Winfield reciting that it would facilitate the dispatch of their business to have the proposed service, and that they intended to patronize it if the applicant were granted the desired certificate of convenience and necessity. One concern, the Keefe-LeStourgeon Packing Company, which was connected with the applicant through common interests of some sort, signified its desire to turn over its large volume of delivery business to the applicant.
To resist the granting of the certificate it was shown that there was a truck line between Mulvane and Wichita, but not operating through Derby on the route proposed by the applicant. It was also shown that two competing truckmen operated between Udall and Wichita by another route than that proposed by the applicant, but these two gave no service between Udall and Mulvane, nor between Udall, Mulvane and Derby, nor between Mulvane, Derby and Wichita. Another truck operator gave local service .between Win-field and Udall. The Southern Kansas Stage Lines Company, plaintiff therein, maintained a truck line operating between Wichita, Win-field and Arkansas City via Waco, Riverdale, Wellington and Oxford. This route is quite different from that of the proposed line of the applicant, until Winfield is reached, but from that point the two routes would coincide to Arkansas City. The evidence tended to show that at the common points en route there was no particular complaint with the service being supplied by the plaintiff; that it was adequately equipped and ready to meet the demands of increasing traffic in the territory it served and that if the applicant were permitted to establish the proposed line it would cut deeply into plaintiff’s business. However, the traffic manager of the plaintiff did testify that—
“We do not haul anything for the Keefe-LeStourgeon Company. The 700,000 or 800,000 pounds of that freight we are not hauling, and we would not lose anything if the Ark Warehouse Company should haul that — it would not hurt us. We do not have any service out of Winfield, only to Oxford, west and a little north. There is nothing about any of the service proposed here that would affect us other than Winfield, Arkansas City, and Wichita. We don’t render any service to any of these other towns.”
It is needless to set out the testimony in greater detail; but it should be remarked that it was shown without dispute that the truck-line business is presently in the course of rapid expansion, a recent phase of it being the development of interline hauling through cooperative arrangements between connecting truck lines, the limits of which it is not possible at present to predict or foresee.
The commission granted the certificate applied for with certain restrictions to protect the business of some small truck operators along parts of the proposed route. In part it reads:
“On this seventh day of November, 1930, . . . being duly advised . . . finds that public convenience will be promoted by the creation of the service hereinafter set forth, and that a certificate should be issued to the Ark Warehouse Company, operating under the name and style of Ark Warehouse Truck Line, in accordance with the provisions of section 4, chapter 206, Laws of Kansas 1925.
“Now, therefore, a certificate of public convenience and necessity is hereby issued to Ark Warehouse Company, operating under the name and style of Ark Warehouse Track Line, to operate as a motor carrier for' the transporta tion of property for hire between fixed termini and over a regular route as follows, to wit:
“Between Kansas-Oklahoma state line and Wichita, Kan., through Derby, Udall, Mulvane, Akron and Winfield, all as more fully described in schedule A attached to the application herein and made a part hereof, to be designated and known as route No. 442: Provided, however, that said grantee is to do no business out of Winfield for Udall, or from Wichita to Udall; and no business oüt of Wichita to Mulvane, or from Mulvane to Wichita, Kan.”
Plaintiff brought suit to prevent the commission and the Ark Warehouse Company and the Ark Warehouse Truck Line from putting the order into effect and to enjoin the operation of a truck line under the certificate of convenience and necessity which the commission had granted.
The cause was tried on the record made before the commission. The trial court made findings of fact and conclusions of law to which space must be given:
“Findings op Fact.
“1. That the Southern Kansas Stage Lines Company operated a freight route under a certificate granted by the public service commission of Kansas, and has been operating under said certificate for some time prior to the application of the Ark Warehouse Company.
“2. That the route of the Southern Kansas Stage Lines Company and the applicant, the Ark Warehouse Company, are identical as far as doing business is concerned.
“3. That there has been no complaint filed with the commission against the Southern Kansas Stage Lines Company as to its service under said certificate.
“4. That there is not sufficient showing of the public necessity and convenience for two competing truck lines between Wichita and Winfield and Arkansas City.
“5. That the establishment of another truck line will divide the business now hauled by the present holder of a certificate and reduce its profit and cripple its service.
“6. That the commission failed to take into consideration the service of the certified carrier of a similar kind and the effect of the granting of a new certificate on the business of the present carrier.
“Conclusions op Law.
“1. That the- convenience of some private individual or corporation,' or one or two shippers, is not the intent of the law, but it must be a public convenience and necessity, which the evidence in this case does not show.-
“2. That the intent of the Kansas law is regulatory and not competitive; that this is shown by chapter 236 of the Session Laws of 1931.
“3. That the commission failed to comply with the mandatory provision of the law, with reference to granting an overriding certificate.
“4. That the action of the commission is arbitrary and did not take into consideration the effect of competing service on the present carrier, whose service is adequate and is admitted to be good, and as to which no complaint has ever been filed with the commission. This principle is shown by act of the commission in denying applicant the right to do business at Udall and Mulvane.
“5. That the prayer for a permanent injunction should be allowed.”
’ Defendants’ motions to set aside certain findings and to grant a new trial were overruled. The trial court granted the injunction as prayed for, and defendants appeal.
It may serve to shorten discussion to note particularly the scope of judicial review which may be had of an order of the public service commission. The statute provides that within thirty days after an order or decision has been made and rehearing has been had or denied, any party dissatisfied with the order may apply to the proper district court for a review. (R. S. 1931 Supp. 66-118b, 66-118c.) A transcript of the pleadings, applications, proceedings, orders, decisions, and of the evidence pertaining thereto which was the basis of the commission’s order or decision must be filed in the district court. On order of court the record may be abstracted, and the cause is to be heard on briefs and arguments. The limits of the court’s power of review are as follows:
“Said proceedings for review shall be for the purpose of having the lawfulness or reasonableness of the original order or decision or the order or decision on rehearing inquired into and determined, and the district court hearing said cause shall have the power to vacate or set aside such order or decision on the ground that such order or decision is unlawful or unreasonable. . . . No court of this state shall have power to set aside, modify or vacate any order or decision of the commission except as herein provided.” (R. S. 1931 Supp. 66-118d.)
“No new or additional evidence may be introduced upon the trial or any proceedings for review under the provisions of the act, but the cause shall be heard upon the questions of fact and law presented by the evidence and exhibits introduced before the commission and certified by it. . . .” (R. S. 1931 Supp. 66-118Í.)
A consideration of these statutory provisions makes it clear that an appellate review of an order of the commission is limited to a determination of two main questions: Was the order unlawful? Was it unreasonable?
Touching the first of these, an order of the commission, as of any other official board or officer having statutory duties to perform in the sense here used, is unlawful if the forms of law prescribed by statute have not been followed in the proceedings leading up to it and included in its terms. Where the prescribed procedural forms have been followed in making the order it is not unlawful. (State v. Frazier, 54 Kan. 719, 39 Pac. 819; Stouffer v. Harlan, 68 Kan. 135, 145, 74 Pac. 610.) It is not so easy to define what is meant by the term “unreasonable” as used in this statute. The act itself prescribes no standard by which to test the validity of an order of the commission assailed on the ground that it is unreasonable. In Railroad Co. v. Utilities Commission, 95 Kan. 604, 615-622, 148 Pac. 667, the court dealt at some length with the legislative use of the words “unreasonable,” “unjust,” “oppressive” and “unlawful,” in the utilities act, and held that they were not synonymous with the word “confiscatory,” and that they should be given their fair and reasonable import according to the usages of courts of equity. In Soule’s Dictionary of English Synonyms, “unreasonable” is set down as conveying the same idea as “irrational, foolish, unwise, absurd, silly, preposterous, senseless, stupid, injudicious, nonsensical, unphilosophical, ill-judged, exorbitant, extravagant, unfair, unjust, extortionate, excessive.” The word is most commonly used by lawyers and judges as a qualifying adjective in such expressions as “unreasonable time,” “unreasonable delay,” “unreasonable force” and the like, in which sense it means “more than fair and proper under the circumstances.” Ordinarily the question whether such time, delay, or force, was more than fair and proper under the circumstances is left for the determination of the triers of fact, whether court or jury. It is only when such determination is so wide of the mark as to be outside the realm of fair debate that the courts may nullify it. The same regard should be given to the informed con-, elusions of fact made by the public service commission. Where its findings of fact are based upon substantial evidence and the other matters shown by the record with which that tribunal is authorized to deal, a court is not justified in setting its orders aside because the record shows that a different order or decision than the one made by the commission could fairly have been based thereon. Indeed, there are narrow limits to the authority which the legislature could confer on the court to deal with the sort of powers which may properly be vested in an official board like the commission.
In Symns v. Graves, 65 Kan. 628, 70 Pac. 591, the power of the court to review the action of the board of equalization in fixing the valuation of property for purposes of taxation was drawn in question. This court said:
“Matters of assessment and taxation are administrative in their character and not judicial, and an interference by judges who are not elected for that purpose with the discharge of their duties by those officers who are invested with the sole authority to make and estimate value is unwarranted by the law. The district court could not substitute its judgment for that of the board of equalization, and this court cannot impose its notion of value on either. . . . But fraud, corruption and conduct so oppressive, arbitrary or capricious as to amount to fraud, will vitiate any official act, and courts have power to relieve against all consequential injuries. In every case, however, the departure from duty must be shown by the party seeking redress to fall within the well-defined limits of the powers of a court of equity.” (p.- 636.)
In State v. Railway Co., 76 Kan. 467, 92 Pac. 606, where an order of the state board of railroad commissioners, predecessor of the public service commission, was assailed, this court said:
“There is nothing substantial in the contention that the statute authorizes the court to try the whole controversy and make such orders as it may deem reasonable and just, and that the order when reviewed and revised becomes a judicial order. This court is not given authority by the act to make any rule, order or regulation.
“Its authority is limited to the inquiry whether the order already issued is reasonable and just.” (p. 486.)
In Photoplay Corporation v. Board of Review, 102 Kan. 356, 169 Pac. 1154, the scope of judicial power conferred on the court to review an order .made by the board of censors of motion pictures was considered. This court said:
“[The statute] provided that if a party felt aggrieved at a disapproval of a picture by the board redress may be had in the district court of the. county where the office of the board was located. What is the redress provided? Manifestly, it is such redress as a court can give, and not an exercise of executive or administrative power. A reexamination of the picture to determine whether it was moral and fit for exhibition would be an exercise of administrative power, and that discretion and power was specially conferred upon the board. It would result in the substitution of the judgment of the court for that of the board in a pure matter of administration, which the legislature could not and evidently did not intend to confer upon the district court. It is fundamental that courts cannot be required or permitted to exer.cise any power or function except those of a judicial nature. (Auditor of State v. A. T. & S. F. Railroad Co., 6 Kan. 500.) An aggrieved party may call on the court for judicial redress and not for the performance of a nonjudicial or administrative function. If the board abuses its authority and acts arbitrarily or fraudulently, redress from the courts may be had, and this was the redress provided for in the section in question.” (p. 358.)
So, too, it has been held that the question whether a competing gas company should be permitted to operate" in territory already preempted by another gas company has been held to be a legislative and administrative problem and not one for judicial determination. (Kansas Gas & Electric Co. v. Public Service Com., 122 Kan. 462, 251 Pac. 1097; Wichita Gas Co. v. Public Service Com., 132 Kan. 459, 295 Pac. 668.) It has been held that the court will not substitute its judgment for that of the charter board in granting or withholding a charter to engage in business as a banking corporation. (Schaake v. Dolley, 85 Kan. 598, 610, 616, 118 Pac. 80. See, also, Jackman v. Public Service Commission, 121 Kan. 141, 245 Pac. 1047, including the specially concurring opinion of Mr. Justice Harvey at page 146.)
Turning now to the findings of fact and conclusions of law made in this case, it is in no carping sense that we are constrained to observe that the trial court’s finding No. 2 is not in accord with the evidence. Even a casual glance at any state map will demonstrate its fallacy. Finding No. 3 is not of controlling importance. Finding No. 4 is primarily, if not exclusively, a nonjudicial question; it is a legislative and administrative one; and it cannot be denied that a substantial showing was made before the commission to warrant its finding of necessity and convenience. And the trial court’s finding No. 4 was an unauthorized substitution of the court's judgment for the judgment of the tribunal authorized to determine the point. Finding No. 5 is not of controlling importance. Moreover, it invades the field of prophecy. Who can say that even two truck lines will be sufficient to serve the needs of that territory in the not distant future? Finding No. 6 is not sustained by the record. The fact that a certificate is granted to a competing truck line does not justify an assumption that the commission failed to give due consideration to the service furnished by the plaintiff. Touching the trial court’s conclusions of law, the first is a mixed finding of law and fact, and in our opinion it is not a sound statement of the pertinent law nor a fair statement of the pertinent facts. The second conclusion has no bearing on this case. The order of the commission granting the certificate of convenience and necessity which was the subject of attack in this lawsuit was made on November 7, 1930, while the statute referred to in conclusion No. 2 was not enacted until March 16, 1931, and .did not take effect until July 1, 1931. (Laws 1931, p. 350.) Conclusion No. 3 is not fairly deducible from any findings of fact properly open to the court’s determination. Conclusion No. 5 is an argumentative summary of all the findings and conclusions.
The painstaking and exhaustive brief of counsel for plaintiff seeking to uphold the trial court’s judgment has been studied with care. Counsel seek to stress the bearing of R. S. 1931 Supp. 66-199 and 66-1103 upon the questions with which we are presently concerned. These paragraphs were fully considered in Pickwick Greyhound Lines v. Public Service Commission, 132 Kan. 464, 295 Pac. 647, where certain bus lines already giving cross-state service- sought to have the court set aside a certificate of convenience and necessity issued to a proposing competitor. It was there held that these statutory provisions were not inconsistent, that there was a field of operation for both; that the finding of the commission that the granting of a certificate would promote the public convenience was a judicial question; and that “the district court, under the law, was compelled to uphold that finding.” (p. 467.) Still more obvious should be that conclusion in view of the enactment of the more recent statute with which we have to deal (R. S. 1931 Supp. 66-118a et seq.), which was enacted in 1929, and which would thereby modify and supersede the provisions of R. S. 1931 Supp. 66-199 and 66-1103 enacted in 1926 if there was any insurmountable difficulty in finding a practical field for the operation of them all. (Arkansas City v. Turner, State Auditor, 116 Kan. 407, 226 Pac. 1009; Great Western Portland Cement Co. v. Public Service Comm., 121 Kan. 531, 247 Pac. 881; City of Wichita v. Wichita Gas Co., 126 Kan. 764, 271 Pac. 270.)
Plaintiff is quite right in stressing the mandate of the statute (R. S. 1931 Supp. 66-199) that-“the commission should give reasonable consideration to the transportation service being furnished by any . . . motor carrier and shall give due consideration to . . . the effect which such proposed transportation service may have upon other forms of transportation service which are essential and indispensable to the communities to be affected by such proposed transportation service or likely to be affected thereby . . .” Of course the commission should give these matters consideration. A conscientious commission ^would do so if there was no such mandate in the statute. The granting or withholding of certificates is not a prerogative to be capriciously exercised. (Jackman v. Public Service Commission, supra.) It is to be exercised with sound discretion to promote the public convenience. But. it is the sound discretion of the commission, not that of the courts, which is to be exercised in the issuance or refusal of certificates of convenience and necessity.
In Atchison, T. & S. F. Rly. Co. v. Public Service Comm., 130 Kan. 777, 288 Pac. 755, where the action was to set aside a certificate of convenience and necessity to operate a bus line between Wichita and Kansas City and intermediate points (with other transportation services galore already occupying the territory) the order of the commission was upheld. The court said:
“The word ‘necessity’ as used in chapter 206 of the Laws of 1925 does not mean something indispensable or something that is absolutely essential, but rather a public need, without which the public — the people generally of the community- — would be inconvenienced or handicapped to their detriment in the pursuit of business or wholesome pleasure as compared with that enjoyed by others generally, similarly situated.” (Syl. If 3.)
Instructive cases cited and quoted in the briefs of plaintiff and defendants have been carefully perused, but the questions we have to decide are so completely covered by Kansas law and our own decisions that we would not be justified in protracting this already too lengthy opinion by discussing them.
The court holds that the record does not sustain the finding that the commission failed to give due consideration to the transportation service being furnished by the plaintiff so far as it occupied the field which the grantee of the certificate proposed to serve, nor does it show that the commission ignored the effect the partially competing service of the later- certificate holder may have upon plaintiff’s business and revenues.
Until the legislature shall change the rule announced in Kansas Gas & Electric Co. v. Public Service Com., 122 Kan. 462, 251 Pac. 1097, it furnishes as precise a guide for the granting or withholding of certificates as we can suggest:
“In determining whether such certificate of convenience should be granted, the public convenience ought to be the commission’s primary concern, the interest of public utility companies alread3>- serving the territory secondary; and the desires and solicitations of the applicant a relatively minor consideration.” (p. 466.)
The judgment of the district court is reversed and the cause remanded with instructions to set aside its injunction and to enter judgment for defendant.
Harvey, Smith and Sloan, JJ., dissenting. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages resulting from a collision between a bus operated by Pickwick Stages Corporation and plaintiff’s automobile. Pickwick-Greyhound Lines, Incorporated, was made a party defendant. Judgment was rendered against both defendants, and they appeal.
