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The opinion of the court was delivered by
Sloan, J.;
This was an action to recover damages growing out of an alleged defect in the public highway. The petition contained the usual and necessary allegations in such cases, and described the alleged defect as follows:
“That on the 22d day of December, 1930, and for some time prior thereto, approximately eight (8) days, said public highway . . . was defective and out of repair and dangerous to public travel in that ice was permitted to accumulate and form upon said highway at said point at a distance of practically one hundred (100) feet, extending east from a bridge or culvert located at said point; said bridge or culvert at said time having, as a part of its construction, five (5) cement posts upon both sides of said highway, which posts were connected by cement railings; said posts extending above the surface of the high.way approximately four (4) feet. That the accumulation of said ice at said point, as aforesaid, constituted a defect in said state highway and a danger and menace to the traveling public; . . .”
The trial court overruled a demurrer to the petition, from whicli the defendant appeals.
The question for review is whether the alleged defect was within the statute, creating liability of the state highway commission for damages growing out of defects in the public highway.
The liability of the state for injuries growing out of defective highways is statutory. It is not founded on the law of negligence but is created wholly by legislative enactment. (Arnold v. Coffey County Comm’rs, 131 Kan. 343, 291 Pac. 762.) The statute creating the liability is as follows:
“Any person who shall without contributing negligence on his part sustain damage by reason of any . . . defect in a state highway, . . . and for any damage so sustained the injured party may sue the state highway commission, . . (R. S. 1931 Supp. 68-419.)
It has been held that under certain circumstances whether a road is defective is a question of fact to be determined by the jury (Watson v. Parker Township, 113 Kan. 130, 213 Pac. 1051; Collins v. State Highway Comm., 134 Kan. 278, 5 P. 2d 1106), but whether an alleged defect comes within the purview of the statute, creating liability, is a question of law to be determined by 'the court.
The allegation in the petition with reference to the defect is that the highway was defective and out of repair “in that ice was permitted to accumulate and form upon said highway,” and “that the accumulation of said ice at said point as aforesaid constituted a defect in said highway.” No other defect is alleged. It is the duty of the state highway commission to keep the highway in a reasonably safe condition for public travel, and liability arises where, after notice, it permits defects to exist in the public highway. It is not, however, an insurer. The user of the highway is bound in all events to use due care, and to take notice of any defect that comes within his knowledge or vision.
This court has held that holes in a road four or five inches deep are a defect (Williams v. State Highway Comm., 134 Kan. 810, 8 P. 2d 946); that ruts on the shoulder of a cement slab are a defect (Collins v. State Highway Comm., supra); that the failure to adopt some sufficient method of giving warning of danger due to alterations which were in progress was within the statute (Story v. Brown County, 116 Kan. 300, 226 Pac. 772; Snyder v. Pottawatomie County Comm’rs, 120 Kan. 659, 245 Pac. 162), and whether a ditch covered with weeds on the side of the traveled part of the road is a defect is a question of fact to be determined by the jury. (Watson v. Parker Township, supra.) The failure to cause a hedge to be trimmed along the highway was held not to be a defect in the highway. (Bohm v. Racette, 118 Kan. 670, 236 Pac. 811.)
No general definition of the term “defect in a highway” appears to have been made by this court, nor do we find any such general definition in the decisions of the courts of other states with similar or identical statutes. This for the very good reason that it is very difficult, if not impossible, to formulate a general definition which meets the intricate circumstances arising out of our modern highways and means of travel. The policy adopted by the courts- has been to handle each case as it is presented, and to either include it in or exclude it from the operation of the statute. The rule appears to be well established that the accumulation of ice on a highway is not a defect within the terms of the statute. (Norwalk v. Tuttle, 73 Ohio St. 242; McKellar v. Detroit, 57 Mich. 158; Mareck v. City of Chicago, 89 Ill. App. 358; Cook v. City of Milwaukee, 24 Wis. 270. See, also, annotation 27 A. L. R. 1104.)
This court has had this question before it in relation to the liability of cities for the accumulation of ice on sidewalks, and in Evans v. Concordia, 74 Kan. 70, 85 Pac. 813, the court said:
“When ice and snow accumulate from natural causes upon the sidewalks of a city, and a person is injured by a fall occasioned by their smooth and slippery condition, is the city liable in an action for damages? This is the sole question in the case. No other defect in the sidewalk is claimed. The same question has frequently been before the courts, and with almost entire unanimity it has been held that where the injuries were caused wholly by reason of the smooth and slippery condition of the ice and snow there was no liability for negligence oh the part of the city. . . .
“. . . First, it is not one of the law’s reasonable requirements that a city should remove from the many miles of walks the natural accumulation of ice and snow, because such a requirement is impracticable from the nature of things; second, because when these conditions exist generally they are obvious, and everyone who uses the sidewalks at such times is on his guard and is warned by the surroundings and the danger of slipping at every step. These reasons meet with our approval. To hold otherwise would cast upon cities a burden for which they are not responsible and greater than their ability to provide for. This rule has reference to a general accumulation of ice or snow from natural causes, where no other defect in the walk is shown except the natural slippery condition of the ice or snow.” (pp. 71, 74.)
The argument advanced with reference to sidewalks has equal, if not greater, force when applied to highways. The state, through the highway commission, has under its supervision and control 8,690 miles of road and it would be an unreasonable burden to impose upon the state the duty of keeping highways free from the accumulation of ice during the winter months. Winter brings frequent, recurring storms of rain and snow and sudden and extreme changes in temperature which defy prevention, and usually before correction can be made by any means within the control of the state highway commission it is accomplished .by sunshine. To hold that liability resulted from these actions of the elements would be an affirmance of a duty which this court is not warranted in interpreting into the statute.
■ The judgment of the trial court is' reversed, and it is directed to sustain the demurrer to plaintiff's petition. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an original proceeding in mandamus to require the city of Arkansas City to provide suitable rooms for holding the city court in that city and to provide suitable furniture, fuel, lights and necessary incidental expenses of such court as required by R. S. 20-1411.
The purpose of the action is to test the validity of city ordinance No. 886, repealing an earlier ordinance, No. 844, which established a city court in the city of Arkansas City under the provisions of R. S. 20-1401 to 20-1423 and 20-1401 as amended. The defendant city of Arkansas City and mayor and commissioners thereof waived the issuance of alternative writ and service thereof and answered, admitting the allegations of the application except the invalidity of the repealing ordinance.
Section 20-1401 of R. S. 1931 Supp. provides that whenever it is mjade to appear to the satisfaction of the governing body of the city that there is need for the establishment of a city court in such city “such governing body may establish a city court in such city by ordinance of such city.” It prescribes the jurisdiction of such court, limiting that of justices of the, peace, provides for appointment and election of a judge and other officers of the court, their tenure of office and all the requisite details for the trial of certain civil and criminal cases and appeals from decisions rendered therein. Nowhere in the act or the amendment thereof is there any provision relating to the repeal of such ordinance.
The validity of the original ordinance is conceded, but it is the contention of the city and its mayor and commissioners that R. S. 14-401, which gives the governing body of a city the power to enact, ordain, alter, modify or repeal any and all ordinances not repugnant to the constitution and laws of the state, fully authorizes the city to repeal this ordinance. The reasoning is that since the governing body was to determine the need for the establishment of such a court, the same body should determine when that need ceased to exist and then discontinue the court. Counsel for defendants cite 2 McQuillin on Municipal Corporations (2d ed., § 514) as to the power of a city to abolish by ordinance whatever it has power to create by ordinance. That general proposition, however, is modified by the following expression “unless restraint exist in the organic law.” The organic law was quoted above from R. S. 14-401, which limits both enactments and repeals by cities of the second class to ordinances “not repugnant to the constitution and laws of this state.”
The relation of a city to the state is very different from that of the state to the United States government. The city derives all of its power and authority from the state, whereas the thirteen original states which organized the government reserved to themselves some rights and conceded others to the government. The only authority any city has in this state is that given it by statute, and that is given mainly in R. S. 14-401 and R. S. 12-101. With respect to courts of all kinds in this state we must go back one step farther and find what authority is given by the constitution to the legislature with reference thereto. Article 3, section 1, of the Kansas constitution provides:
“The judicial power of this state shall be vested in a supreme court, district courts, probate courts, justices of the peace, and such other courts, inferior to the supreme court, as may be provided by law . . .”
Now the legislature has by law" provided for a city court in certain cities whenever it is made to appear to the satisfaction of the governing body thereof that there is need for its establishmlent. Under our constitution the legislature is the only source of this power, and the legislature has limited its delegation of authority to the city to one feature only, and that is the determination of a need for its establishment. This is in the nature of a finding of fact and is not necessarily legislative in character. Any act or attempted act by the city beyond or aside from that one delegated feature would be repugnant to the laws of this state.
“Municipal corporations are creations of law and can exercise only powers conferred by law and take none by implication. . . (State, ex rel., v. City of Coffeyville, 127 Kan. 663, syl. f 1, 274 Pac. 258.)
Counsel for defendants cite the cases of Stone v. Mahon, 88 S. C. 576, and State, ex rel. Quintin, v. Edwards, 40 Mont. 287, as sustaining'the contention of the city. The first was a case very much like the one at bar. It raised the question of the right and authority of the city to repeal an ordinance establishing a city court, and the court held that a city had a right to repeal such ordinance and abolish the court during the term of office of the judge duly elected, but that was not the basis of the ruling that disposed of the case, for it was held that the act of the legislature delegating to the municipal corporation the power to establish the court was unconstitutional and void.
The Montana case cited concerned the abolishing of an office of patrolman which had previously been established by ordinance, and it was held that in the absence of restrictions in a case of that kind it could be done, but the supreme court recognized the general rule which it expressed in the fifth paragraph of the syllabus, as follows:
“Municipalities have only such powers as are expressly conferred upon them by the statute creating them, and such as are necessarily implied or are indispensable for the proper accomplishment of the purpose of their organization, and any reasonable doubt as to the existence of any power must be resolved against the corporation, and the power denied.” (State, ex rel. Quintin, v. Edwards, 40 Mont. 287, syl. ¶ 5.)
The city of Wichita by ordinance placed its public library under the provisions of a certain act and later attempted to rescind that action, and it was held:
“After a city commission by proper resolution under chapter 122 of the Laws of 1915 decides to bring its public library under the provisions of chapter 121 of the Laws of 1903 and acts supplementary thereto and amendatory thereof, such acts then govern, and their operation cannot be taken away by rescinding the former resolution.” (State, ex rel., v. Bentley, 96 Kan. 344, syl. ¶ 1, 150 Pac. 218.)
The constitutionality and validity of this city-court law now under consideration was tested and tried out in the case of State, ex rel., v. Smith, 130 Kan. 228, 285 Pac. 542, as applied to the city court in Salina, and the following portions of the opinion are especially applicable here:
“There is nothing in the act which purports to give the governing body of the city power to add to, take from or to modify the provisions of the act. The legislature simply provided that when a certain condition is found to exist in any city of the class named the act comes into operation. Upon the happening of a specified contingency, a fact to be found by a iocal agency, the act is to take effect in that city. . . . The statute in question falls clearly within the rule of the decisions cited, and cannot be held to be a delegation of legislative power to the governing body of the city. The contingency under which the act was to become operative in a city was defined by the legislature; that is, a finding and declaration of the governing body that there is need for the establishment of a city court for the administration of justice within the city. These officers elected by the people may be assumed to be well qualified to determine whether or not such a need exists. The declaration of a finding made is required in the act to be embodied in an ordinance. It might have been provided for through a resolution or a motion passed or other official declaration. The ordinance passed was a sufficient record of the finding of the commission and is no more a delegation of legislative power than if the finding had been declared by a method other than by ordinance.” (pp. 231, 233.)
So it has already been determined in this state that the finding of need for the establishment of a city court was not an exercise of legislative power, although such finding was put in the form of an ordinance. If the city in the first place lacked legislative power there was no possibility of its possessing an implied power to rescind or repeal. This is in harmony with the general law on this subject.
“The general rule governing the power of municipal councils to repeal ordinances does not apply where the ordinance has been enacted under a narrow, limited grant of authority to do a single designated thing in the manner and at the time fixed by the legislature, which precludes the implication that the common council was given any further authority over the subject than to do the one act.” (43 C. J. 563.)
“A municipal corporation, even if it existed before the state in which it is located became an independent sovereignty, has no powers which are not derived from and subordinate to those of the state. ... In other words, the people of a particular portion of a state,- by enjoying the privilege of self government, acquire no vested right therein as against the legislature representing the people of the whole state.” (19 R. C. L. 730, 731.)
“A municipal council which has been granted the power to enact ordinances has, as an incident thereto and without any express reference thereto in the statutes, power to repeal ordinances. It has been held, however, that this principle will not apply where the ordinance has been enacted under a narrow, limited grant of authority to do a single designated thing in the manner and at the time fixed by the legislature, and which excludes the implication that the common council was given any further authority over the subject than to do the one act.” (19 R. C. L. 901.)
See, also, the case of State, ex rel., v. Gaitskill, 133 Kan. 389, 300 Pac. 326, where a legislative attempt was held to be ineffective in ousting a district judge from office in the second division of the district court of Crawford county, because the act of the legislature attempting to accomplish that purpose was indefinite, incomplete, vague and conflicting in its provisions.
The financial situation to which reference is made cannot affect the validity of enactments as was determined in the case of State, ex rel., v. Hettinger, 134 Kan. 405, 5 P. 2d 862, concerning the city court under this law at Hutchinson, as follows:
“The fact that the creation of a city court under an ordinance made pursuant to authority of statute may disarrange the city’s fiscal affairs as contemplated by its current annual budget does not invalidate the court nor render nugatory the ordinance creating it.” (Syl. IT 3.)
In harmony with the previous rulings of this court with reference to the establishment of city courts under R. S. 1931 Supp. 20-1401, it must be concluded that the repealing ordinance, No. 886, of Arkansas City is invalid and of no force and effect, and the finding of ordinance No. 844 as to the need of such a court is still in effect.
The writ is allowed. | [
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The opinion of the court was delivered by
Sloan, J.:
This action was brought to establish an oral contract, set aside a deed and contest the validity of a will.
Michael Keefe and Mary A. Keefe were husband and wife, and prior to 1872 lived in Wisconsin. At that time they were the parents of two children, the plaintiff and a brother, Alexander John Keefe. About 1869 the grandfather of the two children deeded them a small farm in Wisconsin. The mother was subsequently appointed guardian of the two children and in 1871, as such guardian, she sold the farm for $800. No accounting was made to the court of the disposition of the $800, and it appears to have been used in the support of the family. There is evidence tending to show that the parents entered into an oral agreement with the plaintiff, his brother, and their grandfather, to the effect that if the plaintiff and his brother would not disturb the sale and would live near by and assist them through life, that on their death an adjustment of the matter would be made, and the boys, or the survivor, would receive the full principal of the money, and in addition thereto a fair interest or profit thereon. Alexander John Keefe died in March, 1894, without issue and unmarried. The parents left surviving them at their death the plaintiff and the defendant, their daughter, Alice M. Kill. Michael Keefe and his wife, through their joint efforts, accumulated some property and in the early nineties acquired the land in question, and the title was taken in the name of Mary A. Keefe. The plaintiff lived with his parents on the farm until 1895, when he married and moved to a residence in Elk .Falls, where he and his family resided at the time of the trial. The plaintiff and his father carried on a joint enterprise in the stock business for several years. The defendants married in 1900, and, since June, 1901, have occupied the land in question, for which they paid rent to the father, and at the time of his death were indebted to him in the sum of $3,300. In 1903 Michael Keefe and his wife moved to Moline, where they resided until 1912. There is evidence to the effect that in 1912 the mental condition of Mary A. Keefe became so bad that it was necessary for them to return to Elk Falls, near the children. For a short time they lived in a cottage by themselves, but later, the condition of Mrs. Keefe becoming much more acute, the plaintiff arranged for them to live in a small cottage belonging to him in the same yard with his residence. They lived there until about 1921. Mrs. William Keefe did all their cooking, laundry work, and to a large degree all of the household work necessary for them to continue their life in the little cottage. In 1922 a quarrel occurred between the plaintiff and his wife, and the defendants, which appears to have grown out of neighborhood gossip to the effect that Mrs. Keefe had complained of the burden of the care of the old couple. The result was that the old couple moved into a small cottage near the residence of the defendants, where they resided until August 22, 1922, when Mary A. Keefe died. The husband continued to reside either in the cottage or with the Kills until the date of his death, which occurred January 29, 1926.
On June 18, 1917, Mary A. Keefe and Michael Keefe executed and delivered a deed to the defendant, Alice M. Kill, conveying the land in question, in which deed they reserved a life estate. The deed was filed for record in the office of the register of deeds on June 18, 1917. On September 2, 1925, Michael Keefe executed a will, which was properly witnessed and in due form. After making a number of bequests to his grandchildren, and also a bequest of $10 to his son, the plaintiff, the residue of the estate was devised and bequeathed to Alice M. Kill, and she was made executrix of the will. The will was regularly admitted to probate on the 4th day of February, 1926.
The trial court impaneled a jury and submitted to it special questions to be answered. The jury found that Michael Keefe and Mary A. Keefe made an oral agreement with the plaintiff and his brother, in substance, as claimed by the plaintiff, and that the plaintiff performed his part of the agreement and should recover from the estate $2,114; that Michael Keefe was of sound mind and memory when he executed his will and was not under any undue influence; that Micháel Keefe and Mary A. Keefe were mentally capable of executing the deed or transacting business of any kind on June 17, 1917, and that Mary A. Keefe was the owner of the land at the time the deed was made; that the consideration for the deed was love and affection and that no unfair advantage was taken by the grantee of the grantors in the deed, and the grantee acted in perfect fairness toward her parents and without abusing any confidence that may have been reposed in her. The court, upon the return of the verdict and after due consideration thereof, found that there was no contract between Michael and Mary Keefe on the one hand, and William Keefe and Alexander Keefe on the other, as set out in plaintiff’s petition; that at the time Michael Keefe made his will he was competent to make a valid will and was not under any undue influence; that the title to the real estate was taken in the name of Mary A. Keefe as a convenience; that she was in fact the owner of only an undivided one-half interest therein, notwithstanding the fact that the title stood in her name; that she was not acting under any undue influence, but did not possess sufficient mental capacity to execute a good and valid deed. The court decreed that the plaintiff was the owner of an undivided one-eighth interest in the land. Motions for new trial were filed by both parties, overruled and both parties have appealed. For convenience the parties will be referred to herein as plaintiff and defendants.
The plaintiff contends that the evidence clearly establishes the oral contract and that the court should have adopted the findings of the jury. The only evidence which tends to establish an oral agreement was the testimony of the plaintiff, who testified that the contract was made in his presence between his brother and his parents for his benefit, and he took no part in the conversation. This conversation took place in February, 1889. The jury in answer to special questions found that an agreement was made. The court set the findings aside and held that no agreement was made. This was a question of fact for the trial court to determine and it was its duty to weigh all of the surrounding circumstances, including the demeanor of the witness on the stand, and determine whether the evidence clearly and unequivocally established the facts necessary to be proven. (Wilson v. Stafford, 124 Kan. 382, 260 Pac. 627.) The trial court was not bound by the findings of the jury.. It served only in an advisory capacity, and in such case it is the duty of the trial court to weigh the testimony and determine for itself the facts in the case. (Bell v. Skinner, 119 Kan. 286, 239 Pac. 965; Maddy v. Hock, 134 Kan. 15, 4 P. 2d 408.) The facts having been regularly determined by the trial court, this court is bound thereby.
It is next contended that the will was void because the testator lacked mental capacity and was under the undue influence of Alice M. Kill and Teresa Kill when the will was executed; that Teresa Kill was the agent of Alice M. Kill, the principal beneficiary, and directed the drawing of the will, and the testator was without independent advice. The evidence as to the mental capacity of the testator and undue influence is quite voluminous. There was sufficient evidence, had it been accepted by the court, to warrant a finding either way. The weighing of this testimony and determining the facts in the matter was the function of the trial court. The jury found that the testator was of sound mind and memory and not under any undue influence at the time the will was executed. The court approved this finding, and, under the circumstances, we are bound to accept this finding of fact as the settled fact in this case. There is, however, little or no conflict in the testimony relating to independent advice and we will consider this testimony for the purpose of determining whether the statute relating to independent advice has been violated. The granddaughter, Teresa Kill, testified that for some time prior to August 25, 1925, she had been away from home and returned a few days prior to that date. She was assisting in caring for her grandfather, the testator. Her mother, on the date mentioned, was not at home. The grandfather asked her to take him to Howard, and after learning from her sister, Mary, that he had been wanting to go to Howard to have a will drawn she consented to take him and did take him on the date mentioned. Upon reaching Howard they made some inquiry about attorneys and finally went to the office of Clifford Sullivan, a practicing attorney. He had known the testator since 1916. He obtained from the testator and the granddaughter the necessary information for the drawing of the will and suggested that he would prepare it in accordance with the instructions and mail it to the testator for execution. The attorney testified:
“He told me what he wanted and when he came down to the children he said he wanted them to have so much and the old gentleman talked in sort of a muffled voice and these names are not familiar to me and I just asked this girl to spell them out for me and give me these names. ... So far as I could see, he did not seem to be excited or under the influence of any kind. He was rational in every way so far as I observed.”
The will was completed in accordance with the instructions and sent by mail to the testator. The granddaughter accompanied him to the local bank and at his request she called in the witnesses, and the will was regularly executed. The evidence of the witnesses to the will is to the effect that they signed as witnesses at the request of the testator, and the testator understood what he was doing. After the execution of the will it was delivered to Alice M. Kill, and she testified that this was the first information she had concerning the making of the will or the contents thereof.
It is earnestly insisted by the plaintiff that this evidence brings the will clearly within the case of Flintjer v. Rehm, 120 Kan. 13, 241 Pac. 1087, and that the case should be reversed on the ground that the testator was deprived of independent advice. In the case cited the will was prepared by the principal beneficiary, who at the time was the confidential agent of the testatrix, and the testatrix did not have independent advice. This brought the case within the terms of the statute (R. S. 22-214) and the court in the opinion pointed out that the statute applies only when the will is written or prepared by the sole or principal beneficiary, who is the confidential agent of the testator. In the case under consideration the will was not written or prepared by the sole or principal beneficiary. The evidence is that the principal beneficiary had no knowledge of the will until after its execution. Under these circumstances the statute relating to independent advice has no application and the will must be sustained.
It is next contended by the plaintiff that the court erred in holding that Mary A. Keefe was the owner of an undivided one-half interest in the land, insisting that there was no evidence on this question. There was a lack of testimony supporting this conclusion, but the court appears to have adopted the plaintiff’s theory. In the original petition it was alleged that Michael Keefe was the owner of an undivided one-half interest in the land and that the title was carried in the name of Mary A. Keefe for convenience, and in the amended petition it is alleged that Mary A. Keefe was the record title owner of the real estate, but that said property was the proceeds of the joint endeavor of the parties. Since the plaintiff injected this issue into the case and the court adopted his theory he is not in a position to complain, and the finding and judgment of the court is not reversible error. (Spaulding v. Colvin, 133 Kan. 409, 411, 2 P. 2d 82.)
The defendants contend that the plaintiff’s cause of action to set aside the deed was barred by the statute of limitations on the theory that the action was founded on fraud and therefore barred in two years. The court found as a fact that Mary A. Keefe was not acting under any undue influence, but she did not possess sufficient mental capacity to execute a good and valid deed, and that Alice M. Kill, the grantee, acted in perfect fairness toward her parents and without abusing any confidence. The action was not founded or relief granted on ground of fraud and consequently the action was not barred by the statute of limitations.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by the First National Bank of Hays against Ben H. Mense, upon a promissory note for $1,000 executed on October 5, 1922, in favor of the Anderson Mercantile Company, payable six months after date with interest at eight per cent per annum from date until paid. It was transferred before it was due by an indorsement of the W. O. Anderson Mercantile Company, as security for a loan obtained by that company from plaintiff. An interest payment of $40 was made on the note on April 7,1923. An action thereon was begun on the 14th of May, 1923. In its petition the note with the indorsements thereon were set out as follows:
“$1,000.00 Grinnbll, Kan., Oct. 5,' 1922.
Six months after date I promise to pay to the order of the Anderson Merc. Co., one thousand and no/100 dollars at First National Bank, with interest at the rate of 8 per cent per annum from date until paid. Value received.
Rev. stamps 204. Ben H. Mense.
Indorsed on back: W. O. Anderson Merc. Co. — G. H. Benton. Apr. 7, 1923, int. pd. to 4/5/23, $40.”
Plaintiff alleges that the note had been transferred by the W. O. Anderson Mercantile Company before the same became due and that it was now the owner and holder of the note and defendant had failed to make payment of it. In defendant’s answer he pleaded first that the note was barred by the statute of limitations. He further answered that an agent of the Anderson Mercantile Company visited him in his home and proposed to sell shares of stock in that company which he said was of the par value of $100 per share; that the company was paying dividends of more than ten per cent on the par value of the stock and was carrying on a profitable business; that it had a warehouse and other mercantile buildings in Hays; that a volume of business had made it necessary for the company to enlarge its buildings; that the business men and banks of Hays were stockholders in the company and that the agent read and showed defendant a number of letters purporting to have been signed by business men of Hays recommending the company, and the agent stated that the statements made in the letters were true. The agent further stated to defendant that the company would make as large a profit as the H. D. Lee Mercantile Company, which was making a profit of about fifty per cent on the par value of its stock. He then alleged that the defendant relied on the statements and representations of the agent, believed them to be true, but that the statements were false and were well known to be false by the agent, and that he signed and delivered the note upon the faith of the statements and a promise made by the agent that he would deliver forthwith five shares of the stock of the company. ■
He further alleged that the company had at all times since the signing and delivery of the note neglected and refused to deliver the shares of stock or to enter his name upon any of the records of the company as a stockholder. A further answer was that the plaintiff is not the real party in interest and is not the holder and owner of the note sued upon and did not obtain the note in due course from the Anderson Mercantile Company for a valuable consideration before the note became due. That the plaintiff bank was a stockholder in the company and knew when it acquired the note that the company was a bankrupt and insolvent concern, and that the stock was worthless. At the time the note came into the possession of plaintiff, and for a long time prior thereto, it knew or could have known by the exercise of ordinary care and prudence that the company had not delivered to defendant the shares of stock for which the note was given, and knew for some time prior to the delivery of the note sued upon that the agent had been traveling over the county of defendant and a neighboring county, making false and fraudulent statments to many other farmers for the purpose of obtaining and procuring the notes of said farmers, which were to be placed in the possession of the plaintiff bank which was only a few blocks from the offices and place of business of the company, and that the company was at the times mentioned a depositor and creditor of the plaintiff’s bank and knew that the stock was worthless at the time of its purchase and payment by reason of the note.
It was further alleged that the Anderson Mercantile Company and its agents at the time of the execution and delivery of the note and thereafter until the company was declared a bankrupt, in the early part of 1923, were selling and disposing of the company’s stock in violation of the blue-sky laws of the state.
It was further alleged that the Anderson Mercantile Company is the real owner of the note sued upon, -and by reason of the averments it was alleged that the note was without consideration and void. The reply was a general denial and upon the testimony produced, a verdict for defendant and the following special findings of fact were returned by the jury.:
“1. Was the note sued on indorsed and delivered to plaintiff on December 5, 1922, as security for a note executed and delivered to the plaintiff by the W. 0. Anderson Mercantile Company? A. Yes.
“2. What amount, if any, remains due and unpaid of the note executed by the W. O. Anderson Mercantile Company to the plaintiff for which the note sued on is held by the bank as security? A. $594.57 with interest from date of note.
“3. Does the evidence prove that the parties to whom defendant delivered said note made false or fraudulent statements to the defendant by which he was induced to sign said note? A. Yes.
“4. If you answer the preceding question in the affirmative, state in substance what false and fraudulent representations were so made to defendant, which induced him to sign said note. A. Defendant was promised certificate of stock in Anderson Mercantile Company, which he never received.”
While there were many charges that false representations were made by the agent of the W. 0. Anderson Mercantile Company which induced the execution of the note by the defendant, it will be observed that the jury found that the only false representations made to defendant which led him to sign the note were that the company promised to deliver a certificate of stock, which was not done. The plaintiff complains of errors in the admission of evidence, of instructions given and refused, refusal to render judgment for plaintiff on the special findings, and in refusing a motion for a new trial.
No brief in behalf of defendant has been filed in this court, nor has any appearance been made for him.
The first error assigned by plaintiff is the admission in evidence of a representation by the agent of the company that the stock of the company would ultimately pay for itself. The objection was that no such representation was pleaded by defendant, and further that if any such representation had been made it did not constitute a defense since it was a promise looking to the future and could not be relied on as a ground of fraud. Both objections were good. In Cook v. Williams, 81 Kan. 438, 105 Pac. 1116, it was decided that:
“One who pleaded certain alleged fraudulent acts as a defense was bound by his pleading and could not upon the trial avail hims'elf of other facts not pleaded.” (Syl. 1[ 1.)
In respect to the fraudulent representations it has been held that to constitute fraud the representations must relate to present or a past state of facts. In Kiser v. Richardson, 91 Kan. 812, 139 Pac. 373, it was said:
“The rule that false representations in order to be fraudulent must relate to a present or past state of facts, and that no action will lie to recover damages as for deceit in the failure to perform a promise looking to the future,” etc. (Syl.)
In Federal Agency Investment Co. v. Holm, 123 Kan. 82, 254 Pac. 391, where the .defendant contended that the representation that shares of stock would be paid for within five years from dividends accruing from the policy was a representation which, if false, constituted fraud, it was said:
“We are of the opinion that such representation was not one of past or existing facts. False representations, in order to be fraudulent, must relate to a present or past state of facts. No action will lie to recover damages as for deceit in the failure to perform a promise looking to the future.” (p. 86.)
Complaint is made of an instruction given to the jury. It was that:
“The note sued on and the indorsement thereon to plaintiff do not constitute the note a negotiable instrument passing title to the plaintiff free of all defenses that might be made against it. The defendant is entitled to all the defenses to the note in the hands of plaintiff that might be made to said note if it had never been transferred or delivered to plaintiff; that is, to all the defenses that he might make to said note if there had been no transfer and if the original payee were the plaintiff in this action.”
On its face the note already set forth is negotiable in form and has all the words and characteristics of negotiability as prescribed in the negotiable-instruments act. (R. S. 52-201.) It was transferred to the bank before it was due and the bank then became a holder in due course. The feature or ground which might destroy negotiability as a matter of law is not suggested by the court, nor do we find it in the record of the case. Counsel for plaintiff suggests that the court appeared to have the notion the fact that it was made payable to the plaintiff bank affected its negotiability. The statute cited which provides the requirements of an instrument in order to make it negotiable, does not provide that place of payment is an essential. Such a recital is surplusage so far as negotiability is concerned. It has been held that a blank left for inserting place of payment which was not filled out, did not render the note nonnegotiable. (Witty v. Michigan Mutual Life Ins. Co., 123 Ind. 411.)
It is also suggested that the court appeared to hold to the theory that there was a variance between the payee named in the note and that of the indorser which operated to destroy negotiability. The note was made payable to Anderson Mercantile Company, and it was indorsed, W. 0. Anderson Mercantile Co., G. H. Benton. G. H. Benton was the president and general manager of the company. It appears that an application for a loan was made to the bank by the mercantile company and the note in question was transferred to the bank as security for the note of the mercantile company. The mere omission of a word in a name of a corporation in an indorsement does not prevent an indorsee from being a bona fide holder of the note or necessarily destroy its negotiability. The statute provides:
“Where the name of a payee or indorsee is wrongly designated or misspelled, he may indorse the instrument as therein described, adding, if he think fit, his proper signature.” (R. S. 52-414.)
The statute itself contemplates a mistake may be made in describing the payee or the indorsee and provides that either may at his option indorse it as previously described or by the correct signature. In Mann v. National Bank, 34 Kan. 746, 10 Pac. 150, it was said:
“A negotiable note executed in terms to 'A. W., President,’ A. W. being the president of the Champion Machine Company, but intended to be executed to and to belong to the Champion Machine Company, and it did in fact belong to such company, and such note is afterward, but before maturity, sold to an innocent purchaser and indorsed by A. W. to said purchaser in the following words: ‘The Champion Machine Company, by A. W., president,’ such indorsement will transfer the note, free from all equities or infirmities of which the purchaser had no notice.” (Syl. ¶ 2.)
In First Nat. Bank v. McNairy, 122 Minn. 215, where a note was made payable to Northland Motor Company, and indorsed before maturity by Northland Motor Car Company, the true name of the company, it appeared that one defense of the defendant was that false representations had been made which induced the execution of the note, and further that the variance mentioned between the names of the payee and indorser invalidated the indorsement and did not operate to transfer title, but it . was held that the omission of the word “car” was not fatal to a valid indorsement. In the course of the opinion it was said:
“We, however, do not believe the omission of the word ‘car’ in the name of the payee in the note destroys the validity of the indorsement made under its true name. It is well known that corporations or trading concerns have names more or less descriptive of the business and composed of several words. Frequently, in everyday business use, the name is contracted and a word left out. It can hardly be said that an omission of the word ‘car’ under the circumstances disclosed in' this case is unusual or out of the ordinary so as to deprive plaintiff of being a bona fide holder.” (p. 219. See, also, First National Bank v. Cox, 192 Wis. 566.)
In his answer defendant raised no question as to the identity of the note or that the Anderson Mercantile Company and the W. 0. Anderson Mercantile Company described the same corporation. The W. 0. Anderson Mercantile Company had possession of the note and defendant recognized that it had been transferred by an indorsement, but contended that fraudulent representations had been made to induce the execution of the note. There is nothing in the case to show that the bank had any knowledge of the representations made in the sale of the stock for which the note was executed. On the contrary, there is direct testimony of the cashier that he had no knowledge of the conditions under which the note was executed nor of any statements that were made to the defendant at the time it was executed. The testimony of the president of the bank was to the same effect, and further, that neither of them ever owned any stock in the W. 0. Anderson Mercantile Company.
The jury found that of the many charges of fraud the only one that could be attributed to the plaintiff was the promise to deliver a certificate of stock to the defendant. That finding acquits the plaintiff and its indorser of every other allegation of fraud and excludes them from further consideration in the case. (Stock v. Scott, 132 Kan. 300, 295 Pac. 638.) The fraud found was no more than a promise looking toward the future, and under authorities herein cited cannot be regarded as actionable fraud. The amount due on the note was not in fact in dispute, and the jury in answer to a specific question found that the amount due on the note given to the bank by the W. 0. Anderson Mercantile Company, for which the note in suit was transferred to plaintiff, as security, is $594.57 with interest from the date of that note. That being determined, plaintiff’s motion for judgment on the evidence and findings should have been sustained.
For the errors mentioned, the judgment of the district court is reversed with directions to enter judgment for plaintiff in the sum of $594.57 together with interest thereon from the date of the note executed by the W. 0. Anderson Mercantile Company.
Sloan, J., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
This appeal presents a question of law touching the liability of a physician and surgeon for malpractice in the treatment of a workman whose injuries entitled him to compensation under the workman’s compensation act.
Plaintiff’s petition alleged that on June 14, 1929, he suffered an accident whereby he fractured the bones in his left elbow and the bones of his fourth finger and a finger joint of his left hand. He alleged that he employed the defendant, Dr. J. C. Bunten, to treat those injuries, and that defendant treated them so carelessly, negligently and unskillfully that in bandaging plaintiff’s arm the circulation was stopped; that the bandages were negligently permitted to remain on the arm for three weeks; that this negligence caused plaintiff’s elbow to become permanently stiff and disabled; that defendant negligently failed to discover that the knuckle joint of plaintiff’s fourth finger on his left hand was broken and failed to set the bones thereof, whereby plaintiff has lost the use of that finger. Plaintiff also alleged that such negligence and want of skill on the part of defendant has rendered him permanently disabled from engaging in ,his vocation as a skilled workman to his damage in a substantial sum, for which he prayed judgment.
Defendant filed an answer containing a general denial, an admission that defendant was a licensed physician and surgeon, and admitted that on or about June 14, 1929, plaintiff sustained an injury and that defendant was employed in his professional capacity to attend the plaintiff, and that he did thereafter perform professional services and render treatment for plaintiff’s injury.
As a further and fourth answer and defense to plaintiff’s action defendant alleged that at the time of his injury plaintiff was employed as a workman by a firm of well drillers, Ramsey & Haines, and that he and his employers were operating under the workmen’s compensation act and that plaintiff’s injury arose out of and in the course of his employment; that plaintiff filed a claim for compensation; that compensation proceedings followed in which plaintiff, his employer and the insurance carrier participated, the compensation commissioner approving and consenting thereto; and that periodical payments aggregating $324 were made to plaintiff while those proceedings were pending, and at their conclusion a further award of $2,300 in a lump sum was paid to plaintiff, in settlement and satisfaction of his injuries sustained in his employers’ services. Defendant further alleged thát if plaintiff suffered injuries and damage by -reason of any negligence of defendant, which he specifically denied, such injuries and damage were the proximate result of the accident of June 14,1929, which plaintiff sustained in his employers’ service and for which he had been fully compensated, and for which he had executed full release and satisfaction, and that such release had been timely filed with the commission of labor and industry in conformity with the statute.
Plaintiff’s motion to strike the foregoing fourth paragraph of this answer was overruled. He then filed a demurrer thereto, and it was sustained. From that ruling defendant appeals.
Counsel for defendant have marshaled for our examination a considerable number of decisions from other jurisdictions which hold that where a workman has sustained injury in his employer’s service and that service is covered by the compensation act any aggravation of his injury occasioned by the negligence of the physician in giving treatment therefor is considered as part of the original injury and the award of compensation allowed or allowable under the act therefor is exclusive, and that no separate action against the physician for additional recovery as damages is maintainable.
To that effect is the instructive case of Polucha v. Landes, 60 N. D. 159 [1930], where most of the cases on this question are collated. In McDonough v. National Hosp. Ass’n, 134 Ore. 451, the workman claimed and received additional compensation because of the aggravation of his industrial injury through the alleged malpractice of the physician. In ruling against his independent action for malpractice the court said:
“We are not unmindful that there are oases in some jurisdictions holding that an aggravation due to the unskillful treatment of a physician is not compensable under the particular compensation act in force in such jurisdictions, and, not being compensable, that such aggravation is a new, separate and independent injury for which an action against the physician will lie. An examination of such acts will show that a marked difference exists between such acts and the provisions of our own act. It is clear from a reading of our own statute that an aggravation of the primary injury resulting from the mistake, negligence or malpractice of a physician in treating the original injury is compensable under the act, and that the act intends that there shall be but one satisfaction for the added injury in cases where the injured workman has received full compensation for the combined injury.” (p. 462.)
In Vatalaro v. Thomas, 262 Mass. 383, where plaintiff, a workman injured in his master's service and who had received compensation therefor, sought to maintain an action of tort against the surgeon who had negligently treated him and thereby greatly aggravated his injuries, it was held:
“(1) The defendant’s lack of skill in performing the operation was an act of negligence which, it might reasonably have been anticipated, would follow as a natural and probable consequence of the original injury;
“(2) Acceptance by the plaintiff from his employer’s insurer of compensation under the workmen’s compensation act was acceptance of compensation for the injury which was the basis of this action;
“(3) Such acceptance of compensation barred recovery from the defendant.” (p. 383.)
In Pawlak v. Hayes, 162 Wis. 503, it was held that an injured workman might elect whether he would claim compensation or sue the physician for malpractice whereby his industrial injury was aggravated, but he could not do both.
In Booth & Flinn, Ltd., v. Cook, 79 Okla. 280, and in Brown v. Sinclair Refining Co., 86 Okla. 143, it was held that the compensation act furnished the exclusive redress for a workman covered by its provisions notwithstanding his industrial injury was aggravated by the physician’s alleged malpractice.
On the other hand, in our own familiar case of Ruth v. Witherspoon-Engler Co., 98 Kan. 179, 157 Pac. 403, it was held that under the compensation act an employer’s liability to compensate a workman injured in his service could not be augmented because of the incompetent or negligent surgical treatment of the surgeon who treated the workman for his industrial injury. In the course of the opinion, the late Mr. Justice Mason, speaking for this court, said:
“So much of an employee’s incapacity as is the direct result of unskillful medical treatment does not arise ‘out of and in the course of his employment’ within the meaning of that phrase as used in the statute. (Laws 1911, ch. 218, §1.) For.that part of his injury his remedy is against the persons answerable therefor under the general law of negligence, whether or not his employer be of the number.” (p. 181.)
To the same effect was Ellamar Mining Co. of Alaska v. Possus, 247 Fed. 420; Viita v. Flemming, 132 Minn. 128, L. R. A. 1916D 644, 648, and note; also note in L. R. A. 1917D 172. (See, also, Moeser v. Shunk, 116 Kan. 247, 226 Pac. 784.)
In some of the decided cases in other jurisdictions the Ruth case is disapproved; elsewhere it is assumed that our Kansas statute may be different from the particular compensation act under discussion.
Be that as it may, there is no language in our compensation stat ute, nor in any which has come under our notice, which explicitly declares that the aggravation of an industrial injury caused by the negligence or want of skill on the part of a physician or surgeon who treats the injury is to be regarded as a part of the original injury and that the workman has no other redress for such negligence than the award provided by the compensation act. This court is disinclined to write such a doctrine into our statute, and we are not impressed with the reasoning of the courts which have done so, although we heartily acknowledge the assistance we frequently obtain from their instructive decisions in the solution of our judicial problems. Under the common law an employer who selected a skillful physician or surgeon to treat his injured or ailing servant discharged his full duty to his. servant, and was not liable for the mistakes or negligent acts or omissions which such professional man might subsequently commit. (A. T. & S. F. Rld. Co. v. Zeiler, 54 Kan. 340, 38 Pac. 282.) And while the compensation act has radically changed and enlarged the master’s duty to his servant, it has not specifically changed that particular rule. Cases can readily be imagined where the scheduled compensation for an industrial injury would be a grossly inadequate compensation for the consequences flowing from the negligent malpractice of a physician who treated the injury. Thus for the loss of a toe, 60 per cent of the workman’s average weekly wages during 10 weeks; loss of a hand, 60 per cent for 150 weeks; loss of a leg, 60 per cent for 200 weeks; loss of an eye, 60 per cent for 110 weeks; and not another dime although the surgeon called on to treat the workman for such injuries should cruelly bungle the treatment, use no anesthetics, let the suffering workman wait while he played a round of golf! An industrial wound in the face would probably cause a workman no serious or lasting incapacity to work and earn wages, consequently the compensation award under the act for such an injury would be trivial; but if that facial injury were negligently treated by a careless doctor the result might render the workman’s features hideous. Surely such negligence would constitute a tortious wrong for which the doctor ought to pay. To hold that the moderate, often nominal, awards of the compensation act would limit the workman’s redress for such negligence would shock the public conscience. Our compensation act has been repeatedly amended and once entirely rewritten since ihemlem Ruth v. Witherspoon-Engler Co. was announced, and the legislature has been content to let it stand. It is therefore reaffirmed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This case involves the conversion and detention of drilling tools for a period of 200 days, for which damages were asked by Harper Baker against J. W. Craig and others. ' It is the fourth time this case has been brought to the attention of this court. Reference is made for the early history of the litigation to Baker v. Craig, 127 Kan. 811, 275 Pac. 216; Baker v. Craig, 128 Kan. 676, 280 Pac. 771, and Baker v. Craig, 117 Kan. 491, 232 Pac. 248.
It appears that the original action was brought by plaintiff in three counts, one to recover damages for the breach of an oral contract relating to the conversion and deprivation of the use of well-drilling tools; another count set up the same facts, alleging a tort and asking a recovery of damages, and a third count was for the malicious prosecution of an action involving the same subject matter.
While damages were asked for the same amount in each count, it is evident that all related to the same general matter and probably only one recovery was sought. Involved in the case was an injunction proceeding and the amount recovered on an injunction bond, and also a proceeding on a mechanic’s lien. (Baker v. Craig, 117 Kan. 491, 232 Pac. 248.) In this action the court held that plaintiff had not shown a right of recovery on any one of the three counts in his petition, and sustained a demurrer to his pleading. That judgment was first affirmed by this court. (Baker v. Craig, 127 Kan. 811, 275 Pac. 216.) Plaintiff then filed a motion for a rehearing which was allowed in part, and it was then adjudged that the demurrer should be overruled as to damages for the limited period of 200 days after the injunction was dissolved.
The only matter involved in this case is whether plaintiff was entitled to damages for the detention of the tools for the 200 days after the dissolution of the injunction. No demand was made for the tools after the injunction was dissolved, nor did plaintiff show that defendants were in possession of them after that time. A demand for the tools had been made when the original action was commenced in 1926, and it is the contention of plaintiff that another demand was unnecessary, while the defendants’ contention is that the adjudication in the injunction proceeding operated to restore the tools to plaintiff and that a demand was necessary to recover damages for the limited period of 200 days. After the decision in this court overruling the demurrer as to the 200-day period, the plaintiff filed a third amended petition setting out the proceedings in the earlier litigation, the oral demand for the tools in 1926, in the loss suffered in being kept out of possession as well as the depreciation in value of the tools. The several defendants filed answers which consisted of general denials and the bar of the statute of limitations.
At the trial plaintiff introduced evidence as to the prior litigation, including exhibits of the pleadings and proceedings in the former litigation. Plaintiff testified as to the purchase and use of the tools; that he had never instructed one Hughes, or anyone else, to take possession of them for him and did not even know that Hughes had them. He said he found that some of them had been moved away from the lease and others remained there. He did know that part of the tools had been moved to another place and saw them there, and stated that the reasonable amount for the use of such tools would be $100 per day. Further that the tools would depreciate in value to the extent of forty to fifty per cent. Other testimony was given as to the reasonable earning value of a string of tools. The plaintiff admitted that he recovered judgment on the injunction bond in the sum of $5,000, which was paid by the defendants. .
Defendants demurred to the evidence on the ground that the same did not prove a cause of action in favor of the plaintiff against any of the defendants. First, that there was a lack of demand and proof of possession and of detention of the tools in question by the defendants, and also a failure on the part of plaintiff to do anything to prevent the loss sued for or to comply with the law on the part of the plaintiff which would entitle him to recover damages in this case. The court sustained the demurrers and entered judgment for the defendants.
There had been a controversy between the parties as to the ownership of the tools, the defendants claiming that they had advanced money for the purchase of them, and the plaintiff claiming that he had acquired ownership by his work on the lease as provided in the drilling contract. The tools were in use by the plaintiff on the lease when the injunction action mentioned was brought by defendants to prevent the moving and disposition of the tools by plaintiff, which resulted as stated in a dismissal and dissolution. Then the action of plaintiff for damages was tried and determined as already set forth. The judgment of the district court was affirmed except as to the 200-day period.
Because of some general allegations as to the conversion and detention of the tools by defendants for the period of 200 days after the dissolution of the injunction, a rehearing was granted and a retrial allowed as to whether plaintiff was entitled to damages for that period. It was determined that prior to that specific period plaintiff had failed to show a ground of recovery for conversion or detention. The charge of wrongful detention during the 200-day period set forth by plaintiff in his amended petition stands apart as an alleged cause of action, and it devolved on plaintiff to show wrongful possession and detention during this limited period, including a demand and refusal of defendants to surrender a possession they actually had. No demand for possession was shown as applied to this period, but plaintiff alleged in his amended petition that he had made an oral demand sometime before November 20, 1926, but at the last trial, when the question of demand was raised, counsel for plaintiff stated in open court: “There is no attempt to show any demand. We did not know anything about the tools. We did not know anything about them, where they were or anything about them during that period.” The plaintiff claimed that an oral demand had been made earlier and prior to the time the injunction was dismissed and dissolved, which occurred on November 26, 1926, and he claims that that demand was still operating; that a further demand would have been useless and is not required by law where there is a forceful conversion. The question whether there was a conversion and unlawful detention for the limited period was up for trial; whether defendants had possession of the tools and whether plaintiff had taken the requisite steps to recover possession from defendants. As to possession plaintiff had alleged that up to the injunction order he had possession of the tools and in his testimony showed that he even used the tools after the order was served on him, and further that he took about two loads of tools to Douglas prior to the service of the injunction upon him. His testimony shows that the lease was sold by defendants sometime in 1922 or 1923, and that he was out there after the defendants parted with possession of the lease and at that time the tools were on the lease. There was testimony by him that tools were moved up to Magnus City for awhile sometime in 1923, after the lease was sold by defendants, but that he did not authorize anyone to move the same, nor had he moved them himself. After the injunction was dismissed what was there to prevent plaintiff from taking possession? The judgment dissolving the temporary injunction operated to lift the restriction and leave the parties as they were when the action was begun, and defendants insist that the “general effect of the dissolution of a temporary injunction is merely to put the parties in the same position in which they were prior to the granting of the injunction.” (32 C. J. 429.)
The tools were on the lease where they were when the injunction was issued. Plaintiff was then at liberty to resume the possession of them on the lease where he had used them and presumably where he could have found them. If defendants had taken possession and were withholding them or had done something that prevented plaintiff from taking them into possession, or of interfering with their use by plaintiff, a different question would arise, and even in such a case it would have been incumbent on plaintiff to prove such withholding or interference. Here the plaintiff failed in his proof. There was no proof that defendants had possession of the tools during the period or were wrongfully interfering with plaintiff’s right to possession of them. The claim of conversion and detention and for damages up to the 200-day period had been determined adversely to plaintiff, and when he asked damages for conversion and detention for the segregated period, it became necessary for him to es tablish that defendants had possession and were unlawfully detaining the tools.- The fact that defendants had brought the injunction proceeding which was dismissed cannot, under the circumstances, be regarded as proof of wrongful detention.
Our conclusion is that the plaintiff’s evidence failed to prove essential facts in the case or establish a right of recovery in him.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
In form the action was one for partition of real estate commenced by six children against their widowed mother. For plaintiffs to prevail it was necessary to avoid a deed of land made by the father of plaintiffs to their mother, and recorded shortly after grantor’s death, which occurred in November, 1915. The deed was of record, and the mother was in full possession and enjoyment of the land for almost fourteen years before the suit was commenced. The stated ground of the suit was that the deed had not been de livered in the grantor’s lifetime. The cause of the suit was discovery of oil. Six children who would not join in harassment of their aged mother were made defendants. The Gypsy Oil Company was also made a defendant, but the action was subsequently dismissed as to the oil company. Issues were framed, and the case was tried by the court. The court stated findings of fact and a conclusion of law, pursuant to which judgment was rendered for defendants. Plaintiffs appeal. The findings of fact and the conclusion of law are appended to this opinion.
The notary public who prepared the deed, took the grantor’s acknowledgment, and knew what occurred between husband and wife at the time the deed was executed, had become mentally incompetent, and could not testify at the trial. The statute forbade the wife to testify to conversations and transactions had personally with her deceased husband. By craft and deceit Ross Dickson succeeded in getting his mother to write with pen and ink at his dictation and to sign a statement that the deed was kept by Joseph W. Dickson in his possession in his own desk until his death. Being thus fortified and armed, plaintiffs commenced their action. Then they took their mother’s deposition. Plaintiffs took a tortuous course with respect to this deposition, but the part played by the deposition at the trial need not be described or discussed.
The case was tried on a second amended petition which was verified, and which contained an allegation that the deed executed by Joseph W. Dickson was “void and of no force and effect, for the reason that it was not delivered during the lifetime of the grantor.” Mrs. Dickson’s answer denied this allegation of the petition, and alleged that the deed was delivered to her in the office of the notary public immediately after the deed was executed. Plaintiffs cite authorities to the effect that one who relies on a deed must prove delivery, and contend the burden of proof was on Mrs. Dickson to show delivery. The authorities are sound enough, but the contention is frivolous. Plaintiffs’ case rested on their allegation that the deed was not delivered, and they were bound to prove the truth of the allegation or fail.
In the ninth finding of fact the court found a perfectly good delivery of the deed was made on the morning of the day before the grantor died. Plaintiffs contend this delivery could not be proved, because the grantee in her answer pleaded delivery at the time the deed was executed. Plaintiffs had a first-class opportunity to raise this question at the trial, but they did not do so. There was no objection to the testimony on which the finding was based on the ground the testimony was outside the issues, there was no complaint that plaintiffs were taken by surprise by the testimony, and plaintiffs may not complain about it for the first time in this court.
The delivery just before the grantor’s death was proved by two children who were at home at the time, Maggie Volk and Elvin Dickson. They, with the other children who stood by their mother, were made defendants, on plaintiffs’ theory that they had an interest in the land. In their answer to the original petition, Maggie and Elvin, and members of their group, pleaded that at the time of their father’s death their mother was owner in fee simple of the land. In their answer to the amended petition they pleaded execution and delivery of the deed in controversy, and alleged that by virtue of the deed their mother became fee-simple owner of the land.
After the amended petition was filed, and before the second amended petition was filed, Maggie and Elvin, and the members of 'their group, gave their mother a quitclaim deed of the land. The preamble of the quitclaim deed recited commencement of the lawsuit by plaintiffs; recited the contention of plaintiffs that the deed in controversy was not delivered, and that the children inherited interests in the land; recited the contention of defendants that the deed was delivered, and operated to convey to the mother a fee-simple interest in the land; and stated that the grantors in the quitclaim deed desired to remove, as far as they were able, the cloud cast by the lawsuit on their mother’s title. The body of the deed recited a consideration of one dollar and love and affection of the grantors for their mother, and contained the operative words of a quitclaim deed.
In the answer to the second amended petition, Maggie and Elvin, and others of their group, denied the allegation of the second amended petition that their father was owner at the time of his death, and alleged that their mother was owner in fee simple.
Plaintiffs contend Maggie and Elvin were incompetent to testify, because of the statute, which reads:
“No person shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person, where either party to the action claims to have acquired title, directly or indirectly, from such deceased person, or when the adverse party is the executor, administrator, heir at law, next of kin, surviving partner, or assignee of such deceased person, nor shall the assignor of a thing in action be allowed to testify in behalf of such party concerning any transaction or communication had personally by such assignor with á deceased person in any such case; . . .” (R. S. 60-2804.)
Plaintiffs say the witnesses did not disclaim, and discuss the subject of disclaimer. What the witnesses did was much more effective to qualify them than a disclaimer.
Plaintiffs also say the witnesses were assignors of a thing in action, and discuss the meaning of the term “thing in action.” The witnesses were grantors in a deed of land which they asserted they did not derive from their father and had no interest in, and were not assignors of a “thing in action.” •
The trouble with plaintiffs’ position is, they seek to force on Maggie and Elvin a privity with their father which they steadfastly repudiated. The quitclaim deed did not in fact purport to convey or to assign anything. The preamble made it plain that the instrument was executed as a formal denial of plaintiffs’ imputation of title, and was executed for the benefit of the mother’s fee-simple title derived from her husband by his effective conveyance. The result is, the witnesses were as competent to testify as if the' quit-claim deed described land which the grantors had acquired from a stranger to the family.
This opinion might well end here. It may be observed, however, that Margaret Dickson proved she had possession of the deed long before her husband’s death, without revealing any communication or transaction had personally with her husband. It is not necessary to collate again the numerous decisions of this court to the effect that possession by the grantee of a deed absolute in form, duly executed and acknowledged by the grantor, is prima facie evidence of delivery which can be overthrown only by clear and convincing evidence.
This court is not concerned with credibility of witnesses or with conflicts in testimony resolved by the district court. Assignments of error not covered by the foregoing have been considered, and are without merit.
The judgment of the district court is affirmed.'
FINDINGS OF FACT.
1. The court finds that Joseph W. Dickson and Margaret A. Dickson were husband and wife, and that they lived together as husband and wife until the time of the death of the said Joseph W. Dickson, which occurred on the 25th day of November, 1915.
2. That Joseph W. Dickson and Margaret A. Dickson were the parents of twelve children, namely, the six plaintiffs, Nora A. Garlits, Ross Oscar Dickson, Marion Evert Dickson, Nina Elnore Hill, Glenn I. Dickson, Robert Ernest Dickson, and the six defendants, Claude Dickson, Joseph Earl Dickson, Constance Ora Lucinda Owens, Maggie Glorain Volk, Annie Leona Ericsson, and Clifford Elvin Dickson. That all of said twelve children are living, and they, together with their mother, the defendant, Margaret A. Dickson, are the sole heirs at law of Joseph W. Dickson, deceased.
3. Joseph W. Dickson and his wife, Margaret A. Dickson, resided for many years on the northwest quarter of section 17, township 35, south, range 3, west of the sixth P. M., in Sumner county, Kansas. During the lifetime of Joseph W. Dickson, the record title to this real estate appeared in the name of Joseph W. Dickson. The ownership of this real estate is the subject of this controversy at this time.
4. On December 11, 1914, Joseph W. Dickson and his wife, Margaret A. Dickson, went to Caldwell, Kan., to the office of H. C. Keeling, a notary public of Sumner county, Kansas. At the request of Joseph W. Dickson, a deed of general warranty, conveying to Margaret A. Dickson the northwest quarter of section 17, township 35, south of range 3, west, in Sumner county, Kansas, was prepared by H. C. Keeling. This deed was executed by Joseph W. Dickson and the execution thereof acknowledged by Joseph W. Dickson before H. C. Keeling, notary public, on the 11th day of December, 1914.
5. The deed from Joseph W. Dickson to his wife, Margaret A. Dickson, conveying the above real estate to her, was filed for record in the office of the register of deeds of Sumner county, Kansas, November 29, 1915, at 10 o’clock a. m., and was duly recorded in Book 132 of Deeds, at page 392.
6. Joseph W. Dickson and Margaret A. Dickson had as one of the articles of furniture in their home, a home-made desk, containing two secret drawers. One of such drawers contained the property of the husband, and the other the property of the wife. The deed was kept in the drawer belonging to Margaret A. Dickson from the date of its execution until the day before Joseph W. Dickson’s death, when it was taken from such drawer, and subsequently returned to the drawer, where it remained until it was removed from the desk and sent to the register’s office for recording. Both husband and wife had access to the desk and to the secret drawers of the desk, and each knew of the property belonging to the other, but their papers were kept separately, each having a secret drawer.
7. The deed remained in the secret drawer of Margaret A. Dickson during all of the time from its execution to its recording, except as it was taken out by her.
8. Of the twelve children, only two, Maggie Volk and Elvin Dickson, were residing at home when their father, Joseph W. Dickson, died. The other ten children had attained an age when they had acquired homes of their own and were making their own way in the world. >
9. In the morning of the day prior to Joseph W. Dickson’s death Mr. Dickson called to his bedside his two children, Maggie Volk and Elvin Dickson, and while these two children were in the room, he asked Mrs. Dickson, his wife and the mother of the children, to get the deed. Margaret A. Dickson got the deed and handed it to Joseph W. Dickson, who handed it back to Margaret A. Dickson, and Joseph W. Dickson said at the time, “See, children, this is a deed to the home place here, I have given it to mother, it is hers as long as she wants it.”
10. Two days after the death of Joseph W. Dickson, which was Saturday, the 25th day of November, 1915, the deed was taken by Mrs. Dickson from the desk to the office of H. C. Keeling, and there placed in an envelope and forwarded to the register of deeds for recording.
11. The six defendant children claim no interest in the real estate, the subject of this suit, having on December 30, 1929, by quitclaim deed, conveyed any interest they might have to their mother, Margaret A. Dickson, to remove the cloud cast upon the title of their mother by virtue of this suit.
12. Since the death of Joseph W. Dickson, Margaret A. Dickson has, with the knowledge of all the children, received all the rents and profits from the land described in the deed, has had possession of the land, has paid the taxes on the land, has executed oil and gas leases and oil and gas royalty conveyances, and has alienated the premises by mortgages.
13. Margaret A. Dickson had manual control over the deed in question at all times from its execution, and it remained in her secret drawer in the family desk, with the knowledge of the grantor, Joseph W. Dickson.
14. The deed was executed and delivered and came into the possession of Margaret A. Dickson shortly after its execution, and was again delivered to her by Joseph W. Dickson on the day before his death, and conveyed to Margaret A. Dickson a title in fee simple. No trust estate was created by the deed.
15. H. C. Keeling, the notary public who prepared the deed, is mentally incompetent and unable to appear as a witness at the trial of the case, he being adjudged insane by the order of the probate court of Sumner county, Kansas.
16. As Joseph W. Dickson is dead, the testimony of Margaret A. Dickson, as to any transactions or conversations with Joseph W. Dickson concerning the deed, is not considered by the court in arriving at these findings.
CONCLUSION OF LAW.
The court concludes as a matter of law that Joseph W. Dickson, at the time of his death, was not the owner of the real estate described in the deed of December 11, 1914, said deed being a present, binding and operative conveyance in fee simple to Margaret A. Dickson, and the property described in said deed was the property of Margaret A. Dickson, and she is the owner of the entire fee in said northwest quarter (NW14) of section seventeen .(17), township thirty-five (35) south, range three (3) west of the sixth P. M. in Sumner county, Kansas. | [
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case involves the right of a holder in due course of a note with mortgage securing it, executed by a person of unsound mind, to recover thereon.
The petition was in the usual form of one in a mortgage-foreclosure action. The defendant by his. brother, as his next friend, filed an answer admitting the signing of the note and mortgage, but denying all other allegations of the petition, and alleging specially the incompetency of the defendant although not so adjudged, the want of consideration for the note and mortgage, for their indorsement and assignment to the plaintiff, and the knowledge of the plaintiff of want of consideration for the execution of the same, and at great length and in detail alleging fraud, duress and false and misleading representations made by payee to procure defendant to execute these papers. The reply was a general denial and specific dénials of any fraud or duress and of any knowledge or notice of any defect in the paper prior to or at the time of the purchase thereof.
The burden of proof was by the court placed on the defendant and the issues of fact were tried to a jury which returned a verdict for plaintiff and answered the following special questions:
“1. Did the plaintiff purchase the note in question' in this suit? A. Yes.
“2. If you answer question No. 1 ‘yes,’ when did it purchase the note? A. On about January 30, 1929.
“3. If you answer question No. 1 ‘yes,’ then did plaintiff have any knowledge of any defect in the note at the time of purchase? A. No.
“4. If you answer question No. 3 ‘yes,’ then state the acts or facts constituting such notice or knowledge. A.-.
“5. Is the defendant, Louis E. Kallash, of unsound mind at this time? A. Yes.
“6. Was Louis E. Kallash of unsound mind at the time he signed and delivered the note in question? A. Yes.”
The court approved the verdict and rendered judgment for plaintiff, from which defendant appeals.
The verdict and answers to special questions fully dispose of all questions of fact, there being no contention that there was insufficient evidence to support any of the answers, and the verdict contains in it all the necessary elements to support it which may not be specifically covered by the answers.
The question involved is purely one of law under our negotiable-instruments act (R. S. 52-501 to 52-509). Appellant states the questions involved as follows:
“1. Is incapacitj’’ to make a promissory note by reason of the mental incompetency of the maker a good defense against the note in the hands of a. holder in due course (a) where the consideration therefor is absent or unfair; (6) or where the party dealing with the incompetent person has actual notice of the mental condition of the maker?
“2. Must one seeking to recover upon a note of an incompetent person, although a holder in due course, prove that the payee acted fairly, without notice of the incompetency of the maker, and render value therefor?”
These questions are both answered in the negative by the first paragraph of the syllabus in the case of Bank v. McLaren, 112 Kan. 538, 211 Pac. 633, which is as follows:
“A bank agreed to make a loan to a borrower upon his giving a mortgage upon his land, after he had procured a conveyance to himself of a life estate owned by a sister, to which his title was subject. The borrower fraudulently induced his sister, who was mentally incapable to transact business, but had not been so adjudged, to convey her interest to him, and afterwards the borrower executed a mortgage to the bank, which paid the full amount of the loan. Held, that the bank obtained a valid lien unless it knew of the incapacity of the sister to convey or of the fraud of the borrower in obtaining the conveyance, or had any knowledge of such facts and circumstances as made it chargeable with notice of such incapacity and fraud.” (Syl. ¶ 1.)
Counsel for appellant does not distinguish between the McLaren case and the one at bar, but cites decisions from other' states to support the contention of the appellant. The facts and circumstances in the case at bar are much stronger than those in the Mc-Laren case. In this case the defendant was apprehensive of being indicted by the federal grand jury for violation of the prohibitory liquor law and secured the professional services of an attorney to' prevent it, if possible, because of having served a sentence for-such violation under the state law. He was not indicted and a satisfactory fee was paid for such services. Shortly thereafter he received a notice of liability for taxes and penalties as a manufacturer, for having maintained a still, and other similar taxes and penalties, in the sum of $3,326.67 from Mr. Wark, commissioner of prohibition. He again sought the services of -the same attorney, who advised him he should make a cash offer by way of compromise and thus save as much of tax and penalty as possible. He had no money available but thought he could borrow it on one of his farms in sixty days, which would be too late for this emergency. The sum of $2,000 was thought sufficient for compromise and attorney fee, and he gave the attorney his note for that sum and secured it by mortgage on 320 acres of land in Smith county. The attorney sold the note and mortgage to the First National Bank of Beloit, plaintiff in this action, at par, receiving the' full face value of it, and proceeded to effect a compromise of the taxes and penalties for $500. By the terms of the agreement, the attorney was to receive one-half of the amount he saved the defendant, and he paid the bank the balance, which was applied on the note.
Evidence was introduced attempting to show that the attorney knew or could reasonably have known the condition of the defendant’s mind and his incapacity to transact such business, and as to duress, fraud and misrepresentations. This was contradicted by the evidence of the attorney and others familiar with the transactions between the defendant and the attorney. There was no finding of the jury on this question of fact, and it is not necessary if the rule in the McLaren case controls. In that case the brother knew of the incompetency of his sister, from whom he obtained a deed in order to perfect his own title so he could procure a loan. In that case it was said on this subject in the opinion that—
“The deed in question may have been void as to George and only voidable as to the bank. He paid no consideration for the conveyance, but the bank paid full consideration for its mortgage. If it took the mortgage in good faith, having paid full consideration and without notice of the fraud of George in obtaining the deed to the property on which the mortgage was given, it would be in the attitude of an innocent purchaser from a grantee who had fraudulently obtained the conveyance.” (p. 540.)
In the McLaren case there were other features bringing the bank more nearly in touch with the transaction between the brother and his incompetent sister. The bank officers prepared the deed, putting therein one dollar as consideration, knowing at the time that her life interest was valued at about $500 per year and that the brother, doing his banking business with that bank, had no funds or property with which to compensate her.
Appellant’s theory is that even though the plaintiff bank may have purchased the note from the payee before maturity in good faith for a valuable consideration and without knowledge or notice of any infirmity therein or incapacity of the maker, yet when the defense of incompetency is interposed the burden is upon the plaintiff to prove that the party dealing with the incompetent person acted fairly and was without notice of his incapacity, citing among other authorities the following: Hosler v. Beard et al., 54 Ohio St. 398; Wadford v. Gillette, 193 N. C. 413, 137 S. E. 314; White v. Holland, 229 S. W. (Tex. Civ. App.) 611; and John P. Bleeg Co. v. Peterson, 51 S. D. 502, 215 N. W. 529.
The decision in the Ohio case can very properly be said to declare a rule to that effect, but the case was not decided upon that ground. It was tried upon an agreed statement of facts to the effect that the maker of the note was incompetent when the note was signed and that the payee was intimately acquainted with the maker long before the execution of the note and was legally chargeable with knowledge of his mental condition. The note had been sold and transferred to the plaintiff for a valuable consideration before maturity. In tire- trial when the defendant introduced the agreed statement of facts and rested, the plaintiff introduced no proof whatever and the court held such mental incapacity is prima jade a complete defense and places the burden upon the plaintiff to make the proof necessary to overcome such defense and entitle him to recover. The negotiable-instruments law had- not been adopted in Ohio at the time this decision was made, and the opinion mentions the fact that the decision is based upon the law merchant.
The Gillette case was instituted by the guardian of the incompetent person to cancel a note and trust deed given by her, making the payee and the indorsee parties defendant, and both seem to have shown their complete want of knowledge or notice of the incompetency of the maker thereof. Because these facts were established, it was held the holder in due course should recover, but we find no definite requirement in the opinion that before such holder could recover he must prove fair dealing by the payee and the payee’s want of notice of incompetency.
In the Holland case the controversy was between the original parties to the transaction although the note and trust deed given by the incompetent was to pay or secure a debt of her husband, and it was there held that—
'•'Payee, accepting note to secure husband’s debt and deed of trust on wife’s land to secure note without knowledge that wife at time of execution of deed of trust was insane, was not protected as an innocent purchaser.” (Syl. 114.)
The Peterson case is not helpful because the incompetent person there had been so adjudged and a guardian appointed for him before he assigned the note, and it was held that a subsequent indorsee was not a holder in due course.
We are not persuaded by these or other authorities that it is incumbent under our negotiable-instruments act upon a holder in due course to establish the fair dealing of the payee and his lack of knowledge of incapacity of the maker of the note in order to recover thereon. The ruling in the McLaren case, supra, has never been reversed or modified in this jurisdiction and a number of subsequent decisions support and sustain the same adherence to the rights of a holder in due course under the negotiable-instruments law.
“Where, in an action brought on a negotiable note by a bank or similar institution as indorsee, fraud in its inception is established and the burden is thereby cast upon the plaintiff to prove itself a holder in due course, a peremptory instruction for a verdict in its favor is proper where depositions of its officers, supported so far as possible by entries on its books, show a purchase for value before maturity without notice of the fraud, and the evidence is unimpeached and uncontradicted and not intrinsically improbable, and there are no circumstances from which bad faith may be reasonably -inferred. . . .” (Pioneer Trust Co. v. Combs, 117 Kan. 89, syl., 230 Pac. 302.)
Where a draft was accepted, assigned and transferred before maturity for value to an innocent holder, it was held:
“Such an instrument imports a consideration, and fraudulent representations of the drawer in procuring it is no defense as against a holder in due course who acquired it without notice of the fraud.” (State Bank v. Harford Bros., 116 Kan. 262, syl. ¶ 2, 226 Pac. 760. See, also, Trust Co. v. Gill, 113 Kan. 261, 214 Pac. 413; Farnsworth v. Burdick, 94 Kan. 749, 147 Pac. 863; and Bank v. Birch, 111 Kan. 283, 207 Pac. 191.)
Appellant contends that it was error for the trial court to place upon defendant the burden of proving that the attorney did not act fairly with defendant. That was one of the allegations of the answer and a proper defénse. However, the court only included this defense with others made by the defendant and instructed the jury that if the defendant proved one or more of these defenses, then it would be necessary for the plaintiff to show that it was a bona fide holder for value before maturity. This we think is the correct rule, and the jury did find that the defendant established one at least of his several defenses, viz., unsound mind, and the plaintiff then, under the instruction, had the necessity of establishing the fact of its being a holder in due course.
The other instructions considered and we find no error in them.
The judgment is affirmed.
Harvey, J., concurs in the order affirming the judgment. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one against defendant for damages resulting from obstruction of the flow of surface water through a culvert in defendant’s embankment on its right of way through plaintiff’s land. A demurrer to the petition was overruled, and defendant appeals.
From a point on the north line of plaintiff’s land the railway grade extends in a southeasterly direction through the tract. Surface water on the tract, and coming on the tract from other land, flowed toward the southwest, and defendant constructed a culvert near the north line of the tract which permitted the water to pass under the railway track. Afterwards the culvert became obstructed with weeds, dirt and debris to such an extent water was held back on plaintiff’s land. Defendant made some alterations in construction, and made some effort to open the culvert, but they were ineffective. The petition alleged the culvert was originally insufficient to care for natural drainage of surface water, alleged the culvert was negligently allowed to become obstructed, and alleged the repair work was negligently done.
The basis of plaintiff’s claim is his interest in the unobstructed flow of surface water on and across his land. The petition did not specify what defendant did or omitted to do which invaded plaintiff’s interest, other than has been stated, and the charges of negligence simply amount to a charge of obstructing the flow of surface water.
Defendant rested under no duty to plaintiff to receive or to dispose of surface water which came upon defendant’s right of way from plaintiff’s land, and defendant could receive and dispose of, or could turn back the water, as defendant deemed best for the protection of its grade and track. This is the general common-law rule, and it has been consistently applied to obstruction of the flow of surface water by railway embankments. (A. T. & S. F. Rld. Co. v. Hammer, 22 Kan. 763; K. C. & E. Rld. Co. v. Riley, 33 Kan. 374, 6 Pac. 581; Mo. Pac. Rly. Co. v. Renfro, 52 Kan. 237, 34 Pac. 802; Prunty v. Railway Co., 88 Kan. 42, 127 Pac. 529.)
The common law was modified by a statute enacted in 1911, which was amended in 1917. The statute reads as follows:
“A lower owner or proprietor shall not construct or maintain a dam or levee for the purpose of obstructing the flow of surface water onto his land to the damage of the adjacent upper owner or proprietor; but nothing herein shall be construed as preventing an owner of land from constructing a dike or levee along the bank of a natural watercourse to repel flood water from such natural watercourse: Provided, That the provisions of this act shall apply only to lands used for agricultural purposes and highways lying wholly outside the limits of any incorporated city.” (R. S. 24-105.)
The statute has no application to the railway company as a proprietor, since its right of way is neither agricultural land nor a highway, and its grade is neither a dam nor levee erected to obstruct the flow of surface water.
The petition alleged there were two natural drainage courses leading up to defendant’s embankment, and in order to accommodate the flow of surface water from one of these courses plaintiff constructed a ditch running from the south along the right of way to the culvert-. If by this means plaintiff accumulated surface water on his land arid cast it in volume upon defendant’s land, defendant was not obliged to receive or to dispose of the water. If the usual course .of the water was merely diverted, defendant was not obliged to receive or to dispose of the water.
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
Hutchison, J.:
The appeal in this case is from a conviction of manslaughter in the first degree upon an information charging the defendant with murder in the first degree.
Two errors of those assigned are particularly urged as prejudicial and entitling the defendant to a new trial. The first is the refusal to give a certain instruction requested by the defendant with reference to evidence of previous good character. Instead of giving the one requested the court gave the one given and approved in the case of State v. Sorter, 52 Kan. 531, 34 Pac. 1036, the first part of which was as follows:
“You are instructed that the evidence of previous good character is competent evidence in favor of the party accused as tending to show that he would not be likely to commit the crime charged against him, and may under some circumstances be sufficient to create a reasonable doubt of his guilt when it would not otherwise exist. . . .”
The particular part of the instruction requested, of which appellant complains as being entirely omitted, is as follows: “and such evidence may also be considered by you in determining the credibility of the defendant and the weight to be attached to his testimony. . . The one given instructed the jury that such evidence of previous good character was competent evidence in favor of the defendant. Being in favor of defendant without restriction would include credibility of defendant and weight to be attached to his testimony. It was even stronger than saying it may be considered in determining the credibility of his testimony.
The court had immediately prior to this instruction told the jury that the defendant was a competent witness in his own behalf and his testimony should receive due and proper consideration and be generally subject to the same test as the testimony of other witnesses ; and immediately thereafter further instructed them that they were the sole judges of the credibility of the witnesses and the weight to Be attached to the testimony of each and all of them, and that they should give such credit to the testimony of each and all the witnesses as under all the facts and circumstances each witness would seem to be entitled. The evidence of previous good character was a part of the facts and circumstances of this case. There is no question but that the instruction requested was proper, as is supported by the decisions in State v. Deuel, 63 Kan. 811, 66 Pac. 1037, and State v. Hall, 111 Kan. 458, 207 Pac. 773, but if it is contained in substance in the instructions given, as we think it was, there is no error. In the case of State v. Patterson, 112 Kan. 165, 210 Pac. 654, it was said:
“In the instructions the court referred to the fact that the defendant had introduced evidence of his good reputation and character as a peaceable and law-abiding citizen; that this evidence was to be considered in connection with other evidence in determining his guilt; and if from the whole evidence, including that relating to reputation, the jury retained a reasonable doubt, he was to be acquitted.” (p. 172.)
Where error was claimed in a self-defense homicide case because instructions as to the bad reputation of the deceased as to quarrelsomeness and the size, vigor and strength of certain parties were refused, the court held—
“There was no necessity for telling them that they should consider particular evidence as bearing on certain matters, especially where the connection was obvious, and for this reason no error was committed in refusing the first two requests above referred to.” (State v. Gaunt, 98 Kan. 186, 189, 157 Pac. 447.)
“It is not reversible error to refuse to give an instruction as requested, where it is otherwise given in substance.” (State v. Moore, 110 Kan. 732, syl. ¶3, 205 Pac. 644.)
“While evidence of good character may in some instances create a reasonable doubt of guilt, such evidence merely takes its place as a part of the whole case made by the evidence, and whether defendant’s reputation had been good or bad, one standard of certainty was required in order to convict — certainty of guilt beyond a reasonable doubt.” (State v. Elftman, 116 Kan. 214, 230, 226 Pac. 795.)
“It is not error for a trial court to refuse to give an instruction requested by the defendant, when it gives one containing substantially the same idea contained in the one refused.” (State v. Tucker, 72 Kan. 481, syl. ¶ 4, 84 Pac. 126.)
“If a party has the full benefit of the proposition of law contained in an instruction he will not be prejudiced by a slight modification in its wording. Nor will a party be entitled to reversal because a modification of a requested instruction was not as full as it should have been, if on the facts and evidence in the particular case it was not misleading. . . .” (14 R. C. L. 806. See, also, State v. McDonald, 57 Kan. 537, 46 Pac. 966; State v. Buffington, 71 Kan. 804, 81 Pac. 465; State v. Hoel, 77 Kan. 334, 94 Pac. 267; and State v. Wright, 121 Kan. 507, 247 Pac. 635.)
Several assignments of error relate to the overruling of objections to questions asked by the state for the purpose of impeaching Walter L. Clark, a witness for -the defendant, and in overruling the motions of the defendant to strike out and withdraw from the consideration of the jury such testimony for many reasons, among which were that it was opinion evidence, that it concerned a collateral matter, that the statement was made in the absence of the defendant, that the state was bound by the answers given on cross-examination and that it was not a proper subject for impeachment, wholly incompetent, irrelevant, immaterial and prejudicial to the rights of the defendant.
The killing of the deceased by the defendant was admitted, but the defendant justified himself by relating facts and circumstances in self-defense. The defendant and other witnesses testified as to what took place between the defendant and the deceased from the door of the house through the yard, out the gate and down the walk to the lower end of the fence where the killing occurred, and there was a conflict as to what was said and done by them between the door of the house and where the deceased was shot. The witness Clark in his testimony substantially corroborated the testimony of the defendant as to a scuffle all the way between them for the gun, which was held between them, and later when defendant secured the gun he shot the deceased when they were from three to six feet apart. In cross-examination of the witness Clark by the state a number of questions were asked him, if he had not told the officers certain things as to what was said and done on that occasion and as to the movements of the parties, and these were asked and answered without objection as far as the record shows. Then the following question was asked and answer given over the objection of defendant:
“Q. Didn’t you tell Tom Davis that you thought the whole thing over and that it was just cold-blooded murder? A. No, sir.”
A motion to strike out the answer was overruled and exceptions allowed. In rebuttal, Thomas Davis, the sheriff, testified over the objection of the defendant, that at Clark’s home on the morning after the killing the witness Clark said to him in substance, “Sheriff, I have studied about this matter and it is just cold-blooded murder.”
In the first place, was this a mere opinion and not an impression or conclusion drawn from the things the witness saw and heard? Opinions, of course, are generally incompetent unless from experts. This witness was not an expert, but he was a witness to the entire occurrence. The killing was at his home. He followed the defendant when he left the house with the gun of the deceased in his hand. He described what he called a scuffle from the door, out the gate and down the walk, which was in direct conflict with the testimony of a witness for the state who said defendant and Clark were standing outside the fence at the lower end thereof when deceased came out of the house, and deceased walked alone through the yard out the gate and down the fence to where defendant and Clark were standing, and there the shooting followed. With the killing admitted, the main issue in the case was self-defense. Clark’s testimony was wholly along that line. What he related as having seen and heard was just the opposite of' cold-blooded murder. It was the desperate struggle of defendant to save his own life. Anyone seeing and hearing everything that transpired in this connection would, by grouping those facts, naturally have an impression as to whether or not the defendant acted in self-defense, and the answer of Clark as quoted by the sheriff simply negatives the theory of self-defense. There would be no question about the use of a statement by way of impeachment after such self-defense testimony to the effect that he had told the sheriff it was not a case of self-defense. Notwithstanding the extravagant character of the term “cold-blooded murder,” it simply in this case amounted to a contradiction of his self-defense testimony and does not come under the heading of a mere opinion.
“The immediate conclusions of a witness, drawn from what he saw and heard, are not rejected as opinion evidence. . . . and a witness is still testifying to facts and not to opinions or conclusions when, instead of stating separately certain facts within his knowledge, he gives a composite statement or shorthand rendering of collective facts.” (16 C. J. 749.)
“In prosecution for murder it was not error to permit state’s witness to testify, for purpose of impeaching accused’s witness, that accused’s witness had stated accused had shot down deceased like a dog.” (Higgs v. State, 264 S. W. [Ark.] 859, syl. ¶ 7. See, also, Rockport Coal Co. v. Barnard, Admrx., 210 Ky. 5.)
The case of State v. Keefe, 54 Kan. 197, 38 Pac. 302, is not in point, although the facts are very similar to those in the case at bar, because there the state attempted to impeach one of its own witnesses who was claimed to have made a statement different from the testimony given by him upon the trial. The appellant cites this case for the further purpose of limiting matters of impeachment to statements made in the presence and hearing of the defendant. This situation is mentioned in the opinion as a further reason for excluding the evidence but without any attempt, as we see it, to prescribe such a limitation to impeachment questions.
Appellant cites many cases to the effect that a foundation for impeachment cannot be laid on cross-examination which involves collateral issues, and urges this to be a collateral issue. We think the real issue here is self-defense, and the question in this case will meet the test prescribed in the case of State v. Sweeney, 75 Kan. 265, 88 Pac. 1078, cited by appellant, as follows:
“Could the fact, as to which the prior self-contradiction is predicated, have been shown in evidence for any purpose independent of the self-contradiction?” (p. 268.)
In other words, could the state have shown in evidence the fact that the killing was not in self-defense? If it could, the impeaching inquiry was not concerning a collateral matter.
In the same connection it is urged that the state was under the rule bound by the answer given by the witness. This rule is limited to questions involving collateral matters, and the cases cited in support of the rule hold the matters therein to be collateral to the issues of the case. In the case of State v. Luft, 104 Kan. 353, 179 Pac. 553, it was held that the details elicited by cross-examination were not collateral but were of the substance of the issue, where the defense was justification of the use of force by an officer in apprehending a party who cut defendant with a knife, and the proof was the wound was not made with a knife.
In the case of State v. Russell, 117 Kan. 228, 230 Pac. 1053, it was held—
“Where there was evidence that the defendant was in the vicinity of a railroad freight station between 11 and 11:30 p. m., and where his wife testified, in his behalf, that he was lying on a bed at home from 10:30 to 1 o’clock, it was not error for the state to impeach her testimony by showing that on the following morning she stated that she had not seen him since the night before at 9:30 when he left to go into the country.” (Syl. U 3.)
Wigmore on Evidence gives the rule quoted from the Sweeney case as to what is not a collateral matter and therefore subject to impeachment, and also the following rule:
“The simple test is . . . whether it concerns a matter which you would be allowed on your part to prove in evidence independently of the self-contradiction, i. e., if the witness had said nothing on the subject.” (2 Wig-more on Evidence, 2d ed., 465.)
We think there was no error in overruling the objections to this impeaching evidence and in permitting it to go to the jury, nor in overruling the motion for a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action on a promissory note to recover a balance of $135 with interest where the note was regularly indorsed to the plaintiff bank as collateral security. The plaintiff was found by the jury to be a holder in due course, having acquired it before maturity, but the general verdict was for the defendant and judgment was accordingly rendered for the defendant, from which the plaintiff appeals, urging particularly that instruction No. 7 given by the court was erroneous and a misstatement of the law applicable to the case.
The case was commenced in the city court and no formal answer has been filed by defendant, but an affidavit was filed by the defendant in the city court denying the execution of the note and the indorsement thereof to the plaintiff. In the district court the defendant admitted signing a contract for the installation of a thermostat equipment and had no recollection of signing any note. Her evidence tended to show the equipment was not as represented, and she attempted to show fraudulent conduct on the part of J. T. Thurman Company, to whom the note attached to the bill of particulars was given.
The evidence shows four payments were made on the contract or note and that the note was indorsed by J. T. Thurman Company to the plaintiff bank on November 13, 1928, about three weeks after it had been given by the defendant. It provided for monthly payments until July 20, 1929. It and other notes to the amount of $1,206.35 were indorsed by the Thurman Company to plaintiff bank as collateral security for a $950 note of J. T. Thurman Company given November 13, 1929, to the plaintiff bank. The Thurman Company note was frequently renewed for smaller amounts, giving credit thereon for collections made on the collateral notes. On October 12, 1929, when the amount of this original indebtedness of $950 had been reduced to $198.36, it was combined with other notes of the Thurman Company and a new note given for $1,441.86, and this collateral note and others with it were held as collateral security for the new enlarged note. At this time the note here under consideration was past due for nearly three months. The Thurman Company new note was frequently renewed thereafter, and at the time of the commencement of this action it was reduced to $265, and the collateral security remaining uncollected consisted of this note of $135 and another of $98, making a total of $233. The evidence shows that all the original collateral notes deposited with the $950 note, totaling $1,20.6.35, have been collected except these two amounting to $233, which shows that $973.35 has been collected by the bank, which more than pays the original note of $950. The assistant cashier of the plaintiff bank in cross-examination admitted such to be the case, but plaintiff claims it is still entitled to collect on this collateral security after the satisfaction of the original note in order to pay the subsequent note for which the collateral has been held over as security, notwithstanding the note in suit was long past due when it was taken over as security for this subsequent indebtedness and notwithstanding the defendant claims it was procured by fraud.
The instruction of which appellant complains was in effect that if you find from the evidence “that enough has since been collected by the plaintiff on said $1,206.35 worth of notes to fully pay off said original indebtedness of $950, then you are instructed that the interest of the plaintiff bank in said note has ceased as a holder in due course . . We think this is a correct statement of the law applicable to this case, and we find nothing in the cases cited by appellant to the contrary. Where a bank is in due course an innocent holder of a negotiable promissory note accepted before maturity as collateral security on a note given by the indorser of such collateral security to the bank for a valuable consideration, and there are equitable defenses between the maker and payee of such collateral note, and the bank collects from this and other collateral security pledged for the original indebtedness the full amount of such original indebtedness, the bank cannot thereafter recover from the maker of the collateral note for subsequent indebtedness of the indorser by taking the same note and holding it over as collateral security after its maturity.
“Where negotiable promissory notes, pledged to an innocent holder to secure a preexisting debt due from the payee to the pledgee, are subject to equitable defenses as between the maker and payee, and are of a greater amount than the preexisting debt, the recovery of the pledgee against the maker is limited to the amount of the preexisting debt.” (State Bank v. Blevins, 46 Kan. 536, syl., 26 Pac. 1044.)
“And if a note is valid between the original parties, an indorsee who'holds it as collateral may recover the face thereof, with accrued interest, retaining any surplus as trustee for the party benefically entitled thereto, after his own claim is satisfied; but, if the note is invalid between the immediate parties, one who holds it as collateral security may recover only the amount of his claim to which the note is collateral. . .” (3 B..-C. L. 1061.)
“However, if the debt secured is afterward paid, the pledgee loses his character as a holder for value.” (8 C. J. 488. See, also, Cedar Rapids Savings Bank v. Zeff, 119 Kan. 539, 240 Pac. 840; Bank of Claflin v. Rowlinson, 2 Kan. App. 82, 43 Pac. 304.)
The defendant introduced evidence tending to show fraud in the inception of the note or contract, but no notice or knowledge of such was shown to have reached the plaintiff, and the jury found the plaintiff to be an innocent holder in due course when it took the note before maturity. After maturity the plaintiff stands in no better position than J. T. Thurman Company except for the balance of the original indebtedness of $950.
Appellant refers to a decision where collateral security was reciprocally furnished by two banks for “fluctuating balances.” We do not regard this as a similar situation.
Appellant complains of the use of the words “slick trick” by attorney for defendant in the argument to the jury as applied to the conduct of Thurman Company in getting this note into the hands of the nonresident plaintiff bank, as being misconduct of counsel and prejudicial with the jury. The only possible justification of the use of these words might be in connection with the attempt to show fraud on the part of Thurman Company, which was one of the defenses, and in that connection they would not necessarily be improper.
Other errors assigned, including the overruling of the motion for judgment on the answers to the special questions and the overruling of the motion for a new trial, considered and held not error.
The judgment is affirmed. | [
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The opinion of the court ivas delivered by
Harvey, J.:
This is an action to foreclose a mortgage on an undivided one-half interest in a quarter section of land in Rush county. Broadly speaking, the defense was that the mortgage had been paid by a conveyance of the title to the real property, and that plaintiff, in view of his relations to the parties and the transaction, was not in a position to claim ownership of the mortgage and the note thereby secured. The trial court found generally for plaintiff. Defendant has appealed.
The petition alleges that plaintiff resides at Kansas City, Mo., that defendant, formerly Neva J. Yeoman, was divorced and her maiden name restored, and is a nonresident of Kansas; that on March 15, 1918, one Rebecca T. Yeoman executed to one Frances C. Morris a promissory note for $1,500 due in five years, with interest at six per cent per annum, payable semiannually, and to secure the same gave a mortgage on the real property in question, which mortgage was duly recorded March 23, 1918; that thereafter and for value received the payee indorsed the note without recourse and delivered the same to plaintiff, who became and is now the holder thereof, and on March 22, 1923, executed an assignment of the mortgage to plaintiff, which assignment was recorded May 3, 1929; that the time of the payment of the note was extended from March 15, 1923, to March 15, 1928; that on September 10, 1923, Rebecca T. Yeoman, by a warranty deed, conveyed her interest in the real property to the defendant; that the note secured by the mortgage is due, and that no interest has been paid thereon since April 3, 1923.
The answer alleged in substance that on March 15, 1918, and prior thereto, defendant was unmarried and lived with her mother, a widow, in Kansas City; that both of them had substantial means; that plaintiff was an attorney at law in Kansas City; that for herself and her mother she employed plaintiff as their legal adviser and attorney and paid him fees and commissions therefor; that the Rebecca T. Yeoman named in the petition is plaintiff’s mother; that in March, 1918, defendant was seeking, for her mother, an investment of $1,500 and conferred with plaintiff about it; that plaintiff advised defendant to make the loan to his mother and that it be secured by the mortgage in question; that, acting upon plaintiff’s advice, the loan was made; that after the mortgage was recorded defendant, for her mother, placed it in her safety-deposit box; that plaintiff and defendant were married in January, 1921, and lived together as husband and wife until in January, 1929, when they were separated, and that in May, 1930, defendant procured a divorce from plaintiff, because of his fault, in the circuit court of Jackson county, Missouri; that after her marriage to plaintiff, as well as before that time, plaintiff was employed by defendant and her mother as their attorney and legal adviser in connection with their investments and financial affairs; that the interest was paid on the $1,500 mortgage, except the one due in March, 1923, which interest payment and the note remained past due until about August, 1923, when defendant, acting for her mother, urged plaintiff to have it paid or fixed up; that the amount then due was about $1,600; that thereupon plaintiff, acting as attorney and adviser for defendant and her mother, advised that he had ascertained the reasonable value of the half interest in the land to be about the amount due on the mortgage and proposed to them that his mother, Rebecca T. Yeoman, convey the property to defendant by a deed of general wai'ranty in payment of the amount due on the mortgage; that the proposition was accepted by defendant and her mother on the advice of plaintiff; that plaintiff proceeded to have his mother execute to defendant a general warranty deed for her half interest in the property; that prior to that time the $1,500 note, together, with other notes owned by defendant and her mother, had been indorsed in blank without recourse and left with plaintiff for such purposes as might be necessary in handling their investment; that upon the deed being executed defendant went to her lock box and got the mortgage ; that under plaintiff’s advice that such was the proper way to handle it defendant’s mother made an assignment of the mortgage which plaintiff was to have released; that plaintiff afterwards reported to this defendant that he had the mortgage released of record. The answer alleged that the mortgage had been fully paid and denied that plaintiff had paid any consideration for it, or was the lawful owner and holder of it, and asked that it be canceled of record.
In his reply plaintiff admitted that he was married to defendant in January, 1921; that they were separated in 1929, and that defendant secured a divorce from him in May,' 1930, and admitted that both before and during his marriage with defendant he had handled investments for her and her mother, and averred that their capital had been substantially increased thereby; alleged that in March, 1918, defendant conferred with him about loaning some money and he advised that his mother would like to obtain a loan of $1,500, and that the loan was made; alleged the reasonable value of the land at that time and ever since is. not less than $75 per acre; that in March, 1923, when the note fell due, defendant’s mother was not willing to renew it and it was agreed between plaintiff’s mother and defendant’s mother that the land should be conveyed to defendant and the mortgage should be assigned to plaintiff, and that this was done.
The parol evidence consisted for the most part of the testimony of plaintiff and defendant. As to some particulars the testimony conflicts. As to these the general finding by the trial court in favor of plaintiff determines those matters in his favor and are not open to review here. The matters concerning which there was no such conflicting evidence, as they appear by the pleadings and the evidence, may be stated briefly as follows: The relations between the parties were at first that of attorney and client. Defendant and her mother had money to invest and investments to be looked after, and employed plaintiff to advise them concerning such investments and to attend to such legal matters as were necessary in relation thereto, for which services they paid him. This relation continued after plaintiff and defendant were married in 1921 and up until their separation in 1929. The $1,500 loan here in question was made under his advice in that capacity. There was nothing unusual about it, and interest was paid thereon until it became due according to its terms. Thereafter a question as to how it should be handled came up. As a result of that the mortgagor conveyed the land to defendant. At the time that conveyance was made the amount due on the note and mortgage was about $1,600, and that sum was named as consideration for the deed. The deed is in form a general warranty deed, not simply for the grantor’s interest in the quarter section of land, but specifically for an undivided one-half interest therein. Among other things, it covenants that the real property is “free, clear discharged and unencumbered of and from all other former grants, titles, charges, estates, judgments, taxes, assessments and encumbrances of what nature or kind soever.” Plaintiff drew that deed, under his advice it was executed, and he delivered it to the defendant, and the same was duly recorded soon thereafter. It is also clear that plaintiff paid nothing for the note and mortgage sued on in this action. When Frances C. Morris first indorsed it without recourse and handed it to him a substantial length of time before it was due she did so as she had done with many other notes or investment papers, that he might have it to handle for her as her attorney. He obtained possession of it in his capacity as attorney, not as owner nor for value. It is clear plaintiff’s mother never gave plaintiff this note, for it never belonged to her. Until this action was brought defendant thought the mortgage had been released. Plaintiff had collected no interest thereon, nor had he attempted to do so. He did not record the assignment until after he and his wife were living apart from each other in 1929. When she obtained a divorce from him in May, 1930, the attorney for defendant discussed with plaintiff the titles to several pieces of property standing in defendant’s name, one of which was situated in Missouri and was encumbered by a mortgage, and after mentioning the encumbrance on the Missouri property counsel asked plaintiff if there were encumbrances on any of the other property and he replied in the negative. It was not until after the divorce was obtained that this action was brought, then no demand had been made on defendant for the payment either of principal or interest, and summons on the action was had by publication.
