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The opinion of the court was delivered by
Smith, J. :
The claim that the rights of plaintiff below, Elizabeth Holderman, were concluded by the decree entered in the United States circuit court in the suit of Ford Harvey against R. T. Battey cannot be sustained, The general rule that strangers to a suit are not bound by the decree therein is not combated by counsel for defendants in error. They insist, however, that she was a party by representation; that when Morton Albaugh, receiver, and two other creditors interested in the trust came into the suit and were made defendants she became privy to the proceeding through them, and through her trustee, who was a party in the first instance. Much stress is laid on the allegation in the bill filed by Ford Harvey against Battey in the federal court, in which he stated :
“This bill is filed on behalf of complainant and all other creditors likewise situated who desire to avail themselves thereof.”
It must be remembered that a final decree in the equity suit was entered on January 8,1900. On May 25, 1901, the present action was instituted. The petition avers that on March 20, 1900, when the trustee paid plaintiff $577.79 out of the proceeds of Martin-dale’s property, sold by him, she did not know of the suit of Ford Harvey against R. T. Battey, or of the fraudulent conspiracy of defendants ;■ that she learned of the same within sixty days before this action was begun.
After an exhaustive discussion of the effect of decrees and judgments on parties not actually before the court but represented by others, Pomeroy', in his work on Remedies and Remedial Rights, second edition, section 400, sums up the result of his investigation as follows :
“If, however, the prior suit has been terminated, and the question arises in a subsequent controversy, and involves the conclusive effect of the former adjudication upon the class of persons represented by the actual parties, in order that such judgment should be conclusive upon any particular person of the class, either in his favor or against him, there must have been the previous formal act on his part of applying to the court, and an order thereon making him a party to the action, so that his name should have ap peared in some manner upon the record; or it must be shown that he had notice of the proceedings, and an opportunity to unite in them, of which he neglected or refused to avail himself. These views and conclusions reconcile the decisions which at first sight appear to be conflicting, and they present a practical and harmonious rule of procedure.”
Elizabeth Holderman was so far before the court in the case of Harvey against Battey that if she had neglected, after reasonable notice, to appear and establish her claim, or make demand for other desired relief, her rights might have been concluded in a subsequent action. (Stevens v. Brooks, 22 Wis. 695.) Not being a party to the suit, and wholly ignorant of its pend-ency and final disposition, it would be an unwarranted and unjust extension of the rule to say that she was represented in any way, or that her rights in this action were affected in any degree.
It is argued that the petition does not contain allegations sufficiently specific to show that there was fraud in obtaining the decree of the federal court: that no charge of bad faith is made to Albaugh and the two banks which came in and were made defendants. The gravamen of the charges is against Battey, Lambert, Hood, and Newman. The conspiracy originated with them, and was consummated to the financial profit of the last two, equaling the difference between the actual value of the property, alleged to be $141,500, and the amount they paid for it, to wit, $41,000.
A reference to the averments of the petition, summarized in the statement, will disclose that Lambert and his associates, desiring to obtain the property in the trustee’s hands at a price much below its value, and for much less than it could have been sold to other purchasers, used the case of Harvey against Battey, pending in the circuit court of the United States, as an instrument in furtherance of their wrongful purposes, by concealing the fact that complainant had no interest in the suit when the final decree was entered, having assigned his claim to Hood and Newman, and by deceiving the court into the belief that Hood’s bid of $41,000 was the highest obtainable. It appears directly from the allegations of the petition that, if buyers had been encouraged to bid on the land by having abstracts furnished to them showing conveyances down to the date the trustee took title, and had been afforded sufficient time for their examination, and if the time when bids were to be received had been publicly known, the property would have sold for a much higher price than Hood paid for it.
The alleged misconduct of Battey is abhorrent to every principle of law governing persons engaged in the administration of a trust, where good faith and scrupulous honesty are always demanded. It was his first duty to use every exertion to sell the trust property for the highest price, and to that end invite bidders to compete with one another, giving them every facility to become acquainted with the title of the real estate in his hands and to afford them ample time and opportunity to bid. This duty he not only neglected, but it is alleged that he corruptly conspired with others that they might reap a profit from the estate in his hands at the expense of the beneficiaries in the trust. Courts would justly forfeit public confidence if they should fail to exercise watchful care over the rights of confiding beneficiaries and neglected to compel unfaithful trustees to make complete reparation to those injuriously affected by their recreant acts.
Again, it is averred that Lambert and the firm of lawyers with which he was connected were attorneys for Battey, the trustee, and received compensation therefor. This being true, it was their duty, as counsel for the trustee, to serve their client, and through him the cestuis que trust, faithfully, to the end that the trust property should bring all it was worth. The petition charges:
“But notwithstanding the duty of said defendant R. T. Battey faithfully and honestly to execute said trust in the manner above set forth, and to sell and dispose of said property for its full value and for the highest and best price that could be obtained for the same, and notwithstanding the duty of said defendant Isaac E. Lambert faithfully and honestly to assist said defendant Battey so to execute and discharge his trust, and to render all assistance possible to effect a sale of said property for its full and actual value and for the highest and best price that could be obtained for the same, and thus enable the creditors of said defendant Martindale, including this plaintiff, to obtain payment of their debts in full; yet the said defendants R. T. Battey and I. E. Lambert, in violation of their said duty, illegally confederated and conspired with defendants Calvin Hood and Geo. W. Newman for the purpose and object and with the intent that said Calvin Hood and Geo. W. Newman might make a purchase of all of said property from said R. T. Battey, as trustee, for a sum grossly inadequate and much less than its actual value, and for a much less sum and price than could have been obtained for said property if an honest and fair and just offer and effort had been made to sell the same to the highest and best bidder and for the highest and best price that could be obtained therefor ; and to prevent a fair and honest competition for the purchase of said property, and to enable said defendants Hood and Newman to purchase the same at a grossly inadequate price and at a sum much less than its actual value, and much less than it could have been sold for if said defendants Battey and Lambert had faithfully, honestly and intelligently performed and discharged their said respect ive duties ; and in order to carry out said conspiracy and unlawful combination, they, the last-named four defendants, did do, perform, take part in and consummate the following actions.”
The specific acts of fraud set out in the statement follow. A tort-feasor is liable to an injured party if he participate in a wrong the effect of which is to damage the former; the extent of individual participation or of expected benefit is immaterial; each of several wrong-doers is liable for the entire damage.' We are clear that the allegations of a conspiracy to defraud and its consummation are sufficiently specific to constitute a cause of action against defendants.
It is insisted by counsel for defendants in error that the remedy of plaintiff was in equity, to set aside the decree of the federal court in the case of Harvey against Battey, and for an accounting with the trustee, and that this is especially true because the petition herein shows that the trust is still open and in the process of administration. As before stated, plaintiff below was not a party to the equity suit in the federal court, either personally or by representation. She charges that after Harvey assigned his interest as complainant it became a collusive proceeding, wherein the court, kept in ignorance of the fraudulent purpose of the parties, became the innocent instrument of their wrong-doing. We have no doubt that if plaintiff had been a party to the decree, proof of the allegations of the petition in the present case would move the federal court to annul it promptly, if plaintiff should see fit to attack it for fraud. She has sought a remedy at law, however, which is adequate. In section 690, volume 2, of Beach on Trusts and Trustees, it is said:
“While the cestui qve trust has a right to follow the trust property and to hold the possessor as a constructive trustee, wherever he is not a purchaser for a valuable consideration and without notice, yet he is not bound to accept that remedy. He may hold the trustee to a personal liability. Where the trustee has conveyed the property to an innocent purchaser for a valuable consideration, and has thus put it beyond the reach of the cestui que trust, his remedy is simply in an action against the trustee. It has been held that the cestui que trust may elect to hold original or substituted property, when he can identify the trust fund, either in its original or in a substituted form, or he may hold the trustee personally liable, but if he cannot identify the property, he must rely on the personal liability of the trustee. Cestui que trust, when forced to rely upon his trustee’s personal liability, occupies a position toward the estate of the trustee which is no better, but is identical with that of a simple contract creditor.”
To the same effect see Sherwood v. Saxton, 63 Mo. 78; Smith et al. v. Frost, 70 N. Y. 65; Lathrop v. Bampton, 31 Cal. 17, 89 Am. Dec. 141.
The present action does not aim at an accounting in equity between plaintiff and the trustee, or between plaintiff and the other defendants. The real estate is alleged to have been transferred to bona fide purchasers. While plaintiff might have proceeded in equity and compelled defendants to account for the value of the property, she chose a concurrent remedy, which the fraudulent acts of defendants entitled her to adopt. (Sherwood v. Saxton, supra.)
An action in tort for damages may be maintained against a trustee who has fraudulently conspired with other persons to make a sale of the trust property in his hands, at less than its value and has so sold it, to the injury of a beneficiary in the trust. All parties advising, assisting and aiding the trustee to carry out his wrongful purposes are also liable to plaintiff in the same action.
The claim that the trust is still open cannot be sustained. It is alleged that the trustee never made any report to any court, or to the creditors. The trustee was not appointed by a court, but by a judge in his individual capacity, at the request of Martindale and his creditors, under a written agreement. There was no suit pending at the time. He was not required by the terms of the stipulation to report to any creditor, or to Martindale, although we have no doubt he could be compelled to do so should he refuse. By the terms of his appointment the property received by him from Martindale was to be sold and converted into money.as speedily as possible, and the proceeds applied to the payment in full of Martindale’s debts, and, if the proceeds should be insufficient, then .to the payment of said debts, jpro rata, in equal proportions, without preference. It. was stipulated that dividends were to be paid by the trustee on the claims of creditors as speedily and as often as the proceeds would admit. Creditors were allowed sixty days to present their claims ; if not controverted, they were to be paid. If disputed by Martindale, or any of his creditors, their legality was to be determined by the judgment of a court.
In the bill of complaint filed by Fox’d Harvey against Battey in the federal court on December 20,1899, the allegations of which, by x'eference, are made a part of the petition in the present action, it was averred that “all the debts held by the parties to said agreement,”' the instrument creating the trust, “have not yet been established and detei'mined, but some of them are in controversy and unsettled as to amount.”
The creditors were allowed sixty days from the date- of the trust agreement, unless further time should be granted by the trustee, to present their claims and demands against Martindale for allowance. This agi-eement was signed on June 7, 1899. It appears that -the trustee sold all the property held by him and converted it into money on or about January 8, 1900. He paid plaintiff $577.79 out of the proceeds on March 20, 1900.
This action was begun in May, 1901, after a lapse of more than a year and six months from the time allowed creditors to present their demands to the trustee for allowance as a matter of right, and after the expiration of fourteen months from the time the trustee received the money which he was obliged to pay out in dividends “as speedily as may be without the unnecessary sacrifice of the same.” To say that controversies between the trustee and Martindale’s creditors were pending and unsettled when this action was begun would be drawing a forced inference. The trustee, under the instrument giving him power to act, was required : First, to sell the property; second, to distribute the proceeds. There can be undone at most nothing except the payment of claims. The trust was a simple one, made so in order that the creditors might be expeditiously paid. The terms of it required a speedy sale of the property, and prompt payment thereafter of Martindale’s debts.
It is also contended that the compensation of the trustee has not been fixed or paid; that at least to that extent the trust is still open. We know of no rule of law which would permit a trustee guilty of the misconduct charged against Battey in the petition to recover any compensation for his services. The implication from the petition is that he received pay from Hood and his associates to betray his trust.
The claim that the action is based on contract to recover a new judgment on one already rendered against the Excelsior Mill Company and Martindale, and on tort against the other defendants, is not well founded. While the mill company and Martindale are named as defendants, no judgment is asked against them. This is apparent from the prayer of the petition.
The judgment of the court below is reversed, with directions to overrule the demurrer to the petition.
All the Justices concurring.
Cunningham, J., not sitting. | [
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The opinion of the court was delivered by
Mason, J. :
Monroe L. Crosier sued the Royal Fraternal Union in the city court of Leavenworth. His amended bill of particulars, upon which the case was tried, alleged in substance that on March 17, 1902, while holding an insurance policy issued by the Mutual Life and Casualty Association, he was injured by an accident under such circumstances that he became entitled to recover indemnity; that on June 23, 1902, in pursuance of an arrangement between such association and the defendant, the latter assumed the obligation to plaintiff that had arisen under this policy, accepted from him its surrender, and issued to him one of its own in lieu thereof; that due proofs of damage had been made to defendant at its request. The defendant filed a pleading, designated as an answer, consisting only of a general denial. Upon trial plaintiff x-ecovered judgment for $225. Defendant appealed to the district court, where a trial upon the same .pleadings resulted in a judgment for the same •amount, from which error is now prosecuted.
The defendant was a corporation, and from its constitution and by-laws, which were introduced in evidence, it appears that it was carried on for the sole benefit of its members and their beneficiaries, and not for profit, and was a fraternal beneficiary association within the definition of section 1 of chapter 147 of the Laws of 1899. (Gen. Stat. 1901, §§3568, 3569, portions of which are transposed by a typographical error.)
It is not within the power of such a corporation to assume liability for the payment of a claim for disability benefits that has already accrued against a similar association. (Bankers’ Union v. Crawford, 67 Kan. 449, 73 Pac. 79.) Plaintiff in error contends that for this reason the judgment should be reversed. But the bill of particulars did not disclose that the defendant was a fraternal beneficiary association, as defined by the statute cited. Plaintiff set out in full the contents of the insurance policy, or benefit certificate, issued by defendant, which indicated a plan of operation embracing some social features, but contained nothing necessarily inconsistent with a purpose to do business for profit. Prom anything that appeared from the plaintiff’s pleading, therefore, the defendant’s organization might have been of such a character that it could lawfully make such a contract as that in issue. In this situation it was incumbent upon defendant, in order to avail itself of the defense of ultra vires, to plead it specially. (6 Thomp. Corp. § 7619; 5 Encyc. Pl. & Pr. 95, 96; Am. Dig., 1903 B, § 184c, p. 1062.) It is true that, the case having been- brought in the city court, where the practice is the same as before a justice of the peace, it was not necessary that the defendant should file any pleading at all; but since it elected to file an answer, the plaintiff was entitled to treat it as a disclosure of all grounds of defense to be relied upon, and it would be a manifest injustice not to apply the ordinary rules of pleading. The general denial raised no issue as to the capacity of the defendant to make the contract; the principle invoked is, therefore, not available.
Another defense suggested was based upon the failure of plaintiff to resort to arbitration before suing, under a provision of defendant’s by-laws; but this, likewise, is a matter not open to inquiry under the pleadings. (4 Joyce, Ins. § 3691.)
Various assignments of error relating to rulings in the admission and rejection of evidence are argued, but they are not of a character to require detailed discussion. No material error is found in them.
The plaintiff alleged that the two insurance associations had been consolidated, and defendant introduced evidence to establish that no consolidation had been made under the statute. This was not conclusive against plaintiff, for his allegation did not necessarily imply a formal union of this character. There was sufficient evidence to support the finding that the defendant had assumed the liability that had accrued against the other company.
Complaint is made that the motion for a new trial was overruled without due opportunity’s being given defendant for argument, but the record does not bear out the claim.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
This was an action for the recovery of real property. The defendant admitted the plaintiffs5" title but pleaded possession and right of possession; under an oil and gas lease. Judgment was rendered! for defendant, from which plaintiffs prosecute error.. While there are many alleged errors of which complaint is made, those which concern the instructions are the most important. The following portions of the lease become necessary to a clear presentation and determination of the question presented :
“This lease, made between F. H. Chappie and wife, Mary, parties of the first part, and the Chanute Prospecting Company, of Chanute, Kan., party of the second part,
‘ ‘ Witnesseth : That in consideration of one dollar, the receipt of which is hereby acknowledged, and the further consideration of drilling test wells or prospecting for minerals in Neosho county, Kansas, for oil, gas, lead or zinc ore, brick material, or other mineral, ■parties of the first part hereby agree with the party of the second part: That it shall have the exclusive-right for ten years from this date to enter upon and operate for oil, gas, lead or zinc ore, brick material or other mineral all that certain tract of land in Tioga township, Neosho county, Kansas, described as follows, to wit: Southeast quarter section 25, township 27, range 17, containing 160 acres more or less, upon the following terms and conditions : ... In case no oil- or gas-well is sunk on these premises within two years from this date this lease shall become absolutely null and void, unless the second party shall elect from year to year to continue this lease by paying or depositing to the credit of the first parties at the Chanute State Bank, each year in advance, twenty-five cents per acre for each acre covered by this lease, until a well or other prospecting has been completed on these premises.
“In witness of which we have hereunto set our hands and seal, this 3d day of January, a. d. 1900.”
This lease also contained a provision by which its conditions extended to the executors, heirs and assigns of both parties. It was regularly assigned to the defendant.
The defendant having admitted title in plaintiffs, the right of possession followed, unless the defendant was possessed of some superior right. To establish this right it relied on the lease and the performance of its conditions. It was conceded that a well had not been sunk,’or other prospecting completed, on the premises within the two years specified in the lease. The defendant contended that before the expiration of the two years from the date of the lease it deposited in the Chanute State Bank, to the credit of plaintiff, twenty-five cents for each acre covered by the lease. The evidence in support of this contention was that on January 2, 1902, the secretary of the defendant company drew its check on the bank for forty dollars, payable to the order of plaintiffs, and that Mr. Ward, one of the officers of the company, delivered this check to G. N. Lindsay, its treasurer, for his signature, together with a voucher, or receipt, to be signed by. plaintiffs upon receipt of this check.
When the check and voucher were delivered to G. N. Lindsay he was the cashier of the Chanute State Bank. He testified that they were received by him on January 2, 1902, as treasurer of defendant company, and that as such treasurer he signed the check, and as cashier of the bank placed it and the receipt in. a drawer of one of the desks ; that the custom of the-company would have required the plaintiffs to sign the receipt before the delivery of the check to them, and that he was so instructed on this occasion ; that when the check was delivered to him the defendant had a deposit in the bank largely in excess of the amount of this check. No money was ever deposited in the bank by the defendant to the credit of the plaintiffs, and no credit to them was caused to be entered on the books of the bank by it. The check was not delivered to plaintiffs, and they had no information of its existence until the 17th day of February, 1902, when one of the plaintiffs called on Mr. Ward for the lease, informing him that it had terminated by reason of the non-compliance of the defendant. He was then informed for the first time that the defendant had drawn its check, together with a voucher or receipt for plaintiffs to sign, and had left them in the Chanute State Bank, and that if they would go there and sign the voucher they could get the check for the money.
It conclusively appears from the evidence that the plaintiff F. H. Chappie called at the bank on Januai'y 2, 1902, to have his bank-book balanced by the cashier ; that he called on three or four occasions subsequent thereto, and before the 17th of February, and had his balance stated, and on neither of these occasions did Mr. Lindsay inform him that the defendant had left with him its check payable to plaintiffs’ order. There is no dispute in the evidence upon any of these facts.
At the conclusion of the evidence the court instructed the jury as follows :
“This action, in the light of the petition filed by •the plaintiffs, is nominally an action of ejectment, but in the light of all the pleadings and the testimony that has been introduced, the action in substance is one to procure the cancelation and setting aside of a certain oil, gas and mineral lease heretofore executed by the plaintiffs to certain parties, and which lease was subsequently assigned to the defendant in this actioxi. The only matter of fact in dispute between the parties which the court deems necessary to subxnit to you and instruct you thereon is in regard to the alleged payment of forty dollars which the defendant alleges it made on January 2, 1902, for the purpose of keeping the lease in force. The lease in question contains this clause :
‘“In case no oil- or gas-well is sunk on these premises within two years from this date this lease shall become absolutely null and void, unless the second party shall elect from year to year to continue this- lease by paying or depositing to the credit of the first party at the Ohanute State Bank, each year in advance, twenty-five cents per acre for each acre covered .by this lease.’
“It being undisputed that no oil- or-gas-well had been sunk on the leased premises within two years from its date, the lease would therefore become null and void unless the aforesaid clause I have just read was substantially complied with. Therefore, if you should believe from the evidence that the defendant did not, on or before January 3, 1902, pay or deposit to the credit of the plaintiffs at the Ohanute State Bank the sum of forty dollars, or did the things in substance amounting to such payment or deposit, as I shall hereinafter indicate, then the plaintiffs would be entitled to recover in this action.
“But, on the other hand, if you should believe from the evidence that on January 2, 1902, the defendant deposited in said bank its check payable to the order of F. H. Chappie in the sum of forty dollars ; that said defendant had at said time in said bank standing to its credit a sum largely in excess of said forty dollars ; and if you should further believe that thereafter said F. H. Chappie, if acting honestly and in good faith, could have obtained said money from said bank or had it passed to his credit by informing said bank of his desires in that regard, then and under those circumstances, if they exist, the plaintiffs would not be entitled to recover in this action ; and the fact, if so, that the officers or clerks of said bank, in some unintentional manner, failed to credit said forty dollars on the pass-book of plaintiff Chappie, and the further fact that a receipt for the forty dollars was attached to the check which defendant wished the said plaintiff should sign, would not, under all the circumstances and the issues in this case, make any difference.
“As I remarked to you at the start, while the action as disclosed by the petition is what is sometimes called a common-law action, being one in ejectment, yet, under all the pleadings and the evidence, the question whether the lease in controversy should be adjudged void or not is one peculiarly for equitable considera tion, and should be governed by equitable principles, and such principles I have endeavored hypothetically to indicate to you in these instructions.”
It is very evident from these instructions that the court misconceived the nature of this action. It was not an action to cancel a lease nor an equitable suit, but a common-law action for the recovery of real estate. While it is said in A. T. & S. F. Rld. Co. v. Pracht, 30 Kan. 66, 71, 1 Pac. 319, that “an action for the recovery of real property ... is equitable as well as legal,” an examination of that opinion will disclose that the writer was not trying to classify an action for the recovery of real property, but was addressing himself to the kind of title which would sustain a recovery in such an action. It would perhaps have been more accurate had it been said that one might recover in such an action upon either an equitable or legal title, or, as said in Simpson v. Boring, 16 Kan. 248, that “ any kind of an estate in land, legal or equitable, is sufficient to enable a plaintiff to recover in an action in the nature of ejectment, under section 595 of the civil code, as against a party who has no interest in the property. The question of who shall recover in such an action depends entirely upon the question, which party has the paramount right to the property in controversy.”
The defense was also a legal, and not an equitable, one. Whether the defendant had deposited to the credit of the plaintiffs twenty-five cents for each acre of land described in the lease prior to the expiration of the two years from its date, was the only question of fact to be tried. What the defendant claimed to have done in the performance of this duty being undisputed, it was a question of law whether its acts constituted performance. It may not be inapplicable to suggest that courts construe with considerable strictness the provisions of oil and gas leases requiring work to begin within a certain time, as well as those provisions which require continuous operation, and forfeitures for neglecting to perform either of these conditions are favored rather than disfavored by the law. (Edwards v. Gas Co., 65 Kan. 362, 69 Pac. 350; Brown v. Vandergrift, 80 Pa. St. 142; Munroe v. Armstrong, 96 id. 307; Gadbury v. Ohio etc. Gas Co., 162 Ind. 9, 67 N. E. 259, 62 L. R. A. 895.)
The lease in question was continuous for ten years, two years certain, and eight additional years at the option of the lessee or its assigns. It, however, contains a defeasance clause which terminates it absolutely at the expiration of two years in case no well is sunk on the premises, unless the lessee exercises its option of continuing it longer by complying with its conditions. (Brown et al. v. Fowler et al., 65 Ohio St. 507, 63 N. E. 76.)
The acts performed by the defendant were not a compliance with the requirements of the lease. The terms of the lease were unequivocal; the lessee was either to pay or to deposit the money. The plaintiffs could not be compelled to accept the defendant’s check, if tendered within the time. That was not the contract. They could not have been compelled to sign a receipt or voucher. That was not the contract. They were not compelled to institute inquiry to ascertain whether the defendant was seeking in some way not expressed in the lease to comply with, or to evade, the terms of the lease. The check of the company payable to the order of plaintiffs, in the hands of its treasurer, was not equivalent to placing the money in the hands of the plaintiffs, or to depositing that amount to their credit in a solvent bank. It is immaterial that defendant was solvent, or that it had a deposit in the bank upon which it drew this check. The plaintiffs had not agreed to depend upon its solvency or to take its check. Upon the undisputed facts the court should have instructed the jury to find for the plaintiffs.
The judgment of the court below 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. :
In 1888 a petition was presented to the commissioners of Pratt county asking the establishment of a public road running east and west along a section-line for a distance of ten miles. Conditions existed which, under the statute, authorized the commissioners to dispense with a survey and with the appointment, of viewers, and they did so, and made an order for the opening of such road. The land on each side of this section-line was unoccupied government land prior to 1877. In that year, and in 1878, it was settled'upon by claimants under the United States homestead law, who made final proof and became entitled to patents in 1888 or 1884. In 1878, or shortly thereafter, the settlers set out rows of trees and hedges about thirty feet on each side of the section line, being governed by the location of the corners as fixed by the government surveyors, and the roadway so marked out became a traveled thoroughfare in general use. From the time of the order establishing a legal road the strip of land lying between the hedgerows continued to be used by the public as a road, and was improved and kept in repair for such use by the road-overseers. Some work of the kind had been done by the township officers before the order was made.
In 1889, under the provisions of sections 1836, 1837 and 1838 of the General Statutes of 1889 (now replaced by sections 1818 to 1822, inclusive, of the General Statutes of 1901), the county surveyor made a survey of the congressional township in which the greater part of the road lay, in the course of which he located a certain section corner of such section-line fifty-seven feet north of the middle of the road as then used. No attempt was made to change the location of the traveled way until May, 1901, when the road-overseer undertook to make it conform to the results of such survey, that is to say, to move it fifty-seven feet to the north at the place of such changed section corner, by closing the old tract and opening a new one to travel. Plaintiff, being the owner of. the land lying north of the section-line at this place, brought suit against the road-overseer to prevent such action, joining as defend ants the owners of the land lying south of his. He was denied relief and brings this proceeding to review the judgment against him. The trial court made detailed and explicit findings, covering every phase of the controversy, and the only serious question presented is whether there was error in the application of the law to them. They include the facts already stated,' and others which so far as necessary will be indicated in the course of the discussion.
The notice of the survey required by statute was not given to plaintiff. There was a similar omission as to several other residents, and the published notice to non-residents was defective. The plaintiff claims that by reason of these defects the survey does not bind him. As he was one of the signers of the application for the survey, and was present when his lands were surveyed, the lack of a formal notice to him was not material; he cannot complain of the failure to give notice to others, and by neglecting to appeal he lost the right to question the result. (Close v. Huntington, 66 Kan. 354, 71 Pac. 812; Neary v. Jones, 89 Iowa, 556, 56 N. W. 675; Johnson v. Norton, 3 B. Mon. 429.)
A further objection is made that as the survey was begun May 13 and completed July 30, the 'record not showing any adjournments, plaintiff had no means of knowing when the report would be filed and the thirty days for taking an appeal would begin to run, and that therefore, within the authority of Schwab v. Stoneback, 49 Kan. 607, 31 Pac. 142, he was not required to appeal in order to challenge the surveyor’s findings. In that case, the surveyor was shown to have worked for two days, and then, without an adjournment for any definite time, to have ceased operations for more than two months, and then to have finished the sur vey and filed his report. It was held that the survey was not binding upon one who had no notice of the time of its conclusion. But here there is no showing that there was any interruption of the work whatever, and the presumption is that it was continuous, with no adjournments except those from one day to the next, and no notice of these is required, nor need they be referred to in the report.
It appears from the findings of the court that the middle of the traveled road in fact coincided with the true section-line as established and marked at the time of the government survey, and that the surveyor made a mistake when he fixed the section corner fifty-seven feet north of it. But this determination is not subject to review in the courts by an independent action, and not having been appealed from it is conclusive upon the plaintiff, and must be accepted as correct for the purposes of this case. The question therefore arises, whether the road marked out by the hedgerows and actually used for general travel, although departing from the section-line at the place under consideration, became a public highway by prescription or dedication. If so, it doubtless follows that the right to open a road along the true section-line, under the order made by the county board, was lost by its remaining unopened for seven years. (Gen. Stat. 1901, § 6058.)
In order for a public road to be created by prescription, or limitation, its use by the public must be adverse. (Smith v. Smith, 34 Kan. 293, 8 Pac. 385; The State v. Horn, 35 id. 717, 12 Pac. 148; District of Columbia v. Robinson, 180 U. S. 92, 21 Sup. Ct. 238, 45 L. Ed. 440; O’Connell v. Chicago Terminal R. R. Co., 184 Ill. 308, 56 N. E. 355; Ell. Roads & High. §175.) As between the' respective owners of adjoining lands, a physical possession held, by one of them of a part of his neighbor’s ground, taken and held through a misapprehension of the location of the boundary line, is not adverse, and, however long continued, will not ripen into a title or set the statute of limitations in operation, for the reason that there is no intention on the part of the occupant to exercise, or on the part of the owner to suffer, any dominion beyond the true line, wherever it may be. (Winn v. Abeles, 35 Kan. 85, 10 Pac. 443, 57 Am. Rep. 138; 1 Cyc. 1036, 1037.)