Plaintiff was driving his automobile southward on highway 73-E, which is paved with a cement slab. Plaintiff was on the west side of the pavement, and the bus was following him. Plaintiff made a left turn into an intersecting highway. The bus struck the automobile, damaged it, and plaintiff’s wife, who was beside him in the front seat of the automobile, was severely injured. The case was tried by the court. The testimony was conflicting. The court found generally for plaintiff, and this court is concerned only with testimony and inferences from testimony favorable to plaintiff. Defendants ignore this settled principle of appellate review in presenting assignments of error requiring consideration of evidence.
Plaintiff testified that when he approached the highway crossing he was traveling at a rate of speed of 15 to 20 miles per hour, and the bus was traveling at a rate of 50 to 60 miles per hour. Plaintiff saw the bus in his rear-vision mirror. When plaintiff was about 120 feet from the crossing he signaled the bus driver that plaintiff intended to turn, by putting out his left hand. The bus was then about 280 feet behind the automobile. Without looking at the bus again, plaintiff made the turn to the left, and the bus struck the automobile. The collision occurred after the four wheels of the automobile were entirely off the pavement on the east side. Without the bus horn having been sounded, the bus had crossed from the west side to the east side of the pavement, and at the moment of impact the east wheels of the bus were entirely off the east side of the pavement, and the west wheels were within six to eighteen inches of the east edge of the pavement.
Defendants contend the rates of speed of'the two vehicles, as plaintiff estimated them when he gave his signal, were such that the two vehicles were certain to come together at the highway crossing, and plaintiff was guilty of contributory negligence because he did not look to see what the bus was doing after he gave the signal.
The bus had been following the automobile for half a mile, and was gradually gaining on the automobile. Plaintiff’s signal was given at a proper distance from the point at which the turn was to be made. No conditions were described which made it improbable the signal would be seen, and the bus driver did see it. He told plaintiff he saw the signal, and he testified he saw the signal. True, he testified the signal was not given until the bus was about to pass the automobile; but plaintiff’s testimony on the subject must be accepted here.
Plaintiff testified he signaled by putting out his left hand, and he held his hand down, and up. How much his hand varied from a horizontal position was not disclosed. There is no general law in this state prescribing any specific kind of signal to be given for a left turn, and no general custom or understanding among auto vehicle drivers relating to the subject was shown, or exists. When plaintiff put out his hand, he indicated to the bus driver he was about to do something. It might be to slow down, or to stop, and it might be to turn to the right or to the left into the intersecting highway. The bus driver was not misled, because he testified plaintiff “put his left hand out the door to signal a turn.” The result is, plaintiff was authorized to assume the bus driver would keep in his lane and would keep his vehicle under control until the change in movement of the automobile, whatever it was, was observed. Plaintiff was not obliged to anticipate the bus would undertake to pass him on the left at unchecked speed as he was executing the left turn. On cross-examination plaintiff testified he felt he had a right to make the turn so long as the bus was as far back as it was, and the prudence or imprudence of his conduct was a matter of fact for the court to determine. As indicated, the testimony relating to what occurred just before the collision was irreconcilably conflicting. The conflict was resolved by the district court, and the evidence favorable to plaintiff affords no basis for a declaration by this court that plaintiff was guilty of contributory negligence as a matter of law.
The statute in force at the time of the accident provided that on approaching a highway crossing or turning corners, the person operating a motor vehicle should reduce speed to not exceeding eight miles per hour. The bus driver violated the statute, and plaintiff violated the statute, the same as all other auto-vehicle drivers using paved roads violated the statute. Defendants contend plaintiff’s violation of the statute precluded recovery. There is no basis for an inference that plaintiff’s violation of the statute contributed to the collision. Indeed, there is reasonable basis for inference that if plaintiff had slowed down, the accident might have been much more serious than it was.
There was evidence that the injuries to plaintiff’s wife were such that she required and would continue to require the services of a nurse and personal attendant. Plaintiff was allowed $75 for cash outlay for nurse hire. After a time plaintiff acted as his wife’s nurse and attendant, and the award of damages included an allowance to him for his services in that capacity. He was awarded nothing for loss of time from business or occupation. Defendants contest the allowance to plaintiff, and invoke the statute that when a married woman sustains personal injury by wrongful act of another, impairing her ability to perform services in the household and in discharge of domestic duties, the right of action for such impairment vests in her. (R. S. -23-205.) The statute does not apply. Plaintiff recovered nothing on account of his wife’s inability to perform household duties and domestic service. He undertook to perform the function of a nurse, and recovered for his services in that capacity, valued as nurse hire — something not covered by the so-called emancipation act modifying the common law.
The accident occurred on August 12, 1928. After the accident and, according to the answer of Pickwick-Greyhound Lines, in the latter part of 1928, Pickwick Stages sold, assigned and transferred its business, rights, and assets to Pickwick-Greyhound Lines. Pickwick-Greyhound Lines contends there was no proof that it assumed liability for the accident.
The transfer of business, rights and assets was recited in an application to the public service commission by Pickwick Stages, for transfer of its certificate of convenience and necessity to Pickwick-Greyhound Lines. The application was verified by the secretary of Pickwick Stages, and Pickwick-Greyhound Lines joined in the application. The application was made pursuant to R. S. 1930 Supp. 66-199, which reads:
“Where a certificate such as provided for above shall have been regularly-issued, and thereafter the motor carrier to whom such certificate shall have been issued, shall sell, transfer or assign the business, rights and assets of such motor earner, then and in that event the said certificate originally issued to such motor carrier shall, upon application to the public utilities commission, be by such commission transferred to the purchaser, and be effective in like manner as though originally issued to such purchaser.”
On October 28, 1929, and pursuant to the joint application, the public service commission issued an order transferring the certificate of convenience and necessity to Pickwick-Greyhound Lines. The order recited the assignment and transfer of the business, rights and assets of Pickwick Stages as a motor carrier to Pickwick-Greyhound Lines, and concluded as follow®:
“That the certificate of convenience and necessity heretofore issued herein covering route number 132 be and the same is hereby transferred to the Pickwick-Greyhound Lines, Inc., a Delaware corporation, the said purchaser to assume the duties, responsibilities and liabilities existing under and by virtue of said certificate and to operate under the rates, rules and practices now in force and effect.”
Use of public highways for conduct of the business of a motor carrier is a special privilege, the exercise of which may be regulated in the interest of the general welfare. At the time of the accident, and at the time the transfer was made, the statute declared it to be unlawful for any motor carrier to engage in the business of transporting persons and property on the highways of the state without first procuring a certificate from the public service commission declaring that the public convenience and necessity would be promoted by the proposed business. (R. S. 1930 Supp. 66-199.) Consequently, granting of the certificate of convenience and necessity was in effect the granting of a franchise.
The statute further provided that no certificate of convenience and necessity should be issued until the motor carrier should give security which would adequately protect the interests of the public, and which would insure payment of compensation for injuries to persons and loss of or damage to property resulting from negligent operation of the motor carrier’s business. If, however, the motor carrier should prove to the satisfaction of the public service commission that the motor carrier had financial ability to protect the interests of the public and to pay compensation for injuries to person or property caused by negligent operation of the business, security might be waived. (R. S. 1930 Supp. 66-1102.) Therefore, the furnishing of adequate protection against the harmful consequences of negligent operation of the business of a motor carrier was a condition precedent to lawful prosecution of the business. Unlawful prosecution of the business was punishable by fine or imprisonment or both. (R. S. 1930 Supp. 66-1104.)
Pickwick Stages was an Arizona corporation. Its report to the public service commission for 1928 showed it had property owned and used in the state of Kansas, consisting of buses, of the value of $40,000. Its report for 1929 showed it had no property in the state of Kansas, and no business nor office nor agent in the state of Kansas. The report contained the following statement:
“Equipment sold to Pickwick-Greyhound of Delaware, and was included on report filed by them.”
After the sale Pickwick Stages made application to the public service commission to withdraw from the state of Kansas.
As indicated, Pickwick-Greyhound Lines is a Delaware corporation, and it was admitted to do business in the state of Kansas on December 4, 1928. Its report to the public service commission for 1930 showed it had property owned and used in the state of Kansas of the value of $142,000, and that it had an office in the state of Kansas. No report for the portion of the year 1929 remaining after it acquired the Pickwick Stages certificate of convenience and necessity was introduced in evidence.
The result of the foregoing is, we have the familiar case of a corporation holding a public franchise, disposing of its franchise and property to another company which continues the business under the franchise, but insists the creditors of the first corporation shall hold the sack. The court holds that a motor carrier which succeeds to the business, rights, assets and franchise of another motor carrier succeeds to existing liabilities to the extent of assets acquired.
Under the motor-carrier law the special privilege conferred by the certificate issued to Pickwick Stages was burdened with liability resulting from negligent conduct of the business. Pickwick-Greyhound Lines was not just an ordinary purchaser of property. It desired not merely the business and assets, but the particular special privilege which Pickwick Stages held. Pickwick-Greyhound Lines was bound to know the law. The law provided that it took the certificate as if the certificate had been issued to it originally. The order transferring the certificate specified that it assumed existing liabilities under the certificate. It took the benefit burdened with the corresponding obligation.
Pickwick-Greyhound Lines did not see fit to disclose the exact date of purchase or the exact amount of assets acquired, as it could have done. Without indulging the natural inference arising from this fact, the court regards the evidence which has been recited -as tending to show Pickwick-Greyhound Lines acquired assets of Pickwick Stages to the amount of $40,000.
The evidence which has been recited, and on which liability of Pickwick-Greyhound Lines is rested, is not disputed, and it is not necessary to consider objections to other evidence offered and received as corroborative of assumption of liability.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson^ J.:
These were actions on two promissory notes acquired by plaintiff after their maturity. The main defenses were that the notes were incidents of a certain partnership relationship existing between the makers; that this partnership had not been wound up; that plaintiff’s rights were merely those which the assignor of the notes could transfer to him; that the assignor was one of the partners, and there had been no accounting between them; and consequently that no action on the notes was maintainable. Another defense was that the second note was executed to pay off the first.
The material facts concerning the partnership were these: In 1922 one G. G. Wiechen owned a farm in Woodson county and he interested a number of Douglas county men in its possibilities for the production of oil and gas. These persons and Wiechen organized a partnership for its development under the name and style of the Lawrence Oil and Gas Company. The partners got together the sum of $10,400, which they turned over to Wiechen. He transferred to the partnership an oil and gas lease on his farm and drilled one well on it. Some oil was discovered. To develop and market the oil the partnership borrowed $1,000 from a Lawrence bank. To evidence the respective interests of the partners, it was agreed to consider the total assets as thirty-two units or shares, and that each partner- should be deemed the owner of whatever number of such shares or units his contribution to the partnership assets would entitle him. Some of the partners held two units, some one, and Wiechen held seven units.
All of the partners were eventually impleaded in the action, although there was no service of summons on three of them and those three made no appearance. One defendant, Carl Kreider, denied under oath that he had been a member of the alleged partnership, and also denied the indebtedness. Wiechen filed a separate answer in which, among other matters, he pleaded the necessity of an accounting of the partnership affairs and prayed that such an accounting be had. One group of defendants similarly pleaded the necessity of an accounting. Another group alleged that the $1,000 note had been paid with money collected by Wiechen from an assessment the partners had levied upon themselves, and—
“Defendants further allege and show to the court that if said note was not paid by said G. G. Wiechen in the manner and under the conditions as hereinbefore stated, then the amount evidenced by said note involves a partnership settlement between the members of said partnership named in this answer.”
Plaintiff's reply admitted the existence of the partnership and .that the notes were executed in its behalf, but denied everything inconsistent with the allegations of his petition, and prayed judgment.
The two actions were tried together by the court without a jury. An accounting of the partnership affairs was had. It was shown that the activities of the partnership had ceased several years before this action was begun. The court made findings of fact designating the personnel of the partnership which had existed under the firm name and style of the Lawrence Oil and Gas Company—
“And the court further finds that the defendant, Carl Kreider, was engaged in the same business with said defendants, but that said Carl Kreider having denied the existence of a partnership among said defendants and himself under oath as permitted by law, the evidence fails to disclose the partnership and hence the said Carl Kreider is not bound by the pleadings and was not one of the partners.”
The court found that plaintiff was entitled to recover the sum of $1,466.48 on the $1,000 note, and that judgment for that amount should be rendered against Wiechen and wife, and found, also, that for $1,086.31 of that judgment certain other defendants who had been members of the partnership were liable, to wit, Burnett, Smith, La Coss, McCarty, Puffet, Miller, Burns, Griesa, Hemsinger, Schaake, Green, Dodds, Hines,'Pontius, and John F. t Wiechen. The trial court also decreed that if one or more of defendants should satisfy the whole judgment he or they would be entitled to contribution from the others in proportion to their units of interest in the partnership.
The findings and judgment on the second note, with the exception of the amount, were to the same effect.
Motions for a new trial were overruled, and eleven of the defendants appeal urging certain errors. Defendants G. G. Wiechen and wife, Puffet, Hines, Pontius and John F. Wiechen acquiesced in the judgment and have not appealed. Plaintiff makes no complaint that Carl Kreider Was relieved of his partnership liability, but Kreider files a brief here in support of the judgment in his behalf as against the contention of the appellants herein.
Taking up the errors urged against the judgment in the order of their presentation, it is first contended by the appealing defendants that when the court found that the notes sued on were given in partnership transactions the action should have been dismissed, and that until an accounting and final settlement of the partnership affairs had been effected the action was prematurely brought. The record does not show when these actions were begun, but it may be inferred that it was in 1929, and it is clear that the partnership had been moribund since 1925, and that no effort to wind up its affairs had been undertaken. When these actions were instituted the pleadings of nearly all the litigants admitted the fact of the partnership— a circumstance the plaintiff was apparently unaware of when he brought the actions. Plaintiff’s reply admitted the fact of the partnership and he joined with those defendants who sought to have an accounting. The action was tried as one for an accounting and final settlement of the partnership affairs, and it was upon the result of that accounting that defendants’ liability on these notes was determined. Therefore the error based on this point cannot be sustained.
The next objection to the judgment is based on the court’s ruling that each of the defendants was liable for the full amount of the indebtedness evidenced by the notes. Such ruling, however, was correct law. Except in limited and nontrading partnerships it is elementary that every partner is liable for the full amount of the debts of the partnership. (Rizer & Co. v. James, 26 Kan. 221, 224; Deitz v. Regnier, 27 Kan. 94; Crane v. Ring, 48 Kan. 58, 28 Pac. 1010; Hatfield v. Farnum, 48 Kan. 126, 128, 29 Pac. 395; Barber v. Emery, 101 Kan. 314, 167 Pac. 1044; 20 R. C. L. 912, 913; 47 C. J. 905.) It is also elementary law that when one of a group of partners does satisfy its indebtedness, willingly or on execution in invitum, he is entitled to contribution pro rata from his fellow partners when the partnership is wound up. (Clouch v. Moyer, 23 Kan. 404; Clark v. Mills, 36 Kan. 393, 13 Pac. 569; Farney v. Hauser, 109 Kan. 75, 198 Pac. 178; 20 R. C. L. 925, 926; 47 C. J. 809.) See, also, 13 C. J. 820, et seq.
Error is urged because the trial court found that A. C. Pontius was a partner and liable with the others in these actions. Pontius himself, however, has not appealed, so the point need not concern these appellants. His adjudicated-liability cannot possibly prejudice them. It may eventually result to their advantage.
It is next contended that the court erred in finding that John F. Wiechen owned only one unit of the partnership assets instead of two. The record presented here does not permit us to determine the point independently. Moreover, this point was not raised in the motion for a new trial; consequently it is not now open for our review. [City of Atchison v. Byrnes, 22 Kan. 65, 67; Decker v. House, 30 Kan. 614, 1 Pac. 584; Brick v. Fire Insurance Co., 117 Kan. 44, syl. ¶ 2, 230 Pac. 309; State v. Bell, 121 Kan. 866, 869, 870, 250 Pac. 281.)
Another complaint is based upon the trial court’s finding and conclusion that Carl Kreider was not liable on the judgment along with these appellants. Counsel for Kreider objects to the consideration of this phase of the appeal for the alleged reason that judgment was pronounced in Kreider’s favor on March 28, 1930, and that this appeal was not taken until June 27, 1931 — some fifteen months later. However, after the judgment of March 28, 1930, was announced (if indeed any judgment was rendered on that date) a timely motion for a new trial was presented, argued and taken under advisement, and final judgment was rendered on January 3, 1931. In this latter judgment the record recites that a prior judgment was rendered in this cause on May 19,1930, and that—
“The court rendered his [its] judgment of May 19, 1930, under misapprehension and oversight of the contents and provisions of the pleadings herein and that said judgment of May 19, 1930, should be vacated and set aside.”
It was in this last judgment that Kreider was relieved of the liability imposed on his fellow partners — and for an insufficient reason, too, according to the pertinent finding of fact. The court found that Kreider "was engaged in the same business with said defendants.” That fact made him a partner. That he denied the existence of the partnership under oath did not relieve him of his partnership liability. It merely placed upon his adversaries the burden of proving the fact of partnership before liability as a partner could be imposed on him. The trial court found the fact of partnership, not alone from the admissions in various pleadings; the evidence was indisputably to the same effect. Indeed, Kreider’s attorney admitted that he had invested in one of the thirty-two units of the partnership and had paid at least one assessment — perhaps more. Since Kreider “was engaged in the same business with said defend ants” he would have been entitled to a share in the profits if there had been any profits; and he can no more escape the liabilities of the adventure than can his codefendants. (Hardware Co. v. Leasing Co., 104 Kan. 729, syl. ¶ 2, 180 Pac. 734.)