Under these facts we are compelled to hold that the plaintiff cannot maintain this action: First, because he is not the owner of the note in question. He paid nothing for it. Before he could recover in this action it was essential that he show that he owned the debt secured by the mortgage. (42 C. J. 82.) This he failed to do. It is suggested that defendant did not pay value for the deed conveying the land to her, for the reason that if the deed were given in payment of the note, the note did not belong to defendant, but belonged to her mother. How defendant and her mother handled their property between themselves, is of no concern to plaintiff. Particularly is this true if plaintiff is not himself the owner of the mortgage sued upon. More than that, defendant’s mother is now deceased and defendant would own the interest conveyed by the deed whether she was named as grantee therein or her mother had been so named. If this deed was not given in payment of the note and mortgage, then the note and mortgage have never been paid, and defendant normally would be the owner of the note and mortgage which plaintiff now claims and has made the basis of this action.
Second, because of his relations with defendant and her mother, and particularly the fact that he prepared, caused to be executed and delivered to defendant the deed conveying the property to her free and clear of all encumbrances. The assignment of the mortgage on which plaintiff relies bears a date nearly six months prior to the date of this deed. It is thoroughly inconsistent for the plaintiff, representing as he was the defendant and her mother in preparing this deed, causing it to be executed and delivered to defendant, to have written into it the warranty against encumbrances above quoted and later contend that at the same time he was the holder of the mortgage now sought to be foreclosed. To make the contention that he now makes is a violation of the trust imposed in him by defendant and her mother. (Yeamans v. James, 27 Kan. 195; Holmes v. Culver, 89 Kan. 698, 133 Pac. 164; Neihart v. Buek, 50 F. 2d 367; 6 C. J. 686, 690, and cases there cited.) The record estops him from claiming under this mortgage as against the defendant. (21 C. J. 1067, and cases there- cited.)' Appellee argues that estoppel cannot be relied upon because it was not pleaded. Though the word was not used the facts constituting the estoppel were pleaded. That is sufficient. Much-is said in the briefs as to some of the evidence having been received in violation of our statute (R. S. 60-2805) relating to communications between husband and wife. The record discloses that the trial court did not rule on the admissibility of such evidence; hence, there is no ruling of the trial court on this question which this court can review.
From what has been said the judgment of the trial court must be reversed with directions to render judgment for defendant and canceling of record the mortgage sued upon in this action. It is so ordered. | [
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Per Curiam:
This is an action in replevin. The jury answered special questions and returned a verdict for defendant. Plaintiff moved for a new trial for the reasons, among others, of erroneous ruling and instructions; that the verdict and answers to special questions were given under the influence of passion and prejudice, and are contrary to the evidence and to the law. On the hearing of the motion the court found that the “motion for a new trial is well taken; that said verdict and the answers to the special questions . . . are contrary to the evidence; that by reason thereof said motion for a new trial should be and the same hereby is sustained.” The court ordered “that ... a new trial be granted and that the said new trial be general upon the issues, . . .”
Defendant has appealed from the order granting the new trial. The appeal presents- no question for review in this court. It is therefore dismissed. Some of our former decisions supporting this ruling are: City of Sedan v. Church, 29 Kan. 190; K. C. W. & N. W. Rld Co. v. Ryan, 49 Kan. 1, 12, 30 Pac. 108; Murray v. Railway Co., 87 Kan. 750, 125 Pac. 45; Putnam v. King, 87 Kan. 842, 126 Pac. 1093; Bourquin v. Railway Co., 88 Kan. 183, 127 Pac. 770; Moffatt v. Fouts, 105 Kan. 58, 181 Pac. 557; Atkinson v. Darling, 107 Kan. 229, 191 Pac. 486; Hughes v. Vossler, 110 Kan. 279, 203 Pac. 1107; Briggs v. Shepler, 115 Kan. 614, 224 Pac. 61; Atlas Securities Co. v. Copeland, 120 Kan. 64, 242 Pac. 129; Hiattville State Bank v. Land, 125 Kan. 108, 263 Pac. 1073; Rowe v. Glenn Elder State Bank, 126 Kan. 291, 267 Pac. 998; Peoples Nat’l Bank v. Casey, 127 Kan. 581, 274 Pac. 286. | [
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The opinion of the court was delivered by
Dawson, J.:
Plaintiff brought an action against defendant on a claim for services in drilling four gas-and-oil wells in Elk county. Defendant answered admitting liability, but he filed a cross petition asking damages for water taken from a pond in defendant’s pasture which was used by plaintiff in his drilling operations. He alleged that the water was required for his cattle and that its wrongful taking necessitated the removal of the cattle to another pasture.
The cause was tried before a jury and plaintiff and defendant introduced their evidence, following which the abstract reads:
“At the close of the introduction of the evidence in the case, while the record does not show it, as the attorney for the defendant now remembers it, the court orally held that the evidence which had been offered by the defendant in support of his claim for $159 for water used by the plaintiff in the drilling of the wells was not sufficient to go to the jury, . . . thus virtually sustaining a demurrer to defendant’s evidence on that item of his cross petition.
“The instructions to the jury were oral and were not preserved and therefore cannot be set out in this abstract.”
The jury returned a verdict for plaintiff; defendant’s motion for a new trial was overruled; judgment was entered in accordance with the verdict; and defendant appeals, urging certain errors.
Before these are considered, however, we must notice plaintiff’s objections to the sufficiency of the record. He makes the point that the record does not show that any demurrer to appellant’s evidence was sustained; and that the record presented is admittedly based in part on the mere remembrance of defendant’s attorney concerning the proceedings which transpired at the trial.
It is a matter of familiar appellate procedure that a litigant who is dissatisfied with the disposition of a cause in the trial court must see that such a record is made as will enable this court to review the errors of which he complains. There are certain approved methods of shortening a record for appellate review (Seigle v. Soldiers’ Compensation Board, 119 Kan. 253, 254, 237 Pac. 657, and citations; Richards v. Kansas Electric Power Co., 126 Kan. 521, 526, 268 Pac. 847, and citations). But a record which is founded on what appellant’s counsel remembers of the trial court’s proceedings will not answer the purpose, especially when the appellee objects to its sufficiency. (Holderman v. Hood, 78 Kan. 46, syl. ¶ 1, 96 Pac. 71; Buckwalter v. Henrion, 111 Kan. 781, 208 Pac. 645; Lambert v. Rhea, 134 Kan. 10, 4 P. 2d 419.)
However, we have perused the abstract and briefs in this case with care, and it will require little space to deal with their contents.
Defendant leased certain of his lands to one Allman for the exploration and development of oil and gas. The lease provided that the lessee should have the right to use, free of cost, “gas, oil, and water produced on said land for its operations thereon except water from,wells of lessor.” At the time the land was thus leased there was an artificial pond on it. The dam -was washed away and the lessor (defendant) and Allman reconstructed it. Defendant testified that at the time of its reconstruction he and Allman agreed that the water in the pond should only be used to supply Allman’s power plant located 200 yards away, and that it should not be used for drilling purposes. However, ere this oral agreement was made Allman had assigned the lease to the Empire Oil and Gas Company. While plaintiff’s action was predicated upon his services in drilling wells for defendant, the water taken from the pond was used in drilling for the Empire Oil and Gas Company, and surely an oral agreement between Allman and defendant would not curtail the Empire company’s right to the water in the pond nor subject plaintiff to a liability for using the water in his work of drilling for that company. It is argued for defendant that he only intended to permit the use of any water flowing in a natural watercourse on the land to be used in drilling operations, and that he did not intend to permit the use of water produced or conserved for watering his cattle, either in ponds or wells. But the written contract did not say so. It only withheld the water in wells; and while an oil and gas lease should perhaps be strongly construed against the lessee,, he being the author of its printed terms, the utmost liberality of construction would not permit a reservation of the “water in the wells of the lessor” to include the water produced in an artificial pond on the leased premises.
There is' no apparent error in the record, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover a large sum of money which the defendant bank had paid on checks bearing forged indorsements and which it had charged against the checking account of the drawer.
It appears that for a number of years the Monarch Loan Company of Wichita was engaged in loaning money on farming lands in southern Oklahoma and northern Texas. It kept its checking account in the Fourth National Bank in Wichita. Mortgage loans were negotiated for this loan company by one J. R. London, a real-estate dealer at Marietta, Okla. London’s usual method was to have the applicant for a loan fill out a written statement of such facts as an investor would, want to know about himself, his assets and liabilities. Such application was forwarded to the loan company, and if this preliminary statement was favorably received, the loan company would send its examiner to look over the property and make whatever further investigation was desired. Then a note and mortgage executed by the borrower were forwarded to the loan company together with an abstract of title to the mortgaged property and the opinion of a firm of lawyers approving the title. The loan company would then take out a policy of insurance guaranteeing the title. This insurance was furnished by the Kansas City Title and Trust Company. Certain deductions were made from the amount of the loan — for commission, abstract, recording, and insurance title fees; but these details require no present attention. The loan company would then draw its cheek on the Fourth National Bank in Wichita in favor of the borrower for the net amount of the loan and mail it to London for delivery to.the payee. In eight or nine years just prior to 1929 London negotiated about a hundred such loans, seven of which were fraudulent. In some of these seven instances the applications, notes and mortgages were signed by London in the names of fictitious persons; in others the names of existing persons were forged by him. The abstracts of title were tampered with, and the name and seal of a fictitious notary used in at least one instance. When the loan company’s checks payable to the supposed borrowers were received by London his usual method of dealing with them was to indorse the name of the payee and follow this with his own name, thus:
“David Cooper.
“O. K. J. R. London.”
In two instances he indorsed the name of the payee without following it with his own signature. The checks carrying these forged indorsements and bearing the usual chain of indorsements of banks through which they passed were paid by the Fourth National Bank in Wichita, and the loan company’s checking account was charged therewith. According to the practice of the bank, monthly statements of the condition of its checking account were rendered to the loan company and all checks which the bank had paid and charged against its checking account during the month were returned therewith to the loan company. The seven checks with forged indorsements charged by the bank against the loan company and relevant data may be conveniently set down thus:
Date of check.
1. 9-22-1923 2. 11-23-1925 3. 6-30-1926 4. 10-21-1926 5. 4-13-1927 6. 7-26-1927 7. 9-19-1927
Amount.
$3,559.20 $800.00 $1,980.00 $8,000.00 $943.75 $2,230.00 $1,414.90
Payee.
William York..................... Richardson Watson................ F. B. Brockett..................... A. J. Allen........................ Lillian McCoy .................... David Cooper .................... J. M. Thomas.....................
Paid, by bank.
9-27-1923 11-27-1925 7- 7-1926 10-27-1926 4-21-1927 8-1-1927 9-15-1927
Checks returned with monthly statement.
Oct. 1, 1923 Dec. 1, 1925 Aug. 1, 1926 Nov. 1, 1926 May 1, 1927 Sept. 1, 1927 Oct. 1, 1927
To forestall early discovery of his forgeries London paid the interest on the bogus loans himself, but eventually a notice from the loan company to David Cooper concerning the interest on his supposed loan brought a prompt response that he owed nothing. This caused the loan company to make an investigation which developed the facts outlined above. Then the loan company notified the bank that it had erroneously charged its accounts with the amounts of the checks bearing these forged indorsements.
The loan company had sold and assigned the bogus notes and mortgages to various third parties, but it made arrangements with the Commerce Trust Company of Kansas City, Mo., to act as stake holder for the assignees to take up those notes and mortgages, and the Kansas City Title and Trust Company furnished the funds for their redemption. The loan company and the title company also made a contract whereby they settled all claims arising between them growing out of the title company’s guaranty of the titles to the lands covered by the bogus mortgages; and the loan company assigned to the title company its claims against the Fourth National Bank.
This action was then commenced, on October 26, 1929, by the title company against the Fourth National Bank. The foregoing facts and other relevant details were pleaded in seven causes of action to recover the amount of the charges made against the loan company’s account on the seven checks having forged indorsements.
The defendant bank first demurred and then answered at length, raising various questions of law — that plaintiff could not through subrogation become invested with any cause of action the loan company may have had against the bank; that plaintiff was a gratuitous assignee and the assignment it had received from the loan company gave it no additional rights against the bank; that the withholding of the mortgage notes and title insurance policies by the loan company from the bank was a ratification of the bank’s payment of the checks; that plaintiff had no rights upon the William York check under any assignment, and that the statute of limitations barred a recovery on the York, Watson and Brockett checks which the bank had paid and accounted for to the loan company more than three years before this action was begun. Further issues raised by the answer may not require attention.
The cause was tried before a jury, but no sharp issues of fact were developed. A verdict and special findings favorable to the plaintiff were returned and judgment on all counts was entered in its behalf.
The bank appeals, urging various points of lawr which will be considered in the order of their presentation.
1. Defendant first contends that the title company did not become subrogated to the loan company’s cause of action against the bank, and that subrogation is a rule of equity which is not applied against a party which has superior equities to those of the subrogee. Touching the last phase of this contention first, the liability of the bank arises from its payment of the checks on forged indorsements. The liability of the title insurance company was to insure the le gality of the titles to the mortgaged lands as shown, by the abstracts. These liabilities were distinct and unrelated to each other. The title company owed no duty to the bank. In such a situation we can discern no basis for holding that the equities of the bank were superior to those of the title company.
Moreover, if the title company’s liability under its policies guaranteeing the titles to the fraudulently mortgaged lands was absolute, it was entitled to maintain this action under what some of the courts have designated as conventional subrogation. This right does not depend upon a mere rule of law for its basis as in legal subrogation, but upon the terms of a lawful contract. In 8 Couch on Insurance, 6589, it is said:
“It also is of interest that for the purpose of defining the word ‘subrogation’ two kinds are recognized, namely, ‘legal’ and ‘conventional.’ These terms have been defined as follows: ‘Legal subrogation is allowed only in cases where the person advancing money to pay the debt of the third person stands in the situation of a surety, or is compelled to pay the debt to protect his own rights. Conventional subrogation results from an agreement, made either with the debtor or the creditor, that the person shall be substituted.’ In other words, 'legal subrogation’ arises by operation of law as the result of equities, whereas ‘conventional subrogation’ depends upon a lawful contract calling for subrogation.”
In Sheldon on Subrogation, 2d ed., 7, it is said:
“Subrogation to the rights of a creditor differs from an assignment of the debt, in that the latter assumes the continued existence of the debt, while the former follows only upon its payment. Before the right of subrogation accrues, the legal obligation resting upon the ultimate debtor must be discharged. But the subrogation of an insurer to the remedies of the insured for the destruction of the insured propei’ty proceeds rather upon an implied assignment than upon a satisfaction of the cause of action. And the party for whose benefit the doctrine of subrogation is exercised can acquire no greater rights than those of the party for whom he is substituted; if the latter had not a right of recovery, the former can acquire none.”
See, also, Home Savings Bank v. Bierstadt, 168 Ill. 618, 61 Am. St. Rep. 146; 25 R. C. L. 1312.
The title company’s conventional right of subrogation in this case wa§ one of the considerations for which it undertook to insure the titles to the mortgaged properties. The pertinent paragraph of the insurance policy read:
“2. Whenever the company shall have settled a claim under this policy, it shall be entitled to all rights and remedies which the party guaranteed, and the owner of said indebtedness would have had against any other person or property in respect to such claim, 'had this' policy not been made, and the party guaranteed undertakes to transfer or cause to be transferred to it such rights, together with the right to use the name of the party guaranteed and the name of the owner of said indebtedness, when necessary for the recovery thereof such rights of subrogation to vest in the company unaffected by any act of the party guaranteed or the owner of said indebtedness, but such subrogation and transfer shall be in subordination to the claim of such owner to receive and be fully paid the amount of principal and interest and ot-her moneys, if any there be, secured by said trust deed or mortgage.”
The plaintiff in this case also asserted its causes of action herein by virtue of an assignment from the loan company of its claims against the bank, and its rights under that, assignment were not inconsistent with its claim by conventional subrogation.
2. It is next suggested by defendant that- plaintiff was a gratuitous assignee and therefore not entitled to maintain this .action against the bank. There is, indeed, a rule of' law that a mere inter-meddler cannot claim rights of subrogation by paying the obligations-of a third party (25 R. C. L. 1324-1326), but that rule does not apply to a case of conventional subrogation nor to one where the party seeking to maintain the cause of action holds a legitimate claim by lawful assignment. No rule of law or public policy forbade, the loan company and the title company to compose and settle the question of the title company’s liability under the policies insuring the titles to the mortgaged lands. And no rule of law or public-policy forbade the assignment to the title company of the loan company's claim against the bank. (McCrum v. Corby, 11 Kan. 464, syl. ¶ 2.) And what difference can it possibly make to the bank whether it pays the loan company on its unavoidable liability or pays the.title company as assignee of the loan company, so long as in paying it satisfies a liability it cannot escape?
3. It is next contended that since the loan company withheld from the defendant bank the mortgage notes and insurance policies it thereby ratified the bank’s payment of the checks, and conseT quently it had no cause of action which could pass to the title company by subrogation or assignment. This argument is predicated on the assumption that the notes and mortgages had some material value, the withholding of which wrought some loss or disadvantage to the bank. But the-notes were forgeries;- so, too, were the mortgages. They were utterly without value. Their delivery to the bank would have clothed the bank with nothing of value. A pertinent provision of the negotiable instruments act (R, S. 52-223.) recognizes this point. One consideration for the issuance of -the policies (in addition to the premium) was the provision in eacih of them that if the insured had a loss and the title company had to pay, the title company was to have all the rights of the insured against whatever party caused the loss. The insurance contract further provided that it was not to be assigned without the title company’s written consent.
4. Appellant makes a special point against a recovery on the cause of action predicated on the check payable to William York, contending that plaintiff took nothing thereunder by assignment from the loan company, and that the holder of that loan to whom it has been sold by the loan company had no claim against the bank. For a reason which will later appear we deem it unnecessary to rule on this point.
5. Complaint is made that the trial court placed upon the bank the burden of proof that the checks were paid according to directions of the loan company. Appellant concedes that under the general rule of law the burden is upon a bank which pays a depositor’s funds upon check bearing forged indorsements to prove facts sufficient to avoid liability to the depositor (United Workmen v. Bank, 92 Kan. 876, 142 Pac. 974, 54 L. R. A., n. s., 815), but it contends that the circumstances of the present case justify the application of a different rule. Before another rule could be applied it would have to be invented, for counsel for defendant do not refer us to any law book which states it, and we know of none.
6. Before taking up one phase of this appeal which will require special treatment we will take notice of some matters urged by appellant in its reply brief. It is urged that no negligence on the part of defendant was shown. Perhaps not the sort of negligence, which requires judicial concern in actions of tort; but the causes of action constituting this lawsuit were not founded on defendant’s negligence. They were based upon the bank’s absolute liability for the payment of the loan company’s checks on forged indorsements. In United Workmen v. Bank, supra, this court said:
“The rule appears to be that payments upon forged indorsements are at the peril of the bank making them, unless it can claim protection upon some principle of estoppel or negligence chargeable to the depositor.” (p. 883.)
The same rule of law was applied in the later case of United Workmen v. Bank, 101 Kan. 369, 166 Pac. 490. (See, also, McCormack v. Central State Bank, 203 Ia. 833, 52 A. L. R. 1297, and annotation.)
Defendant’s next contention is that the payment of the checks on forged indorsements .was not the proximate cause of plaintiff’s loss. This contention is not easy to understand. Presumably what is meant is that the payment of the checks was not the proximate cause of the loan company’s loss. Well, what caused the loss? The loan company’s checking account was depleted to the extent of nearly $19,000. What depleted it? The charging against it of the checks bearing forged indorsements, and that was done by the bank. The fact that the checks bearing the forged indorsements also carried later genuine indorsements of other banks through whose hands the checks passed before being presented for payment afforded defendant no escape from liability. In Harmon v. Old Detroit Nat. Bank, 153 Mich. 73, 17 L. R. A., n. s., 514, which is cited approvingly in United Workmen v. Bank, 92 Kan. 876, 885, 142 Pac. 974, it was held:
“Where a bank pays a forged cheek, or one upon which the name of a fictitious payee had been fraudulently substituted, the fact that the check came to the paying bank through other banks does not relieve it of the duty of investigation to determine the identity of the original presenter with the payee named in the check, and if the paying bank chooses to rely upon the identification accepted by the bank which cashed the check, it does so at its own risk.” (Syl. ¶ 3.)
In the opinion in this ease it was said:
“If the drawee chooses to rely upon the identification by the bank which cashed the check, it does so at its own risk, and its recourse is upon that or some intermediate bank.” (p. 78.)
Another point urged by appellant is that although the loan company might have had a cause of action against the bank, the plaintiff as assignee of the bank’s cause or causes of action was subject to superior countervailing equities of the bank. But this court is unable to discover any countervailing equities in favor of the bank. If the loan company had gotten anything of value by reason of the payment of the checks bearing the forged indorsements, and the bank had made good the depletion of the loan company’s checking account, the bank would or might be equitably entitled to whatever the loan company acquired, and if withheld there might be a situation where defendant’s argument, about the loan company’s ratification of the charges against its checking account would be applicable. In the circumstances of this case there was nothing which could be construed as such ratification.
We pass now to the legal question whether the statute of limita tions bars the causes of action based upon the charging of the oldest checks — those of York, Watson and Brockett — against the checking áccoúnt of 'the loan company. Those checks were so charged more ■than'three years before this action was begun. In the regular course of business, at the end of the month in which those checks were so charged, a formal monthly statement of account was rendered to ■the loan company by the bank and the checks thus charged were de■livered to the loan company along with the checks. Cases are cited ■by appellee,' and textbook doctrine also, to the effect that while the ■statute of limitations runs against a cause of action arising from the payment of a forged check as soon as such check is returned to the drawer because it is his duty to' examine his checks promptly to see 'that they bear his genuine signature, but that the rule is otherwise as "to forged indorsements, and he is not bound to scrutinize his returned checks for forged indorsements. (Magee on Banks and Banking, 3d ed., 362a.) Be that as it may, defendant’s main contention in this connection is that the bank’s monthly statement to the loan company showing what checks were charged against its checking account during the month, which was regularly rendered to the loan company together with the canceled checks at the close of each month, was in legal effect an account stated, and while subject to correction within a reasonable time, each of such monthly statements was a notice to the loan company of the bank’s disavowal of. any liability on the checking account for any greater sum than that admitted by such account stated. There is in our opinion much force in this- contention. The relation of a- bank to its depositor is that of debtor and creditor, and the sum he has on deposit in his checking account is a debt of the bank payable to him on demand; yet because it is payable on demand he cannot sue the bank for the amount of his deposit until payment on demand has been made and refused; and such demand and refusal are necessary to set in motion .the statute of limitations. But where the bank renders a statement to the depositor showing the status of his checking account, it says to him in effect, “This bank owes you this stated balance, and no more.” -Such statement may fairly be construed as a notice that any claim the depositor may make in excess of the stated balance would be resisted by the bank. And in that view of the situation the^ depositor’s formal demand for a greater sum and the bank’s formal refusal to pay a larger sum would be unnecessary to perfect the depositor’s cause of action, and likewise to set in motion the •statute of limitations. If th'is is not the legal effect of the bank’s monthly statement tó its depositor, it is not apparent what function the monthly statement performs. Where a bank pays out a depositor’s money -on a- forged check there is a special limitation in the bank .act (R. S. 9-171) which bars an action against the bank unless it is notified of the forgery within six months. No express limitation is made by statute governing the time in which an action can be brought against a bank for the payment of a depositor’s funds on a check bearing a forged indorsement. In that situation it would seem that some provision of section 17 of the civil code (R. S. 60-306) must apply. Surely the menáce of liability for indefinite amounts of money paid on checks bearing forged indorsements should not hang over a bank forever. The liabilities sought to be enforced against this bank aggregate $20,000. They accumulated over a period of seven years. If this series of forged indorsements had fallen on almost any one of the numerous smaller banks of the state, it would have wrecked it completely, and that, too, without any actual wrongdoing on the bank’s part, however culpable in law it may be.
In Munnerlyn v. Augusta Bank, 88 Ga. 333, 30 Am. St. Rep. 159, while affirming the general rule that the statute of limitations does not begin to run in favor of a bank until a demand and refusal has been made, the court said;
“[But] we do not mean to hold that such demand could be indefinitely delayed; for under the rule laid down in the books, this might be done for such a length of time that the right to the money would become stale.” (p. 337.)
In Benefit Association v. Bank, 99 Miss. 610, the action was .by a depositor against a bank which had paid plaintiff’s check drawn in favor of the beneficiary of an insurance certificate. .The name of the payee indorsed on the check was a forgery; the check was paid by the bank on which it was drawn, and the amount charged to the drawer’s checking account. Eventually the check was returned to the drawer together with its bank pass book showing the net-balance standing to the depositor’s credit in the bank. Neither the bank nor the depositor learned that the check had been paid on a forged indorsement until nearly four years later. The supreme court of Mississippi held that the rendition of the statement of account showing the balance claimed by the bank to be due the depositor was equivalent to notice that any claim for a sum in excess of that amount would not be paid, and as to such excess the statute would begin to run from the time of the rendition of such statement. In the opinion it was said:
“The contention that the statute did not begin to run until the discovery by appellant of the forged indorsement of the check is unsound. . •. . There was no fraud perpetrated or concealed on the part of appellee. It paid the check in good faith, believing the indorsement genuine. Neither the appellant nor the appellee was at fault in failing to discover the forged indorsement after the payment of the check. Appellee’s failure to discover the forgery at the time it was presented, resulting in its payment, made it liable to the party defrauded to the amount of the check; but after that the duty rested equally on appellant and appellee to discover the forgery, and appellant’s opportunities for making the discovery were as good as appellee’s, because appellant had in its possession the canceled check with the forged indorsement, which had been rendered to it as a voucher. The running of the statute was, therefore, not delayed to the time of the discovery by appellant of the forged indorsement. Our judgment is appellant’s right of action accrued, and therefore the statute of limitations was set in motion against it, on January 1, 1903, on which date appellee rendered to appellant a statement of its account, showing this item of four hundred and twenty-five dollars charged against it.” (pp. 631, 632.)
Counsel for plaintiff say that this Mississippi case is at variance with our own decision of United Workmen v. Bank, supra, but in that case the statute of limitations was not involved. The forged indorsement in the United Workmen case occurred on or about March, 1912; it was discovered in June; demand was made on the' bank for repayment of $2,000 charged against plaintiff’s account in July, 1912, and the action was instituted shortly thereafter (date not shown in our records), but judgment was entered in the trial court in June, 1913, and reversed with directions in July, 1914.
The effect of rendering monthly statements of the status of a depositor’s checking account was not decided, but in the opinion by Mr. Justice Benson it was said:
“It was formerly held that a depositor owed a bank no duty to examine his pass book and vouchers to detect forgeries although the means of detection were thus afforded (Weisser v. Denison, 10 N. Y. 68), but recent decisions hold otherwise (Morgan v. U. S. Mortgage & Trust Co., 208 N. Y. 218, 101 N. E. 371; Note, 7 L. R. A. n. s. 744.) . . . The object of requiring such an examination is to afford seasonable notice to the bank of any unauthorized payment in order that it may have an opportunity to retrieve against losses.” (p. 884.)
The case cited by Judge Benson dealt with a raised check, while the United Workmen case grew out of a forged indorsement, but our opinion did not suggest that the legal significance of the bank’s monthly statement should be given any less significance in the one case than in the other.
See, also, note on effect of balances struck in bank pass book in 134 Am. St. Rep. 1019; 3 R. C. L. 532; 2 Paton’s Digest, 1657 et seq.; id. 2148 et seq.; 30 Mich. L. Rev. 1108 to 1110.
Counsel for the parties have supplied us with exhaustive briefs which have been carefully perused, and we have examined the authorities cited on this question and such others as our time would permit. And while we recognize that.there is much authority to the contrary, we think the rule announced by the supreme court of Mississippi cited above is eminently just. We hold that the rendition of a monthly statement to a depositor of the status of his account is fair notice to him of the amount the bank admits it owes him, and that it owes him no more. This practice of rendering monthly statements is born of the necessities of modern banking. They are made for the mutual protection of the bank and its depositor. Such a monthly statement may justly serve as a notice to set the statute of limitations in motion.
Having reached this conclusion, it will require no dissertation to show that the pertinent provision of the statute of limitations is the second clause of section 17 of the civil code (R. S. 60-306). The several causes of action are founded on an assignment of the loan company’s choses in action upon the bank’s implied contract with its depositor. (Talcott v. National Bank, 53 Kan. 480, 36 Pac. 1066; Altman v. Bank, 86 Kan. 930, 122 Pac. 874; Washbon v. Bank, 87 Kan. 698, 125 Pac. 17; Missimore v. Hauser, 130 Kan. 20, 285 Pac. 558.) It follows that plaintiff’s third, sixth and seventh causes of action, founded on the deductions made from the loan company’s checking account on the Watson, Brockett and York forgeries, were barred by the statute of limitations ere this action was begun and as to those counts the judgment must be reversed and judgment ordered thereon in favor of defendant. On the other four counts the judgment must be affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a fire insurance policy. Plaintiffs prevailed, and defendant appeals.
Henry Laverentz owned land in section 30. The former owner held fire insurance policies issued by defendant, covering the dwelling house. After Henry Laverentz became owner the policies were renewed. One policy was for $2,000 and one was for $2,500. Henry Laverentz died. His heirs were Blanche Kimmi, Mabel Laverentz, and Henry Laverentz, Jr., a minor. Blanche Kimmi was administratrix of the estate, and was guardian of Henry Laverentz, Jr.
In 1925 the $2,000 policy was renewed in the name of the Henry Laverentz estate, Blanche Kimmi, Administratrix. In June, 1927, the company placed on this policy an indorsement that it was transferred to Blanche Kimmi, Mabel Laverentz, and Blanche Kimmi, guardian of Henry Laverentz, Jr., and the policy was indexed in defendant’s records accordingly. The term of this policy was five years, and it was in force when the fire occurred on January 30, 1930. The dwelling house, which was of the value of $8,000, was totally destroyed, and the $2,000 policy was paid.
The insurance for $2,500 was renewed on August 18, 1925, for three years, and on August 18, 1928, was again renewed for three years. In each instance the new policy was in the name of Blanche Kimmi, administratrix. The action was on the renewal policy issued August 18,1928.
Defendant is a mutual fire insurance company. Its by-laws provide that no policy shall be issued except on written application of the applicant, and defendant contends there was no liability on the policy because the application was signed by Blanche Kimmi, administratrix.
Defendant’s agent was responsible for the form of the application. When in 1928 the policy issued in 1925 was about to expire, the agent requested Blanche Kimm'j to renew the insurance. The agent copied data in an old application on a new application blank. The agent asked Blanche Kimmi no questions, and she signed as he directed, Blanche Kimmi, administratrix. As indicated, at that time defendant’s records disclosed the state of the title. The application did not call for a statement of ownership, but Blanche Kimmi told the agent who the heirs were. The result is, there was an application, the application w(as in writing, and the application was signed by an applicant who was one of the heirs and who was guardian for another. She was in fact acting for all three. The jury returned the following special finding of fact:
“1. Did the plaintiffs, Mabel Laverentz and Henry Laverentz, Jr., or either of them, ever make written application for the policy of insurance sued on herein, as required by article IY of the by-laws of the defendant? Answer: Yes. Through Blanche Kimmi, administratrix.”
Under these circumstances the court is of the opinion the by-laws of the company were substantially complied with. It would be entirely too technical to hold the policy was void for want of an application.
The application contained an inquiry if there was other insurance on the property. The answer was in the negative, and defendant contends this was a false representation which avoided the policy. As indicated, Blanche Kimmi was not asked if there was other insurance. The agent wrote the answer to the inquiry, and directed her to sign the application. The company knew1, it had another policy on the same dwelling house for $2,000, and under the circumstances there was no wrongful concealment of a material fact affecting the risk.
Besides owning the land in section 30 on which the insured dwelling house stood, Henry Laverentz in his lifetime owned land in section 22, on which there Was a small dwelling house. This house was insured by the ¿Etna company for $2,500. Through defendant's agent, who also represented the Bankers Life Insurance Company of Nebraska, Blanche Kimmi procured a mortgage loan on the land in section 22 from the Nebraska company. The mortgagee asked for the insurance policy on the house. Blanche Kimmi looked through her papers, found a policy, and sent it to the agent. He told her the description in the policy was wrong, and she told him to correct it. The policy was in fact the $2,500 policy covering the dwelling house on section 30. The agent struck out the land description in the policy, inserted the description of the land in section 22, and sent the policy to the mortgagee. When the dwelling house on section 30 burned, Blanche Kimmi could find but one insurance policy on the house — the $2,000 policy which has been referred to. She made proof of loss, and as indicated, the policy was paid. Then Blanche Kimmi found the ¿Etna policy, covering the house on section 22. She sent it to the mortgagee, and the mortgagee returned to her the policy which the agent had mutilated. He blamed the woman. Defendant contends the mistake in changing the description was not a mutual mistake, and at the time of the fire the policy was a valid and subsisting policy covering the house on section 22. This contention recognizes the authority of .the agent in the matter, and while Blanche Kimmi sent the policy to him, he made the blunder of telling her the description was wrong.
As indicated, proof of loss caused by the fire was made, but was not made with specific reference to the $2,500 policy. When the $2,500 policy was returned to Blanche Kimmi it was too late to make proof of loss, and defendant denies liability on the ground no proof of loss was made as the policy required.
When Blanche Kimmi regained possession of the policy, and undertook to procure payment of it, defendant denied liability and refused to pay on the sole ground the policy had become effective with respect to the house on section 22. Failure to make proof of loss was not mentioned in the negotiations for settlement. At that time the mistake made in sending the policy to the mortgagee of section 22 had been corrected, the .¿Etna policy had been sent to the mortgagee and had been accepted, and the altered policy had been returned to Blanche Kimmi. Defendant’s liability on that policy was the same as if it had not gone to Nebraska and back, and denial of liability on one ground waived other grounds which the company had power to waive. It had power to waive timely proof of loss.
Other contentions of defendant are without merit, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Sloan, J.:
This was an action in partition and accounting. The defendants prevailed, and the plaintiffs appeal.
The case was submitted to the trial court upon the pleadings, agreed facts and admissions of the parties. The facts are as follows:
Perry Beeching, the father of the plaintiffs and John R. Beeching, died December 6,1915, intestate, leaving as his sole heirs his widow, Lizzie Beeching, and his four children. Thereafter Lizzie Beeching died intestate, and the entire estate, which consisted of 1,120 acres of land, and personal property consisting of bonds, notes, mortgages and other securities, totaling about $10,000, passed to the plaintiffs and John R. Beeching as tenants in common. Shortly after the death of Mrs. Beeching, and on May 25,1923, the plaintiffs executed a power 'of attorney by which they mutually constituted John R. Beeching their attorney in fact to liquidate, demand, collect and account for all the personal property derived from the estate of Perry Beeching and Lizzie Beeching, as heirs at law and owners in common; that at the time of the execution of the power of attorney it was agreed that John R. Beeching, as agent, should handle the real estate, lease the same, collect the rentals, pay the taxes and other expenses, and account to the plaintiffs for their interest therein; that John R. Beeching, acting under the power of attorney and agreement for the plaintiffs and himself, proceed to liquidate the personal property and collect the rents and profits from the real estate; that prior to his death he disposed of all of the personal property, and certain real estate not involved in this action was sold and conveyed by the plaintiffs and John R. Beeching; that certain lots located in the city of Hutchinson described in the petition had been acquired by John R. Beeching in the settlement of a mortgage held by the estate; that at the death of John R. Beeching the only personal property in his hands was the sum of $122.74, on deposit in the bank in the name of John R. Beeching, trustee, and five shares of stock of the Pryor-Lockhart Development Company, a common-law trust, which was purchased by John R. Beeching and paid for out of the funds belonging to the plaintiffs and John R. Beeching; that no transfer or change of title of the real estate described in the petition had been made, except as above indicated, and John R. Beeching claimed at all times to be the owner of an undivided one-fourth interest therein; that at one time John R. Beeching paid to each of the plaintiffs and himself out of the proceeds of the estate the sum of $1,500. No other or further accounting appears to have been made and there is no record of the amount received.
John R. Beeching died August 6, 1929, leaving a last will and testament, which was admitted to probate on August 17, 1929, in the probate court of Reno county. By the terms of the will Bertha E. Beeching is the sole devisee and she was on August 20,1929, duly appointed executrix of the estate and published notice of her appointment as provided by law, the first publication being made on August 22,1929; that claims were filed against the estate of John R. Beeching, deceased, and allowed by the probate court, aggregating the sum of $8,000. The plaintiffs did not file any claim in the probate court, but filed this action in the district court on May 1, 1931. The plaintiffs allege in their petition that they and the defendant, Bertha E. Beeching, owned and were seized and possessed of the real estate as tenants in common by reason of their ownership; that they were owners in common of the personal property; that John R. Beeching handled the property under and by virtue of the power of attorney and agreement; that he failed to account to the plaintiffs for their interest in the property and the rents and profits accruing thereon, and asked that an accounting be had and partition be made according to law.
On these facts the trial court concluded as a matter of law that the plaintiffs and the defendant, Bertha E. Beeching, were the owners of the real estate as tenants in common, each being the owner of an.undivided one-fourth interest; that the one-fourth interest of Bertha E. Beeching was subject to the right of the executrix of the estate of John R. Beeching, deceased, and the creditors thereof, to have the same sold for the payment of debts and claims established against the estate; that the real estate should be partitioned and sold as provided by law, and the proceeds of the one-fourth interest of Bertha E. Beeching paid to the executrix of the estate of John R. Beeching, deceased, to be distributed in the probate court; that the stock in the Pryor-Lockhart Development Company be partitioned one-fourth to each of the plaintiffs and one-fourth to the estate of John R. Beeching, deceased. It was admitted by the defendants that the account in the bank, in the amount of $122.74, should be paid to the plaintiffs. The court further concluded that the claim for rents and profits against the estate of John R. Beeching, deceased, was barred by the statute of limitations, and that it was unnecessary to have an accounting to determine the amount due plaintiffs.
The appellants contend that the court erred in its conclusions of law; that under the facts the court should have determined, through an accounting, the amount due the appellants from the estate of John R. Beeching, deceased, and charged the same against his share of the property as of the time of his death.
On the other hand, the appellees contend that since John R. Beeching acted as the agent of the appellants his failure to account for the rent and profits, and the use of the personal property, did not create a lien on his share in the land and the appellants stand in the position of general creditors, and their claim is barred by the statute of limitations.
There appears to be a contention between the parties as to the power of the court to make an equitable distribution of property, both personal and real, in a partition suit. We think there is little room for controversy over this question. It is true that the statute is silent as to the power of the court to partition personal property, but it is given express power to make an order not inconsistent with the statute that may be necessary to make a just and equitable partition between the parties, and to secure their respective interest. (R. S. 60-2114.) The court, as among the parties, in the exercise of its equitable jurisdiction, has the power, in decreeing the partition of real estate, to partition personal property, make a complete accounting, including rents, profits and the use or appropriation of the common personal property, and if any one or more of such co-tenants has received more than his proper proportion of such rents or personal property, require, the amount of such excess to be settled from the proceeds of the sale of the property coming to such co-tenant, unless the rights of third parties are prejudiced thereby, or it would be otherwise inequitable. (Scarborough v. Smith, 18 Kan. 399; Scantlin v. Allison, 32 Kan. 376, 4 Pac. 618, and Mackey v. Mackey, 99 Kan. 433, 163 Pac. 465.)
The law is well settled that the rights of creditors are fixed definitely according to their status at the time of the death of the debtor. (11 R. C. L. 257.) The statute prescribes a complete procedure for the administration of the estate of a deceased debtor, and classifies demands against the estate. (R. S. 1931 Supp. 22-701.) Unless the appellants had at the date of the death of John R. Beeching some valid lien on or claim to his share in the real estate superior to the claim of other creditors none would arise upon the filing of a suit in partition.
It seems quite clear from the admitted facts that John R. Beeching, during his lifetime, liquidated the personal property, collected rents and profits from the land and converted the same to his own use. Did the fact that he was a cotenant of the appellants and their agent create any lien or claim against his share in the real estate which may be enforced as against the creditors whose claims had been allowed by the probate court? We think not.
In 7 R. C. L. 836 it is said:
“It ought not to be held on principle that any lien or encumbrance arises in favor of one cotenant against the share or interest of another in the land for rents due. Such liens would be indefinite in amount, and undisclosed by public records, upon which third persons in dealing with the owners of property ordinarily have a right-to rely.”
In Omohundro v. Elkins, 109 Tenn. 711, the court said:
“Where a mortgage is executed upon lands by a tenant in common, before suit for partition is instituted, the lien of the mortgage thereunder upon the interest of the mortgagor is superior to, and overrides the right of a cotenant to reimbursement for rents Collected in excess of his share, such right being a mere equity that arises upon'the filing of a bill for partition, making claim for reimbursement upon proper allegations in respect thereof.” (Syl. J 2.)
In Flack v. Cosnell, 76 Md. 88, the court said:
“A tenant in common has no lien against his cotenant’s interest in land for rents in excess of his share collected and retained by the latter before partition of the land.” (Syl. ¶ 1.)
The general rule appears to be well established that a tenant in common has no lien for rents against his cotenant’s share in the land which he can assert to the prejudice of other creditors. (27 A. L. R. 237.) The appellants had a cause of action against John R. Beeching in his lifetime to account for rents and profits. (Stephenson v. Patton, 86 Kan. 379, 384, 121 Pac. 498.) It was not necessary to have joined this in a partition action. (Overlander v. Overlander, 119 Kan. 348, 239 Pac. 751.) The cause of action accrued the moment John R. Beeching appropriated the proceeds of the personal property and rents and failed to account therefor on demand. Such an action could have been prosecuted to judgment, which would have been a lien on the real estate owned by John R. Beeching. Since no lien was created during the life of John R. Beeching equity will not create one after his death to the prejudice of other creditors. Since the appellants contend that the stock in the Pryor-Lockhart Development Company was owned in common, we hold that the same principles apply to it as applied to the real estate.
It necessarily follows that the appellants were general creditors of the estate, and as such their claim is barred by the statute of limitations. ( R. S. 1931 Supp. 22-727, and cases there cited.)
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to collect the amount of a bonu given to guarantee compliance with the terms of a franchise ordinance. Judgment was for plaintiff. Defendant appeals.
The city of Topeka passed an ordinance giving a franchise to the Industrial Gas Company to furnish gas to industrial users in the city. The part of the ordinance which it is necessary for us to consider is section 5. It is as follows:
“Sec. 5. That within thirty (30) days after acceptance of this ordinance by the grantee and as one of the considerations for granting the franchise herein contained, grantee agrees that it will cause to be begun construction of a pipe line of at least twenty (20) inches in diameter to transport natural gas from the Amarillo, Tex.,' gas fields to Kansas City, Mo., and that within one hundred fifty (150) days after the acceptance of this ordinance by the grantee it will cause to be begun construction of a pipe line of at least twelve (12) inches in diameter to connect said principal pipe line hereinbefore mentioned with grantee’s distribution system in the city of Topeka, and also within said time cause to be begun a system of pipe lines for the distribution of said natural gas to industrial users within said city, and that said principal pipe line, said pipe line connecting the principal pipe line with the said distribution system, and said distribution system (in so far as may be necessary to meet the demands for service, so that grantee can and will deliver such natural gas to industrial consuméis of the city of Topeka at a pressure of not less than five [5] pounds per square inch) will be completed within one year from the date of such commencement of construction of said principal pipe line, subject to an extension of said time equaling delays in such construction caused by the acts of God, the elements, labor troubles, accidents and any and all other causes not reasonably within the control of the grantee; provided, that on or before the acceptance of this franchise by the grantee it agrees to file and deposit with the city clerk of the city of Topeka a good and sufficient surety bond in the sum of $12,500, executed by a company authorized to transact business in the state of Kansas, guaranteeing the construction of the twelve-inch gas fine ... to the gates of the city of Topeka within the time provided in this section. Because of the difficulty of ascertaining and determining the actual damages which shall be sustained by the city in the event of failure of the grantee to cause said twelve-inch line to be constructed, said sum of $12,500 is hereby agreed upon as liquidated damages which would in such event be sustained by said city.”
Pursuant to the section quoted and on the same day that the ordinance was accepted the company executed the following bond:
“Whereas, by the terms of ordinance number 5801, passed by the board of commissioners of Topeka, Kan., on January 10, 1928, granting to the Industrial Gas Company, a corporation organized under the laws of the state of Kansas, its successors and assigns, a natural gas franchise in said ordinance more fully described, it is provided that the grantee therein shall within thirty (30) days after the acceptance of said ordinance by the grantee cause to be begun construction of a pipe line of at least twenty (20) inches in diameter to transport natural gas from the Amarillo, Tex., gas fields to Kansas City, Mo., and that within one hundred and fifty (150) days after the acceptance of said ordinance by the grantee it will cause to be begun construction of a pipe line of at least twelve (12) inches in diameter to connect said principal pipe line from said Amarillo, Tex., gas fields to Kansas City, Mo., with grantee’s distribution system in city of Topeka, Kan., and also within said time cause to be begun a system of pipe lines for the distribution of natural gas to industrial users within said city of Topeka, and that said principal pipe line, said pipe line connecting the said principal pipe line with the said distribution system and said distribution system (in so far as may be necessary to meet the demands for service so that grantee can and will deliver such natural gas to industrial consumers of the city of Topeka at a pressure of not less than five [5] pounds per square inch) will be completed within one year from the date of such commencement of construction of said principal pipe line, subject to an extension of said time equaling delays in such construction caused by acts of God, the elements, labor troubles, accidents and any and all other eauses not reasonably within the control of the.grantee; and
“Whereas, said The Industrial Gas Company has concurrently with the filing of this bond with the city clerk of said Topeka, Kan., filed with said city clerk of said Topeka, Kan., its acceptance in writing of the provisions, terms, obligations and conditions of said ordinance:
“Now, therefore, if the construction of the twelve (12) inch gas line above referred to from the main twenty (20) inch line above described to the gates of the city of Topeka, shall be begun and be completed within the time provided in said ordinance for the beginning and completion of said twelve (12) inch pipe line, then the obligation of this bond shall be void; otherwise it shall remain in full force and effect.”
It will be seen that the ordinance speaks of three projects; the line from Amarillo to Kansas City, Mo., the connecting line between the line from Amarillo to Kansas City and Topeka and the distribution system in the city of Topeka. The ordinance provided that a bond should be given guaranteeing the construction of the line between Kansas City and Topeka. This ordinance was submitted to the voters of the city at a special election and adopted by them. This bond was given and is the one sued on. It will be seen that the bond speaks of the provision of the ordinance with reference to three projects, but binds the bonding company only to pay in case the connecting line is not built. As it turned out, none of the three projects ever was completed.
The petition alleged the facts about as detailed here, and prayed for judgment for the amount of the bond.
The answer of defendant admitted the passage of the ordinance and the execution of the bond. It further alleged that the issuance of a certificate of necessity and convenience by the public service commission of the state of Missouri, permitting and authorizing the construction of a distributing system in the city of Kansas City, Mo., was a condition precedent to the performance of the obligation guaranteed as to performance by the bond, and failure on the part of the gas company to obtain such certificate made performance of said obligation impossible; the attempt on the part of the gas company to secure this certificate and its failure so to do; that the necessity for this certificate was known to the members of the city commission at the time the ordinance was passed and the bond executed, and the fact that the obtaining of this certificate might defeat the carrying out of the building of the connecting line was known and guarded against in the bond sued on by the following clause providing for an extention of time:
“Subject to an extension of said time equaling delays in such construction caused by the acts of God, the elements, labor troubles, accidents and any and all other causes not reasonably within the control of the grantee.”
The allegation in the answer was that the inability to obtain the certificate was the cause of the failure to build the connecting line. The answer then alleged that the only obligation guaranteed to performance by the bond is the obligation, if any, of the gas company to construct a twelve-inch connecting pipe line, and this obligation was and is so indefinite, uncertain and impossible of performance that plaintiff could not allege or prove any damages for the breach thereof; that the city of Topeka had not sustained any damages on account of the alleged breach of the bond; that there was no provision in the bond for liquidated damages; that no actual damages had been alleged or proved. The answer further alleged that the ordinance actually purported to grant a franchise to defendant on a condition to be perforated entirely outside the territorial limits of the city; that the bond sued on was to secure the performance of this condition and was one which the city had no authority to demand.
The reply alleged that the bonding company had entered into the bond for compensation; that it had secured itself against loss, and knew at the time of entering into the bond of the provisions of the bond and of the ordinance. Trial was to the court. Without making any findings of fact or conclusions there was a general finding and judgment for the plaintiff. From that judgment this appeal is taken.
The errors urged here by appellant follow the allegations of the answer. The first ground upon which reversal is. asked is that with reference to the certificate authorizing and permitting the construction of a distributing system in Kansas City, Mo. Appellants argue that since the city commissioners knew of the necessity of this certificate at the time the bond was accepted, that the obtaining of this certificate was a condition precedent to the binding effect of the bond. It is sought to bring the case under the rule that performance of a contract will be excused without liability if it can be said that the parties contemplated that a certain state of things must exist in order for performance to be had and if it can be shown that performance was impossible through no fault of the promisor because the contemplated state of things did not exist. We have seen that appellant was a surety for hire. It comes under the rule announced in School District v. McCurley, 92 Kan. 53, 55, 142 Pac. 1077. There this court said:
“A marked distinction is recognized by many of the courts as to the application of the rule as between contracts of an accommodation surety and the contract of a paid surety. As to the contracts of an accommodation surety, made dependent upon a condition precedent, the courts all agree that the strict letter of the contract will be enforced; but as to the contract of a paid surety, many of the courts, especially in the .later decisions, inquire whether the surety was injured by the default of the condition, and if so, they enforce it only to the extent of the injury. In Hull v. Bonding Co., 86 Kan. 342, 120 Pac. 544, it was held that the rule that sureties are favorites of the law does not apply to corporations engaged in the business of furnishing bonds for profit.”
See, also, Lumber Co. v. Douglas, 89 Kan. 308, 131 Pac. 563.
If it be said that the city commissioners of Topeka knew of the necessity for the certificate as to Kansas City it can hardly be said that the surety company did not have the same knowledge at the time it executed the bond. The three different projects were written into the ordinance and the bond, and one could hardly read them without understanding that they were all dependent on each other. It is to be remarked that no reference to the necessity for such a certificate is in the bond. There is no reason why the line from the fields of Amarillo to Kansas City was not built, even though the certificate was not obtained, except that without the right to distribute gas in Kansas City such a line would not be profitable. None of the cases cited by counsel for appellant in its able and exhaustive brief states that such a reason is any excuse for not performing a contract. It is fundamental that performance of a contract will not be excused merely because its performance turns out to be hard and improvident or less profitable or unexpectedly burdensome. (13 C. J. 637.)
• Appellant points out the following clause in the bond:
“Subject to an. extension of said time equaling delays in such construction caused by acts of God, the elements, labor troubles, accidents and any and all other causes not reasonably within the control of the grantee.”
It argues that the failure to obtain the certificate brings the case within that clause. That clause was not intended to cover the inability of the gas company to construct these lines and systems and operate them profitably. There is nothing pointed out in this record which prevented the company from the actual construction work of all three of the lines spoken of in the bond. No reason is pleaded why they were not all built except that they would not have been profitable without the Kansas City distributing system. The rule is that even a clause such as that relied on in the bond and ordinance in question will not excuse performance unless performance of the contract is impossible from the very nature of things. (13 C. J. 638.) It will be noted that there are several things set out in the clause in question; that is, “labor troubles,” “accidents,” and any and all other causes not reasonably within the control of the grantee. The rule is that when several specific contingencies are named in a contract that will excuse nonperformance the contingencies named are the only ones that will excuse. (13 C. J. 638.) This question was dealt with in the case of Drug Supply Co. v. Board of Administration, 106 Kan. 256, 187 Pac. 701. In that case the promisor endeavored to escape performance of a contract on account of having gone into the hands of a receiver. The court said:
“Generally, when one contracts to do a thing possible in itself he will be liable for breach of such contract, notwithstanding the occurrence of a contingency which, although not foreseen by him or within his control, but which might have been provided against, has put it out of his power to perform.” (Syl. If2.)
In the present case it can hardly be said that it was beyond the power of the gas company to perform. It is only unprofitable. (See, also, Winfrey v. Automobile Co., 113 Kan. 343, 214 Pac. 781.)
Appellant points out that the bond does not contain any provision requiring the payment of any sum as liquidated damages. It argues that there can be no recovery on the bond since it is one requiring the payment of a penalty, and no actual damages were pleaded in the petition of plaintiff or proven at the trial. It will' be recalled the ordinance provided that—
“Because of the difficulty of ascertaining and determining the actual damages which shall be sustained by the city in the event of failure of the grantee to cause said twelve-inch line to be constructed, said sum of $12,500 is hereby agreed upon as liquidated damages which would in such event be sustained by said city.”
The suit was filed and the action tried on the theory of appellee that the ordinance and bond should be construed together. If this be done, then the bond is clearly one to pay liquidated damages. The ordinance was accepted and the bond given simultaneously by the gas company. The bond refers to the city ordinance, and the things the company bound itself to do with reference to building the lines by its terms. In Barber County Comm’rs v. Lake State Bank, 121 Kan. 223, 246 Pac. 524, a bond had been given to secure county deposits. The bond referred to the contract between the county commissioners and the bank. On a suit to collect the bond the court held:
“A bond given by a bank to secure deposits of county funds referred to the contract made between the bank and the county commissioners and recited that the bond was given in consideration of that contract. Held, that the contract was a part of the terms of the bond the same as if recited in the bond.” (Syl. ¶ 1.)
The general rule is—
“That where a bond and another contract or instrument relate to and form one and the same transaction, or the bond refers to such other instrument or is conditioned for the performance of specific agreements set forth therein, such instrument with all its stipulations, limitations, or restrictions becomes a part of the bond, and the two should be read together and construed as a whole.” (9 C. J. 36.)
See, also, Despres v. Folz, 134 Ill. App. 111.
The case at bar is one where the ordinance and bond sued on should be construed together. As has been seen, the bond contained a reference to the ordinance. Appellant had notice that the bond it was asked to execute was to secure performance of the terms of the ordinance. The provision of the ordinance which appellant argues was not written into the bond is one for liquidated damages. If there ever was a case where the bond should be for liquidated damages rather than for a penalty this is it. Appellant complains that there was no allegation or proof of actual damages. The reason is that there is no rule by which the damages should be measured. Every citizen of the city knows that they were damaged by the failure of the appellant to complete the contract. To hold that the bond in this case was for a penalty and that only actual damages can be collected under it would result in the bond being of no benefit whatever to the city and would nullify the provision in the ordinance with reference to a bond.
The general rule is laid down in 17 C. J. as follows:
“The parties to a contract may, where the damages consequent upon a breach are of an uncertain nature, estimate them in advance of a breach and agree upon their measure, and such an agreement when entered into in good faith will be enforced. It is not essential to the validity of such a provision that the damages which may accrue shall be liquidated as to both parties to the contract. Nor need the liquidated damage clause be reciprocal.” (p. 931.)
In Railroad Co. v. Gaba, 78 Kan. 432, 97 Pac. 435, this court held:
“The extent of a possible future loss to be paid in the event of a breach of contract may be agreed upon in advance, where there is difficulty in determining the extent of the loss and the resulting damages are uncertain. In such a case the amount so fixed, if reasonable, will be allowed when the default occurs.” (Sjd. If 2.)
Also—
“The use of the words ‘forfeiture,’ ‘penalty’ and ‘liquidated damages’ in such contracts is not controlling, although due weight should be given to such expressions, in connection with other parts of the argument, the subject matter, and other facts and circumstances.” (Syl. f 4.)
See, also, Bank v. Burlington, 79 Kan. 797. In Scott’s Administrators v. City of Mayfield, 153 Ky. 278, it was held:
“Where a street railway franchise requires the railway to be commenced and constructed within a given period of time, and the purchasers execute to the municipality a bond conditioned that the purchasers will comply with the provisions of the franchise ordinance in that respect, the sum fixed in the bond will be regarded as liquidated damages, and may, on a breach of the bond, be recovered without proof of actual damage, unless the sum so named is unreasonable or oppressive.”
See Whiting v. Village of New Baltimore, 127 Mich. 66; Township of Springwells v. Detroit, etc., Ry., 140 Mich. 277; also, City of Marshall v. Adkins, 60 Tex. Civ. App. 336.
Appellant argues further that the ordinance as passed was intended to fix as a condition to the granting of a franchise an act to be performed entirely beyond the territorial limits of the city and was, therefore, void and the bond given to secure the performing of this condition cannot be enforced. It cannot be said that the work was to be performed wholly beyond the territorial limits of the city. The line was to be connected with the distribution system in the city. As a practical matter the connection would be made at what is known as the city gates; that is, the boundary of the city, but there is nothing in the ordinance which would prevent the connection being made well within the limits of the city. The case relied on by appellant is City of Arcata v. Green, 156 Cal. 759. In that case the court held:
“When a municipal corporation of the sixth class grants the right to construct an electric railroad through such city on the condition that the grantees should, within certain periods, commence and complete the construction of their road between another place and such city and through such city, the condition is not severable. The construction to be undertaken is a single and complete thing, and the grant is an attempt by the municipality to grant a right upon condition that the entire contemplated road be constructed. Such an attempt of the municipality to exercise extraterritorial power vitiated the condition, and avoided, for want of consideration, an undertaking purporting to have been given by the grantees in consideration thereof.”
The case was decided on the theory that the city was bargaining for a road between itself and another city and was seeking to regulate matters beyond its territorial limits. This decision is discussed in 4 McQuillin on Municipal Corporations, 2d ed., § 1773, as follows:
“If the condition is in fact a regulation of matters outside of the municipality, the decision appears sound; but if it is merely the imposition of a condition that a public utility company shall not be entitled to certain rights within the corporate boundaries unless it not only complies with certain conditions as to its property within such limits, but also complies with the same conditions as to its property outside of the municipality, it is clear the action is not beyond municipal jurisdiction. Moreover, such a provision is a proper one to protect the interests of the local corporation and in many cases would be of little benefit if restricted to the building of the road within the municipality.”
In the case at bar the city simply took precautionary steps to see that it would not find itself in a position where a company owned a franchise to furnish gas within the city with no gas to furnish. To hold that the city could not impose a condition such as that provided for here would leave it at the mercy of men who seek franchises merely for promotion purposes.
This case comes within the rule laid down by McQuillin as one where the city has jurisdiction.
We conclude that there was no error in the judgment of the trial court, and it is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action by Glen W. Dickinson, plaintiff, against Lawrence Lodge No. 4 of the Independent Order of Odd Fellows, a corporation, for damages for alleged breach of a contract which the defendant lodge had made to build a theater in Lawrence and to lease it for ten years to plaintiff’s assignor, the Midland Theater and Realty Company.
Plaintiff’s petition set out the material facts, which may be summarized thus: In 1926 the defendant lodge planned to build an Odd Fellows temple in Lawrence. On October 2, 1926, the trustees of the lodge, and by its authority, entered into a contract with the Midland Theater and Realty Company, a corporation, to construct a theater in the proposed temple and to lease it to the latter corporation for ten years with an option to extend that term for another decade. The theater was to be an elaborate affair and the agreed rent was fixed at $8,400 per annum in monthly payments of $700 payable in advance, and the lessee was to put up a bond for $26,000 for the prompt performance of all its contractual undertakings. The lodge agreed to start construction of the theater on or before January 1, 1927, and to have it ready for occupancy by September 1, 1927.
The contract provided that the lessee might assign it with the consent of the lessor. On December 11,1926, the lease was assigned to this plaintiff and the lessor consented thereunto. The theater was never constructed and on August 25, 1930, this action was begun. Plaintiff’s alleged damages aggregated $35,512.46, on some items of which he asked interest, and judgment was prayed therefor.
Defendants lodged general and special demurrers to the petition, some minor features of which were sustained, but otherwise overruled.
Defendants then answered and filed a cross petition therewith. These contained various traverses, admissions and allegations of no present importance, and pleaded—
“For further answer to plaintiff’s petition defendants say that if the plaintiff purchased or otherwise obtained ownership and possession of the lease involved in this action he did so for the express and avowed purpose of preventing the defendants from building any theater or theater structure which might be used in competition with the theaters which the plaintiff at all times with which this action is concerned has owned and operated in the city of Lawrence, Douglas county, Kansas. That on or about the 12th day of December, 1926, the plaintiff advised the defendant lodge, through its officers, that he owned the lease involved in this action, demanded that the defendants should not build the theater structure provided for by said lease, advised the defendants in the manner aforesaid that in case they did build said theater structure, he, the plaintiff, would not install the theater equipment as made obligatory upon the lessee in said lease, or operate a theater in said theater structure; that he would cause the same to be vacant and unused. That at divers and sundry times with which this action is concerned the plaintiff begged, entreated and demanded the defendants not to build a theater structure as provided by the terms of the lease, a copy of which is attached to plaintiff’s petition.”
Plaintiff moved to strike out parts of defendants’ answer and cross petition — particularly the paragraph just quoted. This motion was sustained. The correctness of that ruling is the question presented in this appeal.
Why was not the stricken matter an appropriate defense to plaintiff’s action? The contract to build the theater required defendant to commence its construction on or before January 1, 1927, and to have it ready for occupancy by the lessee, or plaintiff as assignee of the lessee, by September 1, 1927. But when the contract rights of the lessee were acquired by plaintiff he immediately repudiated the contract and notified defendants that he would not comply with its terms. He also begged and entreated defendants not to build the theater.
The stricken pleading may be a trifle short in that it did not expressly allege that defendants acquiesced in plaintiff’s repudiation of the contract and yielded to his entreaty to forego the building of the theater, but those facts are virtually supplied by other allegations of the pleadings. And in that state of facts, as well as by plaintiff’s silence for over three years and seven months following defendants’ abandonment of the project to build the theater, it seems that the stricken matter in the answer and cross petition was germane to the issue tendered by plaintiff. In large measure it constituted a defense to it.
There is nothing more clearly settled in the law of contracts than that while still executory they may be abrogated or discharged by breach, rescission or repudiation by one party thereto and by assent thereto or acquiescence therein by the other party.
In 13 C. J. 602 it is said:
“Where a contract has been rescinded by mutual consent, the parties are as a general rule restored to their original rights with relation to the subject matter, and no action for breach can be maintained thereafter, nor are the parties bound by the contract with reference to their subsequent actions.”
In 6 R. C. L. 929 it is said:
“It is sometimes said that a contract is considered to remain in force until it is rescinded by mutual consent, or until the opposite party does some act inconsistent with the duty imposed upon him by the contract, which amounts to- an abandonment, or that a contract will be treated as abandoned where the acts of one party, inconsistent with its existence, are acquiesced in by the other. Evidently what is meant by such statements is that one party may so wrongfully repudiate the contract as to authorize the other to renounce it and refuse to be longer bound thereby.”
In Flegal v. Hoover et al., 156 Pa. St. 276, cited in George v. Lane, 80 Kan. 94, 99, 102 Pac. 55, it was said:
“The parties to a contract may at any time rescind it, either in whole or in part, by mutual consent, and the surrender of their mutual rights is sufficient consideration.” (Syl. IT 2.)
In Wilson v. Holub, 202 Ia. 549, 58 A. L. R. 646, where the cancellation of a contract by mutual consent was under scrutiny, the court said:
“It is a familiar rule that the parties to any contract may mutually rescind or abandon the same. [Citations.]” (p. 554.)
See, also, 13 C. J. 588 et seq.; 6 R. C. L. 921 et seq.; Notes in 1 L. R. A. 826, 827; 30 L. R. A. 33, 40 et seq.; and in L. R. A. 1915 B, 1, 15, et seq.
It follows that the ruling of the trial court was erroneous, and the cause is remanded with instructions to reinstate the stricken matter in defendants’ pleading and for further proceedings consistent therewith.
Reversed and remanded. | [
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The opinion of the court was delivered by
Hutchison, J.:
This case involves the sufficiency of the defense interposed to six promissory notes of the usual form, first as to it being sufficient as a matter of law, and if so, then the sufficiency of the evidence to support that defense. The trial court held the answer constituted a legal defense and the evidence supported it as to the first three counts or notes and otherwise as to the last three. Both parties appeal.
The action was commenced by the executor of the estate of the mother of the defendant, who executed and delivered the six notes to his mother during her lifetime. The first three notes were given by the son to his mother when she either loaned or gave to him the several amounts of money they represent, $1,400, $1,500 and $600. The last three notes were given her mainly for delinquent interest on these three earlier notes. The notes were payable in one year from date and bearing five and one-half per cent interest from date. Some of them provided for ten per cent interest after maturity, and others for the interest if not paid when due to become part of the principal and bear the same rate of interest.
The answer filed by defendant, in addition to a general denial and a statement as to the desire of his mother in her lifetime to make a partial distribution of her property and to help her daughter and this defendant by giving each of them gifts of large amounts of money, further alleged:
“. . . that the said gifts were so made upon the express understanding and agreement that she, the said Emma I. McLean, for and during her lifetime, should be paid an amount equal to five and one-half per cent per annum payable annually on the amounts respectfully given to them and that neither of them were to pay any other or further amount and that instruments in writing in the form of promissory notes were executed for the various amounts so given merely as memoranda and as evidence of such gifts; that . . . the said notes representing the amounts so given to this defendant were to be and were signed by him and his wife, Gertrude McLean, who is now deceased, and it was the agreement and understanding of the parties thereto that said notes were merely memoranda of the amounts and dates of the several gifts and it was further mutually' understood and agreed by and between the defendant and his sister, Carrie M. Lanphear, and his mother, Emma I. McLean, that payment of the amounts represented by said memoranda notes would never be demanded or enforced.
“Defendant further alleges that he has paid to his mother in her lifetime all that was due and owing to her on said notes under their agreement and that it was the understanding and agreement made by and between himself and his mother that no part of the amount represented by said notes should ever be paid, or demanded except the 5% per cent designated as interest and that upon her death no other or further payments should be made, and that he has paid the interest on said notes which matured during her lifetime.”
The plaintiff moved the court to strike out the second defense as irrelevant, immaterial, surplusage and as not constituting any defense to the plaintiff’s cause of action. The court overruled this motion and placed the burden upon the defendant, and also overruled the objection of the plaintiff to the introduction of evidence by the defendant in support of said defense, the objection being made on the same grounds as contained in the motion to strike.
The trial court found as to the first three notes—
“That the said notes in writing above mentioned were merely memoranda of the amounts so given by the said Emma I. McLean to her son, A. G. McLean, and that it was at no time her intention or desire that any amount of the principal sum of said notes should be paid and that an amount should be paid thereon, equal to 5% per cent per annum of said amounts so given by her to her son, A. G. McLean, if paid at maturity, and if not so paid, then interest to be paid according to the provisions of each of said notes.”
And concluded there was no obligation or liability of the defendant on said three notes. As to the other three notes, it was found and held they were interest notes, and judgment was rendered thereon against the defendant.
In support of the finding and conclusion of the trial court as to the first three notes, the defendant strongly relied upon the decision in the case of Brook v. Latimer, 44 Kan. 431, 24 Pac. 946, in which the facts were quite like those in this case except in that case the father, to whom the note had been given by the daughter, brought the action thereon against the estate of the daughter,- and that no question of interest was there involved. It was there claimed that the note given to the father payable on demand represented an advancement made by the parent to the child, and the court held that parol .evidence was admissible to show that the promissory note was in fact executed by the daughter and received by the father as a mere receipt or memorandum of an advancement made by the parent to the child. The opinion recognized the uniformity of the decisions of this and other courts as to the inadmissibility of parol evidence to vary or contradict the express terms of a written contract, but it regarded the matter of an advancement as a general and fixed policy-in the state, and for that reason the liberal rule as to the admission of evidence should be followed to show that the apparent consideration of the written instrument was an irrevocable gift. The opinion refers to statutes on advancements in different states and says that the Kansas statutes furnish no aid in the solution of the question.
Among the other cases cited by the defendant on this subject are: Plowman v. Nicholson, 81 Kan. 215, 106 Pac. 279; Martin v. Shumway, 89 Kan. 892, 132 Pac. 993; and Packard v. Packard, 95 Kan. 644, 149 Pac. 404. These cases are concerning conveyances where the issues were whether they were advancements or preferential gifts, and parol evidence was held to be admissible to overcome the presumption that the deeds were advancements.
Many other decisions and texts are cited by defendant, but they apply to the admission of parol evidence which goes to the question of the execution or delivery of the written instrument as denying execution, duress, forgery, fraud, being indorser instead of maker, accommodation maker and the like. Such evidence does not vary or contradict the terms of the written instrument.
The terms of the written instruments in the case at bar are that the principal is to be paid one year after date and is to draw five and one-half per cent interest. The purpose of the parol evidence was to show that instead of being payable one year from date it was never to be paid — a direct contradiction of one of the definite and specific terms of the instruments.
In a very recent decision it was held:
“The allegations in an answer in a suit on a written contract to pay money are examined, and it is held that the allegations in the answer set up facts which constitute a parol promise to vary and add to the terms of the written instrument, and a demurrer to the answer was properly sustained.” (Continental Supply Co. v. Morgan, 133 Kan. 121, syl., 298 Pac. 790.)
In another decision in the same volume it was held:
“In an action upon promissory notes containing definite, complete and unqualified promises to pay money at specified times, parol evidence is not admissible to enlarge the scope, alter or add to the terms of the written instruments.” (Brown v. Pryor, 133 Kan. 129, syl. ¶ 1, 298 Pac. 747.)
In the case of Dye v. Rafter Farm Mortgage Co., 132 Kan. 795, 297 Pac. 672, where a mortgage company foreclosed a mortgage on record in the name of the company, but two parties had furnished the money for the loan and the mortgage company bought in the property really for the benefit of the two who furnished the funds for the loan originally, and to satisfy one of them gave him a note signed by the company, it was held:
“Parol evidence is not admissible to contradict the obligation of the maker expressed in a plain promissory note, and to show the note is merely evidence of an interest in land the title to which stands in the maker’s name.” (Syl.)
The defense in this case is in effect that the amounts mentioned in these notes were intended by both parties as a gift to the defendant, but as was said in the case of Ariett v. Osage County Bank, 120 Kan. 286, 242 Pac. 1018—
“Gifts may be made to be enjoyed by the donee after the donor’s death. The gift itself must, however, be complete in the donor’s lifetime. Title must pass from the donor to the donee.” (p. 291.)
In the same connection, after describing the three different ways of consummating or effecting a delivery of a gift, it is further said in the opinion—
“In all of these cases, the donor must make the gift. No matter how clear his intention, or how strong his desire, if what he does falls short of divesting himself of present title, he has made no gift, and neither law nor equity can aid him or aid the donee.” (p. 291.)
It was held in the case of Gallagher v. Donahy, 65 Kan. 341, 69 Pac. 330:
“To constitute a valid gift inter vivos, there must be not only an intention gratuitously to give, but an absolute transfer of the property, which takes immediate effect.
“A retention of the dominion and control of promissory notes proposed to be donated, coupled with a declaration of the payee that interest payments thereon would be expected from the payer, does not evidence a purpose to make a gift in prcesenti, nor indicate such a delivery as is essential to an executed gift.” (Syl. U 1, 2.)
In the opinion it was forcibly stated that if there was no debt, no interest could accrue. The evidence on which this ruling was based was a letter written by the father to the son who gave the note, that he need not trouble himself about that note for all he expected or wanted from him on it was the interest.
The defendant, of course, claims the gift or advancement was completed and effected when the money was turned over to him by his mother, but as long as she retained a dominion over the notes, the gifts were not complete or irrevocable.
“To constitute a gift inter vivos, there must be a gift absolute and irrevocable, taking effect immediately, the donor delivering the property to the donee or some one for him, and parting with all future dominion over it.” {Calvin v. Free, 66 Kan. 466, syl. ¶[ 2, 71 Pac. 823. See, also, Bruce v. Squires, 68 Kan. 199, 74 Pac. 1102.)
Where a mother and brother of the real debtor signed a note under an oral agreement that it was a mere form and if it Should not be paid otherwise out of the business they would not be called upon to pay it, it was held the written instrument was not impeachable by the contradictory oral agreement. {Stevens v. Inch, 98 Kan. 306, 158 Pac. 43.)
Where a mother signed a note at the bank as surety for her son with the assurance at the time by the bank officials that it was only a formal matter to show the bank examiner, it was held this constituted no defense to an action on the note. {Bank v. Pirotte, 107 Kan. 573, 193 Pac. 327.)
It has frequently been held that an allegation of the existence of a prior or contemporaneous parol agreement that an absolute and unconditional promise to pay should be satisfied only out of the profits of a certain enterprise and that the instrument imposed no liability or obligation upon the makers thereof, did not constitute a legal defense to an action on the note. {Underwood v. Viles, 106 Kan. 287, 191 Pac. 475, and Hudson State Bank v. Haile, 130 Kan. 322, 286 Pac. 228. See, also, Investment Co. v. Gamble, 102 Kan. 791, 171 Pac. 1152.)
“The maker of a note cannot defend an action thereon by showing an oral agreement made at the time of its execution that he should not be held liable, for the reason that this would violate the rule forbidding the contradiction of the terms of a written instrument by parol evidence.” (Bank v. Watson, 99 Kan. 686, syl. ¶ 2, 163 Pac. 637.)
The allegations of the answer in the instant case in no way affected the execution or delivery of the notes or their validity as binding obligations, but they attempt to vary and contradict the express terms of the notes, which cannot and does not constitute a legal defense under the above and numerous other authorities, and evidence in support of such allegations was clearly inadmissible. As far as the liberal rule applied in the case of Brook v. Latimer, 44 Kan. 431, 24 Pac. 946, is out of harmony with the other decisions of this court, it is hereby modified. It follows that the trial court erred in overruling the motion to strike the second defense from the answer and in overruling the objections of the defendant to the introduction of evidence in support of such allegations, and in rendering judgment for defendant on the first three notes or counts of the petition.
This conclusion reached makes it unnecessary to consider the evidence, the findings or the motion for a new trial. As to the appeal of the defendant from the judgment against him on the last three notes or counts, we find no error.
The judgment is reversed and the cause is remanded with instructions to render judgment for plaintiff and against defendant not only on the last three notes, but also on the first three notes or counts | [
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The opinion of the court was delivered by
Burch, J.;
The action was one by C. E. Jenkins against Grant Stafford and H. T. Trice, for money paid to defendants and damages suffered by plaintiff as a consequence of the fraud of defendants in connection with a proposed sale of land. Stafford’s demurrer to plaintiff’s evidence was sustained, and plaintiff appeals.
Plaintiff lived in Nebraska, and was induced to come to Kansas as a prospective land buyer. Trice signed a contract to sell plaintiff a quarter section of land which neither Trice nor Stafford owned and which they had no authority to sell. The price to plaintiff was $100 per acre-, or $16,000. Plaintiff’s quarter section of land in Nebraska was to be accepted in part payment at the price of $7,400, and plaintiff agreed to pay the balance in cash. Plaintiff paid $100 at the time the contract was signed in March. In April plaintiff came down from Nebraska and was told he must pay $1,000 more to hold the deal. Plaintiff paid the $1,000. In July plaintiff received a letter telling him to come to Winfield at once. Arriving at Win-field, plaintiff was told the deal could not be made, clear title could not be obtained, and it would be necessary for plaintiff to take some other land. Plaintiff said he wanted the land he contracted for or nothing. Plaintiff was then told if he would pay $500 more, and would give ninety days more time, the deal could be put through. Plaintiff paid the $500. While the check was made payable to Trice, it was at once indorsed and delivered to Stafford. Stafford sent the money to a bank to be paid to James E. Davis, the owner of the land, and Davis received the money. Davis was to get $75 per acre for the land, or $12,000, and he was willing to accept, in part payment, a mortgage on the land for $6,000. Davis put a deed in a bank on July 6. He waited until October 23, and nothing having been done, he withdrew the deed.
Plaintiff moved from Nebraska to Winfield in September. One morning Trice came to plaintiff’s house, and said he would go to Salina and find a land buyer, to get some money to close the deal. The result was, plaintiff was authorized to go to Nebraska and sell the farm there for $45 per acre, which he did. He paid an agent’s commission, and received $3,100 in cash and a note for $835, certified to be good. The purchaser assumed a mortgage on the land. Plaintiff returned to Winfield, reported the sale, and announced he was ready to close his purchase. He was told nothing could be done, and plaintiff would have to take another piece of land. Plaintiff demanded a deed or his money, and then Trice said:
“We got $1,600 of your money. Davis got $500. That leaves us owing you $1,100. I am charging you $800 commission for making the deal, and that brings us down to where it would leave us owing you $300.”
It will be remembered plaintiff had no contract with Davis or dealing with Davis. Plaintiff was buying the Davis land pursuant to a contract signed by Trice, and to get the land Trice was obliged to pay $6,000 in cash, above the mortgage Davis was willing to accept. Plaintiff testified he did not make the sale of the Nebraska land for himself. He made the sale for Trice, and it was not material to plaintiff what Trice got for the land. There was no evidence of objection to the manner in which plaintiff disposed of the Nebraska land, and refusal to complete the purchase of the Davis land was not based on any act or default of plaintiff. Plaintiff sued for the $1,600 paid to defendants, less $150 returned to him, and sued for the difference between the sale price of the Nebraska land and its reasonable market value.
The foregoing is a sketch of the origin of the lawsuit. In support of the ruling sustaining the demurrer to plaintiff’s evidence two points are made: first, that Stafford was not involved in the transaction between plaintiff and Trice; and second, it was plaintiff’s fault that the sale of the Davis land was not consummated. There was abundant evidence warranting an inference that Stafford was working with Trice as a party in interest, and there was sufficient substantial evidence warranting an inference that the sale failed because of the fault of Stafford and Trice. It is not necessary to discuss the evidence in detail.
' The judgment of the district court is reversed, and the cause is remanded with direction to grant a new trial. | [
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Opinion by
Strang, C.
Action for specific performance. 'The plaintiff alleges that he purchased of and from the defendants lot 7, in block 36, in the city of Atchison, Kas.; that the contract is in writing, and consists of a series of telegrams between the parties, all of which were made a part •of the petition in the case. Trial was had by the court without a jury, which made the following findings of fact:
“1. On the 15th of September, 1886, Matthew F. Howie and Lydia E. Howie were, and for many years had been, husband and wife.
“2. On said 15th day of September, 1886, said Matthew F. Howie was, and for more than five years theretofore had been, the owner in fee-simple of lot No. 7, in block No. 36, in that part of the city of Atchison known as ‘Old Atchi.-son,’ in Atchison county, Kansas, upon which there was situated a dwelling-house. At that time J. M. Covert was, .and for several months previous had been, agent of said Matthew F. Howie, for the purpose of caring for and renting said house, with others owned by said Howie, and it had been agreed between them that said lot and dwelling should be known in their correspondence as ‘No. 1.’
“3. The plaintiff, desiring to purchase said property, on the 15th day of September, 1886, requested said J. M. Covert to telegraph to said M. F. Howie, from Atchison, Kas., to Georgetown, Colo., where the said M. F. Howie then was, as-follows:
‘Rev. M. F. Howie: Is place No. 1 for sale? State lowest terms, oash.— J. M. Covebt,’
which message was on that day sent to said Howie and received by him, whereupon the same day said Howie telegraphed said Covert as follows:
‘Mr. J. M. Govert: Cash price for No. 1 is seventeen hundred and. fifty dollars. — M. F. Howie,’
which said telegram was received by said Covert on the same day, and the contents thereof communicated to the plaintiff, the plaintiff then informing said Covert that he would take said property at the price named in said telegram, and requested Covert to telegraph Howie as follows:
‘M. F. Howie: House No. 1 sold on terms named. Send authority and papers.— J. M. Covebt,’
which was received by Howie; and on September 16 Howie telegraphed Covert as follows:
‘Mr. J. M. Govert: Make out' deed for No. 1 on terms stated, and forward to me immediately for signature. Mrs. Howie will sign papers-there; money to be delivered to her. The property is lot 7, block 36, O. A. Can forward abstract if wished.— M. F. Howie.’
“On September 19, 1886, the plaintiff filled out a blank deed for said lot No. 7, expressing therein, as the consideration, $2,250, which deed on that day Covert forwarded to Howie, at Georgetown, Colo., for signature. The receipt of that blank deed by Howie was the first notice he had of who the said purchaser of the said property was to be, the plaintiff’s name not theretofore appearing in the correspondence in regard to said lot passing between Covert and Howie. This-deed was not executed by either Howie or his wife.
“4. On October 5,1886, the plaintiff offered to pay to defendant Lydia E. Howie the sum of $1,750, provided that she would execute, together with her husband, the deed prepared by him on September 19,1886, conveying the property to him, the plaintiff, upon the express consideration of $2,250-This the said Lydia E. Howie refused to do, unless the plaintiff should pay the full sum of $2,250, which he declined to do.”
Upon which findings of fact the court reached the following conclusions of law:
“1. The plaintiff’s name as the purchaser of said property not having been disclosed to the defendant Matthew F. Howie by the telegraphic correspondence mentioned in the findings of fact, they, the telegrams, did not constitute a contract for the purchase and sale of said property that can be enforced.
“2. The defendants never having agreed to convey said property by a deed mentioning a consideration of $2,250 upon the receipt of the sum of $1,750 as the consideration, the minds of the contracting parties never came together so as to constitute a contract.
“3. The defendants are entitled to a judgment that there is no cause of action against them, and for costs against the plaintiff.”
The plaintiff moved to set aside the findings of fact and conclusions of law, and for a new trial; which motion was overruled, and a judgment entered in favor of the defendants for costs. Was the plaintiff below entitled to specific performance in the case? We think not. Conceding that the minds of the parties met upon a distinct proposition of sale, which seems very doubtful, it must be, and is admitted, that such proposition was for the sale of the property for the sum of $1,750. But the deed presented by the plaintiff to the defendants for signature set forth $2,250 as the consideration for the property. This deed the defendants rightfully refused to sign, unless the plaintiff paid them the full sum named in the deed. If, as the plaintiff claims, he purchased the property for the sum of $1,750, he could not require the defendants to execute to him a deed acknowledging the receipt of $2,250 as the amount of the purchase-money, since they would be bound by the covenants of warranty therein for that amount should the title fail. The defendants were not asked to execute any other or different deed. The only offer or tender of the purchase-money made by the plaintiff to the defendants was, as disclosed by the fourth finding of fact, coupled with the condition that they would convey the property to him upon the express consideration of $2,250.
If, for the reason already given, the plaintiff was not entitled to specific performance of his alleged contract of purchase, it is unnecessary to consider any further questions in the case. It is therefore recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Strang, C.:
This was a proceeding to amerce the sheriff of Stafford county, Kansas, for an alleged failure to make a levy on an execution placed in his hands in favor of the Cincinnati Coffin Company and against J. H. & C. E. Smith, whereby the said company claimed it was damaged in the sum of the amount of said execution. The sheriff moved to dismiss the case made and filed in this court, for the reasons: (1) That no proper case-made has been filed in this court; (2) that no motion for a new trial was filed; and (3) that no exceptions were saved to the action of the court below, and no evidence has been brought to this court. This motion must be sustained. The record does not show that any evidence was presented to the trial court. There was nothing, so far as this court knows, upon which the trial court could have passed. Neither is there anything in the record to show that any exception was ever taken to the action of the trial court in disposing of the matter before it as it did. Nor was any motion for a new trial filed in the court below, so far as the record shows. It is true the petition in error alleges error because of thS overruling of the motion for a new trial. But the case-made shows no motion for new trial, and the clerk certifies that all the papers of the case are included in the case-made. There is -also an allegation in the petition in error that the court below refused, on the trial of the motion to amerce, to allow the introduction in evidence of the judgment and execution; but there is nothing in the ease-made, except the judgment of the court on the motion, to show that they were ever offered in evidence, and nothing showing any exception to the rulings of the court complained of. In fact, there is nothing in the case-made, except the judgment of the court, to show what proceedings were had in the court below.
It is therefore recommended that the case in this court be dismissed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Cwriam:
On the 12th day of December, 1885, King entered into a contract with McCoy to buy four lots in Abilene, upon which McCoy was then constructing four buildings. Bonebrake was furnishing the money to construct the buildings, and paying it out as the work progressed. Two of the buildings, being constructed on lots 6 and 8 on Cedar street, were to be finished by January 1, 1886. McCoy had mortgaged these lots to Bonebrake before King’s contract. The buildings were not completed March 5, 1886, and were never completed by McCoy or Bonebrake. King was to take the lots subject to a mortgage of $14,000, and deed McCoy certain land, described as “section 35, township 12, range 1 east.” The amount of money loaned by Bonebrake to pay for the lots and buildings was $4,000 on each, but King was to assume a lien, in all, of $14,000. On the 5th day of March, 1886, Bonebrake became anxious to get the section of land referred to, and made the contract sued on in consideration of the deed from King. This contract was —
“W. N. King: I will stand responsible for the completion of said buildings on lots 6 and 8, Cedar street, and paid for according to contract of David McCoy with W. N. King.
“March 5,1886. [Signed] J. E. Bonebrake.”
This action was brought by King against Bonebrake on the 27th day of August, 1888, to recover $800 on the written contract of Bpnebrake to complete the buildings. At the May term, 1889, the jury returned a verdict for him for $520. Judgment was entered thereon, with costs.
In the original opinion handed down by the commission, it was stated by Simpson, C., that—
“By the terms of the original contract, the buildings should have been completed by January 1, 1886. By a subsequent agreement, the time for completion was extended until the 1st day of July, 1886, conditioned that McCoy should pay King a monthly rental of $107.50, commencing on the 1st day of April, 1886.”
The reference in the opinion of the commission to the ex tension of the contract guaranteed by Bonebrake was an unintentional error, resulting from statements contained in the original brief of plaintiff in error. The contract for the completion of the buildings on lots 6 and 8 on Cedar street was never extended or changed. The former opinion handed down was founded upon this extension; hence that opinion is not applicable to the actual facts presented in the record. It clearly appears from the record that, at the time Bonebrake made his contract of guaranty, the original contractor, McCoy, was in default upon his contract for over two months. This being the case, Bonebrake was not entitled to any notice from' King of the default. Brandt on Suretyship and Guaranty says:
“ The rule that no notice of the principal’s default need be given in order to charge the unconditional guarantor of an existing demand is specially applicable to a guaranty of a debt made after the debt is due. In such case, the principal is in default when the guaranty is made, and the reasons requiring notice do not apply.” Yol. 1 (2d ed.), § 201.
Bonebrake alleged in his answer that—
“At the time the buildings mentioned in plaintiff’s petition were or should have been completed, and for a long time prior to this, defendant had under his control and in his possession moneys and property arising out of the mortgages upon the buildings negotiated by David McCoy, and otherwise provided by said McCoy, with which to protect himself against loss by reason of having signed the agreement set out in the petition concerning the completion of said buildings, and that on or about the — day of-, 188-, and at the time when the buildings were or should have been completed, this defendant had a talk with the plaintiff, and was informed by the plaintiff that the buildings mentioned in the petition were and had been by McCoy fully completed in accordance with the, terms of the agreement between McCoy and plaintiff; and this defendant, relying upon this statement, and believing that there was nothing further for McCoy to do with respect to the buildings in order to fully release him from his obligations under the agreement and promise, made a settlement with McCoy, and parted with and released his control and possession of all moneys and properties so pro vided and so left in his control by McCoy, and with which he could have completed the buildings, and protected himself against loss by reason of any failure of McCoy to have complied with his contract with plaintiff; that said plaintiff, at all times herein referred to, well knew that this defendant was holding and retaining control of funds and property of McCoy, for the purpose of seeing that the same were applied to the payment of the cost of the erection and construction of the buildings; that McCoy is now a non-resident of the state of Kansas, and, this defendant is informed and believes, is wholly and entirely insolvent; that if .this defendant is required to pay anything because of the failure of McCoy to complete the buildings in accordance with the terms of the contract, such payment will be a total loss to him.”
Upon the trial the court instructed the jury as follows:
“The defendant admits the execution of the guaranty, or at least it is not denied, and, not being denied, it is admitted; but alleges that he had a lot of property and money in his hands belonging to McCoy, which he was holding as a guaranty, or as protection to himself as against this guaranty, in the event McCoy did not complete the buildings, and with which he would have been enabled to indemnify himself from the property and money in his hands; that while he was so holding this money and property he had a conversation with King with respect to the completion of these buildings, and he claims King told him his matters with McCoy had all been settled; that he had no claim against McCoy for the buildings; and then, on the strength of that conversation, or a conversation to that effect — and, gentlemen of the jury, you are to determine this from the evidence; it is not for me to say — but on the strength of the statements made by King to him, he surrendered the money and property to McCoy, and for that reason he will suffer loss, if he has to pay this. That is an affirmative issue on the part of the defendant, of which he must satisfy you by a preponderance of the testimony. If you find from the testimony that King by his statements and conduct towards Bonebrake did induce Bonebrake to surrender the property and money he had in his possession belonging to McCoy, on the faith that King had no claim against McCoy by reason of the non-completion of these buildings, then, gentlemen of the jury, it would be a valid defense, and if you find it to be true, you will find for the defendant.”
The defense alleged by the defendant was fairly submitted to the jury by the instruction of the court, but the jury found against Bonebrake. He, however, has no just cause of complaint. The credibility of the witnesses and the weight of their testimony were for the jury and the trial court, not for this court.
The reversal heretofore rendered in this court will be set aside, and the judgment of the district court will be affirmed. | [
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Opinion by
Green, C.:
On the 21st day of March, 1892, an information was filed in the district court of Harper county, charging C. Lund, in two counts, with selling intoxicating liquors in violation of the prohibitory law. The defendant was immediately arrested, and, the court being in session, the case was assigned for trial, over the objection of the defendant, for March 30, following. Two days before the case was called for trial the defendant made an application for a continuance. Upon the hearing of the motion, the county attorney consented to the reading of the affidavit of the defendant as to what the absent witnesses would testify to as the evidence of such witnesses. The motion for a continuance was then overruled, and the case was tried on the day it had been set down for hearing. The jury failed to agree upon a verdict, and the casé was again assigned for trial, at the same term of court, on the 4th day of April. The defendant filed a second motion for a continuance, in which he set up the evidence of the same absent witnesses, the fact of the first trial, and the failure of the jury to agree upon a verdict. The court overruled the second motion for a continuance, and the state did not consent to treat the affidavits as the depositions of the absent witnesses. The second trial resulted in a verdict of guilty on both counts. A motion for a new trial was overruled, and the defendant was sentenced to pay a fine of $200, and ordered committed to the jail for 60 days. He appeals from such judgment and sentence.
It is first claimed that the court erred in setting the case down for trial on March 30, 1892, over the objection of the defendant. It is a sufficient auswer to this contention to say that the code of criminal procedure authorizes it: “If the defendant appear or is in custody at the term at which the indictment or information is found, such indictment or information shall be tried at that term, unless continued for cause.” (Gen. Stat. of 1889, ¶5222.) It appears that the defendant had over a week to employ counsel and prepare for trial. This, we think, was ample time, and the court committed no error in setting the case down for trial.
It is further urged by the appellant that the court erred in overruling the second application for a continuance, without requiring the state to treat the affidavits of the defendant as the deposition of the absent witnesses. This is more serious. The state upon the first trial had consented that the affidavits might be read. In the second application they were substantially the same. If the showing made in the first instance was sufficient to impose the statutory requirement upon the state to consent to the reading of the affidavits as the deposition of such absent witnesses, we cannot see why the court should not have imposed the same essential condition upon the state when the second application was heard. We are of the opinion that the court erred in overruling the second application for a continuance.
It appeared from the affidavits of the defendant that there were three absent witnesses, whose evidence was material. The affidavits set forth the testimony that each one would give, which, if true, would tend to establish the fact that the defendant did not make the sales of intoxicating liquors charged in the information and upon which the state elected to stand and ask for a conviction. We think, under all of the circumstances, the court should have allowed the defendant to read the affidavits as the deposition qf the absent witnesses, or continued the case until the next term of court.
Por this error, it is recommended that the judgment and sentence of conviction be set aside, and a new trial be granted.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by O. P. Michaels against the Southern Kansas Railway Company on account of personal injuries received by him, which he claimed were caused by the negligence of the company in improperly placing a switch with a target thereon too close to a track in the yards of a station known as “Longton.” Michaels was in the employ of the company in 1885 and 1886, but quit work some time in 1886. He was reemployed February 11, 1887, as head brakeman on a local freight train running between Cherry Vale and Wellington. On April 7, 1887, while on a ladder on the side of a freight car passing the switch stand at the west end of the yards at Longton, he was struck in the back by the target, knocked off, and injured. As head brakeman, it was his duty to ride on the head of the train. When the train came to switches he was to pull pins, turn switches, cut out cars, etc. During the time that he acted as head brakeman upon the freight train between Cherry Wale and Wellington — about two months — he passed over the yards at Longton nearly every day; at least every other day. In these yards a gread deal of switching had to be done. The switch in question was No. 1, &nd connected the house track, or track No. 4, with the new main line. The house track was used more than any other track in this yard, and as this switch threw that track, it would have to be frequently used.
Michaels testified that after the injury he measured the distance, and found that the center of the switch stand was 4 feet 3 inches from the near rail of track No. 4, and it stood half-way between the rail of track No. 1 and track No. 2, the distance between the two tracks being 8 feet 7 inches; that it was between 6-|- and 7 feet in height, and at the top had upon it an arrow head which projected 17 inches beyond the staff or rod, the arrow head being used to indicate the direction in which the switch was turned; that a car would project from 20 to 25 inches from the track, leaving a distance of from 10 to 15 inches between the end of the switch target and the side of a car. The switch stand and target were in the same condition on the 7th of April, at the time Michaels was injured, as when he reentered the employment of the company, on the 11th of February, 1887. When he was injured, Michaels was facing east, and his train was going west; therefore’he had his back toward switch stand No. 1, the target of which knocked him off. He was giving directions to a brakeman with reference to switch No. 5, toward the north, on track No. 4, trying to inform him it would have to be adjusted, and while shouting to the rear brakeman, Wartenbee, and as he was passing switch stand No. 1, he was struck. The conductor testified that the distance between the target and a car was about 18 inches, and this conductor and the rear brakeman testified that they both passed in safety while riding upon the side of a car between the car and the switch target, and that the plaintiff was hanging out from the car when injured.
Upon the trial Michaels testified in his own behalf, among other things —
“ That two or three days before he got hurt, he heard it stated that there was a switch stand at Longton too close to the track; that it would kill or cripple some one; that at the time of his injury he was upon the head end of the car; that after the pin was pulled, a car was put on the north or house track, called No. 4; that he turned the switch to get onto that track, and that the switch he turned was No. 1.”