The same principle applies with equal force here. Obviously, prior to the action of the county board the road was marked out and used with reference to the supposed position of the section-line ; after that time the use was continued in the belief that it was in conformity with the order made. It follows that the public and the adjoining owners alike intended that travel should be, and supposed that it in fact was, confined to a strip of land following the section-line. No purpose can be attributed on the one hand to assert, or on the other to admit, a right to use as a highway any ground except such strip. The inadvertent use of any other did not constitute an adverse occupancy, and could not afford a basis for the establishment of a way by prescription, or limitation.
The principle applies equally well to the matter of dedication, which can be accomplished only through the manifestation of an intent to dedicate. (The State v. Adkins, 42 Kan. 203, 21 Pac. 1069.) Here no purpose was exhibited on the part of the owners to give as a highway, or on the part of the public officers to accept as such, any land except a strip bisected by the section-line. These views find support in the following decisions : Stickel v. Stoddard, as Trustee, 28 Kan. 715; Wilson v. Janes, 29 id. 233; Webb v. Comm’rs of Butler Co., 52 id. 375, 34 Pac. 973; State v. Auchard, 22 Mont. 14, 55 Pac. 361; Pillsbury v. Brown, 82 Me. 450, 19 Atl. 858, 9 L. R. A. 94; Konkel v. Town of Pella, 99 N. W. (Wis.) 453; The State v. Welpton, 34 Iowa, 144; The State v. Schilb, 47 id. 611; Bolton v. McShane, 79 id. 26, 44 N. W. 211; Hamilton County v. Garrett, 62 Tex. 602; Dowdle v. Cornue et al., 9 S. Dak. 126, 68 N. W. 194.
The third paragraph of the reporter’s head-note in Konkel v. Town of Pella, supra, fairly indicates the scope of the decision. It reads :
“Where an attempt was made to lay out a rbg,d along a section line, travel for the period of twenty years a little to one side of the road did not operate as an abandonment of a road as laid out, and an acquisition by prescription of a road of the same width, with the usually traveled track as its center.”
The second paragraph of the syllabus in The State v. Welpton, supra, reads :
“Where a highway is established upon a certain line, the law will not presume a grant or prescription of land outside of such line because of the public use thereof, growing out of a slight and mistaken variance between such use and the true line.”
The ninth paragraph of the syllabus in Hamilton County v. Garrett, supra, reads :
“Where the use of land for a highway is supposed to conform to the highway as laid out, but in fact varies from it, the public do not acquire a right to the strip actually used, in virtue of an adverse possession, because the possession does not correspond with the claim of right; nor in virtue of dedication, because there was never an intent by the owner of the land to dedicate the strip used.”
In the case of Dowdle v. Cornue et al., supra, the third paragraph of the syllabus reads :
“Where a section-line road has been established along a controverted line, but substantially on the section line, it follows and is located on the true section line, whenever that is finally determined.”
There are cases holding in effect that where a traveled road departs from the true line along_ which it has been ordered to be opened its use for the period of limitation will make a public highway of the strip so used. See Patterson v. Munyan, 93 Cal. 128, 29 Pac. 250; Landers v. Town of Whitefield, 154 Ill. 630, 39 N. E. 656 (practically overruling Manrose v. Parker, 90 Ill. 581); Lemasters v. The State, 10 Ind. 391; Strong, Trustee, v. Makeever et al., 102 id. 578, 1 N. E. 502; Bales v. Pidgeon, 129 id. 548, 29 N. E. 34; Taylor v. Bailey, Wright (Ohio), 646; Commonwealth v. Railroad Co., 135 Pa. St. 256, 19 Atl. 1051; Commonwealth v. Dicken, 145 id. 453, 22 Atl. 1043; Hancock v. Borough of Wyoming, Appellant, 148 id. 635, 24 Atl. 88. It may be that some of these cases turn upon statutes or special circumstances distinguishing them from the one at bar. So far as their conclusions conflict with the views already expressed, we must believe that they were reached without giving sufficient weight to the considerations suggested.
An entirely different question is presented where the general travel departs from the true course of a laid-out- road, not by reason of a mistake as to its location, but in consequence of a deliberate purpose to choose a different route. In such cases a design is manifested to substitute one route for another, to which effect may be given consistently with the principle stated. See Gulick v. Groendyke, 38 N. J. Law, 114; Almy v. Church, 18 R. I. 182, 26 Atl. 58; Wakeman v. Wilbur, 147 N. Y. 657, 42 N. E. 341. The case of Shaffer v. Weech, 34 Kan. 595, is in point. There the viewers gave to a road a definite loca tion, determined not by any surveyor’s line but by the surface character of the district traversed. The road-overseer opened it, and the public used it, in accordance with such location. It was found that the surveyor’s map and field-notes did not accurately correspond with the position of the road as marked out by the viewers. Under these circumstances it was held that the road should not be changed to the position indicated by the surveyor’s record ; that this was merely so much evidence of where the location was in fact made, and that this evidence was overcome by satisfactory proof of a different location. In that case the surveyor simply undertook to make a correct description of the road as located; the intention was that the* line he described should conform- to the route taken by the road. Here the intention was that the route of the road should conform to the section-line, wherever situated.
A specific assignment of error is argued relative to the admission in evidence of a deposition which it is claimed was not filed one day before the trial. The trial began at Pratt, January 80; the deposition was taken at Hutchinson, January 28; it is'not shown when it was filed. It may have been filed on the same day it was taken, which would have been in time.
An objection has been made to the jurisdiction of this court to review the judgment rendered, on the ground that the amount in controversy does not exceed $100, but from the showing made it is found that more than that amount is involved.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
The plaintiffs, as stockholders in the Wyandotte Realty Company, which was organized under the laws of the state of Missouri and doing business in Kansas, brought this action against the corporation and its creditors to have a receiver appointed, the assets marshaled, its liabilities determined, the assets applied to the payment of such liabilities, and the corporation dissolved. The material allegations of the petition, briefly stated, are as follows : The plaintiffs were stockholders, and the corporation was insolvent. Its authorized capital was $100,000, divided into 1000 shares of $100 each, of which the plaintiffs were the owners as follows ; A. H. Calef, 339; the estate of William Thaw, 150; the estate of H. H. Houston, 150 ; the estate of Elias D. Kennedy, 40 ; and Guy Phillips, 10. The indebtedness of the corporation to the defendants exceeded $50,000, as was evidenced by certain promissory notes, secured by mortgages on real estate of the corporation. The corporation owned no other property, or assets, than that upon which said defendants held mortgages, except certain small tracts of land described, and alleged to be of the value of about $500. There was interest due on its indebtedness exceeding $3000, and unpaid taxes on the mortgaged real estate to the amount of $2000. The corporation was insolvent, and had been for more than a year, and the president of the company had requested all its stockholders to contribute a sum pro raía .upon their several holdings sufficient to'pay the interest and taxes then overdue. The stockholders failed to contribute, by reason of which the officers refused to act further as officers, or take any action for the protection of the stockholders or the property of the corporation. A large majority of the stockholders were anxious and willing to have a receiver appointed, to the end that its property might be sold on such terms as the court should direct, the proceeds applied to its indebtedness, and the affairs of the company wound up and the corporation dissolved.
The Honorable David D. Hoag was appointed receiver and ordered to take charge of, and keep, and do with, the property of the corporation as the court might direct. The defendants, except the corporation, joined in an application for the appointment of a co-receiver, which was granted, and W. A. M. Vaughn appointed. Upon application Joseph Gurney Fowler, a creditor of the corporation, was made a party defendant, and filed his answer and cross-petition.
The several defendant creditors stated in their cross-petition that the plaintiffs had not fully paid for the stock owned by them, and prayed that, in case the mortgaged real estate and other property of the corporation should be insufficient to satisfy their respective claims and pay the debts of the corporation, the court ascertain the amount so owing by each of said stockholders to the corporation, and that the receiver be ordered to take the necessary steps to collect such indebtedness and apply it to the payment of the debts of the corporation. After applying the proceeds of the sale of the land there remained unsatisfied judgments against the corporation in favor of the several defendants. The court thereupon ordered the receiver to prepare and file an intervening petition against the plaintiffs, as stockholders, for the purpose of determining the amount so owing by each upon stock subscription. Upon an investigation it was found that there remained unpaid twenty-eight per cent, on each share of stock owned by said plaintiffs, and judgment was rendered in favor of the receiver against each of them for that amount. To reverse this judgment the plaintiffs prosecute this proceeding.
This was an equitable suit by the stockholders against the corporation and its creditors for the appointment of a receiver, to have the assets of the corporation marshaled, its liabilities determined, the assets applied to the payment of such liabilities, and the corporation dissolved. It was not in any sense a proceeding against stockholders, under the provisions of our statute, but entirely separate and independent of the statute. This conclusion disposes largely of the contentions made by plaintiffs in error.
The following principles are so fundamental and well understood that the citation of authorities in their support we consider useless: (1) The unpaid subscription to the capital stock of a corporation is a part of the assets of the corporation; (2) upon the appointment of a receiver, in a proceeding to marshal the assets, pay the debts, and dissolve the corpora tion, all rights of action in the corporation to sue for, and collect, such assets pass to the receiver.
Plaintiffs contend that the court had no jurisdiction of them when the judgment complained of was rendered. By instituting this action they submitted themselves to the jurisdiction of the court; they asked that a receiver be appointed, the assets of the corporation marshaled, its liabilities ascertained, the assets applied to the payment of such liabilities, and the corporation dissolved ; they were not dismissed out of court, either upon their own application or by the order of the court; therefore, they were subject to the jurisdiction of the court until disposition should be made of all questions in the action. (Kimball and others v. Conner, Stark and others, 3 Kan. 414; Johnson v. Keeler, 46 id. 304, 26 Pac. 728; Curry v. Janicke, 48 id. 168, 29 Pac. 319.) The collection of the assets of the corporation and the payment .of its debts were necessary to wind up the business and order a dissolution of the corporation.
The petition or application for judgment against the stockholders was not very formally or artistically drawn, but in the absence of a challenge for such infirmity it must be held to state sufficient facts.
It is urged that, as the company was a Missouri corporation, and as there was no evidence to show that under the laws of that state a creditor of an insolvent corporation could maintain an action against the stockholders, no such action could be maintained in this state. A sufficient answer to this contention is that this was not an action by a creditor of an insolvent corporation against the stockholders, but an action by the corporation itself, by its receiver, against its stockholders on a contract liability. The general rule of all the courts on this question was stated in Wood worth v. Bowles, 61 Kan. 569, 580, 60 Pac. 331, 334, as follows ;
‘1 The liability of shareholders to pay for the stock subscribed for by them is not a statutory liability. It is a common-law liability. The capital stock of a corporation is one of its assets, and like any other asset of the company constitutes in equity a trust fund for creditors, which in a proper case they may collect and distribute among themselves.”
This was a suit in equity, and the court obtained jurisdiction of the parties and subject-matter, and maintained such jurisdiction to make and enforce all orders, judgments and decrees necessary to a final disposition of all questions arising between the parties pertaining to the subject-matter of the litigation.
The judgment of the court below is affirmed.
All the Justices concurring.
Cunningham, J., not sitting. | [
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The opinion of the court was delivered by
Johnston, C. J. :
On March 17, 1880, John C. Estes united with the Foresters of America, and also became a member of what is known in that order as the “endowment fund." The endowment certificate first issued to him was for $1000, and his wife and heirs were designated as beneficiaries. This relationship was continued for about fifteen years, and until about May 9, 1895, when, under the laws of the order, he surrendered the first certificate and obtained a new one for the same amount, in which W. EL Hollis, a stepson, was named as beneficiary. All assessments for the endowment fund were paid until Estes’s death, which occurred on July 27, 1901. Payment of the promised benefit was refused by the order because of the claim that Estes was not in good standing as a member of the order when he died. In the action brought by Hollis to recover the benefit the order alleged that Estes had not paid the assessments and taxes levied by the order for several months preceding his death, and because of non-compliance with requirements in this respect he was not in good standing ; that therefore no liability arose on the certificate issued to him. As already stated, every assessment made for the__endowment fund was paid, but the gen eral dues payable to the subordinate court, and amounting to eight dollars per year, were not actually paid after March 31, 1901. The plaintiff below pleaded and proved, as an excuse for the non-payment of the dues for the three months preceding the death of Estes, that there was a well-established custom in the Salina court, or lodge, to which Estes belonged, of paying these dues quarterly, and at anytime during the quarter; and, further, that Estes tried to pay the dues to the local financial secretary, whose duty it was to receive them, and that officer refused to receive them.
It appears that the organization is composed of the supreme court of America, the grand court of the state, and the subordinate courts throughout the state, and that these three are one and the same association, deriving their power and authority from the supreme court of the order. The financial secretary of the local court is not only an officer of that court but he acts for the association as well. He collects and forwards the assessments from the endowment fund to the supreme secretary, and he is the officer to whom all other dues and assessments are to be paid.
In the. early part of 1901 there was a lack of interest in the Salina court; the meetings were poorly attended, and it became a question with the members of that court whether they could maintain the organization. Correspondence was had with the superior officers, and on May 4, 1901, the executive committee of the grand court attempted to dissolve Salina court, and to forfeit its charter, rituals and effects to the grand court. After that time E. S. Swanson, the financial secretary, was in doubt as to whether he could collect dues and assessments, and when the general dues for Estes were offered to him he declined to receive them, stating that he did not know whether Salina court “would go on or not.” Under the laws of the order there are two ways by which a subordinate court can be suspended and dissolved : First, by a vote of its members and a report of its action to the grand court; and, second, by action of the grand court, upon charges preferred for neglect to hold meetings, misconduct, or non-compliance with the rules of the order, but such action cannot be taken until the subordinate court has had notice of the charges and suitable opportunity has been given to answer them.
It is not contended that the members of the Salina court voted to dissolve the court, and there was no attempt to show that charges were preferred against the court, or that any notice was given of any contemplated action against the court by the grand court or the executive council. Until suspension and dissolution Swanson could, and should, have received the dues and assessments from members. He did receive the assessments for the endowment fund until July, 1901, and his remittances were received and acknowledged by the supreme secretary. Not only was he recognized as an officer of the association by the supreme officers, but he still retained the seal of the court, and, with the knowledge of the supreme secretary, was exercising some of the functions of his office. It is true that the general dues were not paid for the quarter preceding the death of Estes, but that was not because of the fault of either the insured or the beneficiary. Hollis offered to pay the dues to the financial secretary, and he refused to receive them. An offer made in good faith and so declined is equivalent to payment.
A forfeiture of the benefits cannot be justly based on any of the objections pleaded by the association. There can be no objection to the payment of assess ments for the endowment fund, as all were paid monthly in advance, and the last one which the association returned was kept until two months after the death of Estes, and after steps had been taken to collect the benefit.
The objection that the general dues were not paid monthly in advance, as the by-laws provided, is without force, since the association did not follow its own by-laws in respect to the payment of such dues. It was the undisputed testimony that a custom had been followed for a considerable time of paying the general dues quarterly and at any time during the quarter. It is well settled that an insurance association of this character will not be permitted to assert a forfeiture because assessments were not paid at specified times, where, by the adoption of a custom, or the course of its conduct, it has led the insured members honestly to believe that the assessments will be received after the appointed day. (Insurance Co. v. Eggleston, 96 U. S. 572, 24 L. Ed. 841; Sweetser v. The Odd Fellows Mutual Aid Association of Indiana, 117 Ind. 97, 19 N. E. 722; Insurance Co. v. French, 30 Ohio St. 240, 27 Am. Rep. 443; Stylow v. The Wisconsin Odd Fellows Mut. Life Ins. Co., 69 Wis. 224, 34 N. W. 151, 2 Am. St. Rep. 738; Mutual Life Ins. Co. v. Amerman, 119 Ill. 329, 10 N. E. 225; De Frece v. N. L. Ins. Co., 136 N. Y. 144, 32 N. E. 556; McCorkle v. Ins. Association, 71 Tex. 149, 8 S. W. 516; Home Protection of North Alabama v. Avery, 85 Ala. 348, 5 South. 143, 7 Am. St. Rep. 54; Woodmen Circle v. Stretton, 68 Kan. 403, 75 Pac. 472; Nibl. Mut. Ben. Soc. §332; 2 Bacon, Ben. Soc. Life Ins. §§361, 431.)
No error was committed in the rulings on the testimony, nor in charging the jury.
At the close of the trial the association undertook to inject into the case the issue that Hollis had no in surable interest in the life of Estes. The matter was raised by request for an instruction, and had not been made an issue by the pleadings. The contract which was pleaded was valid upon its face. The insurance had been procured by Estes on his own life for the benefit of his stepson, Hollis. Apart from the relation of affinity, however, there may have been dependence, or other condition, to warrant the insurance. The insurance not having been procured by Hollis, it was not necessary for him to aver that he had any interest in the life of the insured. If the insurer relied on such defense it devolved upon it to plead and prove it. (Mass. Mut. Life Ins. Co. v. Kellog, 82 Ill. 614; Brennan v. Prudential Ins. Co., 148 Pa. St. 199, 23 Atl. 901; Kennedy v. N. Y. Life Ins. Co., 10 La. Ann. 809; Nibl. Mut. Ben. Soc., 2d ed., § 322; 4 Joyce,. Ins. § 3673.) The question not having been put in issue by the pleadings, the court rightly refused to submit it to the jury.
The judgment of the district court will be affirmed.
Smith, Cunningham, Mason, Atkinson, JJ., concurring. | [
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The opinion of the court was delivered by
Mason, J. :
This is an original proceeding in mandamus brought to require the state treasurer to countersign a warrant for $162.89, issued by the auditor of state. It involves the construction of the statutes relating to the residence provided by the state for the use of the governor.
The act of 1903 (Laws 1903, ch. 13, § 1) making provision for the ordinary expenses of the executive and judicial departments of the state government included in the amounts appropriated to the governor an item of $2000 for each of the years ending January 1, 1904, and January 1, 1905, the purpose of which was indicated by the mere phrase "maintaining executive residence,” unaccompanied by any word's of enlargement, limitation, or explanation. It appears from the pleadings, evidence and. agreed facts that the greater part of the amount so appropriated was expended under the direction of the governor in providing for lighting and heating the executive residence, for household service, repairs and like matters, and in adding to its permanent equipment of furniture and utensils. During the period indicated its occupants entertained guests upon public, semipublic and other occasions in the spirit of official hospitality deemed to be in keeping with the quasi-public character of the place. As an incident to such entertainment it was necessary that food be purchased in excess of what would have otherwise been required. No effort was made to keep any separate account of the additional expense so occasioned, but charges for food supplies in an amount considered in a general way approximately to correspond to such increased cost were from time to time made against the fund appropriated for maintaining the executive residence and, with the approval of the attorney-general, they were allowed by the auditor and paid by the treasurer. The warrant here involved was issued in November, 1904, upon an account rendered in pursuance of this custom, for a part of the supplies purchased in the two preceding months. The refusal of the treasurer to countersign it is based upon the contention that the law does not authorize the payment by the state of any amount whatever for food used at the executive residence ; and the soundness of this proposition is the sole question presented for determination.
In support of the defendant’s position it is argued that the very words in which the object of the appropriation is stated preclude any other view ; that these words are not merely inappropriate to express a purpose that a part of the amount named should be expended in supplying the table at the governor’s official home, but that they are incapable of such interpretation under any circumstances ; that by no breadth of meaning or liberality of construction can a “residence” be said to be “maintained” by supplying victuals to be there eaten. The precise question to be decided, however, is narrower than this. It is not whether the words employed might ever receive such a meaning, but whether such a meaning can be fairly attributed to them in the present instance ; not what they might mean, but what they do mean. If, prior to the passage of the act in which they occur, the state had definitely assumed, in whole or in part, the burden of keeping a full larder at the residence provided for the governor, it might plausibly be claimed that the words were used with that in view, and disclosed a purpose to devote the sum named to maintaining such residence as a place where entertainment, including sustenance, was to be provided at the expense of the state ; for the object of the several items of a general appropriation bill prepared to meet existing demands may be supposed to be merely indicated by phrases chosen for their brevity and convenience, rather than fully described in apt and accurate language.
Prior to this enactment no such obligation had been assumed. The only legislation on the subject was chapter 7 of the Laws of 1901, by which the purchase of an executive residence was authorized. That act appropriated to the executive council $33,000 for the purchase, furnishing and equipment of such a residence, and $2000 for “maintaining and repairing” it for two years. That “maintaining” as there used had no reference to supplying food is manifest. There is nothing in the context to suggest it; the somewhat detailed enumeration of things to be provided by the state, including furniture, carpets, utensils, light, and heat, warrants the inference that if food had been in contemplation it would have been specifically mentioned ; and the association of the words “maintaining” and “repairing” suggests a similarity of meaning. The inquiry, therefore, is whether the appropriation act of 1903, either by its very terms, or as interpreted in connection with other acts, indicate a change of legislative policy and the assumption of a new liability by the state.
To say that the words “maintaining executive residence” do not, in and of themselves, include or imply the furnishing of food to be there eaten is practically to exhaust the subject. No refinement of definition, no wealth of illustration, can add to, or take from, the simple statement that, standing alone and without aid from any outside source, they do not and cannot convey that meaning. Moreover, it is a recognized canon of construction that “whenever a legislature has used a word in a statute in one sense and with one meaning, and subsequently uses the same word in legislating on the same subject-matter, it will be understood as using it in the same sense, unless there be something in the context or the nature, of things to indicate that it intended a different meaning thereby.” (County Seat of Linn Co., 15 Kan. 500.) As already suggested, the appropriation made in 1901 for “maintaining and repairing said (executive) residence” had obvious reference to the keeping up of the physical property — the house and its appurtenances. The same word, “maintaining,” used in the act of 1903 in the same connection, should not he given a different meaning unless in virtue of some extraneous reason. If any such reason exists it must be found in these facts : (1) No mention of repairs was made in this act, but there was included in the miscellaneous appropriation bill of 1903 (Laws 1903, ch. 35, § 1, ¶ 31) an item of $1000 for cleaning walls and purchasing pictures and furnishings at the governor’s house, and another of $500 for repairs on the house and walks ; (2) the salary of the governor was at the same session (Laws of 1903, ch. 240) increased from $3000 to $5000, it being recognized, however, that this change could not become operative until 1905; (3) the control of the expenditure of the maintenance fund was transferred from the executive council to the governor, and fixed at $2000 a year, whereas, the amount previously appropriated for maintenance and repairs had been but $1000 a year. The separate provision for repairs and equipment gives room for the argument that the amount set apart for “maintaining” the residence was not intended to cover such matters. The increase in the governor’s salary may, perhaps, be attributed to a belief that he could not, upon an official income of $3000 a year, support an establishment at his official home in a manner thought to be suited to the reasonable requirements of his position; and it may possibly be inferred that the legislature, realizing that no change in his compensation could become at once effective, sought as a temporary expedient to meet the immediate demands of the situation by placing in his hands the sum of $2000 a year, with the design that a part of it should be expended in his discretion for expenses incident to the fulfilment of his social obligations, and to the exercise of the civilities expected from him as the head of the state government. Color is lent to this theory by the transfer of the control of the maintenance fund from the executive council, and the increase in its amount, especially in view of the provision made elsewhere for repairs.
These considerations certainly have a tendency in the direction suggested, yet they are not so forcible as plainly to compel the conclusion indicated and to place the question of the meaning of the act beyond all controversy. It therefore is pertinent to inquire into the power of the legislature, under the constitution, to enact such a law, assuming that it was intended for this purpose, for it will never be supposed that a statute was designed to conflict with a constitutional provision, if any other construction can reasonably be given it.
Our state constitution provides (art. 1, § 15) that the officers of the executive department, including the governor, “shall, at stated times, receive for their services a compensation to be established by law, which shall neither be increased nor diminished during the period for which they shall have been elected.” Similar provisions in other constitutions are common. They have often been construed and applied by the courts. (23 A. & E. Encycl. of L., 2d ed., 400, 401; 37 Cent. Dig. cc. 1955-1959 ; 29 id. cc. 1657-1659 ; 44 id. cc. 2053, 2054.) Their purpose and beneficial effect and the need of rigid adherence to them have been the subject of frequent, although perhaps super fluous, elaboration. An editorial note at page 282 of volume 54 of the Central Law Journal condemns the tendency to shrink from their just enforcement in a criticism which is of much force, whether or not it be justified by the particular case to which it is applied. It is needless to cite authorities in support of the proposition that courts should not countenance any attempt to evade the effect of the provision in question or to accomplish the prohibited results by indirection.
It requires no argument to demonstrate that a substantial increase in the compensation of an official is accomplished by placing at his disposal a sum in addition to his salary to be expended by him in the purchase of food to be used at his residence by himself, his family, and his guests, although such sum may not exceed the amount by which-his household expenses may be increased by the practice of the social amenities appropriate to his position, where there is no separation of the expenditures to be made in the ordinary course of his domestic life and those-to be incurred in the exercise of what might be classed as public -and official hospitality. If a sum were set apart to be used for specific entertainments authorized to be given at the public expense a different question yrould be presented, but that is not the case here.
The force of these considerations has been at least tacitly acknowledged by plaintiff’s counsel, and a theory has been advanced to avoid the conclusion which seems their natural consequence. It is urged that the legislature has established the executive residence as an institution where the chief executive might do the honors of the state and extend the courtesies of his office ; that such action has imposed upon the governor new duties involving in their performance the incurring of new expenses; andthat it is competent for the legislature to provide for making' these additional expenses a public charge. It has been held that where the constitution forbids an increase in the compensation of an official during the term for which he has been elected an allowance may be made for incidental expenses of his office to be determined by the necessity which may be developed (Kirkwood v. Soto, 87 Cal. 394, 25 Pac. 488); and that additional payment may even be made to him for the performance of new duties imposed which are not germane to his office (Lewis, Auditor, v. The State, ex rel. Harrison et al., 21 Ohio C. C. 410; see also State v. Cheetham, 21 Wash. 437, 58 Pac. 771, and State v. Grant, 73 Pac. [Wyo.] 470, and cases cited) ; but that no such payment may be made for the performance of any new duty which is of the same general character as those previously existing (Pierie v. Philadelphia, 139 Pa. St. 573, 21 Atl. 90; Hall v. Hamilton, 74 Ill. 437); and that where an officer’s salary has been fixed upon the assumption that certain expenses will be paid by him, the legislature may not afterward provide for their payment by the public. (State, ex rel., v. Raine, Auditor, 49 Ohio St. 580, 31 N. E. 741; Wren v. Luzerne Co., 9 Pa. Co. Ct. 22; Wheelock et al. v. The People, 84 Ill. 551.)
The argument made that the allowance of a sustenance fund may be justified as a mere provision for the expense of performing a newly imposed duty, even if otherwise tenable, fails at two points. In the first place, there is no legal duty resting upon the governor to do any amount of entertaining at the executive residence, or even to occupy it at all. The ,obligations in these respects arising from the proffer of a place of residence by the state are but those of comity. However binding they may be upon the sense of propriety of the incumbent of the office of governor, they do not originate in the law, and cannot be classed as official duties, for the purposes of the present discussion. In the second place, whatever these obligations may be, they existed in 1901, while the salary of the governor was fixed at $3000, without additional allowance for any expenses incidental to their fulfilment. Consequently, for the state in 1903 to have assumed liability for the payment of such expenses would have been to increase the compensation of the governor during the term for which he was elected. It cannot be supposed that this was the purpose of the legislature, since it would have been in violation of the constitution.
It must be held that the language of the statute providing a fund for maintaining the executive residence is not broad enough to cover the purchase of provisions for use there under any circumstances, and that the writ asked for must be denied.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
In January, 1890, the Attica State Bank commenced a suit against the Attica Sugar Company to recover on certain bonds and to foreclose a mortgage given to secure them. The Keystone Iron-works Company was made a party defendant, as well as other parties having liens against the mortgaged property. On June 10,1891, a final decree was entered marshaling the liens. It was adjudged that the Attica Sugar Company was indebted to the Keystone Iron-works Company in the sum of $13,032.60, and that the plaintiff in error, George W. Watson, and other persons, were sureties on the said debt to the amount of $11,774.90. The judgment against the Attica Sugar Company, as principal, and the sureties mentioned, included a decree of foreclosure of a mechanic’s lien filed by the Keystone Iron-works Company against the property of the sugar company, and the decree fixed this lien, in common with others, on one tract of real estate, and adjudged it a second lien, subject to that of plaintiff below, on another tract.
Six orders of .sale were issued at the instance of the bank. These orders of sale followed the language of the decree, setting forth the amount due each of the lien-holders, of whom there were more than twenty. Each of the several orders of sale concluded with the following direction to the sheriff:
“These are, therefore, to command you to cause the said above-described property to be appraised, advertised and sold according to law, separately, as described, and from the proceeds of such sale pay, first, the costs and expenses of suit and sale; second, the judgment and the interest; the residue, if any, to be paid into court to abide the order of said court.”
Four orders to carry out the decree were issued and returned without sale, three in 1891 and one in 1893. On March 29, 1894, under a pluries order the real estate was sold; and under another, issued in January, 1895, certain pumps and fixtures were sold.