It must therefore be held that in this one respect the judgment of the trial court was erroneous, and that the judgments in both actions require to be modified so as to subject Kreider to the same liability under them as that imposed upon the other partners, and with the same proportionate rights of contribution if he should satisfy the judgment. As to Carl Kreider the judgment is reversed with instructions to enter his name as judgment debtor along with those of the appealing defendants, and in other respects the judgment is affirmed. | [
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The opinion of the court was delivered by
Hutcpiison, J.:
This is an action in equity by C. C. Shelden to compel the delivery of an oil and gas royalty deed executed by Samuel Bright, now deceased, which was delivered by Mr. Bright to a bank to be delivered to the plaintiff under the terms and conditions of a certain writing which was executed by them on August 25,1928.
The heirs of Samuel Bright and the administrators of his estate answered the petition, putting in issue the claims of the plaintiff, and the main questions here involved are the nature and character of the writing executed by these parties and whether it was with or without consideration.
The trial court made detailed findings of fact and followed them with these two conclusions of law:
“1. The contract of August 25, 1928, was without consideration and was, therefore, no more than a continuing offer to sell, revocable at will. That offer having been revoked before the plaintiff paid or offered to pay the purchase price, no binding contract for the purchase of the royalty interest was consummated.
“2. Under the facts as found by the court the relief asked by plaintiff , should be denied.”
Judgment was rendered for defendants, and plaintiff appeals.
The body of the writing signed by these parties on August 25, 1928, is as follows:
“Witnesseth: That whereas on the 15th day of August, 1928, party of the first part agreed to sell and party of the second part agreed to buy an undivided one-half interest in and to all of the oil and gas and other minerals in and under a certain 36-acre tract of land in the west half of the southwest quarter of section 6, township 26 south, range 1 east, Sedgwick county, Kansas, for a consideration of $9,000, and
“Whereas, said Samuel Bright’s title to said land was found to be unmerchantable, it is now agreed between the parties to said transaction, for and in consideration of the sum of one dollar each to the other in hand paid, the receipt of which is hereby acknowledged, that the attached royalty conveyance from party of the first part to party of the second part, shall be held in escrow by Valley Center State Bank under the following terms and conditions:
“Party of the first part agreed to make a diligent effort to have said title perfected and made merchantable within ninety (90) days from the date of this agreement, or as soon as possible after that date. Party of the second part agrees to have his attorney reexamine the abstract of title to said land within three days after abstract is certified to date and delivered to party of the second part, and upon the payment of said sum of $9,000 to the account of party of the first part in Valley Center State Bank, Valley Center, Kan., said bank is hereby authorized and instructed to deliver said royalty conveyance to party of the second part or his assigns.
“Failure of party of the second part to pay $9,000 within four days after receipt of abstract showing merchantable title shall render this contract null and void and said bank shall return all papers in connection therewith to party of the first part, and all agreements and covenants therein contained shall be of no effect.”
Five days before this writing was signed the following statement was addressed to the bank and signed by both these parties:
“To the Valley Center State Bank, Valley Center, Kan.:
“You are hereby authorized and instructed to release all papers in connection with the Samuel Bright conveyance to C. C. Shelden wherein $3,000 was held in escrow in connection with said royalty conveyance.
“Whereas, the title was found unmerchantable and the deal is hereby made at an end, the undersigned C. C. Shelden does hereby acknowledge receipt of the $3,000 and Samuel Bright does hereby acknowledge receipt of the royalty conveyance, and the said bank is hereby released from further liability.”
It would seem there was no question as to the validity of the earlier contract of August 15, which was by mutual agreement on August 20 canceled, or, as was said in the release, “the deal is hereby made at an end.” The first paragraph and part of the second of the contract of August 25 are in the nature of a history or preamble, and the balance of the second and the third and fourth are the ones containing the promises or obligations, one to the other, and the terms and conditions. The second paragraph states it is now agreed that the royalty conveyance shall be held in escrow in the Valley Center State Bank under the terms and conditions which follow.
Appellant insists that this is an escrow contract and as far as this language just cited and the promises and obligations of the landowner are concerned, that would seem to be correct, but the difficulty arises when we search for the promise and obligation of the plaintiff and what his part of the contract helps to make it as a whole. He nowhere promises to purchase the royalty, pay the $9,000 or take up the deed in escrow; neither does he in any way pay or promise to pay or do anything for even an option or time to purchase the same or take up the deed. He simply agrees the deal shall be at an end, if he fails to pay $9,000 within four days after receipt of abstract showing merchantable title.
Appellant cites many cases to show the writing here under consideration was an escrow contract. Some of them concern matters where the escrow holder has disregarded or violated his duties, and others where the maker of the escrow instrument has withdrawn or attempted to withdraw it from escrow, but none of them where there was a question as to the existence of any duty, promise or obligation on the part of the grantee.
The case of Neal v. Owings, 108 Kan. 73, 194 Pac. 324, was where the owner notified the escrow holder to withhold delivery of the deed after having signed a contract of sale where the grantee had paid $1,000 in cash and promised to pay the balance, one-half in cash and the remainder in the form of a note and mortgage. The court discussed the duties of the escrow holder where “a valid contract of sale was made.”
The case of Nolan v. Otney, 75 Kan. 311, 89 Pac. 690, involves the question of whether the title to property vested at time of delivery of deed to escrow holder or at death of grantor — no question about promise and performance of grantee.
In the case of Grove v. Jennings, 46 Kan. 366, 26 Pac. 738, the redelivery of the deed by the escrow holder was held to be unauthorized where there was no evidence to establish that the grantee' had failed to comply with the conditions of the contract, and it was said in the opinion that “The record is silent as to the conditions upon which the deed was to be delivered to Grove by the bank.”
In the case of Scott v. Stone, 72 Kan. 545, 84 Pac. 117, it was held that upon delivery of the deed to the escrow holder by the grantor the conveyance becomes complete and the covenants of the deed relate back to the date of the contract of sale. In that case, however, the grantee agreed in the contract of sale to pay $1,000 and the balance of the purchase price by a definite date. The $1,000 was paid and put up in escrow with the deed.
Appellant relies strongly upon the decision in the case of Davis v. Clark, 58 Kan. 100, 48 Pac. 562, where a definition of an escrow contract was quoted with approval from 6 American and English Encyclopedia of Law, 557, which appears to be equivalent to 11 American and English Encyclopedia of Law, 2d ed., 333, as follows:
“ ‘An escrow is an obligatory writing delivered by the party executing it to a third person, to be held by him until the performance of a specified condition by the obligee, or the happening of a certain contingency, and then to be delivered by the depositary to the obligee, when it becomes of full force and effect.’” (p.-104.)
The definition quoted and approved was all that was necessary to the determination of the question involved in that case, namely, the taking effect of it relating back to the time of deposit. The question of a definite promise made by both parties was fully recognized, the agreement being to furnish the money for a loan of $7,000 for the note and mortgage put up in escrow. As to the necessary features of an escrow contract, the same volume, two pages later, continues with the definition of such a contract, as follows:
“In order that an instrument may operate as an escrow, not only must there be sufficient parties, a proper subject matter, and a consideration, but the parties must have actually contracted. When the instrument purports to be a conveyance of land, for instance, the grantor must have sold and the grantee must have purchased the land. A proposal to sell or a proposal to buy, though stated in writing, will not be sufficient.” (11 A. & E. Encyc. L., 2d ed., 335.)
Along the same line are the following expressions in 13 C. J. as to the essentials of a contract:
“Before an offer can become a binding promise and result in a contract it must be accepted, either by word or act, for without this there cannot be agreement. Nor is a promise binding on its maker unless the promisee has assented to it.” (p. 272.)
“The offerer may revoke his offer before it is accepted, even though he has expressly declared in it that he will not, or has, by the very terms of the offer, allowed the offeree a certain number of days within which to accept it, as in the case of options or refusals, unless the offer is under seal, or unless the agreement to. hold it open is supported by a consideration.” (p. 293.)
In the recent case of Rawson v. Valley Center State Bank, 134 Kan. 711, 8 P. 2d 352, the owner offered to take $17,000 cash for a deed to his oil royalty in a certain tract, and the other party verbally accepted the offer and later put up $6,000 in the bank to apply on the purchase price. It was held not to constitute a contract but to be only an offer notan fact accepted.
“Negotiations between the owner of an oil royalty and a prospective purchaser considered, and held, the offer of the owner required acceptance by deposit of the full sum of $17,000 in a bank for the owner, and without that being done no contract binding either party came into existence.” (Syl.)
. There must be an obligation on the part of the grantee in order to make the writing a contract of any kind.
“Where an offer is made by a vendor to assign his right in a certificate of purchase, issued under a foreclosure sale, for a certain sum -if accepted within a fixed time, it may be revoked by him until it is accepted; but if the vendee elects to accept the offer and gives notice of his acceptance within the time limited, such an accepted offer fixes the obligations of the parties and becomes a binding contract, and the execution of the assignment and the payment of the consideration must then be made within a reasonable time.” (Nieschburg v. Nothern, 101 Kan. 110, syl. ¶ 1, 165 Pac. 857.)
“An instrument, in form a contract, provided that the first party should execute an oil and gas lease and deposit it in a bank, for delivery to the second party, when the second party should begin drilling a well in a specified locality. The second party agreed to begin drilling the well; but the instrument provided that if he did not begin drilling within a stated time the contract and lease should be of no effect. Held, the instrument when signed did not create an enforceable obligation, and the first party could withdraw at any time before the second party commenced to drill.” (Grow v. Davis, 110 Kan. 214, syl. ¶ 1, 203 Pac. 683.)
We are unable to agree with appellant that the writing under consideration is an escrow contract, or a contract of any kind, because it contains no promise or obligation of any kind on the part of the grantee. We think the trial court was right when it held it was a continuing offer to sell.
The court also concluded that the writing was without consider ation. Appellant urges error in this regard, pointing out at least four considerations. The first one that the statute (R. S. 16-107) provides that all contracts in writing shall import a consideration. There are two reasons why this statute cannot apply to this instrument: First, because it attempts to state a consideration of one dollar each, which would be out of harmony with any imported or presumed consideration; and second, because aside from the one-dollar-each provision it shows upon its face there is no consideration when there was no promise or obligation on the part of the grantee. Aside from the feature of loss or detriment, which will be considered next, this writing appears, in the language of Roller v. Ott, 14 Kan. 609, to affirmatively show there was no consideration.
It is contended that the fact that the plaintiff in this writing agreed to have his attorney reexamine the abstract of title, was such a loss or detriment to him as to constitute a consideration, although it may be conceded it was of no benefit to the grantor. The cases of Dendy v. Russell, 67 Kan. 721, 74 Pac. 248, and Farmers Equity Coöp. Ass’n v. Tice, 122 Kan. 127, 251 Pac. 421, are easily distinguishable from the one at bar. The first was a suit on a warranty and the latter on a promissory note. Third parties were interested in each case and in the former the purpose or reason for making such a contract was said by the court to be difficult to understand, and no less than two alternatives entered into the consideration of the particular action taken. A later case, that of Sharpless v. J. B. Kirk Gas & Smelting Co., 128 Kan. 722, 280 Pac. 788, is more nearly under a similar state of facts. In it was a promise to make an option contract for the sale of gas properties for a definite amount and the prospective purchaser agreed to furnish at his own expense engineers to inspect, investigate and appraise the gas properties. Such promise was held not to constitute a consideration. That such expense was for his own benefit and was not a detriment or loss such as is contemplated as necessary for a consideration.
Does the following clause in the writing constitute a consideration?
“It is now agreed between the parties to said transaction, for and in consideration of the sum of one dollar, each to the other in hand paid, the receipt of which is hereby acknowledged . . .”
We think not.
“A recital in a contract that each party has paid to the other one dollar imports no consideration.” (13 C. J. 367.)
“A bargain stated to be ‘in consideration of one dollar by each to the other paid’ does not support a contract even though it be assumed that the sum of one dollar was actually paid by each party to the other.” (1 Williston on Contracts, 241.)
It is also urged that there is a moral obligation and that it is a case of novation. It is difficult to see how the case at bar can be considered under either of these classifications. The definition of a moral obligation, as given in one of the cases cited by appellant, makes it applicable as a compensation for benefits received, which are wholly lacking in this case.
“Moral obligation to make recompense for benefits received will sustain a subsequent promise to pay for the benefits.” (Holland v. Martinson, 119 Kan. 43, syl. If 2, 237 Pac. 902.)
As to novation, we do not think this case comes under the requirements stated for such in 13 C. J. 353, 1 Williston on Contracts, §§ 130 and 130a, and 20 R. C. L. 367.
The court found that the landowner on January 24, 1929, revoked and canceled all rights under the written instrument and demanded the return of his deed. The plaintiff answered this the following day, claiming his rights thereunder, but did not tender or offer to pay the $9,000 until February 3, 1930, more than a year later. The withdrawal of the offer by the landowner before the plaintiff attempted in any manner to accept was fully within the rights of the landowner, as was so forcibly stated in the syllabus in the case of Grow v. Davis, above cited and quoted, where the facts and circumstances were very similar to those in this case.
Reaching the same conclusion as did the trial court, that the writing in question was not an escrow contract but merely a continuing offer without consideration and revocable at will by the landowner, and that the offer was revoked before any offer to pay the purchase price was made, it is not necessary to consider the further questions submitted and argued as to the death of the landowner and other subsequent events making the writing unenforceable.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Hutchison, J.:
Two separate actions commenced by the Peoples National Bank of Ottawa, Kan., were consolidated and tried together in the district court; the first, an injunction suit against C. A. Diven and his wife, alleging fraudulent conveyance of certain real property and asking that the defendants be restrained and enjoined from conveying or mortgaging any of their real estate except their homestead, and that certain deeds already made be set aside; and the second, an action for judgment on two notes given by C. A. Diven.
The answer of C. A. Diven in the first case after some admissions was a general denial, and the answer of his wife alleged that one of the tracts mentioned in the petition was a gift to her from her father, but had been conveyed to her and her husband jointly, and that the other tract was conveyed to her by her husband for his indebtedness to her for money advanced by her to him, setting forth the items of the indebtedness.
A supplemental petition was filed in this first case alleging that judgment had been procured against C. A. Diven in the second case, that an execution thereon had been returned “no goods found,” and that if the conveyances made by Diven to relatives were sustained, he was wholly insolvent. In the second case attachment orders were procured and issued to the sheriffs of Franklin and two other counties at the time of filing the petition, and after service and confirmation thereof, the wife and Mrs. Julia A. Crouse, the mother-in-law of C. A. Diven, filed intervening petitions by leave of court in ■ which they separately claimed to be the owners of the real property attached as having been conveyed to them separately by the defendant C. A. Diven for valuable considerations. •
The answer of the plaintiff to the two intervening petitions was that the sheriff had made a return on an execution on the judgment against defendant of no property found, that the defendant had been the owner of a large amount of land at the inception of the indebtedness to the plaintiff and that these and other transfers made by defendant to relatives at the time of the maturity of the bank indebtedness and demand for its payment, if sustained, rendered him wholly insolvent, and both interveners knew of defendant’s indebtedness to the bank and the purpose of the defendant in making such transfers to them and other relatives.
The trial court made findings of fact and conclusions of law and-rendered judgment for plaintiff, from which the defendants and interveners appeal, assigning error in making the findings contrary to the evidence, the conclusions contrary to the law and in overruling the motion for a new trial. In addition to findings as to details the court concluded with the following findings of fact:
“On August 23, 1930, shortly after the return of Diven and Devilbiss from Greenwood and Woodson counties, C. A. Diven executed deeds to his mother-in-law, Julia A. Crouse, and his wife, Edith E. Diven, to practically all of the real estate which stood in his name with the exception of the homestead occupied by him and his wife.
“I find that these deeds were executed without consideration and for the purpose and intent of putting such property as the defendant, C. A. Diven, had beyond the reach of his creditors.
“The property owned by C. A. Diven after the conveyances hereinbefore mentioned were executed was wholly insufficient to satisfy the judgment rendered in action number 12,087.
“I find generally for the plaintiff upon all issues.”
The court made the following conclusion of law:
“The deeds in evidence as exhibits seven, eight, nine, ten and eleven executed by C. A. Diven were fraudulent in their inception and conveyed no title to the grantees therein.”
This is almost completely a fact case. There is very little contention as to the evidence supporting the findings as far as C. A. Diven is concerned. It shows that he made two financial statements for the bank for the purpose of procuring credit therefrom, one in 1926 and the other in January, 1929, in both of which he definitely stated he owed nothing to relatives. The last statement shows he owed the plaintiff bank at that time $8,600, and the evidence shows he shortly thereafter increased his indebtedness there to more than $10,000. In both statements he definitely promised he would immediately notify the bank of any material unfavorable change in his financial condition.