Upon cross-examination he was asked: “After you were injured, did n’t you say to persons that you had repeatedly called the attention of parties to that target?” This question was objected to by plaintiff below, and the court sustained the objection. This was erroneous. It was important for the railway company to establish, if it could, that Michaels had waived the company’s negligence— if any existed — by remaining in its service with knowledge of the exact condition of the switch stand and target. (Rush v. Mo. Pac. Rly. Co., 36 Kas. 129; St. L. Ft. S. & W. Rld. Co. v. Irwin, 37 Kas. id. 701; Clark v. Mo. Pac. Rly. Co., 48 id. 654.) It had the right to cross-examine Michaels upon this subject. If he had answered the question in the affirmative, it would have shown that he knew how close the switch and target were to the track prior to his injury. It is not a sufficient answer to this action of the court to say, that if Michaels had made such a statement it could have been shown by other evidence. The jury must pass upon the weight of evidence. If Michaels had answered affirmatively, it is probable that the jury would have believed him. If other witnesses had testified that he had made such a statement, it by no means follows that the evidence would have been as conclusive as if Michaels had so testified.
Special questions were submitted to the jury. Among those submitted and answered were the following:
“Ques. 34. Did not the plaintiff throw this particular switch that day upon which he received his injuries, and pass by it two or three times before the accident? Ans. No.”
“Q,. 42. Had the defendant been notified of any defect in any switch stands and targets in the Longton yards prior to the accident? A. No.”
“Q,. 44. Did the plaintiff, prior to the time that he was injured, know that any switch stand and target in the Longton yards was so near any track as to be dangerous to employés in the discharge of their duty in said yard? A. No.”
“Q,. 47. Did the plaintiff continue to work in said yard as brakeman after he learned that there was one switch stand and target so near to the railroad as to be dangerous to employés in the discharge of their duty, the same as he had done prior to finding that out? A. No.”
These findings of the jury are against the evidence of Michaels, the plaintiff below. Other findings of the jury are also unsatisfactory. The jury found the company guilty of gross and wanton carelessness, yet the petition did not allege either gross or wanton negligence. The allegations in the petition in this respect were as follows: “ That the switch stand had been by the defendant carelessly, negligently, unskillfully and in an improper manner placed on the west end of the house track,” and that “the injury was caused by the careless, negligent, unskillful and improper manner in which the defendant placed the switch stand so near the road-bed of the track as to strike the plaintiff.” No amendment was asked or suggested to the petition. In this state the courts recognize different degrees of negligence. (Railway v. Rollins, 5 Kas. 167; Hale v. Rawallie, 8 id. 136.) 'Where several important findings, which are material, are returned by a jury against the unsuccessful party without any evidence to support the same, it is apparent that the findings have been given under the influence of passion or prejudice, or, at.least, that the jury have not intelligently or fully considered all the evidence. If material findings are made by the jury against the evidence, to sustain the general verdict, a fair trial has not been had. In such a case the facts should be submitted to another jury. (Railway Co. v. Peavey, 34 Kas. 472; Railway Co. v. Long, 46 id. 260; Railway Co. v. Gorsuch, 47 id. 583.) If material findings are unsupported by any evidence, the other findings of a jury, made upon conflicting evidence, are not entitled to that weight they would be if all the findings* had some support from evidence introduced upon the trial..
In referring to the findings of the jury, the attorneys for plaintiff below accuse the opposing attorney, who appeared at the trial, of misconduct in preventing a full argument of the case. After the evidence had been submitted and the instructions given, the trial court granted the attorneys for the plaintiff below an hour and a quarter in which to argue the case to the jury, and like time for argument to the attorney of the railway company; thereupon the attorney for the company moved the court to require the attorneys for the plaintiff to consume at least one-half of their time in the opening argument. The court overruled this motion, and one of the attorneys for the plaintiff then announced he would consume 30 minutes only in his opening argument, leaving the balance of the hour and a quarter for his associate to present the closing argument. This attorney requested the court to notify him when he had spoken 30 minutes. The court followed his suggestion, and when he had closed his argument the attorney for the railway company announced that he did not •desire to make any argument. The court then refused further argument in the case on the part of the plaintiff, and sent the jury out to consider of their verdict. Under these circumstances, we do not perceive any misconduct on the part of the attorney for the railway company, or any error in the court, in its discretion, in refusing to permit further argument. The attorneys of plaintiff below, under the order of the court, had an hour and a quarter in which to present the case to the jury. Instead of consuming a half-hour only in opening the case, they had the right to take the whole hour and a quarter; at least, in all fairness, they should have taken one-half or more of their time in fully presenting their case to the jury. It is not fair to the opposing side for a plaintiff, in the opening argument, to consume a few minutes only, and then to make the main or principal speech in closing.
It is claimed, however, that the alleged errors are not important and should not be considered by this court, because the railway company did not allege in its answer that Michaels was guilty of contributory negligence, or that he waived the company’s negligence by remaining in its service, after full knowledge of the exact situation of the switch stand and target. It appears that the plaintiff alleged in his petition, that his injuries “were caused without any negligence or fault on his part.” The railway company filed a general denial, but, before any evidence was submitted, the attorney of the railway company, in his opening address to the jury, stated, “that if the plaintiff was hurt in the manner alleged, the company would show, as a complete defense, that his injuries were caused directly by his own contributory negligence.” The court tried the case, in receiving and rejecting evidence, in giving and refusing instructions, as if contributory negligence had been properly pleaded. There is no cross-petition in error attached to the record, and, under these circumstances, the pleadings must be treated as the trial court construed them, and, if necessary, the answer will be regarded as amended. If the court had ruled otherwise, the railway company could have amended its answer, if an amendment were necessary, upon the trial.
There are some alleged errors in the instructions, but it is not necessary for us to comment thereon, as the case must go back for a new trial. (McQueen v. Railroad Co., 30 Kas. 689; Rush v. Railway Co., 36 id. 129; Railroad Co. v. Irwin, 37 id. 701; Clark v. Railway Co., 48 id. 654; Perigo v. C. R. I. & P. Rly. Co., 52 Iowa, 11; Wells v. Railroad Co., 56 id. 520; Mayes v. Railroad Co., 63 id. 562; Williams v. D. L. & W. Rld. Co., 41 Am. & Eng. Rld. Cases, 254.)
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was a proceeding to contest an election held for the purpose of voting bonds with which to build a school-house in District No. 73 of Atchison county, Kansas. It was brought by four electors of the district against the officers, and in their petition they allege that the district was illegally organized, and that the election held to vote bonds was unlawful, for the reason that the notice given of the election was not such as required by statute, and that it was fraudulently called and held on Saturday, the 5th day of September, 1891, when it was represented to the petitioners when their signatures were obtained that an election would be called for Monday, September 7, 1891, and that a large majority of the electors of the district were persons of the religious faith peculiar to the Seventh-day Baptist church, who observed Saturday as their Sabbath, and who could not conscientiously attend to secular duties on Saturday, and that the pretended election was purposely called for Saturday to prevent these electors, the most of whom were opposed to the bonds, from participating in the election ; and it was further alleged, that the proposition to issue bonds did not receive the affirmative vote of a majority of the electors in the district. The officers of the district answered that the district was legally organized; that the election was properly called and legally held, after due notice had been given. They denied the charges of fraud, and challenged the right of the plaintiffs in the action to maintain the same. The plaintiffs below, finding that the judge of the district court of Atchison county was absent from the district, applied to the judge of the district court of Leavenworth county to grant a temporary injunction, who granted them a restraining order until the judge of the district court of Atchison county could hear the application for the témporary injunction. Afterward the parties appeared before the judge of the district court of Atchison county and continued the hearing for the temporary injunction from time to time, and agreed that the restraining order should remain in force until the final trial and judgment, at which time a perpetual injunction was granted. It is now contended that the restraining order granted by the judge of the district court of Leavenworth county is without force or validity, for the reason that it was granted outside of Atchison county, and outside of the district in which the action was pending. This objection, however material it might have been if seasonably made, is no longer important or available to the plaintiffs in error. It appears that they recognized the order as valid, and agreed that it should remain in force until the final hearing and judgment in the case. Then, again, the restraining order, which seems to have been treated as a temporary injunction, has performed its office, and the permanent injunction having been granted, it is too late to raise objections against the regularity of the steps taken in obtaining the temporary restraining order.
The right of the plaintiffs below, who describe themselves as electors of the district, to prosecute this action is the im portant question presented for decision. It is conceded that they have no special or peculiar interest in the controversy more than is possessed by other electors and tax-payers in the district, and their right to maintain the action is based solely upon the provisions of ¶ 2772 of the General Statutes of 1889. It provides for contesting certain elections at the instance of aggrieved electors by special proceedings in the district court. It is limited in its application, however, to elections held in “county, township, or municipal corporations,” and, in our opinion, it furnishes no authority for an elector to contest an election held in a school district. Although a school district possesses corporate capacity, and is declared in the statutes to be a body corporate, it does not fall within the definition of a municipal corporation. A school district belongs in the same class as counties and townships, which “are denominated in the books and known to the law as quasi corporations, rather than as corporations proper. They possess some corporate functions and attributes, but they are primarily political subdivisions— agencies in the administration of civil government — and their corporate functions are granted to enable them more readily to perform their public duties.” (Beach v. Leahy, 11 Kas. 23.) Cities, towns and villages are municipal corporations proper, and the distinction between municipal corporations and quasi corporations is clearly pointed out in the case just cited. (See, also, Eikenberry v. Township of Bazaar, 22 Kas. 556; Marion County v. Riggs, 24 id. 255; Dill., Mun. Corp., § 20; 15 Am. & Eng. Encyc. of Law, 952.)
It is said that in the broader sense municipal corporations include all public corporations, including quasi corporations, such as counties, townships, and school districts, and the title of the act is referred to as an evidence that this signification was intended by the legislature. The fact, however, that counties and townships were specifically named in connection with municipal corporations forbids such an interpretation, and shows clearly that it was not the intention of the legislature that municipal corporations should include quasi corporations like counties, townships, and school districts. If the legislature had intended that the term “municipal corporations ” should be extended in its meaning so as to embrace all quasi corporations, counties and townships would not have been mentioned; and having named these, it is evident that the legislature intended to exclude all other quasi corporations. School districts not being included in the provisions of the act, it follows that the plaintiffs below had no right to prosecute this action. It could have been brought by the attorney general, or the county attorney of Atchison county, in the name of the state; and if either officer should intervene hereafter, substitution may be made in the district court.
We have examined the other objections urged by plaintiffs in error, and find nothing substantial in them, and, were it not for the fatal defect which has been pointed out, no reason is seen why the judgment might not stand.
The judgment of the district court will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of. the court was delivered by
Johnston, J.:
Henry Eink was prosecuted for failing and refusing to perform two days’ labor upon the public highways, after having been notified by the road overseer to perform the labor, as the statute requires. The state failed in the prosecution, and attempted to take an appeal to this court, complaining specially of the ruling of the district court in quashing the complaint. Upon filing the appeal in this court, the defendant challenged the validity of the transcript and appeal, because of a defective certificate attached to the same. It being held to be insufficient, the state asked and obtained leave to withdraw the record for the purpose of having an amended certificate made and attached, which has been done. The defendant renews his objections to the amended certificate and to the sufficiency of the appeal.
The certificate is insufficient, and the transcript cannot be reviewed. The clerk has failed to certify that the record contains a true and complete transcript of all the proceedings of the trial court. He does certify that the record contains true, full and complete copies of certain papers which are named, but the certificate contains nothing showing that it is a full transcript of the entire record of the case’ in the district court. Nothing short of this is sufficient, and, in the absence of a complete record, the judgment of the district court must stand. (Whitney v. Harris, 21 Kas. 96; The State v. Lund, 28 id. 280; The State v. Nickerson, 30 id. 545; The State v. Cash, 36 id. 623; The State v. McFarland, 38 id. 664; The State v. Ricker, 40 id. 14; The State v. Prater, 40 id. 15; Neiswender v. James, 41 id. 463.)
The appeal will be dismissed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
On March 16, 1887, on application of the Chicago, Kansas & Nebraska Railway Company, commissioners were appointed by the judge of the district court of Sumner county to assess the damages resulting to the various land-owners along the line of the company’s railway by reason of the location of such railway over such owners’ lands. The commissioners awarded to H. H. Davidson, the owner of the northwest quarter of section 11, township 32 south, of range 1 west, the sum of $3,808. Davidson appealed to the district court, where the case was tried before the court and a jury about November 24,1888, and judgment was rendered in favor of Davidson and against the railway company, awarding to him $6,000 as damages; and the railway company, as plaintiff in error, brings the case to this court for review.
The first claim of error is, that “the court erred in overruling the motion of the plaintiff in error to strike out the evidence of the witness C. E. Davis.” Davis was a witness for Davidson, the plaintiff below. It appears that Davis resided in the city of Wellington; that he had been in the real-estate business in that city for about three years; that he knew the value of real estate in that city and vicinity, including the additions to the city and the farms surrounding it,’ and the plaintiff Davidson’s land, which was near Wellington; that he knew the value of the property both before and after the commencement of the condemnation proceedings, and before and after the time when the railway company took the possession of the plaintiff’s land. He testified that before the condemnation proceedings were commenced, and before the land was taken by the railway company, it was worth about $300 per acre, or in the aggregate about $48,000, and that after the condemnation proceedings were commenced, and after the land was taken and occupied by the railway company, it was worth only about $75 per acre, or in the aggregate $12,000; that the depreciation in the value of land was caused partly by the condemnation proceedings and the occupancy of a part of the land by the railway company, and partly by the subsidence of a “boom,” which had existed at that place just prior and up to that time; that about two-fifths of the depreciation was caused by the condemnation proceedings and the occupancy of the land by the railway company, and three-fifths thereof by the subsidence of the “boom.” The foundation for the motion to strike out the testimony of this witness is as follows: It appears that a man by the name of Staub had sold his land in that vicinity at $650 an acre, and the witness Davis, who was a witness for the plaintiff below, testified, on his cross-examination by the defendant’s counsel, with reference to this, among other things, as follows:
“Ans. ... It [the land in question] would have been worth about as much as Staub’s at-$650 an acre.
“Ques. Do you think that land was ever worth $650 an acre? A. I think that there could have been some fool found that would have paid the same as Staub’s.”
The witness also testified upon his cross-examination, as follows:
“Q. What do you think that that was worth any $300 an acre for? A. Addition purposes.
“Q. It was never worth it for a farm, was it? A. No, sir; I do n’t think it was.
“Q. It never had a fair market value of $300 an acre for farming purposes? A. No, sir.
“Q. That is a speculative price for addition property? A. Yes, sir.
“Q,. And additions were speculations at that time? A. Yes, sir.
“Q. And were demonstrated to be serious speculations afterward? A. To some; yes, sir.”
At the time of the condemnation proceedings the plaintiff’s land was used simply as a farm. The witness further testified that the prices which he placed upon the plaintiff’s land were based upon actual transactions; that is, upon actual purchases and sales which took place in that vicinity. Of course, the court below did not err in refusing to strike out this witness’s testimony; but the question which the railway company desired and now desires to raise by its motion was and is as follows: The plaintiff’s land, though used only, as a farm, was nevertheless situated near a city, and was suitable for subdivision into lots, .blocks, etc., for an addition to such city. Now, the question is, may the fact that such land was suitable for such subdivision and addition be taken into consideration in determining what the real or market value of the land was, or should such fact be wholly excluded and ignored ? This question we think is in the case; for whether it is raised by the defendant’s motion to strike out or not, still we think it is raised by other proceedings in the case. Other witnesses besides Davis testified with regard to the purchase of land surrounding the city of Wellington, and the subdivision of the same into lots, blocks, etc., for addition purposes, and the sales of such lots; but all this was done merely as preliminary, and for the purpose of showing that the witnesses were competent to testify with reference to the value of the lands surrounding the city of Wellington and their value for the purpose of subdivision into lots, blocks, etc., for addition purposes, and not for the purpose of showing what the lots which might be made from the land in question would be worth, either separately or in the aggregate, if such land had previously and actually been subdivided into lots, blocks, etc., or had already become an addition to the city. The court also gave the following, among other instructions, to the jury:
“In estimating the market value of the laud, both before and after the condemnation, it will not be proper for you to make the estimate on what the land would have been worth had the land at that time, or prior thereto, been laid off or platted into lots and blocks as an addition to the city of Wellington, but you must consider the land as it was at that time, and with reference to the use that was then being made of the same, and all other uses that could reasonably be supposed from the evidence could be made of it thereafter, whether for farming purposes or for platting and laying the same off into lots and blocks as an addition to the city of Wellington.”
Questions like the present have already received some consideration, not only from this court but also from various other courts. In the case of Cohen v. St. L. Ft. S. & W. Rld. Co., 34 Kas. 164, the following language is used:
“He [the land-owner] is entitled to recover the exact market value of the land upon which the grade is constructed, for whatever purpose such land might or could be used.”
In the case of Comm’rs of Smith Co. v. Labore, 37 Kas. 484, 485, the following language is used:
“Land is never valued solely because of its inherent qualities, or merely for what is in it, or upon it. Its value depends as well upon many extrinsic circumstances. Vacant and unimproved land near some one of our large cities, which once might have been purchased for less than $5 per acre, might now, in many cases, be sold for more than $ 1,000 per acre. In such cases, it is not anything in the land itself, or upon it, which has brought about this great increase in the value, but the increase has been brought about solely by extraneous circumstances; and yet if the land were taken from the owner for public purposes, he would be entitled to recover from the public the full amount of its enhanced value. Or, if a part only were taken, and a part left, then he would be entitled to recover not only for the part taken but also'for the entire depreciation of this enhanced value of the part left.”
In the case of K. C. & S. W. Rld. Co. v. Ehret, 41 Kas. 23, 24, the following language is used:
“The value of land for farm use is a proper subject of inquiry in proceedings to condemn it for railway purposes. (Mich. Air Line Rly. Co. v. Barnes, 44 Mich. 223.) Indeed, the value of land for any use is a proper subject of inquiry in such cases, and anything may be shown which will tend to show a greater or less value, or which will tend in any manner to affect its value, and the owner may in all cases recover for its diminished value, taking into consideration any purpose for which it might be the most profitably used.”
In the case of K. C. & T. Rly. Co. v. Splitlog, 45 Kas. 72, 73, the following language is used :
“ In cases like this, where damages are limited to the value of the land appropriated, the proper inquiry is, What was the market value of such land, for any present use, in the condition in which it was immediately prior to the condemnation by the company ? Witnesses testifying as to the value of such land may consider any use to which the ground may be presently put, in forming their opinions as to its value; and its surroundings may be shown to the jury — its nearness to, or distance from, a town, village, or city, or other improvements that tend to affect its value; but the jury are to value the land as a whole, in the condition it was when taken. They have nothing to do with its subdivision into lots or blocks. They may consider its location, and the effect its location has upon its value as a whole; but the evidence as to how many lots it would make, and what they would sell for after the subdivision, is wholly improper.”
In the case of C. K. & W. Rld. Co. v. Willits, 45 Kas. 114, 115, the following language is used:
“ When the question of the value of real estate is in issue, the owner is entitled to show its market value for any purpose for which it might be the most advantageously used, and for which it would sell in the market for the highest price. [ Here follows a number of cases.] The question to be considered is really, What was the property worth immediately before the injury, if used for the purpose for which it could be the most advantageously used, and what it was worth in the same condition, except for the injury, immediately afterward, if it were used for the purpose for which it could be the most advantageously used?”
In the case of Montana Rly. Co. v. Warren, 6 Mont. 275, 284, (same case, 12 Pac. Rep. 641, 646,) the following language is used:
“Respondent was allowed to prove the value of the land for town-lot purposes. He had the right to do so, whether he had built upon it or not. As we have seen, the question is not to what use the land had been put. The owner has a right to obtain the market value of the land, based upon its availability for the most valuable purposes for which it can be used, whether or not he so used it.” •
The court cites a number of cases, and among them, Boom Co. v. Patterson, 98 U. S. 403, 404, et seq. In the case of Railway Co. v. Longworth, 30 Ohio St. 108, 111, the following language is used:
“In offering testimony on this issue, the owner was not limited to any preexisting use of the land. If it was of little value as a farm, or for common uses, and was of great value as mineral land or as a town-site, that fact might be shown, though it had never been so used.”
In the case of Hooker v. M. & W. Rld. Co., 62 Vt. 47, 48, 49, (same case, 19 Atl. Rep. 775,) the following language is used:
“ The rule is well established, that when a railroad corporation takes a portion of a parcel of land, under the right of eminent domain, for the construction of its railroad, it must pay the owner such a sum in money as will fairly compensate him for the damage he sustains. This sum is not to be determined by whether the owner, at the time of the taking, is using the parcel of land profitably or unprofitably, or not using it at all. His present use may not be the best use to which the parcel can be put, nor is he bound to continue such use, or part with a part thereof, valuing the whole by such use alone. He is entitled to receive such a sum as will fully compensate him for the lessened market value of the premises occasioned by such taking. Its market value depends not wholly upon the use to which the owner is putting it, but upon the use or uses for which it is available at the time it was taken. If it is available for a marble or granite quarry, a-coal or a gold mine, or for building lots rather than pasturage, although not used for any of these purposes, or left unused by the owner, the use to which it may be put, profitably, must of necessity enter into consideration in determining the market value of the premises.”
In the case of Washburn v. M. & L. W. Rld. Co., 59 Wis. 364, 378, (same case, 18 N. W. Rep. 328, 334; same case, 20 Am. & Eng. Rld. Cases, 225, 234,) the following language is used:
“In the Washburn case, the learned circuit judge instructed the jury, in substance, that if the present value of the lands taken was enhanced by reason of the adaptability thereof to some use to which they might be put in the future —as, for example, if land used only for farming purposes was so situated that it might be platted into city lots, and if its present value was thereby increased — such increased value was the proper basis for the assessment. We think this is a correct rule.”
In the case of Commissioners v. Dunlevy, 91 Ill. 49, 57, the following language is used:
“The fourth error relied upon we do not regard as well taken. If the property had a market value if subdivided into lots or blocks, we perceive no reason why such value might not be proven. The owners were entitled to receive just compensation for the property to be taken, and in determining this compensation the jury had the right to take into consideration each element that might enter into the true market value of the property. If the property, when subdivided into lots or blocks, was of greater value than it would be without such subdivision, it was proper to prove that fact. The real question was, what the property was actually worth for any and all purposes for which it might be used. If the property was mostly covered with water, and could not be made available as lot property, the petitioners could easily establish that fact. Besides, the jury were not likely to be misled by the character of evidence complained of, because they, under the statute, examined the property, and could see and determine for themselves whether the property was valuable when divided into lots and blocks.”
In the case of Sherman v. St. P. M. & M. Rly. Co., 30 Minn. 227, 229, (same case, 10 Am. & Eng. Rld. Cases, 193, 194,) the following language is used:
“The evidence shows that the 80-acre tract in controversy, though at the time occupied as a farm, was situated in the vicinity of the city of St.- Paul, and near certain public institutions. It appeared, on the cross-examination of the witnesses, that, in forming their estimates of the market value of the land, they had considered its adaptability for suburban residences. If such fact affected its market value at the time in question, it would properly enter into the consideration of the witnesses, and the jury also, in estimating such value.”
See, also, the following cases: Railroad Co. v. Cleary, (Penn.) 17 Atl. Rep. 468, 470; same case, 39 Am. & Eng. Rld. Cases, 132, 138; Railway Co. v. Ryan, 37 Minn. 38; same case, 30 Am. & Eng. Rld. Cases, 357.
We have examined every substantial question presented by counsel or involved in this case, and we do not think that the court below committed any material error. The testimony of the witness D. C. Millard was competent, although he may not have known “just exactly” where the railway entered and left the plaintiff’s land. He knew “very nearly” how the railway cut the plaintiff’s land. He was very well acquainted with the land. One answer of the witness probably should have been stricken out, but it certainly could not have done any harm to the defendant below, plaintiff in error, by permitting it to remain as a part of his testimony. There was certainly no error in permitting the map offered by the plaintiff below to be introduced in evidence. It was made by the county surveyor from actual measurements; besides, the jury viewed the premises themselves and knew the exact condition of the property in question, and knew just how the railway was constructed across it. See Railway Co. v. Longworth, 30 Ohio St. 108, 112; C. & E. Rld. Co. v. Blake, 116 Ill. 163, 167; same case, 4 N. E. Rep., 488, 491; C. R. Rly. Co. v. Moore, 124 Ill. 329; same case, 15 N. E. Rep. 764; Hartshorn v. B. C. R. & N. Rld. Co., 52 Iowa, 613.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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by
Simpson, C.:
Charles Bonsor was convicted by the district court of Clay county of the crime of rape, by carnally knowing one Annabel Duncan, a female person under the age of 18 years. He appeals to this court, and for cause of reversal urges the admission of incompetent evidence against him by the trial court. At the trial, and after all the evidence had been introduced, the appellant moved the court to require the state to elect upon which one act of intercourse it would rely for conviction. Thereupon the state elected to rely upon the offense which occurred at the bridge, in July, 1891. The appellant then moved the court to strike out all the evidence with reference to the occurrence in June, and the testimony of a witness named John I. McClelland, and all the evidence of Annabel Duncan relating to the preparation of the instrument, and all her testimony relating to certain drugs. This motion to exclude evidence was overruled. It appears from the record, that the prosecuting witness had testified to acts of sexual intercourse with Bonsor at different times and places. She also testified that Bonsor had made and furnished her an instrument with which to produce a miscarriage after they had discovered that she was pregnant. She also testified that he had furnished her, at different times, ergot, spirits of turpentine, oil of tansy, and cotton root, and instructed her how to use them, with a view to produce such a result. It seems from the record, that the witness became pregnant by an act of intercourse that occurred prior to the particular act at the bridge, relied upon by the state.
From this brief statement, it will be seen that the specific complaint made by the appellant is, that his motion ought to have been sustained because no testimony ought to have been admitted or considered unless it tended to prove directly the truth or falsity of the act of intercourse at the bridge. The precise contention, therefore, is, that all the evidence tending to show other acts of intercourse than the one under the bridge, or tending to show that the prosecuting witness was pregnant as the result of preceding acts of intercourse, and all evidence tending to show that the appellant furnished an instrument and various kinds of medicine calculated to produce an abortion, are violations of the rule stated in the specific complaint. Conceding to the fullest extent the correctness of the rule, the inquiry remains as to the effect of the evidence complained of. It is obvious that the evidence complained of might be used for other purposes than that of an effort to establish the commission of various acts of unlawful intercourse. In some cases repeated acts reinforce the probability that the particular act relied upon was committed, and are strongly corroborative of the statement of the prosecuting witness with respect to the particular act/
Illustrations of this can be found in the case of The State v. Coulter, 40 Kas. 87, where, in a trial on the charge of violating the prohibitory liquor law, it is claimed that the liquor alleged to have been sold was not intoxicating, it is competent to show sales other than that’ upon which the state relies for conviction, to establish the purpose for which the particular sale was made, and even to show sales included in counts of which the defendant had been acquitted. But this is a felony^ and there may be doubts as to the application of the rule in the prohibitory cases to the facte, in this case showing several different acts of intercourse/Without further comment on the motion to exclude the several acts, we are constrained to say, in deference to well-settled principles, that when the state elected to rely for conviction on the particular act of intercourse, the appellant had the right to have all the testimony excluded that did not tend to directly prove the truth lof the charge of intercourse under the bridge, with the possible exception above noted, that of several acts as tending to corroborate the prosecuting witness. If all of these things complained of could be connected with the act under the bridge, as preparation for the commission of the unlawful act, or as attempts to conceal its commission or consequences, they would be taken into consideration by the jury; but it is evident from the record that they were done for the purpose of concealing and avoiding the consequences of the commission of another and a prior unlawful act, and ought to have been excluded, on the motion of the appellant. They greatly tended, in our opinion, to influence the minds of the jury, and were undoubtedly greatly prejudicial in their effect*/
We recommend that the judgment of conviction be/reversed, and a new trial granted./
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
In April, 1907, the board of county commissioners of Cloud county appropriated the sum of $8000 for the purpose of removing and rebuilding a bridge across the Republican river, and afterward proceeded to let the work by contract to the Western Bridge and Construction Company. The plaintiff, who is the owner of a 640-acre farm in Cloud county, brought suit to enjoin the proceedings. The court refused to grant a temporary injunction, and the plaintiff brings the case here for review.
The facts are not disputed. The bridge in question is located upon a regularly established road, which leads north from the city of Concordia across the Republican river. The road is known as the “McCrary road,” and crosses the plaintiff’s farm. That portion of-plaintiff’s land where his buildings are located is an island, by reason of there being a branch of the Republican river south of his improvements which has its upper opening in the river above the bridge and connects again with the river below. The bridge therefore furnishes the only means of getting to and from that portion of his farm on which his improvements are located. It is alleged that its removal would cause irreparable injury to the plaintiff. The bridge was built in 1903, at a cost of $10,000. In the opinion of the board there is a necessity for its removal, on account of a change in the channel of the river, which has left it practically useless. The question of removing it and of appropriating money and issuing bonds to pay for the expense has never been submitted at any election to the voters of the county.
It is admitted that the board-is without power or authority in the premises except as conferred upon it by chapter 72 of the Laws of 1907, for the reason that the expense of removing the bridge and building a new one will exceed the sum which the board is allowed to appropriate for such purposes without a' vote of the people; that it is the intention of the board to remove the bridge to another road across the river a mile west of its present location; and that for the purpose of-meeting the expense thereof the commissioners intend to issue and sell the bonds of the county without submitting the proposition to the voters of the county at an election.
The sole contention is that the act of the legislature, under which the board is proceeding is unconstitutional. The title of the act reads as follows:
“An act to provide for the erection and maintenance of a bridge, and removal of a bridge, or bridges, across the Republican river, in the vicinity of Concordia, Cloud county, Kansas, and to authorize the board of county commissioners of said county to issue bonds to provide funds for payment of the same.”
The first section provides:
“That the- board of county commissioners of Cloud county, Kansas, be and are hereby authorized and empowered, in their discretion, to erect and maintain such bridge or bridges for the use of the public across the Republican river and its various channels and cut-offs-in the vicinity of the city of Concordia, Cloud county, Kansas, at such points as may be by said board of county commissioners selected; and to remove and relocate any bridge heretofore or hereafter erected by said county and which, by reason of changes in the channel of said river, has, in the opinion of said board,' become useless to the general public.” (Laws 1907, ch. 72; § 1.)
Section 2 empowers the board to issue the bonds of the county in such amount as may be necessary to meet the expense of such removal and erection, not exceeding the total amount of $15,000. Section 3 provides that the bonds shall not be sold for less than par, and .authorizes the registry of the bonds and provides for their payment and cancelation. Section 4 authorizes the county commissioners to levy a tax annually to pay the interest on the bonds and create a sinking-fund for their final redemption. Section 5 provides that none of the restrictions in any former statute shall apply to or in any way affect the issuance of bonds under this act.
The ground upon which the validity of the act is assailed is that it is a special act, and for that reason repugnant to the second clause of section 17 of article 2 of the constitution. By its express terms the act is special and applies to Cloud county alone. From 1859, when the constitution was adopted, until the amend-, ment of 1906 the language of section 17 of article 2 read as follows:
“All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable, no special law shall be enacted.” (Gen. Stat. 1901, § 135.)
In the early case of State of Kansas ex rel. Johnson v. Hitchcock, 1 Kan. 178, 81 Am. Dec. 503, this provision was construed and the rule declared that it was for the legislature to determine whether its purposes could or could not be expediently accomplished by a general law. That rule has never been departed' from hy the court in construing the second clause of the fore going provision. (Rambo v. Larrabee, 67 Kan. 634, 73 Pac. 915, and cases cited.) This constitutional limitation is based upon the theory that the state is a unit, to be governed thro.ughout its length and breadth on all subjects of common interest by the same laws, and that these laws should be general in their application and uniform in their operation. When it was- adopted the evil effects of special legislation enacted at the behest of private individuals or local communities were well understood and appreciated. The makers of the constitution were confronted with the experience of the older states, which had demonstrated that legislatures were wholly unable to withstand the constant demands for private grants of power and special privilege. The same year that our constitution was adopted the conditions in Illinois had reached such a stage that, in the language of the supreme court, the mischiefs of special legislation were “beyond recovery or remedy.” (Johnson v. Joliet and Chicago Railroad Company, 23 Ill. 202, 207.) In the case just cited Mr. Justice Breese said:
“It is too late now to make this objection, since, by the action of the general assembly under this clause, special acts have been so long the order of the day, and the ruling passion with every legislature which has convened under the constitution, until their acts of this description fill a huge and misshapen volume, and important and valuable rights [are] claimed under them. The clause has been wholly disregarded, and it would now produce far-spread ruin to declare such acts unconstitutional and void.” (Page 207.)
From time to time, in opinions written upon the subject, members of this court have expressed their individual dissent to the doctrine that the courts were bound by the legislative determination. In Elevator Co. v. Stewart, 50 Kan. 378, 32 Pac. 33, Mr. Justice Valentine said:
“It can make but very little difference what might be the views of the individual members of this court, as the court is now constituted, if the questions now pre sented by counsel were original questions presented to them for the first time now; for we think they have all been heretofore settled by numerous prior decisions of this court.” (Page 382.)
Mr. Justice Johnston, in the case of Eichholtz v. Martin, 53 Kan. 486, 36 Pac. 1064, used this language:
“The old question so often raised is again presented: Was it competent for the legislature to determine whether a general law could be made applicable, and whether a special law was necessary? If the question were a new one, the writer of this opinion would be inclined to the view that the courts should determine in each such case whether this constitutional restriction had been violated or not; but the question has been put at rest by a long series of decisions holding that the decision of the question is exclusively for the legislature, and not for the courts.” (Page 488.)
And in the same opinion the possibility of the adoption of an amendment was thus foreshadowed:
“From the multiplicity of special acts recently enacted, it appears that the constitutional limitation has little force; but, in view of the length of time that the rule has been established and followed, we are all of the opinion that the question should be regarded as- settled until the people shall .change the constitution, and declare that the decision of the lawmaking power in respect to the necessity for special laws is subject to judicial review.” (Page 488.)
As early as 1854 the same question which was presented to this court in State of Kansas ex rel. Johnson v. Hitchcock, 1 Kan. 178, was before the supreme court of Indiana, and exactly the opposite construction was placed upon their constitution. In the opinion in Thomas v. The Board of Commissioners, &c., 5 Ind. 4, it was said:
“It is, however, insisted that the legislature have decided a general law to be applicable to the case under consideration; that from this decision there is no appeal; and that, therefore, it is not competent for this court to decide upon the validity of the law in question. If that position be correct, the twenty-third section has no vitality; nor is there any reason why it should have a place in the constitution. It would impose no restriction upon the action of the legislature, nor confer any power which that body would not .possess, in the absence of such a provision. If that section permits the legislature to enact a special or local law ad libitum, in any case not enumerated, the principle involved would deprive this court of all authority to call in question the correctness of a legislative construction or its own powers under the constitution.
“We are not prepared to sanction this doctrine. The maxim ‘that parliament is omnipotent’ has no place in American jurisprudence. Whether the legislature have, in the case at bar, acted within the scope of their authority, is, in our opinion, a proper subject of judicial inquiry.” (Page 7.)
The Indiana court, however, receded from this position, and, in 1868, the decision in the case quoted from was expressly overruled in Gentile v. The State, 29 Ind. 409.
In 1878 the supreme court of New Jersey, construing a similar constitutional provision, declined to adopt the construction that the determination of the legislature to the effect that a general law could not be made applicable was binding upon the courts, and in the case of Pell v. Newark, 40 N. J. Law, 71, 29 Am. Rep. 266, used this language:
“It cannot be adopted by the courts without’abandoning one of the most important branches of jurisdiction committed to them by the constitution. That the legislature would act in good faith, must be presumed; purity of motive and a desire to keep within the prescribed limitations must be conceded to its members at all times; but that the people should have deliberately framed and imbedded in their organic law an amendment to prohibit special legislation where general laws might be passed, and, at the same- time, should have intended to put legislative action beyond review, where there was a clear infraction of the prohibition, is a proposition to which it seems impossible to assent. The mere form in which a law is enacted cannot be conclusive of the question.” (Page 81.)
The foregoing quotations indicate some of the many reasons that might have been urged in support of the other theory of constitutional construction if this court had seen fit to adopt that theory when the case of State of Kansas ex rel. Johnson v. Hitchcock, supra, was before it. More than one-half of the states of the Union have sought to curb the growing evils of special legislation by constitutional prohibitions. And the courts in construing provisions similar in language to our section 17 of article 2 as it read before the recent amendment have almost uniformly held it to be the province solely of the legislature to determine when a general law can be made applicable. Whether the- rule adopted in State of Kansas ex rel. Johnson v. Hitchcock was sanctioned by the better reason, it undoubtedly was supported by the weight of authority. In many of the states the constitutional limitation is coupled with a specific enumeration of subjects with respect to which special laws are expressly forbidden. This is true of the constitutions of all of the newer states, and the same plan has been -adopted in some of the older states by amendment. In New York the constitution enumerates thirteen subjects upon which the legislature is forbidden to pass a private or local bill. The constitution of the state of Washington prohibits special legislation upon eighteen subjects; that of North Dakota expressly names thirty-five, and in addition thereto the constitution reads (art. 2, § 70) :
“In all other cases where a general law can be made applicable, no special law shall be enacted; nor shall the legislative assembly indirectly enact such special or local law by the partial repeal of a general law; but laws repealing local or special acts may be passed.”
The constitution of Missouri was amended in 1875, and enumerates thirty-two subjects upon which special laws are prohibited, among which are the following:
“Regulating the affairs of counties, cities, townships, wards or school districts; changing the names of persons or places; changing the venue in civil or criminal cases; authorizing the laying out, opening, áltering or maintaining roads, highways, streets or alleys; relating to «ferries or bridges; . . . vacating roads, town plats, streets or alleys; . . ' . authorizing the adoption or legitimation of children; locating or changing county seats; incorporating cities, towns or villages, or changing their charters; . ... granting divorces; erecting new townships, or changing township lines, or the lines of school districts; creating offices, or prescribing the powers and duties of officers in counties, cities, townships, election or school districts; changing the law of descent or succession; regulating the practice or jurisdiction of, or changing the rules of evidence in, any judicial proceeding; . . . regulating the management of public schools, the building or repairing of school-houses, and the raising of money for such purposes ; fixing the rate of interest; affecting the estates of minors or persons under disability; . . . regulating labor, trade, mining or manufacturing; creating corporations, or amending, renewing, extending or explaining the charter thereof; granting to any corporation, association or individual any special or exclusive right, privilege or immunity, or to any corporation, association or individual the right to lay down a railroad track; declaring any named person of age; . . . giving effect to informal or invalid wills or deeds; . . . legalizing the unauthorized or invalid acts of any officer or agent. of the state, or of any county or municipality thereof.” (Const.'Mo., art. 4, § 53.)
In addition there.is the following general limitation:
“In all other cases where a general law can be made applicable, no local or special law shall be enacted; and whether a general law could have been made applicable in any case is hereby declared a judicial question, and as such shall be judicially determined, without regard to any legislative assertion on that subject.” (Const. Mo., art. 4, § 53.)
Minnesota amended her constitution in 1892, and special laws upon fifteen subjects are prohibited, and there is also a general limitation (Const. Minn., art. 4, § 33) couched in the identical language just quoted from the constitution of Missouri. The experience of those states which- have attempted thus to solve the problem has demonstrated that it is impossible to anticipate the various subjects upon which this kind of legislation will be demanded. The fact that the people have not attempted in our constitution to enumerate any of the specific subjects upon which the legislature shall not pass special laws has the effect necessarily to expand rather than to' limit- the scope of the provision as it reads.
Thé inherent vice of special laws is that they create preferences and establish irregularities. As an inevitable consequence their enactment leads to improvident and ill-considered legislation. The members whose particular constituents are not affected by a proposed special law become indifferent to its passage. It is customary, on the plea of legislative courtesy, not to interfere with the local bill of another member; and members are elected and reelected on account of their proficiency in procuring for their respective districts special privileges in the way of local or special laws. The time which the legislature would otherwise devote to the consideration of measures of public importance is frittered away in the granting of special favors to private or corporate interests or to local communities. Meanwhile, in place of a symmetrical body of statutory law on subjects of general and common interest to the whole people, we have a wilderness of special provisions whose operation extends no further than the boundaries of the particular school district or township or county to which they were made to apply. For performing the same services the sheriff or register of deeds or probate judge of one county receives an entirely different compensation from that received by the same officer of another county. The people of one community of the state are governed as to many subjects by laws wholly different from those which apply to other localities. Worse still, rights and privileges which should only result from the decree of a court of competent jurisdiction, after a full hearing and notice to all parties in interest, are conferred upon individuals and private corporations by special acts of the legislature without any pretense of investigation as to the merits or of notice to adverse parties. Commenting upon the evils of special legislation, Mr. Samuel P. Orth, in the Atlantic Monthly for January, 1906, used this language:
“The Romans recognized the distinction between private bills and laws. To them, special laws were privilegia or constitutionis privilegia. In England they used to say when a public bill was passed: Le roi le veult,— it is the king’s wish; and of a private measure: Soit fait comme il est désiré, — let it be granted as prayed for.
“Here is the gist- of the matter: a public law is_ a measure that affects the welfare of the state as a unit; a private law is one that provides an exception to the public rule. The one is an answer to a public need, the other an answer to a private prayer. When it acts upon a public bill, a legislature legislates; when it acts upon a private bill, it adjudicates. It passes from the function of a lawmaker to that of a judge. It is transformed from a tribune of the people into a justice shop for the seeker after special privilege.” (Page 69.)
It has been estimated that fully one-half of the laws enacted by the state legislatures in recent years have been special laws. Since 1859 the rapid growth of cities and towns has produced so many changes in social nnd economic conditions, and added so much to the complex necessities of local-communities, that the'demand upon legislatures for this species of class legislation has increased and the evil effects have multiplied. The legislature of 1905, which differed in this respect but little from its predecessors, passed no less than twentyrfive special acts relating to bridges, and thirty-five fixing the fees of officers in various counties and cities. Out of a total of 527 chapters, more than half are special acts. This does not include appropriation laws, which from their nature are inherently special. The first act passed by this legislature declared a certain young woman the adopted child and heir at law of certain persons. Others changed the names of individuals.' Many granted valuable rights and privileges to private cor porations. Hundreds granted special favors to municipal corporations, and many others conferred special privileges upon individuals. Such were the conditions which induced the people at the general election in 1906 to change the constitution by adopting the amendment to section 17 of article^ 2. The amendment was submitted by the legislature of 1905 (Laws 1905, ch. 543, § 1) and reads as follows, the amendatory part being italicized:
“All laws .of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state.”
The only change is to require the courts to determine, as a judicial question, whether in a given case this provision has been complied with by the legislature. The amendment adds nothiñg to the mandatory character of the provision. As it read originally it wás mandatory, and the validity of every law enacted by ihe legislature since the adoption of the constitution may be said to have depended upon a strict compliance with it. Under the construction adopted by the court, however, the way was open for the legislature to disregard both the spirit and the letter of the provision, and, as we have attempted to show, both have been honored more in the breach than in the observance. It is apparent that had this section as originally adopted provided that, the courts should determine the question, or had a different rule of construction been adopted by the court, many laws must necessarily have been declared invalid because repugnant to the provision.
Constitutions are the work, not of legislatures or of' the courts, but of the people. The people give, and the people take away, constitutional provisions. The adoption of the amendment must be regarded as the sober, second thought of the people upon the subject, and as an emphatic declaration of their determination to strike at the root of the evil and to rely upon the vigilance of the courts to restrain the action of the legislature in the future. The legislature no longer has the power of finally determining either that a proposed law will have uniform operation throughout the state or that a local condition exists which requires a special law. A cursory glance through the bulky volume of the Session Laws of the legislature of 1907 indicates that the adoption of the amendment has not served any good purpose unless the action of the courts shall give to it the effect which the people intended.
As observed, the provision has not been altered except to take from the legislature and give to the courts the final determination of the question whether a given act of the legislature is repugnant to its terms; it still recognizes the necessity for some special legislation; it is still a limitation and not a prohibition. Without some special laws state governments could not exist.An appropriation law, however general in its terms, is necessarily special. A law changing the boundaries of a judicial district is a special law, but one which may be required at any time, and to enact a general law upon the subject might accomplish more evil than good. Again, conditions sometimes arise and emergencies are created which require the enactment of special legislation. The mere mention of the subject in the constitution is a recognition of this necessity.
What is the attitude which the courts must take in respect to this subject since the amendment? In the quotations from the Missouri and Minnesota amendments, supra, it will be observed that they provide that the question “shall be judicially determined without regard to any legislative assertion on that subject,” but without the addition of these words the attitude of the courts in our opinion must be the same. It will be the duty of the courts to determine the question without reference to anything the legislature has declared, either in the act in question or in other acts.
It is obvious that the amendment has the effect to destroy the force of some of the former decisions of this court as precedents. The general canon of statutory construction which makes it the duty of Gourts to uphold the validity of a law if it is possible to do so can have no application in the future where an act is assailed as repugnant to this provision, however much that principle may apply to objections falling under other provisions of the constitution.
The constitution expressly forbids special laws where a general law can be made to apply. When a special law is passed, therefore, the legislature necessarily determines in the first instance that a general law cannot be made to apply. But their determination is not final. There is, of course, a presumption that public officers have discharged their duties properly, and every act of the legislature is presumed to be valid until there is a judicial determination to the contrary. But when a special law has been enacted and its validity is assailed in the courts the question is to be finally determined by the courts as a judicial question, uncontrolled by the determination of the legislature. The courts must determine the question as other purely judicial questions are determined, by reference to the nature of the subject; not .upon proof of facts or conditions, but upon the theory that judicial notice supplies the proof of what courts are bound to know, and that courts must be aware of those things which are within the common knowledge, observation and experience of men generally.
The first clause of this section of the constitution involves the question of classification, which it is apparent does not enter into the present case. Here there will doubtless remain in the future an ample field upon which lawyers may contend and courts and judges differ. It may be said in passing, however, that it will be the duty of the courts, when that question arises, to apply the established tests to determine whether an attempted classification by the legislature is a proper one, based upon some apparently natural reason suggested by necessity and occasioned by a real difference in the situation and circumstances of the class to which it applies, or whether it is arbitrary or capricious and excludes from its provisions some persons, localities or things to’which it would naturally apply except for its own limitations. .It may be said, however, that it will not become the duty of the courts to invent reasons for upholding a law which is repugnant to either clause of this provision.
It requires no argument or discussion to demonstrate that the special áct in question violates the constitution. To enact a general law on the subject, giving to boards of county commissioners in every county in the state authority to build or remove bridges, appropriate funds and issue bonds to meet the expense thereof under such restrictions and limitations upon their authority in the premises as the legislature may deem wise and salutary, would not require more than ordinary skill in the science of legislation.
We are not concluded either way by the fact that a, general law on the subject was in existence when a special act was passed. That fact, however, serves as an apt illustration of the adaptability of a general law upon the subject, and as an argument against the necessity for a special law. It is argued that the local conditions in Cloud county are such as to authorize an exception to be made and to require this special act. It appears that the bridge which the board was intending to remove was built in the first place by authority of a special law enacted in 1903 (Laws 1903, ch. 102); that the claims for a special law at that time were that the river had abandoned its channel and' left a former bridge useless. Everybody knows that the rivers of the Missouri valley frequently change their course and create conditions similar to those which existed in Cloud county in 1906. The experience of Cloud county in this respect differs from that of many other counties in the state, if at all, only in. the extent to which that county has suffered. From twenty-five to thirty special laws of this nature have been passed by almost every legislature for years, and practically the' same reasons urged for their enactment. No reason can be suggested why a general law upon the subject could not be made to apply, with a uniform operation throughout the state, wherever similar conditions are likely to arise. In fact, the only suggestion made as to why the general law already in existence authorizing the erection of bridges is not sufficient to meet the conditions is that in the opinion of the members of the board the voters would defeat any proposition submitted. This amounts to a confession that in the act in question there inhere the vices which the amendment was" designed to prevent. To hold that the reasons suggested are sufficient to warrant a special law would raise again' the lid of Pandora’s box only to permit its evils to escape. It follows, therefore, that the act must be declared void.
The judgment is reversed and the cause remanded for further proceedings. | [
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Per Curiam:
This action was brought by Arthur W. Davis against the Missouri, Kansas & Texas Railway Company for the negligent firing and burning of buildings adjacent to the railroad, for which the plaintiff recovered.
The sufficiency of the proof is challenged. There is testimony to the effect that the locomotive which was being operated near the buildings threw out sparks and coals from which fires were started at other places on the same day. A car was derailed in close proximity to the buildings, and in a strenuous effort to pull the car. back on the track the engine blew out a great many live coals and cinders, throwing them considerable distance, and while they were- falling the fire on the roof of the building was discovered.
There is abundant testimony that the fire that burned the buildings was started from the locomotive, and that it was negligently done. There is no good reason to complain of the instructions in regard to contributory negligence nor in regard to the burden of proof. The findings appear to be supported by the testimony and justify the verdict that was given.
No reason is seen for a reversal, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The first question presented for determination is one of fact: What was the usual place of residence of an Indian named M. Spitto at the time service of a summons was attempted? It is not dis puted that, for purposes of jurisdiction and the administration of the law, a-man must have a legal residence; that when a place of residence has once been established it will continue until another has been acquired; that to effect a change there must be an intent to abandon, an actual removal, and an intent to make the place to which the party has removed a residence in place of the one abandoned; that, prima facie, a man’s residence is at the place where his family resides, if he has one; that in determining the question of residence conduct is of greater evidential value than mere declarations of intent; and that when the question is doubtful it should be resolved in the light of the rights of creditors and other persons dealing with the party whose conduct is in question.
The bulk of the evidence introduced by the plaintiff relating to Spitto’s residence does nothing more than show absence from the place where his family lived. That which bears closely and directly upon the question is to be gathered piecemeal from the abstracts, and is conflicting. A careful sifting, however, in the light of the foregoing rules of law, brings out quite distinctly sufficient facts to sustain the conclusion of the trial court. It is not necessary to marshal those facts here. The finding being supported by substantial evidence, it will not be overturned.
The trial was before the court, without a jury. Considerable difficulty was experienced in arriving at essential facts. Frequently the trial judge found it necessary to interrogate the witnesses himself. Frequently hearsay evidence was admitted, and more came in by way of answers to proper questions, and error is assigned on this account. There is sufficient competent evidence to sustain the court’s finding. There is nothing to indicate that any improper evidence was considered by the court when it finally summed up the case, and under the well-known rule prejudice will not be presumed.
In the course of the presentation of the evidence a witness characterized a notice which he posted as one that a field of corn was taken on execution and was in his possession. This was not impropér. The purpose was not to prove the contents of a writing but to show what the witness did. Besides, it afterward fairly appeared that the notice was lost.
Finally, the question is presented, What conduct is sufficient to constitute a valid levy of execution upon a field of standing corn ? The corn belonged to M. Spitto. His wife, B. Spitto, was a defendant in the execution. Spitto himself was away. The officer to whom the execution was directed and delivered for service went to the neighborhood of the field, found Spitto’s wife, read the execution to her, and told her he was going to take the corn. He then went to the corn-field with a witness and posted at a public place at a comer of the field, where two public roads cross, a notice that the corn was taken on execution and was in his possession. No one but himself and the witness was at the field. ' He then proceeded to post notices of sale. The next day he returned, found a man living near the field, told him he had taken the com on execution and had charge of it, showed him one of the sale bills, and asked him if he would look after it and see that stock or anything else did not get into it, which the man agreed to do. The levy was duly indorsed on the writ.
It is necessary that an officer levying an execution upon personal property shall take such actual and exclusive possession as the nature of the property will permit; Constructive possession is not sufficient where actual possession is feasible. (Gardner v. National Bank, 57 Kan. 619, 47 Pac. 516.) But actual possession of a field of standing corn is not practicable, and the officer is not called upon to do that in reference to it which, but for the writ, would make him a trespasser. In the nature of things there cannot be a manual seizure or holding in manual custody of that kind of property. If there be no bystanders an outcry of seizure would be futile. Therefore it is only nec essary that the officer go to the premises, there do some open and unequivocal act which as nearly as practicable amounts to a seizure, and indorse the levy on the writ. In this case the notification of the only execution defendant accessible, the going to the property, the posting of the public notice of seizure and possession at a conspicuous place in the presence of a witness and the indorsement on the writ were all the officer could well do, and these acts constituted a valid levy. It is not essential that a guard should be stationed or kept over the field, but the purpose to execute the writ according to law and to negative any mere pen-and-ink aspect of the transaction is further evidenced by the subsequent conduct of the officer. The following decided cases listed in volume 17 of the Cyclopedia of Law and Procedure, at page 1088, discuss the precise question and show that the levy is clearly sustainable: Godfrey v. Brown, 86 Ill. 454; Davidson v. Waldron et al., 31 Ill. 120, 83 Am. Dec. 206; Barr, Sheriff, v. Cannon & Gunn, 69 Iowa, 20, 28 N. W. 413; Wilson v. Fowler, 88 Md. 601, 42 Atl. 201, 42 L. R. A. 849, 71 Am. St. Rep. 452; Bilby v. Hartman, 29 Mo. App. 125; Johnson v. Walker, 23 Neb. 736, 37 N. W. 639; Whipple v. Foot, 2 Johns. (N. Y.) *418, 2 Am. Dec. 442; State v. Porr, 20 N. C. 384, 34 Am. Dec. 387.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This suit was brought by defendant in error to foreclose a mortgage on an undivided one-tenth interest in a quarter-section of land in Shawnee county. Audley B. Tidball, plaintiff in error, filed an answer, to which the district court sustained a demurrer, and this ruling is alleged as error. The facts are as follow: On December 17, 1901, a partition suit was filed in the district court of Shawnee county to partition the land. William R. Young was a defendant in that action, and, on January 14, 1902, mortgaged his undivided interest in the land to Joseph B. Schmeltz. Afterward Young filed his answer and cross-petition in the partition suit. The decree of partition was rendered March 10, 1903. On March 20, 1903, Young quitclaimed his interest in the land to F. P. Dickson, who, in the meantime, had purchased the interests of the plaintiff and of some of the other parties in the partition suit. The commissioners reported that the land could not be partitioned, and appraised its value. The report was approved and the parties given ten days in which to elect whether to take the premises at the appraised value. Dickson then filed a motion stating that he had purchased certain interests in the land and asked to be permitted to take the premises at the appraised value. On May 11, 1903, the court approved an order confirming his election and providing that he should pay into court only the amount that would be due to the other cotenants, parties in the suit, and his proportion of the court costs, and directing the sheriff to execute a deed to him for the premises. After the sheriff’s deed had been executed Dickson conveyed the entire premises to the plaintiff in error. These are the facts substantially as set forth in the answer.
The plaintiff ,in error contends that his grantor, Dickson, was a purchaser at a judicial sale, and that the doctrine of lis pendens applies to the mortgage, because it was executed while the partition suit was pending. It is argued that the lien of the mortgage was destroyed by the sheriff’s deed in the partition suit. There are several reasons why these contentions cannot be sustained. .
It cannot, of course, be doubted that the mortgagee, took his mortgage with notice of the partition proceedings. The principle of lis pendens applies to partition suits as well as to other actions. A suit in partition is Us pendens, and if the decree orders the sale of the property the title of the purchaser is not affected by a transfer pendente lite. (21 A. & E. Encycl. of L. 641.)
It is true that a mortgage or conveyance given by one tenant in common of the property is binding only on his interest, and in this case, if there had been a judicial sale of the premises under a decree in partition to a stranger, the mortgage given by Young while the suit was pending would follow his interest only in the proceeds and would not affect the title of the purchaser at such sale. But there was no judicial sale in that sense. Dickson, who was the grantor of the plaintiff in error, simply purchased the interests of some of the parties to the partition suit. He became thereby a party to the suit himself, and was subrogated to their rights. ^ As a party to the suit he elected to take the property” at its appraised value. As was said in St. John v. Strauss, 60 Kan. 136, 55 Pac. 845:
“The title of a pendente lite purchaser is not necessarily void. As between the parties to the transfer the title is valid, but as to the pendente lite purchaser its validity depends entirely on the result or outcome of the pending litigation. While the purchaser must take notice of the facts contained in the record, he is only affected to the extent to which the judgment in the suit goes.” (Page 138.)
There are two kinds of sales provided for by the code in partition suits. Both take place when partition cannot be made and after the property has been valued and appraised. Where one or more of the parties elect to take the property at the appraisement the court may order the sheriff to make a deed to the parties so electing, on payment to the other parties of their proportion of the appraised value. (Gen. Stat. 1901, § 5112.) Again, where none of the parties elects to take the property at the valuation, or where several elect to take the property at the valuation in opposition to each other, the court may direct the sheriff to sell the land in the same manner as in sales of real estate on execution. (Gen. Stat. 1901, § 5113.) It is only in the latter case that a judicial sale is made. When a judicial sale takes place it must be preceded by a notice or advertisement required by the statute.
The title which the grantor of the plaintiff in error acquired by electing to take under the statute was only such title as the parties to the proceedings had in the premises. It was not acquired at a judicial sale. When he purchased the interest of Young he purchased subject to the prior mortgage executed by Young, which was on record. As to this undivided interest he stood in the shoes of the mortgagor. Young himself could not have defeated the mortgage by electing as one of the parties to take under the statute at the appraised value, and, if he could not, it must be clear that one who only acquired his rights cannot be permitted to do so. Without, therefore, departing in the slightest degree from the salutary rule of lis pendens, it is apparent that the mortgagee was only affected to the extent of the decree and the subsequent proceedings in the partition suit. (St. John v. Strauss, 60 Kan. 136, 55 Pac. 845.)
If the decree had been for actual partition there can be no doubt that the lien of the mortgage would have attached to the portion of the land set off to Young or his grantee in severalty. Equity will regard the substance and not the form of-the proceedings, and in this case, while there was the form of a decree and sale in partition, the effect of the sale was not such as to give to Dickson any greater rights in the interest of Young than he obtained by the quitclaim deed. Having purchased with notice of the lien of the mortgage, he was bound to see it paid out of the fund and discharged, instead of which he retains the money which should have been paid to discharge it. (Westervelt v. Haff, 2 Sandf. Ch. [N. Y.] 98.)
Plaintiff in error is not in a position which entitles him to set up the defense of usury, and the court properly sustained the demurrer to the second count of the answer. (Pritchett v. Mitchell, 17 Kan. 355, 22 Am. Rep. 287; In re Worth, 130 Fed. 927, 931.)
While the holder of the mortgage was bound by the proceedings In the partition suit, he was not obliged to set up his claim to any part of the fund paid into court under the facts in this case, and therefore the demurrer to the third count of the answer was rightly sustained.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.;
This suit was brought by Charles E. Gibson against J. S. Simmons for the foreclosure of a mortgage. The defense was the statute of limitations, and the only question involved is the construction to be placed upon the statute. The facts are agreed to, from which it appears that the mortgage was given by one Kuhn, July 1, 1887, upon land in Lane county. Soon after the mortgage was executed Kuhn conveyed the land to one Lord, who assumed the mortgage. The mortgage was due five years after date, and, unless the statute was tolled by Lord’s absence from the state, the suit was barred on July 1, 1897. The defendant, Simmons, is the owner of the land by a regular chain of conveyances, which includes the deed from Kuhn to Lord. It is agreed that when the cause of action accrued Lord was a non-resident of Kansás, and that he has resided outside the state since 1889; that he has been .absent from the state continuously from 1889 except as follows: he was present in the state and within the jurisdiction of the court for a period of one week in each of the years 1892, 1893, 1895, 1900, 1901 and 1903. He has not been actually present in the state since 1889 for a period of more than fifty days all told. The suit was commenced November 10, 1905.
Upon these facts the trial court rendered judgment for the defendant, on the ground that Lord was not shown to have been continuously absent from the state for a period of five years, but that, on the contrary, it appeared that he had been within the state and within the jurisdiction of the court at different times, none of which was more than five years apart. Plaintiff brings error.
Section 21 of the code of civil procedure (Gen. Stat. 1901, § 4449) reads as follows:
“If when a cause of action accrues against a person he be out of the state, . . . the period limited for the commencement of the action shall not begin to run until he comes into the state, . . . and if after the cause of action accrues he depart from the state, . . . the time of his absence . . . shall not be computed as any part of the period within which the action must be brought.”
The construction placed upon the first clause of the statute by the trial court, as we understand it, is that where a debtor is absent from the state when a cause of action accrues his return to the state would not only set the statute running in his favor but it would continue to run whether he remained in the state or not. We do not so construe the statute. In Mary E. Lane, Admr., v. The National Bank of the Metropolis, 6 Kan. 74, it was held that the language of this statute is clear and unambiguous, susceptible of but one meaning, which requires that the time of the debtor’s absence from the state shall be excluded in computing the period during which the statute runs. This construction was followed in Hoggett v. Emerson, 8 Kan. 262.
The purpose of the statute is beyond question to give to the plaintiff the full period of five years in which to commence his action; and in computing this period the statute plainly declares that the time of the debtor’s absence from the state shall not be computed as any part thereof. The cases provided for in the first clause are those where the defendant is absent from the state when the cause of action accrues. The second clause provides for a case where he departs from the state afterward. Under the first clause the statute begins to run when the debtor comes into the state. In the second it ceases to run until he returns to the state. It has been repeatedly declared by this court that under the peculiar language of our statute the question is not one of domicil but one of personal presence in the state. (Coale v. Campbell, 58 Kan. 480, 49 Pac. 604; Investment Co. v. Bergthold, 60 Kan. 813, 817, 58 Pac. 469; Williams v. Railway Co., 68 Kan. 17, 21, 74 Pac. 600, 64 L. R. A. 794, 104 Am. St. Rep. 377.) The plain meaning of the statute is that the defendant can avail himself of all the time he is present within the state, but absence from the state suspends the running of the statute, whether it occurs at the accruing of the action or afterward.
The case of Conlon v. Lanphear, 37 Kan. 431, 15 Pac. 600, was an action upon an open account. The defendant relied upon the three-year statute of limitation. It was held that he must establish the fact that prior to the commencement of the action he had been present in person within the state three years since the date of the last item of the account. In the following cases construing similar statutes it was expressly decided that before the debtor can set up the bar of the statute the time of his temporary presence in the state must aggregate the statutory period: Gans v. Frank, 36 Barb. (N. Y.) 320; Story v. Thompson, 36 Ill. App. 370; Campbell v. White, 22 Mich. 178; Whitcomb v. Keator, 59 Wis. 609, 18 N. W. 469; Montgomery v. Brown, 9 Tex. Civ. App. 127, 28 S. W. 834. (See, also, 25 Cyc. 1250, 1251; 19 A. & E. Encycl. of L. 232, and cases cited.)
The supreme court of Ohio, in 1890, had occasion to construe their statute of .limitations, the language of which is identical with ours. The court said:
“Where a defendant is out of the state when a cause of action accrues against him, our construction is that the statute does not begin to run until he comes into the state. .It then begins to run against him, and .if he remain in the state it will-be barred in the period limited, from that time. But if, after he comes into the state, he again depart from it, the running of the statute is suspended during his absence.” (Stanley v. Stanley, Admr. et al.. 47 Ohio St. 225, 229, 24 N. E. 493, 8 L. R. A. 333, 21 Am. St. Rep. 806.)
Among the numerous cases cited in support of this construction is Mary E. Lane, Admr., v. The National Bank of the Metropolis, 6 Kan. 74.
The case of Johnson v. Smith, 43 Mo. 499, is in point. It was there held that, as a mere temporary absence does not stop the running of the statute, so a mere temporary return, or “flying visits,” after the residence is changed, will not stop the running of the exception. And in Whittelsey v. Robert, 51 Mo. 120, it was held that where the debtor comes within the jurisdiction of the state, whether temporarily or not, and afterward departs from and resides out of the state, the time of his absence after such departure cannot be deemed or taken as any part of the time limited for the commencement of the action. To the same effect are Bassett v. Bassett, 55 Barb. (N. Y.) 505, construing a statute differing from ours only by including residence out of, as well as absence from, the state as exceptions to the period; Bell v. Lamprey, 57 N. H. 168; Bennett v. Cook, 43 N. Y. 537, 3 Am. Rep. 727; Wilson & Co. v. Daggett, 88 Tex. 375, 31 S. W. 618, 53 Am. St. Rep. 766.
The construction placed upon the statute by the trial court departs from the express language of the statute itself, which declares that the time of the debtor’s absence shall not be computed as any part of the period within which the action must be brought. It is agreed that Lord was absent from the state all of the time with the exception of an aggregate period which did not exceed fifty days. Therefore, when the action was commenced, but fifty days of the statutory period had run.
Where the debtor is out of the state when a cause of action accrues against him the statute does not begin to run until he comes into the state, and it will continue to run so long as he remains in the state; but if, after, he comes into the state, he again depart from it, the running of the statute ceases and remains suspended during his absence. In computing the period the debtor is only entitled to claim credit for the aggregate time he has been actually present within the state. This construction was placed upon the statute in Conlon v. Lanphear, 37 Kan. 431, 15 Pac. 600, and harmonizes with the other decisions of the court which we have cited as well as with reason and the weight of authority.
The contention that because the mortgage was barred as to Kuhn, the original maker, it is barred as to Lord, who assumed and agreed to pay it, cannot be upheld. By his assumption he became the debtor. (Rouse v. Bartholomew, 51 Kan. 425, 32 Pac. 1088.) If it were necessary in order to render Lord liable that the mortgagee elect by commencing an action to accept him in place of Kuhn, it can be said there was no opportunity for the mortgagee to exercise such an election, because Lord has been absent from the state since the cause of action accrued, with, the exception of his temporary visits.
The judgment is reversed and the cause remanded for further proceedings. | [
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Per Curiam:
This is an original proceeding in habeas corpus, brought by a mother to obtain the custody of her daughter, who is nine years old.
The uncontested findings of fact made by a commissioner appointed to take the evidence leave little to be decided. The findings are conclusive that the petitioner, Patsy Carter, has done nothing which would operate as a relinquishment or abandonment of her child to the respondents. The findings are further conclusive that the respondents knew very well where Patsy Carter lived at the time of the juvenile court proceedings. She was not notified, and therefore the proceedings are void for want of jurisdiction. (Laws 1905, ch. 190, § 5.) This being true, the probation officer was in no sense the child’s guardian; he could not bind her mother by his consent to an adoption, and the' adoption proceedings are utterly void.
It would seem that after respondent J. F. Botts had taken the child, .as he thought, permanently, had assumed all the obligations of a parent to her, had undertaken to guard and keep her, to furnish her a home, supply her needs, nourish her and cherish her, he ought not to have sworn that , she was “abandoned, destitute, homeless, and dependent upon the public for support,” branded her a waif and a stray, and procured a juvenile court judgment to that effect — especially when he knew a good home and a devoted mother were waiting for the child only a few miles away. Doubtless he is unlearned in the law and does not understand the character of the proceeding, but it was in fact an outrageous attempt to prostitute a beneficent statute to fraudulent uses.
There remains only the welfare of the child to be considered. The court knows of no better custodian for a little girl than her mother, when the mother is of high character, well situated to take care of the child, has proved her ability to rear a daughter, and bears for her children the full measure of a mother’s love. The search for some one to stand in loco parentis is very brief when a capable, worthy and affectionate mother, who has done nothing to impair her right, pleads for the privilege in respect to the child she bore. The better financial resources of the respondents cannot be allowed to turn the scale. Children born in mangers and in the humblest log cabins have been known to do well.
The initial misunderstanding between the contestants is greatly to be regretted. The respondents are accorded the highest praise in the findings of fact for their treatment of Ruth, and she would doubtless be safe with them. But the mother is shown to be equally well qualified to discharge every duty and to bear every responsibility, and in such cases the mother-right, which has never been surrendered or forfeited, must prevail. The custody of the child, Ruth Botts, is awarded to her mother, Patsy Carter, who is also awarded her costs. | [
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The opinion of the court was delivered by
Graves, J.:
It is claimed that the petition does not state facts sufficient to constitute a cause of action, and objection was made to the introduction of any evidence thereunder for that reason. The petition, taken as a whole, states quite clearly that Mrs. St. Clair went into possession of the land under an agreement with the owner to pay the taxes each year in consideration of the use of the premises; that she enjoyed the rents and profits from the property, neglected to pay the taxes, and then obtained a tax deed founded upon the very taxes which she agreed to pay. A tax deed ob tained under such circumstances is void — insufficient to start the statute of limitations. (Carithers v. Weaver, 7 Kan. 110; Krutz and Campbell v. Fisher, 8 Kan. 90; Duffitt v. Tuhan, 28 Kan. 292; Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846.)
It is also claimed that if any cause of action is stated in the petition it is one for relief- on the ground of fraud, which under section 18 of the civil code (Gen. Stat. 1901, § 4446) must be brought within two years after discovery of the fraud; that discovery of the fraud must be conclusively presumed from the record of the tax deed, which imparts constructive notice to all persons of its contents. This rule of constructive discovery, however, does not apply to cases of this kind. (Duffitt v. Tuhan, 28 Kan. 292; Doyle v. Doyle, 33 Kan. 721, 7 Pac. 615; Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846.) The true rule was well stated by Mr. Justice Mason in the case of Donaldson v. Jacobitz, supra, as follows:
“ ‘There is no constructive discovery through the mere record of a tax deed fraudulently taken’ by the agent of the owner.’ The fiduciáry relation between the parties in such case would be sufficient to relieve the owner from any obligation to watch the records for a tax deed to his agent, if the record of such a deed would otherwise be notice to him. Constructive discovery resulting merely from a statute, under such circumstances that the aggrieved person, although-actually diligent, has no reasonable opportunity to learn of the facts constituting the fraud, may not be sufficient to set the statute in operation, but constructive discovery resulting from his failure to be diligent when diligence would have disclosed the fraud practiced upon him will always do so.” (Page 247.)
In the present case, Arthur Craig was not in the state of Kansas. He had no reason to question the good faith and honesty of Mrs. St..Clair, or to think she would not faithfully comply with her contract. Ordinary diligence would not prompt him to suspect her of treachery toward him and watch the public records for confirmation of such suspicion. If, aS in the case of Black v. Black, 64 Kan. 689, 68 Pac. 662, or Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846, the party sought to be charged with a discovery of the fraud actually had the record for examination, or sustained such relations thereto that due diligence required an examination thereof, then he might well be held to have discovered that which he had a reasonable opportunity to see. A party cannot shut his eyes to things concerning his own interests which are within the range of ordinary observation and then plead ignorance thereof to the detriment of another. In this case, however, the plaintiff did not, and could not, see the record in question. He had no occasion to suspect that such a record existed, and therefore should not be held to have discovered the fraud of defendant St. Clair merely because she recorded her fraudulent tax deed.
The date when the tax deed was recorded does not appear in the abstract of the evidence nor in the pleadings, and the answer does not contain an affirmative plea of the statute of limitations. That question, therefore, is not properly within the issues presented; but the case seems to have been tried upon the theory that it was a material question, and we therefore thought best to consider it.
Complaint is made of the instructions given by the court to the jury, but we are unable to find material error in. any of them. The objections are mainly predicated upon the insufficiency of the petition, but since no objection was made to the petition except to prevent the introduction of any evidence thereunder its averments must be liberally construed. When thus construed it fully meets all the conditions contained in the instructions, and fairly presents the case to the jury. ’
The judgment of the district court is affirmed.
OPINION ON A MOTION TO EE TAX COSTS.
Per Curiam:
The motion to retax costs is allowed
with respect to the item of $13.85 for the record copied for the court, which will be remitted. It is disallowed with respect to the item of $2 for the opinion copied for the district court. (Gen. Stat. 1901, §§ 3030, 1904; Harrison v. Benefit Society, 61 Kan. 134.) | [
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Per Curiam:
The telegram introduced in evidence over the objection of the defendant confirmed the fact that Ward acted under the direction of Emma Anderson and Frank Pollock. Instruction No. 4 given by the court correctly interpreted the answer of the defendant, and was properly given. The jury were properly instructed in other respects, and no prejudicial error appears in refusing instructions asked. Under the pleadings and evidence the theory of partial restraint which the defendant invokes has no application. The jury evidently believed they had found all elements of damage under the single heading ■“deprived of his liberty” and for that reason did not specify items of damage under other heads. The invasion of the plaintiff’s rights was flagrant. The defendant has had a fair trial, the jury were lenient in apportioning the damages, and the judgment of the district court is affirmed. | [
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Per Curiam:
Errors are assigned on the giving and refusal of instructions, but the testimony is not preserved, its purport is not given, and there is not even a statement that there was testimony tending to support the plaintiff’s allegations in his petition. In such a case it cannot be said that an instruction, although abstractly correct, was applicable to the facts, nor that the giving of an incorrect one was prejudicial error. (Auld and Taylor v. Kimberlin, 7 Kan. 601; Town of Leroy v. McConnell, 8 Kan. 273; Comm’rs of Allen Co. v. Boyd, 31 Kan. 765, 3 Pac. 523; Stetler v. King, 43 Kan. 316, 23 Pac. 558; Insurance Co. v. Curry, 44 Kan. 741, 25 Pac. 221.)
Nor is the plaintiff in a position to complain that the jury failed to answer some special questions submitted at the instance of defendant. The jury brought in a general verdict, but in some way overlooked the special questions. Although the omission was patent, plaintiff did not ask that the jury be sent back and required to answer the questions nor object to the reception of the verdict before answers were made. He allowed the jury to he discharged without request or protest, and hence there is no basis for an assignment of error on that ground.
The judgment is affirmed. | [
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Per Curiam:
The appellant was convicted in the district court of Allen county of. a violation of the prohibitory liquor law. The appeal is based entirely on an alleged error of the court in denying the appellant’s motion for a continuance. The affidavit filed in support of the motion fails to show diligence in an effort to obtain the desired evidence. The evidence was desired to dispute a witness for the state whose name, it is to be presumed, was indorsed upon the information. Due diligence required the appellant to prepare, in advance of the trial, to rebut the evidence which such witness might give of a transaction which the appellant knew, as shown by the affidavit, occurred in the presence of the absent witness and the witness who testified for the state.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
This was a suit by Harry T. Scott to contest a will upon the ground that the testator was not of sound mind, and because of alleged alterations therein after it was signed and attested. The trial court found against the plaintiff and sustained the probate of the will. The plaintiff does not rely upon the first ground, but urges that the evidence proved the alterations as alleged, and that the court erred in refusing to set aside the probate.
The will was drawn by the testator, who was advanced in years and infirm, but had been a man of large business experience. He left two sons and a grandson, the plaintiff, who was the only child of the testator’s deceased daughter. The will indicates careful preparation, is good in form, apt in- expression, and clear in terms. It gives to each of his other grandchildren— the children of his two sons — ten shares of bank' stock, and to the plaintiff, Harry T. Scott, $5000. The seventh clause of his will, as probated, is as follows:
“I give and bequeath the remainder of my property and estate to my sons, E. W. Thrall and F. G. Thrall, in equal shares, and I desire said sons to be executors of my will, and they shall not be required to give bonds for the faithful performance of their duties.”
The plaintiff’s contention is that as originally written the words “and to my grandson H. T. Scott” were included in the above clause, between the words “Thrall” and “in,” so that it read “to my sons E. W. Thrall and F. G. Thrall, and to my grandson H. T. Scott, in equal shares,” etc., and that these words were erased after attestation. The original will shows an erasure, by scraping with a penknife or by the use of a rubber or otherwise, in the right-hand margin after the name “F. G. Thrall,” and between that line and the next one below, at the left hand, indicating that whatever words were erased had been interlined. A photograph of the will plainly showing an erasure at this point was in evidence and is in the record. Another photograph, with the words which it is claimed were erased written in where the erasure had been made, discloses the fact that such words fit the place where the mutilation appears; the capital letters and the loops below the line appear to fit into the erasure, which was carefully made. There is no doubt but these words might have been written into the place where the erasure occurred, in the same handwriting. The will is dated December 11, 1900, and is duly attested. A letter was found in an envelope with the will, in the handwriting of the testator, as follows:
“Eureka, June 1, 1903.
“To whom it may concern:
“I find in looking over my will to-day that through some oversight I failed to bequeath to my grandson, H. T. Scott, ten shares of First National Bank Stock, as I did to the rest of my grandchildren.
“It- is my wish that he shall have the said ten shares of bank stock, which I omitted to bequeath to him in my will. [Signed] G. E. Thrall.”
The contention of the plaintiff is that the words so claimed to have been interlined were written there before signing, that the erasure was made afterward, and that the will should be probated with that clause as originally written — which would give to the plaintiff one-third of the residuary estate — or that the whole will should be rej ected because of such spoliation. The defendants insist that it was properly probated in the condition in which it appeared, with the erasure, when offered for probate.
Both parties rely upon presumptions — the plaintiff upon the presumption that the interlined words, being harmonious with the context and free from suspicious circumstances, were written in before the signing and attestation (Neil, Adm’x, v. Case & Co., 25 Kan. 510, 37 Am. Rep. 259, 2 Cyc. 242; 1 Woerner, Law Admin., 2d ed., *98; 1 Jar. Wills, 6th ed., 152), and he claims it must be presumed that the erasure thereof was made after signing, because of the suspicious appearance of the instrument. (Thrashing Machine Co. v. Peterson, 51 Kan. 713, 33 Pac. 470; 2 Cyc. 234; Crossman et al. v. Crossman et al., 95 N. Y. 145; Matter of Barber, 99 Supr. Ct. 489, 37 N. Y. Supp. 235; 1 Jar. Wills, 6th ed., 130.) The defendants rely upon the presumption afforded by the probate of the will. The statute of wills containing the provisions for contesting wills in the district court after probate includes the following: “The order of the probate court shall be prima facie evidence on the trial of such action of the due attestation, execution and validity of the will." (Gen. Stat. 1901, § 7958. See, also, Rich v. Bowker, 25 Kan. 7.) The defendants also claim that it must have been presumed in the district court that both the interlineation — whatever it was — and the erasure were made after the will was signed. In support of this latter presumption it is suggested that the above letter of June 1, 1903, shows that the testator had omitted something from the will that he desired to have in it, and that he may have written in the words so interlined, and, finding that he could not complete the intended bequest in orderly connection with the context, erased what he had so written.
Findings of fact were not requested, and none were made except the general finding for the defendants. The plaintiff contends, however, that the burden, was upon the defendants to explain the erasure, and that without such explanatory evidence there was nothing to warrant the approval of clause 7 of the will as probated, and no evidence to support it, and that this court is not bound thereby, because it is not based on evidence. (U. P. Rly. Co. v. Shannon, 38 Kan. 476, 16 Pac. 836.)
In support of the presumptions claimed by the plaintiff testimony is referred to showing the friendly relations of the testator with this grandson, whom he appears to have held in high esteem, and his declarations that he had willed to each of his grandchildren ten shares of bank stock, and that he would have but three direct heirs, his two sons, F. G. Thrall and E'. W. Thrall, and his grandson, Harry T. Scott. Reference is also made to the fact that for a short period before the death of the testator, when he was under the guardianship of his sons, they had .the custody of the will, and produced it in the probate court in its present altered condition. Attention is also called to the age of the testator (seventy-nine years when the will was made), his weak physical condition afterward, and the improbability of his being able to make the erasure neatly, as it was done. On the other hand, it is shown that the deceased was a man of affairs, and other circumstances are referred to tending to show the necessary ability and skill.
Much has been written upon the subj ect of presumptions- in case of altered instruments and the burden of proof in connection therewith. It is difficult to formulate general rules. We must be content to apply settled principles to the particular facts in solving the given case. In Neil, Adm’x, v. Case & Co., 25 Kan. 510, 37 Am. Rep. 259, Mr. Chief Justice Horton said:
“It is impossible to fix a cast-iron rule to control in all eases; but certainly the second rule, and the one contended for by plaintiff in error, is not the true one. Clearly, in ordinary cases the alteration ought not to raise a presumption against the instrument, because -the law never presumes wrong. The question as to the ■time of the alteration is, in the last instance, one for •the jury. It is, like any other fact in the case, to be settled by the trier or triers of the facts. Generally, the instrument should be given in evidence, and fin a jury case should go to the jury, upon ordinary proof of its execution, leaving the parties to such explanatory evidence of the alteration as they may choose to offer. If there is neither intrinsic nor extrinsic evidence as to when the alteration was made, it is to be presumed, if any presumption is said to exist, that the alteration was made.before' or at the time of the execution of the instrument. Perhaps there might be cases when the alteration is attended with such manifest circumstances of suspicion that the court might refuse to allow the instrument to go before the jury until some explanation; but this case is not of that character.” (Page 516.)
Later, Mr. Justice Johnston stated the principle thus:
“The indications of subsequent alterations may be so obvious and suspicious in some cases as to bring discredit upon the instrument, and require the party offering the same to account for the apparent changes. But in the absence of suspicious circumstances, no presumption can be indulged against the genuineness of the instrument.” (Thrashing Machine Co. v. Peterson, 51 Kan. 713, 715, 33 Pac. 470.)
Other authorities on this subject are collated in a note appended to State v. Scott, 49 La. Ann. 253, in 36 L. R. A. 721, 739, and in volume 2 of the Cyclopedia of Law and Procedure, at page 233. In Wigmore on Evidence it is said:
“It used to be sometimes said that an alteration (i. e., by erasure or interlineation), if apparent on the face of an instrument, placed on the offering party the burden of explanation by evidence. It was also (but inconsistently) said by some that the alteration was to be presumed innocent, i. e., made before execution, unless particular circumstances of suspicion were apparent. For wills, again, it was sometimes maintained that, by exception, alterations should be presumed to have been made after execution. But the modern tendency is to avoid stating the problem in the form of such rules with exceptions, and, in particular, to abandon the so-called presumption against fraud and in favor of innocence, by which the alteration of a deed is presumed to have been made before execution; and to raise no genuine presumption in that regard. The first burden would thus be determined by the pleadings; and the question would usually go to the jury, upon all the evidence, whether the party claiming a specific tenor for the document has proved his case; although the second burden, i. e., of producing evidence, might be shifted by particular circumstances, under the ruling of .the judge as to a sufficiency of evidence or a presumption.” (4 Wig. Ev. § 2525.)
In this case the burden of proof was upon the plaintiff under the pleadings and by force of the statute. The will in the condition in which it was when probated was prima facie valid. This is not an appeal, but a suit to set aside the probate, and so there is no question here of the burden of proof such as may arise where an instrument bearing signs of an alteration is offered in evidence by the person claiming under it. The defendants did not offer the will to prove its existence and validity, and so the burden was not upon them, as plaintiff insists, to explain the erasure. The plaintiff offered it to show the alteration' as tending to prove its invalidity, the burden being upon him to produce such proof.
The vital question in the district court was whether the evidence of the plaintiff in support of his claim that the alteration had been made after the execution of the will was sufficient to overcome the prima facie effect of the probate, considered in connection with all the testimony. This was a question of fact, upon all the evidence, including the will itself, the letter referred to, the photographs and testimony explanatory thereof, the physical and mental condition of the testator, the nature and situation of his property, the natural claims of the legatees upon his bounty, his relations with and feelings toward them,- and all the circumstances appearing in the evidence, aided by all reasonable and proper presumptions. The conclusion of fact to be deduced from all this was for the court as the trier of the facts. (Railway Co. v. Geiser, 68 Kan. 281, 75 Pac. 68.) In this conflict of evidence the finding cannot be set aside by this court. (Weil & Co. v. Eckard, 87 Kan. 696, 15 Pac. 922; Hill v. Ehrlich, 66 Kan. 785, 71 Pac. 1127.)
The plaintiff complains of the exclusion of evidence. A witness for the plaintiff, expert in handwriting, who made photographs of the disputed parts of the will and made tracings of the words claimed to have been interlined and erased, testified that these words so exactly fitted- into the erasure that he believed they had been written there, and that the person who wrote the will wrote with a nervous, shaky hand. He was then asked this question: “Now, how could a person that had a nervous, shaky hand, in your opinion as an expert, have made that erasure?” An objection was sustained to this question. It will be observed that the witness was allowed to testify that the handwriting was nervous and unsteady, a matter about which his skill and experience in handwriting might have afforded special knowledge, but the question objected to related to the ability of the writer to control his hand in making the erasure, a matter about which one skilled in handwriting might have no special knowledge. The physical and mental condition of the testator was shown by the evidence, as well as his occupation, business experience, and habits, and from all this the court could determine as well as the witness whether the testator could make the erasure.
Another witness was asked if he could form an opinion whether the writing so erased was that of the testator. As the erasure only left a few mere dots of ink it seems unnecessary to comment on the ruling. Besides, the court appears to have been willing to hear a direct answer, but the witness insisted upon an explanation which the court would not hear, and so sustained the objection.
We find no error in the rulings complained of. The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This case turns upon the validity of a tax deed. Originally Lizzie Welch brought a suit against W. J. Pottorf, the Anthony Loan and Trust Company and Alonzo Whitcomb to quiet her title to a quarter-section of land as against the defendants. On a publication notice to defendants, judgment was rendered in favor of the plaintiff on April 25, 1904. In April, 1906, Charles E. Gibson, who claimed to have acquired the mortgage and interest formerly held by Whitcomb, moved the court to vacate the judgment quieting title, on the ground that Whitcomb was dead when the suit was brought and that no notice was given to the administrator of his estate. On this motion the judgment was vacated, and Gibson, being substituted for Whitcomb, set up the- mortgage which he held and asked for a foreclosure, and also asked that R. M. Free-land, who claimed an interest in- the land, be made a defendant. Freeland was brought in on June 10, 1906, and later he set up a tax deed, issued January 10, 1901, and recorded May 4, 1901. The trial court, holding that the tax deed was valid on its face and had been of record for more than five years, gave judgment in favor of Freeland. The disposition of the case, therefore, depends upon the validity of the tax deed.
An attack is made on the deed on the ground that the granting clause does not state that the consideration named therein was for the taxes for specific years. It is argued that the form outlined in the statute contemplates that the granting clause of a tax deed shall recite that the land was conveyed for the taxes of certain named years. The statutory form referred to is intended for the ordinary tax deed, and does not fit a conveyance for taxes upon a compromise made with the county commissioners under section 4 of chapter 110 of the Laws of 1898. (Gen. Stat. 1901, § 7672.) The deed in question is based upon a compromise sale, and the granting clause recites:
“Now, therefore, I, W. S. Manker, county clerk of the county aforesaid, for and in consideration of the sum of forty-six dollars, so paid to the treasurer of said county, as aforesaid, and in pursuance of the said!, resolution of said board, and by virtue of the statute-, in such case made and provided, have granted, bargained and sold, and by these presents do grant, bargain and sell, unto the said R. M. Freeland, of Scott county, Kansas, his heirs and assigns, the real property last hereinbefore .described, to have and to hold unto-him, the said R. M. Freeland, his heirs and assigns,, forever; subject, however, to all rights of redemption-provided by law.”
The body of the .deed recites the various steps taken. with a great deal of particularity, and shows that the land was offered at public sale in September, 1894, for the taxes of 1893, and that, as there were no bidders, the ¡and was bid off for the county for $14.23, the amount of the taxes, interest and costs then due and unpaid thereon; that the land had remained unredeemed more than three years from the time of sale and that no one had offered to purchase the same for the taxes; that the board of county commissioners, on July 2,1900, by resolution ordered the county treasurer to execute and the county clerk to assign a tax certificate to R. M. Freeland for the sum of $32.07, and, that sum being paid to the county treasurer on July 5, 1900, he executed a tax-sale certificate, which the county clerk assigned to Freeland. There is a further recital that Freeland paid the subsequent taxes on the land— $5.18 for 1899 and $6.06 for 1900 — and that, as a period of more than six months had elapsed since the assignment and neither the owner, his agent or attorney had offered to redeem the land, it was conveyed. The deed, as has been said, was under the compromise provision cited, and appears to measure up with all the essential requirements of that act. (Douglass v. Wilson, 31 Kan. 565, 3 Pac. 330.) The fact that the amount paid for the assignment may appear to be small, considering that it included the taxes extending from the year 1893 to 1899, is of little force, since the amount to be paid is wholly within the discretion of the county commissioners. They are at liberty to compromise, and to authorize an assignment for any sum less than the legal taxes and interest thereon, as in their judgment shall be for the best interests of the county.
It is also said that there is no recital that the compromise covered the taxes for the period extending from the sale to the compromise, but as it was recited that the land was bid off for the county, that it.had remained unredeemed, and that no one had offered to purchase it for the taxes up to the time of the compromise, it must be presumed that the coúnty treas urer, in obedience to law, entered up the taxes on the land for the subsequent years and until the compromise was made. In all cases where the five-year statute has run, at least it will be presumed that the county treasurer did his duty, and that so far as the naming of the years was material the compromise included the taxes for the years intervening between the sale and the compromise. The taxes for the years • subsequent to the compromise are definitely stated, leaving no uncertainty or cause for complaint as to them.
It is contended that the statute of limitations had not run in favor of the deed and that the court erred in holding that the deed was not open to attack for irregularities in the tax- proceeding. That depends upon when the action was brought against the tax-deed holder. As to some defendants it was commenced less than five years after the recording of the tax deed. It was originally commenced on February 10, 1904, and the deed, as we have- seen, was filed for record May 4, 1901. Freeland, the tax-deed holder, however, was not made a defendant and did not set up his claim under the deed until June, 1906, and as to him that was the time when the action was begun. (Insurance Co. v. Bullene, 51 Kan. 764, 33 Pac. 467.) He was then entitled to set forth every defense which he had, and in that connection to avail himself of the protection and presumptions which the lapse of five years gave to his tax deed.
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The opinion of the court was delivered by
Graves, J.:
On December 19, 1904, the Continental Casualty Company issued an accident-insurance policy to Ammazyah G. Colvin, of Newton. The beneficiary named in the policy was Mary M. Colvin, a sister of the insured. On January 9, 1905, the insured was accidentally injured, and died March 7, 1905. This action was commenced in the district court of Harvey county, December 21, 1906, by Mary M. Colvin, to recover the amount named in the policy. The petition was in the ordinary form, reciting the policy, the injury, its progress and results. The answer was practically a general denial. The principal controversy arises over the conditions of the policy, and a reference to them will more clearly indicate the contention of the parties. For that purpose the material parts are here given, as follow:
“In consideration of the warranties and agreements contained in the application herefor and the payment of premium as therein provided, does,■ on this 19th day of December, A. D. 1904, hereby insure Mr. Ammazyah G. Colvin (hereinafter called the insured) in Class Spl. of the company, as' a boiler-washer’s helper, in the principal sum of one thousand dollars, with weekly indemnity of $7.50, and, subject to the conditions hereinafter specified, promises to pay to the insured or to his beneficiary, Mary M. Colvin, his sister, indemnity as scheduled below, in the event that said insured, while this policy is in force, shall receive personal, bodily injury, which is effected directly and independently of all other causes through external, violent and purely accidental means, . . . and which causes at once total and continuous inability to engage in any labor or occupation, and provided that neither such injury nor inability is in consequence of, nor contributed to by, any bodily or mental defect, disease or infirmity of the insured..
“PART I. SPECIFIC INDEMNITY.
“If, within ninety days from the date of the accident, any one of the following losses shall result necessarily and solely from such injury, the company will pay, in lieu of any indemnity, and within ninety days from the furnishing of proof: (a) For loss of life, said principal sum. (5) For loss of both hands, or for loss of both feet, or ... of the entire sight of both eyes, said principal sum. (c) For loss of either hand ... or loss of either foot . . . one-half of said principal sum. (d) For the irrecoverable loss of the entire sight of one eye, one-quarter of said principal sum.”
“PART II. WEEKLY INDEMNITY.
“For loss of time. — If such injury shall not result in any of the losses scheduled in Part I, the company will pay for total loss of time necessarily resulting from injury, as before described, the weekly indemnity stated above for a' period of not exceeding one hundred and four weeks.
“PART III. SPECIAL INDEMNITIES.
“B. In any of the losses covered by this policy and specified in Parts I or II, . ... (4) where the loss is occasioned or contributed to in any way by erysipelas, blood-poisoning or infection; then, and in all cases referred to in this paragraph B of Part III, the amount payable shall be one-fourth of the amount which otherwise would be payable under this policy, anything- in this policy to the contrary notwithstanding, and subject otherwise to all the conditions in this policy contained;”
“PART V. INDEMNITY PAYMENTS.'
“Indemnity for loss of life is payable to the beneficiary hereinbefore named, if surviving; otherwise to the estate of the insured. All other indemnities are payable to the insured. Not more than one indemnity specified in Part I will be paid under this policy, and all weekly indemnity shall terminate upon the death of the insured.
“PART VI. NOTICE.
“Written notice of claim must be given by the insured, or by the beneficiary, to the company at its office from which this policy is issued, and be received there within fifteen days from the date of the accident causing the loss for which claim is made.”
On the face-fold of the back of the policy there was printed, in bold type, the following:
“IMPORTANT.
“In case of injury notify the company immediately. Read your policy. No claim will be entertained unless written notice of injury is given to the company within fifteen days from date of injury.”
In the absence of any question upon the subject, we assume as facts established in the case that the policy was in force when the insured died; that the injury was sustained accidentally, as alleged, and death followed on the date named; and that proofs of loss were properly furnished by the beneficiary. The facts material to the controversy, briefly summarized, are: That the injury was received from a fall which precipitated the insured against the edge of timbers, whereby he was bruised on the left side of his chest, causing external soreness and discoloration of the skin. The insured did not regard the injury as serious when it was received, although quité painful. At the time of the accident he was employed as a boiler-washer’s helper by the Atchison, Topeka & Santa Fe Railway Company, and, except for the loss of six days, he continued to' perform his duties as such employee, with the occasional assistance of his fellow servants, up to 'January 29. On January 31 he called a physician, Doctor Abbey, who pronounced the ailment to be pneumonia or pleurisy, and gave treatment therefor. On February 14, there being no improvement, another physician, Doctor Axtell, was called, who upon examination and consultation with Doctor Abbey decided that the former diagnosis was incorrect. The insured was removed to a hospital, where, on February 16, an operation was performed by which it was ascertained that the chest cavity contained a large accumulation of pus. This was liberated and the- cavity drained. The patient was very much exhausted,, however, and on March 7 he died.
The insurance company denies liability, on the-ground that the injury is one not within the terms of the policy for the reasons: First, it did not cause “at once total and continuous inability to engage in any labor or occupation”; second, the death of the insured was not caused “necessarily and solely from such injury”; third, notice in writing was not given to the company within fifteen days after the date of the injury; fourth, death was caused in part by infection, and therefore the amount of recovery was excessive.
The case was tried to a jury, and a general verdict was returned in favor of the beneficiary for the full amount of the policy. Judgment was entered on the verdict, a motion for a new trial was denied, and the insurance company brings the case here for review.
On the trial the insurance company requested several instructions which were refused; it submitted several special questions to be answered by the jury which the court withheld; it objected to the instructions given by the court, and otherwise raised the questions now insisted upon. It will be unnecessary to repeat the demurrers, instructions and various objections in de tail, as they simply constitute different methods by which these questions were presented.