On June 20, 1896 (five years and ten days after the rendition of judgment), an execution was issued at the request of the Keystone Iron-works Company. This writ, after reciting that a part of the debt for which Watson and his sureties were liable had been paid, ordered that the sheriff, of the goods and chattels of the Attica Sugar Company and the Kansas State Sugar Company, as principals, and George W. Watson and others, as sureties, cause to be made the amount of $11,774.90, and $2485.90 interest on the same, being the amount remaining due, and, for want of goods and chattels, that the amount be made out of the lands and tenements of the debtors. This execution was returned “No property found.”
The above facts bring us to a consideration of the question whether the issuance of these orders of sale had the effect to keep the judgment alive, and to stay its dormancy for five years from the time the last one was issued. Section 4895 of the General Statutes of 1901 provides:
“If execution shall not be sued out within five years from the date of any judgment that now is or may hereafter be rendered in any court of record in this state, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor.”
Keeping a judgment in force by execution must find its authorization in the above section of the law. If the section quoted is construed to comprehend executions “against the property of the judgment debtor” only, commonly called “general executions,” under which head it appears in the statute, then the suing out of special executions or orders of sale was ineffectual to prevent a dormancy of the money judgment rendered against Watson and his cosureties.
Section 4892 of the General Statutes of 1901 reads :
“Executions are of four kinds: First, against the property of the judgment debtor; second, against his person ; third, for the delivery of the possession of real or personal property, with damages for withhold ing the same, and costs ; fourth, executions in special cases.”
This separation into classes we find in the General Statutes of 1868 (ch. 80, art. 20), which was adopted by the legislature with the headings to chapters and divisions as made by the commissioners. Under the head of “Executions against the Property of the Judgment Debtor” is found section 4895, General Statutes of 1901, supra. The section following this (§4896) gives the contents of such an execution, namely :
“The writ of execution against the property of the judgment debtor, issuing from any court of record in this state, shall command the officer to whom it is directed that of the goods and chattels of the debtor he cause to be made the money specified in the writ; and for want of goods and chattels, he cause the same to be made of the lands and tenements of the debtor ; and the amount of the debt, damages and costs for which the judgment is entered shall be indorsed on the execution.”
The next division is entitled “Proceedings in Aid of Execution”; the next, “Executions against the Person” ; the third, “Executions for the Delivery of Real or Personal Property”; and finally, “Executions in Special Cases.” Under the last head there is but one section of the statute, which reads :
“In special cases not hereinbefore provided for, the execution shall conform to the judgment or order of the court. When a judgment for any specified amount, and also for the sale of specific real or personal property, shall have been rendered, and an amount sufficient to satisfy the amount of the debt or damages and costs be not made from the sale of property specified, an execution may issue for the balance, as in other cases.” (Gen. Stat. 1868, ch. 80, §517; Gen. Stat. 1901, §4994.)
In the General Statutes of 1901 (§§4927-4954) the compiler has arbitrarily inserted, under the heading of “Executions-against the Property of the Judgment Debtor,” chapter 109 of the Laws of 1893, relating to the redemption of real estate sold on execution, special execution, or order of sale. This arrangement, made for convenience merely, is of no significance.
In the case of Norton v. Reardon, 67 Kan. 302, 72 Pac. 861, we recently held that the direction to the sheriff, found in section 4915, General Statutes of 1901, that he shall return a writ of execution within sixty days from its date, had no application to executions in special cases like those under consideration. The section fixing the time for a return is found with others under the head of “Executions against the Property of the Judgment Debtor.”
It certainly would not be contended that section 4895, General Statutes of 1901, supra, which provides the only method of keeping a judgment alive, by the suing out of an execution, and which section, as we have seen, relates to executions against the property, can have any application to executions against the person, provided for in section 4982, General Statutes of 1901, which reads :
“An execution against the person of the judgment debtor shall require the officer to arrest such debtor and commit him to the jail of the county until he pay the judgment or is discharged according to law.”
If the issuing of a special execution, which must conform to the order of the court, prevents dormancy, then an execution against the person must perform the same service. The claim that both of the last-mentioned executions are included within the meaning of section 4895 cannot be sustained. If said section includes executions in special cases, it certainly includes executions against the person. Again, it must be kept in mind that that section of the law which permits a judgment to receive a five-year lease of life, after the suing out of an execution on it, uses the expression “writ of execution.” It is a misnomer to call a special execution, which is nothing more than an order of sale, a “writ.” In section 4994 the lawmakers were careful to omit the word “writ,” when referring to a special execution.
In Norton v. Reardon, supra, it was said :
“Those sections of the statute which provide for a levy of an execution on real estate of the judgment debtor before its sale by the officer can have no application to judicial sales ordered by the court, like that in the present case, where the property on which a lien was fixed was designated in the decree, and ordered sold to satisfy the amount of the charge against it.”
Under a special execution or order of sale the right to sell the property attaches in consequence of the decree of the court.
The question before us has received consideration in Ohio, under statutory provisions like ours. In Beaumont et al. v. Herrick, 24 Ohio St. 445, 456, the court said:
“It is also claimed the decrees became dormant, under section 422 of the code, before the issuing of the last orders of sale, and that for this reason the sale is invalid.
“All judicial sales in this state require confirmation by the court before they can be completed. Without conceding, therefore, that under our system, such sales can be impeached, on the ground of the dormancy of the judgment, otherwise than by a proceeding in error to reverse the order of confirmation, it is sufficient to say, in answer to the present objection, that we are satisfied the section of the code referred to has no application to decrees for the sale of specific real property.
“The section provides that if execution shall not be sued out within five years from the date of a judgment, or if five years shall intervene between the date of the last execution and the suing out of another writ of execution, the judgment shall become dormant, and cease to operate as a lien on the estate of the judgment debtor. This section has sole reference to judgments for money which are to be enforced by the writ of execution. The succeeding section prescribes what a writ of execution shall contain, and shows that it is wholly inapplicable to the enforcement of decrees in equity for the sale of specific property.”
In Moore v. Ogden, 35 Ohio St. 430, it was held that a decree of foreclosure of a mortgage did not become dormant although no attempt was made to enforce it for more than twenty years. The same opinion was given in Nebraska. (Herbage v. Ferree, 65 Neb. 451, 91 N. W. 408.)
Counsel for defendant in error contends that if the issuance of a special execution does not keep the decree of foreclosure in force for five years from the date of such execution, then however diligently the plaintiff may have tried to sell the property, if he failed, the money judgment against the sureties would become dormant, and a judgment creditor without fault might suffer loss. It is the “suing out” of a writ of execution which extends the validity of a judgment. (Saville v. Schroyer, 65 Kan. 303, 68 Pac. 1130.) In the case cited the execution was never returned.
The case of The State v. McArthur, 5 Kan. 280, seems to be at variance with the views above expressed. There is a confusing suggestion, however, at the close of that opinion, in which the court declines to discuss the question whether the lien of the mortgage continues to exist after dormancy of the judgment. To •clear the path of obstacles which might embarrass or mislead litigants in the proper interpretation of those sections of the statute on which'we have commented, the case of The State v. McArthur is overruled.
The ruling of the court below will be reversed, with directions to overrule the motion to revive the judgment.
Cunningham, Greene, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Greene, J. :
This was an action on a promissory note. The cause was tried without a jury, and the court made special findings of fact and conclusions of law. It appears that the note in question was executed at Lyons, Kan'., and payable at Marshalltown, Iowa; that the words “with exchange” were printed in the note ; that before it was executed the maker erased these words, but after its delivery the payee, without the knowledge or consent of the maker, rewrote them. As a conclusion of law the court found that this alteration was material, in that it rendered the note non-negotiable under the laws of the state of Iowa, where it was payable. Upon such findings of fact and conclusions of law judgment was rendered for the defendant. So far as the record discloses there was no evidence offered tending to establish what the law of Iowa was in this particular. The courts of Kansas will not take judicial notice of the laws of a sister state, but will assume, in the absence of evidence to the contrary, that they are like our own. (Rogers v. Coates, 38 Kan. 232, 16 Pac. 463; Furrow v. Chapin, 13 id. 107; Dodge v. Coffin, 15 id. 277, 285; K. P. Rly. Co. v. Cutter, 16 id. 568; Woolacott v. Case, 63 id. 35, 64 Pac. 965.)
When a promissory note is made payable at a place different from that at which it is executed the insertion therein of the words “with exchange” does not make the note non-negotiable. (Clark v. Skeen, 61 Kan. 526, 60 Pac. 327, 49 L. R. A. 190, 78 Am. St. Rep. 337.) It is not every alteration of a note that will defeat a recovery thereon; it must be such an alteration as will materially change the contract of the parties. The insertion of the words “with ex change” was not such an alteration; it did not in any way alter the legal effect of the instrument, or change the contract obligation of the parties. As stated, the note was executed at Lyons, Kan., and payable at Marshalltown, Iowa. It was a part of the contract of the maker to pay any expense, either of exchange or express, necessary to make the payment at the place mentioned in the note, and the insertion of the words “with exchange” was only a statement of what the contract itself implied. It did not render the note invalid, or discharge the maker from his liability thereon. (2 Dan. Neg. Inst. § 1389; Fuller and another, Ex’rs, etc., v. Green, 64 Wis. 159, 24 N. W. 907, 54 Am. Rep. 600; Tutt v. Thornton, 57 Tex. 35; Bullock v. Taylor, 39 Mich. 137, 33 Am. Rep. 356.)
The judgment is reversed, and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J. :
This proceeding involves the question whether, after the supreme court has made an order directing the restoration or payment of a fund to one of two litigating parties, a third may intervene and show that the first has transferred his right to a part of the fund, and that the third party is entitled to such part. The question arises on the following facts, which are more fully set forth in Hargis v. Robinson, 63 Kan. 686, 66 Pac. 998 :
Meredith owned a tract of land, and in 1884 gave a mortgage thereon for $800. In 1886 a judgment for $270 was obtained against the Merediths which became a lien on the land inferior to the mortgage lien. In 1887 Meredith sold the premises to M. L. Robinson and M. L. Read. In 1889 Read and the representatives of Robinson paid off the $800 mortgage, which left the judgment standing as a first lien against the land. In 1893 an execution was issued on the judgment which was levied on the land, and it was subsequently sold to Gladys M. Hargis for $1200. In 1894, Robinson and Read both having died, their executors commenced a suit in the district court, asking to be subrogated to the rights of the mortgagee under the $800 mortgage which had been previously paid, and also to have their title quieted as against the sheriff’s deed to Hargis. In 1898 judgment was rendered, restoring the mortgage lien and foreclosing the. same, under which the land was sold for $1319.57 to a stranger to the record. Hargis brought the case to this court, and in December, 1901, the judgment of the trial court restoring and foreclosing the mortgage was reversed, it being held that the executors of Robinson and Read were not entitled to subrogation as against Hargis. (Hargis v. Robinson, supra.)
Afterward, and on a motion for restitution, it was made to appear that the land which had been the subject of controversy had been sold to a stranger, and this court made an order that the executors of Robinson and Read pay to Hargis $1319.57, or restore the land in controversy. When the mandate of the court upon the order of restitution was sent down judgment was entered in favor of Hargis against the executors for the sum mentioned, but it appearing that it was done without notice to the opposing party it was set aside. Subsequently one-half the amount named in the order of restitution, to wit, $775.20, was paid to the clerk of the court, and W. 0. Robinson, one of the executors, intervened in his individual capacity, alleging that in October, 1895, Gladys M. Hargis and her husband conveyed an undivided half of the land in controversy to A. P. Johnson, who filed the deed for record March 4, 1897 ; that in February, 1898, Johnson sold the half-interest in the land to Robinson in his individual capacity, and, as the deed then executed was lost, a later deed, executed in January, 1902, was delivered to Robinson, conveying to him the undivided half of the real estate. Robinson, therefore, asked that one-half of the fund be paid to him, instead of to Hargis. Gladys M. Hargis and her husband alleged that they had made a deed to Johnson, but that it was in fact a mortgage to secure the payment of indebtedness to him. They also set up that Robinson was not entitled to intervene at that stage of the proceedings, and, further, that by reason of his representative capacity as trustee of the Robinson estate he was estopped from asserting any title, in his individual capacity, to the land or fund. Robinson replied that the Hargises could not question the character of the conveyance from Johnson to Robinson because in an action brought by them to have the deed declared to be a mortgage it had been finally determined adversely to their contention ; that is, the action had been dismissed by the court with prejudice to the bringing of another action. A hearing was had upon these issues and the court determined that W. 0. Robinson was entitled to one-half of the fund, and gave judgment accordingly.
This was an equitable proceeding, and the court rightly allowed intervention by W. 0. Robinson, who had not been connected with the litigation in his individual capacity. Ordinarily, a stranger to litigation who has an interest in a fund in controversy, or which is in the custody of the court, may intervene and assert a title.to all, or a portion, of such fund. It is contended that under the order and judgment of this court the district court was without authority to do anything but enforce the payment of the fund to the Hargises, and this regardless of whether they, or others, were then entitled to the fund. Where the direction in a mandate of the reviewing court is specific and final ordinarily the trial court must carry it into effect. However, a blind, technical and literal compliance with the mandate, without regard to new facts or to justice and equity, is not required. (Kansas Pacific Rly. Co. v. Amrine, Treasurer, &c., 10 Kan. 318; Conroy v. Perry, 26 id. 472; Duffitt & Ramsey v. Crozier, Judge, 30 id. 150, 1 Pac. 69; McDonald v. Swisher, 60 id. 610, 57 Pac. 507.) Of course, old facts are not to be reconsidered, nor adjudicated issues retried, but if new facts are presented and new rights have arisen a further inquiry and adjudication thereon may be had.
There was no attempt here to reopen the case or to retry any of the questions settled in that adjudication. It had been determined that the estates of Robinson and Read w'ere not entitled to subrogation ; that Mrs. Hargis, bjr reason of her purchase at the execution sale, and because the land had been sold under the erroneous decree of foreclosure, was entitled to the money derived from the sale. This was the decision as between the litigating parties, but there was no determination as to whether she had transferred or surrendered her right to the land or fund while the litigation was in progress. If she had already received payment of a part of the fund she could not insist upon an interpretation of the mandate of this court winch would require it to be paid over agaiu, and if she had assigned the fund, or a portion of it, to another, surely such other could intervene and show the assignment and his right thereunder, to a portion of the fund. Here the Hargises had transferred their interest in the land or fund to Johnson, who had re-transferred to Robinson, and no reason is seen why Robinson could not intervene at the time of the distribution and claim the share of the fund which the Hargises had actually transferred. While Robinson’s intervention was after judgment and review, its purpose was not to interrupt the litigation between the original parties or to retry the issues joined between them. It did not retard the original suit nor require the setting aside of the judgment rendered in it. It is based on a new right which arose after the litigation was begun, and upon an assignment and transfer which the Hargises themselves made. Intervention after judgment in an equitable proceeding is not uncommon, and especially where there is a fund for distribution.
Complaint is made of the ruling respecting the transfer of the land and because the plaintiffs in error were not permitted to show that the deed to Johnson was in fact a mortgage. Robinson contended, and the court held, that the Hargises were concluded by the litigation between them and Johnson on that issue. That action was brought in March, 1897, and concluded in December, 1899. After pending that length of time the plaintiffs by their attorneys, one of whom was Hargis himself, moved the court to dismiss the case “with prejudice” and at plaintiffs’ costs, and the court granted the motion and formally granted the dismissal “with prejudice.” No objection was made to the entry, nor'was its finality questioned by any one until the matter of the distribution of the fund in question arose. The contention now is that the dismissal “with prejudice,” at the instance of the plaintiffs’ attorneys, was not effective ; that it was in the nature of a common-law retraxit, which cannot be entered by an attorney, but must be made by the plaintiff in person. Provision having been made by statute, the common-law rule invoked does not apply.
Under our code and practice two methods of dismissal are provided — one is a dismissal “without prejudice” to a future action, for various reasons, and the other a dismissal “with prejudice” to a future action. Where a party voluntarily dismisses a case and wishes to reserve to himself the privilege of enforcing his right in a subsequent proceeding he should procure, and have entered, an order of dismissal, stating in express terms that it is “without prejudice.” An order dismissing “with prejudice” is equivalent to an adjudication upon the merits, and it will operate as a bar to a future action. The terms “with prejudice” and “without prejudice” have been recognized by the legislature and by the decisions of this court as having reference to, and being determinative of, the right to the bringing of a future action. (Civil Code, §398, Gen. Stat. 1901, § 4846; St. Joe & D. C. Rld. Co. v. Dryden, 17 Kan. 278; Brown v. Kirkbride, 19 id. 588; Allen v. Dodson, Sheriff, 39 id. 220, 17 Pac. 667; Banking Co. v. Ball, 57 id. 812, 48 Pac. 137; Railway Co. v. McWherter, 59 id. 345, 53 Pac. 135.) A dismissal under our practice differs from some of those suggested by plaintiffs in error in this, that it is a judicial act rather than the act of the party. Whether “with prejudice” or “without prejudice” it is in the nature of a judgment; and a judgment “with prejudice,” not set aside or reversed, is a final disposition of the controversy. (Allen v. Dodson, Sheriff, supra; Banking Co. v. Ball, supra.)
The relations between Robinson and the estates represented by him are not in controversy here, and if the purchase of the land, or of an interest in the fund, by Robinson was an abuse of his trust, as plaintiffs in error contend, it does not injuriously affect them, and is not a matter of which they may complain.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J. :
An action was brought by Emil Werner against the St. Louis & San Francisco Railroad Company to recover damages for an alleged diminution in the value of his property, caused by the construction of a railroad on a city street in front of the property. The railroad company answered that the building of the road in the street was legally and properly done, and that it did not interfere with ingress to, or egress from, the property, and occasioned the plaintiff no injury. A trial was had, in which the court charged the jury as to the measure of recovery, and, among other things, suggested that if the value of the property was enhanced by the building of the railroad, the increased value might be set off against any injury sustained by reason of the obstruction to the entrance to the property The jury found that the value of the property was not affected by the building of the railroad, and a general verdict was given in favor of the defendant.
Plaintiff moved for a new trial, assigning all the statutory grounds, including the one last mentioned in section 806 of the code(Gen. Stat. 1901, §4754), to wit: “Error of law occurring at the trial, and excepted to by the party making the application.” The motion was overruled as to all the grounds stated, but because of the instruction authorizing the jury to counterbalance damages suffered with benefits received the court granted a new trial. In disposing of the motion the trial «court remarked that there was evidence in the case justifying the giving of the instruction, if it had been a correct statement of the law, but held that the instruction was not a correct declaration of the law, and granted a new trial for that reason alone.
It appears from the record, however, that the instruction in question, as well as the entire charge, was given to the jury without objection or exception. Can a party sit by and listen to the giving of an instruction without objection or exception, and, after the case has been fully submitted and an adverse verdict returned, obtain a new trial because of the giving of such instruction ? We think not. A new trial may be allowed only on the grounds specified in the statutes. The giving of an erroneous instruction is an error of law occurring at the trial; but such error gives no ground for setting aside a verdict unless an exception has been taken to the giving of it. The grounds for a new trial provided for in the code are specific and exclusive. The only ground having any application to the question before us is the eighth one mentioned in section 306 of the code, to wit: “Error of law occurring at the trial, and excepted to by the party making the application.” To make such an error available there must be an exception. It has been said that “a party has no abstract, inherent right to a new trial. He has a right because and so far only as the statute gives it to him. . . . If he fails to pursue this mode he loses the benefit of any errors on the trial, and is concluded as to all matters occurring at the trial.” (Nesbit v. Hines, 17 Kan. 316.)
It was held in Sovereign Camp v. Thiebaud, 65 Kan. 332, 69 Pac. 348, that a trial court cannot set aside a verdict and grant a new trial arbitrarily and without reason; and, it may be added, it can never be done except for a statutory reason. In Publishing House v. Heyl, 61 Kan. 634, 60 Pac. 317, it was held that statutory remedies and methods supersede previously existing ones, and, the legislature having provided a method for obtaining a new trial, a party desiring one must conform to the prescribed requirements. Since the plaintiff took no exception to the instruction given, he is deemed to have acquiesced in it; and, assuming that it was erroneous, the lack of exception made the error unavailable and afforded no ground for setting aside the verdict and granting a new trial. (Darrance v. Preston, 18 Iowa, 396; Valerius v. Richard, 57 Minn. 443, 59 N. W. 534; Hayne, New Trial & App. §§ 7, 127.)
To overcome this omission plaintiff calls attention to a recital in the case-made that it contains all the pleadings and proceedings, “together with all the instructions given by the court and the objections made by either party, together with all rulings of the court and all papers filed in said case necessary to present the question raised and enable the supreme court to pass upon one question raised in the record, to wit: The giving by the court of the instruction complained of by the plaintiff, and for the giving of which a new trial was granted.” The recital does not affect the question under consideration. The question whether the giving of the instruction was a ground for a new trial is presented, and, assuming that the record contains all that it is said to contain, the question remains : Did the giving of an erroneous instruction, without objection or exception, warrant the granting of a new trial ? We think not; and, therefore, the order granting a new trial must be reversed, and the cause remanded with instructions to enter judgment for the plaintiff in error.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J. :
In a foreclosure proceeding against property formerly owned and improved by Mettie Johnson were involved mechanics’ liens, tax liens, and a mortgage lien of the Badger Lumber Company. It was brought by one Grigsby, who claimed a mechanic’s lien, and later the Badger Lumber Company came in and set up its mortgage and also a mechanic’s lien judgment of Turner & Moose, which they had purchased. A tax lien in favor of Rockwell was also pleaded, and in the decree then rendered the Rockwell claim was declared to be a first lien, the Grigsby and Turner & Moose claims were declared second liens, and the lumber company’s claim was decreed to be a third lien. The property was sold by the sheriff under the decree to Toll, the agent of the lumber company, for $375, and when the company attempted to take possession of it they learned that Emma L. Stough claimed ownership of the property when the foreclosure proceeding was brought and judgment rendered. As Stough and her grantor, Walter A. Johnson, were not parties to that proceeding, the present suit was brought.against them and their tenants, who had been in possession at and before the time the former action was brought. The company asked a foreclosure of their mortgage as against these parties, and also to be subrogated to the rights of the other lien-holders whose liens were in litigation in the first foreclosure action.
In her answer, Stough, in addition to a general denial, alleged that she was the owner of the property and was in possession of it by her tenant, Hammer, when the Grigsby action was brought; that the Grigsby lien was invalid; that another of the liens had been paid; and that the $200 mortgage of the lumber company, as well as another one on other property, was given for the consideration that the lumber company would pay off the liens in controversy, including the unpaid taxes charged against the property. These averments were denied by the lumber company, and on the trial the court found that there was due the company upon the mortgage and other liens $750, declared the amount to be a first lien upon the property, and decreed a foreclosure.
The right of Stough to defend against the liens mentioned was denied, and all of the testimony offered by her to that end was ignored and stricken out. The proceedings on the first foreclosure were received in evidence, and the findings and judgment of the court declaring and adjudging liens appear to have been regarded as binding upon Stough. As she was a grantee under the mortgagor, and was not made a party to the action, the foreclosure was wholly inoperative as to her. The owner of the legal estate is an essential party to an effective foreclosure, and if Stough held the record title or an ownership which imported notice to others, the judgment of foreclosure was a nullity as to her, and the proceedings could not be used as evidence of established liens against her land. It is said that when the Grigsby action was begun, on January 26, 1898, Mettie Johnson was still the apparent owner of the property. She conveyed to "William Keffer on January 2,1897, more than a year before the Grigsby action was commenced, and while proof of the recording of the deed was not included in the case-made, enough appears to warrant an inference that it was recorded before the action was begun. The direct proof of the recording of the deed is said to have been accidentally omitted from the case-made, but evidently there was some notice of the conveyance, as. Keffer was made a party to the Grigsby action. Keffer conveyed the property to Walter A. Johnson on January 21, 1898, and this conveyance was recorded on January 22, 1898. Johnson conveyed the property to-Emma L. Stough on January 24, 1898, two days before the commencement of the action, but the deed .was not-recorded until January 31, 1898, five days after the action was instituted. It was recorded* however, before the answer and cross-petition of the-lumber company asking a foreclosure of its mortgage-was filed.
While there was some bungling in presenting and' preserving the testimony as to the recording of the conveyances, we think that offered tended to show that the record title to the property was in Walter A. Johnson when the suit was brought. However that may be, there was sufficient testimony that each of the successive grantees in the conveyances mentioned was in actual, open possession of the land, and that Stough held possession through a tenant when the Grigsby suit was begun. If, in addition to an unrecorded deed conveying the legal estate in land, there is in the grantee actual, visible, exclusive and notorious possession, it is sufficient to constitute noticé of title and to put all persons upon inquiry. (Johnson v. Clark, 18 Kan. 157; School District v. Taylor, 19 id. 287; Greer v. Higgins, 20 id. 420; Tucker v. Vandermark, 21 id. 263; McNeil v. Jordan, 28 id. 7; Utley v. Fee, 33 id. 683, 7 Pac. 555.)
The lumber company rightly concluded that Stough was a necessary party to an effective foreclosure and prudently brought this action for that purpose. As to her the liens were unadjudicated. The first proceeding operated to give the purchaser nothing higher than an assignment of the liens and a right to proceed anew to foreclose them. (Henrietta Frische v. Henry Kramer’s Lessee, 16 Ohio, 125, 47 Am. Dec. 368; Childs v. Childs and others, 10 Ohio St. 339, 75 Am. Dec. 512; Kelgour v. Wood, 64 Ill. 345; 2 Jon. Mort., 6th ed., § 1395.)
In foreclosing de novo it devolved upon the company to show the existence and validity of the liens and to what extent it had been subrogated to the .rights of the lienors. In this case Stough stepped into the shoes of the mortgagor, and, unless estopped in some way, is entitled to contest the liens and prevent the enforcement of the same against her property. (Waterson v. Kirkwood, 17 Kan. 9; Schmucker v. Sibert, 18 id. 104, 26 Am. Rep. 765; Grattan v. Wiggins, 23 Cal. 16.)
It is ai'gued that because Keffer, Johnson and Stough accepted deeds subject to the mortgage and other liens, Stough is in no position to contest them. The instruments were warranty deeds, containing the usual covenants, with an exception as to the one against encumbrances. In the deed to Keffer, as well as in the one to Stough, the grantors covenanted that the premises conveyed were free and clear of all encumbrances except a $200 mortgage made to the Badger Lumber Company, and taxes, while in the conveyance from Keffer to Johnson the covenant was that they were “free and clear of all encumbrances, •except all back taxes and liens and mortgage held by the Badger Lumber Company,” etc. It will be observed that there was no assumption of the mortgage debt by the grantees, nor was the property taken subject to the payment of the liens. The exception is not the equivalent of a statement that the grant is made subject to the mortgage or other liens, and there is nothing approaching an affirmative recital of the existence or validity of any liens. The recital involved here is only a limitation of the covenant-against encumbrances, and is not such a recognition of the mortgage or other liens as will estop the grantee from contesting their enforcement against the property conveyed.
A like exception was before the supreme court- of" Minnesota, and it was held that it did not estop the grantee from denying the existence or the validity of the mortgage. It was said :
“In the case at bar, the grant is not made subject to-the mortgage; neither does the deed contain any stipulations that the mortgagee shall pay it. There-is nothing expressly declaring it a lien on the premises. There is nothing in this deed by way óf recital that-would estop even the grantor himself. It contains no-direct or affirmative recital of the existence of such a. mortgage, much less of its validity, or that it was a. lien upon the premises. The language is wholly negative. It asserts nothing affirmatively regarding; the mortgage. It merely excepts it from the covenant-against encumbrances. The meaning of this, in effect, is simply that the grantor will not covenant that it is-not an encumbrance.” (Calkins v. Copley, 29 Minn. 471, 13 N. W. 904.)
See, also, Bennett v. Keehn, Imp., 67 Wis. 154, 29 N. W. 207, 30 N. W. 112; Weed Sewing Machine Company v. Emerson, 115 Mass. 554; Maher et al. v. Lanfrom et al., 86 Ill. 513; Brooks v. Owen, 112 Mo. 251, 19 S. W. 723, 20 S. W. 492; Williams v. Thurlow, 31 Me. 392; Briggs v. Seymour, 17 Wis. 263; Russell v. Kinney, 1 Sandf. Ch. 34; Hartley v. Tatham et al., 10 Bosw. 273; Thompson et als. v. Morgan, 6 Minn. 292 (Gil. 199); Barrett v. Blackmar, 47 Iowa, 565.
The lumber company may, of course, maintain a, foreclosure against Stough, and is entitled to be re garded as the assignee of the other liens, or, rather, to be subrogated to the rights of the lienors to the extent of the money paid at the sale.
While the first proceeding settled matters of indebtedness and other questions as between the parties then before the court, it did not affect in any degree the rights of Stough. As to her it became necessary for the lumber company to prove the existence and the validity of the liens, not by the findings and judgment in the first case, but by such competent proof as would have been required if the suit had been brought against her in the first instance ; and this was not done. She was entitled to contest the liens and to show any fact or circumstance which would preclude their enforcement against her property. Competent testimony was offered in behalf of Stough, tending to show that the claims were not enforceable as liens against the property, but it was all stricken out, as well as that which tended to show that she was a purchaser in possession. This was error.
In view of the admissions made at the trial and in the course of the argument here, the refusal of a jury is no longer a material matter.