The evidence shows his loan became due August 28, 1930, and between the 15th and 20th of August a bank officer checked over the chattel security with him and told him the amount above $3,000 on the cattle would have to be paid or secured by August 28, when the note matured. On August 20 the bank officials wrote defendant a letter confirming this conversation. On August 23 the defendant, his wife, his mother-in-law and his son went to the office of his attorney and he there executed seven deeds to his relatives, mostly to the wife and mother-in-law, covering all the property he owned except his homestead. The bank foreclosed its chattel mortgage on the cattle after August 28, and after crediting the amount derived therefrom on the notes it left a balance of nearly $8,000 due the bank. The defendant denies having any such conversation with the bank official and denies having received any such letter.
Counsel for the interveners most seriously and earnestly contend that the findings as to want of consideration for their deeds and their knowledge of the purpose and intention of Diven to put his property beyond the reach of his creditors, is wholly unsupported by the evidence, asserting the fact that no witness testified to the contrary as to the existence of the indebtedness of Diven to his wife and his mother-in-law, and that all the testimony concerning the same was that of the interveners, giving the items, dates, purposes and amounts of it covering many years, and that of Diven acknowledging and admitting tlie indebtedness to them as they claimed it to be. In this contention the appellants overlook the long-established rule that it does not require contradictory, evidence or a conflict therein to justify a court or jury in totally disregarding the evidence given as un worthy of credit. The human element of personal and selfish interest in the result is always proper for consideration in such matters.
“A court or jury is not required to believe a witness or accept his statements as conclusive merely because there is no direct evidence contradicting his state-' ments.” (Cobe v. Coughlin, 83 Kan. 522, syl. ¶ 2, 112 Pac. 115.)
“The triers of the facts are not bound to believe the testimony given on behalf of a litigant, even in the absence of express contradiction or rebuttal.” {Fenn v. Kansas Gas & Electric Co., 118 Kan. 131, syl. 14, 234 Pac. 77.)
“Rule followed that a jury is not bound to accept as true the testimony of a witness even though it be not contradicted by direct evidence.” {Young v. Lucas, 132 Kan. 484, syl. ¶ 1, 296 Pac. 362.)
While there may properly be business transactions between relatives deserving just as much consideration as to fair dealing as any other, yet when accompanied with and surrounded by peculiar circumstances they are said to give rise to suspicions and to especially invite close scrutiny. Some of such peculiar circumstances here brought out in evidence as to the, interest of Mrs. Crouse are the erasures in the date of the two contracts of August 2, 1930, the making up of the statement of account on August 23 and the destruction of the papers of original or former entries, the typewriting of the contract for use in court; the doubt as to June 16,1917, being the correct date of note given her by defendant for $955.02, the extreme age of the notes and running accounts without settlement and the hurried settlement after August 20 and before August 28. These matters, together with the impressions that may have been made upon the mind of the court by observing the conduct of these very greatly interested witnesses upon the witness stand, their promptness, candor, and numerous other matters to be considered in determining the credit to be given to their testimony, properly go with the words uttered upon the stand and have their place and part in the process of arriving at the facts in the case. Our only duty in reviewing a situation of this character is to determine.if there was sufficient evidence to support the court’s finding in this regard, and we think there was.
“In so many cases of this character, where there is a claim that a sale of all the property by a failing or insolvent creditor, to his wife, or some other member of the family, is made to defraud creditors, direct proof of fraud is not easily obtained. In most cases it must be established by circumstances surrounding the transaction. . . . The good faith of the transaction was a question of fact to be determined by the trial court, and it is found -that the sale was made in fraud of creditors. This court is not a fact-finding tribuna! and the credence to be given to the statements of witnesses was a function for the trier of the facts. Besides the peculiar circumstances of the sale set forth in the record, there may have been much in the appearance of the witnesses, and their manner of testifying at the trial, that tended to discredit their evidence. In addition to the fact that Mr. Seamans and his son were being pressed by creditors, that several judgments had been rendered against them just about the time of the sale, and that they were in fact insolvent, the sale of the property to their wives naturally gave rise to suspicions. Where the transfer is from husband to wife, the circumstances are to' be closely scrutinized, to see that it is free from fraud.” (Citizens Finance Co. v. Seamans, 129 Kan. 743, 745, 746, 284 Pac. 422.)
"While in transactions between relatives fraud is not presumed from the mere relationship of the parties, yet such relationship may be taken into consideration as a circumstance bearing upon the question of the good faith of the transaction.” (Hardcastle v. Hardcastle, 131 Kan. 319, syl. ¶ 1, 291 Pac. 757.)
Appellants urge that the court confused the interest of the two interveners where the purposes of the conveyances were different, in that those to the wife were only as security for the indebtedness to her while those to Mrs. Crouse were outright purchases. The finding of the court that the scheme and device was the same as to both interveners does not indicate that the distinctive facts were not separately considered.
Appellants cite Schram v. Taylor, 51 Kan. 547, 33 Pac. 315, and Hasie v. Connor, 53 Kan. 713, 37 Pac. 128, and many other decisions holding that a creditor may in good faith take property of his debtor at a fair valuation in payment of an honest debt, even when it absorbs all the property of the debtor, and not be guilty of defrauding anyone and that, too, even if he is a relative of the debtor, and that he may properly hold his preference thus honestly acquired for a valuable consideration. This is good law, but the findings take the other view of the facts and circumstances as to valuable consideration and knowledge of a different design and purpose on the part of the principal defendant. Facts and circumstances of similar character but leaning the other way on these two very important elements would properly lead to different findings and then necessarily to a different conclusion.
■ A very unusual line of evidence was furnished in support of the motion for a new trial, going largely to establish the date of one of the notes to be the correct date on which it was executed, and serious objection is made to the setting out in the brief of the appellee the remarks of the trial judge as to the difference between the form and details of the original note and the similar blank recently found and produced. The recently found blank was purposely introduced by the appellants to show a similarity and thereby support the correctness of the date, and the remarks of the judge simply point out differences observed by him. The abstract or counter abstract are the proper places for setting out the part of the evidence and record necessary for review, but frequently omitted parts are supplied in the briefs with opportunity afforded for criticism or attack. We see no error in doing so in this case and no error in overruling the motion for a new trial. A change of the finding that the date given was in fact the actual date of the note in question would not in itself be sufficient to have changed the results with the other findings remaining as they were.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by Anna Eaton, widow of Ephraim Eaton, deceased, against B. A. Salyer, doing business as the Salyer Produce Company, and R. A. Stewart, the employee of Salyer, to recover damages for injuries alleged to have been negligently inflicted upon her husband by striking him with a truck, which injuries resulted in his death.
In a trial with a jury, a verdict in her favor for $1,500 was returned, which the court approved and judgment was accordingly entered. Defendants appeal, contending only that the findings and judgment are not supported by the evidence, and that the death of Ephraim Eaton was the result of his own negligence.
There is a viaduct on Branner street in Topeka, running north and south, and defendants’ truck was being driven south over the viaduct, which reaches the level on Third street, where the accident occurred. An ordinance of the city provided a limitation of speed on the viaduct of twelve miles per hour. The truck was being driven at the time of the accident at more than twice the prescribed speed. Ephraim Eaton, a pedestrian, had started across the intersection of Branner and Third streets, and when he reached the center of the street he saw a vehicle coming in the other direction and stopped for a moment and appeared to move back a step or two when he was struck by the defendants’ truck. When the driver of the truck saw the deceased in the street he suddenly applied his brakes and turned the truck towards the curb, which operated to swing the end of the truck towards the center of the street and the place where the deceased was standing. There was testimony that there was sufficient room between Eaton and the curb to have passed him with safety, if the truck had been properly handled.
One witness, Hentzler, testified that the deceased was about the center of the street when he saw him. A couple of cars were then coming from the south, one of them went between Mr. Eaton and the east curbing. “He just stopped and kinda looked around.” Another witness called by the defendants, Burgett, testified that he turned his head a little bit to the north, and the truck “had gone up to the old man, and he was trying to get out of the road of it, and the man with the truck was tiying to get on to the curb to clear him.” There was testimony, too, that the truck which hit him “had-not come into sight then, it was coming over the viaduct and down the slope. It looked as if the trucks were trying to pass each other on the viaduct.” A witness stated that there were a number of trucks coming down the viaduct and seemed to be racing with one another, finally one got ahead and the other fell behind it, and that the trucks were then at about one hundred feet from the south end of the viaduct.
While some of the witnesses testified that there was excessive speed, saying that the truck was being driven at thirty-five miles an hour, the special finding of the jury was that the speed of the truck at the time of the collision was twenty to twenty-five miles an hour. There was also a special finding that the defendants were negligent in the speeding of the truck, and a special finding, also, that the deceased was not guilty of contributory negligence.
In this appeal defendants contend that there was contributory negligence on the part of the deceased which should bar a recovery for damages. Negligence of defendants was found by the jury and there is little contention, or room for contention, as to the negligence of the defendants, but the claim is that the negligence of Eaton contributed to the injury with that of the defendants, and this plea in a sense implies negligence on their part. They insist that both plaintiff and defendants were required to exercise ordinary care, that plaintiff failed to exercise ordinary care in the circumstances, and that this failure bars a recovery. There is testimony tending to show that Eaton started across the street and had time to make the crossing as far as the defendants’ truck was concerned, if it had been traveling at an authorized speed, and that when he reached the center of the street he was confronted with the sudden appearance of another automobile coming from the opposite direction. In this situation what should he have done? If he advanced there was peril, and it appears that there was peril in retreating. The step or two taken backwards proved to be dangerous, although there was testimony that there was room between Eaton and the curb for defendants’ truck to have passed with safety if the truck had been carefully driven. In such an emergency while it. was the duty of Eaton to exercise diligence to avoid injury, consideration must be given to the sudden danger that arose, and even if Eaton did not choose the wisest and best course in the emergency he is not to blame if there was not time and opportunity for deliberation and the exercise of the best judgment. (Railroad Co. v. Langley, 70 Kan. 453, 78 Pac. 858; Barnhardt v. Glycerin Co., 113 Kan. 136, 213 Pac. 663; Ryan v. Atchison, T. & S. F. Rly. Co., 131 Kan. 706, 293 Pac. 763; Webb v. Lipperd, 134 Kan. 764, 8 P. 2d 381; Shrout v. Bird, 135 Kan. 218, 9 P. 2d 673; Godsey v. Cox, ante, p. 343, 10 P. 2d 871.)
Under the facts in the case it cannot be held that Eaton was guilty of contributory negligence as a matter of law. It is clearly a case for the determination of a jury, and the jury after considering the testimony of the witnesses and the reasonable inferences arising therefrom, have specifically found that Eaton was not guilty of contributory negligence.
No complaint is made of the instructións of the court, and it must be assumed that the court correctly stated the law of negligence as applied to the facts of the case. That court has approved the findings and verdict of the jury, and it follows that the judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is a compensation case. The appeal is taken by the respondent from a ruling of the district court reversing the decisions, findings, rulings and denial of award by the commissioner of workmen’s compensation and remanding the cause to the com missioner with directions to proceed in harmony with the findings of fact and conclusions of law made by the district court, to hear evidence of the claimant upon the question of disability, if any, and make and file findings and decision thereon.
The commissioner had heard evidence pro and con on the question of the claimant having made the necessary demand, as required by the compensation statute (R. S. 1931 Supp. 44-520a), and had limited the testimony to that question, the record showing that—
. . the commissioner stated at the close of the hearing that, if he decided he should reserve his ruling on the question of whether or not proper demand has been made or if he found that demand had been made as required by law, then in either case the matter would be set down for further hearing and the parties notified.”
Later the commissioner found that the claimant had not made the written demand required by law and “that claimant must be denied the right to proceed with the hearing herein.”
The principal legal question here involved is whether the_ district court has jurisdiction on appeal of a compensation case to remand it to the compensation commissioner with directions to hear or admit further evidence. This question is positively answered in the negative in the first paragraph of the syllabus of the case of Fougnie v. Wilbert & Schreeb Coal Co., 130 Kan. 410, 286 Pac. 396, as follows:
“The workmen’s compensation act prescribes its own procedure for a judicial review of proceedings had before the compensation commission, and on appeal the district court has no jurisdiction to- remand the cause to the compensation commission to admit further evidence theretofore rejected or ignored by the commission; nor is the court authorized to hear evidence supplementing the record shown by the transcript, nor to grant a trial de novo ”
Appellee distinguishes between the Fougnie case and the one at bar by the fact that there the evidence was offered and rejected by the commissioner, while here it was_ not offered because of the announced attitude of the commissioner to hear the evidence only on the one feature of demand and later on the disability feature, as made necessary by the ruling on the question of demand. This is in effect the same as a rejection of an offer, except as said in the opinion in that case that the tendered evidence might have been put in the form of an affidavit and made part of the transcript submitted to the trial court for decision, but it was not so submitted, which left that case just where this one was left by the ruling of the commissioner. In neither case did the necessary evidence reach the district court on appeal from the ruling of the com missioner. We adhere to the decision, and the reasons given in the Fougnie case, that the province of the district court in an appeal from an award or refusal to make an award in a compensation case is not to remand the case for further proceedings, but to grant or refuse compensation or to increase or diminish the award made by the commissioner.
“On any such appeal the district court shall have jurisdiction to grant or refuse compensation, or to increase or diminish any award of the commission as justice may require.” (R. S. 1931 Supp. 44-556.)
The procedure adopted by the trial court was in accord with the civil procedure, but the legislature has seen fit to disregard the rules and methods of civil procedure and to substitute a system of its own, which is undoubtedly intended to be complete in itself. It was said in the case of Norman v. Consolidated Cement Co., 127 Kan. 643, 274 Pac. 233, that the legislature had provided an-administrative method of passing upon such claims; that it was “substantial, complete and exclusive”; that we are not warranted in borrowing rules from the civil code not included in the act itself; that it is a new system substituting a simple summary and inexpensive remedy with special procedure, quite unlike that of the civil code. '
“Where an appeal is taken to the district court from an award of compensation under section 1 of chapter 206 of the Laws of 1929, the court’s jurisdiction is limited to a review of questions of law and fact which arise on the face of the record made before the compensation commission and does not extend to the consideration of testimony or matter not ‘presented, had and introduced before the commission.’ ” (Orendoc v. Kaw Steel Construction Co., 131 Kan. 366, syl. If 1, 291 Pac. 952. See, also, Walz v. Missouri Pac. Rld. Co., 130 Kan. 203, 285 Pac. 595.)
The appellate jurisdiction of the supreme court is limited in compensation cases to questions of law, and the question of the right of the district court to remand a compensation case to the commissioner is purely such, and therefore under the previous rulings of this court the ruling of the district court must be reversed at least as to the order to remand the case. The findings and conclusions of the district court on the question of demand, whether right or wrong, become ineffectual when they neither grant nor refuse compensation nor increase nor diminish the award, to which matters alone the jurisdiction of the district court is limited on appeal. (R. S. 1931 Supp. 44-556.)
Appellee insists that this court, under its general and inherent right to exercise a supervision over all inferior courts, can make an order to remand if it is held to be beyond the power of the district court, but with the manifest intention of the legislature to place compensation cases in a separate class, this court should use such special supervision and control only in extreme and unusual cases.
Appellee further directs our attention to a clause in the closing part of the section on appeals in the compensation statute with reference to the authority of the supreme court, as follows:
“. . . and thereafter such appeal shall be prosecuted in like manner as other appeals in civil cases . .
Even this would not justify a disregard of a specific limitation of jurisdiction on appeal.
The trouble in this case, as it appears to us, arose in the hearing before the commissioner when he was evidently thinking of the usual civil procedure to an extent that he temporarily lost sight of the special and specific procedure prescribed for compensation cases. While under R. S. 1931 Supp. 44-556 appeals may be taken from any and all decisions, findings, awards or rulings of the commissioner to the district court, yet there is no provision for taking an appeal on any such adverse ruling during the progress of the hearing as there is under the civil code. R. S. 1931 Supp. 44-534 outlines the duties of the compensation commissioner in the matter of hearing the application of the claimant as follows:
“. . . the commission shall forthwith mail a certified copy of said application to the adverse party and proceed, upon due and reasonable notice to the parties, which shall not be less than twenty (20) days, to hear all evidence in relation thereto and to make findings concerning the amount of compensation, if any, due to the employee.”
Why should he hear all the evidence? Simply because the statute requires it and this is an administrative method of determining the existing rights of the claimant and the respondent based upon a contract, and also to afford the court on appeal as to the law and the facts an opportunity to grant or refuse compensation, and to increase or diminish the award. Without all the evidence bearing on the question involved the district court cannot exercise its right and duty under an appeal. In declining to hear evidence as to the disability of the claimant, the commissioner failed to hear all the evidence in relation to the controversy and to make findings concerning the amount of compensation, if any. The reason given by the commissioner during the progress of the hearing, as above quoted, was undoubtedly in the interest of economy of time, but it deprived the parties interested of an opportunity of effectual appeal. In fact, the hearing of only one branch of the controversy prevented an appeal. With the evidence in on both branches of the case the decision on one branch may dispense with the necessity of making a finding or decision on the other branch. But the commissioner should hear all the evidence, that is, the evidence on all points involved, and until that is done and a ruling made the case is not ready for appeal, but still stands as a case only partly heard and tried before the commissioner. The appeal attempted was not an effective one. It has accomplished nothing for either of the parties. They both stand where they were when it was discontinued before the commissioner with the evidence heard only on one branch of the case. When the hearing on all branches involved is concluded and a ruling is made thereon the case will be subject to appeal.