The verdict is of course conclusive here as to any questions of fact properly presented to the jury. But the fundamental and controlling error urged against the district court consists of its erroneous interpretation of the policy, and its consequent misconception of the rights of the insurance company and of the duties of the beneficiary. The district court tried the case upon the theory that the propositions contended for by the insurance company had no application to the case, and for that reason they were overruled. This difference between court and counsel arises from their inability to agree upon the proper interpretation, of the insurance policy, and this question of interpretation is now. presented here for consideration.
In the construction of a written instrument it is well to keep in mind the purpose to be accomplished thereby, and attribute such meaning to its language and provisions as will harmonize with, and best effectuate, such purpose. The most casual examination of the policy in question indicates that it was intended to accomplish at least two purposes: First, to indemnify the insured for loss which might result to him during his life from accidental injuries received; and, second, to indemnify the beneficiary if the insured should lose his life on account of such an injury. The conditions and requirements of the policy were intended to apply to and carry out these two purposes, and a part of them were designed for one of such purposes only. The particular clauses (numbered for subsequent reference) of the policy involved in the construction insisted upon read:
(1) “In the event that said insured, while this policy is in force, shall receive personal, bodily injury, which is effected directly and independently of all other causes through external, violent and purely accidental means (suicide, sane or insane, not included'), and which causes at once total and continuous inability to engage in any labor or occupation.”
(2) “If, within ninety days from the date of the accident, any one of the following losses shall result necessarily and solely from such injury.”
(8) “Where the loss is oceásioned or contributed to in any way by erysipelas, blood-poisoning or infection; then, and in all cases referred to in this paragraph B. of Part III, the amount payable shall be one-fourth of the amount which otherwise would be payable under this policy.”
(4) “Written notice of claim must be given by the insured, of by the beneficiary, to the company at its office from which this policy is issued, and be received there within fifteen days from the date of the accident causing the loss for which claim is made.”
Where the insured is injured, and, claiming to be unable to follow his business, demands the stipulated weekly indemnity, it may be important for the insurer to be able to determine definitely the extent and duration of the disability, and for this purpose the degree of disability which creates liability upon the company might well be clearly and specifically defined in the contract; but in the case of death, caused solely by the injury, it is immaterial whether total disability occurred “at once” after the injury or not. It is insisted in argument that the words “such injury” at the close of clause 2 just quoted refer back to and include the whole of clause 1, and therefore the insurer cannot be liable to the beneficiary unless the death of the insured was preceded by an injury which “at once caused total and continuous inability to engage in any labor or occupation.” We'do not agree with this interpretation. It seems more in harmony with the objects of the policy and the liberal rules of construction which apply to instruments of this kind -to say that the words “such injury” refer back to the injury mentioned in clause 1 for the mere purpose of identification, and do not have the effect of uniting both sentences into one so as to make the provision, when considered as a whole, mean that before a beneficiary can.recover for the death of the insured there must have been an accidental injury which resulted both in immediate total inability and loss of life. Such does not seem to have been the intent of the parties. But even if the language is susceptible of such a construction, it does not follow that it ought to be adopted. The rule is practically universal that when the language of an accident policy is susceptible of different constructions that one must be adopted which is most beneficial to the insured. (1 Cyc. 243; Travelers’ Ins. Co. v. Murray, 16 Colo. 296, 26 Pac. 774, 25 Am. St. Rep. 267; Paul v. Travelers’ Ins. Co., 112 N. Y. 472, 20 N. E. 347, 3 L. R. A. 443, 8 Am. St. Rep. 758.)
In the case of Driskell v. Ins. Co., 117 Mo. App. 362, the court considered the effect of language practically the same as that in this policy, and it was said in the head-note to the case in 93 S. W. 880:
“Where an accident policy provided for the payment of a monthly sum if the insured were disabled, to the extent described, solely by external, violent, and accidental means, and also provided for a payment ‘if death should result solely from such injuries,’ the words ‘such injuries’ have no regard to the extent of disablement that immediately followed the injury.”
The case of Rorick v. Railway Officials’ & Employees’ Acc. Ass’n, 119 Fed. 63, 55 C. C. A. 369, is of like import. In that case the court said:
“An accident policy provided that the insurance thereunder should ‘extend only to physical bodily injury resulting in disability or death, . . . effected . . . solely by reason of and through external, violent, and accidental means, . . . which shall, independently of all other Causes, immediately, wholly, totally, and continuously from the date of the accident causing the injury disable the insured, and prevent him from doing and performing any work,’ etc. It further provided that there should be no liability for more than one of the losses specified, on payment for any one of which the policy should terminate, and the first loss specified was ‘loss of life occurring within ninety days from the date of the accident causing the fatal injury.’ Held, that such provisions could not be construed to exempt the insurer from liability for death resulting from an accidental injury within ninety days, because such accident did not produce ‘immediate, total, and continuous’ disability.” (Syllabus.)
The facts which make the insurance company liable to, the beneficiary are: First, the accidental injury to the insured; second, his death; third, that the death was “necessarily and solely” the result of such injury; and, fourth, that the death occurred within ninety days after the accident causing the injury. The condition of the insured between the time of the injury and his death is unimportant.
The case of Commercial Travelers v. Barnes, 72 Kan. 293, 80 Pac. 1020, has been cited and commented upon, but that action was prosecuted by the insured to recover indemnity for loss of time, while this was commenced by the beneficiary. The cases are so unlike in all essential matters that we are unable to see how that case can be useful here.
We think that an accidental injury which causes the death of the insured within ninety days thereafter gives a right of action to the beneficiary under the policy involved in this case, whether total disability followed the injury “at once” or not.' In opposition to this view we have been referred to the case of Continental Casualty Co. v. Wade (Tex. 1907), 105 S. W. 35. We have also read the dissenting opinion of Judge Gilbert in the case of Rorick v. Railway Officials’ & Employees’ Acc. Ass’n, 119 Fed. 63, 69, 55 C. C. A. 369. They both present that side of the question with clearness and force, but we are not inclined to follow them.
It is also contended that, if this right of action existed, it has been lost by failure to give notice as required by clause 4, above set out. No notice was given to the company until more than fifteen days after the insured was injured. If such notice was necessary, the failure to give it worked a forfeiture of all rights under the policy. It will be seen from clause '4 that notice of the claim must be given by the insured or by the beneficiary. These parties cannot both have a claim at the same time. It would be a useless thing for the beneficiary to give notice of a claim which is not in existence and which may never arise. Such a proceeding cannot be fairly assumed to have been contemplated by the parties, and it does not seem to be clearly expressed by the language of the policy. Until the death of the insured the beneficiary had no interest in, or . claim to, the policy, and no rights under its provisions. A claim in favor of the insured arose after he received the injury, and to preserve that claim it was incumbent upon him to give the required notice. But the beneficiary, during the life of the insured, had no claim against the company nor any right under the policy to be protected. The language of the clause evidently contemplates that this duty will in some cases rest upon the insured and in others upon the beneficiary, for they are both mentioned. In the case of the Western Commercial Travelers’ Ass’n v. Smith, 85 Fed. 401, 29 C. C. A. 223, 40 L. R. A. 653, it was said:
“When the provision 'in the event of any accident or injury for which any claim shall be made under this certificate, or in case -of death resulting therefrom, immediate notice shall be given,’ is read in the light of the events to which it refers, and of the relation of the parties to the contract to each other, its natural and obvious meaning is that in the event of any accident or injury which shall not result in death immediate notice of such accident or injury shall be given, or, in the case of death resulting from any such accident or injury, immediate notice of such death shall be given, because in the one case it is the injury, and in the other it is the death, which conditions the existence of the claim. The conclusion is that this certificate required no notice of the accident or injury to be given to the association by the beneficiary of the death loss before the death occurred, and the due notice which the court finds she gave immediately after the death was a sufficient compliance with this stipulation of the agreement.” (Page 403.)
In the case of Nax v. Travelers’ Ins. Co., 130 Fed. 985, it was said:
“This leaves the question of notice. It will be noted the policy provides for two distinct claims thereunder —one by the insured for weekly indemnity, the other by a named beneficiary in. the case of death. As no right or interest in the death benefit vested in the beneficiary until the death of the insured, it would seem that no duty in the way of notice was imposed on her until the death of the insured vested a claim in her against the insurer. Whatever, therefore, may have been the duty of the insured as to notice in order to secure indemnity, it is clear to us the notice the death beneficiary was to give was not a notice of the accident but of death.” (Page 986.)
In the case of Odd Fellows Fraternal Accident Ass’n v. Earl, 70 Fed. 16, 16 C. C. A. 596, the requirement of the policy as to notice was as follows:
“Written noticé shall be given the said association at Westfield, Mass., within ten days of the date of the accident and injury for which claim of indemnity or benefit is made, with full particulars thereof, including a statement of the time, place and cause of the accident, the nature of the injury, and the full name and address of the insured and beneficiary, and unless such notice and statement is received as aforesaid all claim to indemnity or benefit under this certificate shall be forfeited to the association.” (Page 19.)
The court said:
“The notice here called for is plainly to be given when a claim for indemnity by the certificate holder, or of benefit by the beneficiary, is extant. If the incapacity, contemporaneous in origin with the date of the accident, has resulted, or, if the mutilation or death has taken place, within the ten days, so that a claim for indemnity or benefit is outstanding, the ten days’ notice seems to be required. But we see in this language no express call for such a notice if no ‘claim of indemnity or benefit’ be then made.” (Page 19.)
In the case of Rorick v. Railway Officials’ & Em ployees’ Acc. Ass’n, 119 Fed. 63, 55 C. C. A. 369, it was said:
“An accident policy, insuring only against ‘physical bodily injury resulting in disability or death,’ contained a provision that ‘notice of the accident causing the disability or death shall be given in writing : . . within fifteen days from the date of the accident causing the disability or death, . . . and failure to give such notice within said time shall render void all claims under this policy.’ Held, that under such policy the time for giving notice did not commence to run until either disability or death resulted from an injury, until which time there was no ‘accident causing disability or death’ which brought the case within its terms, and- that where an insured received a blow on the head which did not cause disability at the time, and was regarded as a trivial injury, but which resulted a few days later in both disability and death, a notice given four days after his death and within ten days after his disability was in time.” (Syllabus.)
Notice was given by the beneficiary in this case within eight days after the- death of the insured.
It is further contended that the death of the insured was not caused solely by the injury, but resulted in part by infection, by pneumonia, and other causes which under the terms of the policy would prevent any recovery, or at least would reduce the amount which the beneficiary was entitled to recover to one-fourth of the principal sum named in the policy. An injury may be said to be the sole producing cause of death when it stands out as the predominating factor in the production of the result. It need not be so violent and virulent as necessarily and inevitably to produce the result regardless of all other circumstances and conditions. The active efficient cause that sets in motion a train of events which bring about a result without the intervention of any force from a new and independent source may be regarded as the direct and proximate cause. If the immediate cause of death is a disease produced wholly by an injury, the death must be attributable to the injury and not to the disease. In this case the insured was a strong young man,-in vigorous health at the time he received the injury, and his condition thereafter was clearly traceable to the injury as the effective and producing 'cause thereof. It must, therefore, be held that the injury was the sole cause of his death. The verdict is conclusive upon this question, even if it would otherwise be doubtful. The foregoing is sustained by the following authorities: Driskell v. Ins. Co., 117 Mo. App. 362, 93 S. W. 880; Western Commercial Travelers’ Ass’n v. Smith, 85 Fed. 401, 29 C. C. A. 223, 40 L. R. A. 653; Travelers’ Ins. Co. v. Melick, 65 Fed. 178, 12 C. C. A. 544, 27 L. R. A. 629; National Masonic Acc. Ass’n v. Shryock, 73 Fed. 774, 20 C. C. A. 3; Milwaukee, etc. Railway Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256; Travelers’ Ins. Co. v. Murray, 16 Colo. 296, 26 Pac. 774, 25 Am. St. Rep. 267.
As to the effect of infection upon the amount of recovery, there was evidence tending to show that it was a contributory cause of the death of the insured. The insurance company requested the district court to give an instruction to the jury upon this subject which reads:
“The jury are instructed that if from the preponderance of the evidence and under the instructions of this court they find the issues of this case for the plaintiff, and if they further believe from the preponderance of the evidence that the death of Ammazyah G. Colvin was occasioned or contributed to in any way by infection, then they should find their verdict for the plaintiff and ' assess the damages at $250, with interest thereon at the rate of' six per cent, per annum from July 6, 1905.”
This instruction was refused, and the only instruction given which might be said to refer to this subject was one which stated generally that before the plaintiff could recover it must be shown that the death of the insured resulted “necessarily and solely from such injury.” This was error. We have concluded, how ever, that the error was not prejudicial. The only evidence upon the question of infection was the testimony of the physicians who attended the insured during his-last sickness — Doctors Abbey and Axtell. They testified in substance that a large accumulation of pus was removed from the chest cavity of the insured; that such pus was caused from inflammation and the presence of pus-producing germs; that germs of this character abound throughout the system of every person— are inactive during good health, but when the internal tissues are weakened by an injury or otherwise, and become inflamed, then these germs attack the diseased parts and pus results. The process by which these germs come in contact with the inflamed tissue is, or may be, called infection. The inflammation and pus present in the chest cavity contributed to some extent to the death of the insured, and therefore these witnesses stated that infection contributed thereto. One of these witnesses stated, however, that the word “infection” was not ordinarily used to describe such a condition, and it was not a good word to usé for internal injuries, as it refers to bacteria, and is used with -reference to external injuries which become infected from the air. Among the special questions which the insurance company requested the court to submit to the-jury, two were given which, with their answers, read:
“ (13) Ques. Did the injury sustained by Ammazyah G. Colvin become infected? Ans. No.
“(14) Q. Was the death of Ammazyah G. Colvin occasioned or contributed to in any way by infection? A. No.”
These answers were fully justified by the testimony. The jury évidently believed that the word “infection,” as used in the policy, was not intended to apply to the condition of the insured. The evidence of Doctor Ax-tell fully sustains this conclusion. It must be assumed, therefore, that the word “infection,” as used in this policy, applies to external, and not internal, injuries. The refusal to give the instruction requested could not have been prejudicial, and is therefore unavailing as a ground of error.
On the trial the plaintiff offered in evidence the affidavits and other exhibits which constituted the proofs of loss made to the insurance company. They were admitted over the objections of the defendant. Request was then made to the court to limit by instruction the application of this evidence to the purpose for which it was offered (to show notice to the company, and that proper proofs were furnished in proper time), which request was denied. At the close of the testimony an instruction was requested which reads:
“The court instructs the jury that the written proof of loss which has been admitted in evidence in this case can be used by the plaintiff only for the purpose of tending to prove a compliance with the terms of the policy requiring proof of loss to be filed within a certain designated time, and that such proof of loss is not to be considered by the jury as evidence proving or tending to prove in behalf of the plaintiff any of the several matters and things at issue in this case, beyond the mere fact of such compliance.”
This was refused and nothing was given on that subject. This was error. (Commercial Travelers v. Barnes, 72 Kan. 306, 80 Pac. 1020, 82 Pac. 1099.) An examination of the proofs of loss offered, however, shows that the same persons mentioned therein were witnesses on the trial of the case, and testified to the same facts and were subject to cross-examination by the defendant. The jury received nothing from these proofs of loss different from what was given to them in the usual and proper manner. We therefore conclude that the error could not have been prejudicial, and hence it does not furnish a sufficient ground for reversal.
We have now considered all the questions presented. They have been raised in numerous ways — by demurrers to the petition and the evidence, objection to the introduction of any evidence under the petition, by requests for instructions to the jury, requests to submit special questions, and by a motion for a new trial; but in each instance the foregoing questions were relied upon.
Generally, it has been insisted that parties have the right to make such contracts as they desire, and, when made, each party should be held to a performance thereof. This is good law. It is also claimed that the policy in this case was prepared so that expert testimony could be dispensed with in actions brought to enforce its provisions. This object is commendable. But, on the other hand; insurance companies should prepare their policies with such clearness that their requirements and conditions will be readily understood by the ordinary reader who is expected to pay for and rely upon them for indemnity. The services of expert lawyers to impute to the language used a meaning not apparent to the common understanding would then be unnecessary also. Courts will not hasten to a construction which has the effect to .forfeit the rights of the insured, or his beneficiary, under a policy which has been promptly paid for out of his meager wages and relied upon as an indemnity to himself against injury and a protection to his beneficiary in case of death, but they will readily adopt a just and reasonable construction which will prevent such a result.
The judgment of the district court is affirmed. | [
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Per Curiam:
This is an action by the receivers of the Kirby Lumber Company to recover a' balance claimed to be due for'lumber sold to the Robert Garrett Lumber Company. The trial was by the court, and a judgment was rendered for the defendant. Plaintiffs bring error.
Defendant is engaged in the lumber business at Leavenworth, and, in January, 1904, made a contract to furnish to the Atchison, Topeka & Santa Fe Railway Company certain lumber to be used in the erection of a building at Topeka. The railroad company was to transport free all material hauled over “the Santa Fe, proper,” designating Chicago, 111., and Purcell, I. T., as the terminal points of the Santa Fe proper. Before the contract with the railroad company was closed defendant procured prices on the lumber from various wholesale lumber dealers, and on December 23, 1903, received a list of prices from Mr. Mucke, agent of the-Kirby Lumber Company. Again, on December 30, 1903, the president and general manager of the Robert Garrett Lumber Company met Mr. Mucke in Kansas City and he gave them another set of prices. In the same interview some discussion arose as to the location of the mills of the Kirby Lumber Company. Mr. Mucke stated that they were on the Santa Fe at Call, Tex. At the request of the Robert Garrett Lumber Company he wrote at the bottom of the offer at which the Kirby company would furnish the lumber the words, “f. o. b. mill, Santa Fe, proper.” The officers of defendant informed him that until they closed their contract with the railroad company they could do nothing further, but would let him know. He ceased to be in the employ of the Kirby company after January 1, 1904. On January 12 the Kirby company, having in its possession the statement of prices furnished by Mr. Mucke on December 23, but knowing nothing of any other figures, wrote the Eobert Garrett company as follows:
“We understand that you are in the market for a considerable bill of yellow pine and that Mr. Mucke, who was formerly in our employ, made you prices on same. We. would be very glad indeed if you would favor us with this bill, as we are quite sure that we are in a position to give you as good service as any one in the business. Would be pleased to hear from you.”
On January 15 defendant replied as follows:
“Eeferring to your favor of the 12th inst., will say that some days ago Mr. Mucke gave us the enclosed prices on the lumber bill which you speak of. We were not aware that he is not now in your employ and sent him an acceptance of his offer which we see has not reached you. You may begin shipping the timbers and joists first, and follow immediately with the balance of the bill. Kindly rush this through'for us as we are now ready for a part of the stock.”
Four days later defendant wired, as follows:
“Kirby Lbr. Co., Houston, Tex.:
“Wire if you accept Topeka order now ready for stock. Eobert Garrett Lumber Company.”
On the same day the Kirby company replied by wire, as follows: “Topeka order accepted and entered at our quotation through Mucke.” This was followed by a letter of same date from the Kirby company, as follows:
“We have just wired you as follows and now confirm — Topeka order accepted and entered at our quotation through Mucke.’ We have already mailed you carbon copy of our entry of your Topeka order showing prices at which we will bill you. These prices are per Mr. Mucke’s quotations to you and we cannot con-, sisteritly go any lower. If unsatisfactory do not fail to wire in time to prevent our making any shipment.”
On January 22, the contract, if it was a contract at all, was closed by the following telegram:
“Leavenworth, Kan., January 22, 1904. “Kirby Lumber Company, Houston:
“We accept Mucke prices, wire immediately when you will begin shipping.
Robert Garrett Lumber Company.”
The Kirby company then began shipping, and within the next sixty days furnished defendant nineteen cars of lumber, sending with each shipment a bill of lading which on its face stated that the shipment was “f. o. b. mill.” Defendant paid the freight, claiming afterward that this was merely an advancement on the purchase-price, and from time to time remitted payments to be aplied on the account. After the lumber had all been received defendant refused to pay the balance, deducting from the price the amount of freight from Call, Tex., to Purcell, I. T., which was $1413, the amount involved in this action. There was a stipulation as to some of the facts which reads as follows:
“That on December 30, 1903, A. G. Mucke, who was then and there the duly authorized agent of the Kirby Lumber Company, agreed with the Robert Garrett Lumber Company to furnish certain lumber at certain prices therein specified, and upon certain terms stated in said agreement, a copy of which is hereto attached, marked ‘Exhibit A,’ and made a part hereof. And that afterward, on or about January. 15, the Kirby Lumber Company accepted said order and agreed to deliver said lumber in accordance therewith.”
It is vigorously contended here by counsel for defendant that this stipulation settles for all time what the contract was, and this must have been the conclusion of the court. But this case was tried upon a different theory and as though this stipulation had not been made. Evidence was given without the slightest objection which established beyond any question that no contract or agreement was entered into at the time stated in the stipulation, if at all. It was practically conceded on the trial that if a contract was made it was made by the correspondence between the parties. This was not closed until January 22. No agreement was made on December 30, for the reason that, as stated by the president of the defendant company, the contract with the- railway company had not been closed. Whether any contract was made based upon the offer of December 30 depends upon whether the minds of the parties met. The facts with reference to the correspondence are not disputed; the conclusions to be drawn therefrom are. A stipulation of mere facts binds the parties unless it appears from the manner in which the case was tried that the stipulation was ignored; and the stipulation should not necessarily bind 1 the parties as to conclusions of law embraced therein J
If it could be said that there is any evidence in the record to support a finding that the minds of the parties met on January 22, or at any other time, and a contract was the result, then theré remained only the question of how the contract was to be construed; and the general finding of the court would be conclusive upon that question, and the inquiry as to the construction placed upon the stipulation by the court would be of no importance. But there is no such evidence. Defendant had in mind one thing, the Kirby company another. The latter was not even aware that defendant relied upon the prices given by Mr. Mucke on December 30 until after the lumber was furnished, and never had its attention called to the claim that it was to pay the freight to Purcell until it asked for settlement. It is difficult to believe that the Kirby company could have intended to sell lumber which the undisputed evidence shows was worth on the market $13 per thousand and accept $7 per thousand for it. But that is what it must have intended if a contract such as defendant claims was in fact made.
The mills of the Kirby company at Call, Tex., are on what is known in Texas everywhere as the Santa Fe. It is a part of the Santa Fe system, though technically the Gulf, Colorado & Santa Fe. Mr. Mucke testified that he never knew until this point arose that the Santa Fe proper ended at Purcell.
It is difficult to determine just what force was given by the court to the quoted portion of the stipulation of' facts, but from the vigor with which its conclusiveness is urged upon us it is possible it was considered controlling, notwithstanding the construction placed thereon by the parties themselves at the trial.. The stipulation is partly fact and partly law, and the conclusion to be drawn from the facts as they existed was one-of the main things to be determined as the case was. in fact tried. In view of its rather ambiguous wording, and the theory upon which the case was tried, the Kirby company should not be concluded by it. The judgment is therefore reversed and the cause remanded for another trial. | [
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The opinion of 'the court was delivered by
Burch, J.:
Many assignments of error are made and argued. Much testimony is quoted by both parties in support of their respective, positions upon which neither the referee nor the court made findings.. This court can consider the written instruments executed by the parties, other written documents, the pleadings, admissions and stipulations, and findings of fact. It can also consider the evidence upon any branch of the case which is all in depositions, as that procured by the plaintiff to explain his inability to produce the notes and mortgages which Carolus had assumed. But it cannot found its judgment upon oral testimony not reduced to findings of fact by the trial court. If the parties desired findings in respect to the matters covered by such testimony a request for further findings should have been made. (Shuler v. Lashhorn, 67 Kan. 694, 74 Pac. 264.) Therefore many matters debated in the briefs are not open to consideration. Of those properly reviewable only two need be discussed to dispose of the controversy.
The obligation, placed upon the plaintiff to procure a quitclaim deed from Margaret Over before he could have judgment on the second and third notes was wholly unwarranted. The contracts between the parties did not include the subject of the substitution of the tree claim for the Margaret Over tract within the consideration of any of the notes. The answer did not plead the failure of Carolus to deliver a quitclaim deed from Margaret Over as a failure of consideration .for the second and third notes, but, on the contrary, pleaded that circumstance in connection with the defense to the first note and then pleaded the omission to pay the Nebraska mortgages as the sole failure of the consideration for the other two notes. There is no finding that any feature of the tree-claim transaction, whereby Carolus became bound to procure a quitclaim deed from Margaret Over, affected any portion of the consideration of the notes, but, on the other hand, the finding quoted at length above is to the effect that the only consideration for the mill-property mortgage was the promise of Carolus to pay the Nebraska notes' and have the Nebraska mortgages released of record. The same finding is explicit upon the proposition that the plaintiff’s knowledge, when he bought the notes, extended to claimed defenses on account of the failure of Carolus to pay the several notes secured by the Nebraska mortgages. There being no finding that the plaintiff, when he bought the notes, knew of any de fense on account of the Over quitclaim-deed matter, this court can imply none; and upon the record as it stands the plaintiff was an innocent purchaser so far as that defense is concerned. Besides all this, in order to secure a credit on the first note for $1000, the difference in price between the tree claim and the Margaret Over tract, Van Valkenburgh waived his right to a quitclaim deed from Margaret Over and tendered the Johnson deeds unconditionally. The credit was allowed, Carolus had accepted one of the Johnson deeds, and that transaction was closed before the district court made its additional findings of fact. The judgment in favor of Margaret Over against Van Valkenburgh had no bearing upon any issue in the case determinable and undetermined at the time it was offered in evidence, and the plaintiff is entitled to judgment without procuring a quitclaim deed from Margaret Over.
The requirement that the plaintiff procure and deliver to Tremain R. Van Valkenburgh the Nebraska notes paid and canceled and the Nebraska mortgages satisfied of record was unwarranted. It may be premised that Carolus assumed the payment of the Nebraska mortgage indebtedness, although the writings into which the preliminary contract merged did not so provide; and it may be taken for granted that a contract to assume a mortgage indebtedness is a contract to pay it. But when Carolus agreed to pay the Nebraska notes and satisfy the Nebraska mortgages he became the principal obligor so far as the individuals of the Van Valkenburgh party were concerned, and upon payment of the notes was himself entitled to possession of the evidences of indebtedness. Any payment or payment through any means which would relieve the parties liable upon the notes of their obligations would satisfy the promise which Carolus gave, and if some grantee of one of the tracts of land should pay the mortgage indebtedness against it he would be entitled to possession of the paper. (Stiger et al. v. Bent, 111 Ill. 328.) In any event the contract of Carolus was to pay, not to produce evidence of payment, and the plaintiff could not be defeated because he did not bring into court paper which Carolus was not bound to turn over.
The burden was upon the defendants to prove failure of consideration. Proof by. them that they rested under an existing liability upon the Nebraska paper was indispensable to the defense. The plaintiff was not obliged to prove that anybody had paid the Nebraska notes and mortgages. When the court found that those notes and mortgages had been paid, but that there was no evidence to show who paid them, the defendants- had not sustained the burden they assumed by their pleadings. They had not shown they were still liable upon the paper, and the plaintiff was entitled to judgment.
It only remains to inquire if the plaintiff aided the defendants’ proof in his effort to show what had become of the paid notes and satisfied mortgages. Clearly he did not. The Lewis note and mortgage and a release of that mortgage were produced and tendered in court. In every other instance the nature of the transaction and the conduct of the parties were such as to indicate a positive purpose completely to extinguish both the debt and the lien. Any intention on. the part of the holders to assign, and of the persons paying to take, title to the securities is clearly negatived. After clearing his land and then selling it Conrad burned up the canceled notes and mortgages. Harrington is the only person who could claim any right against the defendants because of the payment he made, but he passed the instruments on to his grantee as'mere muniments of title. The Seymore note and mortgage were surrendered, canceled and filed for the very purpose of making a public record of the fact that the last spark of vitality in them had been quenched and to prevent them from being used again as live obligations.
If one person, not a mere interloper, but having an interest in the matter, pay the note and satisfy the mortgage of another the question whether he becomes an assignee of the note and mortgage is one of fact ánd intention of the parties. (Binford, Administrator, v. Adams, Administrator, et al., 104 Ind. 41, 3 N. E. 753, and authorities cited in the opinion.) If, however, overriding equities so require, one who satisfies an encumbrance upon his land may be subrogated to the rights of the lien-holder, or may be entitled to an equitable assignment of such rights. Subrogation and equitable assignment are acts of the law as distinguished from assignment by acts of parties.
“We must be careful to distinguish between an assignment of the mortgage debt, and a mere right of subrogation to the lien of the mortgage creditor. Assignment is the act of the parties, and depends generally upon intention. Where the nature of the transaction is such as imports a payment of the debt, and a consequent discharge of the mortgage, there can of course be no assignment, for the lien of the mortgage is extinguished by the payment. A mortgage creditor cannot be compelled to assign the debt and mortgage upon receiving payment. All that he can be required to do is to give an acquittance and release.
“The exception to this rule, if it can be so termed, is found in those cases where the party making the payment occupies the position of surety to the debt, or is in some way personally bound for its payment.
“Such a person may, in equity, require an assignment or transfer not only of the mortgage itself, but of all the securities held by the creditor, for his protection and indemnity; and although no such assignment or transfer is actually made, a court of equity will treat it as having been done.
“But if the party making the payment does not occupy the position of surety for the debt, as a general rule he cannot claim to be entitled as assignee unless by agreement with the creditor.
“Subrogation is, however, a very different thing from an assignment. It is the act of the law1, and the creature of a court of equity, depending not upon contract, but upon the principles of equity and justice. It presupposes an actual payment and satisfaction of the debt secured by the mortgage.
“But although the debt is paid and satisfied, a court of equity will keep alive the lien for the benefit of the party who made the payment, provided he as security for the debt ‘has such an interest in the land’ as entitles him to the benefit of the security given for its payment.” (Gatewood by, &c. v. Gatewood and Als., 75 Va. 407, 410.)
In this case all the evidence is opposed to the idea of an assignment or that liability on the part of the persons primarily bound was preserved. It imports payment of the debt and extinguishment of the lien, and the depositions are barren of any evidence that any occasion exists or may arise for the application of the doctrine of subrogation, or of equitable assignment, in favor of the persons who paid the Nebraska mortgages. In the case of Crippen v. Chappel, 35 Kan. 495, 11 Pac. 453, 57 Am. Rep. 187, it was said:
“It always requires something more than the mere payment of the debt in order to entitle the person paying the same to be substituted in the place of the original creditor. It requires an assignment, legal or equitable, from the original creditor, or an agreement or understanding on the part of the party liable to pay the debt, that the person furnishing the money to pay the same shall in effect become the creditor, or the person furnishing the money must furnish the same either because he is liable as surety or liable in some other secondary character, or for the purpose of saving or protecting some right or interest, or supposed right or interest, of his own.” (Page 499.)
Here we have the fact of payment by landowners, circumstances indicating that no substituted equitable rights exist, and no circumstances indicating that .subrogation, or equitable assignment, may ever need to be invoked. The court cannot speculate upon the subject. It cannot conjure up imaginary states of fact to aid an unproved defense of failure of consideration.
One or two matters urged in the defendants’ brief may be noticed. It is said that the referee found there had been a failure of consideration for the notes in suit and that his finding and conclusion upon the sub jeet were not disturbed. There is no finding by the referee that Carolus agreed to pay the Nebraska notes at once upon the conclusion of the trade or before they fell due. Nor is there any such finding by the court. Oral testimony to that effect is quoted, but for reasons already stated it cannot be considered. The referee found expressly that at the time of the trial before him it did not appear whether the notes were due or not. He further found that the plaintiff took the first note after maturity, and hence subject to the defense of failure of consideration. But he found that, after allowing the credit of $1000, the plaintiff was entitled to recover on the first note the sum of $35, being six months’ interest to July 1,1894, when the credit should have been made. Therefore the referee decided that the defense of failure of consideration had not been established at all. Otherwise he would have allowed no recovery on the first note, which the plaintiff took subject to the defense, if proved.
It is urged that both Lynds and Carolus were witnesses in the case, that both testified, and that neither of them offered evidence to show that either of them had paid the Nebraska obligations. They were not required to furnish any such evidence. On the face of the documents set up in the petition the plaintiff was entitled to judgment. He continued to be entitled to judgment unless the defendants proved a state of.facts destroying the right. At the time of the trial before the referee it was not shown that Carolus was in default. At the time of the trial before the court it was found that the notes were paid. Prima facie the word “paid” indicates that the obligation has been satisfied and the demand extinguished.
“But payment of a promissory note is not a contract; it is performance of the obligation arising out of the promise to pay. Any one of the several parties to a joint contract, or any one in his behalf and at his request, or with his consent, may perform the obligation ; and when' performance has been offered or made, and the money accepted, the obligation becomes ex tinguished. The parties to the contract are no longer bound to each other by the vinculum legis of right and duty. The duty being discharged the right ceases to exist.” (Moran v. Abbey, 63 Cal. 56, 61.)
The finding was entirely sufficient for the plaintiff. If the circumstances were such that the defendants were still liable in any way they were bound to prove the fact.
It is suggested that the plaintiff accepted the court’s conclusion and undertook to comply with the requirement which it virtually imposed. Conceding, but not deciding, that the plaintiff’s conduct is to be so construed, it is plain the purpose of the court was to be assured that defendant Van Valkenburgh and his associates were no longer subject to liability upon the Nebraska indebtedness. The plaintiff, perhaps, in the face of some obstruction, has fairly complied with the spirit of the order. The only object which the court could have had in view having been substantially attained, the plaintiff is entitled to judgment.
The plaintiff should recover the principal and interest of the second and third notes and a decree should be entered for the foreclosure of his mortgage as a first lien on the mill property. He should also recover the unpaid interest on the first note and the costs of the action. On the. findings of the referee defendant Van Valkenburgh is entitled to an offset, which should be allowed him, with interest.
The judgment of the district court is reversed, and the cause is remanded with instruction to enter judgment according to the foregoing views. | [
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Per Curiam:
John Focke sued for specific performance. The defendant, B. B. Ellison, pleaded that the contract of sale was conditional, and that he had the right to refund the advance payment and cancel the contract, and offered to do so. A motion to strike out parts of the answer was allowed. A demurrer was then sustained to the amended answer. Pending the suit the land which was the subject of the action was sold at a foreclosure sale, and the proceeds paid into court. When the demurrer was sustained the plaintiff presented a motion to have the fund so in court paid to him. This motion was heard, upon the appearance of parties, and allowed; the order recites that “the court having listened to the evidence and argument, . . . and being duly advised in the premises, sustains said motion.” The evidence is not contained in the record. The only exception taken on this hearing was a general exception to the order allowing the motion. . Ten days afterward' the defendant asked leave to answer, which was refused in an order reciting “which request, in consideration of the foregoing pleadings and statements by counsel, and in the absence of a reason being shown therefor, is by the court refused.” Thereupon judgment was entered for the plaintiff for costs.
The case apears to have been tried and the fund disposed of on a motion, instead of being tried upon pleadings in the usual course of practice, in which the fund would have been treated as the subject of the action, in place of the land. As the defendant did not object to the hearing of this motion we must treat him as consenting thereto, and in the absence of the evidence we must presume that the court decided the motion properly. The ruling iipon the demurrer cannot now be reviewed, for the merits of the action have been determined, and nothing remains to try.
' If the court erred in'rendering judgment for costs against the defendant it. cannot be considered here, the amount being-less than $100.
The judgment is affirmed. | [
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Per Curiam:
This action was brought to recover a balance of $915 due on an account for coal sold by Mayer to Hartman. The answer set up as a defense that the coal was sold by plaintiff in violation of an ordinance of the city of Kansas City, Kan., which made it unlawful for any person to engage in the business of a jobber or wholesale merchant without having paid an occupation tax.
The case was referred to a referee, who found that at the time of the transaction plaintiff was engaged in the business of selling coal at wholesale in Kansas City, Kan., and had not taken out a license to engage in business; that a city ordinance was in force at the time which required jobbers and dealers in coal at wholesale to take out a license and pay an occupation tax, and which made it unlawful to carry on any such business Without doing so. The findings further show that both parties reside in Kansas City, Kan.; that plaintiff was engaged in the business of selling coal at wholesale but had his principal office in Kansas City, Mo., and had no business office in Kansas City, Kan.; that the coal for the price of which the action was brought was sold in Kansas City, Kan., on orders solicited by plaintiff at defendant’s place of business in Kansas City, Kan., which orders were sent to plaintiff’s office in Kansas City, Mo., there entered upon the books of the company, and then forwarded to the mines in Kansas to be filled; that plaintiff by the contract of sale agreed to, and did, deliver the coal to defendant at the latter’s place of business, the freight thereon being paid by plaintiff. The coal wás shipped from Cherokee county, Kansas, to defendant’s coal-yard.
The referee found as conclusions of law that the business of plaintiff was not interstate commerce; that it was carried on in the city of Kansas City, Kan., in violation of the ordinance, and that by reason thereof plaintiff was not entitled to recover. Judgment was rendered on the report of the referee in favor of defendant, which plaintiff seeks to reverse.
There is a stipulation that the facts as found by the referee are correct. It is contended, however, that because it appears that the plaintiff had no office or place of business in Kansas City, Kan., and had his principal place of business in another city, the ordinance cannot affect his business or make it unlawful. But the findings are that he was engaged in business in Kansas City, Kan., as a wholesale dealer or jobber in coal, and, no matter where his office or principal place of business may have been, the facts as found by the referee and agreed to as correct bring him within the operation of the ordinance and make useless all speculation about what constitutes a sale or where it is in fact consummated.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J. :
Inez Jevons sued the Union Pacific Railroad Company for damages arising from her ejection from one of defendant’s trains. A demurrer to the plaintiff’s evidence was overruled, but after the evidence of both parties had been received the court peremptorily directed a verdict for the defendant, upon which judgment was rendered, from which the plaintiff now prosecutes error.
The evidence in behalf of the plaintiff was to this effect: On July 9, 1900, her father, W. P. Gates, applied to defendant’s ticket agent at Wakefield for two tickets from that point to Kansas City and return, one to be used by himself for the round trip, and the other to be used for passage to Kansas City by his wife and, for the return, by his daughter, the plaintiff. He was given two tickets, represented as being adapted to his purpose and good for use at any time within thirty days. Upon the face of each, with other matter, the following was printed :
“This ticket is sold at a reduced rate, and the purchaser accepts it subject to all the conditions on the face, back and going coupon hereof, and its acceptance and use is an acceptance of each and every of said conditions. If this ticket or contract bears no cancelation or stamp other than the ordinary dating stamp, the holder is entitled to a first-class passage at any time within thirty days from the date of sale stamped on the back hereof. If this ticket has ‘L’ punched on margin it is purchased and issued as a limited ticket, and it is expressly agreed that it will be used for passage by the purchaser within the date canceled by ‘L’ punch in margin, and will be void after said date, and will not be honored under any circumstances after the expiration of thirty days from date stamped on back.”
Figures on the margin representing the year 1900, the month of July, and the 5th day of the month, were perforated with a punch shaped like the letter “L.” On the back was a stamp reading : “Issued by the U. P. Railroad Go. July 9,1900. Wakefield, Kan.” The tickets, although not signed by any one, also bore the words :
“This ticket is not transferable, and if presented by any other than the original holder, whose signature is hereon, the conductor will take it up and collect full fare.”
Od these tickets Gates and his wife rode to Kansas City. The conductor to whom they were presented told Gates that they were dated wrong and that he would better have them fixed, but did not tell him that they would not answer for the return trip without change. Gates understood that what was meant was merely that as the tickets stood they must be used within thirty days from July 5, whereas they should have been good for thirty days from July 9 ; but, as he intended returning before the time would expire on either basis, he considered it unnecessary to have any correction made, and dismissed the matter from his mind. On July 17 Gates and the plaintiff took the defendant’s train at Kansas City for Wakefield. The plaintiff tendered one of the tickets to the conductor, who refused to honor it, and required her to leave the train. The evidence introduced by defendant tended to show that the “L” punch-marks on the tickets were the result of a mistake on the part of the agent' who sold them ; that he had punched a number of tickets in anticipation of a large demand on the Fourth of July, and by inadvertence sold two of these to Gates ; that the matter was fully explained to, and understood by, Gates at the time of his trip to Kansas Oity, and that he was instructed how to have the error corrected while at that place.
The defendant in error claims that the case falls within the rule announced in Rolfs v. Railway Co., 66 Kan. 272, 71 Pac. 526, that a railroad ticket containing a full and unambiguous printed contract is conclusive evidence to the train conductor to whom it is presented- of the rights of the passenger, and that consequently no action for damages will lie for a refusal to honor such a ticket after the expiration of the time limit fixed by its own terms, irrespective of any statements that may have been made by the company’s agent at the time of the sale of the ticket. The facts stated show that the present case is not within the letter or spirit of the rule stated. The ticket in question did not contain a plain and unambiguous contract; nor did it contain a contract that was ambiguous merely because of stating two different periods of limitation. The stamp upon the back of the ticket performed two functions — it not only fixed the date from which the thirty-day limit was to be computed, but it also showed, by the express declaration of the company issuing it, the time of its sale — July 9. If the theory of the company be correct, that the “L” punch in the margin plainly indicated that the ticket was of no validity unless presented prior to July 5, then no contract whatever was expressed, for an undertaking made on July 9 to carry a passenger prior to July 5 cannot be called a contract. If the plaintiff, by the terms of the ticket, be precluded from recovery, it is not because her ticket showed a different contract from that which she was seeking to have enforced, but because it must be said that the ticket, while attempting to state a contract, was a nullity on its face ; that she was bound to take notice of that fact, and that, therefore, she could not base a right of carriage upon it.
We do not think the plaintiff should be required to suppose that the ticket issued by the railway company was meaningless. One possible grammatical construction of the sentence relating to the effect of the punch-marks would make their presence an indication that the ticket could not be used under any circumstances after the expiration of thirty days from the date of its issuance ; but she was not bound to find a meaning for them. Since they could not possibly have been intended to forbid the use after July 5 of a ticket issued July 9, she was justified in regarding them as having been made by inadvertence or without definite purpose, or as having been waived or abandoned. So with the conductor to whom the ticket was presented. If he gave credence to the dating stamp — and he was bound to do so since it was genuine — he must have known that the ticket could not have expired July 5, and that whatever might be the explanation of the punch-marks they could not have been deliberately made with the purpose of limiting its use to that date. It cannot be said that he was required to decide between two inconsistent dates ; that both could not be correct, and that there was no sufficient reason for his crediting the one indicated by the stamp rather than the one indicated by the punch-mark ; for, as already suggested, the words stamped on the back of the ticket, in addition to forming a part of the contract, constituted a plain, unambiguous, unequivocal declaration of the date on which it was issued. Granting that the language printed on the face of the ticket, aided by the marks of the “L” punch, was as unequivocal a declaration that the ticket would be void after July 5, the issuance of the ticket at a later date was conclusive evidence that such declaration had been abandoned. Assuming the facts to be as claimed by plaintiff, the conductor should have acted upon such evidence and honored the ticket. In this respect the situation is somewhat similar to one that arose in Laird v. Traction Co., Appellant, 166 Pa. St. 4. A street-railroad transfer-slip recited that it was good for but ten minutes after being punched, the time being indicated by the position of the punch-mark. When offered for passage it bore two punch-marks, and it was held that the conductor was bound to recognize that designating the later hour.
In Trice v. Chesapeake & O. Ry. Co., 40 W. Va. 271, 21 S. E. 1022, a mileage ticket was sold March 4,190S, but by mistake was dated March 4, 1902. It recited that it was good for a year from its date, but also that it expired March 4, 1904. It was presented for passage in April, 1903, and refused. The holder was ejected, and brought action for damages. For the reasons already stated the situation was less favorable than that here presented to the claim of the passenger. The court said:
“In the McKay case, 34 W. Va. 65, 11 S. E. 737, 9 L. R. A. 132, 26 Am. St. Rep. 913, we held that where a railroad company agreed to sell a ticket for passage between certain points, but by mistake wrote the ticket for passage to other points, the passenger could not ask passage where the ticket did not carry him, it being apparently not good for the passage demanded; and the passenger leaving the car, at the command of the conductor, but without force, could not sue in tort, but must sue for the breach of contract by the company in agreeing to carry him that passage, and failing therein by not giving him the ticket contracted for. That case was confessedly somewhat close, but I still think it was rightly decided, and sustained by cases of eminent authority. There the ticket showed nothing for, and all against, the right of the passenger to ride, which he claimed, and was transparently not good — a mere blank or nullity, as to the ride claimed ; while here it is apparently good, more apparently good than bad, and turning out in the end to be good. There is a difference, though it cost reflection to see it. In this case I go upon the theory, which I think is correct, that the plaintiff’s grievance is not a breach of contract in agreeing to sell him a ticket for a certain passage, and giving him a wrong ticket, as in the McKay case, but in the fact that he had a ticket entitling him to go to Huntington as he demanded, and in its wrongful rejection and his expulsion. He had a ticket turning out ultimately to have been good from the start. The confusion as to date arising from the agent’s error, without fault in the passenger, does not change its validity.” (Page 275.)
A further argument is made that the case was' rightly taken from the jury because it was shown beyond question that Gates, during the trip to Kansas City, was fully advised of the necessity for having the ticket corrected before being presented for the return passage. Strong evidence to that effect was presented by the defendant, some of which was not denied in express terms, if at all; but this was offered in support of an affirmative defense, the burden of proving which was upon defendant, and it cannot be said, as a matter of law, that the jury were bound to accept the evidence as true, even if not contradicted. (Railway Co. v. Geiser, 68 Kan. 281, 75 Pac. 68.)
A final contention of defendant in error is that the plaintiff was not entitled to use the ticket in question by reason of the provision, already quoted in full, as to its being non-transferable; but no name, of the holder appeared upon the ticket, and, according to the plaintiff’s evidence, it was sold for the express purpose of being used by her for the passage from Kansas City to Wakefield. Under these circumstances it cannot be said that the provision of the contract referred to was violated, notwithstanding the fact that the ticket had been used by another person for the trip from Wakefield to Kansas City. The ticket was issued as much for plaintiff’s use as for that of any one else.
The judgment is reversed, and a new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
The plaintiffs brought this action, upon a promissory note, and to foreclose a real-estate mortgage on three separate tracts of land. In addition to the payee they made certain parties defendants whom for brevity we shall call the Muse heirs. Service was obtained upon the latter by publication, and judgment was rendered against them by default. Afterward they applied for permission to be let in to defend as to one of the tracts of land included in the mortgage, and the judgment and order of sale were set aside and they were permitted to answer.
The note and mortgage sued on were executed March 24, 1888, for $3000, by John 0. Douglass to J. W. Spratley. Afterward Spratley died, and his executors sold the note to plaintiff Greene. The Muse heirs, in their answer, claimed to be the owners of one of the tracts of land included in the mortgage given by Douglass. After judgment by default against the Muse heirs, and the issuance of an order of sale, the plaintiff Greene released one of the tracts of land from his mortgage. The Muse heirs made four contentions : (1) That they were the owners of one of the tracts of land included in the mortgage ; (2) that the amount due Greene from Douglass was only $2850; (3) that the judgment should be credited with the value of the land released from the judgment lien by Greene ; (4) that the other tract of land in which they had no interest should be sold, and the proceeds applied in payment of the balance of Greene’s judgment, before an order of sale should issue for the sale of the tract claimed by them.
The court made special findings of fact and conclusions of law. It found there was due Greene and Douglass $2850; that Greene knew of the claim of the Muse heirs when he released the tract of land from his lien; that on January 15, 1902, after the rendition of the judgment, Greene, at the request of Douglass, released from his judgment lien one tract of land of the value of $2850; that such judgment should be credited with an amount equal to the value of the land so released, to wit, $2850. It was adjudged that an order of sale issue for the sale of the tract of land not claimed by the Muse heirs, and in case it was insufficient to pay the balance of such judgment in the sum of $459.89, the tract claimed by the Muse heirs should then be sold to pay the balance. From this judgment the plaintiffs prosecute error.
It is first contended that the court erred in finding only $2850 due Greene on his mortgage. We think this finding is amply sustained by the evidence — even by the testimony of Greene himself.
It is also contended that the finding that Greene knew when he released the tract of land from his judgment lien that the Muse heirs were the owners of, or had an interest in, one of the other tracts of land covered by. the mortgage has no support in the evidence. The record discloses that after Douglass executed the mortgage in question R. W. P. Muse, through whom the Muse heirs claimed, secured title from D. L. Lakin, and immediately went into the possession thereof; that afterward Douglass commenced an action in ejectment against Muse, which terminated December 23, 1901, in a final judgment in favor of Muse. The judgment is recited in the record in the following language :
“That said R. W. P. Muse was in possession of the land at the beginning of this action and remained the owner thereof and in possession until the time of his death, and that upon his death the defendants herein [naming them] became the owners of said land as the heirs at law of said R. W. P. Muse, deceased, and said defendants are now the owners of said land and in posssession thereof, and their said title in fee and their right to the possession thereof is hereby quieted and confirmed, and the plaintiffs’ claim thereto is held for naught.”
The plaintiffs made the Muse heirs parties defendants in their foreclosure action, and set out in the petition that they claimed some interest in said land adverse to them, and asked to have said interest, whatever it might be, declared inferior to Greene’s mortgage lien. It can hardly be contended, in view of these'facts, that the court was not justified in finding that Greene had knowledge of the claim of the Muse heirs to this tract of land.
The final and last contention is that, conceding that the Muse heirs were the owners of the tract claimed by them, and that Greene knew they were the owners when he released the land from his judgment lien, the court had no power or authority in this class of actions to make the order and render the judgment which it did.
It is conceded by all parties that at the time Douglass gave the mortgage in question he had some interest in the real estate now claimed by the Muse heirs. Subsequently, however, that interest, whatever it may have been, was, by the judgment of' a court of competent jurisdiction, in an action between Douglass and Muse, devested, and the entire title quieted in Muse, or the Muse heirs. When the trial in the present action was held, Douglass had no interest whatever in the tract claimed by the Muse heirs; they held the entire title, subject, hbwever, to the mortgage lien placed thereon by Douglass. Douglass cannot complain that the court required the judg ment against him to be satisfied by the sale of his property, instead of the sale of property belonging to the Muse heirs, nor can Greene complain of the order of the court directing the sale of the several tracts of land included in his mortgage the title to which is still in the name of the mortgagor, before proceeding to sell that portion included in his mortgage the title to which his mortgagor lost since the execution of the mortgage, and which is now in other persons. The order of the court does not detract from Greene’s security, but preserves it, to be applied so far as necessary, to the satisfaction of his mortgage lien.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Cunningham, J. :
The defendant in error sought to enjoin the plaintiffs in error from mining and carrying away coal in a place under a certain described tract of land, and asked an accounting and judgment for the value of coal by them already mined and carried away.
Both parties claim the ownership of the coal in question, and their rights turn upon the construction of a deed and the considerations growing out of such construction. The plaintiff below was the owner of a tract of land. On May 11, 1898, it conveyed the same to one of the defendants below, under whom the balance claim, with the following exceptions and reservations in the deed:
“This deed is made subject to the following exceptions, reservations, and conditions, to wit: The said party of the first part shall have the use of said land and the buildings thereon until March 1, 1899. The said party of the second part shall not sell any portion of the above-described land in less than forty-acre tracts for a period of ten years next ensuing. The said party of the first part hereby reserves the coal and all other mineral underlying said land, with a right of way of railroad over said land, and it shall not be liable for any damages occasioned by, or arising from, the undermining of said land.”
The defendants admitted the taking of the coal from the premises as alleged and sought to defend their right so to do under two claims : (1) That the terms of this deed, properly construed, amounted to but the reservation of a mere easement in the grantor to go upon the granted premises, and not to an exception, whereby the title to the coal remained vested in the grantor; (2) granting that by the terms of the deed the title to the coal remained in the grantor, that such title might be abandoned by the joining of a purpose so to do with an act to that end, and, being abandoned, the coal would become the property of the grantees upon their taking possession. By the quoted terms of the deed, did title remain in the grantor, or was there simply an easement created under which it might, at the will of the grantee, go upon the land to mine the coal ? In other words, was this an exception or reservation ?
An exception is defined at page 416 of volume 8 of the sixth edition of Washburn on Real Property as follows: “An exception is the taking of something out of the thing granted which would otherwise pass by the deed.”
Other definitions are : “An exception is defined as a clause in a deed whereby the feoffer, donor, lessor, etc., doth except something out of that which he had granted before by his deed.” (Darling v. Crowell, 6 N. H. 423.) “The office of an exception is to take something out of the thing granted that would otherwise pass.” (13 Cyc. 673; Roberts v. Robertson, 53 Vt. 690, 38 Am. Rep. 710; Biles v. Tacoma, Olympia, &c. R. R. Co., 5 Wash. 509, 32 Pac. 211.) On the other hand, “a reservation is a clause in a deed whereby the grantor reserves some new thing to himself out of that which he had granted before.” (13 Cyc. 672.) It is “that which issues from, or is an incident of, the thing granted, and not a part of it.” (Marshall v. Trumbull, 28 Conn. 183, 73 Am. Dec. 67.) “Something newly created out of the granted premises.” (Hurd v. Curtis and another, 7 Metc. 94, 110.) “Something merely created or reserved out of the thing granted that was not in existence before.” (Winston v. Johnson, 42 Minn. 398, 401, 45 N. W. 958; Elliott v. Small, 35 id. 396, 29 N. W. 158, 59 Am. Rep. 329.) “The creation of a right or interest which had no prior existence as such in a thing or part of a thing granted.” (Kister v. Reeser, 98 Pa. St. 1, 5, 42 Am. Rep. 608.)
In Craig v. Wells, 11 N. Y. 315, 321, it was held :
“A reservation is always of something taken back out of that which is clearly granted, while an exception is some part of the estate not granted at all. A reservation is never of any part of the estate itself, but of something issuing out of it. An exception, on the other hand, must be a portion of the thing granted, or described as granted, and can be of nothing else ; and must also be of something which can be enjoyed separately from the thing granted.” (Craig v. Wells, 11 N. Y. 315, 321.)
Technically, the word “exception” applies to the first class and the word “reservation” to the second class of these estates. However, the use of these technical words is by no means determinative of the purpose of those using them, as not infrequently they are used interchangeably ; hence we must go to the entire document or, in proper cases, to evidence aliunde, for their interpretation.
Bearing in mind these definitions and principles, let us look to the deed under consideration. It was made subject to certain “exceptions, reservations, and conditions,” one of which was : “The said party of the first part hereby reserves the coal and all other mineral underlying said land.” From this language it seems to be clear that the coal itself was retained by the grantor, and not a mere easement to go upon the land and mine it. It was the coal itself which was the object of the reservation, the title to which was retained.
In Whitaker v. Brown, 46 Pa. St. 197, the exception was in the following language : “Saving and reserving, nevertheless, for his own use the coal contained in the said piece or parcel of land, together with free ingress and egress by wagon road to haul the coal therefrom as wanted,”
It was held that the saving clause operated as an exception of the coal, and, therefore, that the entire and perpetual property therein remained in the grantor, (See, also, Foster & Co. v. Runk, 109 Pa. St. 291, 58 Am. Rep. 720; Lillibridge v. Coal Co., 143 id. 293, 22 Atl. 1035, 13 L. R. A. 627, 24 Am. St. Rep. 544.)
In Sloan et al. v. Lawrence Furnace Co., 29 Ohio St. 568, in construing the words of a deed “reserving a right of way for a road through said lands thirty feet wide to the county road,, and also all the minerals underlying the soil, to be mined and excavated, from the front on the Ohio river,” the court used the following language:
“It is true, the intention of the grantor was expressed by the word ‘reserving/ which technically saves only a right to some use or benefit in the thing granted, instead of excluding or excepting from the operation of the deed a part of the thing embraced in the general description. But while this technical distinction between a reservation and an exception may exist, it is quite clear, from the subject-matter, that ‘reserving’ was here used in the sense of ‘excepting/ The ‘minerals underlying the soil’ being a part of the land described in the deed, and not a mere future benefit or interest therein, there can be no doubt the grantor intended to retain the fee-simple title to the minerals.” (See, also, Wait v. Baldwin, 60 Mich. 622, 27 N. W. 697, 1 Am. St. Rep. 551; Rich v. Zeilsdorff, 22 Wis. 544, 99 Am. Dec. 81; Kincaid, &c., v. McGown, &c., 88 Ky. 91, 4 S. W. 802, 13 L. R. A. 289; 2 Devlin on Deeds, §980.)
A large number of cases illustrative of the sainé doctrine may also be found in Barringer and Adams’s Law of Mines and Mining, at page 83.
The claim, however, is made that the language employed in the deed is ambiguous, and therefore parol evidence which was offered should have been received to show the real intention of the parties by its use. If there be in this language a latent ambiguity then this claim is correct. An ambiguity is defined to be “duplicity, indistinctness or uncertainty of meaning of an expression used in a written instrument.” (1 Bouv. 137.) To be latent it must be an ambiguity which arises from some collateral circumstance or extrinsic matter, in a case where the language of the instrument itself is intelligible. If, however, the language of the instrument, being intelligible and certain, conveys a definite and well-understood legal meaning, the universal rule of substantive law, that parol evidence cannot be received to change, vary, contradict or modify it, must apply. We think such is the language of this exception. As already noted, it retains the coal, the thing itself, the thing then in existence. It does not take back out of that which is granted something not of the estate itself, a mere appurtenant to the estate granted, an easement, something that would not have existed had not the land been granted. There are no.two meanings that could be attached to the language used. We do not think this is a case falling within any of the excep tions excluding parol evidence to vary the terms of a deed.
We conclude that the title to the coal in place did not pass by the deed ; that the coal remained the property of the plaintiff below ; that while in place it was real estate and should be governed by the laws relative to real estate.
Under the theory that the title to real estate may be lost by abandonment the defendants sought to plead and prove a purpose and appropriate acts sufficient to constitute abandonment by the plaintiff of the coal in question and the taking possession of it by the defendants. May title to real estate be lost and acquired in this manner ? There is no question but that personal property may be abandoned by the owner, with a view of divesting himself of title, and to such case such property becomes that of the first person who possesses himself of it with a purpose of making it his own, but we are quite clear that such is not the case with real estate. Such a doctrine would be in conflict with our statutes regulating conveyances, and of frauds and perjuries, and against almost the uninterrupted current of authorities. (23 A. & E. Encycl. of L., 2d ed., 940; 1 Cyc. 6.)
Of course, inchoate title and special rights such as homestead, depending upon possession, and mere easements may be lost by abandonment. It was also held, under the operation of the Spanish law, as administered in Texas, that this rule applies to fee-simple title, but such is not the rule at the common law.
After the trial had well progressed and to a point where it became obvious to the defendants that neither of their theories in respect to the deed and title to the coal hereinbefore discussed would be accepted by the trial court, they tendered an amendment to their an swer and asked permission to file it and introduce evidence thereunder. This answer stated as new matter that the intention of the parties to the deed was that only an easement to go upon the premises and mine the coal should be reserved by the deed, and that the failure to express that purpose was due to a mutual mistake and omission of the scrivener through misunderstanding or ignorance properly to express such purpose. This request was refused. We do not think .the court erred in this. At that stage of the proceedings it was a matter of discretion with the court. Nor do we think this discretion was abused. A party ought not, ordinarily, after having deliberately selected his ground and finding himself defeated thereon, to be permitted to shift it so as to court the hazard of another battle.
The judgment of the lower court will be affirmed.
All the Justices concurring. | [
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Per Ouriam:
The judgment of the district court in this case is affirmed on the authority of The State v. Bowles, ante, p. 821, decided at the present session of the court. | [
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The opinion of the court was delivered by
Greene, J. :
One of the principal questions in this case arises on plaintiff’s exception to the ruling of the court excluding evidence offered by him to prove that other engines at other times, immediately before and after the fire in question, had emitted sparks and set fire to grass and other combustible material in the vicinity where the fire originated. This evidence was offered for the purpose of showing the origin of this fire. The plaintiff, in his opening statement to the court and jury, identified the particular engine that set the fire which caused the damage as No. 2319. There was no contention by the defendant that a loco motive-engine could not throw sparks over the distance between its tracks and the sheds where it is alleged that the fire started. In the absence of such question evidence that other engines driven at other times by other persons had thrown sparks which had ignited combustible material in the vicinity of the fire in question was not competent.
After a careful examination of the authorities cited by plaintiff in error in support of his contention, and a research of others, we have been unable to find support for his theory. We believe it may be said, with at least a reasonable degree of certainty, that such authorities do not exist. Language carelessly used by the courts, while discussing kindred questions, may be found, which, upon a cursory examination, might appear to sustain such principle, but a more critical investigation will disclose that this precise question was not involved or decided. Where a particular engine is alleged to have set the fire, and the question is whether a locomotive-engine would throw igniting sparks, or would throw them the distance claimed, evidence that other engines of the defendant, similarly constructed, and under similar circumstances, had thrown igniting sparks that distance is properly admissible. Where, however, the engine which set the fire cannot be identified, and the origin of the fire is unknown, evidence that other engines owned and operated by the defendant had, under similar circumstances, both before and after the fire in question, thrown igniting sparks which caused other fires is competent because of the difficulty of otherwise proving that the fire in question was started by sparks from a locomotive-engine of the defendant. Such uncertainty and difficulty does not exist where the engine which is alleged to have thrown the igniting sparks is known. In the present case the identity of the engine was known ; the negligence relied upon to support a recovery was that the particular engine was defectively constructed, not supplied with the latest and best approved spark-arrester, and that its operators were incompetent and negligent in its management. Under such circumstances evidence of the negligent and incompetent management of other engines at other times by other employees, or the defective construction or lack of proper spark-arresters or other appliances, would not assist in determining whether the identified engine was defective or lacking in any •of its parts, or whether it was negligently or incompetently managed. Such evidence would tend to confuse, rather than to make plain, the fact in issue.
The following authorities show the position taken by the courts and commentators on this question, and we think they fully sustain our position. In Henderson v. Railroad Co., 144 Pa. St. 461, 22 Atl. 851, 16 L. R. A. 299, 27 Am. St. Rep. 652, it was said:
“When the fire is shown to have been caused, or, in the nature of the case could only have been caused, by sparks from an engine which is known aud identified, the evidence should be confined to the condition, management and practical operation of that engine ; and testimony tending to prove defects in other engines of the company is irrelevant and inadmissible.”
In Gibbons v. The Wisconsin Valley Railroad Co., 58 Wis. 335, 17 N. W. 132, it was said:
“Where, in an action for the damage done by a fire alleged to have been set by a locomotive, there is no evidence that the fire was caused by any other than one of two particular locomotives, evidence as to other fires along the same line of road caused by locomotives other than those two, is inadmissible.”
On page 340 it was also said :
• “In cases where it is shown, either by positive or circumstantial evidence, that some locomotive of the company caused the fire, without the identification of any particular one, such evidence might have weight in showing the negligence of the company. There may be cases which have gone further than this in the admission of such evidence, but they do not appear to us authority in reason.”
To the same effect is the case of First Nat. Bank v. L. E. & W. R. R. Co., 174 Ill. 36, 50 N. E. 1023, where it was said:
“Where the particular locomotive alleged to have caused the fire for which suit is brought against a railroad company is identified, evidence of other fires set by different locomotives of the company, before and after the fire complained of, is not admissible.'”
In Ireland v. Railroad Co., 79 Mich. 163, 44 N. W. 426, it was said :
“Where, in a suit against a railroad company for setting fire to plaintiff’s factory by a defective engine, the particular engine is known and designated, it is not competent to show generally that the defendant’s engines have caused fire at other times and places, but such particular engine may be shown to have done so, by means of escaping sparks, to show its defective construction.”
In Coale et al. v. Han. & St. Jo. R. R. Co., 60 Mo. 227, it was said :
“In suit against a railroad company for damage caused by the escape of sparks from a locomotive, testimony offered to prove the insufficiency of the engine or the negligence of the engineer by showing that fire had escaped from other locomotives of a similar pattern was rejected as collateral and incompetent.”
In Lesser Cotton Co. v. St. Louis, I. M. & S. Ry. Co., 114 Fed. 133, 52 C. C. A. 95, it was said :
“Where the engine which alone could have set the fire is identified, testimony that other engines of the. defendant set fires or threw sparks at other times is incompetent in the absence of proof of similar condition and operation.” ■
It may be suggested that at the time plaintiff offered to prove that other engines had thrown igniting sparks immediately before and after the damaging fire he had offered no evidence to show that such engines were constructed or equipped with spark-arresters similar to that on engine No. 2319. On the rebuttal, however, plaintiff introduced a deposition of Mr. Player, in which the witness testified that the engines operated on the Emporia division prior to, and at the time of, the alleged fire were similar in their construction, and equipped with the same kind of spark-arresters, and steamed with the same kind of coal; but no attempt was made thereafter to reintroduce this excluded evidence. The reason given for the exclusion of such evidence was strongly Stated by Judge Orton in Gibbons v. The Wisconsin Valley Railroad Co., supra:
“Such evidence would open the door for a wide issue of great importance — whether such other locomotives caused such fires or not — and could not affect the issue in the cause, even if it had been proved that other locomotives caused other fires in the vicinity. The rule has never been extended further than to allow proof of other fires caused by the same machinery. If it had been proved in this case, beyond a doubt, that one of these locomotives — either that of the freight- or passenger-train passing soon or immediately before the fire occurred — caused the fire, it could not add to the defendant’s liability by showing its habitual carelessness in respect to other locomotives ; and if it had been proved that other locomotives on the same road caused other fires, at other times and places, it would not be even presumptive evidence that the locomotives in question were insufficient in any respect, or that they caused this particular fire.” (Page 337.)
In support of plaintiff’s contention reliance is placed upon the cases of Piggott v. Eastern Counties R. R. Co., 3 C. B. 229. The exact reason for sustaining the lower court in admitting evidence of fire started by other engines was stated by Tindal, C. J., in the following language:
“I think it clearly was admissible for the purpose for which it was received, viz., to ascertain the possibility of fire being projected from the engine to such a distance from the railway as the building in question.” (Page 241.)
On page 242, Maulé, J., said :
“The matter in issue was, whether or not the plaintiff’s property had been destroyed by fire proceeding from the defendant’s engine; and involved in that issue was the question whether or not the fire could have been so caused. The evidence was offered for the purpose of showing that it could ; and for that purpose-it was clearly material, and admissible.”
It appears, therefore, that the question which we-are discussing was not presented in that case.
In the case of Smith v. Old Colony and Newport Railroad Company, 10 R. I. 22, 27, the court did not place the admission of the evidence showing that other engines, had set fire immediately before the one complained of upon the ground contended for by the plaintiff,, but it was there said :
“We think there are two purposes for which such testimony may be admissible. The fact that other fires have been communicated before, and especially if recently before, the occurrence of the fire in question, is a fact which should put the company on their-guard and stimulate them to increased watchfulness, and therefore testimony relating to such fire might properly pass to the jury, to enable the jury to judge whether, in view of their previous occurrence, the-company was, at the time of the fire in question, in the exercise of reasonable care. For this purpose,, however, no testimony should pass to the jury relating to fires subsequent to the fire in question. . . . A second purpose for which such testimony might be-admissible is this, namely : To show the possibility of communicating fire by sparks from a locomotive, if' any question were made upon that point, and, for this purpose, it would be immaterial whether the testimony related to fires of an earlier or later date than, the fire in question.”
Counsel also cites section 2372, volume 2, Thompson’s Commentaries on the Law of Negligence, which. states the doctrine that for the purpose of showing that it was possible for sparks from an engine to be carried to the distance between the track and the property it is alleged to have ignited, where such question is a material one, such evidence is admissible. This author, however, in section 2371, states the rule thus :
“That, in actions for damages caused by the negligent escape of fire from locomotive-engines, it is competent for the plaintiff to show that, about the time when the fire in question happened, the engines which the company was running past the place of the fire were so managed in respect of their furnaces as to be likely to set on fire objects in the position of the property burned; or to show the emission of sparks or ignited matter from other engines of the defendant passing the spot upon other occasions, either before or after the damage occurred, without showing that they were under the charge of the same driver, or were of the same construction, as the one causing the damage. But where the engine which scattered the fire is identified, it is not competent to prove that other engines of the same company also scattered fire.”
In Longabaugh v. The Virginia City and Truckee R. R. Co., 9 Nev. 271, the engine that set the fire was not identified. It was there held that under the facts of the case such evidence was admissible. The same was true in Dunning v. Me. Cent. R. R. Co., 91 Me. 87, 39 Atl. 352, 64 Am. St. Rep. 208, and in Chicago, St. P. M. & O. Ry. Co. v. Gilbert, 52 Fed. 711, 3 C. C. A. 264. In the latter case, on page 713, the court said :
“We must not, in the consideration of this question, lose sight of the issues involved. In the case at bar it was not admitted by the company that the fire was caused by sparks escaping from a particular engine, in which event the query would be as to the condition of that particular engine and the mode in which it was handled. On the contrary, the parties were at issue as to the origin of the fire, the plaintiffs claiming that it was due to fire escaping from some one of the engines of the company, and the defendant that it was due to fire escaping from the mill itself.”
It will be observed that in this case there was no identification of the engine. It was upon this ground that the court permitted the introduction of the evidence.
The case of Texas & Pacific Ry. v. Watson, 190 U. S. 287, 23 Sup. Ct. 681, 47 L. Ed. 1057, has no application whatever to our question. The evidence admitted in that case, over which the question arose, was of other fires set by the identified engine, which were discovered immediately after the particular engine had passed. There is no dispute among the authorities upon this question. It may always be shown that the identified engine set other fires immediately before or after the fire of which complaint is made.
The case of G. Trunk R. R. Co. v. Richardson et al., 91 U. S. 454, 23 L. Ed. 356, is quoted by counsel as an authority, and it is also referred to by some cyclopedists as sustaining the contention of plaintiff in error. On page 470 we find the following statement:
“In this case it was proved that engines run by the defendant had crossed the bridge not long before it took fire. The particular engines were not identified ; but their crossing raised at least some probability, in the absence of proof of any other known cause, that they caused the fire; and it seems to us, that, under the circumstances, this probability was strengthened by the fact that some engines of the same defendant, at other times during the same season, had scattered fire during their passage.”
It will be observed that the engine was not identified;
Attention is also directed to St. Jos. & D. C. Rld. Co. v. Chase, 11 Kan. 47. An examination of that case will disclose that the engine which it is alleged set out the fire was not identified.
Numerous errors are predicated on the ruling of the court in sustaining objections to questions put by plaintiff to his own witnesses, and also to questions put by plaintiff, on cross-examination, to the defendant’s witnesses. We shall not undertake to refer specifically to each of such contentions, but only to those we think material. A. L. Favorite, the fireman on engine No. 2319 when the fire in question started, answered, over plaintiff’s objection, that he considered himself a competent fireman. Before this question was asked the witness had given his experience as a railroad man. It was shown that he had' not passed the necessary examination required of firemen, and that he was only a “handy” man. The jury were in full possession of all the facts and were qualified to answer the question. Favorite’s answer, therefore, could not have been prejudicial. The same is true of the objection sustained to the question asked Goodhue, defendant’s general foreman, as to Favorite’s competency. It was of small consequence what Goodhue thought. The jury were in possession of all the facts concerning Favorite.
Another contention is that the court erred in excluding the evidence offered by plaintiff to prove that, about two years before the fire in question, some of the engines belonging to the defendant threw igniting sparks onto the roof of the shed where the damaging fire started. It is said that this evidence was offered to show that the sheds were combustible. We think that under the circumstances of this case this evidence was too remote. Whether they were combustible or not was a question susceptible of direct proof. Their ex act condition when the fire occurred was easily susceptible of direct proof, and from such evidence the jury would have been able to determine the question. This evidence would have opened a field of investigation wholly aside from the true controversy. It would have involved an examination of the conditions as they existed at that time, and all the circumstances attending the alleged previous fire.
Complaint is also made of the refusal of the court to give special instructions Nos. 9 and 10, These instructions were based upon the evidence of previous and subsequent fires started by other engines of the defendant. Since it has been determined that such evidence was properly excluded, it follows that the court did not err in refusing to give the instructions. The principles announced in special instructions Nos. 26 and 27, requested by plaintiff, are sufficiently covered by other instructions given by the court.
A more serious question arises on the objection of plaintiff to the giving of instruction No. 9£. This instruction reads :
“You are instructed that if you find from the evidence that the coal sheds in which the fire complained of originated were located upon a lot belonging to the defendant, but said lots were leased to other parties, and the said parties erected the coal sheds and had control thereof, the defendant would not be responsible for the bad or inflammable condition of such sheds, but under such circumstances you can consider their presence for what you think it is worth in determining whether or not defendant’s servants on the engine in question had notice or knowledge thereof, and exercised ordinary care in operating its engine in the vicinity thereof.’’
One of the alleged grounds of negligence relied upon for a recovery was that the defendant carelessly and negligently failed to keep its grounds and right of way free and clear from combustible material, and carelessly and negligently permitted dry and combustible wooden sheds and buildings with wooden roofs to be and remain upon its grounds and right of way close to its tracks, where they were liable to, and would, be ignited by sparks from its engine. Evidence was introduced tending to prove that certain coal-sheds were upon the company’s right of way and extending over and upon other lands belonging to the company, and that such sheds were combustible, and that the fire in question started in these sheds from sparks emitted by one of defendant’s engines. By the rule thus stated, the mere fact that the company had leased a part of its right of way or other property adjacent thereto, owned and held by it for use in the operation of its road, to a private person would release the company from any liability for a fire started by sparks from an engine’s coming in contact with combustible material placed or permitted to accumulate thereon by the lessee.
A railroad company cannot absolve itself from keeping its right of way and property adjacent thereto, held by it for use in the operation of its road, free and clear from combustible material, by leasing such property ; nor can it plead such a lease as a defense in an action for damage by fire ignited by the falling of sparks from one of its engines into combustible material placed or permitted to collect and remain thereon by such lessee, if it would have been liable had the property remained in the actual possession of the company.
For this reason the judgment is reversed, and the; -cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
Sarah A. Rainey sued the city of Lawrence for damages occasioned by a defective sidewalk. The petition alleged that the unsafe condition of the walk caused plaintiff, while exercising due care, and without any fault on her part, to receive a fall which resulted in severe injuries. The answer was a general denial, coupled with the allegation, in general terms, that any injury sustained by the plaintiff was due to the want of proper care on her part. There was no attempt to specify any act or omission of plaintiff, as constituting contributory negligence. Without asking that the averments of new matter be made more definite the plaintiff filed a reply denying them. A jury trial resulted in a verdict for defendant, upon which judgment was rendered, which plaintiff now seeks to reverse.
The only testimony as to the circumstances attending the plaintiff’s injury was that given by her own witnesses, which was to this effect: She was a stranger in the city. Soon after seven o’clock upon a dark and rainy night in February she, with a party of friends, started out to attend a meeting which was to be held in. a public hall. By mistake they went up a wrong stairway, and, discovering their error at once, returned. The sidewalk directly in front of the hall, leading from the stairway to the street, was made of irregular pieces of stone which did not match evenly. One such piece in particular was low at one end and broken at a corner, so that a hole was formed in the pavement. The plaintiff, in passing out of the doorway, was going quite fast. Immediately upon stepping to the sidewalk she slipped, her heel or foot was caught in this hole, and she was thrown violently to the ground and severely hurt. There was a dim light at the head of the stairway, but so far as the evidence shows there was no other artificial illumination whatever at the place of the accident.
The only assignments of error requiring discussion are based upon objections to the instructions given bearing upon contributary negligence, which were as follow :
“If these facts (the defect, notice to the city, and the resulting injury) are shown by a preponderance of the evidence, then she may recover, unless you further find, from a like preponderance of the evidence, that her own negligence proximately contributed to the injuries of which she complains, in which case there can be no recovery. ... If you find that the defect existed as alleged ; that the city had notice thereof as just explained and ought, in the exercise of reasonable care, to have repaired it; that the plaintiff sustained an injury by reason of such defect, and that her injuries were not the result of her own want of proper care, then she may recover. And you are advised that she was not debarred from using said sidewalk, even though she knew it was dangerous ; but in such circumstances she was required to exercise a degree of care and prudence corresponding to the known or apparent danger. 'Ordinarily, a traveler on the highway is not bound to keep his eye con stantly on the walk, nor his thoughts at all times fixed upon the known defect; but, considering the nature of such known defect, if any, and the dangers that might reasonably be apprehended therefrom, and all the attendant circumstances, you must say, as a matter of fact, whether the plaintiff herself exercised proper care. If she knew of such defect, or in the exercise of reasonable and ordinary care might have known it, she ought to have exercised a corresponding degree of care.”
There was nothing in the evidence upon which to base a finding that the plaintiff knew of the defect that caused the injury, or by the exercise of ordinary diligence could have known of it, unless it can be said that the jury were justified in inferring that, as she had passed over the place of the accident but a few moments before it occurred, she must have seen the walk and have become aware of its defective condition if she used reasonable care. Such an inference might have been tenable if the occurrence had taken place in the daytime, or if there had been evidence of some artificial light sufficient to enable a traveler to discover the defect; but the affair having taken place upon a dark night, with no illumination but that furnished by a dim light at the head of the stairway, there was no basis for a conclusion that plaintiff actually learned of the condition of the walk, and for her failure to perceive the danger and guard against it negligence could not be imputed to her.
It might, perhaps, be argued, from the circumstance that witnesses were able to see and describe in some detail all that took place, that there must have been some other light than that described. Granting the soundness of the argument, it does not appear that any such additional light was of sufficient power to reveal the condition of the walk. If, in fact, there was other illumination, or if there was light enough from any source to render the paving stones visible, it was incumbent upon defendant, upon whom the burden of proof of contributory negligence rested, to show it.
In the absence of any evidence that would justify a finding that plaintiff knew of the defect in the sidewalk, or by the exercise of ordinary diligence might have known of it, no issue was presented as to her actual or constructive knowledge of its existence, and no instruction should have been given as to the degree of care required of one using a walk with knowledge that it was defective; and as the matter was one of the utmost importance under the circumstances of the case the giving of such an instruction was prejudicial error, not merely because it tended to confuse the jury and distract attention from the real issue, but because it suggested, and by implication permitted, a verdict against plaintiff upon a theory not tenable under the evidence.
The judgment is reversed, and a new trial ordered.
All the Justices concun-ing. | [
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Per Guriam:
The only material questions presented herein for review arise upon rulings on the evidence and whether it is sufficient to sustain the special findings requested and made. These cannot be reviewed unless the evidence which was considered by the district court is included in the record. While there is a statement at the end of the record that all the evidence is preserved, it appears that a power of attorney, at least, which was before the trial court, is omitted. The absent document is manifestly material, and since all the evidence is not here questions as to its sufficiency are not open to our consideration. (M. K. & T. Rld. Co. v. Williamson, 58 Kan. 814, 49 Pac. 157; Wertz v. Albrecht, 58 id. 576, 50 Pac 500.)
Before this omission was sharply brought to our attention we examined the objections of the plaintiff in error and discovered, no material error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Atkinson, J.:
Handsel A. Abbott recovered a judgment in the district court of McPherson county for $10,500 against George B. Abbott. Execution was issued thereon and returned nulla bona. Thereafter plaintiff commenced this action in the district court of McPherson county against George B. Abbott and other defendants, among whom were the wife and daughters of the judgment debtor, to set aside deeds to lands in that county alleged to have been fraudulently made to said defendants by the judgment debtor, and to subject the lands thus conveyed to the satisfaction of plaintiff’s judgment.
Among other defenses of the defendants claiming under the deeds executed by the judgment debtor, and as their third defense to plaintiff’s petition, it was averred that in an action by plaintiff, Handsel A. Abbott, against the judgment debtor, George B. Abbott, upon the McPherson county judgment, a judgment was recovered against the latter in the circuit court of St. Clair county, Illinois, and that by reason thereof the McPherson county judgment had become merged in the Illinois judgment and could not serve as the basis of this action.
Plaintiff, replying to the third defense of defendants’ second amended answer, admitted the recovery of the judgment in Illinois on the McPherson county judgment, and averred that the property owned by the judgment debtor, George B. Abbott, in the state of Kansas, was insufficient to satisfy the judgment; that defendant George B. Abbott owned property in the state of Illinois which he had also fraudulently conveyed to said defendants ; that the property in Illinois was insufficient to satisfy the judgment; that it was necessary for plaintiff to proceed in the courts of the two states at the same time to protect his rights; . and that the defendant George B. Abbott was a non-resident of the state of Kansas. To this reply defendants, grantees of the judgment debtor, demurred, which demurrer was by the court sustained.
Thereafter plaintiff filed a further and supplemental reply to the third defense of the second amended answer of defendants, alleging that the circuit court of St. Clair county, Illinois, upon the application of defendant George B. Abbott, and upon due consideration of the court, on a date subsequent to the filing of the former reply, had duly and regularly set aside, vacated and held for naught the judgment referred to and pleaded in defendants’ third defense; that plaintiff had now no judgment in the Illinois court against the defendant George B. Abbott, as averred by defendants. To this supplemental reply defendants demurred, which demurrer was by the court sustained. Error is'assigned on the ruling of the court in sustaining the demurrer of defendants to that portion of plaintiff’s reply directed to defendants’ third defense, and the demurrer of defendants to plaintiff’s supplemental reply.
The greater part of the briefs of counsel is devoted to a discussion of the question of the effect of the Illinois judgment upon the Kansas judgment — whether or not the judgment in the foreign jurisdiction operated as a merger of the Kansas judgment; and whether, if the effect was a merger, the Kansas judgment could constitute the basis of this action. Much of the oral argument of counsel was devoted to the same question. "We must treat the same on the state of the pleadings when the demurrer was sustained to the supplemental reply. When plaintiff filed the supplemental reply it showed a state of fact where no judgment existed against the judgment debtor in the state of Illinois. There being no judgment in that state the question of merger was not in the case. In the state of the pleadings none of the questions raised by counsel is before us for consideration or determination.
Upon an examination of the record the challenge of defendants in error to its sufficiency to entitle it to a review by this court is found to be not well taken.
The judgment is reversed, with the direction that the district court overrule the demurrer to the supplemental reply and proceed with the cause in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J. :
Charles M. Bowles was indicted by a grand jury of Wyandotte county. The indictment charged that the defendant did unlawfully, feloniously, wickedly and corruptly offer and promise to a person named that he would give his vote, opinion, judgment, and action as a member of the board of education of the city of Kansas City in favor of a certain matter upon condition that he be paid a sum of money as a bribe and reward for so doing, and did unlawfully, feloniously and corruptly seek and solicit from the party named the payment of the sum of money stated as a reward and bribe unlawfully and corruptly to be given to influence him in the giving of his opinion, vote, judgment, and action. The indictment concluded, and was signed, as follows :
“And the said grand jurors do present that, by the means and acts aforesaid, the said Charles M. Bowles did then and there unlawfully, feloniously and corruptly attempt to commit the crime of unlawfully, feloniously and corruptly accepting and receiving money from the said George E. Rose under an understanding and agreement which he, the said Charles M." Bowles, then and there unlawfully, feloniously and corruptly attempted to make and enter into, that the vote, opinion and judgment of the said Charles M. Bowles should thereby be corruptly influenced to be cast and given in favor of the election of the said George E. Rose as principal and teacher in the said public schools — contrary to the statutes in such case made and provided, and against the peace and dignity of the state of Kansas. C. C. Coleman,
Attorney-general of the State of Kansas,
:prosecuting in Wyandotte County
A motion was made to quash the indictment on the following grounds :
“1. The indictment is not signed by the county attorney, as required by law.
“2. That said indictment is not signed by the prosecuting attorney of said county, as required by law.
“3. That said indictment is not signed by any person as attorney who by law is authorized to sign indictments in said county.
“4. That the facts stated in such indictment are not sufficient to constitute any offense or crime under the laws of the state of Kansas.”
The district court allowed the motion and quashed the indictment. The state appeals upon a question reserved.'
The essence of the defendant’s claim in reference to the form of the indictment is that it can be signed by no officer of the state except the county attorney of the county in which the grand jury sits. While the argument is reenforced from other sources its fundamental content is derived from the code of criminal procedure, and two decisions rendered in this state.
Section 5540 of the General Statutes of 1901 reads :
‘‘Each indictment must be signed by the prosecuting attorney; and when the grand jury return any indictment into court the judge must examine it, and if the foreman has neglected to indorse it, ‘A true bill,’ with his name signed thereto, or if the prosecuting attorney has neglected to sign his name, thé court must cause the foreman to indorse or the prosecuting attorney to sign it, as the case may require, in the presence of the jury.”
In the case of The State v. Nulf, 15 Kan. 404, the following language was used :
‘‘Under the laws of Kansas, the ‘prosecuting attorney’ is always the ‘county attorney.’ (Gen. Stat. 283, 284, §§ 135, 136, 137.) That is, every criminal action prosecuted in the name of the state, must be prosecuted by the county attorney, who is the public prosecutor. Therefore, for the purpose of prosecuting criminal actions, the prosecuting attorney and the county attorney is one and the same person.”
In the case of The United States v. Lewis L. Weld, McC. 185, 192, decided in 1860 by the United States district court for the fifth district of the territory of Kansas, it was said :
“When one person or class of persons is named in a power of attorney, or an act of the lawmaking power, as being authorized to do a certain thing therein named, all other persons are thereby excluded from doing the same thing as effectually as if they were positively forbidden.”
The attorney-general justifies his conduct under section 7271 of the General Statutes of 1901, which provides: '
“The attorney-general shall appear for the state, and prosecute and defend all actions and proceedings, civil or criminal, in the supreme court in which the state shall be interested or a party, and shall also, when required by the governor or either branch of the legislature, appear for the state and prosecute or defend, in any other court, or before any officer, in any cause or matter, civil or criminal, in which this state may be a party or interested.”
In the year 1855 the legislature of the territory of Kansas provided for the election of a district attorney for each district organized for judicial purposes. He was required to appear in each county at the district court and prosecute and defend on behalf of the territory or county all suits, indictments, applications, or motions, civil or criminal, in which the territory or county should be a party, and, among other things, to draw and sign all indictments or other pleadings connected with his office. The same legislature adopted a code of criminal procedure which made it the duty of the attorney prosecuting in the county to attend any grand jury whenever required and aid in various ways in the conduct of its proceedings, but no reference was made to the matter of signatures to indictments.
By an act approved February 12, 1858, the territorial legislature changed the system relating to local prosecutors, and created the office of county attorney for each county organized for judicial purposes. Its incumbent was required to appear in the several courts of the county and prosecute or defend actions, attend the sittings of the grand jury when required, and draw bills of indictment. The law provided that county attorneys should be elected at the general election following the session of the legislature, and of necessity district attorneys remained in office until the new system became operative.
By another act, approved February 12, 1858, the same legislature changed the code of criminal procedure and adopted a provision in reference to the manner in which indictments should be signed, in all respects identical with section 5540 of thé General Statutes of 1901, already quoted. This act took effect immediately after its passage. It is plain, therefore, that the words “prosecuting attorney” in the new code were designed to embrace both the district attorney, who would have authority to prosecute until the next general election, and the county attorney, who would then be the local prosecutor.
During territorial days the attorney-general was an official deriving his power and authority from the government of the United States. There was, therefore, no multiplicity of officers, some one of whom needed to be designated to perform the special duty of signing indictments to the exclusion of all others. All that was necessary was to provide for the due authentication of true bills returned by the grand jury. The object of the statute was not to confer a special power upon an individual, according to the principle announced in the case of The United States v. Weld, supra, but to protect the legitimacy of a document. To the attorney in charge of the territory’s case at the time was assigned this duty. He might be district attorney, with jurisdiction extending over all the counties of a judicial district, or he might be county attorney, with a much more limited range of authority, but the prosecuting attorney, whatever his official title and whatever the scope of his territory, was to sign indictments.
Upon its admission into the union the new state abolished the office of county attorney and returned to the former system of district attorneys. In 1864. the office of county attorney was restored, but the statute of 1858 relating to the authentication of indictments has persisted, unmodified, to the present time.
In the organization of the state government the office of attorney-general was created, and by an act approved Juno 12, 1861, it was provided that the attorney-general, whenever required by the governor or either branch of the legislature, should appear for the state and prosecute or defend, in any court, or before any officer, in any cause or matter, civil or criminal, in which the state might be a party or interested. The substance of this act has been preserved in all subsequent revisions of the law, and it now appears as section 7271 of the General Statutes of 1901.
The experience of members of the legislature during territorial times had taught them the necessity •of a state government equipped with sufficient power to protect public rights and redress public injuries throughout the entire state, independent of the attitude of local authorities, who might be indifferent, incapable, or even antagonistic. They had suffered from the baleful manifestations of sectionalism within the state, as well as between different states, and the purpose was to make the authority of the government felt, through its chief law officer, in every part of its territory, if the chief executive or either branch of the legislature should determine it to be necessary. The language of the statute indicates that the intention was to grant plenary power to the attorney-general to this end, and he was invested with full authority to use all the means afforded by the law to meet the requirements of any situation and fully protect the interests of the state. When directed by the governor or either branch of the legislature to appear and prosecute criminal proceedings in any county he becomes the prosecuting attorney of that county in those proceedings, and has all the rights that any prosecuting •officer there may have, including those of appearing before the grand jury, signing indictments, and pui'suiug cases to final determination.
In the American and English Encyclopedia of Law (2d ed.), volume 23, page 268, there is a fair statement of what is included in the term “prosecute.”
“To prosecute is to proceed against judicially. A prosecution is the act of conducting or waging a proceeding in court; the means adopted to bring a supposed offender to justice and punishment by due course of law. It is also defined as the institution or commencement and continuance of a criminal suit; the process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment on behalf of the state or government, as by indictment or information.”
The reasoning of decided cases involving differing states of fact leads to the same conclusion. (Choen v. The State, 85 Ind. 209; Territory v. Harding, 6 Mont. 323, 12 Pac. 750; State v. District Court, 22 id. 25, 55 Pac. 916, 918.)
The remark of Mr. Justice Valentine in State v. Nulf, quoted above, was made without attention’s having been called to this power of the attorney-general. The-court was not then considering, and did not pretend to decide, the question now under discussion. Certainly it was not the intention of the court to nullify, by that decision, the statute which gives the attorney-general the right to prosecute whenever required by the governor or either branch of the legislature to da so.
Time has abated nothing from the strength of purpose indicated by the words of the statute under consideration ; indeed, the power of the attorney-general in our political system has subsequently been enlarged, and he may now, upon his own motion, undertake the enforcement of the prohibitory liquor law in any county of the state, if the county attorney be unable or neglects to do so, and to that end he may perform any act which the county attorney may perform. What, if any, common-law powers he may possess, it is not necessary, in view of the statute, to determine.
The indictment was signed by an attorney who was by law authorized to sign indictments in Wyandotte county, and it should not have been quashed upon any one of the first three grounds stated in the motion to quash.
In the brief for the defendant it is urged that the indictment was insufficient because the authority of the attorney-general to sign it was not stated. The motion to quash does not raise this question, but the attorney-general argues it as if it were a matter in dispute before the district court. Therefore, it is proper to say that the signature was sufficient.
The district court was obliged to take judicial notice of the official character and identity of the attorney-general and of the executive requirement upon him to appear and prosecute. The action of the governor was a matter of court cognizance and not a matter for the indictment to express. The attorney-general was no more required to indicate that he was acting under an executive order than the county attorney is required to refer to the fact of his election, the taking of his oath, and the filing of his bond. Having authority to sign the indictment the attorney-general did all the statute requires when he signed it. (The State v. Nulf, 15 Kan. 404; The State v. Tannahill, 4 id. 117; The State v. Kinney, 81 Mo. 101; Choen v. The State, supra; 10 Encyc. Pl. & Pr. 448.)
The act charged against the defendant in the body of the indictment is the solicitation of a bribe. The legislature has not seen fit to make the solicitation of a bribe punishable in express terms, and the question is whether the same end may be reached through the statute relating to attempts. In the light of the history of the legislation of this state concerning bribery the omission from the statute may well be regarded as conclusive.
The subject is an old one. When the aged Samuel was testifying his integrity he said :
“Whose ox have I taken? or whose ass have I taken? or whom have I defrauded? whom have I oppressed ? or of whose hand have I received any bribe to blind mine eyes therewith ? and I will restore it you.”
Isaiah accorded the privileges of the godly to him “that shaketh his hands from holding of bribes” and David sang of a separation of life and soul from those-whose “right hand is full of bribes.” The governments of all the civilized peoples which have arisen since those ancient days have struggled with the-problem.
Prior to the year 1869 receiving a bribe was a crime-in this state. By chapter 43 of the Laws of that year-the legislature repealed all sections of the bribery statute then in force so far as they related to bribe-takers. Fer a period of twenty-six years following; this repeal officers who received rewards for official conduct were not amenable to,criminal punishment at all for their corrupt acts. In 1895 the matter-again became the subject of legislative cognizance, and the present law was enacted, providing as follows :
“Any officer of the state or of any county, city, district, or township, after his election or appointment, and either before or after he shall have qualified, or entered upon his official duties, who shall accept or receive any money or the loan of any money, or any real or personal property, or any pecuniary or-other personal advantage, present or prospective, under any agreement or understanding that his vote, opinion, judgment or action shall be thereby influenced, or as a reward for having given or withheld any vote, opinion, or judgment, in any matter before him in his official capacity, or having wrongfully done- or omitted to do any official act, shall be punished by a fine of not less that two hundred dollars nor more than one thousand dollars, or by imprisonment for-not less than one year nor more than seven years in the penitentiary at hard labor, or by both such fine and imprisonment, at the discretion of the court.”' fGen. Stat. 1901, §2212.)
The statutes of many states by express provision-punish the solicitation of bribes. The statute of this. state in force in 1895 relating to the giving of bribes, devoted a separate section to offering or attempting to bribe. The appearance in the new law of an analogous section relating to soliciting or attempting to secure a bribe might well have been anticipated, but nothing of the kind was inserted. Presumably the legislature expressed itself fully and did not intend to punish a solicitor unless he actually received the bribe.
The spectacle of a public officer soliciting his own purchase is so disgusting that the subject scarcely could have escaped the legislative attention ; but many practical considerations are involved in the detection and punishment of bribery. Ordinarily, disclosure must come from one or the other of the participants in the despicable business. Solicitation, however, is extremely rare compared with offers to corrupt, and the same policy which so long exempted the bribe-taker altogether may have been deemed wisest in regard to solicitation. In any event, this court should not be called upon to outstrip the legislature and by construction invent a crime which, with many precedents before them, the lawmakers might have delineated in a few words while engaged in the work of remodeling the bribery law.
Aside from these considerations the court is of the opinion that the solicitation of a bribe is not an attempt to accept or to receive a bribe, within the meaning of the statute relating to attempts. That statute reads:
“Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act toward the commission of such offense but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, upon conviction thereof shall, in cases where no provision is made by law for the punishment of such attempt, be punished as follows:” (Gen. Stat. 1901, § 2284.)