The judgment is reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J. :
This is suit in partition by W. F. Connell, as guardian of Midget Connell, minor heir of D. W. McKey and Sarah McKey, deceased, against Isaac Moore and others. Plaintiff claimed for his ward an undivided one-fourteenth of a 200-acre tract in Elk county. There was judgment for defendants quieting title against the claims of plaintiff.
In February, 1901, D. W. McKey died intestate, leaving as his only heirs a widow, Sarah McKey, six adult children, and two grandchildren — the issue of a deceased daughter, Elizabeth J. Connell, one of them being the minor, Midget Connell. Within a week after the death of D. W. McKey his widow, Sarah McKey, died intestate, leaving the six children and two grandchildren as her only heirs. D. W. McKey, at the time of his death, was the owner of a tract of 200 acres of land in Elk county, upon which he, with his wife, Sarah McKey, were residing at the time of his death. There was no administration upon the estates of said D. W. McKey or Sarah McKey, deceased. W. F. Connell is the father of Midget Connell, and the surviving husband of Elizabeth J. Connell. He, with the members of his family, including the minor, Midget Connell, continuously resided in Greenwood county.
On the 30th day of April, 1901, W. F. Connell was by the probate court of Elk county appointed guardian of the person and estate of Midget Connell. In the letters of guardianship, and in all proceedings in the probate court of that county, Midget Connell was designated as the minor heir of Elizabeth J. Connell. On the same day said guardian, by petition, made application to the probate court of Elk county to sell the minor’s interest in the 200-acre tract, which was designated as an undivided one-twenty-eighth of the tract. In these proceedings no reference was made to the minor’s interest’s having been inherited through the grandparents, D. W. McKey and Sarah McKey. After approved notice on the minor and a hearing by the court, it was ordered sold at private sale, for cash, at not less than three-fourths of its appraised value. The one-twenty-eighth interest was appraised at $129.10. The guardian, on May 24, 1901, reported to the probate court the private sale of it to L. S. Trusler, for $129.10, cash in hand.
This sale was by the probate court approved, and the guardian ordered to execute and deliver to the purchaser a deed for the lands and tenements sold. Pursuant to said order the guardian executed to L. S. Trusler a deed conveying “all the right, title and interest of said minor in and to’’ the 200-acre tract. Thereafter the grantee obtained the possession of the deed from the guardian, to be used in establishing title to the premises for the purpose of procuring a loan to pay the purchase-price thereof, he having theretofore purchased the interests of the other heirs.
It appears that through Trusler, or the parties interested in making the loan, the guardian’s deed was placed on record without the knowledge or consent of the guardian. The probate judge about this time discovered that Elizabeth J. Connell, the mother of the minor, had died prior to the death of her parents, D. W. McKey and Sarah McKey, and that the minor’s interest in the premises was an undivided one-fourteenth instead of an undivided one-twenty-eighth, the basis upon which the guardian’s sale had been conducted and approved by the probate court. It had been theretofore considered by the probate court, and by the parties interested, that W. F. Connell, the surviving husband of Elizabeth J.- Connell, deceased, had inherited and owned one-half of the interest which his deceased wife inherited through her parents. Trusler was ready and willing to pay the guardian for an undivided one-fourteenth interest in the premises, on the basis of $3600 as the purchase-price for the 200-acre tract, but insisted that he first obtain through the guardian good title for a one-fourteenth interest. In that condition the matter dragged along. In the meantime defendant Isaac Moore purchased of Trusler the 200-acre tract, taking from Trusler a warranty deed therefor, and has since been in the occupancy of said premises.
On the 19th day of March, 1902, W. F. Connell, believing that the probate court of Elk county was without jurisdiction to appoint him guardian, and that all proceedings in that court were void, made application to the probate court of Greenwood county, the county of the minor’s domicile, and was appointed guardian of the person and estate of Midget Connell, minor heir of D. W. McKey and Sarah McKey, deceased, and as such guardian commenced this suit in partition.
It is claimed by defendant Moore that he bought the land of Trusler relying upon the record title, and was in possession under the purchase ; that he had no knowledge that the deed had not been delivered by the guardian to Trusler, or that the purchase-price remained unpaid. While the deed recites that it conveys all the interest of the minor in the 200-acre tract, it discloses that the probate proceedings were before the probate court of Elk county. The proceedings in the Elk county probate court, of which Moore was bound to take notice, disclose that the minor was a resident of Greenwood county. The application to sell the minor’s interest in the premises, and the order made thereon, referred to a one-twenty-eighth, instead of a one-fourteenth, interest.
The testimony of defendant Moore disclosed that he was acquainted with the family of D. W. McKey and Sarah McKey; that he knew the minor, Midget Connell, inherited her interest in the premises from her grandparents; that the grandparents survived Elizabeth’J. Connell, mother of the minor, and that he also knew that the minor resided in Greenwood county.
It cannot, then, well be said that defendant Moore purchased the premises relying upon, and was misled by, the records. While he may have been without knowledge that the guardian’s deed had not been delivered to Trusler, and that the purchase-price had not been by Trusler paid to the guardian, the sufficiency of his- title does not depend upon these facts. Nor is the question to be determined, as suggested, whether the proceedings of the Elk county probate court, and the guardian’s deed based thereon, conveyed an undivided one-twenty-eighth, or an undivided one-fourteenth, interest in the 200-acre tract.
The real question to be determined is, Did the probate court of Elk county acquire jurisdiction to appoint such guardian and make its order directing a sale of the minor’s interest in the premises? If, because it was not the county of the domicile of the minor, the probate court of Elk county was .without jurisdiction, then the proceedings in that court and the guardian’s deed were void, the guardian’s deed passed no title, and the district court erred in rendering judgment for defendants.
In the preparation of the civil and criminal codes (Gen. Stat. 1901, chs. 80, 82) care was exercised to designate specifically what district court in the several counties of the state should acquire jurisdiction of civil and criminal cases. Equal care appears to have been exercised in the executors’ and admistrators’ act (Gen. Stat. 1901, ch. 37) to designate specifically what probate court in the several counties of the state should acquire jurisdiction to administer upon the estates of deceased persons. A like degree of care is not shown to have been exercised, in the act relating to guardians and wards (Gen. Stat. 1901, ch. 46), to designate specifically what probate court in the several counties of the state should acquire jurisdiction for the appointment of a guardian to administer upon the estates of minors residing in the state and having property necessitating the appointment of a guardian.
Section 1 of said chapter 46 declares the father and mother to be the natural guardians of the persons of their minor children. Section 4 provides that, where the minor child has property not derived from either of the parents, “a guardian must be appointed by the probate court to manage such property.” Section 5 provides that the father, or, in case of his death, absence, or incapacity, the mother, may be appointed guardian to take charge of the property of the minor, if by the court deemed a suitable person. If there be no testamentary guardian, and both parents be dead, or disqualified to act as guardian, it is provided by section 2 that ‘‘.the probate court may appoint one” ; but it is not specifically stated what probate court shall have jurisdiction. The clear and reasonable inference to be drawn from the provisions of the act, and from the language used, is that the court having jurisdiction to appoint a guardian for the estate of a minor is the probate court of the county of the minor’s domicile.
It appears that the precise question has never been determined by this court. In Modern Woodmen v. Hester, 66 Kan. 129, 71 Pac. 279, following the declaration that after-the death of the father the domicile of the mother determines the domicile of the minor children, it was impliedly said that the probate court of the county of the minor’s domicile was the court having jurisdiction to appoint a guardian. The court of appeals of Missouri, in construing an act quite similar to our own, relating to guardians and wards, held that the jurisdiction to appoint a guardian for a minor rests alone with the probate court of the county where the minor has his domicile. (De Jarnet v. Harper, 45 Mo. App. 415.)
It is the policy of the law to give to the individual a near-by and convenient court. Save in exceptional cases, hardships have not been visited upon the citizen by requiring him, at the expense of time and means, to respond over long distances to the process of the courts. The jurisdiction of tribunals having judicial powers has wisely been limited in that particular. In pursuance of this policy of the law there has been established by the legislature a probate court in each county of the state. The undoubted purpose of the legislature in so doing was to give the inhabitants of each county a near-by and convenient tribunal having jurisdiction of probate matters. It will hardly be urged that an exception to these favors in the law was intended by the legislature to be made against the resident minors. Because of their tender years and lack of experience, minors are favorites of the law. It is not uncommon to find exceptions in the law par ticularly favorable to them. For the reasons stated, to permit a probate court other than that of the county of the minor’s domicile to take jurisdiction of his person and estate would be legislation discriminating against him.
The mere fact that the legislature failed to designate specifically, in the act relating to guardians and wards, what probate court should acquire jurisdiction of the persons and estates of minors will not be presumed to have been intended to operate against the minor ; nor should it be construed to his disadvantage, if equally susceptible of two constructions. If, as in the case at bar, the county adjoining that of the minor’s domicile had jurisdiction of the person and estate of the minor, as was sought to be exercised by the probate court of Elk county, then any county in the state, no matter how remote, especially where there chanced to be property belonging to his estate, would have, or could acquire, jurisdiction. This might not only result in much inconvenience, and be also used to the minor’s disadvantage in administering the affairs of the estate, but the distance would necessitate added and unnecessary expense.
The judgment of the district court will be reversed, with direction to proceed in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Clark A. Smith, J. :
This action was brought by plaintiff in error against defendant in error, who was the postmaster at Le Roy, in the district court of Coffey county, to recover damages for the failure to deliver a postal card, when called for, which was addressed to him and was in the post-office at the time he called for it. No actual damage was alleged. The only damages claimed seem to have been for mental pain and anguish in failing to receive notice of the death of the plaintiff’s father, and his consequent inability to attend the funeral.
, The trial was had to a jury. The plaintiff introduced evidence that the postal card arrived at the post-office at eight o’clock a. m. on the 16th of the month; that he called for it five times thereafter before it was delivered to him on the afternoon of the 19th ; that a woman, who was admitted to be the assistant postmaster, and a son of defendant were in charge of the office at these times ; that plaintiff was prevented from attending his father’s funeral by the failure to deliver the postal card the first time it was called for, on the 16th. Neither the duties nor the capacity of defendant’s son in the post-office were shown; and no actual damage, if any, was shown.
A demurrer to the evidence of plaintiff was interposed, and sustained. The plaintiff immediately asked permission of the court to reopen the case for the purpose of proving by the assistant postmaster-and the son of defendant that they were in the office and in charge thereof during the time alleged. The court remarked that such proof would be received if, in addition, counsel would show their duties. This not being offered, the request to reopen was denied. The errors complained of are the ruling upon the motion to reopen and the rendering of judgment for the defendant.
Assuming that the assistant postmaster and the defendant’s son were in charge of the post-office for the purpose of delivering mail, and as employees of the defendant and not as appointed officials of the government, the evidence tended to show gross, if not wanton, negligence, and if any actual injury had been alleged and proved, as the evidence indicates there might have been, actual damages might have been recovered, and in addition thereto exemplary, or punitive, damages. Exemplary damages, however, cannot be recovered in the absence of actual damages. (Schippel v. Norton, 38 Kan. 567; West v. Telegraph Co., 39 id. 93, 99, 17 Pac. 807, 7 Am. St. Rep. 530, and cases there cited.)
Damages for mental suffering and anguish, and this seems to be the only kind alleged or proved in this case, can only be recovered where the same are consequent to physical injuries.
After a party to an action has offered all his evidence and rests his case, and a demurrer thereto is interposed and sustained, a motion for leave to reopen the case for the purpose of offering further specific evidence addresses itself to the sound discretion of the court, and should be allowed or refused according as the ruling may be in the furtherance of justice. The only ground for reversing such ruling is that such discretion has been abused. It is not error for the court to condition the allowance of such motion to reopen upon the offering of still further evidence, regarded by the court as essential; especially when such further evidence is known to be immediately accessible.
Surely where, as in this case, all of the evidence,, including that produced, that sought to be offered, and. that suggested by the court, would still fall short,, considered in its most favorable light, of establishing; any cause of action in favor of the plaintiff, there can be no error in denying the motion to reopen.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J. :
Charles Grayson Parmenter, who killed Frank T. Bruner, was prosecuted upon a charge of murder in the first degree, convicted of murder in the second degree, and sentenced to the penitentiary for a term of thirteen years. Upon his appeal he complains of rulings made upon applications for change of venue. He first applied for a change to a county other than Bourbon, where the homicide occurred, because of the prejudice of the people of that county against him. As manifestations of local prejudice he showed that after the preliminary examination the officers, fearing mob violence, removed him to the jail of an adjoining county, and also that full accounts of the tragedy had been published in the local papers.
In support of his application appellant filed many affidavits of people of Fort Scott, where Bruner was killed, and of some residing in other parts of the county, that prejudice existed against Parmenter, and that in their opinion a fair trial could not be had in the county. In most of them there was a statement to the effect that for years Parmenter had been accused of open and notorious violations of the prohibitory liquor law, which affiant believed had caused a deep-seated prejudice against him in the minds of the -people. Numerous residents of the county, many of whom lived outside of Fort Scott, testified in behalf of the state to the effect that no prejudice of which they were aware existed against the defendant, and that in their judgment he could have a fair trial in the county. There was testimony, also, that the excitement created by, and which immediately followed, the homicide had subsided and that outside of a few friends of the deceased Bruner the people were desirous that a fair and impartial trial be given to the defendant.
The fact that a part or a large number of the people of a county may be prejudiced against the defendant does not warrant a change of venue, if the other residents are free from prejudice and the defendant may still have a fair and impartial trial in the county. It is not enough that prejudice against the defendant exists; but, as the statute provides, it must exist to such an extent “that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair trial cannot be had therein.” (Crim. Code, §174; Gen. Stat. 1901, §5616.) In Fort Scott, and the immediate vicinity, many of the people may have been disqualified to act as jurors; but that city is on the eastern border of the county, and witnesses living fifteen to twenty miles from the city said that in their communities they found no prejudice against the defendant. It does not appear that any difficulty was experienced in obtaining an unprejudiced and qualified jury in the county, and no complaint is made of the jury that tried him, or of the verdict which they returned against him. The numerous statements that he had been charged with violations of the prohibitory liquor law do not go far to establish prejudice. Opposition to the business in which he may have been engaged is not necessarily antagonism to him, although the business is illegitimate ; at least, it is not the equivalent of disqualifying prejudice.
In passing upon this phase of the case, and the condition of local sentiment in the county, the trial court remarked :
‘ ‘ Everybody knows that it is more difficult to con vict a man in this district of selling liquor than to convict him of murder. He gets more lawyers to defend him ; raises more points and carries more juries on a trial for violating the prohibitory law than he will for murder. I do not believe that any man is ever unpopular here in Fort Scott because he violates the prohibitory liquor law. . . . • I do not think there is any danger of his not getting a fair trial on .that account. I think there would be no class of men who would be so safe on prosecution ; that any of the rest of us would be in more danger of not getting a fair trial than the man. who violates the prohibitory law.”
A change of venue works delay, enhances expense, and is deemed to be a wrong to the public unless justice to the defendant requires it. Before a change can be granted it must affirmatively appear that such prejudice exists as will be reasonably certain to prevent a fair trial. The evidence as to local prejudice in this case was conflicting. That conflict, like others arising upon facts, is for the trial court to determine. In doing so the court is vested with discretion, and, aside from the presumption that the discretion was not abused, and that the question was correctly decided, there appears to be abundant evidence to sustain the ruling made by the court. (The State v. Bohan, 15 Kan. 407; The State v. Bohan, 19 id. 28; The State v. Furbeck, 29 id. 532; The State v. Daugherty, 63 id. 473, 65 Pac. 695.)
After the refusal application was made for a change of venue to another district on the ground that the judge was prejudiced against the defendant. The charge of prejudice in the mind of the judge was based mainly on his denial of the previous application for a change of venue, and upon some other preliminary rulings in the case. These rulings, even if they had been erroneous, did not afford grounds for the change. “Errors of judgment do not amount to prejudice or ill will on the part of a judge. The theory of our judicial system is, that courts of nisi prius may commit errors of judgment in matters of law, which are to be reviewed by courts of last resort; but such errors have never been held equivalent to prejudice.” (The State v. Bohan, 19 Kan. 28, 52.)
The prejudice of the judge, which is made a statutory ground for a change of venue, refers to the prejudice against a party, and not to an opinion that the judge has formed, or is believed to entertain, upon a legal question arising in the case. Nothing in the rulings made, or in the language of the judge in making them, indicates any prejudice against the defendant. Indeed, it appears that the judge had no personal acquaintance with him. In a full and dispassionate statement of his relation to the defendant and to the case, the judge, among other things, said :
“I am not conscious of having the least prejudice against the defendant, and I know of no reason why I should have. ... So far as weak humanity can follow in the footsteps of divinity, every accused person shall have a fair -trial before me, as I hope to have a fair trial before the higher and perfect tribunal before which we must all sooner or later appear. I am unable to grant the application without violating my official oath, by finding a fact to exist which I am satisfied does not exist.”
Complaint is made of refusal of a motion for a continuance. The application was based chiefly on the ground that the defendant had not had sufficient time and opportunity to prepare for trial. The killing occurred on November 12, 1902. The preliminary examination was held on November 22. The case was called for trial at the following term of court, on January 5, 1903, and after some preliminary matters were disposed of the application for a continuance was made on January 19, 1903, and, although denied, the case was not set down for trial until the 2d day of February, 1903 ; and thus fourteen days’ additional time was given the defendant for preparation. The granting of a continuance.rests largely in the discretion of the trial court, and it is manifest that there was no abuse of such discretion in this .case. The same may be said of the ruling allowing the name of a witness to be indorsed on the information at the time of trial, of which complaint is made.
No attack is made on the proceedings at the trial, or upon the verdict or sentence.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
This action was brought by C. C. Straughan against the Providence-Washington Insurance Company to recover loss by fire on a $1300 policy issued to plaintiff by defendant. The trial was before the court and a jury, resulting in a verdict and judgment for plaintiff in the sum of $1300. The policy of insurance sued upon was issued to plaintiff on the 26th day of February, 1901, through P. L. Snyder, defendant’s local agent at Arkansás City, where the property was situated. The policy insured plaintiff against loss by fire on dwelling. Concurrent insurance was permitted. At the time of the loss by fire, March 12, 1901, there was upon the dwelling concurrent insurance in the sum of $1200 in the Queen Insurance Company of America, placed thereon February 26, 1901, by said P. L. Snyder, who was also the local agent of said company at Arkansas City. The dwelling was vacant at the time the fire occurred. This case is almost identical with case of Insurance Co. v. Straughan, ante, p. 186, an action on said policy of concurrent insurance. The decision in that case is decisive of this one.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Atkikson, J. :
J. E. Youngberg was found guilty of maintaining a nuisance, and sentenced to thirty days in the county jail and to pay a fine of $200 and costs of the prosecution. He appeals to this court.
The state challenges the sufficiency of the record' and the right of appellant to be heard. It appears that on the day sentence was pronounced, April 23, 1904, defendant was given sixty days to prepare a bill of exceptions, which on June 20, 1904, was tendered- to the judge, and on June 24, 1904, the same was allowed and signed. Although it was presented to the district judge within the sixty days allowed by the order, more than the sixty days elapsed before it was allowed and signed.
It is contended by defendant that the presenting of a bill of exceptions to the judge within the time allowed is a compliance with the order ; that the defendant has then done all that he can, and all that can be required of him. This contention is not good. It is not sufficient that the bill of exceptions be presented to the judge to be allowed and signed within the time given. Defendant’s duty does not end there. He is charged with diligence in the premises. To present a bill of exceptions to the judge and give it no further attention, relying upon its being allowed and signed within the time given, is not sufficient. The judge should be given time to review it. If he have not time to do so within the period given, an extension of the order should be obtained. If he refuse to allow and sign the bill, defendant has his remedy in mandamus. Whatever the situation, defendant must be diligent to protect and consummate his appeal, and no such diligence is here shown. The bill of exceptions was not allowed and signed in time.
. The state assigns as a further reason why the record in this case cannot be reviewed that the transcript was not filed in this court within ninety.days after the rendition of the judgment, as provided by chapter 389, Laws of 1903. Since, for the reason first assigned, so much of the record as is embodied in the bill of exceptions cannot be reviewed, a discussion of the second reason is unnecessary. A discussion of that question will be found in Youngberg v. Smart, immediately followiug, which is a proceeding in mandamus growing out of this case, and submitted with it.
The portion of the record embodied in the bill of exceptions not being reviewable, only one of the errors assigned by appellant can be reviewed. The information charged, in substance, that defendant’s building is, and continuously for more than two years last past, up to and including the 5th day of September, 1903, has been, kept and maintained by defendant as a common nuisance. The information was verified and filed, defendant arrested, and let to bail, all'on September 5, 1903. Defendant moved to quash the information. It is the contention of appellant that the information charged the offense of keeping and maintaining a common nuisance in the past, the present, and the future, and is bad. Error is assigned that the trial court overruled defendant’s motion to quash. It is claimed that the court should have sustained the motion on the authority of The State v. Chiles, 64 Kan. 453, 67 Pac. 884.
The same question was raised in Manhattan v. Holbert, 65 Kan. 861, 70 Pac. 1130, which was a prose cution for keeping and maintaining a common nuisance in violation of the ordinances of the city of Manhattan. The complaint there charged the offense on the 31st day of March, 1902, when the complaint was verified and filed. In passing upon that case this court said:
“The allegations of the complaint do not fall within the rule laid down in The State v. Chiles, 64 Kan. 453, 67 Pac. 884. In that case the complaint did not charge the keeping of the place at the time the liquors were sold. Here the complaint alleges that-on the day of the verification and filing of the complaint the appellant kept and maintained a common nuisance. The case is distinguishable from The State v. Chiles, supra.”
That case is decisive of the question raised in this - one. The court committed no error in overruling the motion to quash, and the judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
This proceeding involves the construction of the will of George Mollenkamp, who died March 22, 1888, owning personal property valued at $635 and a farm worth about $2500, subject to a mortgage for $600. He was survived by his widow, two sons, aged respectively twelve and eleven years, and four daughters, one aged seventeen years, the others all younger than the sons. His will was drawn by a neighbor unversed in the law, and reads as follows :
“I, George Mollenkamp, of the county of Lincoln, state of Kansas, being of sound mind and memory, do make and publish this, my last will and testament, in manner and form following, that is to say :
"First: I give, devise and bequeath to each of my children the sum of $25 (twenty-five dollars) to be> paid to each on their respective twenty-first birthdays,, said moneys to be paid from the proceeds of the farm..
“Second : I give, devise and bequeath to my beloved1, wife, Catharina Adelpheia Mollenkamp, the farm on* which she now resides, to have and to hold during her' natural life, for the benefit of self and family. I desire that the farm at her death should go to my two» sons, Louis and George, providing that they have been obedient and kind to their mother and sisters, and displayed energy in developing the best resources of the farm, and providing also that they pay over whatever difference there may be in the appraisement or allotment made by their mother for the benefit of my other children, said allotment to be made at the discretion of my wife.
‘ ‘ And last, I hereby constitute and appoint my said wife, Catharina Adelpheia Mollenkamp, to be the executrix of this my last will and testament.
“In witness whereof, I have hereunto set my hand, this 5th day of March, a. d. 1888."
The will was duly probated- and the widow elected to accept its provisions. She died June 7, 1889, without having taken any action under the clause relating to appraisement and allotment. A guardian for the minor children was appointed, who took charge of, and managed, the farm for the benefit of all the children for some years, paying off the mortgage from its proceeds. In 1897 he leased it to George, who at the time bought of him certain personal property of the estate, paying therefor $450, which was divided equally among the children. In 1902 the four daughters brought an action for partition, claiming that each child owned an undivided one-sixth of the farm. The two sons answered, asserting title to the whole of it under the terms of the will. The trial court sustained the claim of the plaintiffs, and the defendants, Louis and George Mollenkamp, prosecute error.
In support of the judgment rendered it is suggested that the portion of the will relating to the farm’s going to the sons upon the death of their mother should be treated as a mere recommendation and not as an imperative direction, since it employs the phrase “I desire," in apparent contrast with the twice-repeated expression “I give and bequeath." Whether in any •given case words of a will precatory in form are to be interpreted as mandatory in effect depends upon the true intent of the testator, to be arrived at by consideration of the context, and, perhaps, of the attending circumstances. Here we shall assume that the doubtful term should not be literally construed, but should Rave the force of a command, although there is room fbr -a plausible argument to the contrary. The inquiry, then, is whether the will imposed upon the acquisition of the property by the testator’s sons a condition precedent which has not been performed. This likewise is to be determined by a rational search for the real purpose of the decedent, in the light of all available sources of information. Thus viewed the problem is not difficult of solution.
The provisions regarding the good conduct of the sons may be treated as unimportant, or, perhaps, as presumptively having been fulfilled, but there remains the fact that the devise to them is made to depend upon their paying over “whatever difference there may be in the appraisement or allotment made by their mother for the benefit of” the other children, such allotment to be made at the discretion of their mother. The words quoted doubtless have no distinct technical meaning, but obviously they were used to express the idea that the mother was to estimate the value of the farm and divide the amount, in to as many parts as there were children, and that the sons were to take the property, provided they should pay to each of the daughters the amount determined by such appraisement and allotment. The only other interpretation offered by plaintiffs in error is that the provision that the allotment was to be made “at the discretion of” the mother meant that she was to be at liberty to make it, or not to make it, as she should see fit, implying that it rested with her to charge against the farm, for the benefit of her daughters, such sum as she should deem proper, or by inaction to permit her sons to take it absolutely. 1Ye do not think such a reading is fairly to be derived from the language itself, from the context, or from any of the attendant circumstances. The appraisement and allotment are spoken of, not as steps that may be taken, but as steps that are to be taken. The matter com mitted to the discretion of the widow is not whether an allotment shall be made, but how it shall be made. This seems the natural meaning, and we think it the one intended by the testator.
It is evident that the father had no thought of discriminating against any of his children; that he wished his sons to acquire title to the farm, to the exclusion of their sisters, only upon making them due compensation, to be determined by the method indicated. This constituted the requirement a condition precedent. Whether or not it was necessary that any money should actually be paid, or that the land should be accepted subject to its payment, before the title should vest in Louis and George Mollenkamp, it was necessary that the amount should be fixed ; and, as this never was fixed, and as upon the death of Mrs. Mollenkamp it became impossible to fix it in accordance with the terms of the will, the performance of the condition became impossible, and the title became absolute in the heirs of the senior George Mollenkamp. (Goff v. Pensenhafer, 190 Ill. 200, 60 N. E. 110; Stark and others v. Conde, 100 Wis. 633, 76 N. W. 600.) The requirement exacted of the defendants was in the nature of a consideration for the devise, and on that account it should be regarded as a condition precedent. (29 A. & E. Encycl. of L., 1st ed., 473, 474.)
It is urged by plaintiffs in error that the silence of the will as to the effect of a failure to perform the conditions named — there being no devise over and no forfeiture provided for in set terms — militates against the conclusions announced. In the case of personal property such an omission is, by a technical rule, given peculiar force ; but where real property is affected this rule does not apply, and the circumstance is important only so far as it may tend to throw light upon the purpose of the testator. (2 Jarm. Wills, 5th Am. ed., 582; Phillips and ux. v. Ferguson and al., 85 Va. 509, 1 L. R. A. 837, 17 Am. St. Rep. 78, 8 S. E. 241; Tilley v. King, 109 N. C. 461, 13 S. E. 936; Mills v. Newberry et al., 112 Ill. 123, 1 N. E. 156, 54 Am. Rep. 213.) In some cases it might, in that aspect, afford an argument against a change of disposition resulting from a breach of the condition, upon the principle that had any such change been in contemplation a statement would naturally have been made as to what it should be ; but here it is plain that the testator had no thought of the property’s going elsewhere upon the death of his wife than where it would have fallen by law — to all his children in equal shares, except in the event specially provided for — the fulfilment of the condition precedent.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
On October 6, 1901, Robert Hawthorn Burton was convicted of murder in the first degree. By reason of the rejection of certain evidence offered by the defendant at the trial the judgment was .re versed, in The State v. Burton, 63 Kan. 602, where the circumstances of the homicide are stated. A new trial resulted in a conviction for murder in the second degree, which also was set aside on appeal on account of the misconduct of jurors. (The State v. Burton, 65 Kan. 704, 70 Pac. 640.) Upon a third trial, the defendant was again convicted of murder in the second degree, and once more appeals.
Various assignments of error have been argued, all of them based upon such rulings as can only be reviewed when embodied in a bill of exceptions. The state objects to the purported bill of exceptions found in the transcript upon the ground that it was not settled within proper time. It was settled and signed December 14, 1903, after the expiration of the term of court at which the trial was had. The time for settlement had been duly extended by a succession of orders until November 1, 1903. On October 30, 1903, an order was properly made extending the time “until the 4th day of December, 1903." No further extension was made until December 4, when a new order was made extending the time to December 20. It is obvious, therefore, that within the rule announced in Croco v. Hille, 66 Kan. 512, 72 Pac. 208, and followed in The State v. Dyck, 68 Kan. 558, 75 Pac. 488, jurisdiction to make a valid bill of exceptions was lost before the document relied upon by defendant as such was signed, and such document is a nullity.