The judgment is reversed and the attempted appeal from the ruling of the compensation commissioner is set aside because the hearing before the commissioner was unfinished and incomplete. | [
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The opinion of the court was delivered by
Sloan, J.:
This is an action to recover the balance due on a building contract. The plaintiff prevailed, and the defendant Wilcox appeals.
In 1929 the defendant, E. C. Wilcox, entered into a written contract with C. F. Knedler, a general contractor, to repair and condition a certain store building known as the J. C. Penney store building in Anthony. The plans and specifications, which were made a part of the contract, contained, among other things, the following:
“Cover all roofs so indicated on drawings with twenty-year Barrett roofing, laid in accordance with the most recent Barrett specifications. A similar roof of equal guarantee, can be substituted, upon written approval of the J. C. Penney Company.
“This contractor shall guarantee all roofs and flashings to be water-tight and perfect for a. period of twenty years and shall make good, without cost to the owners, any damage caused by leakage during that period.”
The general contractor entered into a subcontract with the plaintiff to roof the building with a Barrett specification roofing. The con tract has been fully performed. In the repair of the main building the roof of the building just to the rear of the main building was badly damaged by workmen walking over it, and it became necessary to reconstruct the roof on the building at the rear of the main building. The plaintiff entered into a contract with the defendant Wilcox to construct this roof. This contract is set out in the findings of fact.
On the completion of the contract a controversy arose between the plaintiff and the defendant Wilcox as to the form of bond which the plaintiff was obligated to furnish under the contract. Wilcox refused to pay on the ground that the bond furnished did not meet the requirements of the contract. The plaintiff sued and on motion of the defendant the general contractor was made a party defendant. The case was tried by the court without a jury. The court made special findings of fact and conclusions of law, which are as follows:
“1. That in the summer of 1929 the defendant, E. C. Wilcox, entered into a written contract with C. F. Knedler as general contractor to repair and recondition a certain building known as the J. C. Penney Store building in Anthony, Kan., and that the plaintiff as subcontractor contracted to* put on said building a ‘Barrett specification roof.’ That at the rear of said building there was a roof containing about eight squares a few feet lower than the roof of the main building and which was badly injured by the workmen during the reconstruction of the main building and it became necessary to reconstruct this roof.
“2. Thereafter and on or about August 17, 1929, the following instrument in writing was entered into:
“Gooch Roofing Company, 211 South Sedgwick, Wichita, Kan.
“contract.
“We propose to furnish and apply the roof on the rear Penney store add building located at Anthony, Kan., consisting of five-ply pitch and gravel roof laid according to the plans and specifications including the furnishing and installing of the metal flashing for the total sum of $137.50.
“This roof will be guaranteed by bond for a period of twenty years.
“Respectfully submitted,
“Gooch Roofing Company,
“Accepted: E. C. Wrncox, owner. Per C. E. Gooch.
“Date ---
“C. F. Knedler, contractor.
“Metal gutter and downspout included.
“3. The above contract'was on a printed form in the last line of which as printed it provided, ‘This roof will be guaranteed by us for a period of twenty years.’ The word ‘us’ had been erased and the word ‘bond’ inserted above it in pencil mark.
“4. That the roof requested by the defendant, Wilcox, and the roof the plaintiff, Gooch, proposed to furnish, was mutually understood between the parties to be a ‘Barrett specification roof.’
“5. That in pursuance of said contract between the plaintiff and the said defendant, the plaintiff furnished and laid on the rear of said Penney store building a ‘Barrett specification roof,’ and furnished and installed the necessary metal flashing together with metal gutter and downspout.
“6. That at the time of the completion of said contract by plaintiff the defendant became indebted to the plaintiff in the sum of $137.50, no part of which has been paid by the defendant, although the defendant offers in his pleadings to pay said sum into court together with the further sum of $212.50 yet remaining unpaid upon the contract between the plaintiff and the general contractor, namely, C. F. Knedler.
“7. That in the contract between the defendant and general contractor, Knedler, the plans and specifications contained the following paragraph, to wit:
“ ‘This contract shall guarantee all roofs and flashings to be water-tight and perfect for a period of twenty years and shall make good without cost to the owners any damage caused by leakage during that period.’
“8. That by executing the contract between the defendant, Wilcox, and the plaintiff, the said C. F. Knedler became bound to carry out all of the provisions of the contract, and no additional guaranty is contemplated by the paragraph of said contract above set forth.
“9. That the said defendant, E. C. Wilcox, admits that he is owing to the said C. F. Knedler -and the said plaintiff the sum of $350, and claims that said sum should not be paid for the reason that the bond called for in the contract between the plaintiff, Gooch, and the defendant, Wilcox, has not been furnished.
“10. The court further finds that under the terms of the contract between the plaintiff and the defendant, Wilcox, the plaintiff was required to give a bond to the effect that the general guarantee used in the construction of a. ‘Barrett specification roof’ should be supplemented by a bond given by the plaintiff, and that upon the giving of such bond the plaintiff is entitled to recover from the defendant, Wilcox, the said sum of $137.50.
“11. The court further finds that the plaintiff before the commencement of this action tendered to the defendant, E. C. Wilcox, a good and sufficient bond covering the matters in controversy and within the contemplation of the parties signed by the Barrett company as principal and the United States Fidelity & Guaranty Company as surety; and the court further finds that the plaintiff has neither tendered nor given to the defendant, Wilcox, the supplemental bond contemplated by the parties, the conditions of which bond the court finds should be in a form and under conditions whereby such bond in legal effect should be in terms substantially the same as the ‘twenty-year guaranty bond’ offered in evidence as plaintiff’s exhibit B.
“Conclusions op Law.
“1. That the plaintiff is entitled to recover from the defendant, E. C. Wilcox, the sum of $137.50.
“2. That the defendant, C. F. Knedler, is entitled to recover the sum of $212.50 together with interest thereon at the rate of six per cent per annum from the date of the completion of said building to wit, February 17, 1930, to this date.
“3. That the plaintiff is required to make and tender to the defendant, E. C. Wilcox, his bond as contemplated by the eleventh finding of fact herein.
“4. That the defendant, E. C. Wilcox, within ten days from this date should pay to the clerk of this court the sum of $137.50 so found to be due to the plaintiff and that within the same time the plaintiff should deliver to the clerk of this court his supplemental bond as found by the eleventh finding herein, and thereafter the clerk of this court should deliver to said plaintiff the said sum of $137.50 and within the same time should deliver to the defendant, E. C. Wilcox, the bond aforesaid.
“5. That the costs of this action should be divided equally between the plaintiff and the defendant, E. C. Wilcox.
“6. That in the event of failure on the part of the said defendant, E. C. Wilcox, to pay the sums of money as herein set forth within the times therein fixed the liens of the plaintiff and of the said C. F. Knedler be foreclosed as provided by law.”
The appellant contended in the trial of the case, and argues here, that the appellees were bound under the terms of the specifications and the contract to guarantee the roofs and flashings to be watertight and perfect for a period of twenty years, to make good without cost to the owner any damage caused by leakage during that period and to furnish, a bond securing the performance of the guaranty. It was contended on the part of the appellees that the provision in the specifications obligated the contractor only, and the appellees were only required to furnish a bond in accordance with the terms of their contract, the conditions of which are well recognized in the trade. The appellant presented eleven assignments of error, some of which are not very material.
It is first contended that the court erred in rejecting certain testimony. The appellant attempted to introduce testimony explaining the terms of the contract which are set out in finding number two. The court held that the contract was not ambiguous and that there was no reason for the consideration of extraneous testimony for its explanation. The court did, however, receive testimony with reference to the word “bond” for the reason that it was apparent on the face of the contract that the printed form had been changed. There is no ambiguity in the contract and consequently the testimony was properly refused.
It is next contended that the contract and specifications, when construed together, obligate the appellees to furnish a bond conditioned, in substance, to guarantee the roof for a period of twenty years and to make good to the appellant any damage caused by leakage during that period. The specifications set out in finding number seven obligate the contractor to guarantee the roof for a period of twenty years and to make good to the owner any damage caused by leakage. The contract with the appellees with reference to the roofing was a separate and distinct contract in so far as the guaranty is concerned. Nothing is said in the specifications about the giving of a bond. The bond relates entirely to the contract between the appellee [plaintiff] and the appellant. There was evidence to the effect that the bond contemplated by the parties was one in terms and conditions substantially the same as the bond nationally advertised and commonly known as the Barrett specification bond, covering Barrett specification roofing. We think the court properly construed the contract and that the bond described in the eleventh finding of fact fulfills the obligation of the appellees.
It is next contended that the court erred in failing to find material facts. The trial court did not adopt the appellant’s theory of the case and consequently did not adopt his suggested findings of fact. The appellant complains because the court in setting out the specifications in finding number seven used the word “contract” while the specifications used the word “contractor.” This is probably a clerical error. In any event we do not think.it is material to the issue. Complaint is also made that the court used the term “Barrett specification roof” while the specifications used the term “recent Barrett specifications.” We are unable to see how the appellant was prejudiced in the use of this term. We have examined the suggested findings of fact and find that the court did not err in refusing to adopt them.
It is contended that the findings of fact are not supported by the evidence. We have carefully examined the evidence and find that there was substantial evidence to support the court’s findings.
It is next contended that the court erred in its conclusions of law. We think that the conclusions of law are fully supported by findings of fact, except conclusion number six, in which the court directed the foreclosure of mechanics’ liens in favor of the appellees. We have examined the evidence and it appears that the only evidence offered on the subject is to the effect that labor was last performed and material furnished on the building September 20, 1929, and that the statements for the liens were not filed until February 17,1930. The statements were not filed within four months from the time labor was last performed or material furnished. (R. S. 60-1402.) The appellees did not establish that they had valid liens, consequently conclusion of law number six was error.
We have examined all of the assignments of error with care and find that there is no merit in the contentions made by the appellant.
The case is remanded with directions to the trial court to set aside conclusion of law number six and the judgment entered thereon. In all other respects the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this action Daniel G. Sheets sued his employer, H. L. Eales, to recover compensation for extra services alleged to have been rendered to his employer which were unpaid and which he alleged amounted to $3,019.74. Plaintiff undertook to prove that defendant was indebted to him for services rendered under a written contract and also for extra services, but when his evidence was completed and he had rested, the court sustained defendant’s demurrer to his evidence, holding that he had failed 'to establish a cause of action against the defendant.
There was an elaborate written contract of employment entered into by the parties on March 23, 1926, covering the services of plaintiff from January 1, 1926, to January 1, 1927. It was stipulated that plaintiff should assist defendant in carrying on the business of selling tires, tubes, gasoline, oils, grease, alcohol and other antifreeze materials for automobiles, and also for general tire repairing, and should receive as compensation one-fourth of the net profits of all sales and for vulcanizing service. To provide for plaintiff’s living expenses it was agreed that he might have a drawing account of $25 per week as against the anticipated net profits he was to receive. The contract defined “net profits” of the business to be those arising from the sale of commodities handled and from the vulcanizing after all salaries, rentals and other expenses commonly termed and classified as “overhead” are paid, and it was further agreed that the term “expenses” should include purchase price of tools, fixtures, machinery and general equipment as might be necessary to the proper conduct of the business. There was a stipulation, too, that the plaintiff should be interested only in net profits and was not to acquire any ownership in the business itself, nor in tools, fixtures, machinery or equipment. It contained a provision that the employee agreed to devote his entire time, skill, labor and attention for the compensation stated, and devote his time to the business from seven o’clock a. m. until closing time, the same to be regulated by the requirements of the business, which closing hour usually was about ten p. m., and that the employee should have his time off every other evening and every other Sunday.
Another provision was that the service might be terminated at any time by either party on giving the other ten days’ notice in writing and upon the payment to the employee of what might be coming to him, but that the employer should be the sole judge of the cause for discharge, and that any agreement or arrangement whereby the employee has heretofore been employed by the employer is canceled, released and discharged.
Appellant claimed that he worked under this contract until the business was sold in July, 1929; that he worked eighty extra evenings and ten extra Sundays in 1926, and eight extra Sundays and sixty-eight extra evenings in 1927, which under the contract he was to have off. He gave testimony, too, to the effect that near the end of 1927 he told defendant he would have to have more money for 1928, and that defendant responded by saying, “Don’t worry; I will take care of you.” In December of 1927 he said he told defendant that he would have to have «$45 to $50 per week if he worked for him in 1928, but no change was made in the contract and he said defendant replied, “Let it slide, and I will pay you a bonus at the end of the year that will make as much money.” Plaintiff testified that defendant stated at one time, “We will agree on a settlement of the extra time which will be absolutely satisfactory.” On another occasion he said, “I always have paid you for extra time and I will pay you from now on.” When he asked for extra pay in 1928, defendant said, “Let it ride and I will pay you that much in bonus.”
On the other side the contention is that the compensation was fixed by the written contract, and that under numerous authorities cited payment for extra services cannot be required in the absence of proof of an express agreement to that end; and it is said, too, that the contract is one in which both employer and employee had a mutual interest in the success of the business; that is, the net profits of the business, and while no doubt the appellant rendered some extra service there is also no doubt but what he was interested in the business and his compensation was measured by the profits of the business. It was as much to his interest to increase the profits by extra service as that of the defendant, and it is said that being done in a mutual enterprise he is not entitled to recover for extra time under the theory of the contract.
It is conceded that there was proof of some extra time and extra service, and also proof of the subsequent statements of the employer that he would pay a bonus and also settle to the satisfaction of the plaintiff. The claim is, however, that it is apparent from all the testimony that he became dissatisfied with his contract at the close of 1927 and during 1928, when the profits became less than his drawing account. That plaintiff’s testimony shows inconsistencies and a condition which justifies the inference that if one claiming for extra compensation wants to be paid therefor, he must produce a definite express contract to that effect.
The plaintiff was not to have a stipulated wage by the day, month or year, but his compensation was to be based upon the earnings or profits of the business. He was to get one-fourth of the net profits as remuneration for his services and, of course, an increase in the profits would correspondingly increase his compensation. In that sense he was interested in the sales made and the vulcanizing and repair work done, and that the time, skill and energy devoted to their business would inure to the benefit of both. The parties took care to define net profits and what should be treated as business expenses in figuring up net profits. Nothing was said in the contract about payment for any extra time spent or extra services rendered, but it did include the provision relating to the plaintiff giving his time and attention to the business, naming time to be regulated by the requirements of the business, and stating that plaintiff should have time off every other evening and every other Sunday. Plaintiff claims that because he did not have time off the work done by him was extra services for which he was entitled to added compensation. It may be remarked that the extra work he claimed to have done was of the same character that he was employed to do under the contract. He says remarks were made from time to time by his employer in response to claims that he was not receiving enough money for the services rendered, that the response was, “Let it ride, I will pay you that much as bonus,” and on another occasion the defendant said, “We will fix it up in another contract”; and on still another that, “We will fix it up satisfactorily,” and other like vague expressions. It was never “fixed up” in another contract nor any direct promise made of what should be paid for any extra services. It may be assumed that in the course of the employment plaintiff may have performed services on more evenings and Sundays than were referred to in the paragraph relating to his diligence and devotion to business, and of the division of time between him and the defendant. But no agreement was ever entered into that any particular sum should be paid for any extra services that might have been rendered. He continued to work under the written contract and it, as we have seen, did not stipulate that payment would be made for any extra services.
In Guthrie v. Merrill, 4 Kan. 187, .a plaintiff agreed to work for a stipulated price, the contract being silent as to extra services. The plaintiff claimed that he did extra work on Sundays, for which he asked payment. The court held that if he chose to perform such services, which were of the same kind as were included in the contract, he should be held to have performed them under the contract and that his claim for extra services could not be upheld.
In Weaver v. Skinner, 103 Kan. 97, 172 Pac. 1024, Weaver sought to recover against the administrator of an estate for the board and care of a-man who was advanced in years and was ill. He was to be paid $2.75 a week as compensation, which was paid monthly for some time. Weaver claimed that the cost of living had increased, that the man he had in his care had suffered a paralytic stroke and that the care he was to furnish him was worth $15 a week. Weaver had complained to Skinner that he was not getting enough compensation and said that when Skinner was spoken to about it he remarked that, “He didn’t have the money now, but intimated that he might have later.” There was no agreement for additional com pensation. The court held that the demurrer to Weaver’s evidence, which admitted the making of the contract, and there being nothing in the contract providing for additional compensation, the evidence was insufficient to establish the claim for extra compensation, and that the court should have sustained the demurrer to plaintiff’s evi- ■ dence.
In 25 A. L. R. 218 there is an extended note treating of a servant’s right to compensation for extra work or overtime, and a rule was stated based on a vast number of authorities, as follows;
“It is generally held that there is a presumption of law that all services rendered by an employee during the period for which he is employed, of a nature similar to those required of him in the course of his regular duties, are paid for by his salary, and to overcome this presumption he must show an express agreement for extra compensation.”
See, also, Houghton v. Kittleman, 7 Kan. App. 207; Robinette v. Coal Mining Co., 88 W. Va. 514.