In determining whether certain conduct was punishable criminally at common law English judges have frequently made the statement that soliciting is an act done which in itself is sufficient, when coupled with wrongful intent, to constitute a crime. In discussing the subject, the word “solicit” has been used in the same connection with words like “incite,” “endeavor,” and “attempt,” but the purpose in view has been to show that solicitation in itself embodied the elements of an independent crime, and not to discriminate it as an ineffectual attempt to commit another crime, in the sense of our statute. This is plain from a critical reading of the leading case of The King v. Higgins, 2 East, 5. The head-note accurately expresses the conclusion of the judges as follows :
“To solicit a servant to steal his master’s goods is a misdemeanor, though it be not charged in the indictment that the servant stole the goods, nor that any other act was done except the soliciting and inciting. And such offense is indictable at the sessions, having a tendency to a breach of the peace.”
Lord Kenyon, chief justice, and Le Blanc, J , were able to express themselves without confusing attempt and solicitation. Justices Grose and Lawrence were more discursive, and by their language opened the way to much of the uncertainty relating to the law of attempt in this country. In his work on Criminal Law Mr. Bishop has evidently seized upon the words most favorable to his purpose in this and other similar cases in an effort, supported, however, by some authority, to establish the doctrine that solicitation is an attempt.
The case of Heselton v. Lister, Cooke C. P. 88, is cited. The entire report of that case is here given, be cause it is apparently-referred to as deciding that solicitation is an attempt in a bribery case:
“A motion to justify bail upon examination of the bail in court; the plaintiff’s attorney showed to the court that the same persons were bail in another cause, and represented that he verily believed they were very insufficient, for the defendant himself had told him they were not worth a groat; he likewise informed the court that one Dewell, a sheriff’s officer, had just then been with him, and told him if he would go out of court the defendant would give him half a guinea ; Dewell was likewise examined upon oath, and declared the same ; upon this the court all agreed that this was an attempt in the defendant to pervert justice, and a notorious contempt of the court, and committed him to the fleet till further order.”
A number of American cases used as authority for the proposition of the same text throw no more light on the subject than The King v. Higgins, supra.
The reporter of the case of The United States v. Worrall, 2 Dall. 384, Fed. Cas. No. 16,766, 1 L. Ed. 426, says the defendant in that proceeding was charged with an attempt to bribe. The indictment used no such language, and the only legal question argued and determined was if the courts of the United States had jurisdiction of common-law offenses, and that question was decided wrong.
In the case of The State v. Avery, 7 Conn. 267, 18 Am. Dec. 105, the sole question was if the solicitation of another to commit adultery was a High crime and misdemeanor cognizable by the superior court, and not if an attempt could be made out from mere solicitation.
In the case of Commonwealth v. Harrington, 3 Pick. 26, the head-note is accurate and reads :
“Exciting, encouraging and aiding a person to commit a misdemeanor is of itself a misdemeanor.”
The same is true in the case of Commonwealth v. Flagg, 135 Mass. 545, where it was said :
“It is an indictable offense at common law for one to counsel and solicit another to commit a felony, although the solicitation is of no. effect, and the crime counseled is not in fact committed.”
The citation of the case of Pennsylvania v. Margaret M’Gill and William Boggs, Add. Pa. 21, to prove that solicitation is equivalent to attempt is astonishing. The report is of an occurx*ence in the county court of Allegheny county, and reads thus :
“Indictment for a misdemeanor. Boggs persuaded M’Gill to steal, and deliver to him, a conveyance for 100 acres of land executed by Henry Shaver to his son and daughter. This land was part of a larger tract, of which Shaver had been possessed, under a location or a Virginia certificate. He intended this hundred acres as a provision for his two children ; and having sold the rest to Boggs, he conveyed the location or certificate to him, that he might take a patent for the whole in his name, and took an article or bond on Boggs, to convey this hundred acres to his children, after he obtained the patent for the whole. They were convicted.
“The court suggested that it might be useful, if Boggs, having the title to this land, should, before sentence, execute a conveyance to the son and daughter of Shaver. He did so — and judgment was given.”
The case of The People v. Bush, 4 Hill, 133, is the strongest -authority cited in support of the text referred to. Concerning that case, however, it might be argued that the conduct proceeded beyond solicitation. The prisoner, besides soliciting to arson, furnished materials to accomplish the burning, and was held guilty of an attempt, under a statute similar to that of this state.
The doctrine of People v. Bush was repudiated by the supreme court of West Virginia in an able and exhaustive opinion in the case of State v. Baller, 26 W. Va. 90, 53 Am. Rep. 66; and, contrary to People v. Avery, the supreme court of Washington, in a recent carefully reasoned case, holds that mere solicitation to commit adultery is not an' attempt to commit the crime. (State v. Butler, 8 Wash. 194, 35 Pac. 1093, 25 L. R. A. 434, 40 Am. St. Rep. 900.) Appended to the reprint of this decision, in 25 L. R. A. 434, is an editorial note relating to the criminality of' solicitation to crime which is not consummated, in which many cases are analyzed and classified. Upon the branch of the subject now under consideration the following conclusion is reached :
“The authorities are not so uniform upon the question how far solicitation is an attempt. But the weight of authority is in accord with State v. Butler, that it is not an attempt. The very definition of ‘attempt’ precludes the possibility of its including a mere solicitation.”
Likewise, in Cyclopedia of Law and Procedure, volume 12, page 183, where numerous authorities are collated, it is said :
“Some of the courts have treated solicitation to commit a crime as an attempt. By the weight of authority, however, it is not a sufficient overt act to be indictable as an attempt, but must be indicted as a. distinct offense.”
In the state of Illinois a statute was enacted reading as follows :
“Whoever attempts to commit any offense prohibited by law, and does any act toward it but fails, or is intercepted or prevented in its execution, where no express provision is made by law for the punishment of such attempt, shall be punished,” etc. (Rev. Stat. 1874, ch. 38, §273.)
In. construing this statute the supreme court of that state said :
“The words ‘whoever attempts to commit any offense prohibited by law, and does any act towards it,’ must be construed, in cases like the present, to mean a physical act, as contradistinguished from a verbal declaration ; that is, it must be a step taken toward the actual commission of the offense, and not a mere effort, by persuasion, to produce the condition of mind essential to the commission of the offense.” (Cox v. The People, 82 Ill. 191, 193.)
In the case of The State v. Harney, 101 Mo. 470, 14 S. W. 657, the opinion reads :
“For a man to have sexual intercourse with a female child under the age of twelve years is for that man to be guilty of rape. R. S. 1879, sec. 1253. And the law declares that ‘every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense but shall fail in the perpetration thereof, shall be punished,’ etc. R. S. 1879, sec. 1645. The only charge that can be evolved from the verbose reiterations of this indictment is that the defendant, by verbal solicitations, tried to obtain' the consent of a child under the age of twelve years to have sexual intercourse with him and failed. However despicable and deserving of punishment such conduct may be, it falls short of the criminal offense attempted to be charged, to constitute which there must be an actual attempt to have intercourse with such child. So long as the evil purpose dwells in contemplation only, it is beyond the grasp of these provisions of the law.”
In the case of Hicks v. Commonwealth, 86 Va. 223, 226, 9 S. E. 1024, 19 Am. St. Rep. 891, it was said :
“The act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. It must not be merely preparatory. In other words, while it need not be the last proximate act to the consummation of the offense attempted to be perpetrated, it must approach sufficiently near to it to stand either as the first or more subsequent step in a direct movement towards the commission of the offense after the preparations are' made.”
This court has virtually adopted the restricted meaning of the word “attempt” indicated by. these decisions. • •
In the case of In re Lloyd, Petitioner, 51 Kan. 501, 33 Pac. 307, the position was taken that an attempt must involve an overt act beyond solicitation ; and in the case of In re Schurman, Petitioner, 40 Kan. 533, 542, 20 Pac. 277, 282, it was said :
“If what was charged would naturally have resulted in inducing the company to part with its money, such attempt would probably be an offense; ‘ but when between the attempt and the execution is interposed the volition of an independent moral agent, then, by stress of the definition just given, an indictable attempt is not made out.’ (1 Whart. Crim. Law, §§177, 178.)”
In a very recent case the supreme court of Michigan admitted the principle announced by Doctor Wharton to be applicable to the crime of bribery, and held the solicitation of a bribe to be punishable, not as an attempt, but as an independent common-law crime.
“It is strenuously contended that the indictment charges no offense known to the laws of this state. It is conceded by the learned counsel for the state that there is no statute defining the offense set out in the indictment, but it is contended that the case falls within the statute (3 Comp. Laws, § 11795) providing for the punishment of offenses indictable at the common law. In other words, it is claimed that the indictment sets out an offense at the common law. Respond ent’s counsel assert that solicitation to commit a crime is not indictable when there is interposed between the solicitation on the one hand and the proposed illegal act on the other the resisting will of another person, which other person i’efuses assent and cooperation; citing, among other cases, McDade v. People, 29 Mich. 50, and Smith v. Com., 54 Pa. St. 209 (93 Am. Dec. 686). It may be accurate to say that what is treated in the law as an attempt to commit a crime is not complete where there is interposed between the solicitor and the consummation of the completed offense the resisting will of the one whom the solicitor seeks to employ as the active agent. But to say that a solicitation may not amount to an offense under these circumstances is to deny that a solicitation to commit a felony is punishable at the common law as a substantive and completed offense.” (People v. Hammond, 132 Mich. 422, 93 N. W. 1084.)
The inference from this decision is that soliciting a bribe would not be punishable in Michigan except for the statute recognizing common-law offenses. That it is not punishable in Texas appears from the case of Hutchinson v. The State, 36 Tex. 293, in which it was said :
“The indictment was drawn under article 1870, Paschal’s Digest, and the pleader attempted to charge the defendant with accepting a bribe ; but the indictment wholly fails to make any such charge specifically, and only charges him with offering to receive a bribe. This is not an offense punishable as a crime under the law.”
There are no common-law offenses in this state, and there can be no convictions in this state except for such crimes as are defined by statute. (The State v. Young, 55 Kan. 349, 40 Pac. 659.)
In harmony with what is undoubtedly the modern trend of the law this court is constrained to hold that so long as the will of the person solicited is opposed to the corrupt conduct there can be no attempt, in the legal sense, to accept or to receive a bribe. After a willingness of mind on the part of both participants has been established, the matter of giving and receiving the bribe money or other pecuniary or personal advantage must still be accomplished. That transaction may be very simple or very complex, and the room for attempt may be very wide or very narrow, but until it is finally undertaken and some act done, the stage of attempt has not been entered upon.
The remarks of the supreme court of Maryland in an opinion denying that solicitation constitutes an attempt are pertinent to this case :
“Certainly it would be a great public calamity to invent crimes by subtle, ingenious and astute deduction. In all free countries the criminal law ought to 'be plain, perspicuous, and easily apprehended by the common intelligence of the community. It is the essence of cruelty and injustice to punish men for acts which can be construed to be crimes only by the application of artificial principles according to a mode of disquisition unknown in the ordinary business and pursuits of life. The legislature, with ample power over the whole subject, determined what offenses should be punished. If it had desired that other actions of a cognate character should become penal, it would have so enacted. It is the duty of the courts to interpret and administer the legislative will; but in cases of criminal cognizance they must resolutely determine never to exceed it. . . . The law would not be a practical system if it did not define with precision the nature and circumstances of the attempts which are criminal, and determine what acts are necessai’y to make the attempt a substantive offense. In our judgment it has done so, and- not left us to grope after results under the guidance of vague general expressions.” (Lamb v. State, 67 Md. 524, 534, 10 Atl. 208, 298.)
The indictment was properly quashed upon the last ground stated in the motion, and the judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
The Gale Manufacturing Company sued a firm composed of S. T. Breckenridge and Harry Sleeper in justice’s court upon an account. During the pendency of the action Breckenridge conveyed a tract of land to Lyman Sleeper, the father of Harry Sleeper. The company, having recovered judgment, filed a transcript in the district court and caused an execution to be levied upon this land, upon the theory that siich deed was .void because made in fraud of creditors. Lyman Sleeper then began an action of injunction against the company, in which he obtained a final judgment enjoining the sale of the land under the execution. The Gale company prosecutes error.
Plaintiff in error contends that a demurrer to the petition for injunction should have been sustained upon the ground that the plaintiff had an adequate remedy at law in that he could have made a motion in the case in which the execution was issued to release the land from the levy. The case of Crist v. Cosby et al., 11 Okla. 635, 69 Pac. 885, cited in support of the contention, contains expressions apparently sustaining this view. All that was there actually decided, however, was that a defendant wrongfully served with summons must contest the sufficiency of the service, if at all, in that action, and not by an independent suit after judgment to restrain its enforcement. The remedy open to one whose property is seized upon process against another, by a motion to be made in a case to which he was not a party, is inadequate for this reason, if for no other, that through such a proceeding no final settlement of the matter in controversy can be had. “A decision either way on such motion would not affect the ultimate rights of the parties, nor be a bar to an action to determine the ownership.” (White-Crow v. White-Wing, 3 Kan. 276.) Therefore, whatever right Lyman Sleeper might otherwise have had to maintain injunction was not affected by the privilege open to him of making a motion in the case against Breckenridge and Harry Sleeper. As such right has not been challenged upon any ground excepting that stated, no consideration need be given to other questions that might have been raised in that connection.
• A further assignment of error is based upon the fact that a mortgagee of the property in controversy was permitted to intervene and obtain a decree of foreclosure in the injunction suit. Assuming that this was error it does not warrant .a reversal. Inasmuch as the court held that the plaintiff in error had no interest in the property, it was not prejudiced in any way by the foreclosure of the mortgage.
It is also argued that the evidence does not support the decision made, but compels the conclusion that the deed to Lyman Sleeper was fraudulent. Circumstances were shown giving color to the claim of fraud, but they cannot be said to have conclusively established it.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
The question involved in this proceeding in error is whether or not the husband of a legatee in a will is a competent witness to its execution. The point was raised in the district court in an action brought by the father and sole heir at law of the testatrix, to contest her will, under section 7957, General Statutes of 1901, after it.had been admitted to probate in conformity with the requirements of section 7952, General Statutes of 1901. The law respecting the attestation of wills reads :
“Every last will and testament . . . shall be in writing, and signed at the end thereof by the party making the same, or by some other person in his presence and by his express direction, and shall be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe or heard him acknowledge the same.” (Gen. Stat. 1901, § 7938.)
The contention of counsel for plaintiff in error against the validity of the will is based upon the statute respecting the competency of witnesses, found in the civil code. The relevant part of section 4771, General Statutes of 1901, reads :
“The following persons shall be incompetent to testify: . . . Third: Husband and wife, for or against each other, except concerning transactions in which one acted as the agent of the other, or when they are joint parties and have joint interest in the action.”
The disqualification has relation to witnesses in an action. An action is thus defined :
“An action is an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” (Gen. Stat. 1901, §4432.)
“Every other remedy is a special proceeding.” (Gen. Stat. 1901, §4433.)
The nature of a proceeding in the probate court to admit a will to probate received attention in the late case of Hospital Co. v. Hale, 69 Kan. 616, 77 Pac. 537. It was there' said :
“This hearing is conducted in a somewhat informal manner and without notice or pleadings. The order which may be entered is either for the admission to probate of the will or the denial thereof. If the former, such order may be attacked at any time within two years in the district court in an action for that purpose by any person interested in the will or estate of the deceased. If the latter, an appeal may be had to the district court, where the order of trial, the character and burden of the proof, the same informality of procedure, will be had as before the probate court, the district court haying only such powers and pursuing such procedure on appeal as the probate court. All these matters will be found discussed in the case of Lawrie v. Lawrie, 39 Kan. 480, 18 Pac. 499. In both courts the procedure is of the most informal and perfunctory character, and when a prima facie case is made upon the several points as to validity of execution, testamentary capacity, and freedom from illegal restraint, the order of admission should be made, leaving for the more formal and regular proceedings provided by section 20 of the wills act (Gen. Stat. 1901, § 7957) the contest of the nicer and more difficult questions, a contest in which issues are duly formed, evidence properly produced, the machinery found for obtaining a jury should one be ordered. Upon the application to admit to probate a party interested in having the application denied, may not as a matter of right, demand the examination of his witnesses in opposition. Just to what extent this preliminary examination ought to go it is difficult in any one case to say ; it can be said, however, that it is not a contest; that is left for another proceeding in another forum. In the rough, it is probably sufficient to say that it should go only to the extent that a prima facie case is made in favor of the validity of the will.”
There is a wide distinction between a proceeding to admit a will to probate, informal and summary in character, and an action which must be commenced by filing a petition and causing a summons to issue' thereon. (Gen. Stat 1901, §4487.) The word “action” is more limited in scope than the word “suit.” (Ulshafer v. Stewart, 71 Pa. St. 170; Cornish v. The Milwaukee & Lake Winnebago R. R. Co., 60 Wis. 476, 19 N. W. 443; The City of Marion v. Ganby et al., 68 Iowa, 142, 26 N. W. 40.)
The distinction between actions and special proceedings, under the code, is pointed out at page 721 of the Cyclopedia of Law and Procedure. The separate classification of actions and special proceedings in our statutes has led counsel for plaintiff in error to say in their brief that “the civil action in the district court to set aside the will is, to all intents and purposes, an appeal from the decision of the probate court, and is, in fact, a continuation of that proceeding just as much as a case on appeal from a justice’s court is a continuation of the case appealed.” The cases of Hospital Co. v. Hale, supra, and Dean v. Swayne, 67 Kan. 241, 72 Pac. 780, do not support this contention.
The present controversy did not arise in a contested action brought in the district court, but is narrowed down to the question whether or not the husband who is a subscribing witness to a will in which his wife is a legatee is competent to testify in the informal proceeding wherein the will is admitted to probate.
The policy of our law is to break away from the disqualifying restrictions anciently imposed upon witnesses by reason of interest. The same may be said of disqualifications arising from marital relations. In Higbee v. McMillan, 18 Kan. 133, 138, it was said :
“The law has abolished interest as a bar to competency of the witness ; and considering the other liberal legislative provisions regarding the testimony of married parties, for and against each other, the prohibition contained in said subdivision third of section 323 [Gen. Stat. 1901, §4771] should only apply where the letter of the law makes the same indispensable.”
Again, some weight must be given to the fact that in the act which makes provision for the attestation and proof of wills persons in the position of the witness in this case are nowhere declared to be incompetent. There is a provision, however, that devisees or legatees forfeit their legacies if the will cannot be proved except by their testimony, and they are thus qualified to testify. (Gen. Stat. 1901, §7947; Clark v. Miller, 65 Kan. 726, 68 Pac. 1071.)
When investigating the question involved we must stand in the light of the previous expressions of this court, that the statute rendering husband and wife incompetent to testify for or against each other in any action “should only apply where the letter of the law makes the same indispensable.” (Higbee v. McMillan, supra.)
If the probate of a will were had by action such as the law prescribes for its contest, an adversary proceeding in which all parties are entitled to be heard as of right, we inight conclude that the letter of the statute relating to the competency of witnesses in civil actions disqualifies a husband to testify in support of the will. However, as we have shown, the nature of the proceeding in the probate court to establish a will is such that it does not come within the category of civil actions, but must be classed as a special proceeding, although the latter is not defined in the statute.
The other witness, Mr. Stackpole, was not disqualified. On the claim of undue influence the court below found, on the testimony, against the plaintiff in error. We cannot disturb its findings.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J. :
Appellants were convicted in police court, and, on appeal, in the district court, of keeping and rearing swine within the corporate limits of the city of Topeka. Appellants admit the keeping and rearing of swine, but defend on the ground that the land devoted to that business was not a part of the city.
The city produced ordinances enacted and published in the year 1889, and judgments of the district court of Shawnee county rendered upon such ordinances, all under chapter 99 of the Laws of 1887, purporting to extend the limits of the city over the territory in question. Appellants make two classes of objections to this proof of annexation, one assailing the sufficiency and regularity of the proceedings of the city council and of the district court, and another attacking the validity of the statute under which those proceedings were taken.
If appellants have no right to question, in this collateral manner, the judgments, the ordinances, or the statute, the merits of their objections will not be investigated; if they, have such right, they are entitled to a decision of the questions raised. What is the law ?
So far as defects, informalities and irregularities, questions of good faith and good judgment, the finding of necessary facts, the determination of disputes of fact and like matters are concerned, it is established beyond cavil that annexation proceedings are closed against collateral attack.
“To maintain this suit, and to defeat the tax complained of, the plaintiff must establish, and the court must determine, that the organization of the district is illegal. This cannot be done in the present action. The legality of the organization cannot be questioned in a collateral proceeding, nor at the suit of a private party. The organization cannot be attacked, nor any action taken affecting the existence of the corporation, except in a direct proceeding, prosecuted at the instance of the state by the proper public officer. (Voss v. School District, 18 Kan. 467; School District v. The State, 29 id. 57; Stockle v. Silsbee, 41 Mich. 615, 2 N. W. 900; Clement v. Everest, 29 id. 22 ) In the last case cited it is said that ‘ It would be dangerous and wrong to permit the existence of municipalities to depend upon the result of private litigation. Irregularities are common and unavoidable in the organization of such bodies, and both law and policy require that they shall not be disturbed except by some direct process authorized by law, and then only for very grave reasons.’
“We do not intend to decide that in organizing this district the county superintendent’s action was regular and legal.
“What we do decide is, that there exists a valid law under which the organization can be made ; that a corporation has been created thereunder, and is in existence ; and that if there were any irregularities or illegal action in its organization, either by reason of the boundaries established or otherwise, that it must be determined by a quo warranto proceeding brought by the state.’’ (A. T. & S. F. Rld. Co. v. Wilson, Treas., 33 Kan. 223, 227, 6 Pac. 281.)
In the case of McGrew v. Stewart, 51 Kan. 185, 192, 32 Pac. 896, 898, it was said :
“Another point is presented, that plaintiff’s land is not a part of the city, for the reason that it consisted of more than five acres and was not wholly surrounded by platted territory; but the annexation proceedings are not open to attack in this action. The proceedings to annex, upon their face, are regular. The action of the city council and the findings and decree of the court in the extension of the limits end the con troversy as to whether the territory is rightfully within the limits of the city.”
The following among many cases to be found illustrate the principle : Kuhn v. Port Townsend, 12 Wash. 605, 41 Pac. 923, 29 L. R. A. 445, 50 Am. St. Rep. 911; Frace v. Tacoma, 16 id. 69, 47 Pac. 219; The City of Albia v. O’Harra, 64 Iowa, 297, 20 N. W. 444; St. Paul Gaslight Co. v. Village of Sandstone, 73 Minn. 225, 75 N. W. 1050; Mullikin v. The City of Bloomington, 72 Ind. 161; Powell et al. v. City of Greensburg, 150 id. 148, 154, 49 N. E. 955; Schriber v. The Town of Langlade, 66 Wis. 616; 29 N. W. 547, 554; C. C. C. & St. L. Ry. Co. v. Dunn, 63 Ill. App. 531; Sage v. City of Plattsmouth, 48 Neb. 558, 67 N. W. 455; People v. Smith, 131 Mich. 70, 90 N. W. 666; Judson v. City of Plattsburg, 3 Dillon (C. C.), 181, 184, Fed. Cas. No. 7570. Therefore, no objections of the first class will be considered.
The second problem presented is more difficult of solution. It involves the corporate integrity of the city of Topeka in the same manner as if the city’s original organization were attacked, since every extension of corporate limits to include new territory is to that extent a reorganization. In the case of State of Iowa v. City of Des Moines, 96 Iowa, 521, 31 L. R. A. 186, 65 N. W. 818, 59 Am. St. Rep. 381, it was held that an act providing for annexation to a city is one for the incorporation of the city, within the meaning of the constitutional provision against local or special laws'for that purpose; and in the case of State, ex rel., v. Mineral Land Co., 84 Mo. App. 32, the syllabus reads:
“The express power given to cities of the fourth class by statute to extend their limits over adjacent territory is one of pro tanto incorporation.”
In Cooley’s Constitutional Limitations, seventh edition, page 863, it is said :
“In proceedings where the question whether a corporation exists or not arises collaterally, the courts will not permit its corporate character to be questioned, if it appear to be acting under color of law, and recognized by the state as such. Such a question should be raised by the state itself, by quo warranto or other direct proceeding.”
In volume 1 of Dillon’s Municipal Corporations, fourth edition, section 43a, the same rule is given:
“Where a municpal corporation is acting under color of law, and, its existence is not questioned by the state, it cannot be collaterally drawn in question by private parties; and the rule is not different although the constitution may prescribe the manner of incorporation.”
And in the case of In re Short, Petitioner, 47 Kan. 250, 27 Pac. 1005, the syllabus reads :
“Where a public organization, of a corporate or a quasi-corporate character, has an existence in fact, and is acting under color of law, and its existence is not questioned by the state, its existence cannot be collaterally drawn in question by private parties.”
These general statements are inconclusive, however, because the expression “color of law” needs definition ; and the question still remains, Will an invalid statute, or a statute invalid for particular reasons, afford “color of law”? If the legally equivalent phrase “mere semblance of legal right” (7 Cyc. 401) be substitüted, there is stable ground for asserting that a statute apparently complying with the forms prescribed by the constitution for its enactment, and containing an intelligible declaration of the legislative will with respect to some matter fairly within the range of legislative cognizance, does make a sem blance — a show, an appearance — of legal right. The argument, however, is frequently made, that without a law there can be no organization or annexation, and that an unconstitutional law is no law; and from these premises it is, of course, a short cut to the conclusion that annexation under an unconstitutional statute is utterly void and may be collaterally attacked at any time.
This reasoning utterly ignores the foundation of the rule forbidding collateral question of the existence of municipal corporations. The rule rests wholly in expediency, and operates in defiance of other legal doctrines. The consequences to society of allowing private collateral attacks upon the existence of cities would be intolerable, and hence courts are concerned with the question, not if there exists a valid law, but if considerations of the public welfare shall forbid any inquiry as to whether or not there is a valid law; not if constitutional limitations have been transgressed, but if the public tranquillity and the effective administration of government require that the matter of validity, or invalidity, shall be ignored and a situation of affairs be arbitrarily recognized as if it were-legal, whether in fact it be so or not.
In the light of the reason for the rule against collateral attack, appellants in this case have no standing to raise the questions they propound. The statute is regular in form and purports to express a legislative design. The constitution commands that provision be made by general law for the organization of cities. (Art. 12, § 5.) The act of the legislature is one step in the execution of that mandate, the act of the city council is another, and the act of the' district court is a third ; and it would seem that a fair and apparently regular attempt on the part of the legislature to carry out the constitutional requirement should be as free from impeachment as are fair and apparently regular attempts to do so on the part of the council and the district court. The consequences to society of a collateral attack are as disastrous in the one case as in the others.
Upon this question many courts have expressed themselves with vigor. In the case of Coast Company v. Spring Lake, 56 N. J. Eq. 615, 36 Atl. 21, the syllabus reads:
“The fact that a general statute for the formation of boroughs has been officially declared to be unconstitutional in an action brought by the attorney-general to test the de jure existence of one corporation formed under the act cannot, in a collateral suit, affect the existence or powers of another borough organized under the same act.”
In the opinion it was said :
“The force of the judgment in the preceding case was spent when it annulled the corporate existence of the borough of Cape May Point. It is of course obvious that the decision in that case will be controlling as a precedent whenever the question of the constitutionality of the same act arises in a shape to be passed upon. The question can be raised by an attack upon any step taken to organize a borough under the provisions of the act by means of a certiorari allowed before the corporation has become an existing entity.
“After the corporation has been organized its existence can be called in question only by an information in the nature of a writ of quo warranto, allowed by permission of the attorney-general. No unconstitutional feature of the scheme provided by the legislature for the institution of such a municipal corporation can be made a ground for refusing to recognize the corporate function of a municipality so created when the corporate existence is involved in a collateral proceeding.”
In the case of Attorney-general v. Town of Dover, 62 N. J. L. 138, 41 Atl. 98, 99, the supreme court of the same state said :
“There can be no stability or assurance of safety in the conduct of government under legislative enactment if this rule is not recognized. Whether a law is valid and constitutional cannot be known until it is submitted to judicial decision, and it would lead to the wildest confusion and uncertainty in public affairs to hold that municipal government, under the provisions of legislative enactment, is wholly without authority or sanction where such enactment is ultimately pronounced to be infirm.”
In the case of Railroad Co. v. Town, 49 La. Ann. 931, 22 South. 192, the syllabus reads :
“The constitutionality of the act No. 49 of 1882, providing the method of creating municipal corporations, and the organization of the municipal corporation under the act, cannot be attacked collaterally by the defendant, resisting a tax claimed by the corporation.”
In the case of State of Iowa v. City of Des Moines, 96 Iowa, 521, 535, 31 L. R. A. 186, 65 N. W. 818, 59 Am. St. Rep. 381, the supreme court of Iowa, in a quo ivarranto proceeding, held an act of incorporation to be unconstitutional. In view of the fact that an annexation of territory under the invalid law had been acquiesced in for a period of four years, the right of the state to interfere was denied. In discussing the force of the unconstitutional law some authorities involving the doctrine of collateral attack were considered, and the court said:
“It will be seen that importance is given to the fact that the defective organization takes place under color of law. ■ Nothing less can be said of the annexation in this case than that it was made under color of law. ‘Color of law’ does not mean actual law. ‘Color’ as a modifier, in legal parlance, means ‘appearance as distinguished from reality.’ Color of law means ‘mere semblance of legal right.’ ”
The organization of an irrigation district was challenged as unconstitutional in a collateral proceeding. The United States circuit court for the southern district of California said:
“The rule, sustained by the overwhelming current of authorities, and based on considerations of public policy, is that, where a.reputed corporation is acting under forms of law, unchallenged by the state, the validity of its organization cannot be drawn in question by private parties. Corporate franchises are grants of sovereignty only, and, if the state acquiesces in their usurpation, individuals will not be heard to complain. Neither the nature nor extent of an illegality in its organization can affect the existence of a reputed corporation, if the requisites just stated are present; that is, if such corporation be acting under color of law, and the state makes no complaint.” (Miller v. Perris Irrigation Dist., 85 Fed. 693, 699.)
“If a corporation be acting under color of law, and be recognized as such by the state, its corporate character cannot be questioned collaterally. Such a question should be raised by quo ivarranto. And the rule prevails even though its incorporation may be affected by constitutional provisions.” (City of St. Louis v. Shields et al., 62 Mo. 247.)
“The constitutionality of a law establishing a new county cannot be inquired into upon a motion to quash an indictment found in a court of such county.” (State v. Rich, 20 Mo. 393.)
“When a municipal body has assumed, under color of authority, and has exercised for any considerable period of time, with the consent of the state, the powers of a public corporation of the kind recognized by the organic law, neither the corporation nor any private party can, in private litigation, question the legality of its existence.
“An unconstitutional and void law may yet be color of authority to support, as against anybody but the state, a public or private corporation de facto, where such corporation is of a kind which is recognized by, and its existence is consistent with, the paramount law, and the general system of law, in the state." (Ashley v. Board of Supervisors, 16 U. S. App. 656, 60 Fed. 55, 8 C. C. A. 455.)
Other authorities are to the same effect. In this state the constitution requires that no county shall be organized with less than a certain area in square miles. The legislature created the county of Garfield, and defined its boundaries. In a collateral proceeding it was agreed by the parties that the county contained less than the constitutional area, but this court declined to consider the matter. (In re Short, Petitioner, 47 Kan. 250, 27 Pac. 1005.)
In the case of Riley v. Garfield Township, 54 Kan. 463, 471, 38 Pac. 560, the opinion reads:
“As was said in School District v. The State, 29 Kan. 57 : ‘There was nothing, in fact, to put any one upon inquiry as to the defective character of this organization, because, although in furtherance of justice, the courts uphold the maxim that “ignorance of law excuses no one," it is nevertheless true that the unconstitutionality of legislative acts, until they are attacked directly, is often so latent and obscure as not to be discoverable, even by courts of justice, in any casual examination of such acts.'
“In this instance, the element of unconstitutionality was entirely outside of the act itself, hidden and obscure, and could only be discovered by ascertaining the actual area of the county. Although the original organization of Garfield county was without authority from the constitution, yet, as the statute creating the county was not void upon its face, and as the county had a de facto organization, and as the records of such organization appear regular and valid, and as the state officials proclaimed the organization, and as its validity was subsequently recognized by them and the legislature, we must hold that all of the bonds issued by Garfield county under the provisions of the statute and in regular form, while its organization as a county was in existence, are valid obligations in the hands of bona fide purchasers.”
In the case of Ritchie v. Mulvane, 39 Kan. 241, 17 Pac. 830, territory had been annexed to a city under a statute apparently valid, but in fact unconstitutional. Pursuant to the changed status of the annexed territory, tax proceedings were conducted which resulted in the issuance of tax deeds. In an ejectment action the district court held the deeds to be void, but allowed the tax-deed holder to recover the taxes paid. In this court the only question presented was if the taxes so assessed and levied might lawfully be recovered by the tax-deed holder, and the judgment of the district court concerning that matter was affirmed.
Doubtless an attempt to exercise corporate functions in opposition to the prohibition of a statute would be held void whenever questioned; and it is conceivable that a legislative departure from constitutional restraints may be so flagrant as not to afford even color of law. If something exhibited as a law were barren of an enacting clause, could it be called an act of the legislature ? In the case of Railroad Co. v. Kearny County, 58 Kan. 19, 48 Pac. 583, a collateral attack upon a municipal organization was permitted because of the appearance of non-existence on the face of the so-called law of its creation. The constitution requires that the subject of a bill be clearly expressed in its title. The title of the act impugned expressed one subject, and the body of it another. The situation was the same as if no attempt at legislation had been made. However, the same statute was held sufficient to give color of law to the organization of the same municipal body in the case of Speer v. Board of County Comm’rs, 88 Fed. 749, 32 C. C. A. 101.
After the decision in Railroad Co. v. Kearny County (which the writer believes to be wrong), this court, in the case of Riley v. Garfield Township, 58 Kan. 299, 49 Pac. 85, quoted approvingly from the case of State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409, in which it was said an unconstitutional law is sufficient to give color of title to an office, and held that, until the dissolution of Garfield county, in an action of quo tuarranto brought by the attorney-general for that purpose, the acts of all its officers were valid and binding, notwithstanding the unconstitutionality of its organization.
In the present state of the law it is impossible to announce a general rule for ascertaining in all cases what acts of the legislature, invalid for constitutional reasons, are sufficient to afford color of law ; and, until the rule against collateral attack upon municipal existence can be made absolute, the most that can be said is that there must be something apparently regular in the form of a statute, and it must fairly indicate the legislative will.
In this case the act of 1887 afforded color of law for the annexation of the territory in dispute. Its constitutionality will not be investigated, and the judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Gbeene, J. :
The plaintiff brought this action against Samuel Goodlad and others on a judgment previously obtained against William H. Goodlad, to set aside a deed given by the latter to Samuel Good-lad, and to have the land sold and the proceeds applied to her judgment. Other judgment creditors of William H. Goodlad were made defendants, who filed cross-petitions, pleading their judgments and the same general facts alleged by plaintiff with respect to the conveyance of the land to Samuel Goodlad, and asking for the same relief. At the conclusion of the evidence of plaintiff and the cross-petitioners the court sustained a demurrer thereto, and rendered judgment against them. To reverse this judgment they prosecute error.
After setting out their several judgments, the petition and cross-petitions state:
“On and prior to the 25th day of May, 1887, W. H. Goodlad was owner in fee, free and clear of all encumbrances, of (describing the land), and that the said W. H. Goodlad continued to be the owner in fee, free and clear of all encumbrances or liens whatsoever, of the said above-described real estate until the time of his decease as aforesaid; and that at the time of the creation of the indebtedness, as evidenced by the certain promissory note upon which said judgment so as aforesaid rendered in favor of this plaintiff and against the (said W. H. Goodlad and Ella Good-lad was rendered, the said W. H. Goodlad represented himself to be, and the records of Osborne county, Kansas, show, in fact, that he was, the owner in fee and possessed of the above-described real estate, free and clear of all encumbrances or liens whatsoever ; but that on the 25th day of May, a. d. 1887, the said W. H. Goodlad, being unmarried at that time, and for the purpose of cheating, wronging and defrauding this plaintiff, executed a pretended deed of convey anee to said land, in and by which said deed of conveyance he pretended to sell and convey to one Samuel Goodlad, a brother, all of the said described real estate ; that in fact said deed was without consideration and was wholly and entirely void, and the said defendant, Samuel Goodlad, for the purpose of assisting, aiding and abetting the said W. H. Good-lad in cheating, wronging and defrauding his creditors, and especially for the purpose of cheating, wronging and defrauding this plaintiff and preventing her from collecting her just debts, did not record said deed in the office of the register of deeds of Osborne county, Kansas, until the 30th day of January, 1901, and not until after the decease of the said grantor therein named, W. H. Goodlad ; and plaintiff alleges the fact to be that there was no delivery of said deed during the lifetime of the said grantor, W. H. Goodlad, and that during all the time from the said 25th day of May, a. d. 1887, until the time of his death, said W. H. Goodlad exercised all the rights of ownership of said property, and that during all the said years the said defendant, Samuel Goodlad, made no claim of any kind whatsoever that he owned said land or any interest therein.
“That she had no notice or knowledge of the pretended execution of said deed until said 30th day of January, a. d. 1901, when the same was recorded in the office of the register of deeds of Osborne county, Kansas, as aforesaid.
“That at the time of the pretended execution of the said conveyance from the said W. H. Goodlad to said defendant, Samuel Goodlad, . . - the said land was unimproved; but soon after the time of the pretended execution of said conveyance the said grantor in said deed named moved upon said land above described and continued to occupy the same until the time of his death as herein alleged; and that during his occupancy of said real estate the said W. H. Good-lad made many lasting and valuable improvements upon said land, at all times pretending and representing, and the records of Osborne county, Kansas, showing, that he was in fact the absolute owner thereof.”
This judgment was obtained in the district court of Osborne county, Kansas, May 3, 1896 ; the judgments pleaded by the cross-petitioners were obtained subsequently. There are no allegations in the petition or the cross-petitions that William H. Goodlad was indebted to either of the judgment creditors at the time he executed the deed, or that any of the judgment creditors extended to William H. Goodlad the credit upon which their judgments were rendered on his representation that he was the owner of the land, or on the faith of such ownership.
For the purpose of sustaining the allegations that the deed had not been delivered until after the grantor became insolvent, and that there was no consideration for such conveyance, the plaintiff and cross-petitioners introduced Samuel Goodlad as their witness. He testified, in substance, that he and his brother, William H. Goodlad, were residents of AVisconsin in 1887 ; that his brother was an unmarried man and was indebted to him in the sum of $1000; that in full satisfaction of such debt his brother executed and delivered to him a deed to the land in question, which deed he placed, with his other papers, in a safe then in his possession, belonging to his brother, where it remained until the latter engaged in the mercantile business in Kansas, at which time he wrote requesting that the safe be shipped to him. In complying with this request Samuel neglected to remove from the safe any of his private papers. Thereafter, having discovered this mistake, he wrote William H. Goodlad to return his papers and the request was complied with, and the deed, with his other papers, was returned to Samuel in Wisconsin .
This was all the testimony offered by the plaintiff on the question of the delivery of, or as to the considera tion for, the deed. Upon these two questions the plaintiff not only failed to prove that the deed had not been delivered and that there was no consideration therefor, but she proved the reverse of both of these propositions.
Notwithstanding the execution and delivery of the deed by William H. Goodlad to Samuel Goodlad for a valuable consideration, and the good faith of both, it is argued that, as to the judgment creditors of the former, Samuel has estopped himself from asserting his title to the land by permitting his record title to remain in William H. Goodlad and by permitting the latter to go upon, and remain in possession of, the land for a period of twelve years, making lasting and valuable improvements at his own expense, paying the taxes in his own name, and representing that he was the owner in fact. The force of this contention is apparent, and might be conclusive upon Samuel Goodlad, as between himself and all persons who had extended credit to William H. Goodlad on the faith of his ownership of this land. However, neither the plaintiff nor the cross-petitioners brought themselves within this rule. While the petition stated that William H. Goodlad represented that he was.the owner of the land, it was not alleged or proved that he stated to the plaintiff or either of the cross-petitioners that he was such owner, nor was it alleged or proved that credit was extended to him in the belief that he was such owner, or that his ownership entered into the minds of the creditors as a partial inducement for them to extend such credit. So far as the pleadings or the evidence go, the creditors, at the time the credits were given, may not have known that he claimed the land, or, if they did, they may have known he was not the owner. The creditors not hav ing shown that they were misled to their injury, or that they sustained a loss by reason of the conduct of Samuel Goodlad, the demurrer was properly sustained. The judgment of the court below is affirmed.
All the Justices concurring.
Clark A. Smith, J., not sitting. | [
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The opinion of the court was delivered by
Greene, J.:
The appellant was convicted of a felony and sentenced to the penitentiary under the indeterminate-sentence act of 1903. The crime of which he was convicted was committed before the enactment of the law, but his trial, conviction and sentence were had thereafter. Appellant comes to this court asking that the sentence be set aside and he be discharged and set at liberty because, as to him, the law under which he was sentenced is ex post facto.
The penalty prescribed when the offense was committed was confinement in the penitentiary at hard labor for not less than five, nor more than twenty-one, years. Section 1 of chapter 375, Laws of 1903, under which the appellant was sentenced, reads :
‘ ‘ Every person convicted of a felony or other crime punishable by imprisonment in the penitentiary . . . shall be sentenced to the penitentiary, . . . but the court imposing such sentence shall not fix the limit or duration of the sentence, but the term of imprisonment of any person so convicted shall not exceed the maximum nor be less that the minimum term provided bylaw for the crime for which the person was convicted and sentenced, the release of such person to be determined as hereinafter provided.”
Following this, provisions are found authorizing the prison board to establish rules and regulations under which prisoners may be paroled after the expiration of the minimum term fixed by law for the offense committed, and providing that after the prisoner has been on parole six months the warden shall, if he be satisfied that the prisoner will remain a good citizen and his liberty not' be incompatible with the welfare of society, certify such fact to the prison board, which board shall consider the case and perform the acts (all of which are set out in the provisions of the act) necessary to secure a final discharge of the prisoner from further liability under the sentence.
The term ex post facto applies only to penal or .criminal statutes. Every retrospective penal or criminal statute is not necessarily ex post facto. If the law' under which the appellant was sentenced mitigates the punishment prescribed in the statute in existence when the offense was committed it would not be ex post facto, although retrospective. (Commonwealth v. Wyman, 12 Cush. 237; Commonwealth v. Gardner, 11 Gray, 438; Dolan v. Thomas, 12 Allen, 421; In re Petty, 22 Kan. 477; Turner v. The State, 40 Ala. 21.) A retrospective criminal or penal law that does not deprive the party of some constitutional right to which he was entitled under the law at the time the offense was committed, or does not alter his situation to his disadvantage, is not ex post facto.
Section 10 of article 1 of the constitution of the United States provides :
“No state shall . . . pass any bill of attainder, ex post facto law, or law impaix’ing the obligation of contracts, or grant any title of nobility.”
The first time this question was presented to the supreme court of the United States was in Colder et wife v. Bull et wife, 3 Dall. 386, 1 L. Ed. 648. At page 390 Justice Chase defined ex post facto laws to be :
“(1) Every law that makes an action done before the passing of the law, and which.was innocent when done, criminal; and punishes such action ; (2) every law that aggravates a crime, or makes it greater than it was when committed ; (3) every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed.; (4) every law that alters the legal rules of evidence, and receives less, or different, testimony than the law required at the time of the commission of the offense, in order to convict the offender.”
The appellant has not specifically pointed out any provision of the law under which he was sentenced that increased the penalty, or deprived him of any constitutional rights or privileges to which he was entitled under the law as it stood when the offense was committed, or that in any way altered his situation to his disadvantage. A comparison of the act under which he was sentenced with the law in existence when the offense was committed will demonstrate that the law under which he was sentenced deprived him of substantial rights and increased his punishment.
Section 7050 of the General Statutes of 1901, which was in force when the offense was committed, reads:
“The warden shall cause to be kept a record of each and every infraction of the rules of discipline by the convicts, with the names of the convict or convicts offending, and the date and character of each offense, which record shall be placed before the directors at each regular meeting of the board ; and every convict whose name does not appear upon such record of reports for violation of the prison rules shall be entitled to a deduction from his sentence of three days per month, for the first year or fraction of a year, for each month he shall obey the rules of the penitentiary ; and all such convicts who shall have become entitled to a deduction of three days per month shall, for a like faithful observance of all the prison rules during the second year, be entitled to a deduction of six days per month ; and if any convict shall continue to obey the rules of the penitentiary for the remainder of his sentence, after the expiration of two years, he shall be entitled to a deduction of eight days per month until his sentence shall expire. If any convict shall be guilty of wilful violation of the rules of the prison, after he shall have become entitled to a diminution of service to which he has been sentenced, the directors shall have power to deprive such convict of a portion or all of such diminution of service to which he has previously become entitled by virtue of the provisions of this act; and it shall be the duty of the directors to direct the discharge of such convict when he shall have served out his sentence, less the time which shall be deducted therefrom by virtue of the provisions of this section.”
If sentenced under the law which contained these provisions, the appellant would be entitled, as matter of right, to a deduction from the term of sentence of all time earned for good behavior, and when the time thus earned, plus the time served, equaled the period of sentence, he would be entitled, as matter of right, to a full discharge. There are no provisions in the law under which the appellant was sentenced entitling him to any reduction of time for good behavior, as matter of right. There are provisions authorizing the prison board to establish rules and regulations under which prisoners may be allowed to go upon parole after the expiration of the minimum time for which they were sentenced, and by which they may be discharged six months after being paroled, but these are all matters of favor to be determined by the prison board, the(warden, the judge who passed sentence, and the governor. The right of the appellant under the law as it existed when he committed the offense to have a deduction of his sentence for good behavior was taken away from him by the act of 1903. This deprived him of a substantial right, and made the law of 1903, as to him, expost facto.
An indeterminate-sentence law was enacted in Massachusetts in 1885. Under that law one Murphy was convicted of the crime of embezzlement, and sentenced. The law in existence when the crime was committed provided for a scale of credits for good behavior similar to ours, except that under the Massachusetts law the prisoner was not discharged when the time allowed for good behavior, plus the time of service, equaled the full sentence ; he was admitted to parole for the unexpired term, and if he violated his parole he might be reincarcerated and required to serve the full term. Murphy prosecuted an appeal. (Murphy v. Commonwealth, 172 Mass. 264, 52 N. E. 505, 43 L. R. A. 154, 70 Am. St. Rep. 266.) It was held that as to the appellant the indeterminate-sentence law of 1885 was ex post facto because it deprived him of a right to which he was entitled under the law in existence when the offense was committed, viz., the right to receive credit for good behavior while serving his sentence. In Supplement, 13 Gray, 618, 620, it was said:
“But, upon a careful consideration of that provision, we are of opinion, that the benefit promised, in consideration of good behavior, was intended to be an actual reduction of sentence, as a right, and not as a favor; it therefore operated upon the sentence itself.”
Under the law as it once existed in Missouri, one charged with murder in the first degree but found guilty of murder in the second degree could not thereafter be placed upon trial for the greater offense. The constitution of that state was so amended that evidence of a former conviction of murder in the second degree was not a defense to a subsequent prosecution for the same murder in the first degree. One Kring was charged with committing the crime of murder before the change in the law. His trial occurred subsequently to the change, and he pleaded guilty to murder in the second degree and was sentenced accordingly. This sentence was set aside and he was again placed upon trial for the crime of murder in the first degree. He offered in evidence the record of his former conviction as a defense to the prosecution for murder in the first degree. The evidence was excluded, and he was convicted of murder in the first degree, from which conviction he appealed to the supreme court, alleging as error the exclusion of the record of his former conviction. The judgment of the court below was affirmed and he prosecuted error to the supreme court of the United States. (Kring v. Missouri, 107 U. S. 221, 2 Sup. Ct. 443, 27 L. Ed. 506.) The first division of the syllabus in that case reads :
“A. was convicted of murder in the first degree, and the judgment of condemnation was affirmed by the supreme court of Missouri. A previous sentence pronounced on his plea of guilty of murder in the second degree, and subjecting him to an imprisonment for twenty-five years, had, on his appeal, been reversed and set aside. By the law of Missouri in force when the homicide was committed this sentence was an acquittal of the crime of murder in the first degree ; but before his plea of guilty was entered the law was changed, so that by force of its provisions, if a judgment on that plea be lawfully set aside, it shall not be held to be an acquittal of the higher crime. Held, that as to this case the new law was an ex post facto law, within the meaning of section 10, article 1, of the constitution of the United States, and that he could not again be tried for murder in the first degree.”
It was held by this court in the case of The State v. Page, 60 Kan. 664, 75 Pac. 514, that an indeterminate sentence was for the maximum period. Therefore, unless the appellant was sooner discharged, he would be required to serve twenty-one years. If he had been sentenced under the law in existence when the offense was committed, he could have reduced his term of service by good behavior to fifteen and one-half years, as a matter of right.
There is another provision in section 8 of the act of 1903, the result of which might be to the material and substantial disadvantage of the appellant. It is there provided that if a prisoner violate a parole he shall be arrested and compelled to serve out the unexpired term of the maximum imprisonment, and the time from the date of his declared delinquency to the date of his arrest shall not be counted as any portion or part of the time served. Other provisions of the act authorize the prison board to make prison rules and stipulate conditions in the parole, a violation of which, although not a violation of any law, would subject the paroled prisoner to rearrest and reimprisonment. The time between the declared delinquency and the arrest not being deducted from the maximum time, the period within which appellant might obtain his liberty is extended beyond the maximum time for which he could have been sentenced under the law in existence when the offense was committed, this excess of time depending upon the activity, or negligence, of the . officers whose duty it would be to issue or execute a warrant for the arrest. For these reasons the sentence imposed was ex post facto, and should be set aside.
The appellant contends that where a judgment of a trial court is reversed because a void or voidable sentence was imposed, this court has no power to remand the cause for the imposition of a legal and proper sentence, but must discharge the appellant. We think it will be conceded that in enacting the criminal code of Kansas it was the intention to confer power on the courts to try and punish all persons violating the laws. To such a policy no one can take exception. If, therefore, a condition arise where one legally convicted of a crime might escape punishment because of a lack of power in the courts, a very serious mistake has been made. For the purpose of' carrying out this general scheme, sections 291 and 292 of the criminal code (Gen. Stat. 1901, §§5729, 5730), among other provisions, were enacted into laws. These sections read :
“291. The appellate court may reverse, affirm or modify the judgment appealed from, and may if necessary or proper order a new trial. In either case, the. cause must be remanded to the court below with proper instructions, and the opinion of the court, within the time and in the manner to be prescribed by rule of the court.
“292. When a judgment against the defendant is reversed, and it appears that no offense whatever has been committed, the supreme court must direct that the defendant be discharged ; but if it appear that the defendant is guilty of an offense, although defectively charged in the indictment, the supreme court must direct the prisoner to be returned and delivered over to the jailer of the proper county, there to abide the order of the court in which he was convicted.”
By eliminating that portion of section 291 which has no special application to the question under consideration, it reads :
“The appellate court may reverse, affirm or modify the judgment appealed from. . . . In either case, the cause must be remanded to the court below with proper instructions, and the opinion of the court.”
It appears from the language used in this section that the power to remand the cause with proper instructions is as explicit as the power to reverse, affirm, or modify, and it is equally plain that in all cases where the judgment is either reversed, or modified, except as provided in section 292, the cause must be remanded to the court below with proper instructions. The only authority this court has for discharging an appellant upon the reversal of a judgment is found in section 292, supra, and under the provisions of that section it is only when the judgment is reversed and it appears that no offense whatever has been committed. In all other cases the cause must be remanded to the court below with instructions.
So far as we have information this is the first time this precise question has been presented to this court. In the absence of a statute many of the authorities , support the contention of appellant. An examination will disclose, however, that they do not uniformly so hold, even in the absence of statutory provisions. Under our statute we have no doubt of the power of the court to remand the appellant to the court below, with instructions to award a proper sentence. The conclusion here reached is in harmony with the courts of other states having similar statutes. Section 523 of the code of Alabama of 1886 reads :
“If the judgment is reversed, the supreme court may order a new trial, or that .the defendant be discharged, or that he be held in custody until discharged by due course of law, or make such other order as the case may require.”
In the case of Herrington v. The State, 87 Ala. 1, 3, 5 South. 831, 832, the court said :
“It is contended that, because the circuit court exceeded its authority in the matter of fixing the punishment, the prisoner should be absolutely discharged. We cannot agree to this. He is subject to punishment, and rightly in custody. The only error is in declaring the kind of punishment he shall undergo. • The law has declared what kind of punishment may be inflicted on him, and there is not shown to have been any obstacle in the way of its infliction. . . . The judgment of the circuit court is reversed, back to the conviction — no farther — and the cause remanded, that the circuit court may render the proper sentence.”
Also in De Bardelaben v. State, 50 Ala. 179, the court said :
“ On a conviction of grand larceny, or knowingly receiving stolen goods of value greater than flOO (Rev. Code, §§ 3706, 3710), the court has no authority to sentence the prisoner to imprisonment in the county jail, since the statute only prescribes imprisonment in the penitentiary; but, on the reversal of such erroneous judgment, the cause will be remanded, not for a new trial, but that the proper judgment may be rendered.”
The state of Arkansas has the following statute :
“The supreme court may reverse, affirm or modify the judgment or order appealed from, in whole or in part and as to any or all parties, and when the judgment or order has been reversed the supreme court may remand or dismiss the cause and enter such judgment upon the record as it may in its discretion deem just.” (Dig. Stat. 1904, Sand. & H. Dig. § 1064 )
Applying this statute to criminal cases, the supreme court of that state, in several cases in which the sentence only was erroneous, have remanded causes to the trial courts with orders to enter a proper sentence under the law. (Brown v. State, 34 Ark. 232; Routt v. State, 61 id. 594, 34 S. W. 262; Simpson v. State, 56 id. 8, 19 S. W. 99.)
California has the following statute :
“The court may reverse, affirm or modify the judgment or order appealed from, and may set aside, affirm or modify any or all of the proceedings subsequent to or dependent upon such judgment or order, and may if proper grant a new trial.” (Penal Code 1872, § 1260.)
The supreme court of that state, in Ex parte Gilmore, 71 Cal. 624, 625, 12 Pac. 800, where, in the opinion of the court, the judgment was illegal, said:
“We are of the opinion that the first sentence, or judgment, was illegal, and perhaps void. As it was illegal, the court which rendered the judgment had power, during the term at which the judgment was rendered, to call the prisoner before it, vacate the illegal sentence, and impose one in accordance with the law.
“The petitioner being thus under the control of the superior court, we should have remanded the petitioner to give an opportunity to the court to do what it has done, have the party brought before it, vacate its illegal' sentence, and render a legal one. This being done it remains only to say that the petitioner was legally held, and he must be remanded to the custody of the sheriff.”
Again, in the case of People v. Eppinger, 114 Cal. 350, 46 Pac. 97, the court said :
“The crime of forgery, as defined by section 470 of the penal code, and that of passing a fictitious check with intent to defraud, under section 476 of the same code, are different offenses, and the entry of a judgment for forgery upon a charge of passing a fictitious check is a material variance, for which the judgment must-be set aside, with directions to enter a judgment in accordance with the charge.”
The' state of Florida has the following statute :
“The supreme court is vested with all the power and authority necessary for carrying into complete execution all its judgments, decrees and determinations in the matter before it, agreeably to the usages and principles of law.” (Rev. Stat. 1892, § 1309.)
In the case of Wallace v. State, 41 Fla. 547, 551, 26 South. 713, 715, the court said :
“Where an appellate court finds no reversible error in a record except that the sentence imposed is too vague and indefinite, it will not direct a new trial, but will reverse the judgment and remand the cause for the imposition of a proper sentence.”
Again, in D. L. R. and F. B. S. v. The State of Florida, 30 Fla. 82, 84, 11 South. 536, 537, the court said:
“Where error is confined to the sentence solely, we fail to see any satisfactory reason for granting a new trial or why it should affect any prior step in the cause, but are satisfied that such error should not be given a retroactive effect.”
• In that case the prisoner was remanded to the court for proper sentence. Section 1068 of the criminal code of the state of Georgia provides:
“The supreme court has authority . . . (2) To hear and determine all causes* civil and criminal, that may come before it; and to grant judgments of affirmance or reversal, or any other order, direction or decree required therein; and if necessary, to make a final disposition of the cause. It shall be within its power to award such order and direction to the cause in the court below as may be consistent with the law and justice of the case.” (Code 1895, vol. 3.)
In the case of Screen v. The State, 107 Ga. 715, 718, 33 S. E. 393, 394, the court said:
“The irregularity in the sentence is not of such a character as to entitle the plaintiff in error to be discharged from custody. He has been lawfully convicted, and he cannot, for the reason that the sentence was informal and irregular, be allowed to escape the penalty which the law declares shall follow his conviction. . . . The judgment is affirmed, with directions that the sentence be so amended as to conform to the provisions of the section of the penal code under which it was imposed.”
In the case of Wallace v. The People, 159 Ill. 446, 454, 42 N. E. 771, the court, after reviewing some of the Illinois cases involving erroneous, void and voidable sentences, said :
“The defendant having been accorded a full, fair and impartial trial, upon which no errors of law intervened, and a legal verdict returned against him, why should he be entitled to another trial merely because of this error occurring afterward ? No error will remain in the record after the circuit court shall have entered a proper judgment.
“For the single error indicated the judgment below will be reversed and the cause will be remanded to the circuit court of Tazewell county, with leave to the prosecuting attorney of that court, on behalf of the people, to move the court for the entry of a proper judgment of sentence upon the verdict, and with directions to the court to allow such motion and resentence the defendant.”
The state of Mississippi has the following statute :
“The supreme court shall have such jurisdiction as properly belongs to a court of appeals, and shall hear and determine all manner of pleas, plaints, motions, causes, and controversies, civil and criminal, which are now pending therein', or which may be brought before it, and which shall be cognizable in said court. . . . And the supreme court may grant new trials and correct errors of the circuit court in granting or refusing the same.” (Ann. Code, § 4345.)
In construing this statute, in the case of Kelley and Little v. The State of Mississippi, 11 Miss. 518, 528, the court said :
“For the two errors just pointed out, the judgment of the court below is reversed, without disturbing the verdict, and the cause remanded, with directions to the court below to pronounce its judgment in accordance herewith, having first duly inquired of the de-. fendants whether they have anything further to urge why its judgment should not then be pronounced.”
Under the Oklahoma statute, which is a copy of ours, in Rhea v. The United States, 6 Okla. 249, 50 Pac. 992, the court said :
“It is error for the trial court to fail to inform defendant, before passing sentence upon him, of the nature of the indictment, his plea and the verdict, and to fail to state, in the judgment or sentence, the crime of which defendant has been convicted, but the only effect of such errors would be to require defendant to be returned to the court wherein convicted for proper judgment and sentence.”
Many other decisions under similar statutes might be referred to in support of our conclusion. While the opinions in many of the instances cited do not refer to the special statute, yet it may be assumed that where such a statute existed the decision was in pursuance of a construction placed upon it.
Appellant appeals to this court, not because of any error occurring at the trial, but because of the sentence of the court, conceding that the trial and verdict of conviction were properly had. He now seeks to be relieved from a proper judgment upon that verdict. To escape from the penalty which, by his proceedings, he admits could have been legally inflicted upon him, he must show an entire lack of 'power in the court to render a proper judgment. Under the statutes this court has the power to remand the petitioner to the court below with instructions to set aside the sentence imposed and award such a sentence as the law in existence at the time the crime was committed justified. This is the judgment of the court.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
This action was for damages resulting from the alleged trespasses of the plaintiff in- error on the premises of defendant in error. The petition prayed for treble damages. The defendant being in default, and a jury having been waived by the plaintiff, the cause was tried by the court, and a judgment’rendered for the plaintiff (defendant in error) for $300. Afterward plaintiff in error filed two motions to set aside the judgment. The first motion was on the ground that there had been no legal and valid service of the summons, by any person authorized to serve such summons: The second motion was on three grounds, 1st, Misconduct of the plaintiff; 2d, Surprise, which ordinary prudence could not have guarded against; 3d, Irregularity in obtaining the judgment. Both motions were overruled, and -the ruling of the court on these motions are the. errors complained of in this court.
I. The return indorsed upon the service shows valid service. Laws of 1871, ch. 123, p. 285. This statute makes a material change in the laws as to service of process on corporations, and so far as it makes such change.supersedes the provisions of the general statutes.
II. There is nothing in the record tending to show any misconduct of the plaintiff. The surprise alleged, arose from these facts: Previous to the commencement of the term, the attorney for the Railway Company, which was then in default, asked the judge of that district if this and another case against the Railway Company, would be tried at the next term of the court. The judge answered that they would not. Acting on this answer, the attorney of the company, who lived at a distance from Lyon county, did not attend the court, and made no preparations for a trial. If a statement of a judge out of court is judicial, then an attorney has a right to rely on it, and plead it in any proceeding that may arise. If it is not judicial, then a party may rely upon it, but at his peril. If it is judicial, then the other side has a right to be present, is entitled to notice, and may be allowed to except. It is idle to attempt to show that such statements are judicial. They are like the statements of any one else, and a party trusts them at his peril. If they do not prove correct, then, although the attorney may be surprised, yet he has no reason to complain. The opposing party is not to blame, and is entitled to have his 'cause heard when it is reached, regardless of what the judge said off the bench. It is supposed the judge thought the case would not be reached. In this he was mistaken. The attorney, relying on his judgment on this point, did not attend, and the court very properly heard the case. The “irregularity” complained of is, that the court assessed treble damages, and that the case is one not authorizing such a judgment. There is no showing whatever that the court did render a judgment for treble damages. The judgment is affirmed.
All the Justices concurring. | [
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‘The opinion of the court was delivered by
Kingman, C. J.:
The facts found by the court seem to be .■sustained by the evidence. It is true that the evidence that •George Fisher was the agent of Statham, is not conclusive, but it is unimpeachcd and uncontradicted; and one cannot iread it without coming to the conclusion that he was such •.agent, when he took the tax certificate. Witnesses do not .always make those nice and refined distinctions in the terms they use, that characterize writers upon mental science, and .seem to be so familiar to counsel. Still they'have made their meaning sufficiently intelligible in this case for a plain man to understand it. An admission by one that he is the agent of another is good' evidence of that fact as against the agent, and that is the purpose for which it was admitted in this case. Different rules, apply, where it is attempted to use the admissions of a person to prove that he is an agent, as against a third party, as in the case of Streeter v. Poor, 4 Kas., 412.
A much more important question remains for, decision. The plaintiff in error holds the tax deed as the heir of his father, George Eisher, deceased. George Fisher became the agent of Statham, the holder of the original title, and under whom the defendants in error claim, in the year 1857, and this agency continued till he became the holder of the tax certificate, unless that relation was destroyed by the war of the rebellion. It is clear that in 1863 Fisher thought and talked as though he was still the agent of Statham. When this case was here before, this court decided that an agent, while acting as such, cannot become the owner of the tax title as against his principal. The plaintiff in error now seeks to avoid that conclusion by alleging that the contract of agency was destroyed by the condition of the parties in 1863. It appears from the evidence that Statham in 1861 was in the state of Virginia, and within the confederate lines, and so remained until Fisher had become the holder of the tax-sale certificate; and that during all that time communication between Statham and Fisher was cut off by the war. It is-also asserted that Statham was a rebel, but the evidence is-not sufficient to make that inference certain. Nor do we-consider the fact material in this case. If he was a rebel, the government might have confiscated his land; and as a rebel he could not lawfully exercise acts of ownership over his-land. But his right to do so was not destroyed; it was only suspended. Did this state of facts destroy the agency so as-to absolve Fisher from all legal obligations to Statham? We think not. He had Statham’s money in his hands. The government could have confiscated it. During the war the-agent could not have paid it over, not because he did not owe it, but because he could not have done so without holding intercourse with the enemy within the confederate lines, which of itself would have been illegal. And perhaps also, because he could not transfer funds, which might become a -source of revenue to the government, to those who might use it to strengthen the hands of the common enemy. But while for one. or both of these reasons he could not have paid the money he had, over to Statham, the debt was not discharged— .only the collection suspended. When the war ceased, the payment could be enforced. A state of war puts an end to mil such business relations, between the citizens of the opposing powers, as requires a correspondence between them; and mil contracts made with a view to any communications between parties, members of nations at war, are void as against public policy; “but other contracts existing prior to the war are not .-extinguished, but the remedy only is suspended, and this only from the inability of an alien enemy to sue, or to sustain, in the. language of the civilians, a persona standi in judi,cio.” 1 Kent’s Com., 68. It is not necessary in this mase to examine at length the rights of citizens in time -of -war, because the principle involved does not require it. A man may retain an agency for an alien enemy during war, because by so doing he does not necessarily violate the rule inhibiting communication. This is not only according to principle, but is in conformity with the decided cases. Denniston v. Jarbric, 3 Wash. C. C., 396; Buchanan v. Curry, 19 Johns., 136; Manhattan Life Ins. Co. v. Warwick, 20 Grattan, 614; Conn v. Penn, 1 Peters C. C., 496; Monseax v. Urquhart, 19 Louisiana, 485. In a recent case in the r supreme court’the principle that an alien enemy-may have . an agent residing in this country and thereby enable a debtor to pay his debt to the agent, and thus stop the payment of interest, was recognized; Ward v. Smith, 7 Wallace, 447. ' There was therefore mo reason growing out of the war why Fisher should not remain the agent of Statham. He really -did continue as such agent; and retaining the agency he -could not become the holder of the tax title as against •the principal, as was before decided in this case. We have not thought it necessary to consider whether the law applicable to alien enemies, belonging to different countries, is applicable to citizens of states in rebellion, and citizens of states supporting the government, and are not to be precluded from an examination of that question when it shall arise. The most favorable view of the case for the plaintiff in error is the one we have presented. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
The defendant in error having obtained a divorce from her husband, and a judgment for alimony against him, and an execution that issued upon the judgment having been returned “No property found,” she brought an action to set aside a deed from her former husband, Thomas Anderson, to his brother, Daniel Anderson, to a certain quarter-section of land in Brown county. The land was owned by Thomas Anderson, and was occupied by himself and 'family, including defendant in error, at the time the deed was made. She alleged that her signature to the deed was obtained by duress. The evidence is not all in the record,. but sufficient to show the questions raised. The land sold was the homestead of the family. To alienate it the joint consent of the husband and wife was required. Prima fade that consent was shown by the deed. The defendant in error (plaintiff below) must show that her signature to the deed was made under such circumstances as could not be held to indicate her consent. In support of this point in her case she testified in her own behalf, and in her testimony there is the following, which was admitted over the objections of plaintiff in error:
“A short time before the deed was executed my husband, Thomas Anderson, came into our house on the place, which was our homestead, and asked me, no one being present but us and our little girl, if I was going to sign that deed ? I told him I was not—-you have promised to keep it as a homestead. He came and struck me with his fists, first on one side of my head, and then on the other, three times, and pulled my hair. He said if he did not get the deed signed one way he would another. I was in poor health; he had been talking to me before about signing the deed. I told him at the first conversation that I did not want to sign the deed. He said- nothing further until evening, when he brought the axe in, and sharpesed-a large knife; said nothing, but looked very angry; said he was going in the morning to get ’Squire Streeter to take the acknowledgment of the deed. No one was present but us and our little girl.”
The rule by which the admissibility of this testimony is to be determined is certain, and is not obscure. It is found in the latter part of the third clause of § 323 of the code, and is as follows: “But in no case shall either” (that is, husband or wife,) “ be permitted to testify concerning any communication made by one to the other during the marriage, whether called while that relation subsisted or afterwards.” This is but declaratory of the rule of the common law, and the difficulty grows out of the application of the law to the facts, and not from any uncertainty as to the law that is to control. The testimony as quoted is in direct response to the question aslted, and the question itself was objected to on the same .grounds that are urged against the admissibility of the evidence. The question then is, does the testimony disclose any communication made to the wife by the husband .while the marriage relation subsisted between them ? To this question we are constrained to make answer in the affirmative. It seems a peculiar hardship to allow a husband to shield himself tinder the protection of the law from the consequences of his own outrages. But the rule of law is absolute, and is founded in wisdom, and it would be a great evil to weaken its universal- application to meet the exigencies of a single case, however much that case may appeal to our sense of justice.
The only other error urged in this court is as to the instructions. But little of the evidence is in the record, and there is nothing in the scraps preserved that tends in any way to show that the plaintiff in error was not a bona fide purchaser for a valuable consideration. So far as we can perceive the jury decided the case on the ground that defendant in error signed the deed under duress. If she did so, she never gave that consent to the alienation of the homestead that the constitution requires, and the court submitted this question fairly to the jury under proper instructions. As we understand the law on this point the good faith of the purchaser cuts no figure, and the court correctly refused the first instruction asked by plaintiff in error. The second instruction asked is not law in any case, and was therefore properly refused.
For the error in the admission of the testimony, the judgment must be reversed, and the case remanded for further proceedings.
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 in -the district court for a settlement of partnership affairs. He -alleged in his amended petition a partnership, its termination, that defendant (now. plaintiff in error) had in his possession •certain assets of the partnership, that he refused to account, •excluded plaintiff from all control over the property, declined to make any division, or any disposition whereby a settlement of the partnership could be had. The petition was verified. Upon notice and motion, supported by affidavits, -a receiver was appointed. A motion to rescind and set aside •the order appointing a receiver was overruled, as was also a .similar motion made after filing of answer. This answer •denied absolutely any partnership, and was also verified. The cause was continued over one term, over the objection of the defendant, and was then referred. The referee’s report found a partnership, and made an accounting between the-partners, and division of the assets. It divided the costs.. This report was confirmed, except as to the costs, which by the district court were taxed wholly against plaintiff in error.
Five points of alleged error are presented to our notice in the brief of counsel for plaintiff in error: 1st, That it was-error to appoint a receiver upon the showing made; 2cl, That the appointment should have been set aside upon the motiop made therefor, before answer; 3d, It should have been done after answer filed denying under oath the partnership; 4th,. It was error to grant the continuance; 5th, That the court ought not to have modified the referee’s x-eport as to the-question of costs.
I. It is objected that “the petition contains no averixxent that there was danger that the property, woxxld be wasted, ox-injured, before the answer, or before the trial of the case.” Sxxch an averment was entirely unnecessary. The showing of a necessity for a receiver need xxot be in the petition. The: appointmexxt of a receiver is a provisional rexnedy. It is an auxiliary proceeding. It is xxot the xxltimate exxd or object of a suit. The statute says, “a x-eceiver xxxay be appointed * * * * in an action,” etc. All that the pleadings xxeed disclose. is, that the action pending is one of a class in which thestatxxte says a x’eceiver xnay be appointed. A J t L < receiver may be appointed in an actioxx to foreclose. a nxortgage, if the mortgaged property be probably insufficient to discharge the mortgage-debt. In sxxch case, all that the petitioix need contain are the ordinary averments for the fox’eclosure of a xnortgage. The x-elat-ion of the value of the xnortgaged property to the-mortgage-debt may. be .shown by affidavits, oxx a motion for a receiver. The motion may succeed or fail, and yet in nowise-affect the pexxding sixit. It beax’s no closer relation to the suit-than attachment iix axx action oxx a px’omissory note does tosxxch actioxx. In this case the petitioxx disclosed axx unsettled partnership between the parties, and partnership property in the hands of defendant, and an exclusion of plaintiff from any control thereof. It presented an action therefore in which upon proper showing a receiver might be appointed. Code, § 254, clause 1, Gen. Stat., 677.
II. Upon the affidavits presented on both sides it is claimed that it appeared that the property would be safe in the hands of the defendant, and therefore the appointment of a receiver should have been set aside. It appears very plainly from the affidavits that there was a partnership; that defendant had possession of all, or nearly all, the assets, and that he was disposed to deny the' partnership and appropriate the partnership property. In regard to defendant’s financial condition we find little or no information. Three citizens of Humboldt testify that in their judgment it was good. The bulk of the partnership property consisted of cattle, and two witnesses testified that the cattle were herded at Hottenstein’s place, at the time of the appointment of the receiver, and were in good condition, and not liable to waste. We do not think this testimony justifies the conclusion daimed by counsel. It does not necessarily follow, because the partner in possession is solvent, that no receiver will be appointed. In fact, the question of solvency may or may not become material. Receivers may now be appointed (see clause sixth of section of code heretofore cited,) “in all cases where receivers have heretofore been appointed by the usages of the courts of equity.” Where the testimony leaves the existence of a partnership in doubt, and there is no proof of the insolvency of a party in possession, a court of eqnpy Ayip not interfere to take the property out of his hands and give it to a receiver: Goulding v. Bain, 4, Sandf., 716; Peacock v. Peacock, 16 Ves., 49. But the former case shows that where a partnership is established, and the defendant in possession excludes plaintiff from , any control, a receiver should be appointed, and this, without any regard to the solvency of defendant. The court say: “ When the partnership is admitted, and one partner ejects another, or assumes the exclusive control of the property, and they cannot mutually agree as to their respective rights, a court of equity will interfere and appoint an indifferent person as receiver to wind up the partnership, and pay the debts, and distribute the balance among the partners. But to authorize the appointment of a receiver there must be a partnership admitted or established.” In that case there was a large amount of testimony by affidavits, pro and con, on the question of partnership, leaving its existence a matter of great doubt, and the language of the court must be understood in reference to those facts. Obviously, there is great propriety in the rule thus laid down; for if no partnership did exist, it would be great hardship to have one’s individual property.placed in the.hands of a receiver, and individual business broken up. So that when the question of “partnership” is doubtful, the property should not be disturbed, unless it appear that defendant is insolvent, and that there is great danger of loss, removal, or injury. But on the other hand, where the partnership is clearly > x x u shown, if the partner injured and deprived of possession seeks to have the property placed in the hands of a disinterested person as receiver, the wrongdoer, in possession, and denying his partner’s rights, has little standing in court to object. “A receiver will be appointed where any of the partners seek to exclude another from taking that part in the concern which he is -entitled to have, and this applies as well to a period when the ordinary course of trade is going on, as to the time of winding up the affairs after the termination of the-partnership.” * Edwards on Receivers in Eq., 329; Wilson v. Greenwood, 1 Swanst., 481; Williamson v. Wilson, 1 Bland Ch., 418; Const v. Harris, 1 Turn. & Russ., 496; Gardner v. Trustees of Canojoharie, 2 Barb., 625. It would be opening the door to a great deal of wrong to hold, that by simply denying the existence of a partnership a party in possession of large amounts of partnership property could, hold that possession until, after the delay of a suit, the verdict of a j ui-y had established the partnership. It would often result in real victory to the wrongdoer. A court having 'the right hear testimony as to a fact, upon a motion, has a right to find as to the existence of that fact. Wherever an application for a receiver in a partnership case is ma(je, the court has to hear some testimony as to the existence of the partnership. Ordinarily, there is on this point no counter testimony; yet the court finds on the testimony ^presented on the motion that there was a partnership. Without such finding it could not appoint a receiver. Having power to make such a finding, that power is not taken away by the introduction of counter testimony. It must still find as to the fact. If there be much contradiction in the testimony, it may require proof of additional facts, such as the insolvency •of the defendant, before making any appointment.- But still its power to examine the testimony, and determine as to the fact, remains. Whatever a court may examine into on motion, it may also determine. Its determination, for the purposes of the motion, establishes the fact.
III. After answer Ayas filed denying under oath the partnership, a motion Ayas again made to set aside the order appointing a reeei\rer. This Avas OAmrruled, and properly so. Verification of the ansAver Avas necessary, under the code of 1868, to put in issue the question of partnership. It gaAre to the ansiver no greater force than an unverified denial Avould have had prior to that code. It is still to be regarded only as a pleading, a pleading-in the only form in Avhich an issue as to partnership could be raised. But as Ave have seen, the pleadings simply determine the character of the action. ' The shoAving for a receiArer is made aliunde. True, the verified ansAver may be used as an affidavit, but then it is to be treated only as an affidavit. It Avere strange if the effect of a fact demonstrated by abundant testimony could be obviated by simply tendering an issue as to its existence. Our code is not obnoxious to such fault.
IV. “It Aras error to grant a continuance,” say the counsel; but hoAv counsel imagined Ave Ayere to determine this question, is beyond our conjecture. The grounds for a continuance, to Avit, the absence of material Avitnesses, and a misunderstanding between counsel, are set forth in the record, No one would for a moment question the suffieiency of one at least of these grounds. What showing was made in support of them we are not informed. It appears that one affidavit, that of J. B. F. Cates, was to-be presented. But whether it was in fact presented, or whether other testimony was produced, we are nowhere informed. How then can we say the court erred in granting this continuance? We cannot presume that he granted it-without any showing, nor without sufficient showing. We-might as well presume that the verdict of a jury was against the weight of evidence, -when none of the testimony was before us. Matters of continuance are largely within the discretion of the trial court, and unless that discretion is shown to have been abused, error will not be affirmed.
V. A similar criticism must be passed upon the next and last alleged error. Whether the costs ought to have been apportioned between the parties, or taxed wholly against the-defendant, is a question which can be determined only by an examination of the testimony. In cases like the-present, the court “may award and tax costs, and * as in its discretion it may think Code, § 591. None of the testimony apportion the same, * * right and equitable, before the referee is preserved in the record. How then can we say there was error in taxing all the costs against the defendant ? The finding and report of the referee is not conclusive in this matter. It is subject to examination and review by the court. The referee is but an officer of the court, and the court has supervision and control of all its officers, and their proceedings. It can set aside, or confirm, or modify the report of a referee. Plere it affirmed the report, except as to1 the costs, which is a matter entirely separate from the issues in the case, though to a great extent dependent on them. Indeed, it may well be doubted whether the question of costs was passed to the referee under the terms of - the reference,, which was “the hearing of this cause upon all the issues.” But whether within the terms of the reference or not, it was not so far passed to the referee as to be beyond the reviewing: and revising power of the court. No error appearing in this- or the other points made by the plaintiff in ei’ror, the judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
Two cases have been submitted to us, each entitled “C. P. Alvey v. John Wilson, C. B. Brace and A. L. Baker,” and each involving the same questions of law and fact. Therefore we shall write but one opinion for the two cases, and we shall hereafter speak of both cases as though they were only one.
This action .was commenced originally before a justice of the peace by the defendants in error, Wilson, Brace and Baker, against said C. P. Alvey and one Henderson Cavender, as partners, on a promissory note which reads as follows:
“$141.72. Garnett, Eeb. 3d, 1870.
“ Six months after date for value received I promise to pay to the order of Wilson, Brace & Baker one hundred- and forty-one and 72.100 dollars, with interest from date.
“Alvey & Cavender.”
The plaintiffs allege in their bill of particulars that the said Alvey and said Cavender executed said note as partners under the name of “Alvey & Cavender.” Cavender set up as a defense to the plaintiffs’ action that he did not execute said note at all, and that he did not belong to the firm of Alvey & Cavender. The plaintiffs then dismissed their action as against Cavender. Alvey made default, making no appearance of any kind in the justice’s court. ■ After the plaintiffs dismissed their action as against Cavender they amended their bill of particulars, with leave of the. court, so as to allege that Alvey alone executed the note under the name of “Alvey & Cavender.” But they gave no notice of the amendment to Alvey. The court then proceeded to trial against Alvey alone, and rendered judgment in favor of plaintiffs and against Alvey for the amount of the note. Alvey took the case to the district court on petition in error, and the district court affirmed the decision of the justice. He now brings the case to this court and asks a reversal here.
We think the justice erred in rendering judgment upon the plaintiffs’ amended bill of particulars without Alvey having any notice of the amendment. (Civil code, § 136.) But the error was, under our statutes, entirely immaterial aud unsubstantial. Any evidence that could have been introduced under the amended bill of particulars, and that would have proved the same, could have been introduced under the original bill of particulars and would have proved the original bill as against Alvey. And the very same judgment that was rendered under the- amended bill of particulars could have been rendered under the original bill. The plaintiffs did not get anything more under the amended bill of particulars than they were entitled to under the original bill. Nor did the -defendant < lose, anything.,.by ..reason,. of-the amendment. “In all cases of joint obligations and joint assumptions, of •copartners, or others, suits may be brought and prosecuted against any one or more of those who are so liable.” Ch. 21, Gen. Stat., 183, § 4. See also, ch. 14, (p. 116,) § 15, and ■civil code, §39. And where several persons are sued as defendants, “judgment may be rendered for or against any ■one or more of the several defendants:” Code, § 396. The ■dismissal of the action as against Cavender was not erroneous. The plaintiffs had a right to so dismiss, and to proceed against Alvey alone, and to take judgment against him alone. See Silvers v. Foster, ante, p. 56, and statutes there cited. Probably no evidence was necessary in this case; (justice’s act, § 84;) but if it was we would infer from the record that it was given. We have referred to certain sections of the code of ■civil procedure because such code applies to .proceedings before justices of the peace, when applicable, and where it is not ■otherwise provided by law: Justice’s act, § 185.
As only one error is shown to have been committed' by the justice, and as that error is entirely immaterial, the judgment of the justice should have been affirmed; and therefore the judgment of the district court must be affirmed. (Civil «code, § 140.)
All the Justices concurring. | [
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The opinion of the court was-delivered by
Kingman, C. J.:
This is an action brought by the defendant in error to recover a lot in Leavenworth. She is the sole heir of Malcolm Clark deceased, and is entitled to recover unless her title as such heir has been divested by the sale and conveyance of her alleged guardian, John W. Williams. On the trial the court directed the jury to find for the plaintiff, who is now defendant in error. From the verdict rendered under this instruction, and a judgment in pursuance thereof, the plaintiff in error appeals to this court. The circumstances of the case are such that the judgment of the court will not be affirmed without a critical examination of the grounds on which it rests, and a clear conviction that it is the law. If that conclusion is reached, then no consideration of the hardships of the decision can affect the action of the ■court. It may be proper also to say, that we are not insensible of the importance, as a matter of public policy, •of upholding sales made by guardians and personal representatives whenever it can be done under the law. If such sales .are generally held good, that fact increases the competition at the sales by enlarging the circle of bidders, by inviting the attention of a class who buy for use and are generally willing to pay a fair price; while if such sales are of doubtful validity, only speculative and chancing men are ready to invest at prices that justify the risk. Therefore it is for the interest of those whose estates have to be disposed of in this manner, that the public generally should have confidence in the validity of the titles acquired.
The first objection to the title of plaintiff in error is, that there is no valid appointment of John W. Williams in this state. The evidence shows the appointment of Williams as guardian of the person and estate of Alice A. Clark by the probate court of Platte county, in the state of Missouri, on the 1st of November 1858, and a bond filed in said court on the 4th of the same month, and an additional bond approved May 2d 1859. Other proceedings of the probate court of Platte county were in evidence, which it is not necessary to indicate, but showing that Williams continued to act as guardian there until the 5th of January 1866, when he was removed, and Alfred W. Hughes appointed in his stead. On the 5th of August 1859 Williams filed in the probate court of Leavenworth county an affidavit that he was the guardian of Alice A. Clark; that she was between eight and nine years of age, and resided with him in Platte county, Missouri; that-nothing had come into his hands as such guardian, and consequently he had filed no inventory of the estate of his ward in Missouri or elsewhere. On the 8th of August 1859 Williams filed his oath of office as guardian, and on the 5th of October 1859 an inventory of the estate of Alice A. Clark, which consisted largely of lots in the city of Leavenworth. On the 18th of May 1860 he made a settlement as guardian in the probate court of Leavenworth county, and on the 4th of March 1861 he procured an order of sale for such lots as in his opinion it would be for the interest of the ward to sell. He was authorized to sell at private sale “ to the amount of $3,000 or $4,000.” On the 6th of March he reported the sale of the lot in controversy, which report was approved, and it was ordered that the guardian file a bond conditioned as required by law, and make a deed for the lot. No bond was given. On the 23d of July 1862 the guardian filed a petition for the sale of real estate, and the court authorized him to sell at private sale enough of the property to realize the sum of twenty-five hundred dollars, requiring him before selling to execute a bond in the penal sum of five thousand dollars, with security to be approved by the court. On the same day the guardian reported the sale of certain lots including the lot in controversy, whereupon the court approved the sale and ordered a deed to be made, and a deed was made accordingly for this lot—the sale being made to the same parties that were reported purchasers at a previous sale of the same lot.
On the 29th of December 1869 the following order was made in the probate court of Leavenworth county:
State of Kansas, Leavenworth County, ss.—In the Probate Court sitting in and for said county—October Term, Wednesday, December 29, 1869.
In the matter of John W. Williams, Guardian of the Person and Estate of Alice A. Clark, a minor.
It appearing to the court that on the 5th of August 1859, at a term of this court then in session, the following order and judgment was made by said court, and drawn up and filed Avith the papers herein, but by an oversight was not copied in the journals of this court, and that the same should be entered in the journals of this court, to take effect as the judgment of this court of said date, in order to make a complete record herein, it is ordered by the court that the same be entered on the journals of this court, and that the same take effect as of said 5th day of August, 1859, which judgment and order is in the words and figures following:
“Estate of Alice A. Clark, a minor. Application of-Williams, to be appointed Guardian of the Estate of said minor.
“It appearing to the court upon petition of-Williams, that said Alice A. Clark is a minor under the age of fourteen years, non-resident of this Territory, and residing in the county of Platte, and state of Missouri, and that said minor has property, real and personal, Avithin this county; and it further appearing in the said petition that the said-Williams has been duly appointed by the probate judge of the said county of Platte, the guardian of the person and estate of the said minor; and the said Williams having produced to this court a copy of the order of his said appointment, certified and authenticated .according to laAv, it is ordered that the said-Williams he, and is hereby, appointed the guardian of said non-resident minor, for the purpose of selling or otherwise controlling the property of the said minor, under and by virtue of orders which may from time to time he made by this court. And the said - Williams having filed an, authenticated copy of the bonds filed by said guardian, in the state of Missouri, and fully accounted for not having filed an inventory in said foreign state, and the court being satisfied with the sufficiency of the amount of the security, the filing of an additional bond is hereby dispensed with.”
This nunc pro tunc order is the only one that shows that Williams Avas authorized in this state to act as guardian. There is a succession of orders in the probate court,.some of which are referred to above, shoAving that lie assumed to act as guardian, and that bis acts therein Avere recognized by the court. Bat before he could assume to act in the matter of disposing of the real estate of a minor, he must actually have had the authority. This position is not questioned. It is asserted that he had the authority, but by oversight the same bad not been formally entered upon the record, and tbat the court had authority to make the record show the fact by the nunc pro tunc order above recited. The principle asserted is a very grave one, and not free from doubt. It is certainly a Avide reach of power, to authorize a probate court, more than ten years after such an order is claimed to have been made, to enter an order that shall reach back and cover the actions of the intermediate years, affecting the rights to property, the liability of sureties on a bond, and all the relations of the minor during that period. But great and perilous as is the power thus claimed, it is not necessary in this case to decide upon its existence. It is enough for us to say that if the. power exists it does not in this case grow out of §178, page 294, Gen. Stat., for that section only permits the “immediate successor” of an ex-officer to .comjdeto the records of his predecessor. The record shows that several persons had hold the office of probate- judge of Leavenworth county between the time when this order is claimed to have been made, and the entry of the nunc pro time order in December 1869. Nor do we think the proceeding could have been justified under § 201, page 471, Gen. Stat., for it can hax’dly be claimed that a memorandum, xxot filed or signed, axid which is incomplete and imperfect in itself, can be considered as one of the papers of the coxxxk, such as will axxthorize the court to go back more than ten years and declare it a record for all that time, axxd oxx his own motion,' without notice, make it a record. Such a power is xxot foxxnd in the language of the scctioxx referred to; and to straiix its language, by giving it such a coxxstruction ixx this case, would lead to endless coxxfusion and great wrong. It is not doxxbted that the power of the court .to enter a nunc pro tunc order withoxxt express statutory provision exists. It is only the power to make the record disclose the truth in a matter in which-right and justice may demand it. This power is however sxxbject to such limitations and restrictions as experience has shown were necessary to prevexxt its abuse. ■ Whether such an order was proper ixi the present case need not be determined. Such an oxdei’, vitally affectixxg the rights of others, should never be made withoxxt aiotice to those to be affected thereby. In Englaixd such orders are made only xxpoxi a rule; Tidd’s Pr., 489, 532, 533; 54 Exxg. Com. Law R., 970; axxd we have foxxnd xio ease in this country whore sxxch orders are made without a rule, or xipon due notice, except in those cases where there has been an appeal, and pending the appeal, where the case has been ' held under advisement, if either party die then the judgment is entered nunc pro tune, “that the delay arising from the act of the court may not turn to the prejudice of the party.” Tidd, 932. In all the other cases referred to by counsel for plaintiff in error, where such an order has been made, notice was given and an opportunity offered to contest the action of the court, and to take an appeal. The principle and ■ the reason of it are stated by Ch. Justice Hornblower in The. New Jersey Turnpike Co. v. Hall, 2 Harr., 337, as follows: “ Whenever a court, or any person acting under legal author-' ity,' is to act judicially, or exercise a discretion in a matter- ■ affecting the rights- of another, the party thus to be affected' is to have reasonable notice of the time and place when and where such act is to be done, to the end that he may be heard' in defense, or for the protection-df those rights.” The author-'' ities cited by the defendant in érror show the application of - ■ the rule in almost .every kind, of proceeding.
It woiild be difficult to imagine a case where in common justice a notice was more imperatively required than' in this order. More than ten years had elapsed since it is claimed the proceedings were had. The guardian had long ceased to be such in Missouri,-had never given any bond in this'state, tlie ward had become of age, and had long before commenced the action in -which the order-was to be read in evidence. It would be a-grave injustice to sanction such action by holding it valid, for however much we may desire to so ■ rule • in this particular case as to promote what seems to us the equity of the case, we cannot forget that w-e are also fixing rules for a large class of cases. To allow the probate court to-make nunc pro tunc orders, ex parte, ■;without restriction as to -the character of the order, or the time in which it may be made, and with no one present but -the interested attorney, would inevitably open the door to a practice dangerous to the great interests confided to that court. We cannot do it in the face of reason and authority. Perhaps no better illustration of the danger of such a cause could be suggested, than the record discloses: On the 22d of July 1862 John W.- Williams and his attorney appeared in the probate court, and procured au order to be made making Williams the guardian from the 5th of July 1859, of the person and estate of Alice A. Clark.. Thus, without a bond, or notice, a man was appointed, to a position of great trust, and from the nature of the appointment the sureties on the bond in Missouri would not be liable.. It is not claimed that this appointment had any validity.. There was much evidence as to notice, but it is so plain that no notice was given that the question is not open to doubt.. On the evening before the order was made one of the attorneys for the plaintiff in error in this case told one of the attorneys for the defendant in error that an application would be made the next morning, but was then informed that the attorney was not employed by defendant in error in that matter; and this is shown to be true in the evidence. This-was no notice to any one, much less to Mrs. Thomas.
It is claimed in argument that the recognition of Williamsás tlfe guardian, the filing of inventories, and.the frequent adjudications of the court, are matters necessarily finding him to be the guardian, and are sufficient to show his authority without the appointment being entered of record. • It may readily be conceded that in a suit against the pretended guardian the various orders obtained by him, and his acts,, would be sufficient to establish his character as guardian,, because he would thereby be estopped from denying that he acted in such capacity, and consequently estopped from denying his liability for his acts as such. Again, if the records-were lost, such acts would prima facie establish the fact that such an-appointment had been made. That is, they would be-facts tending to show that, an appointment of record had been made. In this case it is conclusively shown that no appointment had been made of record, and therefore no inference can be-drawn from the facts to support such a conclusion; and to this extent is the decision in Shawhan v. Loffer, 24 Iowa, 217. In a case involving a similar principle in Massachusetts the court say that to draw an inference that an order had been made, from •subsequent ones, would “be as irregular as it would be for a •common-law court to issue an execution without any evidence ■of a judgment except what might be contained in the execution:” Chase v. Hathaway, 14 Mass., 226. See also Hutchins v. Johnson, 12 Conn., 376. “The guardian derives his authority from his appointment which is of record:” Maxon v. Sawyer, 12 Ohio, 195. Coon v. Cook, 6 Ind., 268, is a •case showing that subsequent orders cannot be used to show ■that a previous one had been made; and so is Makepeace v. Lukens, 27 Ind., 435.
It is claimed that the defendant in error, after coming of :age, ratified the sale by her acts; biit we fail to see' in’-the record any evidence that ought to be of the slightest weight .•as tending to show a ratification. It -is -true, that immediately ■after ai’riving of age an attorney who had been very busy in •obtaining orders for the sale of her property took her around in his buggy, .pointing out the lots that had been sold and those that still remained to her; but there is no word that indicates her approval or disapproval of the sales made. Under the circumstances any approval would have been of little or no consequence, but there was none. The record also fails to show that one dollar of the purchase-money ever came into her hands. It is true that Williams testifies that a part of it was used for her maintenance and education while she was .•still an infant, but such.use cannot be tortured into a ratification of the sale. About the time the defendant in error came •of age she signed a paper releasing the sureties on the gpar•dian’s bond in Missouri from any responsibility to her by -reason thereof. It is claimed that this was a recognition of Williams as guardian. There is much testimony as to whether this release was made before or after defendant in •error was of age. Without analyzing the evidence on this point we assume that she was of age when she signed it, and that the release was valid and binding; and still we are ■unable to see how it affects this case. If it be held that it is a solemn and binding recognition that Williams was guardian, it is only that he was guardian in Missouri, and in no way estops her from denying that he was guardian in Kansas. It-lacks other essential elements of an estoppel, not necessary •now to designate. The conclusion we have reached on this point of the case renders it unnecessary to examine the other defects in the sale by the pretended guardian, although one of them at least would probably prove as fatal to the plaintiff in error as the one decided.
There being no basis for the pretended sale, the court correctly ■ instructed the jury to find for the plaintiff, the defendant in error here, and the judgment is affirmed.
Valentine, J., concurring.
Brewer, J., not sitting" im/this case. | [
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The opinion of the court was delivered by
Kingman, C. J.:
An action was instituted against the plaintiff in error, a foreign corporation, engaged in the business of fire insurance in this state, without having obtained from the superintendent of insurance of the state a certificate of authority to transact such business of insurance in this state, and without having any legal right, warrant, or authority to transact the business of fire insurance in the state of Kansas. The answer was a general denial, and a special defense, setting up a license or certificate of authority issued to the plaintiff in error by the auditor of state on the 25th of February 1871, authorizing the corporation to transact the business of fire insurance in the state from the first day of March 1871, until the 28th of February 1872. The issues so made were tried by the district court without the intervention of a jury, and resulted in a judgment against the plaintiff in error, to reverse which the case is brought to this court. The case was tried on an agreed statement of facts, and documentary evidence, all of which are brought to this court.
Two questions are presented: First, did the auditor issue a valid certificate of authority to the plaintiff in error, as set up in his answer ? Second, did such certificate of authority if valid, confer upon the plaintiff in error such a vested right to do business until the last day of February 1872, as would preclude the legislature from imposing further regulations and duties upon foreign corporations as a necessary prerequisite to their transacting business in the state ? If the first of these questions is decided in the affirmative, then it will become necessary to determine the second.