An effort is made on behalf of the defendant to bring the case within the principle applied in The State v. Bradbury, 67 Kan. 808, 74 Pac. 231, and in The State v. Horine, decided at the present sitting, post, page 256, 78 Pac. 411, that the word “until" (or “to") will be treated as inclusive, if a purpose to use it in that sense is manifest. To that end affidavits have been presented, made by the clerk of the district court and by defendant's attorney. That of the clerk merely séts out that on October 23 the court was adjourned until December 3 ; that at the time of such adjournment it was understood that the court would be in session on December 4, and that court was held on that date. The affidavit of defendant’s attorney states that the judge of the court resided in another county ; that he made the order extending the time for the settlement of the bill of exceptions until December 4, while at his home; that at the time of such order court in the county where the case was tried stood adjourned to December 3 ; that it was the practice of the judge, when holding adjourned terms of court there, to come to the county-seat by a train arriving in the afternoon of the day to which adjournment had been taken ; that he often arrived too late to transact any business on that day. It then continues :
“Affiant further says that said order granting further time to settle and file said bill of exceptions was intended to include the 4th day of December, 1903, for the reason that on that day court would be in session and the judge would then and there have time to settle and sign said bill of exceptions after his arrival in Marion on the 3d day of December, to which day said court was adjourned; that said bill of exceptions was not intended at the time said order was made to be signed and settled on the 3d day of December, 1903, for the reason that it was not the habit or custom of said judge to arrive in the city of Marion except upon said train as above mentioned, which was often late, and often did not arrive until after business hours had closed.”
This showing wholly fails to bring the case within the exception noted. Granting it to be permissible to look elsewhere than to the contents of the order itself to determine whether the word “until” was used in any unusual sense, and that the evidence presented might be considered for that purpose, it falls far short of its object. The statements of what was intended by the order and when it was intended that the bill of exceptions should be settled are necessarily only the opinions of the affiant, for it is the intention of the judge, and not of the attorney, that is important. These statements of opinion are of no greater force than the reasons given in their support, and these reasons at the most merely afford a basis for a vague surmise as to what may have been in the mind of the judge. They cannot aid the interpretation of the language of the order. There is nothing in the order itself to suggest a purpose to use the phrase in question otherwise than with its ordinary significance. There is nothing in the circumstances shown that indicates such a purpose. It follows that, under the authority of the decisions cited, the bill of exceptions is a nullity.
• It is further argued that the loss of jurisdiction was remedied by the failure of the county attorney to make seasonable objection, and by his asking for a further extension of time. The defect is notone,however, that can be waived.
The appeal is dismissed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
Joseph S. Howard sued William Schmidt for the recovery of the possession of a tract of land described by metes and bounds, being in fact the west twenty-five feet of a quarter-section. The petition was- drawn in general terms under the statute, and the answer was a general denial. At the trial plaintiff introduced a series of conveyances covering the entire quarter-section, beginning with a patent from the United States and ending with a deed to himself. The defendant’s testimony disclosed that the real controversy was whether the strip of ground in question had become a highway, either by formal action of the county commissioners, or by prescription or dedication. At the conclusion of the evidence the court directed the jury to return a verdict for the defendant, and from the judgment which followed the plaintiff prosecutes error.
The defendant’s evidence included the public records of proceedings had with reference to the establishment of a road, and also testimony bearing upon the matters of adverse possession and acquiescence; but as plaintiff was not bound by the statements of defend ant’s witnesses, whether contradicted or not, the only question for present consideration is whether such records proved that a road was legally established.
It is claimed by plaintiff that the records show that all the proceedings with reference to the establishment of a road were void because they were had under sections 6053 to 6055 of the General Statutes of 1901, which purport to authorize the opening of private roads, and which have been declared unconstitutional in Clark v. Mitchell County, 69 Kan. 542, 77 Pac. 284. The defendant, however, contends that while it is true that here and there in the record the proposed way referred to is described as a “private road,” yet every requirement essential to the laying out of a public road was met, and the proceedings therefore were effectual for that purpose under the general statutes.
The facts, as shown by the records, were as follow : The petition by which the proceedings in question were begun asked for the location of a “private road for William Schmidt,” but was signed not only by Schmidt, but by twelve householders residing in the vicinity, as the statute (Gen. Stat. 1901, § 6016) requires in the case of an application for a public road. The bond given bound Schmidt to pay all the costs and expenses of “viewing and locating of a road petitioned for by William Schmidt and others,” if the petition should be granted, while the statute just cited requires a bond insuring the payment by the petitioners of the costs and expenses in case a road be not established. A publication was made by the county clerk in conformity with the requirements of section 6018 of the General Statutes of 1901, the notice reciting that a petition had been presented asking the location of a “private road,” and stating where and when viewers would meet for the purpose of viewing “said road.” The county surveyor reported a survey of the “road as petitioned for.” The viewers’ report included a finding that the “road petitioned for” was of public utility, and recommended that it be established and opened. The county commissioners also made a finding that the road was of public utility, and an order that it be “located and established as a public highway,” but directed that the clerk should not notify the township trustee to open the road until the payment by the petitioner of all expenses and damages. These Schmidt paid to the county treasurer. The entries in the commissioners’ journal were entitled “In the matter of the location of a private road as petitioned for by William Schmidt.” In all other respects the proceedings appear to have been adapted to the establishment of a public highway and to have been sufficient for that purpose, unless rendered ineffective by reason of an omission which will be noted later,
The question presented is whether the repeated designation of the proposed way as a “private road” is sufficient to defeat the jurisdiction of the county commissioners and nullify their final order establishing it as a public highway. While the petition, which is the basis for all subsequent action, uses the term “private road” to describe the thing asked for, the fact that it is signed by twelve petitioners, who are designated as householders residing in the vicinity, is some evidence of a public interest in the matter, and of an intention to invoke action under the statute relating to public roads, since neither the void act already referred to, which purports to authorize the establishment of a private road, nor section 6044 of the General Statutes of 1901, which provides for granting an outlet to a person otherwise cut off from access to the highway, mentions a requirement that the petition be signed by any one other than the person to be benefited. (Butts v. Geary County, 7 Kan. App. 302, 53 Pac. 771.) Although the publication made by the clerk referred in terms to a private road, it was effective to give notice of a proceeding under the statute having for its purpose the laying out of a highway. In view of the fact that the only statute mentioning a private road is a nullity, the word “private” had no possible legal meaning and máy well be regarded as mere surplusage. The use of the word elsewhere in the proceedings was, at the most, a mere irregularity. The circumstance that the chief petitioner was required to pay the expenses, and did pay them, did not affect the matter. (Railroad Co. v. Swalm, 83 Miss. 631, 36 South. 147.) We conclude that, so far as this feature of the case is concerned, the order establishing the road as a public highway was valid.
The validity of the action of the commissioners is further challenged upon the ground that no personal notice was served upon the owner of the land, as required by section 6019 of the General Statutes of 1901. The record discloses that no such notice was given. This omission is fatal to the board’s jurisdiction, unless cured in some way. (The State v. Farry, 23 Kan. 731.) There is a recital in the report of the viewers that this landowner filed a claim for damages, and that an allowance was made to him as compensation for the land taken. The statute (Gen. Stat. 1901, § 6020) forbids any such allowance to be made unless upon the written application of the landowner, and also (§ 6022) requires all such applications to be returned with the viewers’ report. No application for damages was produced at the trial, but the recital of the report of the viewers that one was presented, upon which they acted, if uncontradicted, would doubtless be sufficient evidence of that fact, and consequently of a waiver of the failure to give notice (Comm’rs of Woodson Co. v. Heed, 33 Kan. 34, 5 Pac. 453); but testimony was introduced tending to show that in fact no appearance whatever was made by the landowner, and that the viewers made the award upon their own motion. This raised a question required to be passed upon by the jury. There was no recital in the record of the road proceedings that the owner of the land was a non-resident. Oral evidence was given tending in that direction, but this might not have been regarded by the jury as convincing. In the absence of evidence proving conclusively either that the owner of the land was a non-resident or that he had waived the service of the notice required by the statute, it was .error for the court to direct a verdict for the defendant.
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
Burch, J. :
In October, 1901, the plaintiff and the defendant entered into a partnership for the purpose of raising, producing, preparing for market and selling live stock and farm products, and for the purpose of dealing in live stock generally. The partnership contract was in writing. The defendant agreed to furnish land and the necessary material to keep it under fence, and money to purchase the live stock with which to begin business, and to take advantage of subsequent bargains and opportunities. The plaintiff agreed to take charge of the land and live stock, furnish and perform all labor necessary to the cultivation of the land, the planting and harvesting of crops, and the feeding and care of the live stock, and to furnish all farm implements, wagons, and harness. Formoneys advanced the defendant retained a lien on the partnership property.
The next year, after the firm had accumulated considerable propert}^, differences arose between the partners. The plaintiff brought an action for dissolution and for an accounting, and, claiming that he had been excluded from all participation in the partnership affairs, asked damages for a breach of the partnership contract. The court took the advice of a jury upon certain questions of fact, and special findings were returned to the effect that the defendant had violated the partnership agreement, to the plaintiff’s damage in the sum of $2000. Taking this item into consideration in adjusting the partnership accounts, the court rendered judgment in favor of the plaintiff for $1960.45, and the defendant prosecutes error to this court.
One of the grounds of disagreement between the parties was the supplying of teams to do necessary work, the plaintiff claiming that the term “live stock ” included such animals, and the defendant claiming that if teams were necessary to enable the plaintiff to perform the ‘ ‘ labor ” he had contracted to do he should furnish them. The contract undertook to enumerate the items each partner should provide. Teams for planting and cultivating crops, hauling feed and the like were not specifically mentioned, although farming implements, wagons and harness were. The terms “live stock” and “labor” when applied to the omitted subject were both ambiguous, and any arbitrary interpretation the court might place upon them might well be without the fair understanding of the parties when the contract was made. It was proper, therefore, to take evidence concerning the situation and circumstances of the parties, the nature of the contemplated enterprise and other relevant facts as they stood when the contract was made, to arrive at the actual intention of the parties at that time, and-allow the jury to determine the question. The claims of the parties and the character and scope of the inquiry in this respect doubtless would have been more sharply defined,'and the duty of the jury more carefully delineated, had a proper request for further instructions been made.
The court gave the jury a single instruction relating to the measure of damages which reads thus :
“In case that you find either the plaintiff or defendant has sufferred damages by reason of the violation-, of the partnership contract by the other, then it will1, be your duty to assess the amount of the damages sustained by him, and the fixing of this amount must be left, in a great measure, to the sound discretion of the jury, under the evidence, facts and circumstances in the case.”
The instruction was faulty in that it left the jury without guidance; but, beyond this, it contained a positive misdirection, in that it told them they could use their own ingenuity in the matter. Having undertaken to state a rule the court should have given one which was correct. The elements of damage open to consideration should have been enumerated and methods and criteria for their estimation should have been pointed out.
“The rules by which damages are to be estimated should be laid down by the court, and it is its duty to explain to the jury the basis on which the assessment should be made, the proper elements of the damages involved, and within what limits they may be estimated in the case involved." (13 Cyc. 236.)
After the institution of the plaintiff’s suit the defendant caused him to be arrested in a criminal proceeding from which he was subsequently discharged. The court permitted evidence of these matters to be introduced and in so doing committed error. No foundation for exemplary damages had been established. Whether or not the conduct of the defendant in relation to the partnership affairs had been induced by malicious motives was immaterial. The evidence related to matters occurring after the rights of the parties had become fixed, and could scarcely have any other effect than to aggravate damages.
Other errors complained of were not prejudicial or were waived at the trial.
From the manner in which the partnership accounts were stated the plaintiff argues that the findings of the jury in his favor were not adopted by the court. The journal entry of judgment is conclusive to the contrary. Besides this, it appears that the court first cast the partnership account as a matter separate and distinct from that of the damages allowed for defendant’s breach of the partnership contract and then used the sum awarded by the jury because of such breach in arriving at a balance for which judgment should be rendered.
The motion for a new trial was not filed until more than the statutory time had elapsed after the special findings of the jury were returned, but it was filed in due time after the decision of the court was made adopting them. The plaintiff claims the motion came too late, and hence that errors relating to the proceedings before the jury are not now re viewable.
Both parties acquiesced in the treatment accorded the subject of damages and the question must be determined as if that feature of the case were of purely equitable cognizance as a part of the partnership accounting. So considered the findings of the jury were advisory only, and might be accepted or rejected as the court saw fit. Until the court adopted them they did not become effective as findings but were mere recommendations, and no occasion arose to point out their vitiation by improper instructions or improper evidence. When a general verdict is returned or the report of a referee is made a motion for a new trial must follow, because, if submitted to, judgment ensues as a matter of law; but until special findings by a jury in an equity case are finally adopted by the court and made the basis of its decision, with the taint of error adhering to them, the defendant is under no necessity of moving for a reexamination of the facts they embody.
Upon the plaintiff’s theory the defendant might have been required to file two motions for a new trial in order to obtain a complete reexamination of all the facts — one relating to the findings of the jury, and one relating to findings of the court upon matters not submitted to the jury; and, as suggested by counsel for defendant, in cases analogous to that of Mitchell v. Simpson, 62 Kan. 343, 63 Pac. 440, in which different questions were submitted to different juries at different times, motions for new trials might be greatly multiplied. Such a practice is not warranted by the language of the code.
The judgment of the district court 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
Johnston, C. J. :
The firm of Stone & Bronnenberg brought an action against the Chicago, Rock Island & Pacific Railway Company to recover damages for unnecessary and unreasonable delay in delivering a shooting-gallery that was shipped from Independence, Kan., to El Reno, Okla., a part of the distance being over the line of the railway company. In their peti tion, consisting of two counts, they claimed unliquidated damages in the sum of $2249. Of this amount $1363 was claimed in the first count and $886 in the second. The railway company seasonably filed a petition for removal of the cause to the federal court, which was sufficient in averment and form, and also filed a bond such as is required in cases of removal. Soon afterward, and before the district court had taken, up the matter of removal, the plaintiffs filed an amended petition, in which the amount of their demand for damages was reduced to $1949. After the amendment the application to remove was presented and denied, and the court, assuming to hold and exercise jurisdiction of the case, proceeded with the trial.
It is conceded that there was the diversity of citizenship necessary to a removal, but the court ruled that the amount in controversy did not exceed $2000, and was, therefore, insufficient to give federal jurisdiction. The amendment of the petition was made before the application to remove was presented to, or ruled upon by, the court, but if the case was a removable one the right of removal was not affected by the amendment, nor by the ruling of the court denying it. It is the settled rule that the filing of the petition for a removal, accompanied by a legal and sufficient bond, operates to transfer a removable case from the state to the federal court. (25 U. S. St. at L. 433; 1 U. S. Comp. St. 1901, p. 508; Larson v. Cox, 39 Kan. 631, 18 Pac. 892; Rodman v. Railway Co., 65 id. 645, 70 Pac. 642, 59 L R. A. 704; Steamship Co. v. Tugman, 106 U. S. 118, 1 Sup. Ct. 58, 27 L. Ed. 87; 18 Encyc. Pl. & Pr. 347, and cases cited.) At that time the jurisdiction of the federal court attaches, and the state court may proceed no further. A party cannot defeat a removal by an amendment of a pleading, diminishing his demand, after the petition and bond for removal have been filed. (Riggs v. Clark, 37 U. S. App. 626, 71 Fed. 560, 18 C. C. A. 242; Stevens v. St. Louis & S. F. R. Co., 47 Fed. [C. C.] 530, 14 L. R. A. 184; Peeler v. Lathrop, 48 id. 780, 1 C. C. A. 93; Waite v. Phœnix Ins. Co., 62 id. [C. C.] 769; Hayward v. Nordberg Mfg. Co., 85 id. 4, 29 C. C. A. 438; Moon, Rem. Causes, §88.)
The court, however, held that even under the original petition the amount in controversy was not sufficient to give federal jurisdiction. It was alleged that the damages sustained were $2249, and judgment for that amount was demanded, and in the petition for removal it was stated that the amount, or value, in controversy, exclusive of costs and interest, exceeded $2000. In actions for unliquidated damages the amount in controversy is ordinarily the amount claimed by plaintiff in good faith. The trial court based its ruling upon the theory that plaintiffs had overestimated their damages, and that it was apparent from the first count of their petition. In that count the damages were placed at $1363, and specific demand was made for that amount. Included in it were the damages for the loss of the use of the shooting-gallery while it was negligently withheld by the company, fixed at $1250, and the balance of the claim, $113, was for expenses incurred in tracing and trying to find the gallery. The court appears to have held that the $1250 item was $300 greater than plaintiffs were entitled to recover under the averments in their petition. In the body of the petition it was alleged that the gallery was received at the depot of the railway company on July 20, 1901; that plaintiffs inquired for it on July 22, and were told by the agent of the company that it had not been received.; that they were unable to trace or locate it until about August 12, 1901, when they learned it was at the depot of the railway company. It was alleged that the usable value of the property from July 22 to August 13 was fifty dollars per day. The court proceeded on the theory that plaintiffs had computed damages for twenty-five days at fifty dollars per day, when, at the most, they could recover but for nineteen days, and the difference, $300, reduced the total claim below the jurisdictional amount. Of course, the amount demanded in the prayer for judgment will not control when the record shows that only a part of the amount prayed for in the judgment is legally recoverable.
In cases for the recovery of damages, where the law prescribes no limitation on the extent of the recovery, the determination of the amount of the recovery belongs to the court and jury trying the case. Any dispute of fact in respect to the amount must necessarily be tried by the federal, and not by the state court. In the first instance, the state court is called upon to decide whether the record and petition on their faces show a right of removal, including the fact whether there is the necessary amount in dispute to give jurisdiction ; but where there is a bona fide demand by the plaintiff for a recovery in excess of $2000, that ends the inquiry as to the amount in controversy in that court. The question of the amount in controversy is a .jurisdictional fact, and, outside of the prima facie case mentioned, must be determined in the federal court.
Looking beyond the specific demand of plaintiffs and into the averments of the petition, it is difficult to understand why it was legally impossible for plaintiffs to recover for the use of the gallery for more than nineteen days at $50 per day, and why the claim of the plaintiffs for the usable value of the gallery while it was negligently withheld was $950 instead of $1250, the amount named by the plaintiffs. It was alleged that the gallery was received on July 20, and from that time until August 13 would be twenty-four days and from the 22d day of July, when an express demand was made for the property, until August 13, would be twenty-one days, and the use of the gallery, at the rate of $50 per day, would amount to $1050; the latter sum, together with the $113 claimed for expenses, and the $886 in damages claimed in the second count of the petition, amounts to $2049. Apart from these considerations there was a specific demand by plaintiffs for $2249 in damages, and it is not easy to say that there cannot legally be a recovery of that amount, nor that the plaintiffs did not in good faith claim a recovery in excess of $2000.
We think the claim made by plaintiffs in their original petition exceeded the amount necessary to give federal jurisdiction, and therefore the case was removed to .the federal court. That being true, the subsequent proceedings in the state court were without authority, and, therefore, the judgment of the district court refusing the removal must be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J. :
This is an original proceeding in mandamus to compel Charles A. Smart, as judge of' the district court, to grant a stay of execution in the-case of The State v. Youngberg, immediately preceding, 78 Pac. 421. Youngberg was found guilty in the district court of Franklin county of maintaining a nuisance, and sentenced to thirty days in thecounty jail and to pay a fine of $200 and costs of the prosecution. He appealed from the judgment of conviction. The transcript not being filed in the supreme court within the time required to stay execution, the state caused execution to issue against the person and property of Youngberg to satisfy the judgment. The latter made application to the Honorable Charles A. Smart, judge of the district court, for an order staying execution, which was denied. Upon the application of Young-berg for a writ of mandamus to compel the defendant to stay the execution an alternative writ was allowed.
Defendant filed his answer, or return, therein alleging in detail the trial and conviction of plaintiff; the taking of an appeal; the failure to file the record in the supreme court within ninety days from the rendition of the judgment; and it averred that for the reasons stated defendant had no jurisdiction to make an order staying execution.
Testimony was taken by deposition upon the issues joined. It appears that, at the time of his arrest, Youngberg gave a continuing bond for his appearance in the district court from day to day and from time to time until the final disposition of the case. It further appears that on the day judgment was rendered, April 23, 1904, Youngberg gave notice of appeal, gave the statutory appeal bond, and was given sixty days to prepare a bill of exceptions. No transcript was filed in the supreme court until July 26, 1904.
The state, believing that Youngberg had not filed his appeal in time to entitle him to a stay of execution, within the meaning of chapter 389 of the Laws of 1903, caused execution to issue against the person and property of defendant to satisfy the judgment. Upon the application for a stay of execution, the trial judge refused to grant the order, on the ground that the transcript had not been filed in the supreme court within the ninety days provided by law, and, hence, that he had no jurisdiction. It also appears that while the judgment of conviction in The State v. Youngberg, supra, was rendered on April 23, 1904, it was not entered of record upon the journal of the court until the 28th day of April — five days after it was pronounced. It is the claim of plaintiff that a judgment of conviction is not rendered until it is regularly entered upon the records of the court, and that the time for filing the transcript in the supreme court began to i'un April 28, the day the judgment was entered of record, and not April 23, the day the judgment of conviction was pronounced.
There are but two questions in this case to be de termined : (1) Can stay of execution be granted on a judgment of conviction in misdemeanors, under section 1 of chapter 389, Laws of 1903, if the record be not filed in the supreme court within ninety days from the date of its rendition ? (2) Is the pronouncement of a judgment the rendition of the judgment, within the meaning of said section 1 ? The section reads:
“An appeal to the supreme court from a judgment of conviction shall stay the execution when tbe judgment is for a fine or fine and costs only. In misdemeanor cases, the execution of the judgment shall be stayed by the order of the court trying the case or the judge thereof, upon the appellant giving bond in such sum as said court or judge shall prescribe, said bond to be approved by the clerk of said court, and the stay shall be granted on serving the usual notice of appeal, and the transcript may be filed in the supreme court at any time within ninety days after the rendition of the judgment, and not. otherwise. If the transcript is filed within the prescribed time, then the stay shall continue to be in force until the case is finally disposed of in the supreme court, but not otherwise. In felony cases, the execution of the judgment or sentence shall be stayed by the judge of the trial court wherein the conviction was had-, pending the time given by said trial judge or court to the defendant for the making and filing a bill of exceptions, or by the order of the supreme court or any justice thereof, upon the appellant giving bond in such sum as said trial court or supreme court shall prescribe, said bond to be approved by said trial court, or the supreme court or any justice thereof. During the time given for the making and filing a bill of exceptions, the defendant shall remain in the custody of the sheriff, unless otherwise ordered by the trial court or supreme court; provided, that when the conviction is for an offense not bailable, the trial court or supreme court or the justice thereof shall make an order for the safe-keeping of the appellant in the jail of the county in which the offense was tried, but in case of no sufficient jail in such county, then in the jail in the county nearest having a sufficient jail; provided further, that the appellant availing himself of the benefit of this act shall take his bill and file the transcript with the clerk of the supreme court within two years from the rendition of the judgment or such sentence.”
The act is very inartistically drawn, and for that reason has been the source of much trouble to the courts and the profession. While some of its provisions have the appearance of applying to, and providing for, the time within which an appeal may be taken, it could not have been the intention of the legislature, as that subject is not embodied in the title of the act. The mere fact that that subject is not embodied in the title of the act would preclude the application of its provisions to the time within which an appeal may be taken. Therefore, the act does not, nor could it have been intended to, limit the time provided by section 284 of the criminal code (Gen. Stat. 1901, § 5722) for the taking of an appeal in criminal cases. The title of the act, however, does disclose that it has for its object and purpose the stay of execution in criminal cases. It is quite apparent, too, that the act was intended to have application to a stay of execution in both misdemeanors and felonies. The right to an appeal and the time within which it may be taken are entirely distinct from the right to a stay of execution pending an appeal. The two should not be confused. It is only necessary in this case, however, to apply the provisions of the act in so far as they provide for a stay of execution in misdemeanors.
It is also the claim of plaintiff that in misdemeanors the stay of execution provided by chapter 389, supra, applies if the transcript be filed in the supreme court at any time within two years after judgment of conviction. To this claim we cannot agree. That provision evidently applies to a stay of execution in felonies. The act, as intended to apply to a stay of execution in misdemeanors, uses the following language:
“The transcript may be filed in the supreme court at any time within ninety days after the rendition of the judgment, and not otherwise. If the transcript is filed within the prescribed time, then the stay shall continue to be in force until the case is finally disposed of in the supreme court, but not otherwise.”
The language used is intended to apply to the time within which the transcript must be filed to entitle appellant to a stay of execution - from a judgment of conviction of a misdemeanor. If it be not filed in the supreme court within ninety days after the rendition of the judgment of conviction there can be no stay of execution pending the appeal.
As has been observed, the law relating to a stay of execution in criminal cases (Laws 1903, ch. 389) provides that the record in misdemeanors must be filed in the supreme court “within ninety days after the rendition of the judgment.” It will also be observed that the law relating to the time within which an appeal may be taken in criminal cases (Crim. Code, §284; Gen. Stat. 1901, §5722) provides that the appeal must be taken “within two years after the judgment is rendered.” This court, in Brown v. Clark, Adm’x, 31 Kan. 521, 3 Pac. 415, construed a similar provision of the civil code (Laws 1881, § 2; Gen. Stat. 1901, § 5042) relating to civil cases on proceedings in error. Said section 5042 provides that proceedings to review must be commenced “within one year after the rendition of the judgment.” In that case the right of the court to review the record was challenged on the ground that it had not been filed in the supreme court within one year from the date of the rendition of the judgment. The trial, the verdict and the judgment were all on August 24, 1881. There was no journal entry of the judgment made at that time, and not until December 19, 1882, when, upon motion and notice, a journal entry of the proceedings was entered nunc pro tuno. The petition in error was filed December 10, 1883. The motion to dismiss the proceeding in error was sustained. The court said : “The petition in error must be filed within one year after the rendition of the judgment, not within one year after the time a journal entry thereof is in fact made.”
It is urged by plaintiff that a different rule should be applied in criminal cases for the reason that a judgment of conviction can only be appealed from after it has been entered of record. Plaintiff offers the distinction between proceedings in error and proceedings on appeal in support of his contention that the rule as applied in Brown v. Clark, supra, should not be applied to criminal cases. True, a proceeding in error is a distinct action, and a proceeding on appeal is not. Although, as suggested, it may not be necessary to a case-made that the judgment shall have been entered of record, inasmuch as a recital in the case-made of the judgment as pronounced by the court would be sufficient, yet a proceeding in error by transcript can only be possible where the judgment has been entered of record. There seems to be no good reason why the rule announced in Brown v. Clark, supra, should not be followed in criminal appeals.
The record in the case of The State v. Youngberg, supra, was not filed in the supreme court within ninety days after the rendition of the judgment of conviction, and, hence, the appellant in that case, plaintiff herein, was not entitled to a stay of execution pending the appeal. A peremptory writ of mandamus is denied.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
The plaintiff in this action was a molder’s helper working for the defendant in its foundry. While in service and in the line of his duty molten iron was cast into one of his eyes causing its ■entire loss, for which he recovered judgment. The defendant seeks by this proceeding to have such judgment reversed.
It appears that when a mold is prepared the molten iron is delivered from a bull ladle into a smaller one, which is suspended from what is called a traveler. The ladle is then pushed on this traveler by the molder and his helper to the mold by means of iron bars inserted into eyes cast on either side of the ladle. The ladle stopper is so constructed that it runs down from the top and fits into a hole in the bottom of the ladle. It is raised by inserting an iron bar into an eye in the stopper and bearing down on the bar. The receptacle into which the metal is permitted to run is funnel-shaped, and the hole in the bottom of the ladle should be placed directly over the funnel before the stopper is raised. It is the duty of the molder, when the ladle is in position, to insert a bar into the eye of the stopper and bear down upon it, in order to raise the stopper out of the hole. It is the duty of the helper at such a time to remain in his place on the opposite side of the ladle, and by means of his bar to steady the ladle while the molder raises the stopper. On the occasion of the plaintiff’s injury the stopper appears to have stuck, and the molder threw his weight upon the lever, which it is claimed caused the ladle to swing from over the center, or mouth, of the funnel toward the plaintiff, and by reason of the suddenness with which the stopper was raised while the ladle was out of position the metal escaped rapidly, and falling on some portion of the receptacle beneath splashed into one of plaintiff’s eyes.
Complaint is made of errors in the instructions. The only instruction we deem it necessary to examine and pass upon at this time is the following :
“It was the duty of defendant to make and enforce such reasonable rules and regulations for the guidance and control of its workmen in the performance of their work and the operation of defendant’s machinery as were necessary for the reasonable safety of its workmen, and was also defendant’s duty to exercise ordinary care and prudence in the inspection of its premises and appliances to discover defects or dangers which might cause injury to its employees ; and if defendant failed in the performance of such' duties, or any of them, it was guilty of negligence.”