In our view the evidence of plaintiff failed to establish a right of recovery and the judgment sustaining the demurrer to his evidence is affirmed. | [
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The opinion of the court was "delivered by
Johnston, C. J.:
This is an appeal from an award in a compensation case. The workman, D. K. Thompson, met with personal injury on May 14, 1930, while working for the General Machine and Tool Company, his employer, and both parties were subject to the compensation act. His weekly wage at the time of the accident was $65. Notice of the injury was received by the employer and a proper demand was made for compensation. It appears that $222.70 was paid by the employer for medical services in accordance with the compensation act, and also compensation was paid to the workman to the extent of $828. Testimony was taken as to the nature of his injuries, which were severe, and the compensation commissioner made the following findings:
“It is found in addition to the admissions of the parties that the claimant met with an accidental injury arising out of and in the course of his employment, as a result of said injury claimant was temporarily totally disabled for a period of seventy (70) weeks until September 23, 1931; that after that time the injury to the costicartilaginous junction with the sternum will not interfere with the claimant carrying on his regular line of work; that thereafter he will suffer a thirty-three and one-third (33%) per cent disability to his left arm.
“It is found that the testimony regarding surgical interference is too conflicting for the commissioner to order the operation. It is found that for the purpose of the act at the time of the injury claimant was a resident of McPherson, Kan., and is not entitled to three dollars per day and transportation from El Dorado to McPherson, but is entitled to three dollars per day and transportation from El Dorado to Wichita, Kan.
“Wherefore award of compensation is hereby made in favor of the claimant D. K. Thompson and against the respondent, The General Machine & Tool Company and the London Guaranty & Accident Company, Ltd., insurance carrier, for 69, weeks’ compensation at the rate of $18 per week; that on August 3, 1931, 62.5 weeks at the rate of $18 per week in the sum of $1,128.86 is due; $828 of which amount has been paid, leaving a balance of $300.86, which is ordered paid in a lump sum; the other 6% weeks at the rate of $18 per week is payable at the time and place and manner provided in the contract of employment, being an award for temporary total disability; thereafter claimant will suffer permanently 33% per cent loss of the use of the left arm, and is hereby awarded compensation in the amount of $6 per week for a period of 210 weeks to be paid at the time and place and in the manner provided in the contract of employment.
“Award is made of $12, being four days for trips from El Dorado to Wichita and return, and transportation for the trips in the amount of $6.60, making $18.60, which is due and payable in a lump sum.”
An appeal from the award of the compensation commissioner was taken to the district court and there the findings and award were approved and confirmed. In the appeal taken to this court plaintiff states that he is satisfied with all the findings based on fact as made by the commission, and contends that the feature of the award based on future disability and compensation therefor is contrary to the law that governs that part of the award.
There is no complaint of the finding for temporary total disability, but plaintiff contends that the compensation for loss of the arm should not be measured by the schedule after temporary total disability ceased. After that ceased there remained a partial loss of the use of his arm, the compensation for which was measured by the commissioner according to the schedule. The nonschedule disability, which was not permanent, preceded the scheduled disability, which was the partial loss of a member for which a schedule is prescribed.
As the findings show, temporary total disability was found to exist up to September 23, 1930, a period of seventy weeks, for which compensation was allowed. About this allowance no complaint is made. It was found that thereafter temporary total disability would cease and that the workman would then be able to carry on his regular line of work except for a thirty-three and one-third per cent disability of his left arm. Dfiring the existence of that incapacity he was entitled to compensation, and the only question raised is whether it shall be measured by the standard of the schedule prescribed or by the rule applicable to unscheduled injuries.
The plaintiff contends that the remaining incapacity of the arm should not have been treated as a scheduled injury, nor should the compensation have been measured on that basis. It appears that the incapacity of the arm which remained after the temporary total disability had ceased, was thirty-three and one-third per cent of the use of it for 210 weeks. It is argued that the schedule is an exclusive remedy for a specific injury to a member and is not applicable in cases where an accident causes unscheduled injuries to other parts of the body as well as to the member. We see no ground for that theory nor room for its application in this case. When an injury results in the loss or partial loss of a hand or foot the statute fixes a measure of compensation for such loss which must be applied whether or not the workman suffered other injuries to the body which do not fall within the statutory schedule. If a workman suffers injuries of both kinds and was given compensation, for instance, for the loss of a hand, would that preclude him from urging on appeal that he was entitled to compensation for severe injury to other parts of the body, which were not within the schedule and which resulted from the same accident? We think not. The statute provides a measure of compensation for scheduled and unscheduled injuries without regard to whether they occur separately or in combination with one another. Nothing in the decided cases warrants the interpretation urged by plaintiff. On the contrary, it has been ruled in Resnar v. Wilbert & Shreeb Coal Co., 132 Kan. 806, 297 Pac. 429, that both scheduled and unscheduled injuries resulting from an accident might be considered together and the different standards of compensation applied. There a coal miner was totally disabled for a period of six months by an injury from which he had recovered except for the loss of a foot which had been rendered permanently useless. It was held that the statutory schedule was applicable in measuring the loss of the use of the foot and that compensation for the temporary total incapacity was applicable to the other results of the injury, and that each should be measured and paid for on the appropriate statutory basis.
In Beal v. The El Dorado Refining Co., 132 Kan. 666, 296 Pac. 723, a workman accidentally suffered partial loss of sight of one eye, partial loss of hearing of both ears, and a disfigurement of his face, and it was held that compensation was allowable not only for the scheduled injuries to his eyes and ears at the rate fixed, but that the compensation was also payable for the disfigurement under the rates for unscheduled injuries. All of the injuries resulted from the same accident, and all were considered in the same proceeding and the compensation fixed by the different standards.
Plaintiff in support of his theory calls attention to a provision in the revised compensation act (R. S. 1931 Supp. 44-510), and also to Neuhaus v. Hope Engineering Co., 132 Kan. 72, 294 Pac. 655, commenting on the amended act. In the Neuhaus case reference was made to the exclusive character of compensation for specific injuries within the schedule. That is, that when compensation is allowed for a specific injury under the schedule no additional compensation shall be allowed for either temporary or permanent disability. This provision is not applicable to the facts in this case and was enacted to overcome a defect in the old statute allowing double compensation for the same disability, or what has been termed as a pyramiding of compensation. It was held that when compensation was allowed for the loss of a finger, a part of the hand, no compensation could be allowed for the hand which was not otherwise injured. The language used, that the allowance was exclusive of all other compensation, means that it is exclusive for the specific injury. That is, that the specific loss of the finger was exclusive of other compensation for that specific loss. For instance,' it means that compensation is not allowable for the loss of a leg and also of a foot which was a part of the leg, nor could there be an allowance for the loss of a hand and also the fingers on it. Nor can the loss of a finger for which payment has been made under the schedule be added to the compensation for temporary or permanent disability for the particular injury of the finger. In the Neuhaus case, supra, it was said:
“When a workman is entitled to compensation for a specific schedule injury, that compensation is exclusive of all other compensation; no additional compensation shall be allowed, not merely for that specific injury, but for either temporary or permanent disability consequent upon that injury. The manifest purpose was to stop the pyramiding of compensation under this court’s interpretation of the old law in the eases which have been referred to.
“In this instance claimant’s hand was not injured. Only the little finger was injured. Compensation for permanent partial loss of use of the little finger is exclusive of all other compensation for injury to that member, and no additional compensation may be allowed for disability of the hand.” (p. 75.)
The decision in Beal v. Refining Co., supra, demonstrates that the scheduled injury is distinct from one that is not within the schedule, and that payment for one does not exclude payment of additional compensation for the other. See, also, Hering v. San Ore Const. Co., 130 Kan. 70, 285 Pac. 592; Orendoc v. Kaw Steel Const. Co., 131 Kan. 366, 291 Pac. 952; Bray v. Carrothers Construction Co., 131 Kan. 766, 293 Pac. 504.
There is a contention by plaintiff that the decision of the commissioner in fixing the duration of the disability as, for instance, when temporary total disability would cease, was no more than a guess, which is not permissible under the statute. It is said that the law does not authorize him to prognosticate as to future conditions or the duration of a disability. In most of the compensation cases the duration of a disability is one of the principal questions to be determined. It is not done upon a guess, prophecy or speculation. It is established upon the evidence of experts who are qualified and experienced in ascertaining existing conditions and the time for cure, if curable at all, and in the light of all the facts they can fairly well determine how long the disability will.last. Almost every recent volume of our reports disposes of cases in which findings of the commissioner have been approved by this court' which were based on that character of evidence. In Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244, a compensation case triable at that time in the district court, the duration of incapacity was the subject of consideration, and it was held:
“The workmen’s compensation act provides for compensation during incapacity, and the implication is that compensation should cease when incapacity ends. In an action for compensation the duration of incapacity is a question of fact to be determined as other questions of fact are determined, and a challenge of the correctness of the trial court’s conclusion respecting the duration of incapacity will be considered on appeal in the same way as other challenges of a similar nature.” (Syl. IT 4.)
A question has been raised as to the disallowance of traveling expenses of plaintiff made at the request of the defendants. The statute, R. S. 1931 Supp. 44-515, provides among other things that after an injury to an employee he shall, upon the request of the employer, submit himself for examination of physicians or surgeons selected by the employer, with the proviso that if the employee is notified to submit to such examination before the employer’s doctor or surgeon, he may not submit himself for such examination until he has been furnished with funds to pay transportation to and from the place of examination and in addition the sum of $3 per day for each day that he is required to be away from his residence. Plaintiff claimed his residence in El Dorado and was injured near McPherson. For a time he was in a hospital in McPherson. Later, upon the request of the defendants, he made a number of trips to McPherson and Wichita to meet designated physicians. He claims he should have been allowed $134.13, as shown by an itemized statement stating the number of trips made to McPherson and return, and also from El Dorado to Wichita and return. Defendants say there was a failure of proof as to plaintiff’s residence and also a failure to show that these trips were for examination rather than for treatment. It appears that plaintiff presented, and the court received in evidence, an itemized statement of these trips as traveling expenses and per diem as allowable under the statute and made as requested by the defendants. No objection was made to the admission of the exhibit and no claim was then made by the defendants that the trips were for treatment and not examination. The court, on the showing thus made, found that the home of the plaintiff was in El Dorado and that a number of trips were made to meet Doctor Heaston at McPherson and four trips to Wichita to meet Doctor Bence, an orthopedic specialist, and that these were made at the request of respondent.
Under the circumstances stated we think the proof warranted an allowance for the trips made on defendants’ request. The defendants cannot well resist the allowance for expenses of trips by plaintiff to physicians and surgeons made at the request of defendants and for their purposes in resisting payment of plaintiff’s claims. It is stated that an allowance of $18.60 was made for the four trips to Wichita and this allowance should be deducted from the $134.13 for the entire traveling expense and per diem, leaving unpaid $115.53.
The judgment will therefore be modified by adding the additional allowance of $115.53, and otherwise the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Lucretia B. Shaffer is appealing from an order of the district court setting aside a separation agreement made between her and her husband, Charles M. Shaffer, and directing that appellant’s attorney, F. M. Pearl, pay to the clerk of the court the sum of $1,000 for the use and benefit of the appellee, which sum had previously been paid by appellee under a separation agreement as a property settlement. Charles M. Shaffer and Lucretia B. Shaffer were married on June 23, 1928, and lived together for a time, but had not lived together since September 1, 1929. He was a resident of Kansas and his wife had been in California with a daughter of a former marriage since September 1, 1929. He had consulted with a lawyer as to obtaining a divorce from his wife, and had been advised that he had no grounds for a divorce. In June, 1930, his wife returned from California, but he declined to set up housekeeping and live with her, as she had announced her purpose to live in California. On July 29, 1930, she brought an action of divorce against her husband, but asked for no permanent alimony. She had indicated that she would accept $1,000 as a property settlement, and just before the November term, 1930, of the district court a settlement was arranged which was reduced to writing and is as follows:
“It is hereby agreed between'the parties hereto, that Charles M. Shaffer, defendant, will pay to the clerk of the district court for the use and benefit of the plaintiff, the sum of $1,000 on or before the 15th day of November, 1930, which sum shall be in full settlement of all claims and demands of the plaintiff against the defendant for alimony and support for any cause or reason on account of their marital relation, whether a divorce is granted to either of them in the above-entitled cause of action or not. In event a divorce is denied to either the plaintiff or defendant, this agreement shall be in full satisfaction of all claims and demands of the plaintiff, or alimony in any future actions for a divorce brought by either of them. It is further agreed that defendant has paid the plaintiff the alimony now ordered to be paid in this action in the sum of $40 for November, 1930, and that no further monthly alimony shall be paid. That defendant has paid to plaintiff’s attorney, the sum of $50 and that he shall not be required to pay plaintiff’s attorney any further sum.”
The defendant filed an answer and cross petition in the divorce action alleging that the plaintiff had abandoned him for more than a year before that time; that she had gone to California, and insisted on staying there; that she did not like the home that he had provided for her and had endeavored to induce the defendant to go to California to live; that he was unable to do so, and that in truth and in fact she was dissatisfied with the defendant and the home he had provided for her; that she did. return to California while he continued to reside in Kansas and had refused to aid and assist the defendant in making and maintaining a home, and therefore charged that plaintiff herself was guilty of gross neglect of duty. Allegations were made as to her means of livelihood, which it is alleged were ample to provide a support for herself and daughter, and that the defendant has no property except the wages he earns in the postal service, which is the sum of about $175 per month. He therefore prayed that the plaintiff be denied a divorce and that he be granted a divorce from plaintiff on the grounds of abandonment and gross neglect of duty.
The case went to trial on the issues formed on defendant’s cross petition, and at the conclusion of the evidence defendant’s counsel passed to the court for its inspection and approval a stipulation already mentioned, which had been entered into between the parties. The court read the stipulation as to the property settlement and stated that in the light of the evidence and the failure of the plaintiff to live with defendant the court would find that plaintiff was not entitled to alimony and that none would be allowed. The court was then informed that defendant had already paid plaintiff the sum of $1,000 on the property settlement which had been transferred to plaintiff, and it had not been paid to the clerk of the court as the stipulation provided. The court indicated that it was not satisfied with the payment of the amount and the concealment of the fact of the payment from the court and desired that the matter be further investigated, and the case was taken under advisement and continued.
On January 20, 1931, defendant filed a motion to set aside the stipulation stating that he had made payment to plaintiff’s attorney by giving him a check for $1,000 and asking that the stipulation be set aside by the court and the amount paid be returned to the defendant. Testimony was produced to the effect that defendant’s attorney had prepared the stipulation and sent it by defendant over to plaintiff’s attorney several days before the divorce trial came on. That the plaintiff’s check for the $1,000 was deposited in the bank and plaintiff’s attorney issued his own personal check and transmitted the same to' the plaintiff. On this motion testimony was taken as to the circumstances of the payment and the court ad judged that the stipulation for the payment of the money should be set aside, and that the $1,000 which had been paid as a property settlement be paid into court and returned to the defendant, Charles M. Shaffer. Previously and on the same day the court had denied the petition of the plaintiff for a.divorce and held under the cross petition that the defendant was entitled to a divorce on the ground of gross neglect of duty, and that the plaintiff was not entitled to alimony.
The plaintiff complains and it is insisted that the court erred in assuming to set aside a fully executed agreement which had been legally made and also in arbitrarily ordering a return of the money voluntarily paid by defendant in compliance with their agreement. The plaintiff had not asked for permanent alimony, and under the pleadings it cannot be regarded as an issue in the case. Nothing in the evidence indicated that it was the subject of controversy between the parties. Since permanent alimony was outside the issues in the divorce action the agreement of the parties did not need the approval of the court. The circumstances of the agreement were probably brought to the attention of the court in order to show that the property rights had been adjusted by the parties. If permanent alimony had been asked and payments or adjustments made of their property interests it would have been a proper consideration to enable the court to determine whether additional alimony should be allowed or refused, but where none was asked why should the court be concerned about permanent alimony. The court appears to have intruded an issue not in the case and in a way invited the defendant to move to set aside an agreement voluntarily made by him which appears to have been free from fraud and had been fully performed. The agreement had been made and fully executed before the trial of the divorce action. It had been done in apparent good faith and in view of a complete rupture of the marital relations, and no reason is seen why the agreement and settlement of property rights should not be held to be a lawful and binding obligation. It was stipulated that it should be controlling, whether a divorce in the pending action is granted or not, and also controlling in any future action for divorce brought by either party. Such an agreement and settlement of property rights intelligently and fairly made are valid. This one does not fall within the ban of being contrary to public policy. A situation had arisen between the parties’that they could no longer live together in harmony and peace as husband and wife, and a complete separation had already taken place. Under numerous authorities such an agreement as to separation and the settling of property interests is valid and binding. (King v. Mollohan, 61 Kan. 683, 60 Pac. 781, Ross v. Ross, 103 Kan. 232, 173 Pac. 291; Blair v. Blair, 106 Kan. 151, 186 Pac. 746; Bradley v. Burgess, 109 Kan. 347, 198 Pac. 967; Bond v. Mikel, 129 Kan. 824, 284 Pac. 379.)