We think the record shows a want of conformity with the requirements of the statute on the part of the insurance company in matters essentially requisite to be done by the company under the law. Whether such informalities can be inquired into in this proceeding, or whether the decision of the auditor that the company had complied with all the requirements of the law, and thereupon had issued his “ certificate of authority,” is conclusive, need not be decided here. It is an interesting question, and was somewhat elaborately argued; but it is not in our way. There is one fact that is jwrisdietional in its character. By § 110, Gen. Stat., page 220, it is provided that “before the auditor shall issue, any certificate of authority, or any renewal of the same, the corporation or its agent shall pay into the state treasury for the support of the common schools the sum of fifty dollars.” The payment of this money was an act to be done by the corporation, and to be done before it had a right to ask for the certificate of authority, and without the payment of which the certificate of authority is a nullity. In this case it appears that the certificate of authority was issued on the 25th of February 1871, and that the money was not paid into the treasury until the 21st of March thereafter. When the auditor issued the certificate of authority he receipted for the fifty dollars and his fees, and drew on the plaintiff in error his draft for the same, payable on sight, and transferred the same to the Topeka Bank. The draft was paid on presentation, and on the 21st of March the money was paid by the auditor into the treasury. Until it was paid into the treasury the state had no interest in it, or control over it; and until it was so paid the auditor had no power under the law to issue the certificate of authority. Plaintiff in error claims that the state received the money when the auditor drew the draft; that the auditor acted as the agent of the state in receiving the money, and therefore the state cannot in honor deny that it received the money. The argument involves an error of fact, and an entire misapprehension of the duties and powers of a public officer. The error of fact is in assuming that the drawing of a draft payable on sight is the same thing as receiving the money from the drawee.; but the much more serious error is found in the declaration that the auditor acted as the agent of the state in. drawing the draft, or in receiving the money when it was paid. The limits of an officer’s authority are found in the law. The law in this case, for reasons in harmony with our entire financial system, gave no authority to the auditor to collect the money. It is one of the checks of our system that the treasurer receives the state’s money, and the amount which he receives shall appear in the records of some other office. It is not necessary to say that the plaintiff in error was bound to know the details of our financial system, or be familiar Avith its general spirit; but when it came within the state, seeking to extend its business among our people, it Avas bound at its peril to take notice of express provisions of laAV stating the terms upon Avhich it could be permitted to do business in the state. One of the conditions Avas, that by itself or its agent it should pay a certain sum into the state treasury before the auditor could issue the certificate, and before it acquired any right to a certificate, or any authority to do business in this state. If the corporation chose to pay this through the auditor, then for that purpose the auditor Avas the agent of the corporation, and not of the state; and until the money reached the state treasury it aaus under the control of the corporation and not of the state. Therefore, when the certificate of authority Avas issued, one of the vital conditions upon which it could be granted had not been complied Avith on the part of plaintiff in error. It was a condition that neither the auditor nor any other officer could waiA'e or dispense Avith. Because of the non-payment of this money the certificate itself Avas void, and presented no defense to the action.
This conclusion renders it hnnecessary to consider any of the other questions raised in this case.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action for • malpractice. The cause alleged was the unskillful and negligent treatment of a compound fracture of plaintiff’s leg. Verdict and judgment were for the defendants. None of the testimony is preserved, it being stated in the bill of exceptions simply that plaintiff offered testimony tending to prove the allegations of his petition, and the defendants’ testimony tending to disprove them. The case is before us therefore only upon the instructions, and as to them it nowhere appears that all that were given or refused are preserved in the record.
The main questions presented by the instructions have but recently been before this court, in the case of Tefft v. Wilcox, 6 Kas., 46, and the views therein expressed seem decisive of this case. The court gave this instruction:
“ The law required the defendants to possess and employ that degree of skill which ordinarily characterized the profession at the time they treated the limb; and if you find that such injuries resulted from want of such skill the defendants arc liable.”
And the court refused this instruction asked by the plaintiff: “ It is the duty of the attending surgeon to exercise such reasonable skill and diligence as thoroughly educated surgeons ordinarily employ; and in judging of this degree of skill in a given case, regard is to bo had to the advanced state of the profession at the time.- In other words, it is the duty of every artificer to exercise his art rightly and truly as he ought, and this is peculiarly the duty of professional practitioners to whom the highest interests of man are often necessarily entrusted.” If the instruction given stated the-law fully and correctly, the court Avas under no obligation to restate that laAV in the same or different language simply because requested. One statement is enough. A refusal to. repeat is no error. That the instruction given stated the law correctly cannot at this late day be questioned. Reason able care and skill is the measure of obligation created by the implied contract of a surgeon, lawyer, or any other professional practitioner. “ His contract as implied in law is, that he possesses that reasonable degree of learning, skill, and experience which is ordinarily possessed by others of his profession; that he will use reasonable and ordinary care and diligence in the treatment of the case which he undertakes, and that he will use his best judgment in all cases of doubt as to the proper course of treatment.” Tefft v. Wilcox, 6 Kas., 61; Bauer v. McCarty, 3 Kas., 241; McCandless v. McWha, 22 Penn. St., 261; Leighten v. Sargent, 7 Foster, 460; Howard v. Grover, 28 Maine, 97; Simonds v. Hewey, 39 Maine, 155.
The instruction refused was framed by uniting detached sentences in the opinion of the court in the case above cited from 22 Penn. St., 261. That case laid down the rule as above given of reasonable skill and diligence. Perhaps the instruction carefully analyzed does no more than affirm this rule. If so, then as wo have seen it had been already given to the jury. But there are some expressions in it which seem to carry the idea of a higher obligation; some at least which would be apt to convey such an impression to a jury. If told that it was the duty of a surgeon “to exercise his art rightly and truly,” they might reasonably understand that he was required in any given case to use such treatment as the circumstances of that case demanded, and that a failure to use such treatment was a breach of duty. This too without reference to the cause of such failure, whether mistake of judgment, want of the highest skill, or otherwise. Under these circumstances it was the duty of the court to avoid the use of language which was apt to mislead, and to use only that which plainly and clearly declared the rule.
Of some of the other instructions refused, we are unable to see whether they are applicable to the facts of the case as disclosed by the testimony, and of course cannot say whether they were properly or improperly refused. Of such character is the one that it is the duty of a patient to submit to such treatment as his surgeon prescribes unless he thereby perils his health or life. Whether this be correct or not is immaterial. For though correct, it may have been properly refused because there were no facts developed in the testimony which called for any expression thereof.
It is objected that the true measure of damages was not given in the instructions. But the jury never reached the question of damages; and if there be any error in this respect it has wrought no prejudice to the plaintiff. The judgment will be affirmed.
All the Justices concui-ring. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued to recover damages for failure to furnish sufficient prop timbers of suitable length and size, resulting in the falling of a rock and an injury to him in defendants’ coal mine.
There was testimony that the plaintiff ordered 3 foot 4 inch props of the pit boss and the driver; that an area from 13 to 15 feet by about 24 feet in the room where the plaintiff worked was unpropped; that the height of the room was 3 feet and 4 inches; and that there were no unused props in the room at the time. The jury returned a general verdict in favor of the plaintiff, and in answer to the first special question found that he was injured by the fall of a rock in a room in the defendants’ coal mine. To each of the four following questions, as to whether the plaintiff ordered 3 foot 4 inch props of the pit boss and driver, whether there was an area in the north end of plaintiff’s room in which the roof had not been propped, as to the height of the rooms, and as to whether there were any loose or unused props in the room, the jury answered, “We do not know.”
The defendants moved that the jury be required to return and answer these questions, which motion was denied. They afterwards filed a motion for judgment upon the special findings and a motion for a new trial. The former was overruled and the latter sustained. The defendants appeal from the order overruling the motion for judgment, and the plaintiff presents a croás appeal based on the failure of the court to require the jury to answer the questions, and from the order granting a new trial.
The defendants argue that the answers to the four questions amount to findings in favor of the defendants and mark the failure of the plaintiff to make out a case, and that, as no motion was made by either party to set aside these findings, it was error to overrule the motion for judgment.
The plaintiff raises the points that as no judgment was entered on the verdict and a new trial was granted there is nothing for the defendants to appeal from, and that the refusal of the court to require specific* answers to the questions amounted to a withdrawal of such questions. Authorities are cited to the effect that the refusal to compel an answer amounts to a withdrawal of a question, but that rule did not apply in this instance, for the questions were answered, and, although improper in form, the answers were in effect as if they had been in the negative.
Much is said about the refusal of the court “on the request of either party” to require the jury to answer the questions. It is true that either party may request this, but it does not follow that the party who makes no such request can avail himself of the refusal of a request made by the opposing party. While the plaintiff excepted to the refusal, he did not make or join in the request. The party against whom the ruling is made and the error committed is the one to make complaint. In this instance the error committed was against the defendants.
The motion for judgment on the special findings and the motion for new trial were filed the same day, and both motions were passed upon at the same time. By this action of the court it came about that no judgment was entered against the defendants, and that at their request a new triál was ordered, and it is difficult to see what they have to appeal from. To be final, the order must, under section 566 of the civil code, in effect determine the action and prevent a judgment, and, while in one sense the order prevented a judgment in favor of the defendants, the action is still undetermined.
In Burton and Shoemaker v. Boyd, 7 Kan. 17, it was held that—
“A party against whom no judgment has been rendered or final order made, and who, after the trial in the court below, moved for and obtained an order granting him a new trial, has no good reason to complain in this court of the action of the court below.” (syl. ¶ 1.)
In A. T. & S. F. Rld. Co. v. Brown, Adm’r, 26 Kan. 443, the defendant moved for judgment on the findings, which motion was overruled, and thereafter- made a motion for new trial, which was sustained, and it was held that, as no judgment had been rendered against the defendant and no final order made against it, no petition in error would lie, following Burton v. Boyd. In the ease of Railroad Co. v. Holland, 58 Kan. 317, 49 Pac. 71, a motion for judgment on the findings was held not to be a waiver of a motion for a new trial, and the danger was pointed out of failing to file the latter within the three days’ time required by the statute. The defendant in Ratliff v. Railroad Co., 86 Kan. 938, 122 Pac. 1023, moved for judgment on the special findings. No motion for new trial was filed, but it was held that under the peculiar facts presented a new trial should be directed by this court. In Stanley v. Railway Co., 88 Kan. 84, 127 Pac. 620, both motions were filed, and the motion for new trial was denied solely because the motion for judgment on the findings was granted, the court also finding that the verdict was contrary to the evidence. It was held that upon reversal the trial court should pass upon the motion for new trial upon its merits.
While special findings control the general verdict when inconsistent therewith (Civ. Code, § 294; Tacha v. Railway Co., 97 Kan. 571, 155 Pac. 922), it is also true that a new trial is not to be granted unless the trial court shall be of the opinion that the verdict or decision is wrong in whole or in some material part. (Civ. Code, § 307; Burnett v. Street Railway Co., 90 Kan. 282, 133 Pac. 534.) It is to be presumed, therefore, that the court below must have regarded the verdict or decision wrong in at least some material part, and may have believed that some of the answers were in conflict with the weight of the evidence.
The plaintiff did not attack the findings or request more specific answers. The defendants in their motion for a new trial asked that the verdict be set aside, without mentioning the findings. The action of the court in granting this motion operated, however, to set aside both the verdict and findings, thus leaving nothing on which to base a judgment.
In the situation presented by the record, the plaintiff is in no position to complain, and the defendants, having solicited and obtained the granting of a new trial, do not present any adverse final order for our consideration.
The orders of the trial court are affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiff seeks to recover $289, the amount alleged to be due on a negotiable promissory note. He recovered judgment for $13.92, and appeals. The note was given by the defendant to the Lyon-Taylor Company, of Iowa City, Iowa, for a piano, a watch, and some silverware, to be distributed as prizes in a scheme for advertising and promoting sales in the business of the defendant, who was a hardware merchant at Axtell, Kan. M. F. Price, of Iowa City, under the trade names of the Lyon-Taylor Company, the Puritan Manufacturing Company, and the Franklin Price Company, conducted three separate kinds of business. The one under the name of the Lyon-Taylor Company was that of increasing sales by country merchants through contests, a scheme of advertising planned and sold by the company; the one under the name of the Puritan Manufacturing Company was that of selling jewelry; while the one under the name of the Franklin Price Company was that of selling perfumery. The defendant signed an order for a piano, a watch, and some silverware, and for the advertising matter and instructions that went therewith, and put on contests for (the piano, the watch, and the silverware. These were to be distributed as premiums to candidates receiving the highest number of votes. The contract contained the following provision:
“Increased Sales Guaranteed — Sales preceding twelve months were $......Next twelve months are hereby guaranteed to be $31,200, and if .092 percent of said sales does not amount to $289.00 we hereby agree to pay to purchaser the deficiency in cash. We also agree to send our bond in the sum of $1,000.00 to cover this agreement.”
The contract had printed thereon the following:
“The attached note is tendered in settlement of this order and the company is authorized to detach same when the order is accepted.”
Under the contract, the goods described were to be shipped by the Lyon-Taylor Company to the defendant f.o.b. transportation company. The Lyon-Taylor Company did not ship some of the goods promptly, and those goods were not in the hands of the defendant when they were to be delivered to the contestants as prizes.
The note sued on was attached to the contract at the time it was signed, but was detached before it was transferred. A copy of the note attached to the petition was indorsed, “Lyon-'Taylor Company, by M. H. Taylor.” The answer contained a general denial, an allegation that the plaintiff was not the owner of the note in good faith, and that if he ever did purchase the note, it was after the maturity thereof, with notice of the defenses and equities of the defendant. The answer further alleged the failure of the Lyon-Taylor Company to perform.its part of the contract, set up a counterclaim of $175.55, alleged damages in the sum of $100; prayed judgment for $271.55, and tendered into court $117.45. The amount tendered into court was 92 hundredths of 1 percent of the gross sales made by the defendant for the period agreed to under the contract. The answer was verified. The jury returned a verdict for $13.92 in favor of the plaintiff, and answered certain special questions as follows:
“4. Did the First National Bank of Iowa City, Iowa, acquire the note in suit as collateral security on or about the 9th day of August, 1913? Answer. Yes.
“5. Was the First National Bank of Iowa City, Iowa, at the time it took the note in suit, guilty of bad faith in so doing? Answer. Yes.
“6. If you answer the above question in the affirmative, then state the particular facts constituting such bad faith. Answer. On account of suits pending on similar notes.
“7. Did the First National Bank of Iowa City, Iowa, have- notice of any defect in the note in suit at the time it acquired the same? Answer. Yes.
“8. If you answer the above question in the affirmative, then state the particular facts of which it had notice. Answer. By past experience on similar notes.”
There was evidence which tended to show that the Puritan Manufacturing Company transferred the note to the First National Bank of Iowa City, as collateral, to secure the payment of the notes of that company aggregating $8,000; that about a month before these notes became due the bank notified the company that payment of the notes would be expected at maturity; that M. F. Price, or Mr. Taylor, a representative of Price, went to the plaintiff and induced him to go to the bank and purchase the notes of the Puritan Manufacturing Company and take the collateral then held by the bank to secure the payment of the notes as security in the hands of the plain tiff; that an arrangement was then made between Price or Taylor and the plaintiff by which if any of the notes taken as collateral were unpaid at maturity, such notes should be turned over for collection to an attorney to be named by Price, and the plaintiff should not be at any loss or expense on account of such collection. The note sued on was among those held by the bank as collateral, and was, by the bank, turned over to the plaintiff.
The plaintiff requested a peremptory instruction for judgment in his favor, moved for judgment on the special findings of the jury, and filed a motion for a new trial in which he alleged “that the general verdict and the answers to the special questions are contrary to the evidence.” The request for instructions and the motions were denied, and error is assigned thereon.
The note was past due when the plaintiff became the owner of it, and he was not the holder thereof in due course; but he claims to have derived his title from a holder in due course, and that, therefore, he held tíie note free from any defenses in favor of the defendant. Section 6585 of the General Statutes of 1915 provides that “a holder who derives his title through a holder in due course, and who is not himself a party to any -fraud or illegality affecting the instrument, has all the rights of such former holder in respect.of all parties prior to the latter.”
Section 6579 of the General Statutes of 1915 reads:
“A holder in due course is a holder who has taken the instrument under the following conditions: (1) That it is complete and regular upon its face; (2) that he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact; (3) that he took it in good faith and for value; (4)- that at'the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”
What was there to show that the First National Bank of Iowa City was not a holder in due course? This question .is answered by the special findings of the jury. Those findings were not sufficient to establish that fact. Neither the fact that suits on other notes of like character given by other persons,' nor the fact that the bank had previously had like experience on similar notes, was sufficient to establish that the bank was guilty of bad faith in taking the note sued on, or that it was not the holder thereof in due course. When the note was delivered to the bank, it was indorsed in blank by the payee thereof. The note was then payable to bearer, and was negotiable by delivery. (Gen. Stat. 1915, § 6561.) The burden was on the defendant to prove that the bank was not the holder of the note in good faith. (Mann v. National Bank, 34 Kan. 746, 10 Pac. 150; Savings Association v. Barber, 35 Kan. 488, 11 Pac. 330; Gafford v. Hall, 39 Kan. 166, 17 Pac. 851; National Bank v. Elliott, 46 Kan. 32, 34, 26 Pac. 487; Brook v. Teague, 52 Kan. 119, 125, 34 Pac. 347; Clark v. Skeen, 61 Kan. 526, 532, 60 Pac. 327; Gen. Stat. 1915, § 6586.)
Under the findings of the jury, the judgment on the note could not be reduced by any matter set up in defense.
To sustain the judgment, the defendant argues that the evidence did not prove the indorsement of the note by the Lyon-Taylor Company, but did prove that the*first National Bank of Iowa City acquired the note from the Puritan Manufacturing Company by assignment on a separate sheet of paper. The indorsement of the note by the Lyon-Taylor Company was established by abundant evidence. The defendant’s contention concerning the transfer of the note by the Puritan Manufacturing Company by assignment is based on the following testimony:
“Q. Now, how did you know whether you were getting any title to that Lyon-Taylor paper at that time if you did not know who composed the firm? A. Because it was indorsed by the Lyon-Taylor Company and subsequently indorsed by'the Puritan Manufacturing Company and the Puritan Manufacturing Company guaranteed to us the genuineness of the previous indorsement.
“Q. Do you want to be understood as testifying that the notes in suit in these cases are indorsed by the Puritan Manufacturing Company? A. They should be indorsed by the Puritan Manufacturing Company; if not, the assignment was made in separate assignments; in any event the genuineness of the paper would be guaranteed to us by the Puritan Manufacturing Company.”
The note was not indorsed by the Puritan Manufacturing Company. There was, then, some evidence to show that the bank obtained the note by assignment from that company. The Puritan Manufacturing Company was not the holder of the note in due course. The name was one of the trade names under which M. F. Price did .business, and he had notice of all defenses and equities in favor of the defendant. If the bank obtained the note by assignment, without reference to the indorsement of the Lyon-Taylor Company, it took the note subject to the equities and defenses of the defendant. (M’Crum v. Corby, 11 Kan. 464; Hadden v. Rodkey, 17 Kan. 429; Hatch v. Barrett, 34 Kan. 223, 8 Pac. 129; Briggs v. Latham, 36 Kan; 205, 13 Pac. 129; Offenstein v. Weygandt, 89 Kan. 739, 132 Pac. 991.)
In Farnsworth v. Burdick, 94 Kan. 749, 147 Pac. 863, it was held that the holder of a note by assignment written on the back thereof is a holder in due course. But that case does not overrule previous decisions of this court where the assignment is made in writing and is not'attached to'the note. The plaintiff took the note from the bank subject to the equities and defenses of the defendant.
Other matters are urged by the plaintiff, but there is no substantial merit in any of them, and none of them is of sufficient importance to justify discussion.
The judgment is reversed, and a new trial is ordered. The same order is made in cases numbered 21,516 and 21,517. | [
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The opinion of the court was delivered by
JOHNSTON, C. J.:
This was an action to recover damages for slander. The general verdict and special findings of the jury were in defendant’s favor. The defendant appeals from the order of the trial court granting plaintiff a new trial, which was made upon the sole ground that one of the instructions was erroneous.
The petition set forth certain statements. alleged to have been made by defendant to several persons falsely accusing plaintiff of having committed unlawful and criminal acts against defendant’s property. Defendant’s answer was a general denial, and he further alleged that unlawful acts were in. fact committed against his property; that he consulted with the county attorney, who directed him to make an investigation as to who committed the acts; that if defendant made any of the statements or statements similar to those charged in the petition, they were privileged communications, spoken only to those in the employ of or assisting defendant, and were made to carry out the instructions of the county attorney and in an honest effort, without malice, to determine who had committed the wrongs and crimes referred to. The facts as found by the jury were that defendant’s engine was moved and damaged, some feed burned, a horse killed, a cow stolen, and a w;ater tank punctured with shot; that as soon as these depredations commenced, and from time to time thereafter, he consulted with the county attorney, and was advised by him to ascertain and secure evidence against the guilty parties, and to use his friends or employ detectives for that purpose; that defendant undertook to carry out the county attorney’s instructions,, and in so doing made the statements complained of, without ,any malicious purpose to injure plaintiff. The instruction complained of was, that if defendant’s property was destroyed as alleged, and thereafter he went to the persons mentioned in the petition and—
“did without malice or the intent to falsely accuse plaintiff, state to such persons truthfully all of the facts and information which the defendant had in his possession and did recite all such facts and state or make it fairly appear from his statement that he, the defendant, was merely giving his opinion or suspicions that the plaintiff was guilty of the acts charged because it was his conclusion from the facts recited that the plaintiff was guilty, then the utterance of such alleged slanderous words could not be the basis of a cause of action for slander. Under such circumstances the persons hearing such words would have no right to believe that defendant charged plaintiff with such acts, but merely that it was defendant’s opinion that such facts indicated or showed, that ,the plaintiff was guilty of the acts charged. The effect of this would not be the charging plaintiff with the commission of such acts, but merely that these facts led defendant’s mind to this conclusion.”
The court rightfully concluded that the instruction incorrectly stated the law applicable to the case. It conveys the idea that one may charge another with a felony of which he is not guilty without liability, if in connection with it he states the facts and information in his possession, and if he makes it appear that his opinion as to the guilt of the accused is based upon the facts stated. Here there was no attempt to allege or prove the truth of the criminal charges which had been made against plaintiff, and the presumption must be that they were untrue. Charges of criminal acts such as are alleged. in the petition are of themselves actionable, and prima facie imply malice. One who makes a false charge of larceny or other crime of that grade against another cannot escape responsibility by the mere statement of the grounds of his opinion. An untrue imputation of crime not privileged is actionable, and one who makes it should be sure that his charge is based upon reliable information and upon sufficient facts. Nothing is said in the Instruction as to the extent of the defendant’s knowledge or the sufficiency of the facts upon which he based his charge of guilt. The effect of a slanderous charge based upon insufficient information may be as injurious to the reputation and standing of the accused as if it were founded on good and sufficient grounds. The defendant cannot defeat the action or escape the consequences of a slanderous charge by showing that he did not intend to make the charge which he in fact made, nor can he avoid liability for the false imputation of crime by the fact that it is an expression of opinion. (Johnson v. St. Louis Dispatch Co., 2 Mo. App. 565; Gendron v. St. Pierre, 73 N. H. 419; 25 Cyc. 360, 361.) If infamous and false charges might; be preferred and justified by the mere statement of the facts upon which the .author based his opinion, there would be little redress for slander and injuries to reputation and character. The remedy would be of little benefit if one might falsely charge another with larceny by adding that he based his charge on the fact that he found tracks leading from the place where the property was kept to the home of the party charged, or that he found tracks which appeared to be made with shoes of the size worn by such party. If the slanderous words used are calculated to induce the auditors to think the person charged has committed the crime, the injury has been inflicted, and the author is liable. Of course, if the statement in its entirety shows that no crime was committed, as if it had been said that a person had killed one whom the auditors knew was living, or if there is an imputation of a crime of which a person could not be guilty, and of which one hearing the statement must know that he could not by any possibility be guilty, no action would lie. (Newell on Slander and Libel, 3d ed., p. 129.) To sustain the instruction the defendant refers to the rule stated in 25 Cyc. 298:
“Although the words spoken amount of themselves to a charge of larceny, yet if accompanied with a specification of acts upon which the charge is based, which show that no such crime was committed, the person of whom the words were spoken has no cause of action.”
That rule applies to cases where all the alleged slanderous words taken together show that the act characterized as a crime was not in fact a crime, and is wholly inapplicable to cases where the statement specifically imputes a crime and where the author fortifies the statement with a recital of the facts which led him to make the charge.
It is further contended that the special findings of the jury rendered the error in the instructions immaterial. The jury found, in effect, that the property of defendant was lost and destroyed as alleged; that he had consulted the county attorney in respect to the loss and injury, and on his advice had endeavored through detectives to ascertain who were the guilty parties; and that the statements concerning plaintiff were made in an honest effort to carry out the instructions of the county attorney. The defendant had pleaded the matter of privilege in his answer, but that defense was not submitted to the consideration of the jury, and it does not appear that the defendant requested an instruction on the subject. It is true, as defendant contends, that it is the duty of every one to assist in the detection of crime, and to that end he should communicate to the proper officer what he knows regarding the commission of a crime. (Mueller v. Radebaugh; 79 Kan. 306, 99 Pac. 612.) Statements in themselves slanderous are protected as privileged if made in good faith in prosecuting an inquiry into a suspected crime. In this case there was testimony that the defendant uttered the slanderous words to a number of persons other than the county attorney and did not at the time of such utterance question them as to their knowledge of the commission of the crime or as to who might have committed the offense. Whether the defendant had acted in excess of the privilege which the law accords was a question in the case, and, as we have seen, the law relating to privilege was not given to the jury. Instead of submitting that defense, the court instructed the jury that if the defendant uttered and published the statements charging the plaintiff with having committed a crime, the utterance of such statement constituted slander per se and that they should find against the defendant. In the same connection the jury were instructed that the defendant had failed to allege or prove any justification for the slanderous words, if they were in fact uttered. The jury might have returned very different findings if the law of privilege had been stated and if the erroneous instruction had not been given. Because of the erroneous instruction the trial court properly granted a new trial, and its judgment is affirmed. | [
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The opinipn of the court was delivered by
West, J.:
The defendant appeals from a judgment against it, the principal contention being that the verdict was excessive and the result of passion and prejudice.
The plaintiff owned certain residence property in Emporia and claimed that the twelve shade trees on the premises were destroyed by the leaking of gas caused by the defendant’s negligence in permitting its pipes to get out of repair. The petition alleged damages in the sum of $1,200. A former county clerk and assessor testified that he was familiar with the property and its fair market value in the fall of 1915, which was $5,500; that its value “to-day” was between $4,000 and $4,500. Another witness, who for thirty years had been a local real-estate agent, testified that he knew the value of the trees, and that in his judgment the three large ones in front were worth to the property $100 apiece and those on the north and between the houses from $40 to $50 apiece; another testified that the property without trees would be worth from $1,000 to $1,200 less. The judgment was for $985 and costs. In answer to questions 7 and 8 the jury responded that they were able to state from the evidence that unsanitary soil and poor drainage conditions and insects did not contribute to the death of the plaintiff’s trees. There was testimony to the effect that these matters caused or contributed to the death of the trees, but the' jury in answer to question 9 said that gas was the efficient controlling cause. The defendant does not appear to have offered any evidence as to the value of the trees.
The jury were the triers of fact and weighers of the evidence, which evidence supported their conclusion, which we cannot disturb.
Complaint is made that the value of the real estate in the fall of 1915 and at the time of the trial, instead of the time the trees died, was taken by certain witnesses as dates. Also, that certain witnesses did not show themselves competent to testify. The record shows that their competency was sufficiently established, and the. mere difference in time between the date of the death of the trees and the date of trial was not enough to render any claimed error in this respect material.
As already indicated, the evidence was such that the verdict might have been for a larger sum, and hence it does not in this respect show passion or prejudice. There was some expert evidence as to the supposed effect of unsanitary soil and poor drainage conditions, but even counsel confess that some of it was “wabbly,” and the jurors’ regard for the rest, in view of the entire showing as to the plaintiff’s trees, his shrubbery, and other trees inquired about, does not evince passion and prejudice, but a disposition to reach a reasonable conclusion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Ralph G. Bundy received an injury while in the employ of the Petroleum Products Company, which resulted in permanent total disability. He recovered a judgment under the workmen’s compensation act, from which the defendant appeals.
The plaintiff testified to this effect: He was employed to operate an acetylene welder. As the defendant had not yet bought its machine, he was directed to work as a helper building tanks, and did so for fifteen days. An agent then arrived with the machine; and the plaintiff worked with him for five days. He then went back to work upon a tank, helping until the defendant decided whether it would buy the machine. His injury was received that evening. As a tank'builder he was paid at one time twenty cents an hour, and at the next payment twenty-two and a half cents. As soon as the acetylene welder machine arrived he was to work on that and receive forty cents an hour. A regular tank builder received forty-five and forty-seven and a half cents an hour, depending on whether he was a riveter, heater, or corker. The plaintiff was a “heater.” He was allowed compensation on the basis of forty cents an hour. The defendant maintains that the award should have been computed upon the basis of the wages he was receiving for the work he was doing when hurt — twenty-two and a half cents an hour.
The statute as it existed at the time of the accident provided for an allowance to an injured workman “equal to fifty percent of his average weekly earnings” computed according to the following rule:
“ ‘Average earnings’ shall be computed in such manner as is best calculated to give the average rate per week at which the workman was being remunerated for the fifty-two weeks prior to the accident: Provided, That where by reason of the shortness of time during which the workman has been in the employment of his employer, or the casual nature of tbe terms of the employment, it is impracticable to compute the rate of remuneration, regard shall be had to the average weekly amount which, during the twelve - months previous to the accident, was being earned by a person in the same grade employed at the same work by the same employer, or, if there is no person employed, by a person in the same grade employed in the same class of employment and in the same district.” (Gen. Stat. 1915, § 5906.)
The trial court must be deemed to have found, and the evidence warranted the finding, that the plaintiff’s regular work under his employment by the defendant was the operation of the acetylene welder, and that the work he was doing at the time of his injury was temporary, his assignment thereto for a short time being brought about by exceptional circumstances. In that situation we think the trial court was justified in holding that the plaintiff’s grade was that of a heater or operator of a welding machine, and not that of a mere assistant, and that his compensation was to be computed on that basis. The language quoted from our statute is substantially the same as that of the English act, the effect of which under circumstances similar to those here presented in thus stated:
“In fixing the compensation of an injured workman who had served the same employer in different capacities, the compensation must be based on the wages the workman was earning in the grade of employment in which he met with the accident. But if the workman is regularly employed in one grade, and is temporarily transferred to another grade in an emergency, the wages of the latter grade do not determine his compensation.” (Note, L. R. A. 1916 A, 151.)
The industrial accident board of Massachusetts acted upon this theory in a case where a workman whose regular employment was that of a “brewery worker,” receiving $18 a week, was allowed compensation on that basis, although the task at which he was engaged at the time of his injury was helping in the digging of a well — work for which a day laborer received but $13.50 a week. (Coyle v. Massachusetts Employees Ins. Ass’n, 2 Mass. Workm. Comp. Cas. 704, quoted from in 11 N. C. C. A. 380, 381.) The defendant cites as sustaining its view a recent Wisconsin case. There a bystander lost his life while responding to a call made upon him by a city marshal for aid in making an arrest. His widow was allowed to recover compensation from the city, based upon the earnings of one doing policeman’s service in that locality, notwithstanding that in his own occupation — that of a plumber, not in the city’s employ — he had received a different and presumably a larger income. (West Salem v. Industrial Commission, 162 Wis. 57.) The rule we declare here is that under our statute a workman who has been engaged for a specific employment at a fixed amount may recover from his employer compensation based upon the earnings of persons in that grade of service, for- an injury received while working for less wages in a different grade to which he had been temporarily assigned. This principle obviously does not apply to the case of one who is injured in the course of casual employment by a person other than his regular employer.
Complaint is made of the admission of certain evidence, but the competence of a part of it is established by what has already been said, and no prejudice appears from the admission of the remainder.
The trial court allowed the defendant a credit on account of payments made for medical attendance, nursing and similar services. It refused, however, to allow a credit of $114.75, claimed on account of a hospital bill incurred. The defendant complains of the latter ruling. The ground of the disallowance is not definitely shown. It may have been because the payment had not been made at the time judgment was rendered. The plaintiff objects to the allowance because the statute does not contemplate such a credit, because it was not shown that the amount claimed was reasonable and was necessarily incurred, and because the claim, if valid, is one that can be enforced against him directly by the original claimant. It was intimated in Cain v. Zinc Co., 94 Kan. 679, 682, 146 Pac. 1165, 148 Pac. 251, that such allowances are authorized by the provision of the statute that “allowance shall be made for any payment or benefit which the workman may receive . . . during his period of incapacity.” (Gen. Stat. 1915, § 5906, subdiv. e.) We think the words “or benefit” in the clause quoted are intended to cover payments made for reasonable charges for necessary medical attendance and services of like nature. (Boyd’s Workmen’s Compensation, § 535.) The defendant’s showing was technically defective in that it was not made to appear affirmatively that the charges were reasonable or the services necessary. There is nothing in the record, however, to suggest the contrary, and the hearing was conducted rather informally. It has not been proved that the payment has actually been made, but we do not understand that an issue is made on that point. We think the ends of justice will be best served by reducing the judgment by the amount of this claim. Such a reduction is ordered, unless the plaintiff shall within twenty days file in this court a verified denial of the reasonableness and necessity of the charge, - or of the payment of the amount, in which case further consideration will be given the matter.
The judgment is modified accordingly, but as no actual error is shown in the rulings of the trial court the costs of the appeal will not be divided, but will be taxed to the defendant. | [
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The opinion of the court was delivered by
Dawson, J.:
This action is for damages sustained by plaintiff through the obstruction of the alley at. the back of his residence lot in- Wichita. The defendant built a railway track in the alley. The construction wás proper, and done with permission of the city of Wichita. But when the defendant’s railway freight cars were being operated or were standing on this alley track — and that was a good share of the time — they completely obstructed the alley so that the defendant could not get into the alley or out of it with his automobile, and deprived' him of the only access to his garage, which was situated on the back part of his residence lot.
The jury gave plaintiff a verdict for $300, and answéred certain special Questions; and it is defendant’s chief contention that it was entitled to judgment thereon.
Some of these read:
“Q. 9. When cars are standing or being run in the alley in the rear of plaintiff’s property, can an ordinary vehicle pass such car or cars in said alley? A. No.”
Defendant’s questions:
“Q. 5. If the ingress or egress to plaintiff’s property was obstructed by the construction of defendant’s track, state how and in what manner the obstruction was caused. A. (No answer returned by the jury.)
“Q. 6. If the construction of said track in said alley caused damage to and depreciation in the value of plaintiff’s property, state in what respect or manner the property w.as thus damaged? A. In the appropriating of the center of the alley for track purposes and the operating thereon.
“Q. 7. Was plaintiff’s ingress and egress to and from his premises materially interfered with by the track in question, except when cars were left in the alley both north and south of plaintiff’s barn and in the same block? A. No.
“Q. 9. If you find for plaintiff, what amount do you allow, if any, for damage caused by reason of defendant negligently leaving cars standing -in the alley in question, since the commencement of his suit, March 4, 1916? A. Not any.
“Q. 11. If you find for plaintiff, how much do you allow for obstruction to plaintiff’s ingress and egress' to his property by defendant’s cars being on the track in said alley? A. Nothing, save only as explained in answer to question No. 6.”
It is defendant’s contention that the findings show that both the construction of the track and the operation thereon was in a lawful manner, and familiar decisions are cited which hold that damages are not recoverable under those circumstances. But we cannot agree that the findings show that the operation of the cars was lawful. The petition charged that defendant—
“Took possession of said alley and confiscated the same to its own use and benefit by . . . leaving its cars stand on its track in said alley so that the same entirely blocked, obstructed and shut off the use of said alley to this plaintiff. That ... by reason of cars being left standing thereon, plaintiff’s ingress and egress from his said property to and from and through said alley has been entirely blocked, obstructed and shut off; that plaintiff bought said lot for a homestead and built his barn or garage with reference to his outlet for' ingress and egress through said alley, and that he has no other opening or outlet for ingress or egress to his said barn or garage except to and from and through said alley.”
The proof tended to establish these facts; and some of the jury’s findings are a conclusive determination of the matter. Indeed, defendant’s seventh question is couched in a form which practically concedes the wrong complained of. And surely it cannot be said that the complete and total obstruction of the alley for a considerable portion of the time is lawful, unless some compensation be given to those specially injured thereby. No Kansas decision is cited which goes so far, and even in the pioneer case cited by defendant, A. & N. Rld. Co. v. Garside, 10 Kan. 552, it was said:
“But where the property is a street or highway, the railway company will be liable to any person who may receive actual injury from the illegal or unnecessary blocking up or obstructing of such street or highway by the railroad company, whether the obstruction be permanent or only temporary.” (syl. ¶ 3.)
Again, in C. B. U. P. Rld. Co. v. Twine, 23 Kan. 585:
“Or if it < [the railway company] unnecessarily and unreasonably leaves its cars standing on the track so as to interfere with the approach to the lot, the lot owner may recover damages therefor.” (syl. ¶ 1.)
In O. O. C. & C. G. Rld. Co. v. Larson, 40 Kan. 301, 19 Pac. 661, it was said:
“But such a company cannot, any more than an individual, wrongfully and unnecessarily block up or obstruct a street without being liable therefor.” (syl. ¶ 1.)
The later cases all recognize this principle. (K. N. & D. Rly. Co. v. Cuykendall, 42 Kan. 234, 21 Pac. 1051; W. & C. Rly. Co. v. Smith, 45 Kan. 264, 25 Pac. 623; K. N. & D. Rly. Co. v. Mahler, 45 Kan. 565, 26 Pac. 22; L. N. & S. Rly. Co. v. Curtan, 51 Kan. 432, 33 Pac. 297; C. K. & W. Rly. Co. v. Investment Co., 51 Kan. 600, 33 Pac. 378. See, also, Stephenson v. Street Railway Co., 88 Kan. 794, 129 Pac. 1188; Marshall v. Railroad Co., 96 Kan. 470, 152 Pac. 634.)
The findings make it clear that there was a total appropriation of the alley for the occupancy of railway cars, either standing or operating, and a complete obstruction of the alley, which wholly deprived plaintiff of ingress and egress to and from his garage and back lot for a considerable part of the time. The recovery was not for partial obstruction, but for complete obstruction for part of the time. Certainly this wrong, entitled plaintiff to some legal or equitable redress. (Longnecker v. Railroad Co., 80 Kan. 413, 102 Pac. 492; Jackson v. Kiel, 13 Colo. 378, 22 Pac. 504, 6 L. R. A. 254. See, also, extended note in 36 L. R. A., n. s., 673, 764 et seq.)
The jury’s answers to plaintiff’s question 9 and to defendant’s questions 6 and 11 render immaterial1 their failure to .answer question 5; and, moreover, question 5 is rather misleading, for plaintiff’s grievance was not the mere construction of the track, but the exclusive use of the alley for railway purposes to the special damage of plaintiff in the deprivation of access to his garage.
Complaint is made of the trial court’s instructions, but nothing serious can be discerned therein. Moreover, in this case, in view of the jury’s -findings, the plaintiff was entitled to damages, and the instructions criticised were not very material. The only damages allowed were for those already sustained when the action was filed (defendant’s Q. 9), and the amount of the recovery, $300, is no greater than the damages sustained, measured by any rule of law.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The defendant has an oil refinery near plaintiff’s farm, and in connection therewith operates a number of oil wells, including three on plaintiff’s premises. The action is to recover damages to plaintiff’s land, the petition alleging that during the two years last past, defendant negligently permitted large quantities of crude oil and salt water to escape from its wells, tanks, pipe lines, and power plant and to overflow a strip on plaintiff’s land eight or ten rods wide, resulting in injury to the land, the grass and crops, rendering the water in the pools unfit for the use of stock; and that quantities of oil and salt water adhered to the grass and bushes, making them unsightly, and contaminating the clothing of persons on the farm
The answer, with a general denial, alleged that defendant paid plaintiff his full share of the rents and royalties under a lease which permitted defendant to operate the wells for the mutual benefit and advantage of both parties; that it had properly and carefully drilled and operated the wells so as to produce and yield the best results to plaintiff and defendant, and that any injuries sustained were merely the natural and necessary results of such development and operation, and within the intent of the lease'authorizing defendant to enter upon the premises. The jury returned a verdict for plaintiff in the sum of $25, and made a number of special findings. The court sustained defendant’s motion for judgment, notwithstanding the general verdict, and overruled plaintiff’s motion for a new trial.
The trial was had in January, 1917. In offering testimony showing his damages, plaintiff, was necessarily'confined to the two years following April 11, 1914. It is complained that the court erred in sending the jury to inspect the premises, for the reason that during the ten months that elapsed after April 11, 1916, much of the visible evidence of the damages had disappeared; the oil had evaporated; the deposits on the grass, bushes, etc., were gone. We think a view of the premises to ascertain the general condition of the land would enable the jury to understand the evidence more intelligently, and besides, the action is to recover for permanent injuries to the land, and, therefore, it cannot be said there was an abuse of discretion.
In answer to special questions, the jury found that the ordinary and usual operation of an oil well produces water and salt water sediment along with the oil; that it is necessary to pump from the wells into tanks to allow the product to settle; and that it is necessary to draw the water and sediment from the tanks in order to make the oil marketable. They also found that in order to operate oil wells properly, it is necessary to pulLsucker rods, renew cups, and pull tubing at the wells, and that in doing these things there is necessarily some oil left at the wells. They found the reasonable market value of plaintiff’s land on April 11, 1914, to be $40 an acre, and that this was the reasonable market value two years later. One question appears to have been answered in plaintiff’s favor, as follows:
“Have the defendants operated the oil wells on plaintiff’s land and the wells on adjacent leases during the four years last past, in the usual ordinary and customary manner for the production of oil from the wells? A. No.”
It would not have been necessary for plaintiff to show an actual depreciation in the selling value of the land to entitle him to recover actual damages to growing crops or to stock, if these were shown to have been caused by defendant’s negligence. The defendant would have been liable to pay for the property pertinent to real estate, and actually destroyed, which possessed a value independent of the land, provided it was shown that the damages were caused by the wrongful act of defendant. (Barker v. Railway Co., 94 Kan. 61, 145 Pac. 829; Collins v. Morris, 97 Kan. 264, 155 Pac. 51; Id. 101 Kan. 135, 165 Pac. 862.) A crop of hay or the pasture for a season might be destroyed by the act of the defendant, yet the value of the farm taken as a whole and for the purposes of sale might be the same or even more than at the time the injury was committed.
The petition was broad enough to include damages caused by the action of the oil and salt water upon plaintiff’s growing crops and pasture and to live stock, separate and apart from the diminished market value of. the farm, but error is not presumed ; it must affirmatively appear that the court committed error or the judgment will be affirmed. While plaintiff enumerates in detail the method by which the defendant injured his land, he alleges as damages that these things diminished the farm’s value in the market, and he asks damages in the ,sum of $4,000. No brief has been filed by the defendant; the plaintiff has brought up none of the evidence, and we have only the record as it comes before us to discover the reasons upon which the trial court sustained the motion for judgment on the •special findings. The plaintiff may have offered evidence to show that he sustained damages separate and apart from the diminished market value of his land, but we have no right to assume that this was a fact. He could have asked special findings as to damages of this character. With none of the evidence before us, however, we must assume that the trial court sustained the motion for judgment because there was no evidence of such damages, and because of the finding that the market value of the land was not diminished. There was no error in the refusal to grant a new trial, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
These are appeals by the Kansas City Casualty Company from judgments rendered against it in garnishment proceedings.
Three actions are involved, each brought by an employee against his employer to recover damages for personal injuries, in which judgments against their employers were obtained. The defendants, in those actions held policies of insurance issued by the casualty company, and in the actions mentioned it took complete charge of the litigation for the defendants. The plaintiffs were unable to enforce payment of the judgments, and they garnished the casualty company, which answered, in each case denying liability to the defendant. Plaintiffs contested the answers, and the evidence upon the issues thus raised was submitted at one hearing to the court without a jury. No findings of fact were made, and the court rendered judgments against the casualty company for the amounts of the claims established.
. The issues were the same in the three actions, except that in those against the Cotton Mills Company there is an added feature by reason of the fact that at the time of the injuries it was operating under the provisions of the workmen’s compensation law, and it is claimed by the casualty company that under the policy it is not liable on account of iujuries within the scope of that act. It also claims that the policies issued are contracts of indemnity against loss sustained, and that the obtaining of judgments against the employers, which had not-been paid, was nob sufficient to render it liable as garnishee. The policies in question were designated as “employers’ liability policies,” and in them the casualty company agreed “to indemnify the assured, described in the warranties hereof, within the amounts as expressed herein, against loss, including expense arising or resulting from claims upon the assured for damages on account of- bodily injuries,” etc., to an employee. It was stipulated that the assured should give the casualty company immediate notice of any accident to an employee and of any suit resulting therefrom, and it was further stipulated that—
“The company is not responsible for any settlements made or any expense incurred by the assured, unless such settlements of expenditures are first specifically authorized in writing by the company; except that the Ussured may provide at the time .of the accident, at the expense of the company, such immediate surgical relief as is imperative.”
There was also a provision limiting the amounts for which the casualty company would be liable, and also stating—
“In addition to these limits, the company will, at its own cost (court costs and all interest accruing after entry of judgment on such part thereof as shall not be in excess of the limits of the company’s liability as hereinbefore expressed, being considered part thereof) investigate all accidents and defend all suits even if groundless, of which notices a-re given to it as hereinbefpre required, unless the company shall elect to settle the claim or suit.”
The provision usually contained in policies of this character, that no action could be maintained by reason of a judgment against the assured unless the latter had sustained a loss by satisfying the judgment, is not found in any of the policies involved here. It appeared from the evidénce that the casualty company had in other instances adjusted claims and paid judgments that had not been- already satisfied by the assured, and that it had advertised its business as including in its scope the adjustment of all claims, payment of all attorney’s fees, defense of all suits, the payment of all judgments up to $5,000, and the payment of court costs.
The main question raised on these appeals is whether or not there can' be a liability against the casualty company for accidental injuries to the employees of the insured, until the latter pays the claims for the injuries and losses sustained. The casualty company contends that under the rule of Carter v. Insurance Co., 76 Kan. 275, 91 Pac. 178, its contract was indemnity against loss, and that no loss was sustained by the insured until payment had been made. The contract in the Carter case differs materially from those involved herein. Aside from one stipulation there was the same ambiguity in that contract as in these in regard to whether liability was included in the term loss, and whether it was the intention of the parties that the insurance company should be substituted for the insured so far as liability for accidental injuries and death was concerned. While several of the provisions of that contract indicated a substitution of the insurer for the insured, and that it was insurance against liability, it contained the following positive stipulation:
“No action shall lie against the company as respects any loss under this policy unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment within sixty days from the date of such judgment, and after trial of the issue.” (p. 276.)
As we have seen, this clause was wholly omitted from the contracts in question,v In the decision of that case it was said that “This provision leaves no doubt of the intention of the parties, which was that the insurance company was not required to pay anything because of the policy until losses had been paid by the assured in satisfaction of a judgment.” (p. 278.) It was there held that the obligation of the contract did not extend beyond the insurer and the insured— that it did not inure to the benefit of the injured employees— and that the insurer was' only bound to reimburse the insured for the losses he was compelled to pay. The “no action” provision was deemed' to be so specific and controlling as to overcome other stipulations in the contract pointing to insurance against liability, and also to prevent an estoppel against the insurer by reason of having taken control of the litigation and made the defense for the insured. The provisions of the contracts without this clause and the action of the defendant in giving a practical interpretation of the provisions of the contract strongly tend to show the purpose of the parties to have been .that the insurer should be substituted for the insured, and also that it was intended as an insurance against liability. Attention is called to the use of the word indemnify in the contract, which it is contended carries the idea of a reimbursement for losses; but the term has other meanings and is no more controlling than the statement at the head of each of the policies that it is a “liability policy.”
As against the theory that the insurer is not concerned as to accidents or liabilities arising from them, there is the stipulation that the insurer shall be given immediate notice of an accident and of any suit resulting from it. The obvious purpose of such a notice is that the insurer may protect' itself against liability, and-that this was the intention is made manifest by the action of the insurer in settling claims for such liabilities without waiting for the insured to settle or pay them. In order that the insured may intelligently carry out this plan it is provided that the insurer may inspect the plant, works, machinery, and appliances used by the insured, and shall also have access to its books and records and in that way determine the nature of the injury and the extent of the liability. While the insured is not denied the right to make settlements with its injured employees, it is expressly stipulated that, except for emergency surgical relief at the time of the accident, the insurer will not be responsible for any settlement made unless written authority therefor is given by the insurer, In view of the fact that plaintiffs were paying for insurance protection and would lose that protection if they settled a claim without the consent of the insurer, the clause was almost equivalent to a stipulation forbidding them to negotiate a settlement with an injured employee. Under the contract the insured was permitted to cooperate with the insurer in negotiating a settlement, but it was practically excluded from the control of settlements.
To make the control of the insurer more effective it was stipulated that it should investigate all accidents of which it had notice, and its course of action was not only to investigate such accidents, but it went farther and made settlements for liability arising from the accidents. This control was continued after the investigation and throughout any litigation that might arise upon the claims based on accidents, because in the contract it was stipulated that the insurer should take charge of any litigation that arose and should at its own cost defend all suits brought, whether they were groundless or real, unless it should elect to settle the claims or suits without contest. These provisions show that the obligations of the contract rested upon the insurer from the time the accident occurred down until the liability resulting from them was settled and discharged.
Instead of being exempt from liability until prepayment of claims by the insured, the insurer practically put itself into the place of the insured, so far as settlements with employees and payment of their claims were concerned, and if it had been the intention of the parties that no liability should attach to the insurer until payment had been made by the insured it would have been very easy to have made that statement in some such^way as was done in the Carter case. There being ambiguity in the contract respecting the kind of insurance intended, extrinsic circumstances showing the practical interpretation placed upon the contract by the parties may be and was received. The casualty company not only designated its contracts as “liability policies,” but in an advertisement published in a newspaper in March, 1914, as to the character of the policies, it stated:
“Every man in business, every employer of labor needs liability insurance. It safeguards you against possible damages arising from injury or death to those who work in your shop, factory or store. The liability; insurance issued by the Kansas City Casualty Co. fully protects you. Note the wide scope: We adjust all claims. We pay all attorneys’ fees. We defend all suits. We pay all judgments up to $5,000. We pay all court costs.”
In addition to this, a former manager of the casualty company testified in its behalf, and stated that “our policy, as I have stated, was an employer’s liability policy and our policy indemnified the assured against his legal liability for personal injuries.” These things in connection with the action of the casualty company in making settlements without waiting for prepayment by the insured' show that the casualty company understood its contracts to bind it for liability, and not for mere indemnity.
There is a conflict in the authorities on this branch of the law. Some of them interpret contracts containing stipulations similar to those included in the policies in question as indemnity only and hold'that prepayment of losses is essential to recovery. Others treat them as indemnity contracts because of the inclusion of the “no action” provision. Very many treat them as liability contracts where the “no action” provision is omitted. In a few cases courts have gone to the extent of holding policies containing the “no action” provision as contracts to pay liabilities. The authorities supporting the different theories, and illustrative of the conflict, are grouped in a note in 48 L. R. A., n. s., 184. Some of the cases tending to support the interpretation which we have placed on the contracts involved here are American Employers’ &c. Ins. Co. v. Fordyce, 62 Ark. 562; Stephens v. Pennsylvania Casualty Co., 135 Mich. 189; Standard Printing Co. v. Fidelity & Deposit Co., (Minn.) 164 N. W. 1022; Patterson v. Adan, 119 Minn. 308; Elliott v. Ætna Life Ins. Co., 100 Neb. 833; Sanders v. Insurance Co., 72 N. H. 485; Lewinthan v. Travelers’ Ins. Co., 113 N. Y. Supp. 1031; Clark v. Bonsal, 157 N. Car. 270; Maryland Casualty Co. v. Peppard, (Okla.) 157 Pac. 106; Fenton v. Fidelity & Casuralty Co., 36 Ore. 283; Pickett v. Fidelity Company, 60 S. Car. 477; Davies v. Maryland Casualty Co., 89 Wash. 571; Hoven v. Employers’ Liability Assurance Corporation, 93 Wis. 201.
The next contention is that in no event can there be a liability for the injuries to Lubek and Blanton, as their employer, the cotton mills company, was operating under the workmen’s compensation law, and compensation injuries were expressly excepted from the obligations of the contract. No such exception was contained in the policy when it was produced at the trial, but there is testimony that a rider was attached to the policy when it was written, which was later detached. The cotton mills company had not elected to come under the compensation law when the policy was issued, but did so in March, 1913. The evidence tended to show that the casualty company, through its officer, then agreed to cover compensation cases under the policy without an additional premium, in view of the short time in which the policy would remain in force, and that the rider clause mentioned was torn off the policy. Some testimony was offered to the effect that an additional premium was demanded, but the cotton mills company declined to pay more insurance, and then, instead of returning the unearned premium, the agreement was made to cover compensation cases the remainder of the year for the premium paid. The retention of the unearned premium, instead of its return to the insured,- would be sufficient consideration for the change made in the contract through the detaching of the rider and making the insurance cover compensation injuries. There is a sharp dispute in the testimony as to when this agreement was made or when the rider was torn off the policy, but there is evidence to support the conclusion that both occurred before the injuries to Lubek and Blanton were sustained. As there were no special findings, and the general finding was in favor of the plaintiffs, it must be deemed that the court accepted the testimony favorable to plaintiffs as true and discredited the conflicting evidence given in behalf of- the casualty company.
The judgment is affirmed. | [
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The opinion of the court was delivered by
JOHNSTON, C. J.:
Pete Will was convicted upon a charge of being a persistent violator of the prohibitory liquor law. (Gen. Stat. 1915, § 5541.) In this appeal he assigns'two grounds of error based on the admission of testimony.
The first is the admission of the record of a previous conviction. In the information it was alleged that he was ■formerly convicted on December 2, 1915, while the record introduced in evidence showed that the defendant was tried and found guilty of the offense on December 2, 1915, but the judgment was not entered .until December 15, 1915. It was necessary to allege and prove a former conviction, but if an error was made in stating the time of the conviction it would not preclude proof of the true time. Here the date of the verdict findiing the defendant guflty was named as the time of conviction, and in common parlance a finding of guilty is frequently spoken of as a conviction. In legal parlance the term is sometimes applied to finding a person guilty and sometimes used to indicate a final judgment. (Commonwealth v.. Lockwood, 109 Mass. 323;' People v. Adams, 95 Mich. 541; 2 Words and Phrases, 1584.) However, if the date of the sentence and judgment is deemed to be the time of conviction, it would not aid the contention of the defendant. It was enough to show that the defendant had been convicted of a violation of the prohibitory law prior to the commission of the offense charged in the present prosecution. If the conviction is fully identified, an error in the information as to the time it happened cannot be material, as only one former con viction is needed to make d subsequent violation a felony. It cannot be inferred that the defendant was embarrassed as to the identity of the conviction because of the number of previous convictions;
The other ground of error is the admission of a transcript of the testimony of one'Temple purporting to have been given at the preliminary examination of the defendant. This is based on another dispute as to dates. The record sent up by the justice of the peace showed that the evidence of Temple was given on August 29,1916, while the stenographer who took the testimony testified that it was given on the 28th of August. It is manifest that both referred to the same testimony, and it is not important or necessary to determine who was mistaken in respect to the date. The hearing before the magistrate was begun on one day and ended at a later time, and the stenographer testified that the testimony was taken on the 28th of August, and that the case was continued until the 29th for argument. There can be no question as to the identity of the case and no possibility of prejudice to the defendant. Aside from this matter of identity, it appears that, the defendant was not convicted of the charge as to which Temple gave his testimony. The sales referred to by him were set out in other counts' in the information, upon which there was an acquittal.
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The opinion of the court was delivered by
Mason, J.:
A partnership doing business under the name of the Brenard Manufacturing .Company, of Iowa City, la., entered into a written contract with Frank P. Kibbey, the owner of a drug store at Junction City, to furnish him certain articles, and advertising matter to be used by him in conducting a voting contest to attract customers and thereby increase his business. ,He agreed to pay $400 therefor, and gave six notes for that aggregate amount, the last one maturing in six months. The notes were unpaid, and the company brought action on them, obtaining a judgment for $105. The plaintiffs appeal, contending that they should have recovered the full face of the notes.
The trial court held that various grounds of defense set out in the answer were untenable or unsupported, and submitted to the jury the single question whether the defendant was entitled to a credit upon the notes by reason of provisions of the contract with reference to the amount of business done by him. The contract was in the form of an order given by the defendant and accepted by the plaintiffs, reading:
“On your approval of this order, deliver to me at your earliest convenience, F. O. B. factory or distributing point, the De Luxe Grafonola, Sewing Machine, Watches, Silverware and Advertising Matter described on this and reverse side, in payment for which I herewith hand you my six notes, payable to your order, aggregating $400.00. If order is not approved and shipped by you the notes are to be cancelled and returned to me. My last twelve months sales were $18,000.00. My next twelve months sales to be $22,000.00 and that if 1 9-11 percent of my gross sales does not amount to four hundred dollars ($400.00) for the next twelve months you will pay me the deficiency in cash, and send your bond for $400.00 to cover this agreement with me. To make this last above clause binding upon you I agree to take the shipments promptly, carry out the contest plan, promptly meet all obligations entered into under this agreement, keep the De Luxe Grafonola and other articles listed belów well displayed in my store, issue votes for each cent purchased and every sixty days of this contract to report to you my gross sales, and promptly furnish you all information you request to enable you to assist in pushing the contest.” ,
The defendant testified that his sales for the year following amounted to $16,025.50. ' The court instructed the jury that if this was the case, and if he had performed the conditions of the contract on his part, he should be allowed a credit for the dif ference between $400 and l9Ai percent of the gross sales for the year.
The plaintiffs contend in substance that the prompt meeting of all obligations on the part of the defendant was a condition precedent to his availing himself of the agreement with regard to the amount of his sales, and that by failing to pay the notes at maturity he lost the right to claim any benefit under that clause of the contract. The written agreement bears internal evidence of having been prepared with much adroitness to further the interests of the plaintiffs. For illustration, the phrase “my next twelve months sales to be $22,000” is, adapted to convey the idea that the plaintiffs warranted that the adoption of their plan would result in the defendant’s doing that amount of business; but a careful reading of the whole paragraph discloses that, in effect, all they undertook to do, in case the sales fell short of the sum named, was to allow a credit on the defendants notes equal to a little less than two percent of the deficiency. In view of the character and phraseology of the contract, we think it should be construed somewhat strictly against the plaintiffs and rather liberally in favor of the defendant. It does not in terms provide that a failure to pay the notes at maturity shall bar the defendant from any benefit under the provision regarding the amount of business. It merely says that to make such provision binding on the plaintiffs the defendant agrees promptly to meet all obligations on his part under the agreement. Inasmuch as by signing the notes he had already promised to pay them when due, this new pledge on his part did not literally add anything to his engagements. Considered broadly, the purpose of the last paragraph of the contract seems to be to give assurance that the defendant would do his share to give the plaintiffs’ plan of increasing patronage a fair chance. In view of that fact, we think it should be so construed that no default on the part of the defendant should forfeit his right to a rebate, in case the sales fell short of the amount specified, unless it was of such character that it affected unfavorably the volume of business done. The principle is that applied in the construction of a class of insurance contracts. (School District v. McCurley, 92 Kan. 53, 142 Pac. 1077.) The omission of the defendant to take up his notes as they matured manifestly had no effect upon the amount of his sales, and therefore did not cause any loss of his rights in relation thereto.
The plaintiffs also contend, and the contention is well founded, that the rebate to which the defendant was entitled because his sales amounted to but $16,000 is a mere matter of computation, and is not sufficient to reduce the recovery to $105 — the amount of the verdict and judgment. It does not follow that a new trial of the issue should be granted on this account. The verdict necessarily implied a finding that the defendant sold but $16,000 worth of goods, and that he had done his part in carrying out the agreement. The fact that the jury overestimated the resulting credit does not impair the force of such finding, since it does not indicate passion or prejudice, and the true amount can be arrived at by computation. Therefore, the judgment must be taken to establish the fact that the defendant is entitled to a credit on the notes amounting to substantially- $109 and interest.
The record would perhaps justify directing a judgment for the face of the notes and interest, less this amount. But there was some testimony concerning a delay in the delivery of one article, and the failure of another to come up to any reasonable standard, which might afford a basis for a further credit on the notes. Although the court appears not to have submitted this issue to the jury, it is possible that the verdict was approved because of the evidence referred to, and a new trial upon that matter may subserve substantial justice.
The proceedings so far had will be taken as establishing the right of the defendant to a credit of $109 and. interest. The judgment will be set aside and the cause remanded with directions to render judgment for the amount due on the notes, less this credit, provided that, if the defendant so desires, a new trial shall be granted solely upon the question whether he is entitled to any further set-off by reason of the matters already' specifically referred to — the delay in the delivery of one article and the failure of another to measure up to a reasonable standard. | [
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The opinion of the court was delivered by
West, J.:
The heirs of Mary F. Tyler brought this suit to set aside her will, devising to Martin Sutcliffe all of her estate except certain small bequests, on the ground of mental incapacity and the fraud of her confidential adviser, who was beneficiary in the will which he drew. The court submitted questions of fact to a jury, who found generally for the plaintiffs, and specially that the testatrix had mental capacity to know she had a will and wanted to sign it, but not sufficient to fully understand its contents; that it was prepared by her confidential agent without independent advice and when she did not have sufficient mental capacity to understand what she was doing and the purpose and effect of the instrument as a will, did not know and appreciate the natural objects of her bounty and her duty toward them, and was not of sound mind. The defendant moved to set aside all the findings concerning the alleged confidential relationship, and want of independent advice, and unsoundness of mind, and requested the court to make the findings returned more definite and certain, which motion was denied.
The defendant appeals, and urges in his brief that the evidence and findings are insufficient to sustain the judgment; that there was error in the instructions; that the refusal to set aside the findings complained of was error, likewise the court’s failure to make the findings more definite and certain, and that the principal beneficiary was not in such relationship with the testatrix as to come within the inhibition of the statute (Gen. Stat. 1915, § 11765).
No argument is made in support of the first contention, and it is apparent that the findings are ample to support the decree.
An examination of the record fails to disclose any error in refusing to set aside the findings complained of. Counsel quotes parts of the evidence which tend to support his position, but numerous witnesses testified to acts and statements which furnish substantial bases for the answers, a detail of which evidence would extend this opinion beyond the length deemed proper in these days of increasing brevity.
In considering the opinion of certain nonexpert witnesses, it is urged that the rule in Isaac v. Holderman, 76 Neb. 823, should be followed, to the effect that such a witness can be permitted to express his opinion as to the sanity of a person only when he has shown other sufficient qualifications and has stated the facts and circumstances on which his opinion is based. This precise point does not appear to have been pressed in any of the cases decided by this court, but the rule has been stated that—
“Non-professional witnesses may give their opinions as to sanity, as the result of their personal observation of the person whose mental condition is in question, after first stating the facts which they observed.” (Baughman v. Baughman, 32 Kan. 538, 543, 4 Pac. 1003.)
(See, also, The State v. Beuerman, 59 Kan. 586, syl. ¶ 2, 53 Pac. 874.)
In Grimshaw v. Kent, 67 Kan. 463, 73 Pac. 92, one of the defendants, at whose home the deceased had lived for some time, was asked what she couid say, from her association with her, her observation of her conduct, and her conversation with her, as to her mental condition, and this was held to be a proper question, also that it was error to sustain an objection thereto. The statement of the basic facts appears to be included in the rule as mentioned in Howard v. Carter, 71 Kan. 85, syl. ¶ 6, 80 Pac. 61; The State v. Rumble, 81 Kan. 16, 18-20, 105 Pac. 1. (See, also, Harper v. Harper, 83 Kan; 761, 773, 113 Pac. 300; Fish v. Poorman, 85 Kan. 237, syl. ¶ 2, 116 Pac. 898; Jenkins v. Jenkins, 94 Kan. 263, 146 Pac. 414.)
Professor Wigmore says:
“It has been already noticed . . . that the general rule in a few courts requires that a statement of the facts (or observed data) must precede the witness’ statement of his opinion or conclusion; and that this on principle is an unsound limitation. . . . And in a number of jurisdictions the courts are found requiring that ‘the facts,’ i. e., observed data, ‘must accompany (or precede) the opinion’. This requirement in some of the remaining jurisdictions has been expressly negatived; in others it does not exist in practice but has not been expressly passed upon.” (3 Wigmore on Evidence, § 1935.)
It is proper to ask the witness the extent of his acquaintance with, and observation of, the person in question, and for him to describe the actions and appearance of such person. In this case, not only did numerous witnesses give in considerable detail the appearance, actions, statements, and conduct of the testatrix, but no objection appears to have been interposed to any of the questions concerning this matter, and hence no error in this respect appears.
Counsel says there is no evidence which sustains the findings that the drawer of the will was the confidential agent or legal adviser of Mrs. Tyler, or held any other position of confidence within the meaning of the statute. But one witness testified that Mr. Sutcliffe stated that he had been looking after Mrs”.' Tyler’s business affairs since her husband’s death, and that the witness himself was in business with Mr. Sutcliffe two or three years and knew that Sutcliffe was taking care of Mr business for her. Another heard her say that Mr. Sutcliffe had everything, had all her papers, and was doing her business, and that he told her if she did not have mortgages recorded it would save paying taxes on them. Mr. Sutcliffe himself testified that he had been transacting business for Mr. Tyler before his death, and thereafter for Mrs. Tyler, who had five mortgages and two certificates of deposit and a house and some lots. This was enough to sustain the finding as to the confidential relation. Neither was there material error in the instruction on this point.
There was testimony fairly indicating that the will was read aloud in her presence before signing, but as to this no finding was requested. As to whether she knew its contents the answer was, “Insufficient evidence,” which means that the jury were not able to find that she knew its contents.
The entire estate, save six ten-dollar bequests, was given to her business adviser by the will which he drew, appointing himself sole executor without bond or inventory. There was testimony that she had stated that she and her husband wanted him to have the property, but the relationship he bore to her in a business way and her mental incapacity were' so disclosed as to result in the findings returned, which were properly supported and must stand.
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The opinion of the court was delivered by
Porter,.J.:
The plaintiff made to the defendant an oil and gas lease on 80 acres of land owned by her in Franklin county. The lease, which was dated June 20, 1912, was to remain in force for the term of five years and as long thereafter as oil or gas should be produced. The defendant agreed to give a bonus of $50 yearly for each oil well producing five or more barrels per day. The lease contained this provision: •
“This lease is transferable only by consent of first party. If sold, first party to receive one-half of the consideration lease is sold for.”
The defendant drilled two dry holes, one in the northwest and the other in the southwest corner of the tract, and later drilled one well near the southeast corner which produced a small amount of oil and gas. On January 20, 1916, he sold and transferred the lease to William Renker, together with a number of other leases and considerable other property. The plaintiff brought suit, alleging that without her consent he had sold the lease and had failed and refused to pay her any part of the consideration, which she alleged to be $6,000. She alleged that the oil well on the premises produces, or would produce if properly operated, more than five barrels per day. She asked judgment for the bonus on this well and for one-half of the consideration received in the sale of the lease.
The answer was a general denial with certain counterclaims to which further reference is not necessary. The reply was a general denial. The jury returned a verdict in plaintiff’s favor in the sum of $1,500. From the judgment defendant appeals.
The plaintiff was not able to produce any evidence to show what part of the consideration received by the defendant in the sale was for the lease in question, nor was the defendant able to do so. The defendant had been engaged in the oil and gas business, and owned leases on several tracts of land in the northern part of Franklin county, from which he supplied gas to the public. The property embraced 52 miles of gas lines, the oil in the tanks and pipe lines, tools and fixtures, material on the leases, contracts with consumers, records and books of account, and all franchises and rights pertaining to the business, together with the good will of the business. The gas field included in the sale covered 800 acres, with sufficient gas to supply 145 consumers, who were paying from $40 to $50 a year in advance for the service. There was also included the gas. and oil rights under 580 acres of land belonging to the defendant. The consideration received for the transfer of all the property was $65,000.
The principal errors complained of relate to the instructions concerning the measure of damages and the character of proof upon which the plaintiff would be entitled to recover. The court told the jury that evidence had been permitted to go in to show the value of the oil lease, and that from this the jury should first determine what defendant “got for his oil lease.” After referring to the question of value, the instructions charged that, “having determined that, then Mrs. Moherman’s interest should be determined by finding out her proportion of the en tire sale of oil leases.” The instructions further charged that it was not the value that plaintiff could recover, but that it was from the value that they were to find what the defendant got for his oil leases, and that plaintiff would be entitled to recover one-half of what he received for the sale of her lease. We think the contention of the defendant is correct, and that the instructions were erroneous. In the first place, there was no evidence to disclose a possible basis upon which the plaintiff’s proportion of the consideration could be determined, nor any competent evidence to show the value of the other property transferred. If the instructions presented the proper theory for determining the amount of plaintiff’s recovery, it would have been necessary for her to prove the value of her own lease, as well as the value of all the other property included in the lump sale, in order to determine her proportion of the consideration. The instructions omit all reference to the value of the business included in the sale, and besides, there was no evidence from which the jury could have determined its value. The court charged that the jury should—
“take first from the total Sales of the oil leases as you shall find it to be, the value of any machinery that the evidence shows went into the sale. Then Mrs. Moherman should receive, that is, her lease should be credited with her proportion of the selling price, and her proportion, I think, should be determined by taking the'number of producing wells on her lease and comparing them with all the producing wells sold. If there were seventeen producing wells sold, then her lease should be considered as being one-seventeenth (1-17) of the total, and then she should have one-half (%) of that. . . . Take into consideration the number of producing wells; the time the sale was made to Mr. Renker; what Mr. Anthony said of the value of the wells; the value of the leases, and all of the circumstances that finally show to you what the real value of the oil leases was when he sold them. Not what the actual value was, but what he got for it.”
In addition to being confusing, the instruction assumes that because there was one oil well on the premises in question, and seventeen on the several tracts covered by the leases transferred, the value of plaintiff’s lease would necessarily be one-seventeenth of the value of all the oil leases. We fail to find in the record any evidence to show that the plaintiff’s lease was an average producer, nor do we think there was sufficient evidence showing the production of the other wells sold, which, moreover, could only be arrived at by proof show ing how long they had been pumped and how the production was maintained. The fact is, the plaintiff failed to show what damages she sustained. When she was unable to show the actual consideration, she should have established by proof the reasonable value of her lease at the time defendant sold. This was neither alleged in the petition, nor shown by competent evidence. It is conceded there were two dry holes drilled on her lease and one producing well, and the evidence as to the amount this well produced or would produce was conflicting. Giving the plaintiff the benefit of all reasonable inferences that might be drawn from the evidence she offered upon this question, the most that can be said is that there was sufficient evidence to show that it would produce from three to five barrels a day.
In determining the value of an oil and gas lease there are many things which must be taken into consideration, including-the number of dry holes drilled and the number of producing wells; their location with reference to the whole tract embraced in the particular lease; the proximity of the land to other proven territory. And to arrive at anything like a basis for a comparison as to the relative value of one lease with another, or with several ^others located on different tracts of land, would be extremely difficult.
It is urged by the plaintiff that the doctrine of confusion of goods applies, and that because the defendant has mingled property in which the plaintiff was interested with his own, the court’s instructions were fair and proper. There is no confusion here of goods. The separate identity of the property covered by the plaintiff’s lease has not been destroyed or lost.
“Where the goods mingled' are of a kind which may be identifiéd readily the doctrine of forfeiture by confusion has no application, for the obvious reason that the very foundation for the) application of the rule is wanting, that is, the confusion of goods or the inability to identify them; and this is true even where the commingling was done with a fraudulent intent.” (12 C. J. 494.)
Conceding that a situation somewhat analogous to that of confusion of goods is presented, this does not cure the instructions. The general rule where there has been confusion of goods is that if the party wronged elects not to recover posr session of the identical property, he may bring an action for his proportionate share, “or the value thereof.” (12 C. J. 498.) The plaintiff sues for a proportionate share of the consideration, but fails to show what that was. In the absence of any testimony to show what share of the $65,000 was received as consideration for the transfer of her lease, the plaintiff can lose nothing if she recover damages based upon the value of her lease. And this cannot be arrived at by considering the well on her lease of equal value to each of sixteen others located in different territory, even if there had been no other property included in the sale. There ought to be little difficulty in establishing by competent evidence the value of plaintiff’s lease at the time it was transferred.
In 12 C. J. 499, it is said:
“Where the party whose goods have been confused elects to sue for damages in their stead, or where the confusion or disposition of the goods is such that their specific recovery would be impossible, the amount awarded him will be the utmost that the value of the goods will permit.”
The defendant raises the contention that the plaintiff cannot recover at all, because the land reverted to her by reason of a'clause in the lease, which-reads:
“If second well drilled within six months of first drilling on lease should not be producing well, lease reverts to first party.”
The evidence shows that the second well was drilled within six months of first drilling, and that it was not a producing well. It is conceded, however, that defendant afterwards drilled the third well, and evidently the parties construed the lease as still in existence. The defendant is not in a position to claim that the lease reverted and that he had no interest in it, since he sold and transferred it long afterwards.
As the case must be sent back for another trial, it should be said that before the plaintiff can recover the yearly bonus for the oil well on her premises, she must establish that its production was five or more barrels per day on the average. Moreover, the proof does not show when the well was brought in, and whether it would have produced the required amount covering the period from the time it was brought in until the sale to Renker.
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The opinion of the court was delivered by
Burch, J.:
The action was one of replevin, brought by a chattel mortgagee to recover baled hay. The interpleader, Ben Sicka, who claimed the hay under a pledge antedating the mortgage, recovered. The plaintiff appeals.
Sicka cut, baled, and stored the hay, under contract with the defendant, Brannum. Thé hay was stored in a barn belonging to Sicka’s father, for which Sicka paid rent. Sicka claimed that after the hay on certain land had been put up, Brannum desired him to go on and put up the hay on other land. He refused to do so until he was paid for what he had done. Brannum said he would turn the hay in the barn over to Sicka to hold for his service, Sicka to get his money as the hay was shipped out. This was agreed to. The contract to put up hay was made in the summer of 1914. The pledge was made on September 30, 1914. There was but one key to the barn, and Sicka had charge of it. There were separate places for hay in the barn. In one of them Sicka’s father and brother kept some hay, and part of the time his father had the key. There was evidence that, on one occasion, Brannum and the plaintiff’s cashier visited the barn, found the key under a rock lying on one of the sills of the structure, opened the door, went in, and inspected the hay. Neither Brannum nor any representative of the plaintiff, however, ever had custody of the key, or authorized possession of it. After.the pledge the lock was not changed nor anything else done to change the appearance of possession. The hay was held by Sicka, waiting for a favorable market, which did not present itself before the hay was replevined. On October 6, 1914, Brannum mortgaged the hay to the plaintiff. Brannum was sent to the penitentiary for shooting a man and his deposition was taken. ' He made common cause with the plaintiff, and denied the pledge in toto. He said he rented the barn, and that he paid Sicka the money he received from the bank when ■ the' mortgage was given. The plaintiff’s cashier testified that before making the loan to Brannum he inquired of Sicka the quantity and quality of the hay in the barn, and was told there were 150 to 160 tons of No. 2 hay; that he informed Sicka that Brannum had applied for a loan, and that he was figuring on taking a mortgage from Brannum; that he told Sicka the purpose of the Brannum loan, and that Sicka said nothing about having possession of the hay. Sicka denied positively that the plaintiff’s cashier told him of Brannum’s application for the loan, or that the plaintiff was considering taking a mortgage on the hay, and testified he knew nothing of the plaintiff’s mortgage until about October 20. Sicka further testified that on September 30, the day of the pledge, he told the plaintiff’s cashier that Brannum had turned the hay over, and that the hay was in the barn.
The veracity of witnesses was a matter for the jury to estimate, conflicts in the testimony were matters for the jury to solve, and the only meritorious question is whether or not the cause was fairly submitted to the jury.
The principal contention of the plaintiff is that an actual delivery of the property by the pledgor to the pledgee, pursuant to the pledge, evidenced by some change in the appear anee of possession, was essential. The purpose of possession in a pledgee is to afford notice of his right to third persons who might deal with the pledgor on the strength of the pledgor’s possession. When the pledgor has possession, there must be delivery to the pledgee. But delivery has no function to perform when the pledgee already has possession, and when the contract giving Sicka the right to hold the hay was added to his possession previously acquired, the pledge was complete. It was necessary that Sicka’s possession should present an appearance sufficient to give fair notice of his rights. This requirement was fully met by keeping the hay locked in the barn which he rented from a third person, and by keeping control of the key.- But, having possession of this character, it was not necessary that he do anything more to consummate the pledge.
Complaint is made because the jury were not instructed that it was essential Sicka should hold the hay “adversely” to Brannum. In the case of Atkinson v. Bush, 91 Kan. 860, 139 Pac. 393, this court said:
“To constitute a valid pledge of personal property as security for a debt, it is essential that there be an actual delivery of the property by the pledgor to the pledgee, and the pledgee must thereafter hold possession of the pledge openly and adversely to the pledgor.” (p. 863.)
It is not always necessary that a particular word employed by this court in a discussion of legal principles should be used in an instruction to a jury with reference to the same subject. In this instance, Sicka’s possession of the hay became adverse to Brannum if the agreement that he might hold the hay were made and acted on. Before that he held the hay for Brannum. After that he held the hay for himself. Possession of such .open and exclusive character as to warn the plaintiff was a different matter. Consequently all that was necessary was to submit to the jury the question of fact, whether or not the agreement were made and acted on, and that was done.
When instructing the jury generally on the subject of estoppel by silence the court used the common expression, “when a person . . . stands by.” In another instruction the general principles previously stated were applied to the evidence, and it was said that if Sicka knew the mortgage was being made under the belief that the hay was free from pledge, and being present, with such notice and knowledge, suppressed or failed to assert his claim, and allowed the mortgage to be made, he would be estopped. The plaintiff’s evidence did not fix the date on which the plaintiff’s cashier told Sicka of the contemplated loan to Brannum as the date on which the chattel mortgage was given, and it is said the instruction practically precluded recovery by the plaintiff on the ground of waiver and estoppel.
The general instruction was correct, and was so framed as to give the jury a clear notion of the principles governing the controversy. As remarked in 10 R. C. L. 694, the expression ^standing by” has lost its primary' signification of actual presence or participation. This is true of its popular as well as its legal meaning. The other instruction is open to criticism, but the court is of the opinion it was not prejudicially erroneous. There were two perfectly distinct claims on the hay, one by pledge and the other by mortgage. If Sicka’s evidence relating to the pledge were substantially true, leaving out of account the information, he claimed he gave the plaintiff’s cashier concerning the pledge, Sicka was entitled to the hay, unless he waived his lien. Sicka denied that he was informed of the contemplated Brannum mortgage, and his case before the jury rested, not on whether his duty to speak arose at one time or at another, but on which story should be believed. The instructions ás a whole are open to the interpretation that “being present” directed attention to the opportunity which Sicka had to disclose his pledge, and so prevent loss to the plaintiff. So interpreted, the instruction was not erroneous, and under the circumstances stated the court is satisfied the jury were not misled.
An inaccuracy in the court’s statement of the interpleader’s claim was without detriment to the plaintiff. There was no evidence that the hay which was pledged was mingled with other hay in such a way as to lose its identity.
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The opinion of the court was delivered by
WEST, J.-
This case involves 15 years’ dealing between the plaintiff and the defendants, all of which was carefully gone over by the referee whose report was approved by -the trial court and judgment entered thereon for the plaintiff.
The defendants, in their appeal, claim that the evidence showed a mutual mistake touching certain credits, and that they should be held to have paid more than the amount indicated by the verdict; but these are matters of fact considered by the referee and concluded by his approved report. (Smith v. Harris, 88 Kan. 226, 128 Pac. 378.)
Besides, no motion for a new trial was filed, and hence no error not apparent on the face of the record can be considered, and none appears. (Bank v. Refining Co., 89 Kan. 738, 132 Pac. 832; Milling Co. v. Schreiber, 102 Kan. 172, 174, 169 Pac. 222.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Allegrucci, J.:
Scott McKinney appeals his jury convictions of premeditated first-degree murder and aggravated robbery in one incident and of robbery in another. He also appeals his hard 40 sentence for the murder.
In July 1995, McKinney underwent treatment at Osawatomie State Hospital. After being discharged from the treatment center, he returned to his home in Pittsburg. McKinney s grandmother knew William Barnett and introduced him to McKinney.
In September 1995, Barnett’s body was found on the floor in his dining room. An autopsy showed that he had been stabbed in the neck and throat approximately 20 times. He had bruises and abrasions scattered over the upper part of his body. His lip and tongue appeared to have been bruised when trapped between the teeth. Bruises on his neck, a fracture of the hyoid bone at the base of the tongue, hemorrhaging around the hyoid and the thyroid cartilage, and small hemorrhages inside the eyelids indicated that sufficient pressure had been applied to his neck to collapse the airway and cause asphyxiation. Death did not come quickly because no major blood vessels were cut. Twenty milliliters of bloody fluid in Barnett’s stomach indicated that “he was alive during the stabbing and swallowed some of the blood.”
McKinney told law enforcement officers that he had killed Barnett. He said he “just decided to go by Bill’s house” and that from the outside he could see someone else was there, so he went around to the back of the house and waited for the other person to leave. Eventually McKinney went to a club for awhile before returning to Barnett’s house. McKinney reported that after they had talked for 10 to 20 minutes, Barnett got very defensive and blamed McKinney for his goddaughter’s problems. McKinney described how he killed Barnett:
“I just grabbed him and started like giving him a headlock or something and he wouldn’t go down. And I wrestled him and I wrestled him finally to the ground and I gave him a headlock and it seemed like it must have went on for fifteen, twenty minutes and finally he — he quit breathing or ... I thought he did and I — I got up and I looked around and ... I couldn’t find my glasses and then I found mine and then I found his under the buffet, but I left his there and when I was leaving the back door he said Scott, Scottf,] and I turned around and he was half way getting up again and I got him back down and I started choking him and banging his head. By this time he was- — he was this way and I totally . . . reversed him around this way and . . . I got off of him and there was some — some kind of little scissors of some sort and I just started puncturing him in his throat and he wouldn’t die and so I got up, I grabbed a steak knife and I cut some part of his left neck and blood went everywhere on his face.
“. . . And he — he was saying my name and I could hear him swallowing blood.
“. . . I put something over his face.”
McKinney also told the officers that he broke the steak knife when he used it on Barnett’s neck. Before leaving, McKinney took Barnett’s billfold, money clip, and money. He went to a bar where he talked to someone named Keith about how to cash a check that was in the billfold. When the bar closed at 2:30 a.m., he went home and drank all night. The following day was Friday. He went to several banks trying to cash the check. McKinney also told the officers that he grabbed the purse of a woman he saw on the street and ran with it.
Glenda Evans testified that on Friday, September 22,1995, she had cashed some checks at the bank and walked outside. According to Evans, “this guy had watched me and he grabbed my thing that I had the money in and took out.” She continued, “I was opening the door of my car and he pushed me up against a door and grabbed it.” McKinney told police that he got $300 or $400 from her.
Defendant challenges the constitutionality of K.S.A. 22-3302, which governs competence to stand trial. It has been long and firmly established in this country that “[a] defendant may not be put to trial unless he “‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . [and] a rational as well as factual understanding of the proceedings against him.’ ” Dusky v. United States, 362 U.S. 402 (1960).” Cooper v. Oklahoma, 517 U.S. 348, 354, 134 L. Ed. 2d 498, 116 S. Ct. 1373 (1996). The criminal trial of an incompetent defendant would violate due process. Medina v. California, 505 U.S. 437, 453, 120 L. Ed. 2d 353, 112 S. Ct. 2572 (1992). In determining whether a defendant is competent, a State may presume that he or she is competent and require the defendant to shoulder the burden of proving his or her incompetence by a preponderance of the evidence. 505 U.S. at 449. A State may not, however, require the defendant to prove his or her incompetence by clear and convincing evidence. Cooper, 517 U.S. at 355-56.
In the courts of this state, proceedings to determine competence are governed by K.S.A. 22-3301 and K.S.A. 22-3302. K.S.A. 22-3301(1) provides:
“For the purpose of this article, a person is ‘incompetent to stand trial’ when he is charged with a crime and, because of mental illness or defect is unable:
(a) To understand the nature and purpose of the proceedings against him; or
(b) to make or assist in making his defense.”
K.S.A. 22-3302(3) provides, in part:
“The court shall determine the issue of competency and may impanel a jury of six persons to assist in making the determination. The court may order a psychiatric or psychological examination of the defendant. To facilitate the examination, the court may: (a) If the defendant is charged with a felony, commit the defendant to the state security hospital or any county or private institution for examination and report to the court . . . .”
“On appeal, the reviewing court’s inquiry on a trial court’s determination that a defendant is competent to stand trial is whether the trial court abused its discretion.” State v. Peckham, 255 Kan. 310, Syl. ¶ 6, 875 P.2d 257 (1994).
In the present case, McKinney challenges the constitutionality of Kansas’ statutory scheme for determining competence to stand trial. He contends that the statutes’ silence on burden and standard of proof leaves the door open for imposition of an improper burden on a defendant.
This issue is controlled by our recent decision in State v. Cellier, 263 Kan. 54, 948 P.2d 616 (1997). Cellier made the same constitutional challenge to the competency statute, i.e., the absence of an evidentiaiy standard makes the statute unconstitutional. We noted that, of the three possible evidentiary standards which applied to the statute, “clear and convincing” or “beyond a reasonable doubt” had been found by the United States Supreme Court to violate due process. We further noted: “If at all possible, statutes are to be interpreted in a constitutional manner. The only way to constitutionally interpret 22-3301 and 22-3302 is to find that their implicit evidentiary standard is a preponderance of the evidence standard.” 263 Kan. at 69-70. We then held:
“The trial court measures the evidence presented by the standard of preponderance of evidence. With a statutory presumption that an accused is sane, State v. Gilder, 223 Kan. 220, 227-28, 574 P.2d 196 (1977), if follows that there is a presumption a defendant is competent to stand trial. Using this implicit burden of proof and evidentiary standard within the competency statutes we hold that K.S.A. 22-3201 and K.S.A. 22-3202 are not unconstitutional.” 263 Kan. at 70.
McKinney also contends that the statutes fail “to honor an accused’s right to a meaningful hearing.” His specific complaint is that the statute does not require psychological testing and that none was done in this case. McKinney asserts that basic testing procedures are necessary to an evaluation that would meet the standards of the scientific community, citing State v. Warden, 257 Kan. 94, 891 P.2d 1074 (1995), but that reliance must be mistaken. Warden involves questions of a young, impaired victim’s competence to testify, Warden’s competence to stand trial was not at issue.
McKinney concedes that in State v. Green, 245 Kan. 398, 412-13, 781 P.2d 678 (1989), the court held that competence to stand trial could be determined without the aid of a psychological or psychiatric evaluation. He contends, however, that the United States Supreme Court’s subsequent decisions in Medina and Cooper require a different result. He argues that now a determination of competence to stand trial cannot be left “to the whim of indi vidual judges and mental health practitioners who fail to conduct a competent evaluation.” He does not specify what it is in either of the Supreme Court opinions that supports his contention, and review of them does not reveal a basis. In fact, the Supreme Court’s validating the states’ practice of presuming a defendant’s competence and placing the burden of proving otherwise on him or her seems to undermine the argument.
Defendant next contends that the jury should have been instructed on felony murder as a lesser included offense of premeditated first-degree murder. McKinney was charged with the first-degree premeditated murder of William Barnett. The district court instructed the jury on second-degree murder and voluntary manslaughter in addition to first-degree premeditated murder. On appeal, McKinney argues that the jury also should have been instructed on felony murder as a lesser included offense of first-degree premeditated murder.
K.S.A. 21-3401 provides:
“Murder in the first degree is the killing of a human being committed:
(a) Intentionally and with premeditation; or
(b) in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.
“Murder in the first degree is an off-grid person felony.”
K.S.A. 21-3107 provides, in part:
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
(a) A lesser degree of the same crime;
(d) a crime necessarily proved if the crime charged were proved.
“(3) In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced.”
McKinney contends that felony murder, although first-degree murder like premeditated murder, is a lesser degree of the same crime because the punishment for felony murder is lighter than that for premeditated murder. He points out that a defendant con victed of premeditated murder is eligible for a hard 40 sentence and is not eligible for parole before serving 25 years of a life sentence. K.S.A. 21-4635(a); K.S.A. 22-3717(b)(l). A defendant convicted of a felony, in contrast, is not eligible for a hard 40 sentence and is eligible for parole after serving 15 years of a life sentence. K.S.A. 21-4706(c); K.S.A. 22-3717(b)(2). The State simply asserts that a lighter punishment does not define a lesser offense. In State v. Matson, 260 Kan. 366, 372, 921 P.2d 790 (1996), we responded to a similar argument:
“This reasoning is flawed. The availability of the hard 40 sentence for first-degree premeditated murder does not make that crime separate and distinct from first-degree felony murder for several reasons. First, the jury declined to impose the hard 40 sentence for the first-degree premeditated murder of Dale Pavey. Second, as to the murder of Julie Voyles, the jury did not consider the hard 40 sentence because the defendant was convicted of second-degree murder of Voyles, not first-degree murder. Finally, and most importantly, the hard 40 sentence is just that, a sentence — not a separate crime.”
Felony murder is not a lesser degree of murder than premeditated murder. Felony murder is first-degree murder; premeditated murder is first-degree murder. This court has on numerous occasions held that premeditated and felony murder are not separate, distinct offenses but are two separate theories under which the crime of first-degree murder may be committed. In Matson, this court said:
“The Starr court first observed that premeditated murder and felony murder are not separate and distinct crimes but rather are two different theories under which the crime of first-degree murder may be committed. The Starr court concluded that amending a charge of first-degree felony murder to include a charge of first-degree premeditated murder during trial is not charging an additional or different crime.” 260 Kan. at 372.
Second-degree murder is an example of a lesser degree of premeditated murder.
Nor is felony murder necessarily proved if the crime charged — premeditated first-degree murder — were proved. The elements of premeditated murder are (1) that the defendant intentionally killed the victim and (2) that the killing was. done with premeditation. PIK Crim. 3d 56.01 (1994 Supp.). The elements of felony murder are (1) that the defendant killed the victim and (2) that the killing was done while defendant was in the commission of, attempting to commit, in flight from committing, or attempting to commit an inherently dangerous felony. PIK Crim. 3d 56.02 (1997 Supp.). Instead of its being a lesser included offense of premeditated first-degree murder, felony murder may be an alternative theory of the crime. The State may charge in the alternative and offer evidence to support both. There is a pattern instruction that, in these circumstances, must be given in addition to PIK Crim. 3d 56.01 and PIK Crim. 3d 56.02. It states, in part:
“In this case, the State has charged the defendant with one offense of murder in the first degree and has introduced evidence on two alternate theories of proving this crime.
“The State may prove murder in the first degree by proving beyond a reasonable doubt that the defendant killed [the victim] and that such killing was done while (in the commission of) (attempting to commit) (in flight from [committing] [attempting to commit]) [an inherently dangerous felony] or in the alternative by proving beyond a reasonable doubt that the defendant killed [the victim] intentionally and with premeditation, as fully set out in these instructions.
“Where evidence is presented on the two alternate theories of proving the crime charged, you must consider both in arriving at your verdict.” PIK Crim. 3d 56.02-A.
There is no contention here that the State either charged or should have charged McKinney with felony murder in the alternative to premeditated murder. Nor does McKinney argue that the jury should have been instructed on premeditated murder and felony murder as alternative theories. Instead, he contends that “when a premeditated murder is charged and the killing occurs in the commission of an inherently dangerous felony, ... an instruction on the lesser offense of felony murder must be given.” He gives no authority for the proposition. He does not assert that defense counsel requested an instruction on the alternative theories, and he has not argued that K.S.A. 21-3107(3) creates an affirmative duty for the trial court to instruct on all alternative theories of guilt under the charges and upon the evidence adduced, with or without a request to do so.
It appears that both parties are trying to have it both ways in the district court. Defense counsel denied on the record that there was any evidence that would support a finding that defendant entered Barnett’s house for the purpose of robbing him. Although the State did not charge McKinney with felony murder or adduce evidence that would support a theory of felony murder, the State argued at sentencing that McKinney killed Barnett for financial gain and that he killed him to avoid being caught for the aggravated robbery. The trial judge rejected the first of these proposed aggravating factors. He agreed with defense counsel, who said, “There’s absolutely no evidence in the case that indicates that he went in and killed Mr. Barnett to get money.”
We next consider defendant’s argument that the evidence was insufficient to support the conviction of aggravated robbery of Barnett. In contrast to his argument on felony murder, McKinney contends for the purpose of this issue that “there is absolutely no evidence to support the finding that the forced [sic] used to harm Mr. Barnett was done to assist in completing a robbery.”
“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 fact-finder could have found the defendant guilty beyond a reasonable doubt.” State v. Evans, 251 Kan. 132, Syl. ¶ 1, 834 P.2d 335 (1992).
K.S.A. 21-3426 provides as follows: “Robbery is the taking of property from the person or presence of another by force . . . .” K.S.A. 21-3427 provides: “Aggravated robbery is a robbery . . . committed by a person . . . who inflicts bodily harm upon any person in the course of such robbery.”
McKinney contends that the evidence showed that his taking the murder victim’s property was an afterthought. In other words, he contends that there is no evidence that he intended to rob Barnett at the time he killed him. Instead, McKinney contends, the evidence showed that he killed Barnett and then decided to take the dead man’s wallet and clip of money. McKinney notes that at the time of sentencing, the trial court declined to find the aggravating circumstance that the killing was committed for financial gain.
The State relies on State v. Patterson, 243 Kan. 262, 755 P.2d 551 (1988), and State v. Myers, 230 Kan. 697, 640 P.2d 1245 (1982), to discredit McKinney’s contention that taking the murder victim’s property as an afterthought does not constitute the offense of aggravated robbery. In Myers, the court put to rest the contention that the intent for the force and the taking of property must coincide in time. The following rule was established:
“Under factual circumstances where a defendant shoots his victim and later decides to take and remove the victim’s personal belongings and where the act of force and the taking of the property are so connected as to form a continuous chain of events so that the prior force makes it possible for the defendant to take property from the victim’s body without resistance, that is sufficient for a conviction of the crime of robbery.” 230 Kan. 697, Syl. ¶ 2.
Thus, even assuming that robbing the victim did not occur to McKinney until after he killed Barnett, the undenied continuity of events established the essential elements of aggravated robbery.