That portion of this instruction which informs the jury that it was the duty of the defendant to make and enforce such reasonable rules and regulations for the guidance and control of its workmen in the performance of their work and the operation of the defendant’s machinery as were necessary for the reasonable safety of its workmen, while sufficiently alleged in the petition to permit the introduction of evidence, does not appear to have any foundation in the evidence. There was no evidence tending to prove that the omission to promulgate and enforce such rules contributed to plaintiff’s injury either proximately or remotely. It was not suggested by the testimony that any rule, or set of rules, which could have beeii adopted for the guidance of its employees would have had a tendency to prevent the injury sustained by plaintiff.
Among the many duties imposed on the master engaged in conducting a complex business in which numerous persons are employed is that of adopting and promulgating reasonable rules for the guidance of such employees in the discharge of their duties to protect them from the negligence of one another. The failure, however, to perform this duty will not be available in an action for damages by an employee who sustains injury in the line of his duty unless it be shown that the neglect to perform such duty was the proximate cause of his injury. (Rutledge v. The Mo. Pacific Rly. Co., 123 Mo. 121, 24 S. W. 1053, 27 S. W. 327; A. T. & S. F. Rld. Co. v. Carruthers, 56 Kan. 309, 43 Pac. 230.) It is also the duty of a master to provide safe tools and appliances for the use of his employees, but if the tools or appliances be defective it would not be a ground of negligence for which a recovery could be had by an employee who sustained injury in the line of his services, unless the defective tool or appliance was the proximate cause of the injury. The instructions should be confined to the material question arising from the evidence.
Another instruction given subsequently informed the jury that unless the omission to adopt and promulgate such reasonable rules was the proximate cause of plaintiff’s injury he could not recover. This instruction is a correct statement of the law, but, like the one of which complaint is made, it had no application.
We cannot say that this instruction was not prejudicial. The judgment is therefore reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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Per Curiam:
In an accounting with the aid of a referee Cyrus M. Eberly recovered from Hill Brothers $496, the balance due him for the sale of sewing- machines, musical instruments, and some supplies. His agency or services continued through a period of about four years, during which time there were two changes in the firm. He first began with Hill & Co., then Hill Bros. & Phelps, and finally Hill & Co. From the agreed facts and the testimony it appears that these changes did not affect the contract relation with Eberly, and that at each change the successors assumed the liabilities of the firm. The contract relation with Eberly was more in the nature of an agency than a partnership, but, whatever its proper designation, he was entitled under the evidence to an accounting, and to the recovery which was awarded. This was also true as to the oil and supplies account, and no error was committed in allowing an amendment of the petition in respect to this account.
We have examined all the errors assigned, and find nothing substantial in them, and, therefore, the judgment is affirmed. | [
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Per_ Curiam:
A district court has the power and jurisdiction to correct a journal entry of a judgment to make it speak the truth as to the judgment which was in fact originally rendered, even after such judgment, manifested by a certified copy of such erroneous journal entry, has been reviewed on proceedings in error in this court and such judgment has been affirmed, when it clearly appears from the whole record that, by reason of clerical mistakes, the journal entry does not express the judgment which was in fact rendered, and where it also clearly appears that the errors corrected were not called to the attention of this court upon the review, and that the decision of this court, affirming such judgment, was in no way based upon such clerical mistakes.
The correction of such journal entry under such circumstances is not the rendition of a new judgment, nor the changing of a judgment which has been affirmed by this court.
The peremptory writ of mandamus is denied, and judgment is against the plaintiff for costs. | [
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The opinion of the court was delivered by
Cunningham, J. :
Defendant in error moves to dismiss this proceeding for the. reason that no legal case-made is attached to the petition in error.
It seems that after chapter 380 of the Laws of 1903 took effect an extension of time within which to make and serve a case-made was obtained by the plaintiff in error, but that such order was not filed with the clerk of the district court as provided in that chapter, and it is claimed that the requirement so to file is mandatory, and a failure to do so renders further proceedings in the matter of the settlement and signing of the case-made void and ineffectual. We do not take this view. There is nothing in this act which indicates that the filing of the order is an essential prerequisite to its becoming operative.
Ordinarily the paper on which the order of a court or of a judge at chambers is written need not be de posited in the clerk’s office to make it effective. It is well, as a measure of publicity and for its preservation, that it should be, but unless it appear that such disposition is a prerequisite to its becoming effective the requirement that it should be so filed must be held to be directory, and not mandatory. The rule, as stated by this court in Jones v. The State of Kansas, ex rel. Atherby and Kingsbury, 1 Kan. 273, 279, and reiterated in The State v. Yordi, 30 Kan. 221, 223, 2 Pac. 162, is :
" Unless a fair consideration of the statute shows that the legislature intended compliance with the provision in relation to the manner to be essential to the validity of the proceeding, it is to be regarded as directory merely.”
We do not think that it can be fairly said that the provision relative to the filing of the order of extension of time was intended to be essential to the validity of such extension. The proviso in which this requirement is embedded is merely incidental. No duty is imposed upon the party obtaining the extension to file such order. Indeed it does not appear that the order is to come to his hands. It apparently serves no purpose except to give notice to any one interested that the extension has been granted. We can say, at least, that in the absence of any showing of prejudice to the opposite party by the failure to file it, the case-made is not invalidated thereby.
The action was one to recover damages because of a personal injury suffered by the defendant in error from being struck by one of the electric street-cars of plaintiff in error. The defendant in error was driving south with a two-horse team upon one of the streets in Leavenworth. He had a light load, and another man was riding with him. . He saw approach ing him from the south two heavily loaded three-horse coal wagons. There was not room for him to pass these wagons between the east curb of the street and the railroad company’s track on the west. He therefore turned to the west and attempted to cross the track diagonally. At the same time, looking to the north, he observed a street-car standing upon a passing-track, about 175 feet away. His horses crossed the track without accident, but as the hind part of the wagon was crossing one of the horses fell down. On cross-examination Langley testified as follows :
“Ques. Then the situation is this : Your horse had fallen ; you looked up and saw a car coming towards you ; you noticed enough to know that it was coming in your direction, to form an opinion that it was coming at the rate of from five to eight miles an hour, and that you did n’t see any man’ on the platform, and if he had been there you would have seen him, you think? Now, have I got it right? Ans. I certainly would have seen him if he had been there.
“Q. And yet you stayed right in your wagon to pull that horse up? A. I was so confused and excited over the horse being down and trying to get him up—
“Q. You still stayed in the wagon? A. I did, sir.
“ Q. So that you knew if there was n’t any man on that front platform there was n’t anybody at the machinery that controlled the movement of the cars, didn’t you? A. Well, I didn’t see any one; no, sir.
“Q. You said you didn’t see him, and if he had been there you would have seen him — that was your statement? A. I would have seen him if he had been there; yes.
“Q. So that you looked and saw no man, and saw no man at the end of the car where the machinery was that controls the movement of the car? A. No, sir; there was no man there that I could see.
“Q. Then, as you looked back and took that situation in, you saw a car coming with no man in control of it, didnt you? A. At that point?
“Q,. At that point just when you looked, after your horse had fallen. A. Yes, sir.
“Q,. You turned your back then right on that car that was coming towards you without a man to control it, and began to haul at your horse ? Is that a fact? A. I did, sir — paid no further attention to the car.
“ Q. How far was the car away at the time you saw it coming towards you without a man in control of it and at the point you were beginning to haul your horse up ? A. Something over a block, to the best of my judgment.
“ Q. Which is approximately 300 feet? A. Yes, sir.
“Q. And the next you knew was that you were on the pavement ? A. When I came to myself I was on the pavement.”
On direct examination Langley testified substantially as follows :
“As quick as my horse fell I threw up my hands towards the car and hollered. Then I tried to assist my horse in getting up by bracing my foot against the driver-board of the wagon and holding a very tight rein on the horse. The horse was lunging and making an effort to get up, and of course what I was doing would brace him and help him to get up. . . . Just before I turned to drive across the track I looked up and the car was on the side-track or switch. As I started to cross the track I glanced over my shoulder up the street to look for the car, and saw it on the sidetrack or switch just moving off, which was about one block away, or 300 feet.
“Ques. You noticed there was no motorman on that front car, didn’t you? Ans. I did not.”
While Langley seems somewhat mixed as to whether there was a motorman in charge of the car, it was shown by the evidence of others, and specially found by the jury, that there was.
The man who was riding in the wagon with Langley testified substantially as follows :
‘ ‘ I was riding in the wagon with Langley at the time he was injured. We were driving down Fifth street, coming to market, and just as we got to Ottawa street there was a car standing on the switch at the west side, and another car coming from the west on Ottawa. When we saw the car was going to cut us off from passing down on the west side of Fifth we kept down on the east side of the track for some distance, when we met two three-horse wagons heavily loaded with coal. We could not get by them handy, and we attempted to cross the track to the southwest, and just as we crossed the track one of the horses slipped and fell. I jumped out of the wagon and ran back 75 or 100 feet, throwing up both hands and hollering and motioning for the car to stop. These coal wagons took up pretty nearly the whole of the street on that side. One of them was in the center of the street, and the other kind of cornering across the street, and we saw that we would not make it there, and we had to get out of the way of the car and out of the way of the teams. We aimed to cut across the tracks and come over on the other side of the street, and the horse fell.- If the horse had not fallen we would have had ample time to get away. The horse fell just after he crossed over the track, which left the left hind wheel of the w agon standing in the ce nter of the track. ’ ’
“Q,ues. Was there any bell rung as they came down that incline towards the wagon ?. Ans. No, sir.
“Q. I will ask you whether or not, after the car had passed you and you picked up the wreck, whether the employees in charge of the track, or any one, had used any sand in attempting to check the speed of the car? A. Not that I saw.
“Q,. Did you notice along the rails? A. Yes, sir.
“Q. Would the sand, having been run over by the wheels of the car, make such an impression that you could have told whether fresh sand had been used or not? A. Yes, sir.
“Q. Did you see any indication of any sand having been used at that time ? A. No, sir.”
“I saw the collision. The car ran into the wagon wheels and struck the wheels pretty near the center. It shoved the wheels around sideways and gave it a front pitch. This shoving assisted in raising the horse onto its feet and broke the neck-yoke in two. The next thing I saw, Langley and the spring seat were going up in the air. He fell across the seat with his back and side, and his shoulders and head in a tub of fish.”
Other evidence of the plaintiff showed that the track was an easy down grade toward the south ; that no bell was sounded upon the car, nor sand used to arrest its progress, as it approached Langley’s wagon ; that at the rate it was going it could have been stopped after the motorman might have observed that the horse was down and before the car had reached the wagon. The car, however, ran into the rear end of the wagon, throwing Langley to the ground and inflicting the injury alleged. A demurrer to plaintiff’s evidence was overruled, and the case went to the jury, who found a verdict in favor of Langley.
Complaint is here made of the overruling of this demurrer, the claim being that the plaintiff was guilty of such contributory negligence as to preclude his recovery. It is not claimed that there was negligence in his endeavoring to cross the track, as this, it seems, it was necessary for him to do; and the testimony shows that if his horse had not fallen he would have had ample time in which to cross ; but it is claimed that after the horse had fallen it was his duty, upon seeing the car approaching, and having ample time, to extricate himself from danger, leave his wagon and horses to their fate, and thus save himself at their expense. The plaintiff in error says in its brief :
‘ ‘A person who is in a position of danger must ex ercise ordinary care to extricate himself from that position, and if he fails to do so he cannot recover, even if the party who caused the injury is guilty of negligence.”
Without question this is a correct general statement of the law; but this general statement leaves to be determined by the trier of fact what is the ordinary care required, under all the circumstances of the case.
We do not think that, under the circumstances of this case, the court was warranted in saying, as a matter of law, that Langley was bound to abandon his efforts to get his horse up and his wagon out of the way of the approaching car, although he knew of the approach of the car. He is presumed also to have known the fact that it could have been stopped in time to avoid the collision, and he had a right to sup-' pose that the motorman, seeing the inextricable position which his wagon occupied, would apply the necessary means to stop the car. His continued effort to get his horse up and the wagon off the track was not so obviously imprudent, if imprudent at all, as to warrant the court in declaring it to be culpable negligence.
It also appeared from the evidence that when the horse fell the man who was riding with Langley jumped out of the wagon and ran up the track toward the approaching car, some 75 or 100 feet, waiving his hands and hallooing, to give warning to the persons in charge of the car in time to stop it before striking the wagon; at least, the evidence tended to show that fact, and if the jury so found from it the company was most culpably, and perhaps wantonly, negligent. Certainly, in view of all this', the court ought not, by sustaining defendant’s demurrer to plaintiff’s evidence, to have held, as a matter of law, that it was the duty of plaintiff to abandon his wagon and team and seek his own safety in flight.
Again, where one, by the negligent act of another, is placed in a position of danger which requires immediate and rapid action, without time to deliberate as to the better course to pursue, he is not held to the strict accountability that is required of one situated in more favorable circumstances. Contributory negligence is not necessarily chargeable to one who fails to exercise the greatest prudence, or best judgment, in a case where he is required to act suddenly or in an emergency. (Valin v. The Milwaukee & Northern R. Co., 82 Wis. 1, 51 N. W. 1084, 33 Am. St. Rep. 17; Traction Co. v. Scott, 58 N. J. L. 682, 34 Atl. 1094, 33 L. R. A. 122, 55 Am. St. Rep. 620; Harrington v. Los Angeles Ry. Co., 140 Cal. 514, 74 Pac. 15, 63 L. R. A. 238, 98 Am. St. Rep. 85.)
In section 89 of volume 1 of Shearman and Redfield on Negligence, fifth edition, the rule is stated as follows :
“In judging of the care exercised by the plaintiff, reasonable allowance is always made for the circumstances of the case ; and if the plaintiff is suddenly put into peril, without having sufficient time to consider all of the circumstances, he is excusable for omitting some precautions or making an unwise choice, under this disturbing influence, although, if his mind had been clear,' he ought to have done otherwise.”
The same rule was well stated in Edgerton v. O’Neil, 4 Kan. App. 73, 46 Pac. 206, as follows :
“Where one acts erroneously through fright or excitement, induced by another’s negligence, or adopts a perilous alternative in the endeavor to avoid an injury threatened by such negligence, or when he acts mistakenly in endeavoring to avoid an unexpected danger negligently caused by the defendant, he is not guilty of contributory negligence as a matter of law.”
Many authorities to this effect might be cited.
The court submitted the question of contributory negligence, under proper instructions, to the jury, and in this was clearly correct.
The action was originally brought against the. Leavenworth Electric Railroad Company. While it was pending this company was consolidated with others, and the consolidated company took the name of the present plaintiff in error, the Kansas OityLeavenworth Railroad Company. In due time the action was revived in the name of the consolidated company, and prosecuted to judgment against it. In article 1 of the charter of consolidation it was provided that the new company should “own and control the connected lines of railroads of said several corporations, with all the rights, powers, privileges, and immunities, and subject to all of the obligations and liabilities to the state, which belong to, or rest upon, any of such corporations making such consolidation.” Article 10 provided : “The contract obligations of each of said constituent companies shall be, and are, hereby assumed by said consolidated company.”
The plaintiff in error here contends that the effect of these two provisions is to exclude all obligations of the individual constituent companies not arising upon contract; that the specific assumption of contract liabilities only, found in article 10, by necessary implication excludes the assumption of liability arising upon tort, under the rule, expressio unius est exelusio alterius, and, hence, that the judgment in this case against the new company was not warranted. In support of this view it cites Berry v. K. C. Ft. S. & M. Rld. Co., 52 Kan. 759, 34 Pac. 805, 39 Am. St. Rep. 371, where it was held that, in the absence of stipulations to the contrary, the consolidated company is answerable for all of the obligations of the constituent companies, including those arising upon tort. It therefore argues, per contra, that, inasmuch as there is a stipulation in article 10 assuming only contract obligations, this amounts to a stipulation excluding obligations upon tort. In the absence of general law upon the subject, or of other provisions in the articles of consolidation, this might be quite cogent argument.
In the very able and exhaustive article on corporations by Judge Thompson, found at page 303 of volume 10 of the Cyclopedia of Law and Procedure, the general rule, in the absence of statutory or contractual agreements found in articles of consolidation, is stated as follows :
“As a general rule the new company succeeds to the rights, duties, obligations, and liabilities of each of the precedent companies, whether arising ex contractu or ex delicto.”
This rule is well supported by the citations there found, as well as by the text-writers. (Field, Corp. §435.; 3 Wood, Rly. Law, §486; 2 Mora. Corp., 2d ed., §§809, 955, 956.)
More than this, the first section of the charter of the consolidated companies, as above quoted, following the language of the statute which authorizes such consolidation (Gen. Stat. 1901, §5870), provides that the consolidated company is subject to all of the obligations and liabilities to the state which belong to, or rest upon, any of the constituent corporations.
This language, as construed in Berry v. K. C. Ft. S. & M. Rld. Co., supra, embraces obligations and demands arising out of tort as well as upon contract, the interpretation being that the assumption is of all obligations and also of all liabilities to the state which belonged to, or rested upon, the constituent companies. The argument used in arriving at this conclusion in the Berry case is lucid and cogent, and cannot be strengthened.. We hold that not only did the statute under which the consolidation in question was effected require the assumption of all obligations, those arising upon tort as -well as those arising upon contract, but that the charter itself, following the language of the statute, imposed the payment of such obligations upon the consolidated company.
We find no error in the record, and the judgment is affirmed.
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The opinion of the court was delivered by
Clark A. Smith, J.:
The plaintiff in error brought-this action in the district court of Harper county to-enjoin Hugh Sullivan, as road-overseer, and his assist ants, together with J. W. Grigsby, as township trustee, and the board of county commissioners of Harper county from attempting to lay out, and open, a public highway along the section line on the north side of a tract of land owned by plaintiff, adjacent to the city of Attica. The defendants in error claim that there was a legal highway previously laid out, and opened, over the strip of land in question, and that the acts complained of were simply in the necessary improvement of the same.
A temporary injunction was granted at the commencement of the action. The case was tried to the court, without referring the facts to a jury, and judgment was rendered against the plaintiff for costs. The court made separate findings of fact and conclusions of law. The facts found are, in substance, that the land over which the road was sought to be opened was entered by one Richard Botkin, who received his second, or “final receipt,” therefor from the United States on March 21, 1882, and his patent December 1, 1882; that plaintiff had acquired the land through a legal chain of title from Botkin prior to the commencement of this action, and was the owner thereof ; that in 1881, and during the time Botkin was in possession of the land, a petition was presented to the county commissioners of Harper county for a road some eighteen miles in length, to pass along the section line on the north of this land, and that Botkin was one of the signers of that petition ; that no survey of the road was made, no viewers appointed, and, in effect, no provision was made for ascertaining or allowing any damages that might accrue to the owners of adjacent lands; that the petition, with the order of the board allowing the same, constituted the only files and record of the county pertaining to the road. The court further found :
“About the time the opening of the road in question was up for consideration before the board of county commissioners, Richard Botkin said that he would make no claim for damages on account of the opening of the road if the rest of the people along the line of road made no claim. The rest of the people along the line made no claim for damages . . . and Richard Botkin made no claim for damages.”
The court found, in substance, that Botkin, at the time the order opening the road was made, waived any claim for damages and gave one-half of the width of the same ; that soon after the commissioners made the order the principal petitioner and others attempted to mark out the line of the road from the county line west and extending east of the land in question by plowing furrows (the land in question and the land generally along the line being open and unimproved), but that in running the furrows they deviated in places four or five rods north of the true section line; that this was true when it passed the land in question, and that Botkin planted trees along the line as marked out by the furrows, being almost entirely off his land, and also planted an orchard of peach and apple trees on his land where the true section line was ; that at one point the road, as marked out by the furrows, was eight rods north of the plaintiff’s land; that chapter 138 of the Laws of 1891, being “An act to legalize the acts of certain officers of Harper county in relation to roads and highways,” was passed, approved, and became a law, on the 25th day of March, 1891; that soon after the commencement of this action the plaintiff, Heacock, said to Hugh Sullivan, the road-overseer, in substance, that if the true section line should be ascertained by the county surveyor along his land without expense to him and a good road established over the same he did not want any damages for the same; but that while the township officers were engaged in opening the road over the true section line, as determined by said county surveyor, plaintiff commenced this action and obtained the temporary injunction.
The court found as conclusions of law: (1) That the proceedings of the county commissioners had in 1881 to establish and lay out a road over the land in question were void; (2) that chapter 138 of the Laws of 1891 legalized the proceedings of the board of county commissioners in the establishment of the road ; (3) that, in effect, the plaintiff is estopped from maintaining this action by his statement to the township officers in regard to the opening of the road shortly before they began to open the same; (4) that the temporary injunction should be dissolved and the case dismissed ; (5) that neither the seven nor fifteen years’ statute of limitations has run.
The petition in this case, after alleging the ownership in the plaintiff of certain land and that the defendants, one of whom is alleged to be the road-overseer, were attempting to open and grade a road for travel across the same, alleged that there was no regularly laid out road at said place. The non-existence of a regularly laid out road at this place was an essential fact to the plaintiff’s cause of action, and the burden of establishing this fact by the evidence was properly held to be upon the plaintiff.
The records and .files of the county clerk’s office were introduced in evidence and showed that in 1881 a regular petition was filed in the office of the county clerk asking for the laying out, and opening, of a pub- lie road sixty feet wide extending over the land in question ; that no viewers were appointed to view and locate the road and no survey was had, and, inferentially, that no report of viewers was made, and no opportunity to claim damages was given the landowners over whose land the road would pass ; yet the county commissioners granted the petition and ordered the opening of the road. This proceeding the court properly held was void. The court, however, held that chapter 138 of the Laws of 1891 legalized the road in question for the entire length attempted to be laid out by the order of the commissioners. This was erroneous.
That the legislature can do indirectly what it cannot do directly seems too preposterous for argument. An act of the legislature which purported to authorize a board of county commissioners to lay out, and open, a public road without any showing that the road would be a public utility, without any physical location of the road, and without compensation, or opportunity for compensation, to owners of abutting land, would be unconstitutional. (Carbon C. & M. Co. v. Drake, 26 Kan. 345; Hughes v. Milligan, 42 id. 396, 22 Pac. 313.) The legislature cannot by a curative act render valid an unconstitutional act. (State v. Whitesides, 30 S. C. 579, 9 S. E. 661, 3 L. R. A. 777; Richman v. Supervisors of Muscatine Co., 77 Iowa, 513, 14 Am. Rep. 308, 42 N. W. 422, 4 L. R. A. 445.)
There was no evidence to sustain the finding that Botkin, through whom plaintiff claims title, waived any claim for damages and gave one-half the width of the road ; in fact, the evidence affirmatively showed that he had no opportunity either to claim or to waive damages.
The facts found in regard to conversations between plaintiff and the township officers did not amount to. a conveyance of an easement over plaintiff’s land, or-to an estoppel against the plaintiff.
The judgment is reversed.
All the Justices concurring. | [
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'The opinion of the court Avas delivered by
Valentine, J.:
This AAras an action of replevin brought by the plaintiff in error, Charles Bruce, against the defendant in error, Jacob Luke, for the recovery of certain railroad ties and cordwood cut on a certain piece of land of which Bruce claimed to be the owner, but of which Luke was in possession and also claimed to be the owner. Passing over all the preliminary Or minor questions which might be raised in the case, we are asked to decide this question only: Who is the owner of the land? In deciding this question there are certain incidental questions which it will not be necessary for us now to consider, for they have already been considered and settled in this court in the case of Simpson v. Greeley, 8 Kas., 586. Some of the principles underlying some of these incidental questions were considered and settled in the case of Douglas Co. v. U. P. Rly. Co., 5 Kas., 615. See also Baker v. Gee, 1 Wallace, 333.
On the 11th of March 1867 Isaac Johnnycake executed and delivered a deed of conveyance for the land now in dispute to Kate L. Simpson. The land at this time belonged to the United States; (Simpson v. Greeley, supra.) On the 17th of October 1867 the purchase-money was paid to the United States, and on the 26th of the same month the patent was issued by the government to Alexander Caldwell. On the 9th of January 1868 Caldwell executed and delivered a deed of conveyance for said land to Johnnycake. On the 4th of May 1868 Kate L. Simpson and her husband executed and delivered a deed of conveyance for'said land to Bruce; and ■on the 5th of January 1869 Johnnycake executed and delivered a deed of conveyance for said land to Luke—Luke having full notice of all the prior deeds. At the time that Johnnycake executed the deed of conveyance to Kate L. Simpson he had no interest in the land that could be conveyed; and the only question now is, whether the after-acquired interest which he received from Caldwell inured to the benefit of Mrs. Simpson.
At the time the deed from Johnnycake to Mrs. Simpson was executed the following statute was in force:
“Sec. 4. Where a deed purports to convey a greater interest than the grantor was at the time possessed of, any after-acquired interest of such grantor, to the extent of that which the deed purports to convey, inures to the benefit of the grantee.” Comp. Laws, 354.
This deed does not purport to convey any particular interest or estate, nor does it anywhere assert or state that Johnnycake was possessed of any particular interest or estate which he could convey; nor is there any.covenant of any kind or description whatever anywhere to be found in said deed. The deed, as we think, clearly shows upon its face that it was intended to be only a quitclaim deed of a present and existing but unascertained, .unknown, indefinite and uncertain interest. The deed in substance is as follows:
“ For and in consideration • of the sum of one dollar and other valuable considerations in lawful money of the United States” Johnny cake “grants, bargains, sells, aliens, - releases, quitclaims and conveys ” unto Kate L. Simpson the land in controversy, “together with all the improvements, ways, easements, rights, privileges and appurtenances to the same •belonging or in anywise appertaining, and all remainders;, reversions, rents, issues and profits thereof, and all the estate,, right,, title, interest, claim and demand, either, at law or in equity, or otherwise howsoever of the said” Johnny cake, “in, to, or out of said premises.”
The two cases referred to by counsel for plaintiff from the Illinois reports are not applicable. The case of DeWolf v. Hayden, 24 Ill., 525, was decided under a peculiar statute of Illinois, and the law as there laid down is clearly not the law where such a statute does not exist. The case of Gibson v. Adams, 32 Ill., 348, was a decision in Illinois construing-an Iowa statute precisely like ours (said § 4, Comp. Laws,, 354,) but the decision, or at least the reasoning of the court,, was evidently very much affected by their own local laws,, and by the hardship of that particular case. The case however differs widely from this. The deed in that case used the words “grant, bargain and sell” only, and did not use the words “release and quitclaim;” nor did that deed use any of many other words which are used in this, which tends to show that this was intended to be only a quitclaim deed. That deed also contained the following covenants, which this deed does not contain, to wit: “ That the grantors were well seized, and had good right to sell and convey; that the premisos ware free from incumbrance, and the grantee, his heirs or assigns should enjoy the quiet and peaceable possession thereof.” (32 111., 350, 351.) A deed containing the words, “granted, bargained, sold and quitclaimed,” is only a quitclaim deed; and the grantor in the same, who had no title to the land at the time he executed the deed, is not estopped from afterwards acquiring the title as against his grantee: McCracken v. Wright, 14 Johnson, 194; Jackson v. Hubbell, 1 Cowen, 616; and the same with reference to the words, “bargain, sell, release, quitclaim and convey:” Gibson v. Chouteau’s Heirs, 39 Mo., 536, 566. See also note to Doe v. Oliver, 2 Smith’s Lead. Cases, (6th Am. ed.,) 709, and cases there cited.
After a careful consideration of the subject we are of the opinion that a deed, such as executed by Johnnycake to Mrs. Simpson, does not estop the grantor, who, at the time of executing the same had no title to or interest in the land mentioned in the deed, from afterwards acquiring- title to or interest in said land as against the grantee, and that the after-acquired title or interest will not inure to the benefit of the grantee. The judgment of the court below is affirmed.
Kingman, C. J., concurring.
Brewer, J., did not sit in the case. | [
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The- opinion of the court ivas delivered by
Brewer, J.:
The principal question in - this case is as to* the'validity of certain proceedings for the condemnation of •the right of way through the real estate of defendant in error. The proceedings were had under art. 9 of ch. 23 of the Gen. Stat.,, pages 212, 213. It is not claimed that the proceedings were not in conformity to the provisions of this article, hut it is insisted that under §§ 48 and 49 of the same chapter, p. 203, certain things must be done before any application -can be made under art. 9; or, if this be not so, then that art. 9 :is' unconstitutional, as failing to provide for notice to the «Owners of lands sought to be taken. The proposition is thus «clearly, and forcibly,presented by. the .learned .counsel for ■defendant in error:
“Either this law requires the company to file this map and profile before-application is made to the board of county commissioners, so that the notice mentioned in section 86 can in ¡some manner describe the land to be taken, or the law is (unconstitutional, b.ecause it provides for no notice.”
Let us examine the first branch of this dilemma. Sections •48 and 49 are as follows:
“Sec. 48. Every railway corporation, before constructing ¡any part of their road into or through any county named in -their charter, shall make a map and profile of the route .intended to be adopted by such company, in such' county, which shall be certified by the president and engineer of the ■company, or a majority of the directors, and filed in the office ,«f the county clerk of the county into or through which the road is to be made.
“Sec. 49. The company shall give written notice' to all actual occupants of the land over which the route of the road is so designated, and which has not been purchased by or «donated to the corporation.”