The separation and settlement is not open to any claim of collusion in the parties to bring about a separation, and in fact collusion was not alleged. Besides, after all the circumstances were brought out the court granted a divorce which necessarily implies that there was no collusion. So we have an agreement made under the advice of counsel, the money personally paid by defendant to counsel for plaintiff, and by the latter duly transmitted to plaintiff, and thus after being fully performed defendant now asks in a mere motion, when it is not even an incident to the divorce action, that the agreement be set aside. This we think was clearly beyond the power of the court under the circumstances stated. There was less reason for the judgment of the court that the plaintiff should return or pay to defendant $1,000 which had been voluntarily paid in full performance of the agreement which had been a closed transaction for some time. If the plaintiff was indebted to defendant for $1,000 the claim could not be determined and a recovery adjudged on grounds of duress, fraud or unfairness, in this summary way in a mere motion in the divorce action. Of course, a separation agreement may be set aside in a court of equity on the same general principles as are applicable to ordinary contracts, and also where it is unreasonable, unfair and makes inadequate provision for the other spouse. But to do this, after the agreement has been performed, it must be by a direct proceeding and upon pleadings setting forth the specific grounds for rescission or annulment before there can be a judgment rendered for the recovery of loss or damage resulting from the fraudulent action. (30 C. J. 1069.)
Some criticism is made of the conduct of Mr. Pearl, counsel for plaintiff, but we mention it only to say that an examination of the record shows that there was nothing dishonorable or unethical in his conduct in the case.
For the reasons stated the judgment of the court in setting aside the separation agreement and settlement of property interests as well as adjudging the recovery of the money paid under the agreement is reversed and the cause remanded with the direction to deny the motion of defendant in that regard. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment overruling appellant’s motion to be substituted as plaintiff in this action and sustaining appellee’s motion that the action be dismissed.
To determine the propriety of the trial court’s rulings, the previous record of the case must be briefly stated:
On May 8, 1924, this action was begun by the Arkansas River Gas Company to recover from Isador Molk the sum of $2,470 as the value of certain oil-well casing alleged to be the property of plaintiff which defendant Molk had converted to his own use. The cause was tried before a jury, which rendered a verdict for defendant on December 13, 1925. Plaintiff filed a timely motion for a new trial on December 16, 1925. That motion was not ruled on until January 7, 1929 — three years-and twenty-two days later. At that time the motion was overruled and judgment was entered in defendant’s favor according to the verdict. During this long interval, while the motion for a new trial was reposing undisposed of, the charter of the plaintiff corporation was forfeited on December 30, 1926, for noncompliance with its statutory duty under R. S. 17-706 to file its annual report for the year 1925.
On February 2, 1929, an appeal to this court was taken in behalf of the defunct corporation, and in due time that appeal was heard and decided by this court, in an opinion rendered on March 8, 1930, reversing the decision of the trial court and remanding the cause for a limited retrial to determine the value of the casing and instructing the trial court to give judgment for plaintiff for the amount so to be determined.
During the pendency of that appeal no question was raised as to the dissolution of the plaintiff corporation. After the cause had been remanded to the district court, however, on January 16, 1931, defendant filed a motion to dismiss because of the forfeiture of the plaintiff’s corporate charter in December, 1926, and because no steps had been taken to revive the action in the name of its liquidating trustees (R. S. 17-808). On the same-day the present appellant, the Osage Syndicate, Incorporated, filed a motion to be substituted as plaintiff in lieu of the defunct corporation, ’ on these grounds:
“That heretofore and during the pendency of this action and on the 14th day of March, 1927, Osage Syndicate, Incorporated, a corporation, for a valuable consideration by it duly paid, became the owner of all of the property theretofore owned by the plaintiff in this action located in Butler county, Kansas, including the cause of action of the plaintiff in the foregoing action against the defendant, Isadore Molk, and ever since said date and is now the owner of such cause of action, together with all rights therein and incident thereto.”
This motion was supported by an affidavit verifying the facts on which substitution of parties was sought.
From the trial court’s rulings denying substitution of parties and dismissing the action, the Osage Syndicate, Incorporated, assigns error. It directs our attention to R. S. 60-415, which provides that an action does not abate by the death or other disability of a party litigant, or by the transfer of an interest in the subject matter of the litigation, during the pendency of the action, if the action can be one which survives or continues. In any such case the action may be continued by the representative of the deceased or disabled party or by his successor in interest. This section also provides that the action may be continued in the name of the original party, or substitution of his successor in interest may be permitted. All this is very simple, proper and practical, but it is not all the pertinent law on the question we have to consider. When a litigant dies, any action in which he was a necessary party becomes dormant until there is a revivor in the name of a substituted litigant who has authority to carry on the dead man’s part of the litigation. We are not presently concerned with the situation which arises when there are other parties whose rights or liabilities are in issue which can be adjudicated notwithstanding the death of a coplaintiff or codefendant. The pertinent provisions of the code which govern the legal question of present concern are R. S. 60-3207, which provides that where a party to an action dies and the action is one which survives in favor of or against his representatives or successors, it may be revived in their names; R. S. 60-3208, which provides that revivor shall be by order of the court or judge; R. S. 60-3212, which provides that upon the death of a plaintiff the action may be revived in the name of his representatives to whom his right has passed, and if it passed to his heirs or devisees revivor may be in their names; and R. S. 60-3215, which reads:
“An order to revive an action in the names of the representatives or successors of a plaintiff may be made forthwith, but shall not be made without the consent of the defendant after the expiration of one year from the time the order might have been first made; but where the defendant shall also have died, or his powers have ceased in the meantime, the order of revivor on both sides may be made in the period limited in the last section.”
It is needless to cite or quote further from other relevant provisions of the code. When the charter of the Arkansas River Gas Company was forfeited the action was technically suspended. The ex officio trustees of the corporation had statutory power to continue the action, and they should have been substituted as plaintiff. If that had been done the action would have remained alive; and at the convenience of the appellant, Osage Syndicate, Incorporated, it might have continued to prosecute the action in the names of the ex officio trustees (R. S. 60-415) or could have been substituted for them at its option. But nothing was done; the ex officio trustees were not substituted for the defunct corporation; no application for revivor was made within the statutory time of one year; and without the consent of the adverse party revivor after one year could not be made (R. S'. 60-3215). Appellant stresses the fact that in 1927 it acquired the rights of the defunct corporation in the cause of action against defendant. Quite so, but it did not timely conform to the procedure whereby it might maintain those rights in this litigation. It waited altogether too long before it sought to establish in court its right to prosecute the action. The fact that the cause had once been in this court for review and had been sent back for a limited retrial contributes nothing to resuscitate the action. In an appeal this court considers errors arising on the face of the record which the litigants choose to present for our review. Nothing more. In Revere v. Revere, 133 Kan. 300, 299 Pac. 969, it was held that where the judgment of the district court was inherently void, and where that judgment was affirmed on appeal by the supreme court (on such questions as the litigants chose to present, and where the matters rendering the trial court’s judgment a nullity were wholly ignored), the affirmance of the void judgment imparted no life to it. In Hinkle v. Ward, 133 Kan. 516, 1 P. 2d 83, there had been a judgment in favor of defendant below, and prior to the appeal the defendant died. The cause was brought to this court without a proper revivor of the judgment, and the appeal had to be dismissed. The court said:
“Without a revivor no order or judgment this court could make would be effective. Some of the cases illustrative of the effect of death and dormancy are the following: State v. McArthur, 5 Kan. 280; Green, Adm’r, v. McMurty, 20 Kan. 189; Teff v. Citizens’ Bank, 36 Kan. 457, 13 Pac. 783; Cunkle v. Interstate Rld. Co., 54 Kan. 194, 40 Pac. 184; C. K. & W. Rld. Co. v. Butts, 55 Kan. 660, 41 Pac. 948; Banking Co. v. Ball, 57 Kan. 812, 48 Pac. 137; Manley v. Mayer, 68 Kan. 377, 394, 75 Pac. 550.” (p. 520.)
When this case was here before, Arkansas River Gas Co. v. Molk, 130 Kan. 30, 285 Pac. 561, the dissolution of the plaintiff corporation did not appear in the record and no mention was made of that fact until after our opinion and decision had been announced. Then a motion for a rehearing was presented by defendant calling attention to the dissolution of the corporation. In that motion it was suggested that perhaps it ought to be labeled a motion to dismiss the appeal. Counsel for plaintiff (the defunct corporation) filed a reply to the motion, making the point that the question of the capacity of a corporation to sue after dissolution must be raised in the trial court by some appropriate plea, and Threshing Machine Co. v. Francisco, 106 Kan. 704, 707, 189 Pac. 981, was cited. In that case it was said:
“It seems that the trial was conduoted and the evidence introduced without any reference to the incorporation of the plaintiff. Where a verified answer does not directly and specifically put in issue the incorporation of the plaintiff, and no evidence is introduced on that question, and the attention of the court is not specifically challenged to the absence of evidence thereon, and the incorporation of the plaintiff does not appear to have been questioned on the trial, that question will not be considered when presented for the first time in the supreme court. (Sleeper v. Bullen & Dustin et al., 6 Kan. 300; Emery v. Bennett, 97 Kan. 490, 155 Pac. 1075; Clark v. Insurance Co., 105 Kan. 728, 731, 185 Pac. 1056.) Numerous other cases’ might be cited, but it is not necessary to do so.”
The motion for a rehearing or for dismissal of the appeal was denied without an opinion, for the obvious reason that the fact of plaintiff’s dissolution was not raised in the court below and because defendant did not raise that point in this court in time so that it could have been properly considered in connection with the questions which were presented for our-review.
When the cause was remanded to the trial court, however, the motion to dismiss was not improper, and the orders sustaining that motion and denying the motion to substitute the appellant were the only rulings the court could properly make under existing law and pertinent decisions of this court. In Cunkle v. Interstate Rld. Co., 54 Kan. 194, 40 Pac. 184, the analogous nature of that action and the pertinent law are clearly stated in the syllabus:
“In an action against a railroad company, judgment was given in its favor, when the plaintiff instituted a proceeding for review in the supreme court. After that time the defendant and other railroad companies were consolidated under a new name, and the defendant company ceased to exist. The consolidated company succeeded to the property, powers and privileges as well as the obligations and liabilities of the defendant company. No motion was made to substitute the successor, or to revive the proceeding in its name, until more than a year after the defendant company had become defunct, and the successor refused its' consent to such revivor. Held, That no revivor could then be had in the name of the successor, and that the proceeding in error must be dismissed.”
In the opinion this court, speaking by Mr. Justice Johnston, now our chief justice, said: •
“It is conceded that the defendant company is dead, and further, that its successor is the Kansas & Colorado Pacific Railway Company. The code authorizes the revivor and continuance of an action or proceeding against the representative or successor in interest of the party that has ceased to exist, and provides how and when it may be done. (Civil code, §§40, 425-435.) There is no other or different method of substituting a successor of a dead party as defendant, and reviving the action in the name of such successor, than is prescribed in the last sections named, and which may be found in article 19 of the code. They provide that such a substitution or revivor may be made by the order of the court or judge, but they further provide that such an order cannot be made without the consent of the successor, unless it is done within one year from the time it could have been first made. (Civil code, § 433.) This is a positive requirement of the statute, and hence the motion of the plaintiff comes too late. More than three years elapsed after the consolidation was effected before the application to substitute was made, and the successor of the defendant appears and expressly declines to give its consent to the substitution or revivor. The proceeding in error must, therefore, be dismissed.” (p. 196.)
Later instructive cases on this general subject are: Razor Co. v. Guyman, 110 Kan. 745, 205 Pac. 635; Young Construction Co. v. Dunne, 123 Kan. 176, 254 Pac. 323. In the latter case it was said:
“The authorities already cited show that the provision relating to revivor applies to defunct corporations as well as to the death of persons. The for feiture of the charter abated the action, and in the absence of a revivor or of grounds for the substitution asked the court had no alternative than to dismiss the action.” (p. 183.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action for the specific performance of an oral contract to bequeath all the property of deceased to 'plaintiff in payment for services performed by plaintiff in looking after the property of deceased, caring for him and seeing to all his business during his lifetime. Judgment was for defendants. Plaintiff appeals.
The allegations of the petition with reference to the contract between Charles S. Bahney and I. S. Bahney were as follows:
“ ‘Now Charley, Etta is gone, I am getting old, and not able to look after my property, and don’t want to live alone, and if you will give up your position and move your family to Fort Scott, live with me here in my house, take care of me, look after all my property and see to all of my business during my life, I will give you $50 per month myself and will give you an additional $50 for looking after the Drake and Bahney property, so you can have enough to live on along; and when I am through with all of it, I will give you all of the remainder of my property when I am entirely through with it at the time of my death.’ This plaintiff at said time and place said, T will accept your offer,’ and at said time and place, I. S. Bahney said to this plaintiff, that he-would make a will leaving to this plaintiff all of the remainder of his property at the time of his death.”
The petition then alleged that Charles S. Bahney left his home in Carthage, Mo., moved into the I. S. Bahney home and until October, 1919, fulfilled the terms of the contract. It further alleged that in 1919 I. S. Bahney “requested,” “insisted” and “demanded” that appellant leave his house; that he did so and moved to New Jersey. It further alleged that on many occasions Charles Bahney advised I. S. Bahney that he was ready and willing to return to the home of I. S. Bahney and carry out his contract and that appellant always stood ready and willing to return and carry out his contract.
The petition further alleged that on October 5, 1927, appellant received the following wire from I. S. Bahney:
“C. S. Bahney, -Sussex, New Jersey. If you still feel like coming, come at once. Will make arrangement when you arrive. The house is vacant now. Isaac S'. Bahney.”
The petition then alleges-that appellant returned to the home of I. S. Bahney and performed the services under the contract for about five months, when I. S. Bahney again “requested,” “insisted” _ and “demanded” that appellant leave his home.
The petition then alleges that appellant has complied with this demand ever since he moved away from the I. S. Bahney house the second time — he frequently informed I. S. Bahney that he stood ready and willing to return to Fort Scott and perform the contract, and that appellant at all times stood ready and willing to perform.
The petition then alleges’ that notwithstanding the contract and performance as alleged, I. S. Bahney failed to make a will as he had agreed to bequeathing all his property to appellant, bút bn the other hand did make a will bequeathing it all to other people.
The petition further alleged that I. S. Bahney died about May 17,1931, and left property worth approximately $50,000.
The prayer of the petition was for specific performance of the promise alleged, and that the executors under the will be directed to convey and deliver to appellant all of the property of which I. S. Bahney died seized.
To this petition appellees demurred on four grounds, as follows:
“1. That it appears upon the face of said petition that this court has no jurisdiction of the subject of the action.
“2. That it appears upon the face of said petition that it does not state facts sufficient to constitute a cause of action in favor of the plaintiff and against these defendants.
“3. That it appears upon the face of said petition that the alleged cause of action attempted to be stated therein is barred by the statute of limitations of the state of Kansas.
“4. That it appears upon the face of said petition that the alleged contract attempted to be set up therein was a contract not to be performed within one year and was not in writing.” '
This demurrer was sustained on the first two grounds. From that judgment this appeal is taken.
The trial court based the judgment sustaining the demurrer on the theory that if the allegations of the petition should be sustained, still equity would not permit the'decreeing of specific performance oí the contract pleaded, and that if appellant had any claim against the estate of I. S. Bahney he should present it in probate court.
This court has said:
“Whether equity will decree the specific performance of a contract rests entirely in judicial discretion, and always upon the facts of the particular case.” (Anderson v. Anderson, 75 Kan. 117, 123, 88 Pac. 743.)
In the same case it was said: .
“When a definite contract to leave property by will has been clearly and certainly established, and there has been performance on the part of the promisee, equity will grant relief, provided the case is free from objection on account of inadequacy of consideration and there are no circumstances or conditions which render the claim inequitable. This is the general doctrine adhered to by the courts.” (p. 123.)
This rule has been consistently followed.
The first requirement was met in this case when the contract heretofore noted was pleaded. However, it is hard to say that the next requirement was met when the pleading alleging a performance for only about half of the time that elapsed between the making of the contract and the death of I. S. Bahney, and it cannot be said that the claim is free from objection on account of inadequacy of consideration and that there are no circumstances or conditions that render the claim inequitable. This rule was recognized and followed in Foster v. Foster, 134 Kan. 308, 5 P. 2d 1071. (See, also, Bowen v. Galloway, 125 Kan. 568, 264 Pac. 1038.) Here the contract was only half performed on the part of appellant and during the time that he was performing he was receiving some compensation in money each month from the promisor. Appellant seeks to avoid the effect of this rule by alleging that it was the fault of I. S. Bahney that the contract was not fully performed. In answer to this argument it may be said that this does not entitle appellant to specific performance the same as though he had fully performed, but does entitle him to file a claim for his services against the estate in probate court. That is the theory upon which the demurrer was sustained on the second ground. (See State v. Zimmerman et al., 121 Kan. 346, 246 Pac. 516; Holmes v. Conway, 128 Kan. 430, 278 Pac. 8; Woltz v. First Trust Co., ante, p. 253.)
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a number of promissory notes and to foreclose a mortgage securing them. The notes were executed in the state of Indiana, and were payable there. Each note provided for payment of a principal sum, with interest, “and attorney’s fees.” The judgment which was rendered included an attorney fee of five per cent of the principal sum of each note, and' the appeal was taken to secure a modification of the judgment in that and another respect. , ’
A provision in a promissory note for payment of an attorney fee is valid under the law of Indiana. It is often said a contract valid in the state where made and to be performed is valid everywhere. It does not follow, however, from the fact that a contract is valid in the state where made and to be performed, that another state will enforce it by appropriate legal remedy. If the contract is contrary to the law or public policy of the forum, remedy will be denied. This is the general rule, supported by reason and authority, and it is not necessary to review the cases.