McKinney argues, in the alternative, that the trial court should have instructed the jury on the lesser included offense of theft. In similar factual circumstances in Evans, 251 Kan. 132, this court rejected the same argument on the ground that the evidence excluded a theory of guilt of theft. The evidence showed that Barnett was subjected to lethal bodily harm and his property was taken. The absence of any element of bodily harm for theft removes that offense from consideration. 251 Kan. at 137-38. Evans controls, and defendant’s argument is without merit.
Defendant next argues that the jury should have been instructed on theft as a lesser included offense of robbery of Glenda Evans’ purse. McKinney told police that he had snatched Mrs. Evans’ purse from her arm, but he denied pushing her. For this incident, he was charged with robbery. In McKinney’s view, his statements warranted the trial court’s giving an instruction on the lesser included offense of theft. The State’s position is that McKinney’s snatching the purse away from Evans constituted the threat of bodily harm, which is an element of robbery. Thus, the State argues, even in defendant’s version of the incident, the evidence excludes a theory of guilt of theft. This is correct.
The court’s reasoning in State v. Aldershof, 220 Kan. 798, 556 P.2d 371 (1976), is instructive in this matter. In that case, tavern patrons’ purses were taken off their table during a power outage. Defendant was charged with and convicted of robbery. This court reversed on the ground that the offense at most was theft because no force or threat was used in the taking. The court declared that “[rjobbery is not committed where the thief has gained peaceable possession of the property.” 220 Kan. 798, Syl. ¶ 3. The flip side of the coin is that theft is not committed where the thief has used force to gain possession of the property. We find no merit in defendant’s argument.
Defendant next claims it was error for the trial court to permit a psychiatrist who had previously treated defendant to give rebuttal testimony for the State when defense counsel had not been given advance notice or been furnished her report. Defendant presented an insanity defense through the trial testimony of his witness, Dr. Robert Schulman, a general clinical psychologist. Schulman met with McKinney for approximately 3 hours on December 13,1995, and administered psychological examinations to determine, among other things, McKinney’s “level and degree of mental illness.” Schulman also reviewed some records of McKinney’s past psychiatric hospitalizations.
With regard to the responses McKinney gave to Rorschach images, Dr. Schulman testified:
“This is the record of an individual who is suffering psychotic illness [i]n spite of the medication that [he is] taking[.] [I]t’s not quite floridly psychotic but if he was using the medication that he had indicated, one would have thought that he would have had himself under better control and been able to produce a more productive and integrated record.”
Regarding a word association test, Schulman testified that McKinney’s responses suggested an “undercurrent of sexual problems.” His responses on a sentence completion test suggested to Schulman “something about the inner schizophrenic life for him being more comforting than the real world.” Schulman concluded that McKinney “had a psychotic illness[,] most likely paranoid schizophrenia.” Schulman testified that paranoid schizophrenic persons usually do not know the difference between right and wrong. He was of the opinion that the manner in which McKinney killed Barnett reflected McKinney’s psychosis and that he was not sane when he snatched Mrs. Evans’ purse.
Dr. Roy Lacoursiere, a psychiatrist who had examined McKinney for the prosecution, concluded that he was a malingerer, “[sjomeone who was feigning an illness.” Dr. Schulman testified that he did not agree with Lacoursiere’s conclusion. Schulman noted that McKinney had been hospitalized and examined on many different occasions by many different professionals and that a number of different opinions had been expressed about his mental state. McKinney had been called, for example, schizophrenic, schizoaffective, and psychotic not otherwise distinguished, and he had been diagnosed with psychosis, bipolar disorder, alcoholism, and borderline personality disorder. According to Schulman, McKinney has “had every diagnosis — nearly every diagnosis that you can think of.”
Elaborating on his diagnosis of McKinney as suffering from paranoid schizophrenia, Dr. Schulman offered the opinion that McKinney had “been continuously ill since about 1992 .... He has had the signs and symptoms of schizophrenia over a long period of time.” Schulman believed that McKinney had “been totally dysfunctional most of his life probably[,] but certainly within the last three or four years.”
The defense rested after Dr. Schulman’s testimony, and the State was permitted to call Dr. Nasim Osman as a rebuttal witness. Defense counsel objected on the grounds that the prosecutor failed to give advance notice that he intended to call Osman and failed to furnish a report of what she was expected to say. Osman was McKinney’s treating psychiatrist during his hospitalization at Osawatomie State Hospital, which ended only a few days before McKinney killed Barnett. The prosecutor told the trial court that he wanted to call Osman for the sole purpose of disputing Schulman’s testimony that McKinney had been schizophrenic continuously for several years before killing Barnett.
The following facts were adduced during Dr. Osman’s brief direct examination: McKinney was admitted to Osawatomie State Hospital for the 11th time on July 2, 1995. He was discharged on September 18,1995. Osman was his treating physician during that hospitalization. Her diagnosis of McKinney “was alcohol dependence and antisocial personality disorder.” She did not see him ex hibit symptoms of schizophrenia. On cross-examination, Osman testified that she saw McKinney 34 times during his hospitalization from July to September 1995 and that a staff psychologist administered psychological tests to McKinney and discussed the results with her.
McKinney argues that the trial court’s permitting Dr. Osman to testify violated his right to notice under the Due Process Clause of the Fourteenth Amendment and his right to cross-examination under the Sixth Amendment. The notice required for due process, however, is of the possibility of being deprived of life, liberty, or property. It is not notice of a rebuttal witness. McKinney’s Sixth Amendment complaint is not that he was unable to cross-examine Osman. He did cross-examine her. His general complaint is that “the lack of notice prevented defense counsel from adequately preparing his cross-examination.” The specifics he cites, however, pertain to aspects of her testifying that may have created some difficulties in cross-examining her. The specific complaints do not pertain to advance preparation for cross-examining her. McKinney states, “She did not have her records with her and was not able to respond to counsel’s questions concerning the nature or extent of her observations. She was unable to respond to Counsel’s questions concerning testing done at Osawatomie on Scott.”
There is no suggestion in the appellant’s brief that defense counsel was unaware of Dr. Osman’s treatment and diagnosis of McKinney. It would be reasonable to assume that defense counsel’s preparation for trial included obtaining and studying the medical records from McKinney’s hospitalization that ended immediately before he killed Barnett.
In addition to making his constitutional contentions, McKinney quotes K.S.A. 22-3219 and State v. Pyle, 216 Kan. 423, 441-42, 532 P.2d 1309 (1975). Both are concerned with the requirements for a defendant’s establishing an insanity defense. Neither touches on any conditions or requirements for prosecution witnesses called for the purpose of rebutting defendant’s evidence on mental disease or defect. McKinney states that the prosecution “should be required to disclose to the defense any experts it intends to rely upon to negate the defense of mental illness,” but he does not represent to the court that such a requirement exists in statutory or case law form.
On the subject of rebuttal evidence, this court has stated:
“Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract, or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts the witnesses on the opposite side, but also corroborates previous testimony. The use and extent of rebuttal rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears the discretion has been abused to a party’s prejudice.” State v. Prouse, 244 Kan. 292, Syl. ¶ 2, 767 P.2d 1308 (1989).
In the present case, defendant has not shown abuse of the trial court’s discretion.
Defendant’s final issue is to the sufficiency of the evidence to support the two aggravating factors relied on by the trial court in imposing the hard 40 sentence. The sentencing judge found that McKinney had killed Barnett “in order to avoid or prevent lawful arrest or prosecution” and “in an ¿specially heinous, atrocious and cruel manner.”
“When the sufficiency of the evidence is challenged for establishing the existence of an aggravating circumstance in a hard 40 sentencing proceeding, the standard of review is whether, after a review of all the evidence, viewed in the fight most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance beyond a reasonable doubt.” State v. Brady, 261 Kan. 109, Syl. ¶ 4, 929 P.2d 132 (1996).
In finding that McKinney killed Barnett in order to avoid prosecution, the trial court relied primarily on testimony of Special Agent Williams. McKinney told the agent that he had gone to Barnett’s house, got into a confrontation with Barnett, grabbed him, knocked him to the floor, and strangled him until Barnett seemed to have stopped breathing. McKinney told Williams that he got up to leave and, as he was going out the door, Barnett yelled his name. McKinney then saw that Barnett was getting up off the floor. McKinney told Williams that he went back at that time and stabbed Barnett because he was afraid of being arrested and charged with the initial assault. The trial court also noted that McKinney had told Dr. Lacoursiere the same story — that he went back to kill Barnett because he was afraid of being prosecuted for the initial assault.
On appeal, McKinney contends that the evidence is conflicting. He asserts that the taped statement he gave to Special Agent Williams does not contain an admission that he returned to Mil Barnett out of fear of being prosecuted for the initial assault. Williams’ trial testimony was that McKinney did not give avoiding prosecution for assault as his reason for killing Barnett until after he had given his taped statements. Williams testified that he taped, two statements from McKinney before booMng him. Then Williams took McKinney to the courtroom for his first appearance. At that time Williams asked, among other things, “why he had gone back after he started to leave the house.” Williams testified that McKinney first responded that he “had gone back to help” Barnett. When Williams expressed disbelief, McKinney said that he “didn’t want to get in trouble.” McKinney “[sjtated he went back so that Mr. Barnett would not be able to report the previous struggle that they had had.” Williams was asked if that was the reason McKinney had given him for killing Barnett, and he said that it was.
McKinney also argues that his desire to avoid arrest or prosecution was not “the main or even a substantial motivation for the killing.” Conceding that this court has never interpreted K.S.A. 21-4625(5) so that avoiding prosecution must be the main or substantial motive for the murder, McKinney urges this court to follow the example set by other states’ courts and establish this rule, citing decisions from Florida, Illinois, Nebraska, and North Carolina for the proposition that “[k]illing to avoid arrest or prosecution must be the motivational force behind the murder to justify the imposition of the Hard 40.” The State has not bothered to respond to defendant’s argument. The cases from other states are death penalty cases. In this regard,. McKinney cites State v. Willis, 254 Kan. 119, 864 P.2d 1198 (1993), as representing this court’s “retreat” from the earlier view that death penalty cases had limited precedential value for hard 40 sentencing. McKinney’s brief was filed before this court’s opinion was filed in State v. Spain, 263 Kan. 708, 953 P.2d 1004 (1998). Spain urged this court to reconsider its stated view that the reasoning in cases involving capital punishment is not fully apphcable to hard 40 sentences. Among the cases cited by Spain was Willis. The court declined to do so in the following words: “A body of case law has been developed for the hard 40, and those cases are governing precedents for the present case.” 263 Kan. at 710. As in Spain, there is no need in the present case to go beyond established case law in order to adjudicate the case before the court.
In State v. Reed, 256 Kan. 547, 886 P.2d 854 (1994), Reed was convicted of murdering a teenaged girl after he drove her to the country to rape her. The jury found that he murdered her in order to avoid being prosecuted for the sexual assault. On appeal, Reed argued that evidence of his concealing the victim’s body was related to his attempt to avoid being prosecuted for the murder rather than for the sexual assault. The majority of the court was of the opinion that the evidence related to avoiding prosecution for both the sexual offense and for the murder: “His actions, if concealment of the body had been successful, would have avoided or prevented a lawful arrest or prosecution for kidnapping or attempted rape.” 256 Kan. at 566. Here, there is a great deal more evidence, especially McKinney’s admission to Special Agent Williams, to support the aggravating circumstances, than just the murderer’s actions following the murder. After reviewing all, the evidence, viewed in a light favorable to the State, we conclude the evidence was sufficient to support the trial court’s finding the existence of this aggravating circumstance.
The trial court also found the murder was committed in an especially heinous, atrocious, or cruel manner. McKinney’s main argument is that his choking the victim, banging his head, repeatedly puncturing him in the throat for many minutes while Barnett was saying his attacker’s name and audibly swallowing blood and eventually asphyxiating from a combination of compression of his airway and the stab wounds was not heinous, atrocious, or cruel in manner.
McKinney s first contention seems to be that, by killing Barnett this way, he inflicted neither serious mental anguish nor serious physical abuse before the victim’s death. The evidence, however, shows that Barnett called out, “Scott,” a number of times and that he endured 20 puncture wounds with scissors and a kitchen knife as well as choking and the banging of his head. This would seem to be evidence of the victim’s suffering serious mental anguish and serious physical abuse.
McKinney also contends that there was no evidence that he intended for Barnett to suffer. He argues that his bungling of the killing does not make it heinous, atrocious, or cruel in manner. He cites cases from other states for the proposition that an especially heinous, atrocious, or cruel murder occurs only where the killers relished torturing or inflicting unnecessary pain on the victim. He does not cite any Kansas cases to this effect, however. The instruction that has been adopted by this court for defining this aggravated circumstance for a jury may provide some guidance in the present case even though the trial court made the findings in the present case:
“The defendant committed the crime in an especially heinous, atrocious, or cruel manner. The term ‘heinous’ means extremely wicked or shockingly evil; ‘atrocious’ means outrageously wicked and vile; ‘cruel’ means pitiless or designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the sufferings of others.
“A crime is committed in an especially heinous, atrocious, or cruel manner when the perpetrator inflicts serious mental anguish or serious physical abuse before the victim’s death. Mental anguish includes a victim’s uncertainty as to [his] or [her] ultimate fate.” Willis, 254 Kan. 119, Syl. ¶ 4.
The focus for the Kansas aggravating circumstance seems to be on the suffering of the victim rather than on the defendant’s sadism. Although the two may more often than not go hand-in-hand, the law in this state does not seem to require the latter where the former is present.
McKinney also cites case law from other states for the proposition that this aggravating circumstance may not be found where “the victim is possibly unconscious during the infliction of wounds.” McKinney has supplied no Kansas authority for the rule he advocates that would take the question of the victim’s conscious suffering away from the factfinder. Moreover, he has cited no Kansas authority for the proposition that a showing of serious physical abuse of an unconscious victim would not adequately support this aggravating circumstance. With serious mental anguish stated in the disjunctive with serious physical abuse, it would appear that one without the other is sufficient.
As a final matter, McKinney argues that his returning to kill Barnett when he realized that he had not killed him during the initial assault cannot be used as evidence to support this aggravating circumstance because it was used as evidence of premeditation and intent to kill. The fatal weakness of this argument is that McKinney’s returning to “finish off” the victim was peripheral, at most, to the trial court’s decision. The trial court’s findings on this aggravating circumstance dwell on the length of time the victim suffered attack by McKinney and consequently must have feared for his life, the number of puncture wounds, and the ferocity of the blows. Only after extensively reviewing evidence of the victim’s mental and physical suffering did the trial court even mention McKinney’s returning to kill him. Only after concluding that Barnett suffered horribly did the trial judge turn his attention to McKinney’s cold-bloodedness:
“I note that all murders are heinous, atrocious and cruel, but I believe this one was egregiously so. Mr. McKinney, the defendant, certainly had the ability to flee or leave the premises. Never was he restrained by the victim. Never was the victim necessarily fighting back. The defendant certainly at all times had the ability to leave and chose not to do so but chose to actually assault the victim on three separate occasions, caused his death in an extremely heinous and atrocious way by multiple stab wounds to the neck, none of which would be immediately fatal and all of which, added together in a cumulative sense, did cause the death of the victim, I believe, in a very cruel way.”
We agree.
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The opinion of the court was delivered by
Abbott, J.:
This appeal concerns a homeowner’s insurance policy and comes before the court upon rehearing. Pursuant to an order issued April 10,1998, we withdrew our previous opinion and granted a rehearing to examine further the full scope of our decision.
This is an appeal from summary judgment in favor of third-party defendant Safeco Insurance Company of America (Safeco). The Court of Appeals found no liability coverage under the Safeco policy issued to David Wayne Lee and his wife Kimberlee for David’s alleged negligence concerning Kimberlee’s murder of Douglas Brumley. Douglas was the adopted child of plaintiffs Delmar and Alberta Brumley (Brumleys). The Court of Appeals concluded that the death was not an “occurrence” as defined in the policy. The Brumleys petitioned for review.
Safeco cross-petitioned for review on the Court of Appeals’ reversal of the district court’s ruling that the exclusion for bodily injury “expected or intended by any insured” precluded coverage. The Court of Appeals decided that Catholic Diocese of Dodge City v. Raymer, 16 Kan. App. 2d 488, 825 P.2d 1144, aff’d 251 Kan. 689, 840 P.2d 456 (1992), controlled. We exercised our jurisdiction under K.S.A. 20-3018(b) by granting both the petition and cross-petition for review.
We reverse summary judgment for Safeco. We decline to address Safeco’s assertion that Douglas Brumley was an “insured” within the meaning of the policy. Safeco failed to appeal the district court’s denial of summary judgment on that issue.
FACTS
In 1992, there were difficulties with some children in the Brumley household. Kimberlee, the Brumleys’ daughter, and David Lee agreed to house and care for Douglas, age 4, until the problems were resolved. Both Kimberlee and David abused Douglas when he was in their care. Kimberlee struck Douglas in the abdomen. He died 2 days later. Both Kimberlee and David were convicted of crimes relating to the abuse and death of Douglas.
The Brumleys allege that David negligently caused or contributed to the death of Douglas. The petition seeks damages for wrongful death and for Douglas’ pain and suffering. David filed a third-party petition against Safeco, alleging that Safeco, as liability insurer of the Lees’ home, should indemnify him. Safeco denied liability under its policy. The Brumleys and Safeco stipulated that if the court decided that the policy provided coverage, then Safeco would pay the Brumleys the policy limits of $100,000. The claims against David were dismissed, and the case continued as a declaratory judgment action on the coverage issue.
Safeco filed two summary judgment motions, arguing no coverage existed because: (1) Douglas resided with the Lees and was an “insured” under the policy; and (2) the acts complained of were not a covered “occurrence” in the policy or, alternatively, the acts causing the bodily injury were intentionally inflicted by “any insured.” The district court denied Safeco’s first summary judgment motion, finding material issues of fact existed as to whether Douglas was an “insured.” The second motion was granted on the alternative grounds.
We construe an insurance policy in a way that will give effect to the intention of the parties. If the language is ambiguous, the construction most favorable to the insured must prevail. If the policy is not ambiguous, we do not remake the contract; we enforce the contract as made. Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, 713, 732 P.2d 741 (1987).
Our test for ambiguity was described in Raymer, 251 Kan. at 693:
“To be ambiguous, a contract must contain provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language. Ambiguity in a written contract does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning. [Citation omitted.]”
There are three policy provisions involved in this case: (1) the severability clause, (2) die intentional act clause, and (3) the occurrence or accident clause.
We turn now to the relevant severability policy provisions. Under “Section II — Exclusions” the Safeco policy provides:
“Coverage E — Personal Liability . . . do[es] not apply to bodily injury or property damage:
a. which is expected or intended by any insured.” (Emphasis added.)
Under “Section II — Conditions” the policy provides:
“Severability of Insurance. This insurance applies separately to each insured. This condition shall not increase our limit of liability for any one occurrence.” (Emphasis added.)
The Brumleys rely on two cardinal rules of contract construction as support for their arguments that the severability clause renders ambiguous the application of the intentional act exclusion and the “occurrence” definition in this case: (1) that all pertinent provisions of an insurance policy must be considered together, rather than in isolation, and given effect; and (2) that the test for ambiguity in an insurance policy is what a reasonably prudent insured would understand the language to mean, not what the insurer intends the language to mean. E.g., Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 63, 131 L. Ed. 2d 76, 115 S. Ct. 1212 (1995); Associated Wholesale Grocers, Inc. v. Americold Corp, 261 Kan. 806, Syl. ¶ 2, 934 P.2d 65 (1997). “Where the terms of a policy are ambiguous or uncertain, conflicting, or susceptible of more than one construction, the construction most favorable to the insured must prevail.” 240 Kan. at 713. “[T]he drafter must suffer the consequences of not making the terms clear.” Lightner v. Centennial Life Ins. Co., 242 Kan. 29, 36, 744 P.2d 840 (1987).
Historically, we start with Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 519 P.2d 737 (1974), which held that one looks to the underlying theory of liability alleged to determine whether there was coverage. Noel was followed by Rose Constr. Co. v. Gravatt, 231 Kan. 196, Syl. ¶ 1, 642 P.2d 569 (1982), wherein Justice, now Chief Justice, McFarland, speaking for a unanimous court, held: “An automobile insurance policy containing exclusionary and severability of interests clauses is construed to require that the exclusions are to be applied only against the insured for whom coverage is sought” and “that coverage as to each insured must be determined separately based on the facts applicable to each insured.” 231 Kan. at 198.
Dicta in the Rose case would suggest that the use of “any insured” in the clause instead of “each insured” would have led to a different result. That dicta does not escape Safeco’s attention. The majority does not feel bound by that dicta, and whether “any insured” would have led to a different result was not an issue before the court.
Next came the case of Catholic Diocese of Dodge City v. Raymer, 16 Kan. App. 2d 488, affirmed by this court in a separate opinion, 251 Kan. 689. In Raymer, a teenager who was an insured under his parents’ homeowner’s policy vandalized a school. The teenager’s acts were intentional, and the policy had an exclusion clause that barred coverage for damages “ ‘caused intentionally by ... an insured.’ ” 16 Kan. App. 2d at 490. Coverage was sought under the homeowner’s policy for an action' brought against the parents for the negligent supervision of the child. Both the Court of Appeals and this court ruled that in fact there was coverage in Raymer. A majority of this court is of the opinion Raymer controls the case before us.
The words “an” and “any” are inherently indefinite and ambiguous. The two words can and often do have the same meaning. The Random House Dictionary of the English Language 68 (1973) gives many definitions for the word “any.” The first definition listed is “one, a, an, or some.” Correspondingly, the Random House Dictionary includes the word “any” among its definitions for the word “a” or “an.” Hence, the words may have the same meaning. Thus, the word “any” is not materially different from the word “a” or “an,” and, contrary to the district court’s ruling, Safeco’s use of “any” instead of “an” in its policy does not eliminate the ambiguity created by the policy’s severability clause.
With the severability clause each insured, in effect, has his or her own insurance policy. When looked at in that light, the ambiguity is easier to see. There are a number of insureds (in essence separate policies — one for each insured) in most instances because homeowner’s policies define insureds as residents of the household. Thus, if residents of a household include two parents and two teenage sons, there are four insureds. If the two teenagers vandalize a building and the parents are sued for negligence, the exclusions are applied only against the insureds for whom coverage is sought. Here, the insurance company added one letter — a “y”— to a single word in the insurance policy and thus claims a purchaser of that policy should realize that he or she has no coverage for a negligent act if the claim is a result of the intentional act of an insured other than the insured who the injured party claims to be negligent, such as one who is alleged to be negligent in supervising a minor or someone who is mentally ill or senile. We do not believe adding one letter — a“y”—to “an” eliminates the ambiguity we recognized in Raymer.
We acknowledge a fine of cases contrary to this holding. However, we believe the policy to be ambiguous and refer those who are interested to the Random House Dictionary of the English Language: Transport Indem. Co. v. Wyatt, 417 So. 2d 568 (Ala. 1982); Premier Ins. Co. v. Adams, 632 So. 2d 1054 (Fla. Dist. App. 1994); and Worcester Mutual Ins. Co. v. Marnell, 398 Mass. 240, 496 N.E.2d 158 (1986).
OCCURRENCE
In its unpublished opinion, the Court of Appeals affirmed the trial court’s summary judgment in favor of Safeco and against the Brumleys on the basis that the act causing injury was not an accident and there was no coverage because there was no “occurrence,” which the policy defined as an accident. We hold the Court of Appeals erred in that holding. We use the same standards of review set forth in the preceding section of this opinion.
Relevant Policy Provisions
The “Definitions” section of the Safeco policy provides:
“ ‘occurrence’ means an accident, including exposure to conditions which results, during the policy period, in bodily injury or property damage.”
The term “accident” is not defined in the policy. Under “Section II — Liability Coverages” the policy provides:
“If a claim is made or a suit is brought against any insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, we will:
1. pay up to our limit of liability for the damages for which the insured is legally liable.”
Under “Section II — Exclusions” the policy provides:
“Coverage E — Personal Liability . . . do[es] not apply to bodily injury or property damage:
a. which is expected or intended by any insured.”
Under “Section II — Conditions” the policy provides:
“Severability of Insurance. This insurance applies separately to each insured. This condition shall not increase our limit of liability for any one occurrence.”
The term “occurrence” defines coverage under the policy. The burden is on the insured to demonstrate that the loss falls within the scope of the policy. Harris v. Richards, 254 Kan. 549, 553, 867 P.2d 325 (1994). Safeco argues that the definition of the term “accident” quoted in Harris, 254 Kan. at 553, and taken from an early case, should apply:
“The word accident does not have a settled legal signification. It does have, however, a generally accepted meaning, which is the same whether considered according to the popular understanding or the approved usage of language. An accident is simply an undesigned, sudden, and unexpected event, usually of an afflictive or unfortunate character, and often accompanied by a manifestation of force.” (Quoting Gilliland v. Cement Co., 104 Kan. 771, 773, 180 Pac. 793 [1919].)
In Hams, this court affirmed summary judgment for the insurer, finding that Harris’ injuiy was not a covered occurrence and the intentional act exclusion applied to bar coverage. Harris was injured by a shotgun blast fired by the insured, Douglas Hawley, into the back window of a pickup truck as Harris sat in the truck with the insured’s ex-wife. The insured killed himself and his ex-wife in the encounter. As in this case, the liability policy covered injuries resulting from an occurrence, defined as an accident. The policy also contained an exclusion for injury “expected or intended by an insured.” 254 Kan. at 554. Harris argued that his injury was an accident because the insured intended to kill his ex-wife when he fired into the back window of the truck. This court stated:
“We believe that the question of coverage relates to Douglas as the insured rather than to Harris, the victim. We agree with the learned trial judge’s observations:
‘It would seem to me that where one fires a shotgun twice through the back of a pickup truck, knowing that some person is in the truck, but not being able to see who it is because of darkness, the injury caused to a person in the truck though claimed to be unintended, is not an accident.’ ” 254 Kan. at 554.
Harris also argued that the intentional injury exclusion should not apply because his injuries were not the natural and probable consequences of the insured’s intended acts. This court disagreed.
Harris is distinguishable, because only the insured who caused the injuiy was involved in that case, and no severability clause was at issue. The court did not need to decide from whose standpoint the injuring event should be viewed in determining whether the injuiy resulted from an accident.
The Brumleys contend that the severability clause in the policy makes the term “occurrence” ambiguous, in that the policy does not provide from whose perspective the injuring event is to be judged. Safeco responds that the severability clause does not apply to the “occurrence” definition or make it ambiguous because the “occurrence” definition is a coverage provision, not an exclusion. The parties agree that both David and Kimberlee are “insureds” under the policy. The parties also agree that Kimberlee’s fatal blow to Douglas’ abdominal area, tearing the mesenteiy and resulting in peritonitis and death, was intentional.
Accident Cases
Neither party has identified a Kansas case dealing with the question of whether a severability clause makes the defined term “occurrence” or the undefined term “accident” in a liability policy ambiguous when liability is sought against a co-insured for injuries intentionally caused by another co-insured. Safeco cites the following cases from other jurisdictions in which liability coverage was denied because the injury was not the result of an accident: Allstate Insurance Company v. Grayes, 216 Ga. App. 419, 454 S.E.2d 616 (1995); Mutual of Enumclaw v. Wilcox, 123 Idaho 4, 843 P.2d 154 (1992); State Farm Fire and Casualty Co. v. Doe, 130 Idaho 693, 946 P.2d 1333 (1997); and MBPIA v. Wasarovich, 214 Mich. App. 319, 542 N.W.2d 367 (1995).
In Grayes, as a result of an ongoing dispute between two couples who were next-door neighbors, Mr. Middleton shot Mr. and Mrs. Grayes with a shotgun. Mrs. Middleton was not present at the time of the shooting. The Grayes sued the Middletons for their injuries, alleging that Mr. Middleton’s actions were intentional and Mrs. Middleton provoked a series of incidents that led to the shooting. The Middletons sought liability coverage under their homeowner’s policy. The insurer moved for summary judgment, arguing that because the injuries were not the result of an accident, there was no coverage. Also, the intentional injury exclusion barred coverage as to Mr. Middleton’s conduct, and Mrs. Middleton’s conduct did not cause the injuries. The Grayes then changed the theory of their case, arguing that Mr. Middleton negligently shot them in self-defense. The insurer withdrew its reliance on the intentional injury exclusion, but continued to argue that the injuries were not the result of an accident. After the trial court denied summary judgment, the insurer appealed and the Georgia Court of Appeals reversed, determining that the injuries were not the result of an accident, and no acts by Mrs. Middleton caused any of the injuries. 216 Ga. App. at 421.
Grayes is similar to Harris but distinguishable because the discussion of whether the injuries resulted from an accident focused on Mr. Middleton’s conduct and his liability — not Mrs. Middle ton’s. She had no liability because there was no causation between her conduct and the shooting. The Grayes’ theory was that Mrs. Middleton had provoked the incidents that led up to the shooting. The court found lack of causation in that theory. Here, the Brumleys allege that David Lee negligently failed to protect Douglas from Kimberlee, knowing that Kimberlee was physically abusive to Douglas. The Grayes court did not analyze the accident question with respect to Mrs. Middleton’s conduct. If the accident analysis as to Mr. Middleton’s conduct would have also addressed Mrs. Middleton’s liability, there would have been no need to discuss the causation issue as to her conduct. There is no discussion in the opinion of any severability clause.
In Wasarovich, Joseph Wasarovich confronted his ex-wife Patricia in her home with her male roommate, August Feldt. Joseph killed Feldt, wounded his wife, and killed himself. Feldt’s estate sought recovery against Patricia for negligently failing to protect him from her ex-husband. Patricia sought liability coverage under her homeowner’s policy (Joseph and Patricia both being co-insureds). In a declaratory judgment action, the insurer moved for summary judgment on the coverage issue, arguing that Feldt’s murder was not a covered “occurrence” (defined in the policy as an accident) and, alternatively, that the intentional injury exclusion applied. No severability clause is mentioned. The Court of Appeals of Michigan stated: “By considering Ms. Wasarovich’s role in the murder, the trial court confused the threshold issue whether a policy provides coverage with the provision excluding liability from injury as a result of an intentional act.” 214 Mich. App. at 325. The court held: “In determining whether an accident occurred, we must view the incident itself from the standpoint of the insured actor who caused the injury in question.” 214 Mich. App. at 327. The dissent of Judge Hoot pointed out the lack of precedent directing such an interpretation and stated: “The contract is silent in terms of the conflicting perspectives of coinsureds, leaving two equally possible constructions that can be placed on the policy. . . . [T]his contract is ambiguous and is interpreted in favor of the insured, Patricia Wasarovich.” 214 Mich. App. at 331-32. Although Wasarovich supports Safeco’s position on the accident question, the weakness in the majority’s analysis is shown in the dissent.
In Wilcox, minor plaintiffs brought claims of sexual abuse against Shirley Wilcox and her ex-husband, who were foster parents, as well as various other defendants. Shirley was allegedly negligent for failing to report her ex-husband’s abusive actions and failing to warn or provide safety to the minors in her home against her ex-husband’s activities. Wilcox’s liability insurer filed a declaratory judgment action, seeking a noncoverage determination in that no accident was alleged and Wilcox’s and her ex-husband’s conduct was intentional. The policy did not define accident. The trial court granted summary judgment to Wilcox and denied the insurer’s summary judgment motion. The Supreme Court of Idaho reversed. Citing the definitions of accident contained in Black’s Law Dictionary 14 (5th ed. 1979) and Webster’s Encyclopedic Unabridged Dictionary 9 (1989), the court held that accident has a settled legal meaning or interpretation. The court looked to Wilcox’s actions, not those of her ex-husband, in determining whether an accident had occurred: “It is her conduct that we must look to, and not to her ex-husband’s conduct, because she is the only one whose acts could be covered by the policy in question.” 123 Idaho at 9. The court held:
“Looking to Wilcox’s alleged conduct, we find that it is not an ‘occurrence’ under the policies because it was not the conduct which caused injury. The injury suffered by the minors is child molestation. While the acts or failure to act by Wilcox may have created or contributed to the environment which permitted her ex-husband’s conduct, Wilcox did not commit the acts complained of by the twelve anonymous plaintiffs. Therefore, the [policies] do not provide coverage for Wilcox.” 123 Idaho at 9.
No severability clause is discussed in Wilcox. The Wilcox court’s analysis, as in Grayes, was based on a finding of lack of causation.
The Brumleys cite the following cases to support their position that the term “occurrence” is ambiguous: Wayne Tp. Bd. of Sch. Com’rs v. Indiana Ins. Co., 650 N.E.2d 1205 (Ind. App. 1995); Hanover Ins. Co. v. Crocker, 688 A.2d 928 (Me. 1997); and Property Cas. Co. of MCA v. Conway, 147 N.J. 322, 687 A.2d 729 (1997). In Wayne Township, a claim of sexual molestation was brought against an elementary school principal and the school. While the principal’s conduct was acknowledged as intentional, the school’s conduct was characterized as negligent. The school’s liability insurers denied coverage. The district court granted summary judgment to the insurers on the coverage issue on a number of grounds, including that there was no “occurrence” within the meaning of the policy, which defined that term as: “ ‘An accident . . . which results in bodily injury . . . neither expected no[r] intended from the standpoint of the insured.’ ” The policy also contained a severability clause. The Indiana Court of Appeals reversed the district court’s ruling on the “occurrence” issue, holding that with respect to the school’s alleged conduct, there was coverage:
“[T]he plain and unambiguous language of the policy requires that claims against each insured be treated separately. The child was molested by [the principal], who is an insured separate from the school under the Indiana Insurance policy. The inference of an intent to injure S.M. cannot be imputed to the school.” 650 N.E.2d at 1209.
The term “occurrence” was expressly defined to be determined from the standpoint of the insured. However, the severability clause also influenced the court’s decision.
In Crocker, a daughter brought a negligence action against her mother, alleging that the mother failed to take steps to prevent the father from sexually abusing the daughter after knowing about the abuse. The mother’s homeowner’s policy carrier sought a declaratory judgment that it owed no duty to defend or indemnify, in that no covered occurrence was alleged. The district court entered summary judgment against the insurer as to both the duty to defend and to indemnify. The Supreme Judicial Court of Maine affirmed the duty to defend determination but held that the duty to indemnify determination was premature. The policy defined “occurrence” as an accident, but did not define accident. The court focused on the alleged negligent conduct of the mother in determining that such conduct was an accident and a covered occurrence within the meaning of the policy. The court also determined that the exclusion for injuries “either expected or intended from the standpoint of the insured” did not apply, because the alleged negligent conduct of the mother was not intentional. 688 A.2d at 931. The insurer also argued that public policy should preclude coverage because otherwise, coverage for child molestation claims would be permitted through the back door. The court disagreed: “Public policy does not prohibit insurance coverage for an insured whose negligence contributed to an injury from sexual abuse.” 688 A.2d at 931.
Conway considered the issue of whether a homeowner’s policy covered the vicarious statutory liability of parents, the named insureds, for intentional vandalism of a public school by the insureds’ minor son. The New Jersey Law Division found no coverage, the Appellate Division reversed, and the Supreme Court of New Jersey affirmed the Appellate Division. The policy defined “occurrence” as an accident, contained an exclusion for injury “expected or intended by the insured,” and also contained a severability clause. 147 N.J. at 325. In a declaratory action concerning coverage, the insurer argued that there was no occurrence in that there was no accident from the son’s perspective. The court viewed the undefined term “accident” in the policy as introducing ambiguity into the definition of “occurrence,” thus construing against the insurer and noting that an act could be viewed as intentional from the perspective of one insured but “need not be expected from that of another insured.” 147 N.J. at 327. The court cited as persuasive cases from other jurisdictions dealing with similar factual circumstances in which coverage was afforded to parents held vicariously liable for acts of their children. The court also discounted the public policy argument of the insurer, stating: “Permitting parents to insure against their vicarious liability increases the likelihood that funds will be available to compensate for damage to school property.” 147 N.J. at 330.
13 Appleman, Insurance Law and Practice § 7486, p. 632 (1976) provides:
“The absence of any definition of the term ‘accident’ in the policy merely means that an interpretation by law shall apply rather than an interpretation by contractual language. And where it is not defined in the policy, it must be interpreted in its usual, ordinary and popular sense. The word will, however, be accorded a liberal construction since it is ambiguous.”
See 10 Couch on Insurance 2d § 41:14 (1982):
"The fact that an accident is caused by or is traceable to the act of a person other than the insured does not prevent the occurrence from being an ‘accident’. When the injury is not the result of the misconduct or the participation of the in[s]ured party, it is, as to him, accidental although inflicted intentionally by the other party.”
2 Windt on Insurance Claims & Disputes § 11.03, p. 194 (3d ed. 1995), identifies a split in the courts concerning whether there is a covered “occurrence” when the liability claim stems from an employee’s intentional act of wrongdoing, and the employer is sued for negligent hiring, retention, or supervision. At § 11.03, p. 194-OS n.53, Windt discusses various cases taking the view that the employer’s direct act of negligent hiring, etc. should be viewed as an “occurrence.”
Safeco argues that because the occurrence definition is not in the policy exclusions portion of the policy, the rule of construction that an insurer must use clear and unambiguous language when limiting or excluding coverage should not apply. Safeco also points out the rule that the insured has the burden of proving he or she falls within the coverage provisions. However, notwithstanding those familiar rules of policy construction, even assuming the “occurrence” definition is a coverage provision, the question still remains whether the definition is ambiguous. If it is, then that ambiguity must be construed against the insurer, no matter what part of the policy it appears in.
Whenever a liability policy bases coverage on an occurrence, defined in the policy as an accident, the term accident not being defined, ambiguity seems to arise whenever the conduct of more than one insured is involved in the claim. As the New Jersey Supreme Court noted in Conway, the same act can be viewed as either intentional or accidental, depending on the perspective used. The intentional act exclusion would appear to be superfluous if the “occurrence” definition and the term “accident” are interpreted as restricting coverage to the extent urged by Safeco.
If the perspective of the injured person is used, then essentially any injury that the injured person did not inflict on himself or herself could be considered an accident, and the broadest possible coverage would be afforded. See 1 Long, The Law of Liability Insurance § 4.20[1], pp. 4-151-152 (1997) (“The determination of an accident within the occurrence definition is to be made from the standpoint of the insured, not from the viewpoint of the victim to whom any calamity may seem to be unfortuitous.”).
In Raymer, 251 Kan. 689, this court considered a severability and exclusionary clause in a homeowner’s liability policy in determining coverage for a negligent supervision claim against the parents for the child’s vandalism of a school building. The opinion does not indicate that the insurer raised the issue of whether there was an “occurrence” within the meaning of the policy as a coverage defense, although that term was defined in the policy as follows:
“[0]ccurrence means: a sudden event, including continuous or repeated exposure to the same conditions, resulting in bodily injury or property damage neither expected nor intended by the insured.” 251 Kan. at 691.
This definition expressly provides that a resulting injury “neither expected nor intended by the insured” is included within the coverage. The “occurrence” definition in Raymer expressly referenced the term “the insured.” The severability clause would create ambiguity as to who is “the insured.”
The definition of “occurrence” in the Safeco policy here simply defines it as an “accident,” omitting any provision that the resulting injury be neither expected nor intended by the insured. Should leaving out any reference to “insured” make the “occurrence” definition more or less ambiguous? Lack of any reference in the “occurrence” definition to the term “insured” may mean that the severability clause would by itself create no ambiguity. However, even without the severability clause, the definition still contains ambiguity, because it does not specify from whose perspective the accident determination is to be made. Aside from the effect that a severability clause may have, it would seem a strange result if a definition of “occurrence” containing “accident” as an undefined term were held to be less ambiguous that an “occurrence” definition containing “accident” as a defined term.
We hold that the lack of any definition for “accident” in the Safeco policy and the failure to specify from whose standpoint the accident determination is to be made when more than one insured is involved weighs in favor of finding ambiguity in the “occurrence” definition and, therefore, construction in favor of the insured.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed. | [
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|
The opinion of the court was delivered by
Six, J.:
This is a K.S.A. 59-2136(d) stepparent adoption case. The father of three minor children appeals the district court’s order granting the stepfather’s petition for adoption. The district court found that the father had failed to assume the duties of a parent during the 2 years next preceding the filing of the adoption petition; therefore, his consent to the adoption was not required. The Court of Appeals affirmed. In re Adoption of K.J.B, 24 Kan. App. 2d 210, 944 P.2d 157 (1997). We granted the father’s petition for review. K.S.A. 20-3018(b); Rule 8.03 (1997 Kan. Ct. R. Annot. 52).
The questions before us are: (1) whether social security payments for the benefit of the minor children resulting from the father’s filing for and receiving disability benefits qualify as credits against the father’s liability for child support in a K.S.A. 59-2136(d) adoption case; and, (2) if they do, was die district court correct in holding that the father’s consent was not required because he had “failed or refused to assume the duties of a parent” under K.S.A. 59-2136(d).
The answer is “yes” to the first question and “no” to the second. We reverse the district court and the Court of Appeals.
FACTS
The narrative background set out in 24 Kan. App. 2d 210 is repeated here. Additional facts have been added in brackets. The stepfather’s petition for adoption was filed on November 6, 1995. The K.S.A. 59-2136(d) 2-year period is November 6,1993, to No vember 6,1995. At the time the adoption petition was filed, K.J.B. was 11, L.D.B., 9, and R.J.B., 7.
The facts were set forth in the Court of Appeals opinion, 24 Kan. App. 2d at 211-14, as follows:
“The mother and father of K.J.B., L.D.B., and R.J.B. were divorced in 1989. The mother was given residential custody of L.D.B and R.J.B. and the father was given residential custody of K.J.B. This arrangement lasted until May 1989, when all three children began residing with the mother as a result of a child in need of care proceeding regarding K.J.B. The mother married the petitioner/stepfather in May 1991. The mother testified she has lived at the same residence since she remarried.
“Following the divorce, the father was ordered to pay $254 per month in child support for the two children in the mother’s custody. The mother never requested a change in the amount of support after all three children were placed in her custody. The mother testified the only check she ever received from the father was one for $98. [The mother received this amount in the month before the June 1996 hearing.]
“In 1991, the father filed for social security disability benefits and the children began receiving a portion of these benefits, which were back-dated to 1990. The father testified it is the advice of his physician that he not seek employment. From 1990, the children received $255 per month in social security benefits. [We disagree. The mother testified that although monthly social security payments for the benefit of the children had been received, the amount had only been raised to $255 beginning in January 1996. There was no testimony as to the amount of the monthly checks before that time.] The mother claimed the benefits were less than what the children should have received because the father claimed parentage of another child in order for that child’s mother to receive a portion of the benefits.
“The father exercised regular visitation for approximately 1 year after the children began residing with their mother. On June 29, 1992, the district court entered an order approving the change of custody of all three children to the mother. The court permitted visitation by the father, but due to the father’s mental problems, the visitation was to be under the direct supervision of the Pawnee Mental Health Center. The father exercised four supervised visits with the children in the following 3 months.
“On September 23, 1992, the father filed a motion to set specific visitation rights. After fifing the motion, the father had a visit with the children for a birthday party, and other visits also took place when the father volunteered his time. [The father volunteered for a social service organization and would take the children with him while he did his volunteer work.] On February 11, 1993, the district court entered an order allowing visitation by the father at his home for 3 hours on alternating weekends, with the visits increasing an hour each visit until a full weekend was allowed. The father exercised his visitation rights under this order until September 1993. On October 20, 1993, the mother filed a motion to alter the father’s visitation schedule. The father exercised no visitation or contact with the children from that point on.
“On January 4,1994, the district court entered an order modifying the father’s visitation rights in response to the mother’s motion to alter. The father did not appear at the January 4, 1994, hearing. He was granted certain visitation rights, but the judge ordered the visitation stayed until the father appeared and requested the same to be reinstated. However, the court permitted visitation in the mother’s home under her supervision. The mother testified the district court stayed the visitation because the father had not visited the children since September and had received two DUI’s.
“Approximately a month after the court stayed the father’s visitation, he called the mother, and she tried to arrange visitation in her home. The mother testified the father told her that was not correct and hung up the phone. She did not hear from him again. The father has not filed any legal proceedings regarding visitation or custody. The mother indicated the father sent only two of the three children birthday cards in 1994 and 1995. Additionally, the children received Christmas cards in 1994, but nothing for Christmas 1995.
“The father is mentally disabled and suffers from depression and agoraphobia, a fear of strange places with large numbers of people. He acknowledged he takes several medications for his mental illness. He claims that when he takes his medications, he is able to function as a normal person. He stated that shortly after the mother filed the motion to alter visitation in September 1993, he was involuntarily hospitalized in Osawatomie State Hospital from October 1993 through December 1993.
“The father testified he called the stepfather in April 1994 and was told that the children were not his anymore, they were the stepfather’s children, and to never call again. The father testified he did not call the children because of the stepfather’s command. The father stated that as a result of the inability to see his children, he voluntarily checked himself into Osawatomie State Hospital and then was transferred to Topeka State Hospital from May 1994 to July 1994. When the father was released from the hospital, he was sent to a halfway house in liberal, Kansas, where he lived from July 1994 through November 1994. Because of a DUI conviction, the father then spent November and December 1994 in the Riley County jail.
“From January 1995 through July 1995, the father lived with his own father in Wamego. He went to a facility in Georgia for the month of July 1995 to prepare himself for the litigation concerning his children. [The father testified that he spent his time in Georgia at a treatment program. The type of treatment was not specified.] He returned to Wamego and lived there until April 1996. At the time of the hearing on whether his consent to the adoption was necessary, the father resided in Topeka in an assisted living home for the mentally ill.
“On November 6, 1995, the stepfather, with the consent of the mother, filed a petition for adoption of the three children. The adoption proceedings were heard before a district magistrate judge. The petition claimed the father’s consent was unnecessary because he had failed or refused to assume the duties of a parent for the 2 years prior to the filing of the adoption petition.
“The issue of whether the father’s consent was required for the adoption was removed to the district court. The court held an evidentiary hearing on the matter and reviewed briefs submitted by the parties. On August 23,1996, the court held that within the 2 years previous to the fifing of the adoption petition, the father had only nominal and incidental contacts with the children and that the social security benefits the children received were not sufficient to require his consent to the adoption. The court concluded the father had failed to assume his parental responsibilities for the 2-year period and his consent to the adoption was unnecessary. The district court returned the case to the magistrate court for the continuation of the adoption proceedings.
“On September 16,1996, the magistrate judge granted the stepfather’s petition for adoption. On the same day, the father filed a motion to stay the adoption and a notice of appeal concerning the district court’s order finding his consent to be unnecessary. On September 20, 1996, the father withdrew the motion for a stay and filed a notice of appeal from the decree of adoption.”
DISCUSSION
A prologue to our discussion is formed by five concepts that guide the resolution of a K.S.A. 59-2136(d) case. Each one appears in either In re Adoption of S.E.B., 257 Kan. 266, 891 P.2d 440 (1995), or In re Adaption of F.A.R., 242 Kan. 231, 747 P.2d 145 (1987).
The first concept is our standard of review.
“In an adoption proceeding, the question of whether an individual has failed or refused to assume the duties of a parent for the required period of time pursuant to K.S.A. 1986 Supp. 59-2102(a)(3) [now K.S.A. 59-2136(d)] is ordinarily a factual one to be determined by the trier of facts upon competent evidence after a full and complete hearing.” 242 Kan. 231, Syl. ¶ 1.
We do not weigh the evidence or pass on the credibility of the witnesses. We review the evidence in the light most favorable to the party prevailing below. 242 Kan. 231, Syl. ¶ 2.
Here, however, in its journal entry, the district court held that “[t]he fact that the minor children herein have received social security benefits as a result of the biological father’s disability is not sufficient, in and of itself, to require the biological father’s consent to the petition for adoption filed herein.” The question remains: Is the father’s compliance with the court-ordered child support, after he initially signed up for the social security disability, enough to override the almost complete lack of contact by the father with the children during the critical time period?
Our standard of review changes at this point. We are not called upon to weigh evidence or pass on the credibility of witnesses. The district court found that social security disability payments were made to the children. The district court concluded the payments were not sufficient, in and of themselves, to require the father’s consent to the adoption. The conclusion follows that the father had not assumed his parental duties. “Where the trial court has made findings of fact and conclusions of law, the function of an appellate court 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.” Tucker v. Hugoton Energy Corp., 253 Kan. 373, Syl. ¶ 1. 855 P.2d 929 (1993). Our review of conclusions of law is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
Second, the fitness of the natural father is not a controlling factor. S.E.B., 257 Kan. at 271.
Third, the best interests of the child is not a controlling factor. 5.E.B., 257 Kan. at 271.
Fourth, adoption statutes are to be strictly construed in favor of maintaining the rights of a natural parent especially in a K.S.A. 59-2136(d) case. S.E.B., 257 Kan. at 273.
Fifth, when the father is incarcerated and unable to fulfill customary parental duties, the court must decide whether he has pursued the opportunities and options available to carry out such duties to the best of his ability. S.E.B., 257 Kan. at 273.
We now turn to a review of the father’s summarized “contacts” with his children during the relevant statutory period (November 6, 1993, to November 6, 1995):
1. Social security benefits were paid monthly. Specific amounts are unknown, although $255 was the amount at the time of the hearing. The mother testified that the amount had been increased to $255 beginning in January 1996.
2. The father had no visitation or direct contact with children.
3. The father sent two of the three children birthday cards in 1994, and sent two of the three children birthday cards in 1995.
4. The father sent the children Christmas cards in 1994.
5. The mother said the father made one phone call to arrange visitation but hung up when he found that die court had ordered that visits be at the mother s house. The father denies he made this phone call.
6. The father called at 12:39 a.m. on April 27, 1994, to arrange a visit. He spoke to the stepfather. No visit was arranged.
7. The father did not appear at a January 4, 1994, hearing on change of visitation.
At all relevant times, the mother and children lived in Wamego, Kansas, at the same address. A summary of the father’s location during the relevant period reflects the following:
1. October 1993 to December 1993: Osawatomie State Hospital, involuntarily hospitalized.
2. January 1994 to April 1994: Manhattan, Kansas.
3. May 1994 to July 1994: Topeka State Hospital.
4. July 1994 to November 1994: Liberal, Kansas, halfway house.
5. November 1994 and December 1994: Riley County jail (DUI sentences).
6. January 1995 to July 1995: Wamego, Kansas, living with his father.
7. July 1995: Georgia treatment program.
8. August 1995 to April 1996: Wamego, Kansas.
The Social Security Payments
We next consider the district court’s determination that the social security payments received by the mother for the benefit of the children based on the father’s disability did not rebut the K.S.A. 59-2136(d) presumption.
K.S.A. 59-2136(d) is controlling.
“In a stepparent adoption, if a mother consents to the adoption of a child who has a presumed father under subsection (a)(1), (2) or (3) of K.S.A. 38-1114 and amendments thereto, or who has a father as to whom the child is a legitimate child under prior law of this state or under the law of another jurisdiction, the consent of such father must be given to the adoption unless such father has failed or refused to assume the duties ofa parent for two consecutive years next preceding the filing of the petition for adoption or is incapable of giving such consent. In determining whether a father’s consent is required under this subsection, the court may disregard incidental visitations, contacts, communications or contributions. In determining whether the father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption, there shall be a rebuttable presumption that if the father, after having knowledge of the child’s birth, has knowingly failed to provide a substantial portion of the child support as required by judicial decree, when financially able to do so, for a period of two years next preceding the filing of the petition for adoption, then such father has failed or refused to assume the duties of a parent.” (Emphasis added.)
The italicized language concerning a rebuttable presumption was added in 1991. L. 1991, ch. 167, § 1. For a discussion of the history of K.S.A. 59-2136(d), see S.E.B., 257 Kan. at 269.
We focus on whether the monthly social security payments qualify as child support under K.S.A. 59-2136(d). It is undisputed that the father was ordered to pay $254 per month in child support. Other than the social security payments, the father said he paid some child support but did not have a specific amount and provided no documentation.
The Court of Appeals rejected the father s reliance on Andler v. Andler, 217 Kan. 538, 538 P.2d 649 (1975), and In re Marriage of Callaghan, 19 Kan. App. 2d 335, 869 P.2d 240 (1994). Both cases held that social security payments are to be considered in the determination of what amount of child support is owed and credited. The Court of Appeals believed Andler and Callaghan were distinguishable because “[njone of these cases deal with an adoption situation.” 24 Kan. App. 2d at 215.
In a K.S.A. 59-2136(d) adoption, the court examines whether the nonconsenting parent has assumed parental duties during the 2 years preceding the filing of the petition for adoption. The social security payments should therefore be examined in the context of whether a parent has assumed his or her parental duties.
Andler and Callaghan examined social security payments in the context of the parties’ resources. Andler, 217 Kan. at 544; Callaghan, 19 Kan. App. 2d at 337. We acknowledge the Court of Appeals factual distinction between Andler and Callaghan and this case. However, Andler holds that social security payments made to children based on a father’s disability constitute a satisfaction of child support payments required by a divorce decree.
In Andler we held:
“[W]here a father who has been ordered to make child support payments becomes totally and permanently disabled, and unconditional Social Security payments for the benefit of the minor children are paid to the divorced mother, the father is entitled to credit for such payments by the government against his liability for child support under the divorce decree.” 217 Kan. at 544.
We apply the Andler rationale to this case.
K.S.A. 59-2136(d) allows the court to disregard incidental visits, contacts, communications, or contributions. The father may rebut the 59-2136(d) presumption that he failed to assume parental duties by showing that he provided a substantial portion of the judicially ordered child support. Here, the father does not directly take issue with the court’s finding that his contacts with the children were incidental. He asserts, however, that the social security disability payments received by the mother for the children’s support serve to rebut the presumption that he did not assume parental duties. We agree.
While we may disregard incidental visits, contacts, communications, or contributions under a strict construction of K.S.A. 59-2136(d), the father’s contributions here were not incidental. “Incidental” has been defined in this context as “casual, of minor importance, insignificant, and of little consequence.” In re Adoption of McMullen, 236 Kan. 348, Syl. ¶ 1, 691 P.2d 17 (1984). At the time of the hearing, the monthly contributions, which were backdated to 1990, were more than the court-ordered child support.
In F.A.R., 242 Kan. 231, interpreting an earlier, similar version of K.S.A. 59-2136(d), we affirmed the district court’s denial of a stepparent adoption. In F.A.R, the father was incarcerated and the mother refused to force the children to visit their father in prison. The father was not ordered to pay child support, nor did he. 242 Kan. at 239.
In F.A.R., we reiterated: “The duties of a parent addressed by the statute include not only the common-law duty of financial support, but also the natural and moral duty of a parent to show affection, care and interest toward his or her child. [Citations omitted.]” 242 Kan. at 239.
Here, the father has provided financial support for his children — whether it be by accident or design.
Both the district court and the Court of Appeals appeared to focus on F.A.R.’s recognition of the “natural and moral duty of a parent to show affection, care and interest toward his or her child.” Both courts concluded that the father’s financial support was not sufficient to overcome his complete lack of “love and affection” duties. 24 Kan. App. 2d at 219, 221.
Under the facts of this case, while there was little or no affection, care, or interest shown to the children, the father did provide a substantial portion of the children’s support. The father’s consent was therefore necessary for the completion of this stepparent adoption.
Parental Duties Under K.S.A. 59-2136(d)
The Court of Appeals found “that the father failed in both his positive financial obligations and in his responsibilities to provide even a minimum of parental love and affection.” 24 Kan. App. 2d at 221. The district court reasoned that the social security payments “in and of themselves” were not sufficient to require the father’s consent.
Because of its ruling that the social security payments were not credits on the child support obligation, the Court of Appeals did not reach the difficult question now before us. The question is: Must the father fail in both the financial and the affection, care, and interest aspects of parenting to fail under K.S.A. 59-2136(d) in assuming the duties of a parent?
The Court of Appeals observed:
“Because of the complete failure of the father to provide either [support or affection, care, and interest], we need not and do not make the difficult decision of determining how little of either one or both responsibilities is enough to stave off a finding of a failure to exercise parental duties.” 24 Kan. App. 2d at 221.
Having stated the question, we examine two cases each with similarities to this case: In re Adoption of S.E.B., 257 Kan. 266, 891 P.2d 440 (1995), and In re Adoption of C.R.D., 21 Kan. App. 2d 94, 897 P.2d 181 (1995). The father in each of these cases failed the affection, care, and interest side of parenting. The children in S.E.B. were the same ages (9 and 7) as the two younger children here. We observed in S.E.B. that children age 9 and 7, unlike in In re Adoption of Baby Boy S., 16 Kan. App. 2d 311, 822 P.2d 76 (1991), are of an age “where they are well aware of their father.” 257 Kan. at 273. The district court, in S.E.B., found that the father “had showed litde or no interest in the children for the five years preceding the adoption petition.” 257 Kan. at 268. The stepfather and the mother during their marriage of over 4 years had provided the sole financial support for S.E.B. and K.A.B. In reversing the district court and vacating the stepparent adoption, we said:
“The question in this case is whether the statute [K.S.A. 59-2136(d)] requires that a parent be financially able to pay the ordered support for the two-year period before the presumption is applicable. ... To apply the statutory presumption of K.S.A. 59-2136(d), the courts are required to take into consideration the period of time that the father was incarcerated and unable to support the children.
“Here, Father was incarcerated for 7 of the 24 months, approximately 30% of the two-year period. It is obvious from the facts that while in prison Father was not financially able to support the children. Because the fitness of the nonconsenting parent and the best interests of the children are not controlling factors under K.S.A. 59-2136(d), we must find that under the circumstances the judge improperly granted the adoption.” 257 Kan. at 274.
The father in S.E.B. failed both the affection, care, and interest and financial tests; however, because of his incarceration he was not financially able under 59-2136(d) to provide support. Although he failed in affection, care, and interest, he did not fail in assuming parental duties under K.S.A. 59-2136(d).
The father in C.R.D. had no contact with the child and did not call or send letters or gifts during the 59-2136(d) 2-year period. The district court granted the stepparent adoption. In a split decision, Green, J., dissenting, the Court of Appeals reversed. C.R.D. however, affirmed the district court’s finding of the father’s failure on the love and affection side of parenting. 21 Kan. App. 2d at 96. The C.R.D. father did pay some child support (approximately 23% during the 2-year period).
The C.R.D. issue was whether the father otherwise failed to assume the duties of a parent, having failed on love and affection. 21 Kan. App. 2d at 96. C.R.D. reasoned that payment of $1,000 during the 2 years when $4,800 was due plus furnishing an insurance card sent by the father’s ex-wife was sufficient.
The C.R.D. court said:
“Basic parental rights are fundamental rights protected by the Fourteenth Amendment to the Constitution of the United States. The right to be the legal parent of a child is one of these rights, which cannot be abrogated except for compelling reasons. See Quilloin v. Walcott, 434 U.S. 246, 54 L. Ed. 2d 511, 98 S. Ct. 549, reh. denied 435 U.S. 918 (1979); In re Guardianship ofWilliams, 254 Kan. 814, 869 P.2d 661 (1994)," 21 Kan. App. 2d at 98.
We agree.
C.RD. concluded:
“In the instant case, we do not believe the support payments and insurance benefits provided can reasonably be called insubstantial, as we believe that term must be defined in this context. The father’s support of his child in this case was certainly not what it should have been. But it was not so insubstantial as to deprive him of his rights of parenthood.” 21 Kan. App. 2d at 100.
Judge Lewis concurred. He reasoned:
“The evidence indicates without any doubt that the natural father failed to assume the ‘love and affection’ side of the duties of a parent.
“The other factor of parenthood is a financial one. On this side of the ledger, the absent father’s performance is somewhat better. I believe that if we are going to judicially sever parental rights, there must be a failure to assume and perform the duties of a parent on both sides of the ledger. I conclude that under the evidence shown and on the basis of the traditional approach taken to this issue by our Supreme Court, the evidence does not show, as a matter of law, that the noncustodial father in this case failed to assume the duties of a parent insofar as those duties relate to financial obligations.” 21 Kan. App. 2d at 101.
Our obligation here is to construe K.S.A. 59-2136(d) strictly in favor of maintaining the rights of natural parents. By applying a strict construction, we are compelled to reverse the district court and the Court of Appeals. We conclude that as a matter of law, the father here, who has provided a substantial portion of the child support as required by judicial decree has not “failed or refused” to assume the duties of a parent under K.S.A. 59-2136(d).
The effect of our holding is an endorsement of Judge Lewis’ concurring opinion in C.R.D. To judicially sever parental rights under K.S.A. 59-2136(d), there must be a failure “on both sides of the ledger.”
We note disagreement in C.R.D. on whether 23% support is “substantial” under K.S.A. 59-2136(d). The resolution of that disagreement is not before us.
The father advances the impact of his mental illness as an explanation of his failure to assume parental obligations. Because of our disposition, we need not reach the mental illness issue.
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The opinion of the court was delivered by
Nuss, J.:
A jury convicted Samuel Jones, Jr., of first-degree premeditated murder, and the trial court sentenced him to life in prison without eligibility of parole for 25 years. He appeals directly to this court pursuant to K.S.A. 22-3601(b)(1) (convicted of off-grid crime).
Jones raises two issues on appeal:
1. Did the trial court commit reversible error in refusing to grant Jones’ request for instructions on the lesser-included offenses of second-degree intentional murder and voluntary manslaughter?
2. Did the State fail to prove the element of premeditation beyond a reasonable doubt?
We reject Jones’ argument concerning insufficient premeditation evidence, but we reverse and remand for a new trial because of the refusal to instruct on second-degree intentional murder. At oral argument, Jones abandoned his claim regarding the refusal to instruct on voluntary manslaughter.
FACTS
Dhansukh Patel was on duty as manager at the Relax Inn in Kansas City, Kansas, on November 1, 2001. At 3 or 4 p.m., Mr. Patel checked in a black man with two duffel bags. The man filled out the hotel registration card as “Mr. and Mrs. Samuel Jones, Chicago, Illinois.” Mr. Patel first checked Jones into Room 125, but was informed a few minutes later that the room had a toilet problem. Patel then moved Jones and his companion, a white female, to Room 118, and Mr. Patel watched them enter the room. Mr. Patel worked until 3:45 the next morning. He did not see anyone else enter room 118, and only saw Jones once more, when Jones came to the office to get ice.
Pushpa Patel is Dhansukh’s ex-wife and owner of the Relax Inn. She came on duty between 3 and 4 a.m. on November 2. Two other people were in the office with Mrs. Patel when Jones arrived between 4 and 5 a.m. to check out of his room and return his room key. Mrs. Patel asked Jones if he had shut the room door, and he told her that he had. Mrs. Patel did not see whether Jones had luggage and did not see whether he left in a car or walked.
A few hours later, Mrs. Patel went to the room to pull the sheets off the bed. After she unlocked the door, she saw a jacket-covered body on the floor by the bed. Mrs. Patel asked another guest to see if the body was a real person. After confirmation, Mrs. Patel shut the door, went to the office, and called 911.
Police were dispatched to the Relax Inn at 8:16 a.m. They secured the area and took a statement from Mrs. Patel. She was shown a photographic lineup, and she identified the guest who checked out between 4 and 5 a.m. as Jones. Mr. Patel, however, was unable to identify the man who had checked into the room. Police spoke to other guests but were unable to find any potential witnesses among them. Police identified the victim as Christina Paddock.
Thomas Wheeler, a crime scene investigator, entered the room and observed a female body on the floor at the foot of the bed. On the unmade bed were a mattress pad and two pillows, one with a pillowcase. There were injuries to Paddock’s face and some cloth around her neck. A black bra was found on her arm, a black nylon jacket was by her head, and a black T-shirt was near her waist under her arm. Wheeler observed that her pants were unbuttoned. He saw blood on the chairs, on an end table between the chairs, and on the walls. Officers also took the P-trap from under the sink on the possibility that the murderer had cleaned up and blood had collected there.
A typical room contained a king-sized bed, a mattress pad, two sheets, a comforter, two pillows with pillowcases, two large towels, and two small towels. Wheeler believed that the murderer had cleaned up after the murder because the sheets, the comforter, a pillowcase, and towels were missing, and the room was pretty clean. The peephole of the door had a piece of paper plugged into it, so a person could not see through it. There did not appear to be any signs of forced entry. Although the officers searched the area of the motel, they did not find any of the items missing from the room.
Dr. Erik Krag Mitchell performed an autopsy on Paddock’s body later that day. The pattern of postmortem blood settling suggested that after death, Paddock’s body had sat for a number of hours and then was moved onto her back. At room temperature, it would take approximately 8 to 10 hours for the blood to settle in this pattern. Wet blood came from her mouth and nose, and some dried blood was on her skin. Most of the blood came out of the inside of the face, probably from small blood vessels that broke in the nasal phaiynx. Paddock’s palms were relatively clean of blood, but the creases had deposits of blood, indicating that someone had done an incomplete job of cleaning blood off of her. Smears of blood were found along the insides of Paddock’s thighs underneath her jeans, indicating that the blood had dried onto the skin surface before the pants were pulled up over her legs.
Paddock also had a number of abrasions and bruises over her face, neck, and the rest of her body. Her neck showed abrasions forming parallel lines, a part of a rectangle inside part of a larger rectangle, possibly from a belt buckle or similar instrument. She also had a brush abrasion on the right side of her back, consistent with dragging. Other abrasions and bruises on Paddock’s elbows were consistent with movement before death. Fingernail marks on Paddock’s neck could have been from strangulation itself or from Paddock’s attempt to remove something from her neck.
Paddock also had very pronounced flame hemorrhages in the muscles between the top of the breast bone and the top of the collarbone and the base of the skull, which are evidence of application of force and distortion of the muscle by force during life. Her hyoid was fractured, which evidences enough pressure to the voice box to tear the small blood vessels behind it. Mitchell testified tlrat it would take only a few seconds under those circumstance to render somebody unconscious, but it would take a few minutes before the person dies. He concluded that Paddock was strangled, possibly with a hand, but using an instrument for at least part of the time.
Officers collected several pieces of evidence from the room for forensic testing. Barbara Crim-Swanson, a forensic scientist with the KBI, examined this evidence to determine what substances were involved. Blood was found on Paddock’s clothing, on the bedding, on the wall, in the sink P-trap, on the carpet, and on furniture in the room. Semen was identified in the crotch of Paddock’s jeans.
Michael James Van Stratton, the KBI laboratory director, examined the bloodstains. Four areas of blood stain patterns on the wall indicated that Paddock was struck a minimum of four times after blood had come to the surface of her skin. Her face was 2 to 10 inches from the wall, but on or near the floor. The blood on the chair was consistent with someone sitting or leaning on the seat of the chair, and resting on the arm of the chair at some point. The chair was not in an upright position when some of the stains were deposited. Wipe patterns on the chair indicated that something moved through the chair while the blood was still wet. Based upon the bloodstain patterns, he concluded that Paddock had been struck a minimum of four times, that she was on or in close proximity to the chair, that she had been cleaned up afterward, that she was in close contact with the pillow, and that there was movement of Paddock within the room.
Mary Koch, another forensic scientist with the KBI, examined the evidence to determine whether it matched Paddock’s or Jones’ DNA. Paddock’s DNA was found throughout the room and its contents. A mixture of DNA was found on fingernail scrapings, the black jeans, the trash can, and a black coat. The major portion of those mixtures was consistent with her DNA. The minor portion of the DNA from the trash can was consistent with Jones’ DNA. The minor portions of the DNA from the jeans and the fingernail scrapings were consistent with Jones’ DNA, but were fairly common DNA mixtures. The minor portion of the DNA found on the coat was insufficient for comparison.
Police did find one witness, Terence Cowans, who had driven Jones and Paddock to the Relax Inn. Cowens had known Paddock for a couple of years, and saw Jones arid her as he was driving to lunch between 1 and 2 p.m. on November 1. Cowans stopped to talk to Paddock, and Paddock offered Cowans $10 to drive them to the motel. As he drove to the motel, Cowans asked Jones if he was from the area. Jones replied that he was not, that he was moving and was living at the YMCA. Cowans saw that the man had a duffel bag with him, so he asked Paddock if she knew Jones. She replied, “Yeah, he’s cool.”
When they arrived at the Relax Inn, Cowans and Paddock stayed in the car while Jones paid for the room. While they were waiting, an acquaintance of Cowans, known as Brisco, came over to the car and asked Cowans what he was doing with Paddock. Brisco told Cowans that Paddock was working for the police. According to Cowans, Jones looked at the first room and came back out, saying that he did not like it. Paddock remained in the car until they entered the second room. Cowans saw Jones carry his duffel bag into the second room, but did not believe that Paddock had any luggage with her.
Sergeant William Brown of the Kansas City, Missouri, Police Department had also seen Jones and Paddock together. He had seen them together on three or four occasions at the Greyhound Bus Station at 1101 Troost in Kansas City, Missouri. The last time Brown had seen them was a weekday afternoon approximately a week prior to Paddock’s death.
Officers investigating the case discovered that Jones had left Kansas City. He was arrested a year later in Chicago, Illinois, and charged with the first-degree premeditated murder of Paddock.
At the juiy instructions conference, Jones requested instructions on second-degree intentional murder and voluntary manslaughter. The trial court denied this request, stating:
“Mr. Sedgwick, your request for lesser included instructions on second-degree murder and voluntary manslaughter would be denied. The only evidence that we have is the evidence that’s been presented by the state as it comes to the issue of premeditation. We have the manner and the nature of death in this case. Again, this is not a quick gunshot or something of that nature, it was obviously a brutal killing that took time. It would have had to have taken a number of minutes undoubtedly to have accomplished what took place here. There was an effort immediately afterwards to clean the body, to clean up the room, in other words to destroy any type of evidence as to who committed the crime, and then there was certainly the evidence of flight of the area after the crime. And I think there’s a sufficient amount of premeditation here in this case and there’s nothing to take away from, the evidence as to premeditation that would warrant an instruction on second-degree murder.
“As to an instruction on voluntary manslaughter, there is simply no evidence whatsoever that this was a killing that was done in the heat of passion or upon a sudden quarrel or the other elements that would bring into issue the — an instruction on voluntary manslaughter.
“So for those reasons, the request for the lesser included instructions would be denied.” (Emphasis added.)
The jury convicted Jones of first-degree premeditated murder, and he was sentenced to life in prison without eligibility for parole for 25 years. Jones filed a motion for a new trial, alleging error in the court’s refusal to instruct the jury on the lesser included offenses of second-degree intentional murder and voluntary manslaughter. The trial court denied the motion, stating in part, “I think there was more than sufficient evidence of premeditation, and there was no evidence of anything less than premeditation.”
ANALYSIS
Issue 1: Did the trial court commit reversible error in refusing to grant Jones’ request for an instruction on the lesser-included offense of second-degree intentional murderP
Jones requested an instruction on second-degree intentional murder, a lesser included offense of first-degree premeditated murder. The difference between the two crimes is that the latter includes the element of premeditation. See State v. Amos, 271 Kan. 565, 571, 23 P.3d 883 (2001). In State v. Drennan, 278 Kan. 704, 712-13, 101 P.3d 1218 (2004), we stated our standard of review of a refusal to instruct on a lesser included offense as follows:
“A trial court must instruct the jury on a lesser included offense where there is some evidence which would reasonably justify a conviction’ of the lesser offense. K.S.A. 2003 Supp. 22-3414(3). ‘If the defendant requests the instructions, the trial court has a duty to instruct the jury regarding all lesser included crimes that are established by the evidence, regardless of whether the evidence is weak or inconclusive.’ State v. Hoge, 276 Kan. 801, 805, 80 P.3d 52 (2003). On review, the appellate court views the evidence in the light most favorable to the defendant. State v. McClanahan, 254 Kan. 104, 109, 865 P.2d 1021 (1993). ‘However, the duty to so instruct arises only where there is evidence supporting the lesser crime.’ State v. Spry, 266 Kan. 523, 528, 973 P.2d 783 (1999). An instruction on a lesser included offense is not required if the jury could not reasonably convict the defendant of the lesser included offense based on the evidence presented. Hoge, 276 Kan. at 805.”
Similarly, as we stated 8 months earlier in State v. Young, 277 Kan. 588, 599-600, 87 P.3d 308 (2004):
“The instruction need not be given if the evidence would not have permitted a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offense. State v. Bolton, 274 Kan. 1, 7, 49 P.3d 468 (2002). Stated another way, a criminal defendant has a right to an instruction on all lesser included offenses as long as ‘(1) the evidence, when viewed in the light most favorable to the defendant’s theory, would justify a jury verdict in accord with the defendant’s theory and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense.’ State v. Williams, 268 Kan. 1, 15, 988 P.2d 722 (1999).”
In short, Jones has a right to an instruction on second-degree intentional murder as long as the evidence, when viewed in the light most favorable to him, would reasonably justify a jury’s conviction on the offense, and the evidence does not exclude a theory of guilt on it.
As support for Jones’ claim of error, he points out that there were no witnesses to the murder and that only circumstantial evidence existed on how the murder occurred. Although death by strangulation may take a certain amount of time, Jones argues that a jury could have found the death was intentional but not premeditated.
The State responds that all the evidence showed premeditation. It points to the evidence of the beating, the strangulation itself, and Jones’ attempts to cover up the crime. The State also argues that Jones’ theory of defense was that he did not commit the murder, not that the murder was unpremeditated.
In denying the requested instruction at the conference, the trial court found that there was a “sufficient amount of premeditation” and there was “nothing to take away from the evidence as to premeditation that would warrant an instruction on second-degree murder.” When denying the motion for new trial, the trial court reiterated, “I think there was more than sufficient evidence of premeditation, and there was no evidence of anything less than premeditation.” We interpret the court’s remarks in both settings to mean there was no evidence of less than premeditated conduct. We disagree with the court’s findings. Moreover, we conclude that when viewed in the light most favorable to Jones, the evidence would permit a jury to have convicted him of second-degree intentional murder. See State v. Drennan, 278 Kan. at 713; State v. Young, 277 Kan. at 599. In forming this conclusion, we examine not only the evidence supporting premeditation, but also the evidence supporting mere intentional conduct, e.g., lack of premeditation.
We begin by observing that premeditation is the process of thinking about a proposed killing before engaging in the homicidal conduct. State v. Scott, 271 Kan. 103, 108, 21 P.3d 516 (2001) (citing State v. Rice, 261 Kan. 567, 587, 932 P.2d 981 [1997]). Consequently, it means something more than the instantaneous, intentional act of taking another’s life. State v. Jamison, 269 Kan. 564, 573, 7 P.3d 1204 (2000); see PIK Crim. 3d 56.04(b). However, premeditation and deliberation may be inferred from the established circumstances of the case, provided the inference is a rea sonable one. In such a case, the jury has the right to make the inference. Scott, 271 Kan. at 108 (citing State v. Buie, 223 Kan. 594, 597, 575 P.2d 555 [1978]).
Circumstances which may give rise to an inference of premeditation include: (1) the nature of the weapon used; (2) 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; and (5) tire dealing of lethal blows after the deceased was felled and rendered helpless. State v. Meeks, 277 Kan. 609, 622, 88 P.3d 789 (2004).
In this case, based upon several of the factors listed in Meeks, the evidence of premeditation admittedly is substantial.
Considering the nature of the weapon used, Paddock was strangled. The expert testified that only a few seconds would be needed to render her unconscious, but several minutes would be needed to kill her. The strangulation could have been manual, but was accomplished by an instrument for at least part of the time. This court has stated that death by strangulation can be strong evidence of premeditation. Scott, 271 Kan. at 108; see also State v. Brown, 234 Kan. 969, 972-73, 676 P.2d 757 (1984) (evidence of premeditation sufficient where severely beaten victim was killed by strangulation).
Next, there is no evidence whatsoever of Paddock’s possible provocation of Jones.
Regarding Jones’ conduct before and after the killing, Paddock had abrasions and bruises on her elbows that were consistent with movement before she died. An expert testified that Paddock had been dead for a number of hours before her body was moved from a sitting position to lying on the floor on her back. Paddock’s pants had then been placed on her after someone had attempted to wash blood off of her. A brush abrasion on her back was consistent with dragging. Evidence also showed that someone had attempted to clean up the blood on Paddock, the wall, and on items in the room. Evidence further showed that some items, such as the comforter, sheets, a pillowcase, and towels had been removed, presumably after being used to clean up the scene. There was also a piece of paper plugged into the peephole of the door, though there was no evidence whether it was plugged prior to Jones and Paddock entering the room. Jones checked out of the room early in the morning on November 2 and was found a year later in another state.
Finally, concerning the dealing of lethal blows after the deceased was felled and rendered helpless, there is evidence that Paddock was struck in the head four times while she was lying on the floor near the wall.
While a jury could infer premeditation, based upon the factors stated in Meeks it could also reasonably find that no premeditation existed. Concerning Jones’ conduct before the killing, the State concedes that there was no evidence of premeditation before Jones and Paddock entered the motel room, e.g., no evidence of Jones’ threats to Paddock or declarations made of his intent to kill her. Nor was there any attempt made by Jones to conceal his identity: he gave his correct name to Mr. Patel, along with his home, when signing the motel register. Nor did he attempt to conceal himself from Mr. Patel when he later went to the office for ice. Additionally, there was no evidence of Jones’ threats to Paddock or declarations made of his intent during the murder. Finally, while Jones did clean up the room to cover up the crime, he made no attempt to avoid detection by checking out and returning his key to Mrs. Patel, and by answering her question, in front of two other guests in the motel office early the next morning. He then returned to Chicago, his apparent home.
In short, the difficulty arises out of the complete lack of evidence explaining exactly why Paddock was killed. While the evidence points to Jones as the perpetrator, legitimate questions exist as to his state of mind at the time of the murder, i.e., whether she was killed with premeditation or simply with intent, however prolonged. In Scott, 271 Kan. at 111, this court held that the juiy could find that defendant’s change of “state of mind,” from intentional to premeditation, occurred at any time during the violent episode before he caused the victim’s death, including at any time during the strangulation. Similarly, the jury in the instant case could have found that Jones never changed his state of mind, from intentional but unpremeditated to premeditated, before he caused Paddock’s death, including at any time during the strangulation. The jury, however, was only given the choice between deciding Jones either killed her with premeditation, or did not kill her.
We fully acknowledge this court has determined that instructions on second-degree intentional murder were not required in several other strangulation cases. In State v. Boorigie, 273 Kan. 18, 41 P.3d 764 (2002), the defendant requested instructions on second-degree murder and voluntary manslaughter as lesser included offenses of the first-degree premeditated murder of his wife, who had died of strangulation and then was placed in a laundry room that was set on fire. In upholding the trial court’s refusal to instruct on these lesser included offenses we stated:
“As to the present crimes, we note that Jeneil was manually strangled and that her death required at least several minutes of constant pressure around her neck. The several minutes required to effect strangulation supported a finding of premeditation. In addition, there was evidence that the defendant had attempted to kill Jeneil at least twice in the 2 months preceding her death.
“The jury was presented with two choices: the defendant was not guilty of premeditated murder and arson or the defendant was guilty of premeditated murder and arson. The trial court was correct — there was no evidence that the murder and arson was not a premeditated act, perpetrated for the purpose of financial gain.” (Emphasis added.) 273 Kan. at 41.
Boorigie’s previous attempts to kill the victim, which strongly indicated premeditation, make it further distinguishable from the instant case.
Another defendant convicted of first-degree premeditated murder failed to request an instruction on second-degree intentional murder, but argued on appeal that it should have been given. State v. Hermosillo, 272 Kan. 589, 35 P.3d 833 (2001). While reviewing the issue for clear error, this court held:
“Without identifying any evidence to support his argument, Hermosillo asserts that the jury could have concluded that he intentionally killed Keeley but did not premeditate the killing. As the State aptly observes, this case did not contain evidence of second-degree murder. The defense theory at trial was that Keeley died of natural causes and that Hermosillo was the ‘teller of tall tales.’ The State presented evidence that before Keeley’s murder, Hermosillo talked to friends about killing Keeley. Alvarado testified that Hermosillo told him that ‘he crossed his arms and well, he waited above [Keeley] when, he watched him sleeping. [Then] he gasped for air . . . and [Hermosillo] shoved a sandwich in his mouth and sat on his chest and smothered him.’ Failure to give such an instruction was not error.” (Emphasis added.) 272 Kan. at 595-96.
Hermosillo is further distinguishable from the present case because that court was reviewing for clear error, a much more stringent standard for a defendant to overcome. Hermosillo, 272 Kan. at 595 (“Instructions are clearly erroneous only if we are firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.”). Moreover, the case is distinguishable because Hermosillo had made statements before the murder about killing Keeley, which is strong evidence of premeditation. See State v. Amos, 271 Kan. 565, 572, 23 P.3d 883 (2001) (“There is no evidence to suggest the killing of James was not premeditated. The trial court did not err in failing to instruct on second-degree intentional murder.”).
Finally, we disagree with the State’s contention that Jones’ theory of defense was contrary to the instruction he requested. The cases cited by the State, State v. Lewis, 256 Kan. 929, 889 P.2d 766 (1991), and State v. Reynolds, 230 Kan. 532, 639 P.2d 461 (1982), stand for the proposition that a defendant’s use of an alibi defense narrows the issue at trial to identity. Jones, however, did not present evidence of an alibi. He had no witnesses testify for him and, as allowed by the Fifth Amendment, elected not to testify himself. There was also no evidence of any statements ever made by Jones regarding the murder.
In conclusion, despite the substantial evidence of premeditation, there was also enough evidence upon which a jury could have reasonably convicted Jones of second-degree intentional murder. Jones was entitled to an instruction on that crime, and it was reversible error not to have given one.
Issue 2: Did the State fail to prove the element of premeditation beyond a reasonable doubt?
Although we are reversing and remanding for a new trial, we must also address Jones’ argument that the State failed to prove the element of premeditation beyond a reasonable doubt, which would warrant simple reversal of the conviction. See State v. Elnicki, 279 Kan. 47, 68, 105 P.3d 1222 (2005); State v. Kunellis, 276 Kan. 461, 474-75, 78 P.3d 776 (2003) (erroneous jury instructions required reversal and remand, but evidence was sufficient to support convictions of felony murder and theft).
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. Elnicki, 279 Kan. at 69. This standard and the standard for determining whether the second-degree intentional murder jury instruction should have been given both involve considering the evidence in the record. The standard of review of the present issue, however, is much more favorable to the State.
In order to convict Jones of first-degree premeditated murder, the State had to prove that he killed Paddock intentionally and with premeditation. See State v. Scott, 271 Kan. at 108 (citing K.S.A. 21-3401(a); State v. Juliano, 268 Kan. 89, 97, 991 P.2d 408 [1999]). Intent is not contested by Jones on appeal. As discussed previously, the nature of the weapon used, the lack of provocation by Paddock, some of Jones’ conduct before and after the killing, and the apparent dealing of lethal blows after Paddock was felled and rendered helpless all show premeditation. Such evidence was sufficient for a rational factfinder to find him guilty of first-degree premeditated murder beyond a reasonable doubt.
The decision of the district court is reversed and the case is remanded for a new trial.
Gernon, J., not participating.
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The opinion of the court was delivered by
Abbott, J.:
This is a declaratory judgment action brought by First Financial Insurance Company (First Financial) to determine if its liability insurance policy provided coverage for the incident in question. The policy at issue covers Verdell and Earlene Bugg doing business as Tewz Enuff, a bar, and their employees.
Joi Woodberry, Tina M. Davis, and Lela R. Smith were patrons in the bar and were shot during a disturbance in the bar when shots were exchanged between another patron and one or more insureds. The injured patrons filed suit alleging Verdell and Earlene Bugg and their employees negligently caused their injuries. First Financial insured the Buggs and filed a declaratory judgment action to determine whether the insurance policy provided coverage for the incident. The trial court held the insurance policy was ambiguous and that First Financial had a duty to defend the lawsuit. The injured patrons are the plaintiffs in the personal injury actions and defendants in this declaratory action along with the Buggs.
First Financial appealed and the case was transferred to this court pursuant to K.S.A. 20-3018(c). Three issues are presented. Defendants contend the insurance contract is ambiguous in that the exclusion clause relating to assault and battery and intentional acts is ambiguous and that their injuries were caused by an “occurrence” and were therefore covered under the insurance policy. They further claim that First Financial is estopped to deny coverage because it undertook defense of the personal injury action without disclaiming liability, etc.
When the shooting occurred, the bar was dark and filled to capacity. Trevor Russell exchanged words with Willie Bell, an employee of the bar. The two went outside where Bell eventually struck Russell in the face. Russell later reentered the bar with a gun and began firing; gunshots were returned by one or more employees.
The injured patrons filed suit claiming the Buggs were negligent for (a) firing a gun in a crowded tavern, (b) failing to have exits clearly marked within the tavern, and (c) failing to properly protect patrons from an assailant.
First Financial had a commercial insurance policy with Verdell and Earlene Bugg. The policy provides liability coverage for “bodily injury” and “property damage” caused by an “occurrence.” The policy defines “occurrence” as an “accident, including continuous or repeated exposure to substantially the same general harmful conditions.”
The policy has an “exclusion” section. The main body — “exclusion section” — provides in pertinent part:
“This insurance does not apply to
“(a) ‘Bodily injury’ or ‘property damage’ expected or intended from the standpoint of the insured. This exclusion does not apply to ‘bodily injury’ resulting from the use of reasonable force to protect persons or property.”
The policy contains the following endorsement:
“COMBINATION ENDORSEMENT - LIABILITY INSURANCE (INTERMEDIATE FORM)
THE FOLLOWING ENDORSEMENTS, EXCLUSIONS AND CONDITIONS MODIFY INSURANCE PROVIDED UNDER THE FOLLOWING COVERAGE PARTS.
THEY CHANGE THE POLICY. PLEASE READ THEM CAREFULLY.
COMMERCIAL GENERAL LIABILITY COVERAGE PART”
Under that section, clearly marked in capital letters is the following:
“EXCLUSION-ASSAULT OR BATTERY
Exclusion a. of COVERAGE A (Section I) is replaced by the following: a. ‘bodily injury,’ ‘property damage,’ or ‘personal injury’:
(1) Expected or intended from the standpoint of any insured; or
(2) Arising out of assault or battery, or out of any act or omission in connection with the prevention or suppression of an assault or battery.”
The Forms and Endorsement section clearly sets forth the endorsement and states it applies to coverage and is made part of the policy.
Six days after the incident, First Financial caused a letter to be sent to fhe Buggs stating that it would investigate the March 25 incident, but that it reserved “fhe right at any time to withdraw from such investigation, discussion, or other actions, and to disclaim liability under the policy, for the reasons stated and for such others that may appear, upon giving such advanced notice as the circumstances may permit.” On November 14, 1994, First Financial caused another letter to be sent to the Buggs informing them that due to the policy’s assault and battery exclusion, First Financial was denying coverage for any claims occurring as a result of the March 25 incident. The letter also noted that the Buggs had been advised of First Financial’s notice of non-waiver and reservation of rights on March 31, 1994.
On July 7, 1995, First Financial sent a letter to the Biiggs via certified mail. This letter quoted the assault and battery exclusion and stated.that “[d]ue to, but not necessarily limited to fhe above exclusions, First Financial Insurance Company contends that you may not have coverage for this occurrence.” The letter continued:
“As it appears that the interest of both you and the Company may be better served and protected, the Company will undertake the defense of this action under a full and complete reservation of rights and without prejudice to fhe rights of the parties under the terms and conditions of your policy.”
This letter also informed the Buggs that First Financial had referred the defense of the matter to a law firm for a defense, but qualified its obligation by stating that
“[a]ny action taken by or on behalf of First Financial Insurance Company or its representatives, in the handling of this matter shall not be deemed a waiver of any rights, and the Company may have to disclaim coverage under the terms and conditions set forth above and withdraw from this case.”
Ultimately, fhe district court held that “[t]he policy is ambiguous, and as such, must be construed in favor of the insured.” Con sequently, the court ruled, First Financial is obligated to represent the Buggs (the insureds) in the lawsuits brought by Woodberry, Davis, and Smith. Furthermore, the district court ruled that First Financial is liable for any legal obligations the Buggs incur due to injuries sustained by Woodberry, Davis, and Smith.
A. STANDARD OF REVIEW
Woodberry, Davis, and Smith claim First Financial’s policy is ambiguous and, consequently, the construction most favorable to the insured must prevail. Gowing v. Great Plains Mutual Ins. Co., 207 Kan. 78, Syl. ¶ 1, 483 P.2d 1072 (1971).
“As a general rule, the interpretation or construction and meaning and legal effect of written instruments are matters of law exclusively for the court and not questions of fact for determination by the jury. Federal Land Bank of Wichita v. Krug, 253 Kan. 307, 311, 856 P.2d 111 (1993). Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. [Citation omitted].” Spivey v. Safeco, Ins. Co., 254 Kan. 237, 240, 865 P.2d 182 (1993).
Policies must be construed according to the sense and meaning of the terms used, and if the language is clear and unambiguous, it must be taken in its plain, ordinary, and popular sense. Bramlett v. State Farm Mutual Ins. Co., 205 Kan. 128, 130, 468 P.2d 157 (1970). Similarly, courts should not strain to create an ambiguity where, in common sense, there is none. Bell v. Patrons Mut. Ins. Ass’n, 15 Kan. App. 2d 791, 794, 816 P.2d 407, rev. denied 249 Kan. 775 (1991). The test to determine whether an insurance contract is ambiguous is not what the insurer intends the language to mean, but what a reasonably prudent insured would understand the language to mean. Farm Bur. Mut. Ins. Co. v. Winters, 248 Kan. 295, 300, 806 P.2d 993 (1991).
The district court delineated “concealment of the exclusionary clause” as one of the reasons for holding that First Financial’s policy was ambiguous. The judge noted that the policy has “twelve pages which speak to the policy coverage and exclusions (hereinafter Coverage Form), nine pages which speak to deductibles and limitations of the policy, and more than twenty pages of supplemental forms which include changes in coverages and exclusions.”
The district court also found that the contract was ambiguous because of the placement of the coverage portions, in relationship to the exclusions. The trial judge found it particularly troublesome that the policy’s coverage was set out on page one, but the disputed exclusion
“is found at page twenty-one of the supplementary forms, among a long list of supplemental exclusions. This supplemental exclusion is meant to replace the original exclusion found on page one of the Coverage Form. The original exclusion prohibits intentional acts but permits the Buggs to use reasonable force to protect persons or property. The supplemental exclusion has been taken out of context and placed subtly on page forty-two of the forty-seven pages of text which make up the insurance policy. ‘The exclusion is, in fact, not as readily apparent or as prominently placed as the insuring agreement.’ Gowing, 207 Kan. at 82. On one page, the policy allows the Buggs to protect their patrons and property, while thirty-one pages later, the policy prohibits any action by the Buggs to suppress danger to their patrons and property.”
In the Gowing case, cited by the trial judge, the disputed exclusion clause excluded coverage for bodily injuiy or property damage caused intentionally by, or at the direction of, the insured. In Gowing,, appellant was involved in a fight and was sued for assault and battery. Appellant provided for his own defense and judgment was entered in his favor. He subsequently brought suit against Great Plains to recover the attorney fees he had incurred while defending the action. Great Plains maintained that it had no duty to defend him because the lawsuit charged him with an intentional injuiy, which was expressly exempted from the policy’s coverage.
The Gowing court reasoned that Great Plains’ policy was basically a comprehensive policy insuring the appellant against certain perils, as well as insuring appellant himself against liability. The policy consisted of two pages, with page two containing the terms of Great Plains’ obligation conspicuously at the top of the page. The policy promised to pay on behalf of the insured any sums that appellant legally became obligated to pay as damages for bodily injuiy or property damage, as well as promising to defend any lawsuit brought against him alleging such bodily injuiy or property damage and seeking damages payable under the terms of the policy, even if the allegations were groundless, false, or fraudulent.
The Gowing court ultimately held:
“We believe the average man, in reading the foregoing provisions in their entirety, would conclude, and be fully justified in so doing, that he was buying p. defense to whatever lawsuit might be filed against him seeking damages to person or to property. The language positioned at the top of the page is broad and sweeping in its scope. It would tend to lead a reasonably naive insurance customer to expect that a defense would be provided against personal injury actions filed against him, whether the alleged injury be calculated or unintentional.
“This court follows the general rule that in determining the intention of the parties to a contract of insurance, the test is not what the insurer intends the printed words of the policy to mean, but rather what a reasonable person placed in the position of the insured would have understood the words to mean. (Casey v. Aetna Casualty & Surety Co., 205 Kan. 495, 499, 470 P.2d 821; Kansas Farm Bureau Ins. Co. v. Cool, 205 Kan. 567, 572, 471 P.2d 352, and cases cited therein.)
“In contrast to the prominence accorded the insuring agreement found under Coverage G at the top of page two, the exclusion clause on which the insurer relies is placed inconspicuously in a long paragraph near the bottom of the same page. Although the lengthy paragraph covers a number of exclusions as to coverage — both casualty and liability — they are strung together in continuous sequence without break, subparagraph or indentation. The exclusion is, in fact, not as readily apparent or as prominently placed as the insuring agreement. Hence we are not disposed to say that the insurer’s grandly stated promise to defend is clearly and expressly limited to lawsuits based on unintentional torts.” 207 Kan. at 81-82.
The Gowing case also reviewed certain fundamental principles applicable to insurance contracts:
“In Buchanan v. Employers Mutual Liability Ins. Co., 201 Kan. 666, 443 P.2d 681, this court held that inasmuch as the insurer prepares the policy, the burden is upon him to establish facts which bring the case within the exceptions set forth in the policy. (See, also, Southards v. Centred Plains Ins. Co., 201 Kan. 499, 441 P.2d 808.)
“In similar vein the federal court in Prickett v. Hawkeye-Security Insurance Company, 282 F.2d 294, stated that if an insurer intends to restrict its coverage it must use language clearly stating its purpose and that this rule of construction applies with particular force to provisions which attempt to exclude liability coverage under certain conditions.
“This court, also, has said that where an insurance company desires to limit its liability under a policy, it should employ such language as will clearly and distinctly reveal its stated purpose. (Miller v. Farmers Mutual Automobile Ins. Co., 179 Kan. 50, 55, 292 P.2d 711; Chicago, R. I. & Pac. Rld. Co. v. Aetna Ins. Co., 180 Kan. 730, 737, 308 P.2d 119.) Unclear and obscure clauses in a policy of insurance should not be permitted to defeat the coverage which is reasonably to be expected by the insured. (Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 793, 457 P.2d 34.)” 207 Kan. at 80-81.
First Financial attempts to distinguish its policy from the policy analyzed in Gowing, by asserting that in contrast to the exclusion in Gowing, its ássault and battery exclusion was not printed in small type, nor was it hidden among a long paragraph of endorsements. Its endorsement explicitly stated that it was changing the assault and battery exclusion found in part A of the liability section coverage and this section was set out in bold, capital letters, with each exclusion within the endorsement section clearly separated from the others.
Also, the policy was a standard insurance contract with endorsements changing parts of the policy. Furthermore, the policy warned the Buggs that such endorsements changed their coverage. The policy, in large lettering, provides:
“THE FOLLOWING ENDORSEMENTS, EXCLUSIONS AND CONDITIONS MODIFY INSURANCE PROVIDED UNDER THE FOLLOWING COVERAGE PARTS. THEY CHANGE THE POLICY. PLEASE READ THEM CAREFULLY.”