In must be borne in mind that the question is not, whether tthese sections are obligatory, but when they are obligatory. It is conceded on b°fh sides that they are law, and that their .requirements must be respected by all railroad companies. 'The only question is, do these requirements antedate the -condemnation proceedings? It is a question of construction and intention, and not one of power. When must-the map and profile, be filed ? Sec. 48 answers the question: ■“Before constructing any part of the road.” If filed before construction commences, the clear letter of the law is obeyed-The legislature have fixed the time. Who can change it ? Ibis a matter ¿entirely within legislative control, and beyond, judicial determination. When is the construction of a road commenced ? The term has no technical meaning. What is-its ordinary acceptation ? It refers to the labor put forth to-fit and adapt a certain selected route to the running of cars-Constructing is building. Building a road—constructing a road. This certainly does not include buying the ground on which to build and to construct it. Buying a piece of ground is not part of constructing a house. It may be an essential prerequisite, but is not a part of it. Much work has to be-done before the construction of the road commences. A company must be organized, stock subscribed, a survey made,, route selected, and the right of way obtained, before the construction proper commences. The term might as well be-enlarged so as to include all these, as simply the one of obtaining the right of way. It would have been just as easy,, if so intended, to have said “before condemning the right of way,” as “before constructing the road.” It seems to us,, therefore, that the plain language of §48 disposes of one branch of this dilemma. But there are other considerations,, worthy of notice, which sustain this view. Art. 9 is entitled, “Appropriation of lands for the use of railway and other corporations,” and is complete in itself. If the legislature had intended the filing of this map and profile to be a portion of the condemnation proceedings, it seems as though they would have inserted the requirement somewhere in this, article, and not have placed it, where it is, in an article declaring certain general powers and duties of railroad corporations. Still again: Art. 9 is a substantial re-enactment, of ch. 124, Laws 1864, p. 236, which continued in force until 1868. Sections 48 and 49 were first introduced into-the statutes in 1868. Now, as the legislature manifestly deemed the provisions of law in force from 1864 to 1868-sufficient for condemning the right of way, if they had decided to alter or add to those provisions, would they ■not naturally have made such change or addition in ;thc wery- chapter or article which purported to .include those provisions? It may be said, that, except as preliminary to the application for condemnation of .the right of way,.the filing of a map and profile would be of little value. Possibly this may be so. It was deemed entirely unnecessary for four years. If so, it would not -justify us in giving -to .the section a meaning its language did not authorize. Perhaps its value may seem greater when it is noticed that no map or profile is called for by article nine. That article is satisfied by a written report, giving metes and bounds, withput any map or profile whatever. Again: Sec. 49 provides for giving written notice to all actual occupants of lands not purchased or donated. Notice of what? The statute does not answer. Counsel says, notice of the condemnation proceedings. Why not, more probably, notice that the company is about to commence work, that the actual occupant may -prepare his fences so as to confine his stock, and preserve his crops? No notice is necessary or required where the company, owns the land; but where it has only a right of way, ■an easement on the land, and where the original owner has the right to occupy till the actual use for railroad purposes is .sought, notice is proper and required. The conclusion then -to which we have come, is, that the filing of the map and profile is not made by the statute preliminary to the condemnation proceedings. This conclusion has been reached with much hesitation, and grave doubts; but it seems to. us most fully to carry out the intention of the legislature. This brings us to a consideration of the other branch of the dilemma. Is the law unconstitutional, because providing for no notice? If the law was silent as to- notice, and an attempt ■was made by it to divest one of, his property without any pretense of notice, its unconstitutionality would be undisputed. A man cannot be deprived of his property without -due process of law. This process of law implies notice; not necessarily actual, personal notice, but notice, such that there .is a reasonable probability of the party’s receiving it. The rule is thus laid down by Denio, J., in the Matter of the Empire City Bank, 18 N. Y., 199: “It may be admitted that a statute which should authorize any debt or damages to be. adjudged against a person upon a purely ex parte proceeding, without a pretense of notice, or any provision for defending, would be a violation of the constitution, and be void; but where the legislature has prescribed a notice by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an opportunity is afforded him to defend, I am of opinion that the courts have not the power to pronounce the proceeding illegal. The legislature has uniformly acted upon that understanding _ of the constitution.” Article 9 is not obnoxious to the charge of attempting to divest property without notice. It attempts to provide for notice. It requires notice, gives opportunity to be heard, and defend, and right ■of appeal from the decision of the commissioners to. the district court. The real objection therefore is, that the notice provided for is insufficient. Sec. 86 of this article reads, that “before any board of county commissioners shall proceed tp lay off any railroad route, as herein provided, notice of the time when the same shall be commenced shall be given by publication, thirty days before the time fixed, in some newspaper published in such county,” etc. This does not contemplate personal notice. Nor is this essential. As we understand the learned counsel for defendant in error, they concede this. The statutes are full of instances of constructive notice, as in ■cases of publication against nonresidents, in attachment suits, foreclosures of mortgages, etc.; or in cases of changes in the valuation of real estate by the boards of equalization; or in the matter of street improvements in cities, or opening roads in the country. See in reference to the validity of constructive notices, generally, the cases of Mason v. Messenger, 17 Iowa, 261; Beard v. Beard, 21 Ind., 321, and the case from 18 N. Y., just cited.
But it is insisted that unless the map and profile are filed before the notice is adven, no owner can tell whether his land is to be taken, or whether he is one of the parties affected by the notice. The notice, therefore, it is claimed, is so indefinite as to be void. The legislature has provided for this notice. Whether we think a fuller and more specific one ought to be provided, or not, we must sustain this unless it conflicts with the constitution and is void. The line of the road must be located before application is made for a condemnation of the right of way. See § 81. The filing of the map and profile only makes more public what has been already previously done; though it may be noticed here, that the location of the line does not involve the making of a profile. It is enough that the general course of the road through the county is indicated and settled. Now, the location of the line of a railroad is not a thing hid under a bushel, or done in a corner. It is a matter of public notoriety. True, oftentimes several surveys are made, and lines run, but all of them are of public knowledge. The charter names the termini, and the counties through which it is intended to run the road. Sec. 7, p. 192, Gen. Stat. There is, as a matter of fact, and one of those facts of such general knowledge that courts may take judicial notice of it, in each county a public knowledge of the general course of a proposed railroad through such county. True, the exact quarter-section, or town lot, to be traversed, may not be known. But it is reasonably probable that persons to be affected by the assessment will be notified by the publication; fully as probable as in other cases of constructive notice. This thing also should be noticed: The very fact of laying out a railroad carries with it the idea of some discretion to be exercised upon actual survey of the ground. This is true of railroads, as well as highways. When viewers lay out a county road, .they are not limited, to a fixed, definite line. The general course is indicated by the petition and order; but within that general course they have a large discretion, as to the exact line. Sec. 4, p. 898, Gen. Stat. Was it ever held that this vitiated the notice, or made void the survey and location? So is it with a railroad. A change may be almost necessary. The interests of the public may bo benefited. A slight change may work a large saving in the cost of the right of way, or the expense of construction. These-are matters which cannot always be foreseen. They doubtless arrested the attention of the legislature, and influenced the legislation. They cannot be ignored by any one who considers the objects to be attained, and the means to be used. Perhaps this legislation is not as full as it ought to be. Perhaps other safeguards should be thrown around the property of the citizen. Be that as it may—and it is a question for the law-makers—we cannot pronounce this legislation void. The case of the Owners of Ground, etc., v. Mayor of Albany, 15 Wend., 374, is, so far as the indefiniteness of the notice is concerned, similar to this. A piece of ground was proposed to be condemned as a site for a public square. An extract from the opinion of Savage, C. J., will present the case: “It is alleged that the proceedings are unconstitutional because no notice was given to Richard I). Betts, who was assessed $41.20 as the owner of ground benefited. It is admitted that no personal notice was served on Mr. Betts, nor any notice, except a general notice published in the newspaper printed by the state printer, that a certain piece of ground, describing it, was required for a public square, and that on a certain day arid place, at a mayor’s court, to be held, etc., the damages which the owners would be entitled to would be inquired into and assessed, and that the amount of such damages would be apportioned and assessed 'upon the owners of houses and lots ivhich would be benefited, in proportion to the advantages-which such owners should be deemed to acquire. This notice' is the precise notice which the statute prescribes; and although it may be admitted that property cannot regularly be taken, or assessments made, which shall be obligatory without notice to the owner, yet it cannot be denied that it is competent for the legislature to say what notice shall be sufficient.” In this case, though the ground to be taken was described, yet the land alleged to be benefited, aird upon which the damages were assessed, was not. . Still the notice was held good. It seems to us, therefore, that the notice authorized by § 86 is sufficient, even though no map or profile had been filed in' the office of the county clerk.
There are other questions of alleged error presented by counsel for plaintiff in error, but we deem it unnecessary to' consider them. The notice as published was to the owners ‘ of lands along the line of the road “as the same is now or' may be located.” A suggestion is made in the brief as to the' effect of the words, “or may be.” We have not chosen to examine that question, for the real estate of defendant in error may have been on the- line as then already located; in which case he could hardly complain. At least, we shall wait for further facts before deciding that he could take any advantage • of this. The judgment of the district court will therefore be! reversed, and the case remanded for a new trial. • ' • '
All the Justices concurring. | [
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The'opinion of the court was delivered by
Valentine, J.:
This action was commenced in the district court by David Nichols, Michael Kennedy, Henry Parvin, and Harland Palmer, as plaintiffs, against the Kansas Pacific Bailway Company. It was alleged in the petition that said plaintiffs were partners, doing business under the firm-name of Nichols, Kennedy & Co. During the trial evidence was introduced tending to show that two of the plaintiffs, Henry Parvin and Harland Palmer, were not members of the firm at the time this action was commenced, and thereupon the court on motion of the plaintiffs struck their names from the proceed ings, and allowed the case to proceed in favor of the other two only. We see no error in this. (Silvers v. Foster, ante, p. 56.) Our code of civil procedure provides for just such eases, (§ 139, p. 655, § 396, p. 704,) leaving however a great deal of discretion to be exercised by the court trying the cause.
II. It is also claimed that there was a defect of parties plaintiff. We do not think however that the record shows any such defect. The only thing that tends to show it is a small portion of the testimony of the plaintiff Nichols, which reads as follows: “ Bryson had an interest in shipping these cattle.” We suppose further comment upon this question is unnecessary. But if there was a defect of parties plaintiff, as no objection was taken thereto, either by demurrer or answer, it must be deemed that the defendant below waived the same. Civil Code, § 91.
III. The main question in this case is, whether the railway company, when it took the cattle of the plaintiffs below for the purpose of transporting them over its road, assumed the responsibilities of a common carrier or not. We think it did. This question has already been decided in this court in the case of the K. P. Co. v. Reynolds, 8 Kas., 623. In the case of Kimball v. The Rutland and Burlington Rld. Co., 26 Vt., 247, 254, et seq., the court decided that “A railway company that transport cattle and live stock for hire, for such persons as choose to employ them, thereby assume and take upon themselves the relation of common carriers, and with the relation the duties and obligations which grow out of it * and they are none the less common carriers from the fact that the transportation of cattle is not their principal business or employment.” See also Wells v. Pittsburg, Ft. Wayne & C. Rld. Co., 10 Ohio St., 65. In the case of the Great Western Rly. Co. v. Hawkins, 18 Mich., 427, 433, the supreme court of Michigan use the following language: “The company in this case must be regarded as common carriers, and liable as such,' •except so far' as that liability was qualified by the special contract.” The special contract just mentioned was a contract to transport nineteen horses from Paris, Canada, to Detroit, Michigan, and there is nothing in the contract or in the report •of the case that tends to show that the company held themselves out as common carriers of live stock, or that they anywhere agreed or admitted that they were such carriers, and they carried these horses under a special contract. See also the authorities cited in the brief of defendants in error, and 2 Redf. on Rlys., 4th ed., 144, note 2, and cases there cited; Wilson v. Hamilton, 4 Ohio St., 738; Sager v. Portsmouth Rld. Co., 31 Maine, 228; Clarke v. Rochester & Syracuse Rld. Co., 14 N. Y., 570; N. M. Rld. Co. v. Akers, 4 Kas., 453; Keeney v. The Grand Trunk Rly. Co., 59 Barb.; Wells v. Pitts., Ft. W. & C. Rld. Co., 10 Ohio St., 65. It is claimed that a different doctrine has recently been held in Michigan: Mich. Southern & Northern Ind. Rld. Co. v. McDonough, 21 Mich., 165. This is certainly true with respect to the railroad then under consideration by the court; but whether it is true with regard to all railroads in the state of Michigan is not so certain. Seepages 189,198 andl99ofthe opinion, and the comments of the court on the provisions of the charter of the Mich. Southern Rid. Co., and the act consolidating it Avith the Northern Ind. Rid. Co. But if this decision does apply to all the railroads of Michigan as well as to the Michigan Southern & Northern Ind. Rid. Co., under its peculiar charter, does it in any manner indicate Avhat the laAV is in Kansas? We think not, or but very little at most. In Michigan, since April 1870 railroads have not been public purposes, or public uses, in the sense that they are such in the other states of the Union. In that state they are purely and strictly private purposes or uses: People v. Salem, 20 Mich., 452, 475, 480, 485. The supreme court of that state say that, “They (railroad companies) are public agents in the same sense that the proprietors of many other kinds of private business are, and not in any other or different sense.” “ Our policy in that respect,” say the court, “has changed; railroads are no longer public works, but are private property.” Railroads are private, according to that decision, in the same sense that the different kinds of business of hackmen, draymen, proprietors of stage coaches, merchants, newspaper proprietors, physicians, manufacturers, mechanics, hotel-keepers, millers, etc., are private. Railroads in Michigan seem from that decision to be such private corporations as are described in the case of Leavenworth Co. v. Miller, 1 Kas., 524, 535. If they are such private corporations as there described, of course they have a right to be common carriers of just such property as they choose, no more and no less. This is not so in Kansas. The railroads of Kansas are organized upon a different basis. In Kansas they are endowed with a kind of quasi public as well as private character. In Kansas they are so far public that the sovereign power of eminent domain may be exercised for their benefit, and they are so far public, that other public aid may be extended to them. It is believed that no railroad has yet been built in Kansas that has not been aided both by the exercise of the power of eminent domain, and by other public aid, such as lands and county or municipal bonds. Railroads are public purposes in no sense except in the sense of being common carriers of freight and passengers. It is true that there are incidental public benefits arising from the creation and operation of railroads, such as the increase in the value of property along their routes, the increase of the public revenues, etc., but these are only incidental benefits, and are not at all what make railroads public purposes. And this public character of railroads is stamped upon them at their very creation. It is stamped upon them by the sovereign power where it authorizes their coming into existence; for otherwise they could receive no public aid until the roads .should be constructed and in operation, and until the roads should become public purposes by virtue of becoming common carriers of freight or passengers. And if they were created absolutely private corporations they could become common carriers only by holding themselves out as such, and by actually carrying freight or passengers. We suppose it will not be contended that any kind of public aid could be extended to a purely private corporation. If a i-ailroad company is created as a private carrier, and not as a public or common carrier, we suppose that no'one will contend that the sovereign power of eminent domain could be exercised for its benefit in its construction, or that any public aid of any kind whatever could be extended to it. That railroads are created common carriers of some kind, we believe is the universal doctrine of all the courts. The main question is always, whether they are common carriers of the particular thing then under consideration. The question in this case is, whether they are common carriers of cattle. So far as our statutes are concerned no distinction is made between the carrying of cattle and that of'any other kind of property. Under our statutes a railroad may as well be a common carrier of cattle as of goods, wares, and merchandise, or of any other kind of property. Now as no distinction has been made by statute between the carrying of the different kinds of property, we would infer that railroads were created for the purpose of being common carriers of all kinds of property which the wants or need of the public require to bo carried, and which can be carried by railroads; and particularly wo would infer that railroads were created for the purpose of being common carriers of cattle. As Kansas, and all the surrounding states and territories, with their boundless prairies and nutritious grasses, are destined to be, great stock-growing countries, it can scarcely bo supposed that the legislature in providing common carriers for the property of the public should have omitted' to provide for one of’the most important kinds of property, a vast source of unbounded wealth. We have no navigable streams within the boundaries of Kansas upon which to transport cattle, and hence they must be transported by railroad, if transported by any means except by driving them on foot.
It is claimed however that “the transportation of cattle and live stock by common carriers by land was unknown to the common law.” Suppose it was; what does that prove? The transportation of thousands of other kinds of property, either by land or water, was unknown to the common law, and yet such kinds of property are now carried by common carriers, and by railroads, every day. We get our common law from England. It was brought over by our ancestors at the earliest settlement of this country. It dates back to the fourth year of the reign of James the First, or 1607, when the first English settlement was founded in this country at Jamestown, Virginia. The body of the laws of England as they then existed now constitute our common law. It is so fixed by statute in this state, (Comp. Laws, 678; Gen. Stat., 1127, § 3,) and is generally so fixed by statute or by judicial decisions in the other states. The reason why cattle and live stock were not transported by land By common carriers at common law, was because no common carrier at the time our common law was formed had any convenient means for such transportation. Among the other kinds of property not transported by common carriers, either by land or water, at the time our common law was formed are the following: reapers, mowers, wheat drills, corn planters, cultivators, threshing machines, corn shelters, gypsum, guano, Indian corn, potatoes, tobacco, stoves, steam engines, sewing machines, washing machifies, pianos, reed organs, fire and burglar-proof safes, etc.; and yet no one would now contend that railroads are not common carriers of these kinds of articles. At common law the character of the carrier was never determined by the kind of property that he carried. He might have been a private or special carrier of goods, wares, and merchandise, or of any other kind of property, or he might have been a public or common carrier of cattle, live stock, or any other kind of property, just as he chose. All personal property was subject to be carried by a common carrier, and no personal property was exempt. Whether a person was a common carrier depended wholly upon whether ho hold himself out to the world as such, and not upon the kind of property that he carried. A common carrier was such as undertook, “generally, and not as a casual occupation, and for all people indif ferently, to convey goods and deliver them at a place appointed, for hire, as a business, and with or without a special agreement as to price.” 2 Kent’s Com., 598. And he could hold himself out as a common carrier by engaging in the business generally, or by announcing or proclaiming it to the world by the issuing of cards, circulars, advertisements, etc., or by any other means that would let the public know that he intended to be a common or general carrier for the public. Railroads hold themselves out as common carriers by an act irrevocable on their part in their very creation and organization. The very nature of their business is such that by engaging in it or offering to engage in it they hold themselves out as common carriers. But let us return to the point more especially under consideration. /At common law no person was a common carrier of any article unless he chose to be, and unless he held himself out as such; and he was a common carrier of just such articles as he chose to be, and no others. If he held himself out as a common carrier of silks and laces, the common law would not compel him to be a common carrier of agricultural implements such as plows, harrows, etc.; if he held himself out as a common carrier of confectionery and spices, the common law would not compel him to be a common carrier of bacon, lard, and molasses. Funnel v. Pettijohn, 2 Harrington (Del.,) 48. And it seems to us clear beyond all doubt, that if any person had in England prior to the year 1607 held himself out as a common carrier of cattle and live stock by land, the common law would have x made him such. If so, where is the valid distinction that is attempted to be made between the carrying of live stock and the carrying of any other kind of personal property ? The common law never declared that certain kinds of property only could be carried by common carriers, but it permitted all kinds of personal property to be so carried. At common law any person could be a common carrier of all kinds, or any kind, and of just such kinds of personal property as he chose, no more, nor less. Of course, it is well known that at the time when our common law had its origin, that is, prior to the year 1607, railroads had no existence. But when they came into existence it must be admitted that they would be governed by the same rules so far as applicable which govern other carriers of property. ^ Therefore it must be admitted that railroads might be created for the purpose of carrying one kind of pfdpbfty only, or for carrying many kinds, or for carrying all kinds of property which can be carried by railroads, including cattle, live stock, etc. In this state it must be presumed that they were created for the purpose of carrying all kinds of personal property. It can hardly be supposed that they were created simply for the purpose of being carriers of such articles only as were carried by common carriers under the common law prior to the year 1607; for if such were the case they would be carriers of but very few of the innumerable articles that are now actually carried by railroad companies. And it can hardly be supposed that they were created for the mere purpose of taking the place of pack-horses, or clumsy wagons, often drawn by oxen, or such other primitive means of carriage and transportation as were used in England prior to that year. Railroads are undoubtedly created for the purpose of carrying all kinds of property which the common law would have permitted to be carried by common carriers in any mode, either by land or water, which probably includes all kinds of personal property. Our decision then upon this question is, that whenever a railroad company receive cattle or live stock to be transported over their road from one place to another such company assume all the responsibilities of a common carrier/ except so far as such responsibilities may be modified by special contract.
TV. It is claimed that the court below erred in instructing the jury with regard to damages. The evidence showed that the firm of Nichols, Kennedy & Co. shipped 198 head of cat-tie, and that the firm of Nichols & Palmer shipped at the same time and on the same tram ninety-seven head of cattle. At Kansas City these cattle were all turned out together, and allowed to go at large. Many of them strayed away. Twenty-one head of them were never recovered, but were totally lost; and it cost $210 to recapture the others. There was no evidence tending to show whether these twenty-one head that were lost belonged to one firm or the other, or how many of them belonged to one firm, or how many to the other. The plaintiffs in error, in their brief, “guess” they all belonged to the firm of Nichols & Palmer. The defendants in error (plaintiffs below) guess in their brief that they all belonged to Nichols, Kennedy & Co. The jury probably guessed, under the instructions of the court, that about two-thirds of them belonged to the firm of Nichols, Kennedy & Co., and that the other third belonged to the firm of Nichols & Palmer. Neither was there any .evidence tending to show whose cattle strayed, so as to require .cost to recover them back, or how much it cost to recapture the cattle of one firm, or how much it cost to recapture the ■cattle of the other firm. Under the charge of the court the jury probably assessed two-thirds of the cost against the railway company as belonging to the firm of Nichols, Kennedy A Co. If the evidence upon these two points had been clear and positive as to how many cattle, if any, Nichols, Kennedy ■& Co. lost, and as to how much, if anything, it cost this firm to recover the others back, the charge of the court would probably not have misled the jury, and would then not have been so erroneous as to require a reversal of the judgment, for the charge was not glaringly erroneous. The charge was more in its nature permissive than it was mandatory. But as there was no evidence upon these points, as there was nothing from which the jury could determine whether the whole twenty-one head of cattle that Avere lost, or some less number, or none at all, belonged to Nichols, Kennedy & Co., and .as there Avas nothing from Avhich the jury could determine Avhether the Avhole of- said cost of recapturing said other cattle, to wit, $210, or some less sum, or nothing, fell upon Nichols, Kennedy & Co., any suggestion from the court upon these points, however slight, if it indicated a number or •amount, might, and probably would, mislead the jury. As to liow much the jury assessed as damages for these two items-we cannot tell. It may have been for the whole twenty-one head of cattle, and the whole $210, or for a much less amount; we suppose about two-thirds. But whatever may have been the amount, there is nothing that we know of that would prevent the other firm of Nichols & Palmer from suing and recovering from the railroad company for the whole twenty-one head of cattle that were lost, provided they belonged to that firm, and for the whole of the $210 expended in recovering the other cattle, provided it was expended in recovering the cattle belonging to that firm. The objectionable instructions are as follows:
“ In relation to the question of damages in this case it-becomes necessary for you to determine the number of cattle owned by Nichols, Kennedy & Co.; and if you shall find that they owned exactly two-thirds of the number charged in the complaint, and that the whole number mentioned, 295-head, were put together in the yard and escaped together, then, in that case it may be competent for the jury to say that the costs of recovering these cattle, if it was $210 or any other sum, should be charged joro rata according as the whole-number of cattle belonging to Nichols, Kennedy & Co. corresponded with the whole number herded together.” “If there is any evidence before you of these cattle at Arlington or any other point where they were shipped, to the effect that Nichols, Kennedy & Co. shared with Nichols & Palmer the loss of' 21 head equally in the same ratio with the number of cattle that each partnership actually owned, then you can probably arrive at the result by taking the pro rata.”
There was no evidence that the two firms at Arlington or elsewhere shared in the loss of these 21 head of cattle or any other cattle, pro rata, or in any other manner whatever.
V. A general exception to a whole charge is of course insufficient if any portion of the charge is correct; but where-the record of the exception reads as follows, to wit: “ To the giving of which instructions and to each and' every portion thereof, (and to the refusal by the-court to give the instructions so as aforesaid asked by the defendant,) said defendant by its counsel then and there duly excepted,” the supreme court will presume that exceptions were drily taken to each and every jtortiou of the charge separately. Such has been the uniform practice of this court. The court below also erred in refusing to grant the motion for a new trial. The judgment is reversed, and cause re.manded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
JOHNSTON, C. J.:
The petitioner, Abe Ostatter, is seeking a release from the asylum for the dangerous insane at Lansing, Kan.
In March, 1914, a prosecution was commenced upon an information charging him with murdering Anna Cohen. At that time a commission appointed by the court found him to be insane and incapable of conducting his defense, and he was thereupon committed to the asylum for the dangerous insane, there to be cared for until he should recover, when, he should be returned to the court for trial on the information. In December, 1914, the medical superintendent of the asylum certified that he ha,d treated the petitioner since his commitment and had observed his condition; that he had greatly improved; that in his opinion he had wholly recovered his sanity; and that no person would be in danger by his liberation and discharge from the asylum. He was returned to Reno county and tried on the murder charge, and on January 7, 1915, the jury returned a verdict acquitting him on the ground that he was insane when he shot and killed Anna Cohen, and special findings were returned in support of tills verdict. On January 11, 1915, the court again ordered his commitment to the asylum, there to remain until the superintendent of the institution “shall certify in writing to this court that in his- opinion said defendant has wholly recovered and that no person will be in danger by his discharge, and until an order shall be made by this court ordering that said defendant shall be liberated from said State Asylum for the Dangerous Insane.” On September 5, 1916, application was made to that court for his release, and it was denied. Thereafter, petitioner made application to the probate court of Leavenworth county, which ordered his release from the custody of the'respondent, but the latter appealed to the district court of Leavenworth county where a stay of execution was granted, and when the hearing was had in the district court, petitioner dismissed his proceeding. The petitioner now brings this proceeding, alleging several grounds of illegality in his detention, but the only one relied upon is that he is now sane. The answer of the respondent, among other things, denies that petitioner is now sane, and justifies his detention under the authority of the commitment of January 11, 1915, by the district court of Reno county, which has never since that .time directed the release of petitioner.
The petitioner offers some testimony to the effect that he has recovered, is mentally normal, and that the life of no one would ■ be in danger by his release. Evidence was offered that petitioner was afflicted with the Jacksonian form of epilepsy of the ■ grand mal type, which is said to be incurable, and that so long ■ as these seizures continue he is unfit to be at large. One witness who testified in behalf of the petitioner stated that he -appeared to be normal, but he admitted that he had no knowledge of epilepsy or its effects. A physician who was a specialist in nervous diseases expressed the opinion that the petitioner was normal mentally, but on cross-examination he stated that one having epileptic seizures within the last six months ought not to be released. Another witness testified that if the petitioner had an epileptic fit of the type mentioned he was not cured of epilepsy. There was considerable testimony to the effect that the petitioner had had several attacks of epilepsy within six or seven days before the testimony was given.
In the judgment- committing him to the asylum it was recited that he was to be. held in custody until the superintendent of the asylum should certify to the district court that the petitioner was wholly recovered and that no person would be in danger by his discharge, and until an order of that court discharging him had been made. The judgment was entered in accordance with the statute then in force, which provided that a person so committed should not be liberated except upon the order of the court committing him, and until the superintendent of the asylum should certify in writing to that court that in his opinion the person committed was wholly recovered and that no person would be in danger by his discharge. (Laws 1911, ch. 299, § 5.) An act was passed in 1915 purporting to confer upon the state board of corrections the power to liberate prisoners acquitted of a criminal charge on the ground that they were insane when the crime was committed, and prescribing the procedure to obtain such liberation. (Laws 1915, ch. 339.) The validity of this act has been challenged, and the district court of Shawnee county has held it to be void in a j udgment rendered several years ago, which has never been reviewed nor set aside. Its validity is not a question in this case, since its provisions are not invoked and the petitioner has not attempted a compliance with its provisions. He has not complied with the terms of the judgment committing him to the asylum, nor has he taken the steps necessary to a discharge as provided in the act of 1911, and, as we have seen, he has not even followed the procedure of the challenged act of 1915. The petitioner secured an acquittal of the crime of murder on the ground that he was insane when the offense was committed. That verdict established his status, and under the law he is to be regarded as insane and dangerous until a showing has been made as the law provides, that he has been restored to his right mind, and that no one would be in danger by reason of his being at large. The validity of the law providing for the commitment and retention of the dangerous insane has been determined. (In re Clark, 86 Kan. 539, 121 Pac. 492.) It has also been decided that one acquitted of murder on the ground that he was insane when he killed the deceased, is deemed to be insane and unsafe to be at large, and that he must remain in custody until it is shown in the way prescribed by statute that he is restored to sanity and is no longer dangerous. (In re Beebe, 92 Kan. 1026, 142 Pac. 269.) The matter, as we have seen, was presented to the district court which committed the petitioner to the asylum, and, upon evidence submitted, that court determined that the petitioner was still afflicted with epilepsy and might attack and kill others if he was discharged. There is a suggestion in the application for discharge that that court was prejudiced and acted arbitrarily in refusing a discharge, but we find no justification for the imputation'and, besides, the charge appears to have been abandoned, since it is not mentioned in the brief filed in behalf of the petitioner.