In this state we have a statute which reads as follows:
“That hereafter it shall be unlawful for any person or persons, company, corporation or bank, to contract for the payment of attorney’s fees in any note, bill of exchange, bond or mortgage; and any such contract or stipulation for the payment of attorney’s fees shall be null and void; and that hereafter no court in this state shall render any judgment, order or decree by which any attorney’s fees shall be allowed or charged to the maker of any promissory note, bill of exchange, bond, mortgage, or other evidence of indebtedness by way of fees, expenses, costs or otherwise: Provided, That in all existing mortgages wherein no amount is stipulated as attorney’s fees, not more than eight per cent on sums of two hundred and fifty dollars or under, and not more than five per cent on all sums over two hundred and fifty dollars, shall be allowed by any court as attorney’s fee: And provided fvirther, That this act shall not apply to existing mortgages wherein any sum has been stipulated as attorney’s fees. [L. 1876, ch. 77, § 1; March 1.]’” (R. S. 67-312.)
Of course the legislature did not attempt to regulate, by this statute, the making of contracts in other states. But the legislature condemned attorney-fee agreements in notes and mortgages, forbade the appropriation of Kansas property, given as security, to the satisfaction of such agreements, and closed the courts of this state to their enforcement. This definitely fixed the policy of this state with respect to attorney-fee agreements, and if when an agreement is presented to a court for enforcement here it is of the odious kind, it is not material to the court where it originated.
The fact that in Indiana the provision for payment of an attorney fee is as much a part of the contract as the provisions for payment of the principal sum and for payment of interest, is of no importance. The attorney-fee provision is inimical to the public policy of this state, and in a suit on the contract the provision must be severed and disregarded.
The district court upheld the attorney-fee provision, on the ground the statute violated the obligation of the contracts. This, however, puts the cart before the horse. The statute was enacted in 1876, and care was taken not to violate the obligation of any then existing contracts. The contracts sued on were made in 1928. When they were imported into this state for enforcement, they encountered a statute which had governed the relations of parties to notes and mortgages for more than fifty years, and the question was purely one of comity.
It cannot be said there was no reasonable basis for the legislation. The attorney-fee provision affects certainty of the amount which a debtor who gives a note may be required to pay, mulcts debtors for default in a sum not necessarily compensatory, and is capable of use by Shylock creditors to fleece necessitous debtors of small means.
The mortgage recited that it was given by the mortgagors to Young and Haworth as trustees for various creditors of the mortgagors, “in the respective amounts hereinafter stated.” The debts secured were specifically described. The mortgage contained the following provision:
“And the mortgagees herein, and their successors, by the acceptance of this mortgage; agree and bind themselves to administer said trust, as herein provided, and without compensation to themselves, except to reimburse themselves for their necessary costs and expenses incident thereto and for reasonable compensation for their time actually employed, and to pay out the money collected on said notes . . .”
The district court made the following finding:
“That the plaintiffs, Daniel R. Young and William W. Haworth, trustees as aforesaid, for and on behalf of the respective parties, are -entitled to recover their expenses personally made in the performance of their duties under said trust mortgage and for reasonable compensation for their time so spent, and the amount is determined by the court to be $2,430; and in addition thereto should recover the charge made by their agent in said county in looking after said property under the terms of said trust mortgage, and the court finds the amount to be $9,284.02.” .
The judgment made these items liens on the mortgaged real estate as a part of the total sum secured by the mortgage.
So far as the mortgagees themselves were concerned, there was no proof of expenditure of a single penny by way of cost or expense, and no proof of a single day’s time actually employed. The mortgage did not provide that the mortgagees should have possession. There is nothing in the record to show they did have possession. No authority from the mortgagors to agents of the mortgagees to look after the property was disclosed, and there was no proof of expenditure of either time or money by any agent of the mortgagees. The following summarizes the proof:
“Q. In other words, you base all of your alleged recoveries on five per cent; is that it? A. Five per cent for attorney fees and five per cent for services, yes.
“The Court: Five per cent of the notes? A. Yes.”
The paragraph of the mortgage which appears above constituted the covenant of the mortgagees with the various creditors of the mortgagors for whose benefit the mortgagees engaged to act. The paragraph did not create any liability on the part of the mortgagors, or any burden on the mortgaged real estate. When settling with their beneficiaries, the mortgagees may reimburse themselves, strictly according to the provision in the mortgage, out of distributable funds, but the mortgagors are not concerned with that subject, and the court was not- concerned with it.
Assignments of error presented by appellants, other than those which have been discussed, are not deemed to be of substantial merit.
The judgment of the district court is modified by striking out the sums allowed as attorney fees, the sum allowed to the mortgagees for themselves, and the sum allowed for charges made by the agent of the mortgagees in looking after the mortgaged property. As modified, the judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an order of the district court granting a peremptory writ of mandamus. At the general election in Cimarron township, Morton county, in November, 1930, Bart Thompson was a candidate for-reelection to the office of township treasurer and F. M. Burton was his opponent. . Burton received the greater number of votes, a certificate of election was issued to him, and he duly qualified as such officer. Thompson refused to turn over the books, records and moneys in his hands belonging to the township. The state, on the relation of the county attorney, on June 6,1931, filed a motion for a writ of mandamus and gave notice that it would be heard by the court on June 9. At that time defendant and his attorney appeared and advised the court that they had a defense and wished to be heard. The court then announced that it would grant an alternative writ and set the case for hearing on its merits. It was agreed that the hearing would be at the court’s chambers at Liberal on June 26. An alternative writ was issued and served, although the service was not until the 25th of June. On June 26 defendant’s attorney appeared at Liberal and filed a motion, appearing specially, to set aside the service of the alternative writ on the ground that “it is null and void and not made in conformity to law in such cases.” No reasons were stated. The court overruled the motion. The peremptory writ was granted. Defendant has appealed and contends that the alternative writ is the “summons” to bring defendant into court and must therefore run in the name of the state, and that the original must be served, and not a copy. Second, that, having no jurisdiction by reason that the alternative writ failed to run in the name of the state, the judgment of the court below is void.
Obviously, the contentions lack merit. • Defendant appeared personally and by counsel on June 9 and asked for time, which was granted. He agreed to the time and place of hearing on the merits. How he was originally notified of the proceedings became of no consequence (State v. Dolley, 82 Kan. 533, 108 Pac. 846). Having made a general appearance, his later attempt to make a special appearance to object to service upon him was futile. No authorities need be cited to support a proposition so elemental. Under the circumstances an alternative writ was not necessary, and its delayed service was not prejudicial. Mandamus was an appropriate remedy in this case. (Huffman v. Mills, 39 Kan. 577, 18 PaC. 516; Bank Commissioner v. Stewart, 113 Kan. 402, 214 Pac. 529.)
The appeal has no merit. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
Plaintiff brought this action against its treasurer and the surety on his fidelity bond. A jury was waived. The trial court made findings of fact and rendered judgment for plaintiff.. The surety has appealed.
Briefly the facts may be stated as follows: In January, 1921. Paul H. McAfee was made treasurer of the plaintiff building and loan association and continued to act in that capacity until about May 1, 1930. During that time he was president and the active managing officer of the People’s State Bank at Fort Scott. In January, 1921, the surety company, in consideration of premiums paid, agreed that it would reimburse plaintiff for any loss not exceeding $5,000 of moneys, securities, or other .personal property which plaintiff might sustain by reason of any act or acts of fraud, dishonesty, forgery, embezzlement, wrongful abstraction, or willful misapplication on the part of McAfee while in the performance of his duties as treasurer of plaintiff occurring during the continuance of the bond.' This bond was kept in force by the payment of additional annual premiums until January 24, 1930, on which date it was discontinued as to future transactions, being replaced by a similar bond, with the same surety, but with McAfee as principal. During the time here in question E. G. Atkins was secretary of the plaintiff association and also a vice president of the People’s State Bank, and C. E. Hulett was president of the plaintiff association. At a meeting of the board of directors of the plaintiff association on July 7, 1929, the treasurer was directed to make an investment for the association in government securities, the specific directions being to buy $5,000 worth of United States treasury notes to run to December 15,1929. On August 6 McAfee advised the plaintiff’s secretary that he had obtained the United States treasury notes, and on that date McAfee was given a check for $5,112.28, being the face of the treasury notes, with accrued interest, signed by the secretary and vice president of the plaintiff association. While this check was made payable to the People’s State Bank, it was in fact given to Mc-Afee, plaintiff’s treasurer, who at that time exhibited to Atkins what he represented to be the United States treasury notes purchased. The trial court found that in fact McAfee did purchase the United States treasury notes and had them in his possession as plaintiff’s treasurer on August 6, but thereafter, and perhaps in September or October of 1929, McAfee did wrongfully abstract, embezzle and misapply them and convert them, or the proceeds thereof, to his own use without the knowledge of the president, secretary, or other officers of plaintiff association. About December 31, 1929, in order to conceal from plaintiff and its other officials the embezzlement and disposition of the United States treasury notes, McAfee máde out a deposit slip on the bank in favor of the plaintiff association in the sum of $5,059.38 and caused that amount to be credited to the plaintiff association in the bank, representing that as the amount received by him at the maturity of the United States treasury notes. The plaintiff association then directed the investment of $5,000 in United States fourth Liberty loan bonds. About December 31, 1929, Mc-Afee represented to plaintiff’s secretary that the bonds had been received, and a similar check of the association was given to McAfee for $5,125.75 in payment of such bonds. At the time the check was given to him McAfee represented that he had the bonds in the denomination of $5,000 in his possession.
The trial court was unable to find from the evidence whether McAfee in fact purchased such bonds, but did find that he either embezzled the amount of the check then given him in payment of the bonds, or if he purchased the bonds, that he later embezzled the bonds. On September 6, 1929, the association, by appropriate action, directed the purchase of $7,500 worth of federal certificates of indebtedness bearing date of September 16, 1929, and due June 16,1930. About September 30,1929, McAfee advised plaintiff’s secretary that he had received such certificates of the par value of $7,500, and the check of plaintiff association in that sum was given McAfee in payment of such certificates. At the time this check was delivered to him McAfee exhibited to Atkins papers which he represented to be such certificates. The trial court was unable to find whether McAfee purchased such certificates for plaintiff, but found that if he did not do so he embezzled the amount of the check given him for that purpose, and that if he did purchase them he later wrongfully embezzled such certificates. Early in October, 1929, an examiner for the department of the commissioner of building and loan associations, examining plaintiff’s records, found them to show the investment of $5,000 in government bonds and $7,500 in federal certificates of indebtedness, and went to McAfee, as plaintiff’s treasurer, to verify those items. McAfee reported to the examiner that he had, as plaintiff’s treasurer, United States treasury certificates of indebtedness, $5,000, due December 16, 1929; also similar certificates, $7,550.09, due June 15, 1931. On the examiner’s report, showing this in the handwriting of McAfee, was “Above certificates held for safe-keeping,” directly under which, having been placed there by a rubber stamp, was “The People’s State Bank, Fort Scott, Kansas, P. H. McAfee, president.” Plaintiff’s treasurer had never been authorized by its board of directors, or any of its officers, to place its securities with the bank for safekeeping, and they knew nothing of any such transaction. On May 1,1930, McAfee absconded. No federal bonds, or certificates of indebtedness, belonging to plaintiff could be found. The bank commissioner took charge of the People’s State Bank and found it to be in bad condition financially, apparently having been wrecked by the defalcations and embezzlements of McAfee. About the third week in May, 1930, McAfee was apprehended, returned to Fort Scott, and placed in jail. On the same day Mr. Hulett, plaintiff’s president, talked with him with reference to the handling of the securities and moneys of the plaintiff association. Hulett asked McAfee what had become of plaintiff’s bonds, and McAfee said he had disposed of them. He further stated that he never purchased any bonds except the first $5,000 worth, and that he had disposed of them before October, 1929; that the $7,500 worth he never purchased at all. Mr. Hulett’s testimony as to this conversation was received over appellant’s objection.
The appellant surety company contends it was error for the court to admit in evidence the declarations of McAfee made to Mr. Hulett, president of the association, in the latter part of May, after McAfee had been apprehended and returned to Fort Scott, for the reason that such declarations were not made during the time of his employment as treasurer, or in connection with his duties as such. In this connection it cites the general rule from 22 C. J. 405 as follows. (We italicize portions emphasized by appellant):
“In cases of suretyship, an admission of the principal, when made in good faith, in connection with the obligations or duties to which the suretyship relates, is competent against the surety, although not to the extent of varying his liability or of determining the rights of several sureties as between themselves. Competent admissions may be made by word of mouth, contained in books or other writings, or evidence by silence or acquiescence. Where the obligation of the surety is for the proper performance by the principal of the duties of an office or a position, the declaration is competent only if made while the principal occupied such office or position; . . . Admissions made prior to the execution of the obligation, or narrative statements made after breach of the obligation, or after expiration of the time for which the surety is held, cannot be received against the surety. . . .”
A number of cases are cited in connection with the various clauses of the text, many of which are quoted from or analyzed by appellant. An exhaustive annotation of cases on the question may be found in 60 A. L. R. 1500 to 1547. A few later cases are: Piggly Wiggly Yuma Co. v. New York Indemnity Co., [Cal.] 3 P. 2d 15; Bank of Oak Ridge v. Duncan, [Mo.] 40 S. W. 2d 656; United States Fidelity & Guaranty Co. v. Benson H. Co., 222 Ala. 429, 132 So. 622; United States Fidelity & Guaranty Co. v. Bank of Thorsby, 46 F. 2d 950. It will not be necessary for us to analyze these cases. The text above quoted is a fair synopsis of them, so far as here pertinent.
The particular statements of McAfee which appellant objects to- and deems incompetent are those which related to whether or not he purchased the securities with the checks furnished him by plaintiff for that purpose, and what he did with them, or how he handled the matter after they were purchased. It is true, as argued by appellant, that it indemnified plaintiff against loss because of McAfee’s acts rather than his conversation; that is, it indemnified against his embezzlements, wrongful abstractions, etc., rather than against what he may have said about it at some time after his services with plaintiff ceased, for what he may have said under such circumstances may have been true or false.
There are several reasons why this testimony was not wrongfully received in evidence in this case. First, McAfee was a party defendant, and the evidence was properly received as against him in any event. Second, it scarcely can be said that McAfee’s duties as treasurer of the plaintiff had ceased at the time of this conversation. It is true the petition alleged that he was plaintiff’s treasurer from the time of his appointment to “about May 1, 1930,” and at the trial there was a stipulation in the same terms. That was the day McAfee absconded, but he had not been succeeded by anyone as treasurer, he had not closed up his books with plaintiff, and on his being brought back to Fort Scott, about three weeks later, which was the first time the officers of plaintiff had an opportunity to talk with him after they had some information of his defalcations, it was perfectly proper for the officers to inquire of him about securities held by him as treasurer for plaintiff. It was his duty to give an account of such securities, and the statements he made in attempting to give such account were directly in connection with his business and his duty to plaintiff. He had not at that time been formally removed as treasurer of plaintiff, nor had any successor been chosen. The bond sued on covered the time of this conversation. Certainly the second bond did, and even the first bond which, as to subsequent transactions was superseded on January 4, 1930, indemnified against losses discovered “during the continuance of this bond, or within six months after its termination”; hence, in accordance with the great weight of authority above referred to, the evidence was competent as against the surety. Third, from the court’s findings it is clear that the judgment against the surety in this case was not based on this testimony, for the court specifically found that it could not tell from the evidence just how McAfee handled those securities and whether certain of them were purchased or not. If the court believed and followed the testimony of McAfee those findings would not have been made. Fourth, it does not make much difference how McAfee handled the money given him to purchase securities for plaintiff, or what he did with the securities after they were purchased, if in fact he did not have them when called upon to account for them, and if he had in the meantime wrongfully used, embezzled, or abstracted the money given him to purchase such securities, or the securities after they had been purchased. It is clear from this record that he did not have such securities, that he had wrongfully abstracted and embezzled the money or securities and was unable to produce them or account for them to the officers of the association when called upon for that purpose. That created a liability on the bond, without regard to what he said to Mr. Hulett.
Appellant further contends that since the checks of plaintiff association, signed by the secretary and its president or vice president, were made payable to the People’s State Bank, of which McAfee was president, and since they were given to McAfee, they were of necessity given to him as president of the bank and not as treasurer of plaintiff, and argues that the embezzlements and wrongful misappropriations of the proceeds of these checks were acts of McAfee as president of the bank rather than as treasurer of the plaintiff. This contention lacks merit. The treasurer of the association was the one instructed by its board of directors to purchase the securities. The secretary and president or vice president who signed the checks were not so authorized by the resolution of plaintiff’s board of directors. When McAfee as treasurer of the association notified its secretary that securities which plaintiff had ordered purchased had been received by the bank and were ready to be delivered to the association on payment, the secretary and president or vice president executed plaintiff’s check for their purchase and gave it to McAfee, treasurer of the association,-to use for that purpose. The fact that it was made payable to the bank rather than to McAfee as treasurer is of no consequence. McAfee as treasurer of the association had no authority to deliver this check to the bank until he had delivered to him, as treasurer of the association, the securities for which the check was in payment.
There is no error in the record, and the judgment of the trial court is affirmed. | [
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