The first page of the policy does refer conspicuously to the combination endorsement section, which is titled in large bold print and warns the insured that the applicable endorsements change the policy and should be read carefully. When the contract is considered as a whole and not in its fragmented form, it is not ambiguous. “Ambiguity is not to be derived from or created by the fragmentation of the contract. Farm Bureau Mut. Ins. Co. v. Horinek, 233 Kan. 175, 180, 660 P.2d 1374 (1983). The terms of the insurance contract must be considered as a whole. [Citation omitted.]” Nash v. Adkins, 11 Kan. App. 2d 326, 329, 720 P.2d 1129 (1986). Further, “[t]he language of an exclusionary clause in an insurance policy must be afforded its plain, ordinary meaning. Courts should not strain to create an ambiguity where, in common sense, there is none.” Newton v. Nicholas, 20 Kan. App. 2d 335, Syl. ¶ 3, 887 P.2d 1158, rev. denied 257 Kan. 1093 (1995).
The district court also held First Financial’s policy was ambiguous because of its “contrasting statements of coverage.” The trial court held that
“various provisions of the policy state that the insurer will be hable regardless of fault. The portion of the policy entitled COVERAGE C. MEDICAL PAYMENTS, states that ‘[the insurer] will make those payments regardless of fault.’ Insurance policies which include such provisions in portions of the contract, while excluding damages due to intentional acts in other portions of the contract, may be viewed by a court as ambiguous. Due to contrasting statements of coverage and the concealment of the exclusionary clause, the insurance policy is ambiguous and must be given the meaning which an insured would reasonably expect. Cawing, 207 Kan. at 80.”
Although the coverage portion of the policy provides for medical payments regardless of fault, such medical payments are subject to the same exclusions as the general liability section. The exclusions are on the same page as the coverage for medical payments and appear in the same size print, as well as the same type of print as the provisions under the “insuring agreement.” Furthermore, the exclusion is under a section titled "Exclusions.”
An insurance contract can provide coverage, while qualifying that coverage with an exception, as long as the exception is clear and unambiguous. Such exceptions, however, will be strictly construed against the insurer. The coverage for medical payments and the exceptions to the coverage are clearly stated, and the exclusions are located on the same page as the provided coverage. There is no ambiguity due to conflicting language regarding medical payments and intentional acts.
B. IS THE ASSAULT AND BATTERY EXCLUSION AMBIGUOUS?
An insurance policy is not ambiguous “unless there is genuine uncertainty as to which of two or more possible meanings is proper.” House v. American Fam. Mut. Ins. Co., 251 Kan. 419, Syl. ¶ 3, 837 P.2d 391 (1992); see Spivey v. Safeco Ins. Co., 254 Kan. at 240.
Other jurisdictions have found that assault and battery clauses are not ambiguous, even when assault and battery is not defined in the policy. In Acceptance Ins. Co. v. Walkingstick, 887 F. Supp. 958 (S.D. Tex. 1995), the court ruled that an assault and battery exclusion was unambiguous under similar facts to the case at hand. In Walkingstick, an individual entered the Harrisburg Country Club (HCC), which was owned and operated by Weyel Foster and Nguyen Phung Kim. The individual started an altercation, gunfire ensued, and one patron was injured, while two were killed. The Walkingsticks, relatives of Espinosa, one of the patrons killed during the altercation, asserted that Foster, Kim, and HCC were negligent in “(1) employing staff incapable of responding to a disagreement in such a manner as to prevent the use of deadly force on patrons .... The Walkingsticks contended] that Foster’s, Kim’s, and HCC’s negligence proximately caused the assault which resulted in the injury and subsequent death of Espinosa.” 887 F. Supp. at 959-60.
Acceptance Ins. Co. (Acceptance) insured Kim d/b/a HCC at the time of the shooting incident. The assault and battery provision in Walkingstick excluded coverage for “‘Bodily Injury, including death, and/or Property Damage arising out of an assault and/or battery or out of any act or omission in connection with the prevention or suppression of such acts whether caused by or at the instigation or direction of the insured, his employees, patrons or any other person’ (‘the assault and battery exclusion’).” 887 F. Supp. at 962. The Walkingstick court held that the assault and battery exclusion precluded coverage for the death of Espinosa because “[c]ourts interpreting assault and battery exclusion clauses similar to the one at issue in this case have held the clause to be clear and unambiguous.” 887 F. Supp. at 962. Furthermore,
“[ajssault and battery exclusionary clauses exclude coverage of all claims arising out of an assault and battery regardless of the cause. [Citations omitted.] For instance, in Garrison [v. Fielding Reinsurance, Inc., 765 S.W. 2d 536 (Tex.App. - Dallas 1989, writ denied)], the Texas court of appeals held that the assault and battery exclusion contained in a restaurant’s insurance policy precluded coverage for claims made by a couple attacked by an unknown assailant in the parking lot of the restaurant because the plaintiffs would never have brought die lawsuit absent the assault and battery committed by the unknown assailant. Garrison, 765 S.W. 2d at 538. Moreover, in Audubon Indem. Co. [v. Patel, 811 F. Supp. 264 (S.D. Tex. 1993), it was] held that an assault and battery exclusion in an insurance policy excludes coverage of any damages arising out of an assault and battery as a matter of law, even if the legal theory under which the insured is found liable is negligence. Audubon Indem. Co., 811 F. Supp. at 265.” 887 F. Supp. at 962.
The Walkingstick court thus held that
“it is apparent from the petition filed in state court that the Walldngsticks would never have brought negligence claims against Foster, Kim, and HCC absent the assault and battery committed by a third party on Espinosa while he was a patron of HCC. Accordingly, the assault and battery clause contained in the insurance policy at issue bars coverage for the negligence claims made by the Walldngsticks in the state action.” 887 F. Supp. at 962.
The plaintiff in Nastasia v. Sylvan Inc., 617 So. 2d 128 (La. App. 1993), made the same argument against First Financial that appellees make in the case at hand. In Nastasia, the sole issue was whether summary judgment was appropriate in light of the language of the assault and battery exclusion in First Financial’s insurance policy with Sylvan. The plaintiff filed suit against Sylvan, Inc. d/b/a The Palladium after a fight broke out among some of the patrons. Plaintiff claimed he was not involved in the fight, but was struck and cut in the face with a beer bottle and thrown to the ground by an employee of The Palladium. Plaintiff received a number of stitches and underwent plastic surgery to remove the scar on his cheek. He then brought suit against Sylvan and First Financial for past and future medical expenses, as well as past, present, and future pain, suffering, discomfort and mental distress. The trial court granted First Financial’s motion for summary judgment, which asserted that plaintiff’s claim was barred by the assault and battery provision of First Financial’s insurance policy.
Upon appeal, the court set out the disputed assault and battery exclusion:
“It is agreed and understood that this Insurance does not apply to bodily injury or property damage arising out of assault and battery or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of the Insured, his employees, patrons or any other person.” 617 So. 2d at 129.
The court stated:
“Our jurisprudence indicates that ‘[i]f the language of an insurance policy and its endorsements are clear and unambiguous, then a reasonable interpretation consistent with the obvious meaning and intent of the policy must be given. . . . Any provision in the contract which limits liability must be given effect.’ [Citations omitted.]” 617 So. 2d at 129.
The Nastasia court rejected the plaintiff’s argument that, “because the terms ‘assault and battery’ are not explicitly defined in the insurance policy, the exclusion is fatally ambiguous.” 617 So. 2d at 129.
Gaspard v. Northfield Ins. Co., 649 So. 2d 979 (La. App. 1994), writ denied Feb. 9, 1995, upheld an assault and battery exclusion. In Gaspard, Murphy Gaspard was shot and killed in the course of a robbery as he was leaving the Greinwich Bowlarena bowling alley, owned and operated by Sonnier Products, Ltd (Sonnier). Gaspard’s wife and children (the Gaspards) filed suit against Sonnier and Northfield Insurance Company (Northfield), among others, alleging that the defendants were liable for their failure to provide adequate security and lighting in the Greinwich Bowlarena parking lot. Northfield filed a motion for summary judgment denying liability because its insurance policy with Sonnier specifically excluded from coverage any claim arising from an assault and battery.
The exclusion at issue in Gaspard stated: “This insurance does not apply to: a. ‘Bodily injury’ or ‘property damage’: (1) expected or intended from the standpoint of any insured. (2) arising out of assault and battery, or out of any act or omission in connection with the prevention or suppression of an assault and battery.” Appellants first asserted the policy was ambiguous because it was unclear whether the two clauses, (1) and (2), should be read conjunctively or disjunctively. The Gaspard court found that the language of the policy as a whole showed that this argument was without merit. 649 So. 2d at 982.
The Gaspard court also addressed appellants’ argument that
“the ‘assault and battery’ exclusion is ambiguous because there is no specific language which excludes assault and battery by third parties. However, again we find no ambiguity. The insurance policy clearly excludes from coverage ‘Bodily injury or property damage . . . arising out of assault and battery. . . . ’ This exclusion contains no qualifying language that its applicability should be limited to certain persons, but, on the contrary, encompasses every situation relating to assault and battery regardless of the perpetrator. Thus, we find that appellants’ assignment of error is without merit.” 649 So. 2d at 982.
In Kelly v. Figueiredo, 610 A.2d 1296 (Conn. 1992), the issue was whether an assault and battery exclusion clause in a liquor seller liability insurance policy was ambiguous, such that the policy covered damages caused by an assault and battery perpetrated by an intoxicated patron. Calvert Insurance Company’s policy had the following exclusionary endorsement:
“ ‘assault and battery exclusion: It is agreed that the insurance does not apply to bodily injury or property damage arising out of assault and battery or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of the insured, his employees, patrons or any other person.’ ” 610 A.2d at 1297.
The insured claimed that the exclusion clause was ambiguous and, therefore, must be construed against Calvert, the drafter of the policy. The insured contended that different interpretations of the language of the assault and battery exclusion made it ambiguous. The Kelly court held:
“The exclusion clause is not ambiguous. The words at issue do not have multiple definitions. See Beach v. Middlesex Mutual Assurance Co., [205 Conn.] at 251, 532 A.2d at 1297 [1987] (finding the word ‘collapse’ ambiguous as used in an insurance policy because it may mean ‘a catastrophic breakdown’ or ‘a breakdown or loss of structural strength’). We can say with a high degree of certainty that the exclusion clause was intended to exclude all assaults and batteries from coverage. See Griswold v. Union Labor Life Ins. Co., 186 Conn. 507, 514, 442 A. 2d 920 (1982) (finding ambiguity where ‘we cannot say with any degree of certainty [what the clause] was intended to exclude’). The exclusion clause therefore unambiguously reheves Calvert of any obligation to defend or indemnify the insured in this case.” 610 A.2d at 1299.
Likewise, in Britamco Underwriters v. J.O.C. Enterprises, Inc., 623 N.E.2d 1036 (Ill. App. 1993), app. denied 733 N.E.2d2 (1994), the court held that the assault and battery endorsement
“is susceptible to only one reasonable interpretation: the policy does not cover claims arising from assault or battery, regardless of what name is given to the actions compromising the assault and battery. The endorsement is redundant and prolix, but in no way ambiguous. Where provisions in an insurance contract are clear and unambiguous, a court will apply the provisions as written, giving the words of the policy their plain and ordinary meaning. [Citation omitted.]” 623 N.E.2d at 1039.
Davis and Smith assert the assault and battery provision is ambiguous because there are different possible meanings for assault and battery. Davis and Smith cite the definition of assault and batteiy provided in the criminal code and the definition of batteiy in PIK Civ. 2d as authority for the argument that assault and batteiy are ambiguous due to differing meanings.
Davis and Smith also cite the definition from Black’s Law Dictionary as exemplifying the different definitions of assault and batteiy. It defines “assault and batteiy” as “[a]ny unlawful touching of another which is without justification or excuse. It is both a tort, [citation omitted], as well as a crime, [citation omitted.]” Black’s Law Dictionary 115 (6th ed. 1990). The civil definition of battery is “[i]ntentional and wrongful physical contact with a person without his or her consent that entails some injury or offensive touching. [Citation omitted].” Black’s Law Dictionary 152 (6th ed. 1990). Criminal battery is “the unlawful application of force to the person of another .... The actual offer to use force to the injury of another person is assault; the use of it is batteiy, which always includes an assault; hence the use of the two terms are commonly combined in the term ‘assault and battery.’ ” Black’s Law Dictionary 152-53 (6th ed. 1990).
Davis and Smith consequently contend that the various definitions of assault and battery show the ambiguity of battery. They argue the following questions relating to the definition of battery prove it is an ambiguous word: What kind of touching is unlawful? Must the touching cause bodily harm or be done in a rude, insulting, or angry manner? Is it sufficient to be a touching without justification or excuse? Thus, they argue that First Financial could have defined battery, but it did not. Consequently, the exclusion clause must be strictly construed against First Financial, and if the clause cannot be given a clear and unambiguous meaning, it must be disregarded.
The failure of an insurance policy to specifically define a word does not necessarily create ambiguity. Although assault and battery have varying definitions, these definitions only slightly deviate and regardless of the definition used, they all convey the same general meaning. In the case at hand, the definitions of assault and battery do not present various and distinct definitions. The March 25 incident would be deemed a battery in the criminal context, as well as the civil context. Furthermore, all of the above definitions com port the same overall meaning. Consequently, the terms assault and battery are not ambiguous because they are not “open to different interpretations.” Lightner v. Centennial Life Ins. Co., 242 Kan. 29, 35, 744 P.2d 840 (1987).
C. EXPECTED OR INTENDED
The policy excludes coverage for “ ‘bodily injury’ or ‘property damage’ expected or intended from the standpoint of the insured.” The assault and battery exclusion, found in the endorsements, adds an exclusion for ‘personal injury’ that is expected or intended from the standpoint of the insured.
First Financial argues that the law in Kansas regarding insuring agreements excluding damages expected or intended by the insured excludes coverage for all of the natural and probable consequences of an intentional act. “We do not follow the specific intent rule. Rather, we have adopted the natural and probable consequences test. See Bell, 234 Kan. 461, Syl. ¶ 2.” Harris v. Richards, 254 Kan. 549, 553, 867 P.2d 325 (1994). Here, the insureds’ intent to injure is a moot point and is not an issue in this case.
D. ALLEGING A NEGLIGENCE THEORY
Woodberry contends that she has not alleged any assault and battery actions. Rather she has alleged that the insured was negligent in firing a gun into a crowded tavern without regard for the safety of the patrons inside the tavern, failing to have exits within the tavern appropriately marked and available for public use, and failing to properly protect patrons from an assailant who was firing a gun.
Davis and Smith admit that Count I of their petitions are based on an assault and battery theory and that First Financial is not liable for a judgment or a defense on Count I. Count I alleges that Davis and Smith were shot by Verdell Bugg or his employees. Counts II and III, however, are based on the alleged negligent acts of Tewz Enuff, rather than its intentional acts. Count II of Davis’ and Smith’s second amended petitions allege that Tewz Enuff had a duty to protect them, had reason to anticipate the incident, and failed to exercise reasonable care to forestall and prevent it. Fur ther, under Count III of Davis’ and Smith’s second amended petitions, they allege “negligent infliction of emotional distress.”
Davis and Smith thus argue that Counts II and III of their petitions are based on the totality of events which occurred at Tewz Enuff on March 25, 1994. These events caused Davis and Smith severe emotional distress and specifically caused Smith post traumatic stress syndrome, as well as immediate physical injury to both Davis and Smith. The injuries were neither expected nor intended from the standpoint of die insured, Tewz Enuff. Therefore, Davis and Smith conclude that the assault and battery exclusion does not apply, and First Financial is required to provide a defense and coverage.
Davis and Smith cite Harris v. Richards, 254 Kan. 549, 867 P.2d 325 (1994), as authority for the proposition that an intentional injury exclusion is inapplicable under the innocent bystander theory. The Harris court did not analyze and rule that an intentional injury exclusion is inapplicable under a mistaken identity or innocent bystander theory. The Harris court simply noted:
“Harris [the plaintiff] claims that his shooting was either due to mistaken identity or was an unintentional and unforeseen injury to an innocent third party. He emphasizes that no similar fact situation has been decided under Kansas law. Harris suggests that courts in other jurisdictions have nearly uniformly held that an intentional injury exclusion is inapplicable under either the mistaken identity or innocent bystander theories.” 254 Kan. at 554.
The Harris court went on to explain that Harris asserted his injuries were not the natural and probable consequences of the shooter’s intended actions, but he did not take the position that the specific injury test should replace the natural and probable consequences approach which has been developed under Kansas case law. 254 Kan. at 554. Under the natural and probable consequences approach, “an insured is presumed to intend the natural and probable consequences of his or her acts.” 254 Kan. at 556. See Bell v. Tilton, 234 Kan. 461, 470-71, 674 P.2d 468 (1983). Furthermore, the Harris court noted:
“We recently observed in Spivey that ‘[a] liability provision in an insurance contract excluding coverage for injuries expected or intended from the standpoint of the insured excludes from coverage an injury which the insured intentionally caused.’ 254 Kan. 237, Syl. ¶ 5. Spivey also reiterates our analysis of the natural and probable consequences test as discussed and applied in Bell. 254 Kan. at 245.” 254 Kan. at 556.
Davis and Smith contend that because the Harris court found that the plaintiff had not presented any evidence that he was simply an innocent bystander, his injuries were the natural and probable consequence of the insured’s intended actions. Davis and Smith make a jump in logic, however, and contend that under Harris, the Kansas Supreme Court has recognized an exception for the innocent bystander and that exception applies to the assault and battery exclusion in the case at hand. The Harris case does not stand for an innocent bystander exception.
In Bell v. Tilton, 234 Kan. 461, the plaintiff also alleged a negligence theory in his action against Tilton. Bell’s insurance policy contained an exclusion for acts that were expected or intended from the standpoint of the insured. The Bell court explained that if, from the acts, circumstances, and inferences of the case, it appears that one “had the desire to cause the consequences of his acts or he believed the consequences were substantially certain to result, his conduct was intentional and the policy exclusion was operative.” 234 Kan. at 472. The Bell court held:
“The trial court’s determination the intentional aiming and firing of a BB gun at the face of the injured party was not covered by insured’s liability insurance policy which excluded injuries intended or expected from the standpoint of the insured is affirmed notwithstanding the fact there was some evidence by the insured that he did not intend to cause the particular injury which resulted from his acts. The trial court properly held the insured’s statements relative to his intent were not conclusive on the issue of whether the insured’s acts were intentional and that such determination must be based on the totality of the evidence relative thereto.” 234 Kan. 461, Syl. ¶ 3.
Courts analyzing this issue have consistently held that the theory of liability is irrelevant when the injuries arose out of an assault and batteiy. Thus, the negligence claims do not affect the applicability of the assault and battery exclusion. In Terra Nova Ins. Co. v. North Carolina Ted, Inc., 715 F. Supp. 688 (E.D. Pa. 1989), a patron was shot and seriously injured by another patron at Ted’s Spot III, a Philadelphia, Pennsylvania, bar operated by North Car olina Ted, Inc. The assault and battery exclusion in the policy at issue in North Carolina Ted stated: “It is agreed that no coverage shall apply under this policy for any claim, demand or suit based on Assault and Battery, and Assault and Battery shall not be deemed an accident, whether or not committed by or at the direction of the Insured.” 715 F. Supp. at 690. The North Carolina Ted court first compared this case with a similar case, Terra Nova Insurance Co., Ltd. v. Thee Kandy Store, Inc., 679 F. Supp. 476 (E.D. Pa. 1988).
In the Thee Kandy Store case, the issues were nearly the same, but the alleged perpetrators of the assault were employees of the insured’s bar. The injured patron in Thee Kandy Store claimed that the defendants were negligent in failing to prevent the assault and battery. The court held that “this allegation is not sufficient to avoid a properly executed assault and battery exclusion. Regardless of the language of the allegations, the original cause of the harm arose from an alleged assault and battery.” 715 F. Supp. at 690 (citing Terra Nova Insurance Co., Ltd. v. Thee Kandy Store, Inc., 679 F. Supp. at 478).
Likewise, the North Carolina Ted court held that because the injured patron’s claims of negligence against the insured for failing to prevent the shooting arose from an alleged shooting incident, such claims “would not fall within the policy’s coverage because of the assault and battery exclusion.” 715 F. Supp. at 691. The rules regarding the analysis of insurance contracts and their exceptions used in North Carolina Ted mirror the Kansas standards. 715 F. Supp. at 691. Davis and Smith’s arguments fail.
E. ESTOPPEL
Davis and Smith argue that an insurance company cannot undertake to defend a lawsuit brought against its insured and then deny coverage under the policy, unless the insurance company has given specific notice to its insured of its non-waiver and reservation of rights to deny coverage. Davis and Smith claim that First Financial sent a reservation of rights letter to the Buggs regarding Joi Woodberry’s suit, but First Financial sent no such reservation of rights letter to the Buggs when it undertook the defense of the actions by Davis and Smith on March 26 and 27, 1996. James Wisler, the attorney for Davis and Smith, submitted their petitions against the Buggs, d/b/a Tewz Enuff, on March 14, 1995.
On March 26,1996, an attorney with Gehrt & Roberts appeared for Tewz Enuff at a discovery conference. On March 27,1996, an attorney from the same firm entered an appearance on behalf of Tewz Enuff. Davis and Smith cite Henry v. Johnson, 191 Kan. 369, 381 P.2d 538 (1963), as authority for the position that First Financial is estopped from denying coverage for Davis and Smith. The Henry court stated:
“It is a well-established rule that where an insurance company under a liability policy takes charge of the only defense which may then be imposed to an action on which liability rests (here, a motion to set aside a default judgment and answer on the merits), it will be estopped from thereafter questioning the claim because it was beyond the terms of the policy or because of a breach of a noncoverage clause, unless it gives notice of its right to set up the defense of noncoverage under an adequate and proper non-waiver and reservation of rights notice to the insured. [Citations omitted.]” (Emphasis added.) 191 Kan. at 376.
The Henry court refers to the holding in Snedker v. Derby Oil Co., Inc., 164 Kan. 640, 192 P.2d 135 (1948). The Snedker court held that
“under the general rule a liability insurer which assumes the defense of an action against the insured may save itself from the bar of waiver or estoppel in a subsequent action upon the policy if, in the action against the insured, it clearly disclaims liability under the policy, and gives notice of its reservation of a right to set up the defense of noncoverage.” 164 Kan. at 644.
In Snedker, there was no contention that the insurance carrier made such a disclaimer of liability or reserved the right to assert noncoverage in any subsequent action against it. First Financial, however, expressly disclaimed liability in its November 14, 1994, letter and gave notice of its right to set up the defense of noncoverage. The November 14, 1994, letter sent to the Buggs defeats Davis and Smith’s estoppel argument. It stated:
“First Financial Insurance Company informed us and asked that we advise you, that coverage was being denied under their Commercial General Liability policy number F101S400025 issued to you, for any claims as a result of the incident on or about March 25,1994 at the Tewz Enuff, 1465 S.E. Washington Street, Topeka, Kansas.
“You were advised of the First Financial Insurance Company’s Notice of Non-Waiver and Reservation of Rights on March 31, 1994 and First Financial Insurance Company has now advised us of the denial of coverage for the reason stated above [the assault and battery exclusion].”
In First Financial’s Reservation of Rights letter of July 7, 1995, in reference to Woodbeny’s suit, First Financial again set out the assault and battery exclusion in the Buggs’ policy and stated that due to, but not necessarily limited to the assault and battery exclusion, “you may not have coverage for this occurrence.” The letter further stated:
“As it appears that the interest of both you and the Company may be better served and protected, the Company will undertake the defense of this action under a full and complete reservation of rights and without prejudice to the rights of all parties under the terms and conditions of your policy.
‘We have referred the defense of this matter to the law firm of Gehrt & Roberts, Chartered. . . .
“Any action taken by or on behalf of First Financial Insurance Company or its representatives, in the handling of this matter shall not be deemed a waiver of any rights, and the Company may have to disclaim coverage under the terms and conditions set forth above and withdraw from this case.”
Davis and Smith did not file their petitions until March 1995. First Financial had disclaimed liability in the November 14, 1994, letter as to all claims as a result of the March 25, 1994, shooting incident. The November 14, 1994, letter also incorporated by reference its reservation of rights stated in the March 31,1994, letter to the Buggs.
First Financial asserts that Davis and Smith’s argument that First Financial should have sent a reservation of rights letter for each complaint filed is deficient because the policy is a contractual matter between the insurance company and the insured. In the case at hand, the Buggs were the insureds, and they were informed of the insurance company’s reservation of rights. The November 14, 1994, letter made it clear that First Financial declined coverage.
Thus, First Financial is not estopped from denying coverage of the Davis and Smith’s suit, which is clearly a claim resulting from the March 25, 1994, incident. First Financial denied coverage for any claims in the letter of November 14,1994. First Financial also established its reservation of rights regarding Davis and Smith’s suit because the November 14 letter stated that “[y]ou were advised of the First Financial Insurance Company’s Notice of Non-Waiver and Reservation of Rights on March 31, 1994.” A reasonable interpretation of a letter that denies coverage for any claims and refers to its reservation of rights, is that the reservation of rights also applies to any claims. The remaining issues and arguments are moot.
Reversed. | [
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Per Curiam:
This suit was brought by Blanche Hogan Harkin to set aside and cancel an oil-and-gas lease executed by Thomas Hogan, her father, to W. M. Mills. The title to the land was in the daughter, to whom the parents had conveyed it when she was an infant eighteen months old. The conveyance Was recorded when it was executed, and the lessee had constructive notice that the grantor of the lease had no title to the land. Believing, however, that Thomas Hogan was the owner, Mills •expended $500 in developing oil and gas, and thereby increased the value of the land to double what it was.
The daughter may have known all about the lease. There Were some circumstances in proof tending to show that she did. But the court made special findings of fact covering every disputed point in the case, setting aside the finding of the jury, to whom certain issues of fact had been submitted merely to aid the court; and the court’s findings are that the conveyance to the daughter was in good faith for value, that the deed was placed on record and afterward delivered to the daughter, and that the. daughter had possession of the land at the time the lease was executed and had no knowledge or notice of the lease. These findings cannot be disturbed on the ground that in the opinion of plaintiff in error they are against the weight of the evidence or that the evidence is not sufficient to support each •and all of them.
There were two jury trials, and the court set aside the special findings at the first and granted a new trial. It was, therefore, wholly unnecessary and uncalled for to encumber the record in this case with the proceedings of the first trial and to assign as error rulings of the court thereon, or, in commenting upon the evidence, to quote from the evidence at the first trial because the first trial was set aside. This practice is condemned, as well as the practice indulged in here of making unnecessary and useless assignments of error. There are twenty-nine separate errors assigned. Two relate to errors occurring at the first trial, thirteen relate to the giving or refusal to give instructions, and are argued at length in the brief, although the court set aside all the findings of the jury. Ten of the others relate to rulings upon the admission -of evidence, and none is well taken. The questions asked were not proper cross-examination. Many of them were afterward asked of, and answered by, the same witness when placed upon the stand by the defendant. The other errors are predicated upon the refusal to set aside the findings made by the court, and the denial of a motion for a new trial.
No errors being found in the record, the judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
H. V. Lawrence instituted a contest for the office of county treasurer of Finney county against A. C. Wheeler. His statement was sufficient unless it be with reference to the causes of contest. In that respect it reads as follows:
“Said contestor further states that the said A. C. Wheeler, contestee, was not legally and lawfully elected or chosen by a majority of the lawful votes cast at said election to be the county treasurer of Finney county, Kansas, for the following reasons, to wit:
“For errors and mistakes of the boards of judges of election at said election, so held in the various voting precincts, to wit, first, second and third wards in the city of Garden City, Sherlock, Macks, Huffmans, Plymell, Pierceville, Pleasant Valley, Knauston, Eminence and Ravanna, in counting the votes so cast at said election for the said office of county treasurer of Finney county, Kansas.
“For errors and mistakes of the board of county commissioners of Finney county, Kansas, acting as a board of canvassers of the votes cast at said election, in declaring the result of said election in favor of the said A. C. Wheeler, contestee, for the said office of county treasurer of Finney county, Kansas, at said election so held on the 6th day of November, 1906.
“That the boards of election judges in Pierceville and Macks precincts failed and neglected to account for or return to the county clerk of Finney county, Kansas, the number of ballots received by them from the said county clerk aforesaid prior to election.
“That the board of election judges in each of the aforesaid precincts failed to account for or return to the county clerk of Finney county, Kansas, the number of ‘blank’ ballots sealed up in an envelope, as required by law, or the ‘void’ ballots or the ballots ‘objected to,’ as required by law, enclosed in an envelope securely sealed and so marked and indorsed as clearly to disclose its contents; that in said precincts Pierce-ville and Macks all- ballots not used,.and all ballots spoiled by the voters while attempting to vote, were not returned by the boards of judges of election in said two above-named precincts to the county clerk of Finney county, Kansas, as required by law, the officer from whom all ballots were received.
“That the boards of election judges in said county, in the following precincts, to wit, first, second and third wards in the city of Garden City, Sherlock, Macks, Huff mans, Plymell, Pierceville, Pleasant Valley, Knauston, Eminence and Ravanna, failed to count for the contestor votes or ballots which were legally cast for him, and which were marked by said boards ‘blank,’ ‘void,’ and ‘objected to,’ and ‘rejected.’
“That on account of the above-mentioned errors, mistakes and irregularities a correct count of said votes cast in Finney county, Kansas, on said 6th day of November, 1906, and a correct canvass of said votes, would affect the result of said election of county treasurer of Finney county, Kansas, and that a correct count of the votes cast at the said several voting precincts so cast would affect the result of said election for the office of county treasurer, and that a correct count of the votes cast at said election on November 6, 1906, in Finney county, Kansas, and a correct canvass of the votes so cast at said election, Would result in the elec tion of said H. V. Lawrence, contestor, to the office of county treasurer of Finney county, Kansas, at said election so held on the 6th day of November, 1906.”
The contestee demurred to the statement, but the demurrer was overruled. The contestee then filed an answer, to which the contestor replied, and the contest court proceeded to count the ballots. Various ballots were not counted for the contestor which he claimed should have been counted for him, and various ballots were counted for the contestee to which the contestor objected. The ballots from two election precincts were not opened or counted. The contest court decided in favor of the contestee, and the contestor prosecuted proceedings in error in the district court. The district court declined to consider the principal errors alleged, on the ground the statement did not specify with sufficient particularity the causes of contest, thereby virtually sustaining the demurrer which the contest court had overruled. The contestor prosecutes error in this court.
The- district court adopted the rigorous rule approved by some courts and favored by some text-writers which requires that the facts constituting the cause of contest must be pleaded in detail, with particularity and precision, or the statement will not authorize the contest court to proceed or support a judgment in the contestor’s favor. This rule rests in part upon the public policy which forbids speculative an.d groundless contests, and is supported by the argument that if the. contestor know of causes of contest he can recite the-facts, while if he do not know it is better that he should not be allowed to interfere.
The question is one of statutory interpretation, the legislature having indicated what the public policy of this state demands by the procedure which it has prescribed. The remedy, so far as it relates to elections to county offices, is quite summary in character, and is designed to secure a speedy determination of the con test. The tribunal having jurisdiction to try the contest is an inferior one having special and limited powers, and need not be composed of persons who are learned in the law or familiar with the arbitrary rules of pleadings in civil actions; The proceeding is not one for the benefit of candidates alone. It may be instituted by any elector of the county, the purpose being that the people’s choice, legally registered, may be made to prevail upon the complaint of any one of them. The contestor’s statement is “a written statement of his intention to contest the election,” and must set forth “the particular causes of contest.” (Gen. Stat. 1901, § 2659.) The statute names causes for contest as follow :
“First, for malconduct, fraud or corruption on the part of the judges of election in any township, or of any of the boards of canvassers, or on the part of" any member of either of those boards.
“Second, when the contestee was not eligible to the office at the time of the election.
“Third, when the contestee has been convicted of an infamous crime before the election, and' the judgment has not been reversed, annulled, or set aside, nor the contestee pardoned, at the time of the election.
“Fourth, when the contestee has given or offered any elector or any judge, clerk or canvasser of the election any bribe or reward, in money, property or thing of value, for the purpose of procuring his election.
“Fifth, when illegal votes have been received, or legal votes rejected, at the polls, sufficient to change the result. .
“Sixth, for any error or mistake in any of the boards of judges or canvassers in counting or declaring the result of the- election, if the error or mistake would affect the result.
“Seventh, for any other cause (though not enumerated above) which shows that another was the legally elected person.” (Gen. Stat. 1901, § 2655.)
In framing' the law the legislature considered specially the subject of certainty in stating causes of con test, but went no further than to make the following requirement :
“When the reception of illegal or the rejection of' legal votes is alleged as a cause of contest, the names of the persons who so voted, or whose votes were rejected, with the township where they voted or offered to vote, shall be set forth in the statement.” (Gen. Stat. 1901, § 2660.)
There is no provision for the forming of definite issues such as the code of civil procedure contemplates.
This court has held that pleadings in the nature of an answer and reply are proper ,in contest cases, and if filed they should be construed according to the ordinary rules applicable to such pleadings. (Baker v. Long, 17 Kan. 341.) It has also been decided that the contest should be heard and adjudicated upon the merits and not disposed of upon technicalities. (Buckland v. Goit, 23 Kan. 327.)
The case last cited is instructive. The statute provides that the contestee shall be informed of the contest by a notice served upon him, which shall contain a brief statement of the causes of contest. (Gen. Stat. 1901, § 2662.) The notice did not contain this statement. The contestee appeared specially and moved to dismiss. The proceeding was dismissed, and the district court sustained the ruling of the contest court.' This court held the notice to be irregular only, and said:
“At the time that this contest was dismissed, it was too late for the contestor to commence a new contest, and hence, if this dismissal were to be sustained,' it would be a final determination of the case, and a final determination upon a pure technicality. • This the law never encourages, and especially not where cases are to be tried before inferior tribunals, not skilled in the law. It is a dangerous thing for an inferior tribunal, not skilled in the law, to attempt to decide cases upon pure legal .technicalities. Superior courts seldom attempt any such thing. And the law always encourages trials upon the merits, and never encourages final determinations upon mere technicalities of any kind.” (Page 330.)
From the foregoing it is plain the legislature did not ordain a severely technical and highly specialized system of procedure for the contest of county elections, but instead adopted a very simple and liberal one, designed to facilitate inquiry into causes which, if established, would vitiate the declared result, while at the same time affording due protection to the public, the party chiefly interested, and to claimants of offices.
The courts are fond of quoting the following fine paragraph relating to pleadings in election contests contained in the opinion in the case of Mann v. Cassidy, 1 Brewst. (Pa.) 11:
“The rule must not be held so strict as to afford protection to fraud, by which the will of the people is set at naught; nor so loose as to permit the acts of sworn officers, chosen by the people, to be inquired into without an adequate and well-defined cause.” [Page 27.)
The illustrative and qualifying paragraph immediately preceding usually is not quoted. It reads as follows:
“It is obvious that if the court were to require the same precision and certainty in an election petition as in the pleadings between parties to a suit at law, the object of which pleadings is to produce a single issue, the difficulty of stating precisely the manner in which a fraud has been perpetrated, or an undue return made, would, to a great degree, nullify the law itself, which designs that such charges shall be investigated.” (Page 26.)
Taken together, the two paragraphs express a fair interpretation of the meaning and spirit of the Kansas statute.
In this case the contest court and the contestee were fairly advised of the causes of contest. The causes specified were not fraud and corruption, the ineligibility of the contestee, the conviction of the contestee of an infamous crime, bribery, or the receiving of illegal votes. But errors and mistakes of the boards of judges in named precincts in counting the votes cast,-errors and mistakes of the board of canvassers in declaring the result, and failure of the boards of judges in various named precincts to count certain described classes of ballots were specified. It is true that the ultimate fact of error and’mistake was alleged in general terms, but this circumstance did not render the statement a nullity. If what was said were true the contest was well founded and the contest court was bound to investigate the charges. Even under the code of civil procedure such an allegation will not render a pleading subject to demurrer. The adverse party may be entitled to a more definite and detailed statement of the facts, but his remedy is by motion and not by de.murrer.
The following quotation from an early decision of this court, construing a pleading attacking a tax deed, is conclusive upon the question:
“We think, however, the court below erred in sustaining said demurrer. We shall take the fourth reason given, for the purpose of showing it, because said reason is the shortest, and because it is as material and as well pleaded as any of .the others, and more so than the most of the others. It reads as follows: ‘(4th) Said lots were not sold for taxes at the time and place required by law.’ Now if the lots were not sold at the time or place required by law, of coursé the tax deed founded on such sale must necessarily be void. Of course, it must be admitted that this fact is not very well pleaded, but we think it is sufficiently pleaded to be good on general demurrer. If the defendant was -not satisfied with this statement of facts he might have required a more specific and definite statement thereof by a motion to have the petition in this respect made more definite and certain. oOf course, the defendant had a right to know, from a specific allegation in the petition, whether the plaintiff claimed that the treas: urer did not sell said property at the county-seat, or whether he claimed that the place where the treasurer did sell the property was not the county-seat (a mere county-seat question), or whether he claimed that the treasurer did not sell at his office, or at the place where he advertised to sell, etc. The defendant also had a right to know from a specific allegation in the petition whether plaintiff claimed that the treasurer sold’said property prior to the first Tuesday of May, or after the adjournment of the tax sale, at the time to be held, or at some other time not designated by law. In fact, the petition should have stated, specifically (if insisted on in the proper way by the defendant) the time when, and the place where, said property was sold (and not merely the time when and the place where it was not sold), and all the facts connected with the sale, so that a precise and specific issue could have been made up by the pleadings. Such is the better mode of pleading; and such is the mode that must prevail when properly insisted on by the adverse party. When true and specific issues are made up by the pleadings, the- parties may know in advance, and before a trial, just, what they will have to prove and what they will have to disprove. But a party, in order to have the facts stated specifically, must raise the question in a proper way. He must do it by motion, and not by a general demurrer. If a petition states a cause of action at all, the petition must be held good when demurred to on the ground ‘that it does not state facts sufficient to constitute a cause of action,’ however general its statement of the facts may be.” (Park v. Tinkham, 9 Kan. 615, 618.)
Charges of fraud in pleadings in civil actions are excepted from this rule. (Ladd v. Nystol, 63 Kan. 23, 64 Pac. 985.) Perhaps there are some other exceptions. But a general charge in the statement of the contestor of a county election of error and mistake by the boards of judges in designated precincts in counting the ballots and by the board.of canvassers in declaring the result is sufficient as against an attack by demurrer, and is not void for indefiniteness.
“More particularity in pleading is not required than the nature of the subject is reasonably susceptible of; and it is obvious, in the very nature of things, that in most instances the candidate defeated by a miscount cannot know whose ballots were miscounted. All he can be expected to know is that about so many ballots were deposited for him at a given poll, and that the count does not agree therewith. If he knows more, it is' accidental. Nor, in such case, is it of consequence whose ballot was miscounted, for the effect is the same, and the mode of proof is precisely the same, whether it was cast by one legal voter or another. It is, moreover, evident that the information upon which the contestant acts must, to a very great extent, be hearsay. He cannot be expected to have been personally at each poll, much less to have known how each elector voted. Nor can he be expected to have personally supervised the counting at each poll, and therefore, however grossly and palpably he may have been wronged at several polls, all that he can say truthfully in respect to most of it is that he is informed and verily believes.” (Kreitz v. Behrensmeyer, 125 Ill. 141, 172, 17 N. E. 232, 8 Am. St. Rep. 349.)
The district court justified its adoption of the strict rule of pleading by the fact that under the law of this state each political party and each candidate may be represented at every polling-place in the county, and thus may be.informed of the facts relating to errors and mistakes, if any occur. Each elector may not be-so represented. Any elector may institute a contest. The rules of pleading must, with due regard to the interest of the public and of candidates, expedite his purpose, and there cannot be one set of rules for candidates and parties and another for plain electors.
At the trial before the contest court the contestor offered an amendment to his statement, which was rejected. It aided the statement but little, and the court did not abuse its discretion in refusing to allow it to be filed.
The judgment of the district court is reversed and the cause is remanded. | [
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The opinion of the court was delivered by
Mason, J.:
A. M. Horner sued Theodore Schinstock upon a promissory note. Schinstock made a successful defense upon the ground that he had signed the note as a surety and had been relieved of liability by the conduct of the payee. The plaintiff prosecutes error and makes two principal contentions: (1) That an instruction that a surety might be released by an extension of time granted to the principal was defective in omitting to state that to have such effect an extension must be based upon a new consideration; and (2) that a new trial should have been granted upon the ground of newly discovered evidence.
If the instruction complained of was open to the objection made, the defect was abundantly cured elsewhere in the charge by ah explicit statement of the character of consideration necessary to give an extension of time of payment the effect contended for. Moreover, a special finding returned by the jury upon another branch of the case compelled a judgment for the defendant, and made the instruction upon this phase of the matter immaterial.
The principal question submitted to the jury related to a conversation between the parties. The plaintiff testified to one version, the defendant to another, their testimony being in direct conflict. The newly discovered evidence upon which a new trial was asked was that of a bystander, who was said to have overheard the conversation and to be able and willing to testify that the plaintiff’s account of it was correct. Manifestly this evidence was merely cumulative, and therefore not such as to require a new trial, unless it was given a different character by the fact that it was to 'come from a stranger to the action, whereas the only testimony on the subject given at the trial was that of the parties. Cumulative evidence is “additional evidence of the same kind to the same point.” (12 Cyc. 992.) That certain testimony is given by a party to the litigation does not render it different in kind from that of any other witness. That the person testifying has an interest in the result of the controversy does/ not place his evidence in a distinct class, but is only one of various considerations that may affect its weight. Evidence is not rendered non-cumulative, so as to afford a basis for demanding a new trial on the ground of newly discovered evidence, merely because it is to be furnished by a stranger to the litigation u,pon a matter otherwise covered only by the testimony of the parties, however strongly that circumstance may appeal to the trial court in a particular case -in determining whether justice would be sub-served by setting aside a.verdict.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The defendant moves to dismiss the appeal here on the grounds that the court below found the issues iri his ‘favor upon evidence and the evidence is not brought up, only a transcript of the record being here. In support of this motion it is said the trial court found generally in favor of the defendant, and, for aught the record shows, the plaintiff failed to prove his alleged right of possession to the property, and all reasonable inferences should be indulged to support the judgment.
Had the court simply found the issues in the case in favor of the defendant this rule would be applicable. Not so in this case. The plaintiff asserted his right of possession and the unlawful detention of the property by the defendant; the defendant denied plaintiff’s claims generally, and as a special defense asserted that his possession of the property was as an officer of the law, under the order of the court — that the property was in custodia legis, and, in support thereof, exhibited the court files in the case of the State of Kansas against John W. Cleevelin and Caroline Cleevelin. The decision of the court was based entirely upon this special defense, and as the plaintiff makes no contention that the facts upon which this defense was based were not supported by the evidence he had no occasion to bring up the evidence. The motion to dismiss is denied.
The question remaining, which determines the case, is whether, under the facts found by the court as to the nature of defendant’s possession of the property, the plaintiff could maintain replevin therefor, assuming that the plaintiff had full ownership and the defendant had no personal right thereto. In other words, when the state is proceeding to abate an alleged nuisance in a legal manner, and seizes personal property which from its alleged use constitutes a nuisance, caii an owner of the property litigate the right of possession thereto with the sheriff, the arm of the court, and thus forestall a possible order of the court to destroy the property as a nuisance?
We think the trial court correctly answered the question. ' True, as contended by the plaintiff, section 266 of the civil code (Gen. Stat. 1901, § 4713) assures to either party in an action for the specific recovery of personal property the right of trial by a jury. But the question here involved is not solely one of the right of possession as between individuals; and, if it were the only question, the above statute would have no higher standing than another statute prescribing a different procedure. Statutes apparently conflicting are to be construed together, and each given effect if possible. Where, as in this case, two entirely different procedures are provided by statute for adjudicating a certain right or claim of right, which procedures are inconsistent and irreconcilable, but where one procedure is general and applicable to a class of claims under many varying circumstances, while the other is specific and applicable only to a specific relation of the parties or to a controversy arising under specific circumstances, the specific procedure should be held applicable in exclusion of the other. The provisions of section 266 of the civil code apply to replevin actions generally. The provisions of section 2495 of the General Statutes of 1901 are specific as to the particular class of property in this action, and the trial there provided for is to determine whether or not the property, as used at the time of the filing of the information, was a common nuisance. The provision is: “All persons claiming any interest therein may appear and answer the complaint made against such intoxicating liquors.”
It was held in the case of In re Massey, Petitioner, 56 Kan. 120, 42 Pac. 365, that one claiming to own property which had been seized under the provisions of the prohibitory liquor law then in force could “maintain an action of replevin before another court of competent jurisdiction against the officer for the purpose of determining his right to the property.” (Syllabus.) This decision was expressly based upon the absence of any provision in the nuisance statute for a hearing as to the rights of property in the court where the criminal action was pending. This omission has since been supplied in the act known as the Hurrel law, enacted in 1901. Moreover, the language copied from the syllabus in the Massey case, swpra, is misleading. The question in that case was whether the officer who seized the liquors in the criminal action and had them in his possession was guilty of contempt in refusing to deliver them to another officer, who demanded them under a writ of replevin issued to him by another court, and the decision held him guilty of such contempt. So the decision in that case was not that on the final hearing of his replevin action the owner of the liquors should prevail, as claimed in this case, but that the owner had a right to bring his action and to have the writ issued therein served and obeyed. The words “B may maintain an action,” as generally used, mean “B may successfully maintain an action,” but such was not the meaning in that case.
As before said, the question involved in this action is not solely the relative rights of the owner and of Wallace, as an individual, to the possession of the property in question. An information had been filed charging that the property, as used, was a common nuisance. A warrant had been issued and the property had, so to speak, been arrested on this charge, and the sheriff, as required by law, was holding it in his custody until such time as the court should determine, under a speedy procedure provided by law, whether the property was, so to speak, innocent and should be returned or whether it was guilty and should be destroyed. It is a proceeding in rem, and while it is pending in due and orderly course the owner of the property should not be allowed to intervene, except to “answer the complaint made against such intoxicating liquors,” as provided in section 2495 of the General Statutes of 1901. The property was in custodia legis, and the proceeding was in rem. (The State v. McManus, 65 Kan. 720, 70 Pac. 700; Karr v. Stahl, 75 Kan. 387, 89 Pac. 669; 17 A. & E. Encycl. of L. 304; 23 Cyc. 298.) The proceeding is due process of law.
The plaintiff urges that the notice of the condemnation proceeding was not properly addressed and not properly served. It should have been addressed to the defendant “and to all persons claiming any interest in the intoxicating liquors or other property.” (Gen. Stat. 1901, § 2495.) It was addressed to the defendant, but the words quoted from the statute were omitted. It was served according to law. We think the words omitted from the address did not render the notice void. It was simply irregular, and there is no showing that the plaintiff did not have actual notice of the time and place of hearing. He is presumed to know the law — that a notice of the time and place of the hearing would be issued within forty-eight hours after the return of the warrant. He knew his goods had been seized, and by whom, as he very promptly commenced his action in replevin therefor. He was bound to know that he was entitled to a hearing before the court without instituting another action. He evidently sought to bring, a more favorable form of action. We hold he was not entitled to supersede the proceeding already pending.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff commenced a suit to quiet his title against 'two tax deeds. The first one was issued on September 4, 1903, the last day of the three-year period for redemption, and consequently was void on its face as an instrument conveying title. On May 22, 1905, the plaintiff tendered to the county treasurer the amount necessary to redeem, if redemption by payment to the treasurer were then permissible. On June 6, 1905, the tax-deed holder procured a second deed to correct the defect in the other. Judgment was rendered for the tax-deed holder, and the plaintiff prosecutes error.
The tender to the county treasurer was unavailing. Section 7662 of the General Statutes of 1901 reads as follows:
“Any owner, his agent or attorney, may at any time within three years from the day of the sale, and at any time before the execution of the deed, redeem any land or town lot or any part thereof or interest thereon.”
This statute allows the landowner three full years from the day of sale within which to redeem and as much additional time as may elapse before the deed is-executed. In the case of English v. Williamson, 34 Kan. 212, 8 Pac. 214, it was said:
“It will be seen from these quotations from the tax law that the owner of the land has, under any circumstances, at least ‘three years from the day of sale,’ and ‘any time before the execution of the deed,’ within which to redeem his land from the taxes.” (Page 215.)
Here the plaintiff had the three years’ time, which could not be diminished, but no additional time, because the deed had been executed.
It is argued that, since the county clerk has no authority to issue a tax deed before the period of redemption expires, the deed was no deed and the right of redemption was not cut off. The statute does not say that the owner may redeem within three years and at any time before the execution of a valid deed, or before the execution of a deed good on its face, but simply at any time before the execution of “the deed.” The deed which was issued cannot be ignored as a tax deed. It was not an absolute nullity; it was only void as a transfer of title. If the defendant had taken possession of the land under the deed he would not have been a trespasser. In the case of Cohen v. St. L., Ft. S. & W. Rld. Co., 34 Kan. 158, 8 Pac. 138, 55 Am. Rep. 242, it was said:
“But even if void, still a person holding the possession of land under a void tax deed is not a trespasser, but may make improvements on the land, and may recover compensation from the paramount owner for such improvements under the occupying claimant law.” (Page 166.)
In the case of Redden v. Tefft, 48 Kan. 302, 29 Pac. 157, the syllabus reads:
“A tax deed void upon its face gives, under the statutes of this state, to a person in the possession of real estate thereunder, but who has made lasting and valuable improvements and paid taxes thereon, rights and equities.”
The decisions in Stebbins v. Guthrie, 4 Kan. 353, and Smith v. Smith, 15 Kan. 290, are of the same tenor.
A tax deed void on its face as a conveyance is still sufficient to transfer the lien for taxes to the grantee.' Such is the fair implication from the decisions in English v. Williamson, 34 Kan. 212, 8 Pac. 214, and Cable v. Coates, Assignee, 36 Kan. 191, 12 Pac. 931, both of which involved tax deeds issued before the three-year period of redemption had expired. The fact that the defect arises from a lack of power in some one of the tax officials does not affect the principle. The county treasurer has no authority to sell an undivided interest in land for delinquent taxes. Such a sale is invalid, and a deed showing such a sale is void on its face and passes no title to the purchaser. (Corbin v. Inslee, 24 Kan. 154.) But such a deed carries with it a lien for the taxes. In Auld v. McAllaster, 43 Kan. 162, 23 Pac. 165, the syllabus reads:
“A tax-title holder who seeks to recover the possession of an undivided half of three quarter-sections of land .by an action of ejectment against the original owner, and is defeated in such action, is entitled to be paid by the successful claimant the amount of the taxes, together with the proper charges, interest and costs paid by him to procure his invalid tax deeds. And such taxes, interest, costs and charges are a lien upon the land until they are paid by the owner or some person liable therefor.”
The tax deed must therefore be reckoned with. The county clerk could not by executing it diminish the three-year period for redemption, but after that time had elapsed, a tax deed having been executed, the treasurer could no longer receive the redemption money. The county no longer held the lien for taxes and the tender should have been made to the defendant to forestall the execution of a second deed.
“The holder of the tax deed was the proper party to receive the tender. The money was due to him. He had paid the county; no further duty was cast upon any county officer.” (Herzog v. Gregg, 23 Kan. 726, 727.)
Of course, when the second d.eed was executed all rights of the defendant merged in it. The second tax deed recited a sale to the county in 1900 for the taxes of 1899, for the sum of $8.69. It further recited an assignment of the certificate of sale by the county clerk, on February 28, 1903, for $26.31, the cost of redemption at that time. The clause in the statutory form to be used when subsequent taxes have been paid was altogether omitted. The consideration for the conveyance was given as $26.31, the taxes, costs and interest due on the land for the years 1899, 1900 and 1901, “to the treasurer paid as aforesaid.” No evidence was introduced to impeach the deed in any respect, and its validity is to be determined from what appears upon its face.
It is said the failure to fill the blanks in the omitted clause of the form makes the deed void, the argument apparently being that the subsequent taxes there mentioned are all those accruing after the sale. Such, however, is not the meaning of the form. The blank is left for the insertion of taxes paid by the purchaser subsequent to the assignment of the tax-sale certificate to him. There being no evidence that the purchaser in this case paid any taxes after he obtained the certificate of sale, there is nothing to show the clause was improperly omitted.
It is claimed the deed is void because it nowhere makes a separate statement of the amount of the taxes for the years 1900 and 1901, which entered into the consideration for the assignment of the certificate of sale. In this respect the deed follows the statutory form. The form makes no provision for a separate statemént of the taxes for each year which make up the consideration for the assignment of the certificate of sale. Only a gross sum which equals the amount necessary to redeem at that time is to be given.
It is further claimed the deed is invalid because the correct consideration is not stated. The plaintiff founds his argument upon an assumption that the taxes for 1899, 1900 and 1901 were practically the same in amount. There was no evidence to that effect, and consequently the deed is not proved to be incorrect. If the recitals of a tax deed do not themselves impeach its validity evidence is necessary to overthrow it. An assumption of something which may or may not be .true will not be indulged to defeat it.
Finally, it is said the lien of the certificate of sale was lost before the second deed was executed. (Gen. Stat. 1901, § 7714.) As already shown, the lien was preserved by the first deed. Even though the second deed was not issued within four years of the date of the sale, the lien was not lost. (Geer v. Thrasher, 87 Kan. 657, 16 Pac. 94.)
The judgment of the district court was correct, and is affirmed.
Johnston, C. J., Mason, Smith, Porter, Graves, JJ., concurring.
Benson, J., dissenting. | [
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The opinion of the court was delivered by
Graves, J.:
This suit was commenced by property owners in the city of Parsons to restrain the collection of a special-improvement tax levied upon abutting property to pay for pavement made on Corning avenue in that city. The city demurred generally to the peti tion, and the demurrer was sustained. This ruling of the district court is the only assignment of error.
The petition, on account of its length, cannot be shown in full here, but enough will be given to indicate the contested propositions. After the formal and introductory averments, paragraph 4 reads:
“That on or about the 8th day of May, 1905, the city council of the defendant city passed a resolution declaring the expediency and necessity of paving, curbing and guttering Corning avenue, in said city, from the east line of blocks 51 and 58 to the east line of Twenty-sixth street in said city, which ordinance was approved on the 10th day of May, 1905, and published in the Parsons Daily Sun, May 11, 1905; that on the 22d day of May, 1905, another and a similar resolution was passed by the council of said defendant city, and was duly approved on May 22, 1905, and published in the Parsons Daily Sun, May 25, 1905.”
On July 24, 1905, the grade of Coming avenue was by ordinance duly established. This ordinance was first published July 26, 1905. An ordinance providing for the construction of the paving, curbing and guttering was also passed, July 24, 1905, and on August 4 a notice inviting bids therefor was published. On August 14, 1905, the city engineer filed in the office of the city clerk an estimate of the cost of such paving; curbing and guttering. On August 22, 1905, bids were opened and a contract let for the construction of the paving, curbing and guttering.
On October 9, 1905, the grade of the street was changed, and its height increased to an extent varying from six inches to three feet. The pavement provided for extended from Twentieth to Twenty-sixth streets, on Corning avenue. The grade was not changed at either of these points, but was raised between them so as to make the avenue more nearly level.
On Novemb'er 2, .1905, the cost of the pavement was by ordinance levied against the abutting property. It is insisted that this tax and ordinance are void. Several reasons are given for this contention, all of which rest upon the claim that the change made in the grade was sufficient to nullify all the prior proceedings taken by the city and prevent further action until the preliminary steps required by law are again taken.
In considering this question it will be well to bear in mind the statutes concerning the construction of special improvements of this kind. Section 1 of chapter 116, Laws of 1905, confers power upon cities of the second class to pave, curb and gutter streets, avenues and alleys, and assess the cost thereof against the abutting property. This section also provides that the cost of bringing such streets, avenues and alleys to grade shall be taxed against all the taxable property in the city.
By section 1016 of the General Statutes of 1901 the exercise of the power so conferred can only be initiated by the people who will be required to pay for the improvement. If three-fourths of the resident owners of property fronting on a street petition for such special improvements the petition will confer jurisdiction upon the council to do the work and make the necessary assessment to cover its cost. In the absence of such a petition the council may, by resolution duly passed and published for four weeks, declare such work to be necessary, and, if a majority of the resident owners of property liable to be taxed therefor do not within twenty days after the last publication of such notice file a protest against the proposed improvement with the city clerk, it will be assumed that the property owners desire the work to be done, and the council becomes invested with jurisdiction to make the proposed improvement and assess the cost thereof against the abutting property. Until one or the other of these steps is taken the power given by the statute cannot be exercised, but either step, when completed, gives the council jurisdiction to proceed with the work and carry it to completion. In this case the council acquired jurisdiction by the latter method. The petition shows that a resolution was duly passed and published, and that no protest was filed within twenty days after the last publication. The council then proceeded to establish the grade of the avenue upon which the paving should be placed.
Every property owner who might have protested knew that it would be th§ duty of the council to establish the grade for the pavement and that the performance of this duty involved the exercise of discretion and judgment. This was one of the steps necessary to be taken in making the improvement mentioned in the resolution. If the first attempt to establish a proper grade was unsuccessful it became the duty of the council to correct the mistake. This question was considered by this court in the case of Methodist Episcopal Church v. City of Wyandotte, 31 Kan. 721, 3 Pac. 527. Mr. Chief Justice Horton, speaking for the court, said:
“This power ‘to open and improve streets’ includes the power to alter the grade or change the level of the land on which the streets are laid out. If the city has once fixed a grade, which it afterward finds improper or insufficient, it has not exhausted its power, and therefore has the authority to change the grade to improve the streets. ‘As the duty is a continuing one, so is the power necessary to perform it.’ (Smith v. The Corporation of Washington, 20 How. 135, 15 L. Ed. 858; Gozzler v. Georgetown, 6 Wheat. 593, 5 L. Ed. 339.)
“There is the same reason and the same justification for changing a grade once established, when the public convenience is found to require it, that there is for fixing it in the first place. Therefore the power to open and improve streets, which includes the power to grade them, may be exercised from time to time as the wants of the city may require. Of the necessity or expediency of this exercise the mayor and council of the city, and not the courts, are judges.” (Page 724.)
This is the law now, and applies to this case. (Salt Co. v. Hutchinson, 72 Kan. 99, 82 Pac. 721.)
Plaintiffs in error have.called attention to the case of the City of Argentine v. Daggett, 53 Kan. 491, 37 Pac. 14. That case, however, is entirely different from this, and the decision rests upon considerations which do not exist here. There the abutting property owners presented a petition to the council asking that certain grading be done, the cost of which would be taxed to their property. The grade line had already been es-tablished by ordinance, which line the petitioners evidently had in mind when they asked to have the street brought to grade. The council took the preliminary steps to grade to that line, but afterward changed it so as to increase materially the cost to the petitioners. By this action of the council the petitioners were charged with a burden which they had no reason to anticipate when they petitioned for the improvement. The court held the levy for such tax invalid, The property owners understood from the official action of the council that the grade was already fixed, and the amount of work petitioned for was therefore a reasonably definite quantity.
But in this cáse there was no petition. The council proceeded by resolution. Property owners were duly notified that the council intended to pave, curb and gutter the avenue. No grade had then been established. The grade, whether as first designed or as subsequently fixed, did not affect the cost- of the improvement mentioned in the resolution. As general taxpayers of the city the abutting property owners might be interested in the increased cost of the grade work of which they complain; as abutting property owners they might be interested in the increased height of the grade, because of its injurious effect upon the adjoining lots; but neither of these considerations enters into the special assessment which they seek to enjoin in this action.
If the council, by increasing the grade, acted without jurisdiction, these plaintiffs knew of it at the time and should then have taken steps to prevent the wrong, instead of remaining silent while the special improvement, which they knew would be a charge against their property, was being constructed. This special tax was levied to pay for just what the council, by its resolution, acquired jurisdiction to do. The petition shows that all the preliminary steps required by law in such cases were taken by the council. The only action of which complaint is made relates to an entirely different improvement, and does not affect this tax.
The demurrer was properly sustained. The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Plaintiifs sued to enjoin the levy of special taxes for paving and curbing certain streets in the city of Coffeyville. Issues were joined and there was a trial to the court and judgment for defendants. Plaintiffs bring error.
The principal objections to the validity of the levy which are urged here are based upon the fact that George F. Boswell, who was a member of the city council at the time the contract was entered into, was a stockholder in the Coffeyville Shale Brick Company, which furnished the brick used in the paving; and that W. F. Ehart, another member of the council, accepted employment under the contractors as a laborer. It is the contention of plaintiffs that these facts bring the case within the statute of frauds. (Gen. Stat. 1901, §§ 3175, 3176.) The provisions of the statute are, in substance, that no contract for paving any street in a city shall be made with, or let to, any mayor, councilman or individual whose duty it shall be to levy or aid in levying any assessment or tax to pay therefor, and that any such contract shall be null and void, and any tax levied for work performed under such contract may be perpetually enjoined.
The court made very full and complete findings of fact, from which it appears that the contract for paving and curbing was entered into on November 10, 1904, between the city of Coffeyville and the firm of McGuire & Stanton; that the proceedings of the city council providing for'the improvements were in all respects regular; that on November 17, 1904, McGuire & Stanton made a contract with the Coffeyville Shale Brick Company, by which the company agreed to furnish the brick to be used in the pavement; that George F. Boswell, a member of the city council, was a stockholder and director in the brick company; that the contract between McGuire & Stanton and the brick company was entered into with the vice-president and general manager of the company, who had full authority to make such contracts without referring the same to the board of directors. There is a further finding that McGuire & Stanton are not shown to have had any notice or knowledge of the fact that George F. Boswell was a stockholder and director of the brick company. It is found as a fact that in April, 1905, councilman W. F. Ehart accepted employment with the contractors at their rock-crusher as timekeeper, but that he had no agreement with the contractors to assist them as a councilman. The court expressly found that no actual fraud was shown on the part of George F. Boswell or any of the councilmen or other officers of the city, and that the mayor and council accepted the work as having been performed in compliance with the contract.
It thus appears that at the time the contract was entered into between the city and McGuire & Stanton no contract had been made either with the brick company to furnish the brick or with councilman Ehart to furnish him employment. There was no contract with the city in which a member of the council was interested directly or indirectly. The city had no contract with the brick company or with councilman Ehart; the only contract the city had was its contract with McGuire & Stanton for the paving and curbing.
It must be obvious, therefore, that the facts found by the court are not such as come within the letter of the statute of frauds. According to the contention of plaintiffs the entire contract would have been rendered null and void, and the tax subject to perpetual injunction, if, after the contract had been entered into between the city and the contractors, the latter had purchased at a store owned by a member of the council any supplies to be used in the performance of the contract, without regard to the good faith of the transaction. The statute, however, was enacted for the purpose of preventing fraud and not to work injustice. It is conclusively established by the court’s finding that there was no fraud in the proceedings of the mayor or council or in the performance of the work, so that neither the letter nor the spirit of the statute was violated.
The other objections to the validity of the tax are based upon the claim that the work was not performed in accordance with the specifications of the contract. It is unnecessary to enumerate all of the objections, but they relate to the quality of the brick used, the lack of the required amount of cement in the concrete, and other alleged failures to comply with the specifications. These objections are of no avail to the property owners who seek to enjoin the levy of a special assessment. It áppears that the mayor and council at a regular meeting adopted a resolution accepting the work as having been completed in full compliance with the terms of the contract. 'This concludes the plaintiffs, as there is no fraud shown in the acceptance of the work. Where the proper authorities have passed upon the question and accepted the work as satisfactory, the acceptance is conclusive upon the property owners. (State v. Jersey City, 29 N. J. Law, 441, 449; Ricketts v. Village of Hyde Park, 85 Ill. 110; 2 Cooley, Tax., 3d ed., 1280, and cases cited.) In addition, it was found by the trial court that the work had been done substantially in compliance with the terms of the contract.
The judgment is affirmed. | [
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Per Curiam:
Two questions are presented:
(1) Is the tax deed void because not attested by the-official seal of the county? The written certificate of the county clerk recites: “I . . . have hereunto subscribed my name and affixed the official seal of said county,” and a seal is affixed with this device:
“COUNTY CLERK SEAL
LOGAN COUNTY, KANSAS.”
And it is also shown that this seal had been used by the county clerk (with the exception of only one instance) and by his predecessors in office for years to attest all of his and their official acts. The evidence, however, showed that the county had another seal,, which bore the device:
“BOARD OF COUNTY COMMISSIONERS SEAL
LOGAN COUNTY, KANSAS.”
The latter seal the evidence tended to show had been used but once by the county clerks to attest an official act, and then by special request, after the commencement of this action. We answer the question in the negative, on the authority of Clarke v. Tilden, 72 Kan. 574, 84 Pac. 139.
(2) Is the tax deed valid? It has been of record less than five years, and the recital therein as to the sale for taxes is as follows:
“And whereas, at the place aforesaid, said property could not be sold for the amount of taxes and charges thereon, and was, therefore bid off by the county treasurer of said county for the sum of eleven dollars and twenty cents, the whole amount of taxes and charges then due thereon.”
It will be observed that the recital does not show for- whom the treasurer bid off the land, and this defect is sufficient to overthrow the deed. (Penrose v. Cooper, 71 Kan. 720, 81 Pac. 489; Grinstead v. Cooper, post, p. 778.)
The judgment is affirmed. | [
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The opinion of the court was delivered by :
Burch, J. :
Appellant was convicted of selling intoxicating liquor contrary to law. At the close of the state’s evidence a written election was made and filed with the papers in the case, specifying the transactions relied on for conviction. In its written instructions the court referred to the election, and advised the jury that their inquiries should be confined to the several transactions therein designated. In delivering the charge the written election was read, but it was not copied at length in the instructions. It is now contended that the conduct of the court in reading the election was violative of the statute requiring the charge to the jury to be in writing and to be filed with the papers in the case.
Technically the statute was complied with, because the election was written and was filed with the papers in the case, and the mere failure to rewrite it in the body of the charge was not, under the circumstances, sufficient to authorize a reversal of the judgment. (The State v. Mortimer, 20 Kan. 93.) The state’s election in such cases, however, may be, and usually is, communicated to the jury in other waye than by instructions. Counsel may make the announcement, or the court may do so by mere oral statement, if that method be preferred, and usually the jury are advised of the election at the time. After an election has been made the duty of the jury in the premises is proper matter of law to be explained by instructions, as was done in this case ; but the substantive content of the election itself is not an essential ingredient of the instructions. Its omission from the charge will not render the latter faulty, and if it be written it may be read to the- jury by the court at the time the charge is delivered without violating any of the defendant’s legal rights.
On the trial appellant was not sworn as a witness in his own behalf. No request was made of the court to instruct the jury that the neglect or refusal of appellant to testify should not be considered by the jury, and should not raise any presumption of guilt, or be construed to affect his innocence or guilt (Gen. Stat. 1901, §§5657, 5658), and no such instruction was given. ’ It is now urged that the court should have instructed on this subject without request.
Under section 5681 of the General Statutes of 1901 the court is required to state to the jury all matters of law which are necessary for their information in-giving their verdict. Aside from such matters many others may appear in the trial of a criminal case of great importance to the defendant, but not of a character imperatively demanding exposition in order to afford opportunity for the return of a just verdict. The instructions contemplated by the statute are those which are indispensable. Those of the other class are monitory only, and, although a refusal to comply with a seasonable request that they be given is error, the law cannot say that a verdict reached without their guidance, when no request was made, is necessarily vitiated. The peculiar phraseology of the statutes relating to the privilege of the accused to waive his right to become a witness in his own behalf, and of the statute relating to the duty of the court in charging the jury, indicates that instructions on the subject should be assigned to the cautionary class. It cannot be presumed that the jury will certainly go outside the evidence introduced for the purpose of determining guilt. The prosecuting attorney may not refer to the defendant’s failure to testify at all, and the court itself may not consider that fact. Hence, it is reasonable to conclude that all reference to the matter may properly be omitted unless the accused otherwise desire. The weight of authority seems to favor this view. (11 Encyc. Pl. & Pr. 350.)
The questions raised by such other of the assignments of error as might require consideration have been determined adversely to appellant by previous decisions of this court, and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Mason, J.:
F. F. Greene sued A. T. McAuley on two notes for $130 each, executed by McAuley to H. E. Stearns, and assigned in writing by Stearns to the plaintiff. Defendant admitted the execution and assignment of the notes, but in his answer alleged that they belonged to Mrs. Laura Sims Thomas ; that plaintiff did not own them, and had no right to maintain an action upon them. The case was submitted to a jury upon the issue of the ownership of the notes and a verdict was given for the defendant. A judgment followed from which the plaintiff prosecutes error. The principal, and indeed the only substantial, question involved is whether the evidence given in behalf of the defendant had any tendency to establish a defense.
The plaintiff, while denying that any person except himself had any interest whatever in the notes, contends that the case is controlled by the principle that an action upon a note may be maintained by one who holds the legal title, although without beneficial interest, and that, as he had possession of the notes and they were assigned to him by the payee, he was entitled to enforce their payment, whatever claim any third person might have had against him with reference to them. The defendant claims that the principle invoked does not apply to the facts of the case. The circumstances out of which the litigation grows are peculiar and an understanding of the precise question of law presented requires that they be stated in some detail.
In 1895 Greene signed a bond as surety for Mrs. Thomas in a proceeding in error in the court of appeals brought to reverse a money judgment rendered against her in the district court. To indemnify him against any loss by reason of his having signed such bond Mrs. Thomas authorized him to control a quarter-section of land owned by her, and to retain the rents for his security until he should be released from liability. Soon afterward she made a further agreement with him, in consideration of his advancing her money for the payment of taxes, that if she should “win” her case in the appellate court she would deed to him an eighth interest in this quarter-section. In pursuance of the arrangement described Greene, in his own name, rented the land for the season of 1897 to Stearns. Stearns sublet it to McAuley and received from him for the year’s rent the two notes in issue. In October, 1898, a decision was rendered by the court of appeals modifying the judgment against Mrs. Thomas by reducing the amount, but not sustaining all her contentions. Greene was relieved from further liability upon the bond, and in the following January he and Mrs. Thomas had a settlement, it being found that she was indebted to him in the sum of $125, for which she gave him a demand note, which was paid January 31. So far there is a substantial agreement as to facts ; but there is a radical conflict as to another branch of the settlement referred to. Greene testified that it included an agrément that, in lieu of the one-eighth interest in the land which was to have been deeded to him in the event of Mrs. Thomas’s winning her case in the court of appeals, he was to have the rent of the place for 1897, and that, as his tenant, Stearns, had sublet to McAuley and taken his notes, Greene should get these notes from Stearns in satisfaction of the debt owed by Stearns for the year’s rent, and should retain them as his own. Mrs. Thomas testified as a witness for defendant that the note for $125 given by her to Greene was in full settlement of all demands whatsoever; that at the time of its execution he agreed that as soon as this note should be paid he would get the notes from Stearns and give them to her ; and that therefore she was the real owner of the notes, and that Greene wrongfully detained them from her. On May 2, 1899, Stearns assigned the notes to Greene in discharge of his liability under his contract to pay rent.
There was evidence that Mrs. Thomas had agreed with McAuley to accept $130 in full satisfaction of both notes. It is not claimed that there was such a valid consideration for this agreement as to make it enforceable against the owner of the notes. Apparently the evidence was offered not for the purpose of reducing the amount of any judgment that might be rendered in favor of the plaintiff in this action, but to show wherein the defendant would suffer by being required to make payment to Greene rather than to Mrs. Thomas, and thereby to give him standing to question Greene’s right of recovery. The jury accepted the testimony of Mrs. Thomas and rejected that of Greene, as is shown by their general verdict and by a number of special findings. The question presented therefore is this : Assuming that Mrs. Thomas’s statements are true, and that Greene, after promising that he would get the notes from Stearns and give them to her, procured Stearns to assign them to him, and then wrongfully kept them, having obtained them from Stearns in lieu of the payment of rent which was owing for the use of land belonging to Mrs. Thomas, but which had been made payable to Greene in order to secure him against a liability from which he had no\y been released, do these facts constitute a defense in an action brought against the maker of the notes by Greene not only without the consent, but against the objection, of Mrs. Thomas?
In jurisdictions where, as in Kansas (Manley v. Park, 68 Kan. 400, 75 Pac. 557; Graham v. Troth, 69 id. 861, 77 Pac. 92), the holder of the naked legal title to a promissory note may sue upon it, even though he may be under obligation to account to some third person for the entire proceeds, it is often said that in such an action the defendant cannot challenge the plaintiff’s right to maintain it, except by a showing of bad faith in the transaction. (Dyer v. Sebrell, 135 Cal. 597, 67 Pac. 1036, and cases cited; City Bank of New Haven v. Perkins, 29 N. Y. 554, 86 Am. Dec. 332.) In the decisions there is a somewhat singular lack of explanation, or illustration, as to just what might be considered bad faith in this connection. Doubtless the phrase is sometimes used with reference to a merely colorable transfer of title by the real owner to a stranger for the purpose of embarrassing the maker of the note in his defense (Marvin v. Ellis, 9 Fed. [C. C.] 367); but this ex ample hardly meets the requirements of the situation, for it is also said that upon a showing that the plaintiff is only a nominal party, acting for the benefit of the real owner of the note sued upon, the defendant may avail himself of any defense that he could have interposed if he had been sued by the latter; and that his rights are protected, not by allowing him to question the plaintiff’s capacity to sue, or by requiring the person finally interested to be made a party, but by permitting him to make his defense on the merits against the formal plaintiff. (Cottle v. Cole & Cole, 20 Iowa, 481; Salmon v. Independent Rural School Dist., 125 Fed. [C. C.] 235; Village of Kent v. Dana, 100 Fed. 56, 40 C. C. A. 281; Dickinson v. Bull, 72 Ill. App. 75.)
One instance of. a transfer in bad faith is presented in Sheldon v. Pruessner, 52 Kan. 579, 35 Pac. 201, 22 L. R. A. 709, where its purpose was to defeat the taxation of the note involved. Another is suggested in Sheridan v. Mayor, 68 N. Y. 30, where it was said: “It is not a. case of mala fide possession which the defendant can avail itself of, as if a thief should bring an action upon a promissory note which he had stolen.” In Daniel on Negotiable Instruments (vol. 2, 5th ed., § 1191) it is said :
“If it were shown that the plaintiff, upon suing upon a note payable to bearer or indorsed in blank, has no interest in it, and in addition that he is suing against the will of the party beneficially interested, he could not recover, as his conduct would be in bad faith.”
In support of this statement the author cites Towne v. Wason, 128 Mass. 517, the syllabus to which reads :
“It is a good defense to a promissory note that the plaintiff, although in possession of the note, has no interest in it, and is prosecuting the action, not for the benefit of the person beneficially interested, but against his objection.”
In that case the defense made was that the plaintiff had wrongfully and without the consent of the owner obtained possession of the note sued on, which was indorsed in blank, that he had no title to it and never had had any, and that he was not authorized to sue in behalf of the owner — in effect that he had stolen, the note ; and the ground of the decision was that under the facts stated the plaintiff had no authority to receive payment for the note, and a payment to him would not have released the maker. , This suggests what we conceive to be the true rule, of general, if not of universal, application, that so far as affects the question of the right of the plaintiff to maintain the action the only inquiry open to the defendant is whether the plaintiff has such title to the note that a payment made to him would be a complete protection to defendant from any further liability. (Sturgis v. Baker, 43 Ore. 236, 72 Pac. 744; Brown v. Powers, 53 Hun, App. Div. 251, 65 N. Y. Supp. 733; Hays v. Hathorn et al., 74 N. Y. 486.) Any investigation which goes further than this merely involves questions between the plaintiff and other claimants of the note or its proceeds, and with these the defendant has no concern. It was said in City Bank of New Haven v. Perkins, 29 N. Y. 554, 566, 86 Am. Dec. 332 :
“The defendant claims no title to the paper, and does not pretend to have any interest in it, except as a promisor, liable to pay to any proper holder. There is no party before the court who has any legitimate interest in questioning the plaintiff’s title, or who has, as it seems to me, under the circumstances of this case, any right to be heard on that question. . . . The defendant stands here, therefore, as a mere volunteer, in behalf of others not before the court, and who make no claim on their own account. ... It will be time enough to determine whether any other person has a better title, when such person shall come before the court to claim the bills in question, or their proceeds, from the plaintiffs.”
Applying the test suggested to the present case, the question is, Would MeAuley have been completely protected in making payment of the notes to Greene? True, according to the contentions of defendant, when Greene settled with Mrs. Thomas he agreed to procure the notes from Stearns and turn them over to her ; and nothing was said as to his taking an assignment to himself rather than to Mrs. Thomas. Yet the case is not the same, for instance, as if an agent commissioned to buy negotiable paper for his principal had wrongfully taken title in his own name; for here it required no authority from Mrs. Thomas, to be given at the time of the settlement, for Greene to collect the rent from Stearns, or for Stearns to pay Greene. Stearns having originally contracted to pay Greene and not having contracted to pay any one else, he might have paid him in cash or by any other method satisfactory to Greene. In fact, he settled his debt by assigning the MeAuley notes to Greene, the person to whom, so far as he knew or had occasion to inquire, he was indebted.
The fact that the notes here sued upon were given by MeAuley to Stearns for the rent of Mrs. Thomas’s land is merely incidental, and has no bearing upon the decision of the controversy. They might be regarded as having been given for any other consideration without affecting the rights of the parties. Greene obtained them in exchange for, or in satisfaction of, a claim of which Mrs. Thomas was the beneficial owner, having been enabled to do so by her voluntarily al lowing such claim to be made payable to him. She never acquired possession of, or legal title to, these notes. The effect of the transaction, from her standpoint, was merely to charge Greene as trustee for her benefit with respect to them. The situation presented is closely analogous to that which would have arisen if Mrs. Thomas had assigned and delivered notes originally payable to herself to Greene as collateral security and he had retained them after the full satisfaction of the principal obligation to secure which they had been transferred to him.
It is said by Mr. Randolph in his work on Commercial Paper (vol. 3, 2d ed., §1465), and also in his article on that title in the Cyclopedia of Law and Procedure (vol. 7, pp. 1033, 1034),that as a general rule the maker of a note should pay to one holding it in pledge only the amount of the holder’s debt, and should pay the balance to the owner. Two cases only are cited in support of the text, Mower v. Stickney, 5 Minn. 397, (Gil. 321), and Wofford et al. v. Ashcraft et al., 47 Miss. 641. In the former it was held that the maker of a note who with knowledge of all the facts paid it in full to one to whom it had been pledged, but who had suffered it to be taken in execution by a sheriff upon a writ running against the pledgor, was not protected beyond the amount of the pledgee’s claim. In the latter both the pledgor and the pledgee of an obligation were parties to an action for its enforcement, and it was held that payment should have been directed to be made to the pledgee only to the extent of his interest, the remainder to go to the pledgor. In neither case was there a denial that under ordinary circumstances the maker of a note may pay it in full to a holder to whom it had been assigned as security for a debt of a less amount. On the other hand, it is held that one to whom negotiable paper has been assigned as collateral security may as against the maker maintain action upon it even after the full discharge of the debt secured, subject to any defense that might be made against the equitable owner. (Logan v. Cassell, 88 Pa. St. 288, 32 Am. Rep. 453; 2 Dan. Neg. Inst., 5th ed., § 1192; 3 Rand. Com. Pap., 2d ed., § 1465.)
The peculiar feature of the present case is that the equitable owner of the notes objects to the holder's exercising further control over them, and his possession, as to her, is wrongful. Of course, the holder of a note unlawfully acquired has no authority to receive payment, or to sue upon it, though it bear a genuine indorsement to himself. This might happen, for example, if one holding a note made payable to himself were to sell and deliver it without further assignment, and were then to regain possession of it by theft. In such a case he would have neither legal ownership nor rightful possession. A payment made to him would afford no protection, and a showing of the facts would constitute a good defense to an action brought by him ; but where one has rightfully obtained possession of a note and the legal title is actually vested in him, though he may be under an obligation to transfer it to another, so long as these conditions exist and no effective measures are taken by the equitable owner to enforce his rights, the payee is justified in dealing with the holder, and a payment made to him is a bar to any further demand. This would apply where the pledgee of paper deposited with him as collateral security retains it after the satisfaction of the debt secured, and it applies here. McAuley would have been completely protected by a payment to Greene, who therefore had capacity to maintain the action.
Just how in such cases the interests of other claimants than the holder of the paper involved may be safeguarded is not a matter for present determination. It has been held that where an action is brought by the holder of the legal title to a note any one beneficially interested in the proceeds may intervene for .his own protection (Gradwohl v. Harris, 29 Cal. 150; Illinois Conference v. Plagge, 177 Ill. 431, 53 N. E. 76, 69 Am. St. Rep. 252); but we are not required to decide whether Mrs. Thomas might have intervened in the present case. There was no necessity for settling in this proceeding any dispute between her and the plaintiff, for their rights with respect to each other remain unaffected by its result. Such intervention was not necessary for the determination of whatever controversy there may have been between Mrs. Thomas and the defendant, because any such controversy could have been effectually litigated without her being a party. Having herself clothed Greene with authority to enforce in his own name the payment of a debt owing to her and to give full quittance to the debtor, she is concluded by any judgment rendered in a suit brought by him for its collection. (Wetmore v. San Francisco, 44 Cal. 294.) Any inconvenience that may result to her from an application of this principle is a risk she assumed in placing him in such a situation that he could maintain the action.
The agreement of Mrs. Thomas to accept a part payment for the whole does not affect the matter. It was supported by no good consideration and was open to repudiation at any time. It was incapable of enforcement and could not be made the foundation of any legal right. The plaintiff was equally entitled to recover the full amount due upon the notes whether he owned them absolutely, or was required to account for their proceeds as a trustee. Nor was it material that Mrs. Thomas did not countenance the bringing of the action. It may seem something of a hardship that the defendant is not allowed to take advantage of leniency that the beneficial owner of the notes is willing to extend to him by forgiving a part of the debt or by forbearing to sue upon it; but to cut him off from this privilege is not to deny him any right that the law can recognize. He stands unconditionally charged with the immediate payment of the full amount, and the requirement that he respond to this obligation does him no legal wrong.
•As the important facts of the case are embodied in the special findings a new trial is unnecessary. The judgment is reversed, and the cause remanded with directions to enter judgment for the plaintiff as prayed for in his petition.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J. :
A vendor sold to a purchaser a tract of land and agreed to convey and assure it in fee simple, clear of all encumbrances by a good and sufficient warranty deed, and an abstract of title The vendee paid a portion of the purchase-money in cash and agreed to pay the balance at stated times. The contract was in writing. The vendor was in peaceable possession of the land and as soon as the contract was executed he delivered up possession to the vendee, who has ever since occupied the premises without disturbance and without question of his title. Default having been made in the final deferred payment the vendor made a tender of proper deeds and of documents purporting to be abstracts of title to the land. No objection was made by the vendee to the deeds, the abstracts, or to the title to the land, but the money due was not paid. The vendor then brought an action for the purchase-price of the land and asked that the contract be foreclosed as security for its payment. On the trial he proved substantially the foregoing facts. The vendee answered by alleging that the vendor did not have the fee-simple title to the land, and could not convey such a title; that he was ready, able and willing to pay the purchase-money demanded on receiving a conveyance of the title agreed upon, but that the plaintiff was unable to comply with the terms of the contract,- and by reason of his failure to do so the vendee had been damaged in the sum of $5000, for which he prayed judgment. The vendee demurred to the plaintiff’s evidence. The demurrer having been overruled, he elected to stand upon it, and judgment was rendered for the plaintiff. The question for determination is the legal propriety of such judgment.
The defendant’s answer affirmed the contract. His position was that he would keep what he had, remain in possession of the land, and still refuse to pay. The authorities declare such an attitude to be unconscionable.
In the absence of fraud, insolvency of the vendor, or other special circumstance, a vendee of land who has been given possession under a contract of sale, and whose possession has not been disturbed, cannot resist payment of the purchase-price on the ground of a lack of title in the vendor unless he rescind the contract and restore possession to the vendor.
In the case of Reeve v. Downs, 22 Kan. 330, 334, this court said:
“If the vendee receive possession under the contract, and insist on maintaining such possession, he will not be permitted to deny his liability on such note. In the case of Harvey v. Morris, 63 Mo. 475, the court says : ‘Where a purchaser of land, by virtue of the contract of purchase, is put in possession of the land purchased, he cannot resist the payment of the purchase-money without offering to restore the possession thus acquired by him to the vendor. He can not be permitted to oecupy, possess and enjoy the profits of the land bought, and at the same time be allowed to withhold the price agreed to be paid.’ To' a similar effect is the case of McIndoe v. Morman, 26 Wis. 588, 7 Am. Rep. 96. See, also, Brock v. Hidy, 13 Ohio St. 306.”
In the case of McIndoe v. Morman, Chief Justice Dixon said :
‘‘But the defendant is in possession and enjoyment of the premises, never having been evicted or disturbed, and claims the right to continue therein by virtue of the contract, and still refuses to pay the price. The judgment of the circuit court establishing his right thus to remain in the possession and enjoyment leaves him there, and justifies his refusal to pay the consideration money as he has agreed. The case of Taft v. Kessel, 16 Wis. 273, is clear authority that this cannot be done. The remedy of the purchaser, as there decided, where the title of the vendor fails or he is unable to make conveyance as stipulated by the contract, is to rescind the contract, or offer to, and to restore the possession, in which case he may recover the purchase-money advanced and the interest, together with the value of his improvements, deducting therefrom such sum as the use of the premises may have reasonably been worth ; and, if necessary for his protection, the court will also provide by the judgment that the possession be not surrendered until the amount so recovered shall have been paid or otherwise secured to his satisfaction. If, on the other hand, the purchaser chooses not to rescind, but to retain possession under the contract, he can do so only upon condition that he pays the purchase-money and> interest according to the contract. In the latter case,, or rather when the purchaser does not elect to rescind,, it is considered that he is willing to receive such title as the vendor is able to give, and content with the personal responsibility of the vendor upon his covenants in case the title actually fails and he is afterwards dispossessed. These propositions are clearly established by Taft v. Kessel, as well as the following, in addition to the cases there cited : Worthington v. Curd, 22 Ark. 277; Garven v. Cohen, South Carolina Law and Eq. R. (Richardson, 13 Law and 12 Eq. 1860-1866), 153 (13 Rich. Law, 153); Helvenstien v. Higgason, 35 Ala. 359; Wiley v. Howard, 15 Ind. 169.”
In the case of McLeod v. Barnum, 131 Cal. 605, 608, 63 Pac. 924, it was said :
“The law will not allow a vendee to obtain possession of property under a contract of sale, and, while in possession, to defend against an action for the purchase-money upon the ground of the title being defective. (Peabody v. Phelps, 9 Cal. 213; Hicks v. Lovell, 64 Cal. 18, 27 Pac. 942, 49 Am. Rep. 679; Gross v. Kierski, 41 Cal. 112.) In this case the plaintiff seeks to foreclose upon the property mortgaged, and defendant seeks to retain possession and prevent the foreclosure upon the ground that the title of the vendor was and is defective. If the title could be tried in this way and should be found defective, the defendant might retain possession forever, without paying the amount she agreed to pay or restoring the plaintiff to his former rights.”
In the case of Sanderlin v. Willis, 94 Ga. 171, 21 S. E. 291, Lumpkin, J., said :
“We recognize the rule that the purchaser of land who enters into possession under a warranty deed or a bond for titles cannot, before eviction, defeat an action for the purchase-money, unless there has been fraud on the part of the vendor, or the latter is insolvent, or there is some other ground which would in equity entitle the purchaser to relief. This rule seems to be well settled by the cases of McGehee et al. v. Jones, 10 Ga. 127; Watson v. Kemp, 41 Ga. 586; McCauley v. Moses, 43 Ga. 577; Smith v. Hudson, 45 Ga. 208; Booth v. Saffold, 46 Ga. 278, and numerous other decisions of this court.”
In Wyatt v. Garlington, 56 Ala. 576, the syllabus reads :
“A purchaser of land, holding his vendor’s bond for title, and remaining in undisturbed possession, can not resist the payment of the purchase-money, on ac count of a defect in the title, without showing that the vendor is insolvent, or unable to respond in damages.”
In the opinion of the court it was said :
“Wyatt, the purchaser, has never been disturbed in the possession of the lands he bought from Garlington, so far as we are informed. There is neither averment nor proof that Garlington is not able to respond in damages, if he should not be able to make a good title. The cross-bills do not seek a rescission. The proof strongly shows that Garlington has a good equitable title, with such length of independent, separate enjoyment as to toll all adversary right of entry. The cross-bills utterly fail to show any right in Wyatt to resist the relief sought by Garlington, that is based on an alleged defect in his (Garlington’s) title. McLemore v. Mabson, 20 Ala. 137.”
In the case of Dahl v. Stakke, 12 N. Dak. 325, 334, 96 N. W. 353, the opinion says :
“It is true that a total failure of title in many cases is not ground for resisting payment of the purchase-price, if the purchaser remains in possession of the premises, and is not threatened with dispossession, and does nothing towards protecting himself against such adverse title, and is not in any way disturbed or damaged by such outstanding title, it not being hostilely asserted against him. The grounds upon which such cases turn are that such possession may ripen into a good title by the lapse of time, and that the law will not countenance a purchaser in accepting and holding possession and title which are not attacked, and to perfect which the purchaser has done nothing, and at the same time refuse to pay for the land.”
Many other cases are of like import. Among them are Young v. Figg, 100 N. W. (Neb.) 311; Worley v. Nethercott, 91 Cal. 512, 27 Pac. 767, 25 Am. St. Rep. 209; Sievers v. Brown, 34 Ore. 454, 56 Pac. 171, 45 L. R. A. 642; Haralson v. Langford, 66 Tex. 111, 18 S. W. 339; Mudd v. Green, 14 S. W. (Ky.) 347; Lynch and another v. Baxter and wife, Adm’x, 4 Tex. 431, 51 Am. Dec. 735; Tompkins v. Hyatt, 28 N. Y. 347; Child v. Sheriff et al., 107 La. 270, 31 South. 751; Mallard v. Allred, 106 Ga. 503, 32 S. E. 588.
The vendee claims that the vendor did not tender deeds conveying title in fee simple free of encumbrances and abstracts exhibiting such a title, and hence that the vendor has not taken the preliminary steps essential to the maintenance of his action. This claim, however, involves an attempt on the part of the vendee to avail himself incidentally of a defense which he could not make in chief. He was admittedly in default in the payment of the purchase-money due ; the vendor did tender to him deeds in due form and documents purporting to be abstracts of title; no objection was made to the deeds, to the abstracts, or to the vendor’s title, and no offer was made to rescind the contract or to surrender possession of the land. Under these circumstances the .vendor had the right to believe that the vendee was satisfied with his conduct, and to sue for his money without further performance or further offer to perform.
The judgment of the district court is affirmed.
All'the Justices concurring.
(79 Pac. 502.) | [
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The opinion of the court was delivered by
Greene, J. :
The litigation had its origin in the application of plaintiff in error to the probate court of Lyon county to be appointed administrator of the estate of J. Hardin Baird, deceased. Baird, a resident of Lyon county, died leaving a will in which he designated Howard Dunlap as his executor. It appears that he left an estate of $45,000 or $50,000 undisposed of, and it was to administer this estate that the plaintiff in error made his application. The only relatives of the deceased living in Kansas were Mrs. E. J. Curtis, a first cousin, and the applicant, a second cousin, both of whom reside in Lyon county. Mrs. Curtis refused to accept the appointment. The plaintiff in error contended that after the refusal of Mrs. Curtis he was the next of kin, within the meaning of that expression as used in our statute, and, as a matter of law, entitled to such appointment. His application was resisted by some of the heirs. It may be said, however, that the evidence introduced was generally for the purpose of showing the relationship of the applicant to the deceased. The court made findings and rendered judgment thereon as follows:
“And now, on this 29th day of May, a. d. 1903, pursuant to due and legal notice given to all parties interested, and all parties being present in person or by attorneys, the applications of Mr. Morrow D. Brown and of Mrs. E. J. Curtis to be appointed administrator of the estate of J. Hardin Baird, deceased, come on to be heard, and for convenience both were submitted and considered by the court together ; and all parties having announced themselves ready for trial, the court proceeded to hear the matter; each party thereupon presented their evidence, respectively; the matter was argued by counsel and submitted to the court for decision ; . . . and being fully advised in the premises, finds that . . . these two applicants are the only relatives at law of said J. Hardin Baird who reside in the state of Kansas or Lyon county. Pending said trial, the applicant E. J. Curtis withdrew her application and requested the court to appoint Mr. Howard Dunlap, who is now the executor of the nuncupative will of said J. Hardin Baird.
“The court further finds that the character and condition of the said estate is such as to require a person of special qualifications to administer upon said estate, so as to best subserve the interests of the parties interested therein, and he did not'think applicant Morrow. D. Brown was such a person, but on the contrary finds him to be an unsuitable person to administer this particular estate.”
The court thereupon appointed Howard Dunlap administrator. From the finding and judgment thus rendered the applicant prosecuted error by a bill of exceptions to the district court. That court affirmed the judgment and orders of the probate court.
Section 2817 of the General Statutes of 1901, which provides for the appointment of executors and administrators, reads:
“Administration of the estate of an intestate shall be granted to some one or more of the persons hereinafter mentioned, and they shall be respectively entitled thereto in the following order, to wit:
“First, His widow, or next of kin, or both, as the court may think proper ; and if they do not voluntarily either take or renounce the administration within thirty days after the death of the intestate, they shall, if resident within the county, upon application of any one interested, be cited by the court or judge for that purpose.
“Second, If the persons so entitled to administration are incompetent, or evidently unsuitable for the discharge of the trust, or if they neglect, for twenty days ■after service of said citation, without any sufficient cause, to take administration of the estate, the court shall commit it to one or more of the principal creditors, if there be any competent and willing to undertake the trust.
“ Third, If there be no such creditors, and the court is satisfied that the estate exceeds the value of one hundred dollars, the court shall commit administration to such other persons as it shall deem proper.”
Whether the plaintiff in error was the next of kin, and therefore entitled, as a matter of law, to be appointed administrator of the estate, we are not called upon to decide. The court found that he was not a suitable person to administer the estate, and refused to appoint him. Such finding is conclusive unless we can say that there was no substantial evidence to support it. The estate was valued at about $75,000, a part of which had been disposed of by will. Howard Dunlap was the executor of such will and was at the time administering that portion of the estate. The court found that Howard Dunlap was especially qualified to administer the estate and that he was a man of large business experience. The evidence tends to prove that plaintiff in error was a young physician twenty-six years of age, who had been practicing medicine four years ; that he came to Kansas and settled at Emporia for the purpose of practicing his profession four months previous to his making application to be appointed administrator of this estate. There was no evidence tending to show that he'had had any experience whatever in business or financial matters. He was upon the witness-stand and testified before the probate judge. These facts were sufficient for the probate court to form a reasonably correct opinion as to his suitableness for the office he sought, and it having found against him on such question, this court is bound by such finding.
The judgment of the coui’t below is affirmed.
All the Justices concurring. | [
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