Had the duty devolved upon this court to determine whether the petitioner is wholly recovered and restored to his right mind and that no person would be in danger by his discharge, we must have held that the evidence did not establish a recovery nor warrant a discharge. Not having obtained a finding and determination of recovery and restoration as the law prescribes, the writ must be denied. | [
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The opinion of the court was delivered by
Burch, J.:
The appeal was taken from the judgment of the district court approving a survey establishing certain boundaries.
The survey was instituted by the city of Iola, the owner of the Iola cemetery, which consists of two parts, the old and the new, and by S. Webb, the owner of a tract of land lying west of the cemetery. The surveyor made two reports. The first was set aside for want of notice, and the second, which was approved, was essentially a duplication of the first. The result was to establish the west line of the new part of the cemetery some distance west of an old hedge, and to establish Webb’s west line accordingly. The appellants claim the hedge was the true cemetery line, and that the effect of the survey was to move Webb’s west line over on their land.
While the appellants make some technical objections to the survey, there is no doubt that it correctly established the disputed boundaries, unless it were defective because it ignored the hedge. In one of the- deeds pertinent to the controversy one of the calls was “the McDonald line,” and it is claimed the hedge constituted the McDonald line. It is further claimed that the hedge was an old landmark, an ancient monument, and a known and recognized boundary acquiesced in since 1863. On the other side it is said tha't in deed descriptions by metes and bounds there is no reference to the hedge, such as would have been almost inevitable if the hedge had been a recognized boundary. It is further said that the hedge not only was not an ancient boundary known and acquiesced in, but that it was well understood the city owned ground sufficient for two rows of cemetery lots west of the hedge, and the ancestor of the appellants, from whom they derived title, at one time stated he would try to buy the ground. The question of fact thus presented was determined by the trial court in favor of the survey, and the finding is supported by abundant evidence.
The judgment of the district court is affirmed. | [
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The opinion of the eourt was delivered by
Dawson, J.:
The plaintiff owns a farm in the Walnut river valley in Cowley county. The defendant McDougal owns the next farm to the south. The other- defendants are neighbors south and southeast of McDougal. The plaintiff sued to enjoin the defendants from maintaining a levee or dike on McDougal’s land designed to turn water into the Walnut river which escapes through a break in the natural river bank on plaintiff’s land and which flows through the plaintiff’s land in a southerly direction on to the land of defendant McDougal and there spreads out to the south and east over the land of McDougal and others. Part of this water turns westward into a channel of the Walnut river, which, after flowing westward through plaintiff’s land, makes a wide irregular sweep further west and then curves back to the southeast and enters the western edge of McDougal’s land.
There is a long elliptical depression, locally called a bayou, extending north and south between the point where the river breaks through its bank on plaintiff’s land and the point where the river returns from the w;est to enter defendants’ land. The east side of this depression or bayou furnishes a waterway for part of the water. escaping from the river which flows through Thompson’s land on to McDougal’s. At the southern base of this bayou or depression the defendants have constructed a levee or dike about 700 feet long and from a few inches to thirty inches high, the purpose of which is to turn all the water westward into the river and to prevent it from flooding defendants’ lands to the south and southeast. The levee will turn all the water which comes through the break in the river bank on plaintiff’s land. The break is some 20 feet wide and 8 feet deep. But the levee is wholly ineffective to protect, and not designed to protect, defendants’ lands from heavy floods which frequently overflow the banks of the Walnut river and inundate that community. The latter sort of floods would pass over and around the levee and probably would destroy it.
Plaintiff’s grievance is that, whereas before the defendants’ levee was constructed the water which comes through the break in the river bank would run off from her land in about 48 hours on to defendants’ lands and do her little harm, now the same volume of water takes about 70 hours to drain off, and this delay ruins her crops.
The trial court heard the evidence and viewed the premises, and made findings of fact and denied the injunction. The most significant of the trial court’s findings read:
“X. . . . The water coming down the east fork of the bayou across the plaintiff’s and McDougal’s 1-and will follow, the bayou into the river, and before breaking across the south bank of the bayou and spreading over the land south thereof it will be flowing into the Walnut river at its shallowest depth between three and four inches'-deep and several feet wide. ...
“XI. The defendants assisted the plaintiff at one time to repair this break in the bank of the Walnut river. Such break has been filled in a number of times, just how often the evidence does not show. About five years ago this break again washed out and the plaintiff has declined to repair or permit the same to be repaired. The defendants and others requested of the plaintiff the right to make a repair on this break which the plaintiff refused, and gave as a reason for his [her] refusal that such repair would cause injury to other neighbors. At each rise in the river the break becomes greater and each year increasing portions of the flood water pass through said break upon the plaintiff’s and defendants’ lands.
“XII. After the plaintiff declined to repair or permit the break in the bank to be repaired the defendants on or about the — day of April, 1916, constructed a dike along the south bank of the bayou about thirty inches high at its highest point and about 700 feet long for the purpose of preventing the water in ordinary floods from breaking out over the south bank and spreading over the défendants’ land, and to turn the same back into the channel of the Walnut river. This dike in no way affects any flood waters except such as flow through the break of the river bank on the plaintiff’s land.
“XIII. This bayou and the island formed thereby is partly on the-plaintiff’s and partly on the defendant McDougal’s land, practically all of which is farmed with different kinds of crops, and all of which can be protected from an ordinary flood or high water by a permanent repair of this break in the bank.”
Plaintiff contends that the levee is maintained in violation of section 4050 of the General Statutes of 1915, which forbids a lower landowner to obstruct “the flow of surface water on to his land to the damage of the adjacent upper owner”; and plaintiff relies on the cases of Mo. Pac. Rly. Co. v. Keys, 55 Kan. 205, 40 Pac. 275, and Singleton v. Railway Co., 67 Kan. 284, 72 Pac. 786, to support her position that the flood waters coming through the break in her river bank are to be considered as surface waters. When those cases were decided, the law of this state permitted a lower landowner to repel surface waters; and while it forbade, as it still does, any landowner to dike against the natural flow of flood waters to the detriment of others, it did permit a landowner, with due regard to the rights of others, to build dikes and barriers to protect his property from overflow and waste. (Parker v. City of Atchison, 58 Kan. 29, 36, 48 Pac. 631.) The rights and limitations of rights of landowners in dealing with flood waters, were not changed, nor attempted to be changed, by chapter 175 of the Laws of 1911 (Gen. Stat. 1915, §§ 4050-4052), unless, indeed, they have been somewhat enlarged by section 2 of the act:
“Owners of land may drain the same in the general course of natural drainage, by constructing open or covered drains, whereby the water will be carried into some natural watercourse, or into any drain upon a public highway, for the purpose of securing proper drainage to such land and when- such drainage is wholly upon the owner’s land he shall not be liable in damages therefor to any person or persons or corporation. . . .” (Gen. Stat. 1915, § 4051.)
To regard flood waters escaping from a river as surface water led tb little or no confusion before the enactment of 1911, but it may sometimes do so now.
In Manufacturing Co. v. Bridge Co., 81 Kan. 616, 621, 622, 106 Pac. 1034, decided after the statute of 1911 was enacted, it was said:
“There are cases intimating and even expressly holding that whenever the banks of a stream are overflowed the surplus becomes at once surface water — a ‘common enemy,’ against which any one may protect himself. The great weight of authority, however, supports the view that it is to be so regarded only in case it has ceased to be a part of a general current following the channel; that if it continues to flow in the same direction while outside of the hanks, returning thereto upon the subsidence of the.flood, it is to be deemed a part of a running stream, and that it only loses its character as such when it spreads -out over the open country and settles in stagnant pools or finds some other outlet. . . .
“As was said by Mr. Farnham [in a note by him in 25 L. R. A. 527] :
“ ‘To make the rights with reference to flood water of a river depend upon whether or not it is surface water is useless. The only safe course is to treat flood water as a class by itself and then determine the respective rights according to the character of the flood.’ (25 L. R. A. 530.)’’
(See, also, Railway Co. v. Herman, 74 Kan. 77, 81, 85 Pac. 817.)
It cannot be said that the flood water which defendants seek to control by the levee is ordinary surface water. ■ It is river water — flood -\yater, water which but for the negligence, indifference and obstinacy of plaintiff would never reach or concern the defendants. The attitude of plaintiff is glaringly inequitable. She will not mend her river bank, nor permit it to be done by defendants, although to do or permit this to be done would save her own property harmless, as well as that of defendants. Her excuse, “that such repair would cause injury to other neighbors,” is not an excuse which a court of equity can tolerate. Her “other neighbors” can look out for themselves, and it is no injury — no legally redressible injury — to them to endure the natural flow of high waters to which the location of their lands may subject them; and the plaintiff may not relieve them of their natural disadvantages to.the damage and injury of defendants; and certainly she will-get no affirmative aid in a court of equity to further such purpose. Plaintiff does not come into court in that just and equitable attitude herself which is a prerequisite to entitle her to discretionary relief at the hands of a court of equity. (Freeman v. Scherer, 97 Kan. 184, 189, 154 Pac. 1019.)
The defendants had the right to drain and turn this water back into the river, a natural watercourse. (Laws 1911, ch. 175, § 2, Gen. Stat. 1915, § 4051.) If plaintiff were free from negligence and obstinacy touching the repair of the river bank, and if she came into court in an equitable mood herself, the defendants would not be permitted in the maintenance of their levee to retard the flow of the water over plaintiff’s land; but where parties are in equal wrong equity declines relief. Here the wrong of plaintiff is greater than any wrong of defendants, and consequently she is still less entitled to consideration in equity.
Error is assigned in the trial court’s refusal to make certain findings alleged to have been established by the proof, and in-making certain others not thus established. These have been duly considered, but none of them are important. The trial court refused to find that the levee retarded the flow of water over plaintiff’s land. Perhaps the court did not believe the evidence to that effect, and the court’s personal view of the situation and premises may have entered into its denial of that finding. The findings quoted in this opinion were supported by evidence, and they control this case. So long as the levee is insufficient to retard or delay the flow of other or greater flood waters than those which escape only through the break in the river bank negligently and obstinately maintained by the plaintiff, she is not entitled to have defendants’ levee abated.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The Kansas City Eailway Company, a corporation operating street-car lines in Kansas City, Kan., on May 20, 1918, made application to the state public utilities commission for leave to increase its rate for passengers between points therein to six cents a fare, the present charge being five cents. On June 18 the city brought an action in the district" court of its county against the utilities commission and its members, seeking to enjoin them from hearing such application, on the ground that the commission was without jurisdiction to act thereon. A motion to set aside the service of summons and a demurrer to the evidence were overruled, and a temporary injunction was granted. An appeal is taken from these orders.
The defendants maintain that the action was not properly brought in Wyandotte county, where they were served with summons while engaged in investigating the matter referred to. Judges, witnesses and parties while in attendance on litigation away from home are ordinarily privileged from service of civil process on grounds of public policy (21 R. C. L. 1304-1306; Underwood v. Fosha, 73 Kan. 408, 85 Pac. 564) ; and the principle has been treated as applicable in proceedings before a tribunal not strictly judicial. (McAnarney v. Caughenaur, 34 Kan. 621, 9 Pac. 476.) Probably in a transitory action' an effective service of summons could not ordinarily be made upon a member of the utilities commission in a county other than that of his residence, by reason of his presence there in the discharge of his official duties, although a different rule might apply where the action had to do with his official conduct as there performed. (See cases cited in the Underwood-Fosha case, at page 413.) But “an action against a public officer for an act done by him in virtue or under color of his office” is required to be .brought “in the county in which the cause, or some part thereof, arose.”' (Gen. Stat. 1915, § 6940.) The present action is clearly one against the commissioners for an act done by them under color of their office, and it appears that a part of the facts relied upon took place in Wyandotte county, inasmuch as the petition alleges that after an extensive hearing they had announced that they would hear the application and were about to proceed to do so in that county. .We therefore conclude that the district court had jurisdiction of the subject matter and of the persons of the defendants, and that the motion to set aside the service was rightfully overruled.
The contention of the city is that the utilities commission has no power to make an order with regard to the rate to be charged by the railway company, because that utility belongs to a class the control of which is vested in the municipality, and not in the commission; because the rate has already been fixed for a term of years by a contract with vrhich the commission cannot interfere, even if it would otherwise have jurisdiction of the matter; and because the interstate character of the business done' prevents the regulation thereof by state authorities. The defendants respond that the questions thus presented involve facts and conclusions that are or may be in dispute; that the application is one which under some circumstances the commission might be required to grant, and therefore upon the presentation thereof the duty arose to make an investigation in the course of which one of the matters to be examined and determined was whether the street railway company is a “one-city” utility; another was whether the rate had been so established by contract as to prevent a change during the life thereof; and still another was whether, any separable part of the business done by the company was intrastate and; as such, subject to local regulation. The answer to the first question depends upon the relation of the company to roads lying outside of Kansas City, and the arrangement under which they are operated; the answer to the second depends upon the character and'legal effect of the prior negotiations between the company and the city; and the answer to the third depends upon the extent and nature of the intrastate as compared with the interstate traffic. We regard the position of the defendants in this respect as well founded. An action will not-lie to prevent the commission from taking cognizance of a matter within its jurisdiction, on the ground that it may reach a wrong decision, or that as a matter of fact or of law only one correct decision can be reached therein. If through a mistaken view of the facts or of the law the commission makes an erroneous order the remedy lies in the vacation thereof by a court on the ground that it is unlawful or unreasonable (Gen. Stat. 1915, § 8348), a practice that has been followed where it undertook to regulate a utility that was held to be under the exclusive control of a city. (Street Lighting Co. v. Utilities Commission, 101 Kan. 438, 166 Pac 514; id. 101 Kan. 774, 169 Pac. 205.) It is true that inasmuch as the final decision of a question of law rests with the courts, time might in some instances be saved by having them determine such questions in advance of action by the commission. But so also might time sometimes be saved by having a court decide whether or not a rate which a commission was thought to be about to establish would be open to any other objections than those here urged — as that it was unreasonable. Such procedure would not be admissible in either case, because upon any issue which it has jurisdiction to consider the commission must decide for itself in the first instance. The presumption is that it will decide right; but if not, the remedy lies in a subsequent action in the courts. In a recent New York case a different practice was followed, but explicitly upon the ground that it was by agreement of the real parties in interest, the railway company and the commission, the court saying: “A writ of prohibition will not lie in anticipation of the action of the commission if the commission has jurisdiction of the subject-matter, and the only question is that of power to grant the particular relief prayed for.” (Quinby v. Public Service Commission, 223 N. Y. 244, 119 N. E. 433.) The proceeding is quite analogous to an attempt to restrain the governing body of a city from passing an ordinance relating to a matter under its control, on the ground that such an ordinance if passed would be invalid. “The fact that the legislative action may be in disregard of constitutional restraints and impair the obligation of a contract ddes not authorize the court to restrain the passage thereof by injunction. The proper remedy in such cases is by injunction to prevent the execution or enforcement of such action.” (5 McQuillan on Municipal Corporations, § 2503, p. 5196.)
While the present case was pending in the trial court the. utilities commission applied to this court for a writ of mandamus commanding the dismissal of the action on the ground that the district court had no jurisdiction thereof and no right to grant the relief there asked. This was an attempt to find a short cut to a final decision quite similar to that of the plaintiff in this proceeding, and governed by the same principle. An erroneous ruling by the district court in a case of which it has, or under any state of fact may have, jurisdiction, however fundamental in -its nature, cannot be corrected by mandamus, the sole remedy being by an appeal in the method provided by statute.
These considerations require that the cause be remanded with directions that the temporary injunction be dissolved and that the demurrer to the petition be sustained. This necessarily disposes of the case and leaves nothing further to be decided now by this court. A number of difficult and doubtful .questions, upon which depend the ultimate rights of the" persons concerned, have been ably argued ■ (the defendants, however, protesting that they are not properly before us), and we regret that the - situation is such that they cannot be now determined. There is nothing left at this time for the court to act upon, and any intimation of opinion upon the questions in controversy would be mere dictum, not being the basis of any action which could now be taken. Moreover, the only parties to this hearing are two bodies representing the public — the city and the utilities commission. There is no conflict of interest between them — their difference is merely one of opinion concerning procedure. Upon the matters ultimately in dispute one of the parties in interest is the street railway company, which is not before us. A mere expression of opinion not necessary to the decision would not be binding, on any one, nor would it afford ground to invoke the ruling of the United States supreme court and so reach a final determination of the disputed federal questions.
The judgment is reversed and the cause remanded with directions to dissolve the temporary injunction and sustain the demurrer to the petition. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to quiet title to certain real property in Montgomery county. Judgment was rendered in her favor and against defendant Edna Marchant, who appeals. All the other defendants filed disclaimers.
On July 10,1915, John A. Marchant owned an undivided one-half interest in the land in controversy. On that day he. was shot and killed by defendant Edna Marchant, who was then his wife. They had no children. Edna Marchant was afterward convicted of manslaughter in the third degree for killing her husband.
Edna Marchant claims that she is the only heir of John A. Marchant, deceased, and that she is, therefore, the owner of an undivided one-half interest in the rteal property. She claims that section 3856 of the General Statutes of 1915 does not apply to persons convicted of manslaughter in the third degree. That section reads:
“Any person who shall hereafter b,e convicted of killing or of conspiring with another to kill, or of procuring to be killed, any other person from whom such person so killing or conspiring to, kill or procuring said killing would inherit the property, real, personal, or mixed, or any part thereof, belonging to such deceased person, at the time of death, or who would take said property by deed, will or otherwise, at the death of the deceased, shall be denied all right, interest and estate in or to said property or any part thereof, and the same shall descend and be distributed to such other person or persons as may be entitled thereto by the laws of descent and distribution, as if the person so convicted were dead.”
In McAllister v. Fair, 72 Kan. 533, 84 Pac. 112, decided in 1906, this court declared that a husband inherits his intestate wife’s property, although he killed her for' the purpose of acquiring that property. The 1907 session of the legislature passed the statute quoted, apparently for the purpose of changing the rule of law declared by the court. The language of the statute is broad and includes every person who may take property. from a deceased person in either of the ways named in the statute. The statute says any person who shall hereafter be convicted of killing any other person, etc. A conviction for manslaughter is a conviction for killing.- John A. Marchant was killed by his wife, who shot him. That act was within the statute.
It is contended that Edna Marchant did not inherit nor otherwise take from her husband. Then how does she claim any right to the property? If she has any right, that right comes from our statute of descents and distributions. She acquires no right to her -husband’s property, except by virtue of that statute. It does not matter whether that right is acquired by inheritance or by contract growing out of the marriage relation. Edna Marchant either inherited the .property or otherwise took it from her husband, unless section 3856 prevents her from acquiring it. That section controls, and prevents her from taking the property under any circumstances.
The constitutionality of the statute is questioned. It is argued that it violates sections 10 and 12 of the bill of rights, and section 6 of article 6 of the state constitution, and that it also violates the fourteenth amendment of the constitution of the United States. It is argued that the statute is penal and works a forfeiture. So far as the present action is concerned, the statute changed the law of the devolution of property on the death of the owner. The legislature has entire control of that matter. The law of descents and distributions prescribes the way in which property shall go on the death of the owner, and the statute in question is merely an exception to the general rules prescribed by the statute of descents and distributions.The statute in question is a part of the law of descents and distributions, and it provides that the property of a deceased owner shall not go to the person who took the owner’s life. Whether the person to whom the property would ordinarily go took the owner’s life is a question that must be judicially determined by a court of competent jurisdiction. The legislature has seen fit to say that that fact must be ascertained in a criminal prosecution in which the person who would take the property is charged with killing the owner. When that fact is ascertained, the property is not then taken from the person who would inherit, but it is then determined that the person never did inherit, and never did acquire any interest in the property. The statute is not penal; it does not add anything to the punishment of the person convicted; neither does it provide for a forfeiture; and nothing is taken from the person convicted. Edna Marchant never acquired nor received anything that could be taken from her. It follows that neither of the constitutional provisions mentioned has been violated by the statute. The conclusion reached is supported by Perry v. Strawbridge, 209 Mo. 621.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages resulting from personal injury. A demurrer to the petition was sustained, and the plaintiff appeals.
The ground of the action was that the defendants maintained, as a fire escape from the third story of -their building, a ladder which rested on the roof of a one-story extension of the structure, which leaned against the perpendicular brick wall, and which reached a point near to a window of the third story. The ladder was not secured, either at the bottom or the top, in such a way as to prevent it from slipping. The rooms of the third story were leased to a lodge, which em-' ployed the plaintiff as janitor. The lodge rooms were reached by means of a stairway. On the occasion in question the plaintiff, on going to his work, found the lodge-rooms door at the head of the stairway locked, and, being without his key, he undertook to gain entrance by means of the ladder. The foot of the ladder slipped, and the plaintiff was precipitated to the roof on which the ladder stood and was injured.
Whatever might be said with reference to various other subjects discussed by counsel, it is sufficient to observe that the defendants rested under no duty to make the fire escape safe for the plaintiff’s use in his business as janitor. The ladder was not maintained for his benefit, but for the benefit of those who might need it as a means of escape from fire. The plaintiff was provided with a stairway. Finding himself without a key to the door of his rooms, he voluntarily misappropriated to his own use an instrumentality provided for the single purpose of meeting the extraordinary needs of a class of persons to which he did not belong. Because the defendants violated no duty owed to the plaintiff, they are not liable to him in damages for the consequences of the regrettable injury which he sustained. (Express Co. v. Everest, 72 Kan. 517, 522, 83 Pac. 817; St. L. & S. F. Rly. Co. v. Payne, 29 Kan. 166; Clark v. Mo. Pac. Rly. Co., 35 Kan. 350, 11 Pac. 134; Gibson v. Packing Box Co., 85 Kan. 346, 116 Pac. 502, and cases cited; Denton v. Railway Co., 90 Kan. 51, 133 Pac. 558; Walker v. Faelber, 102 Kan. 646, 171 Pac. 605. See, also, Note, 9 L. R. A., n. s., 343; Note, L. R. A. 1915E 510; McAlpin v. Powell, 70 N. Y. 126.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff brought this action against the defendant to recover the value of certain news services furnished to defendant’s business predecessor, the Midwest Printing Company.
The case was tried on the pleadings and upon agreed facts. It appears that some years ago there was a- corporation of the same name as the defendant, the Gazette Printing Company, which conducted a printing establishment and owned and published a daily and a weekly newspaper in Hutchinson, respec lively known as “The Daily Gazette,” and “The Weekly Gazette.” In 1912 that corporation mortgaged all its assets to one Bruce Dodson for $10,000. Dodson sold this mortgage to Emerson Carey. Afterwards, in 1914, the corporation sold all its property, subject to Carey’s mortgage, to J. R.' O’Con-nor. For the purpose of renewing the mortgage to Carey, O’Connor mortgaged the property to one E. Rayl, who assigned his interest to Carey. Afterwards O’Connor organized the Midwest Printing Company, a corporation, and transferred all the property to it, subject to Carey’s mortgage. Then the Midwest Printing Company gave a second mortgage on all its property to Rayl. The original’ corporation, ■ the Gazette Printing Company, was dissolved; and the Midwest Printing Company conducted the business and published the newspaper until about May, 1916, when Carey and Rayl took possession „of the property under their mortgages. They conducted the business and continued to publish the newspaper for some weeks, and eventually caused a sale of the property to satisfy their mortgages. As mortgagees they bought the property at public sale and operated it and conducted the newspaper, and caused the organization of ,a new corporation, the defendant, “The Gazette Printing Company,” and sold and transferred all the property to the latter corporation.
The plaintiff’s bill for news service furnished while the property and newspaper were owned and conducted by the Midwest Printing Company, some $1,499.75, not being paid, this action is sought to be maintained against the defendant on the theory that it has possessed itself of certain intangible assets of the Midwest Printing Company which were not covered by Carey and Rayl’s mortgages, and that defendant is liable to plaintiff as the búsiness successor of the Midwest company.
The trial court gave judgment for defendant, and the plaintiff appeals.
The court has no difficulty in recognizing that apart from the physical and tangible assets of a newspaper establishment there is a more or less valuable intangible asset consisting of the so-called newspaper franchise, which is the right to print the newspaper itself, the right to publish a paper of a certain name and reputation, the right to enjoy the privileges attend ant upon the successful and regular publication of the newspaper for some considerable length of time.
Plaintiff contends that this intangible property was not covered by the various sales, chattel mortgages and foreclosures through which the defendant has become possessed of the newspaper which received the news services furnished by pláintiff. But the fact is governed by the terms of the contracts of mortgage and sale, and by the conduct of the successive mortgagors and vendors. In the chattel mortgage given by O’Connor, who owned the newspaper and the other assets in 1914, the property subjected to the payment of the debt was thus described:
“All printing presses, linotype machines, type, fixtures, type cases, and in fact all material and fixtures, tools, machines, equipment, furniture, and any and all other articles of any kind formerly conneited with the Gazette Printing Company, now J. R. O’Connor, also the circulation, good will, accounts, bills, receivable all assets of every kind and nature, it being the intention to mortgage the entire Gazette Printing Plant and -everything connected therewith, and appertaining thereto, whether mentioned herein or not.”
To give language its usual and fair significance, it seems clear that the newspaper franchise, the right to run the newspaper theretofore published by the mortgagor, was included in that mortgage contract. Whatever personal property may be the subject of barter and sale may be the subject of a chattel mortgage, which is merely a sale defeasible. And so long as the intangible assets pertaining to physical property are not severed and are not attempted' to be mortgaged or pledged independently of the tangible assets, the nice question as to whether there can be such a severance and independent hypothecation of such intangible assets needs no attention. Here the defeasible sale, the chattel mortgage, pledged all the assets of every kind and nature — the intangible as well as the tangible assets were included — and to make assurance doubly sure it was recited that it was “the intention to mortgage the entire Gazette Printing Plant and everything connected therewith, and appertaining thereto, whether mentioned herein or not.” But whether the intangible assets could be the subject of a chattel mortgage under our recording act or not, they could be pledged; they could be assigned, and they'were assigned. (Hall v. Terra Cotta Co., 97 Kan. 103, 154 Pac. 210.) All the assets were pledged; the circulation was pledged; the good will was pledged; everything pertaining to the printing plant, whether mentioned or not, was pledged; and this certainly included the newspaper which pertained to and was connected therewith. We would not say dogmatically that^ the newspaper franchise was covered alone by the words “good will,” but it was covered by the text and spirit of the entire contract. The same broad language was used in the contracts of sale of the property. Moreover, under such language of hypothecation and such language of sale, as the property passed from hand to hand, the operative interpretation placed on this language has been that it included all the intangible assets. Former owners successively parted with the newspaper as a pertinent part of the property on that interpretation of their own contracts.
The language of the contracts of mortgage and sale, and the operative interpretation placed thereon by successive mortgagors and successive vendors, fully justified the finding and judgment of the trial court that the defendant lawfully acquired and lawfully holds the property free from any demand or claim of the plaintiff.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
This action was brought by the state, on the relation of the county attorney, to determine the authority of the city of Hutchinson over the land occupied by the reformatory.
It was averred that this land was taken in by ordinance No. 14, in 1886, and that by ordinance No. 241, in 1890, the limits were declared and defined so as to include the same territory, but that in August, 1914, by ordinance No. 1135 an attempt was made to exclude a large amount of this territory, but that it was so uncertain and indefinite as to be without effect. In overruling a demurrer to the petition it was held (The State, ex rel., v. City of Hutchinson, 102 Kan. 325, 169 Pac. 1140) that-the latter ordinance could not, under its title, exclude territory from the city, and that the part intended to have this effect was void. Thirty days’ time was given to answer and set out specifically any proceedings upon which the city might rely as having effected the exclusion of the tract in question. The case now comes up on the answer, the reply, and an agreed statement of facts.
The answer alleges, among other things,'that ordinance No. 14, passed in 1886, was utterly void; that by ordinance No. 241, passed in July, 1890, the boundaries were defined so as to include this territory; that in 1911 the city employed a competent man to define and correct the boundaries of the city, who reported thereon and was paid therefor, the boundaries defined by him excluding the tract in question, his report being entered in the plat book in the office of the city clerk. It was further alleged that ordinance No. 1135, except for a mere clerical error, excluded the tract, and that this error was corrected on the original ordinance and in the ordinance book. Certain acts of recognition were also pleaded.
The agreed statement of facts, in addition to setting up certain acts of the township and county touching the roads traversing this land, admitted the entering in the plat book of the report of the person employed to correct and define the boundaries; that from the adoption of ordinance No. 14 the tract in question and the officers and persons residing thereon had been in all respects treated as within the city as to taxation, registration, enumeration, and voting; that no proceeding by petition by the mayor and council was ever begun, and no order was ever made by the judge of the district court relating to annexation; that correction of ordinance No. 1135, so as to leave out this land, was made after its passage, but without republication; that the officers of the reformatory living on the tract in question (most of which is owned by the state) have ever since been recognized as rightful voters in the city; that the electors and inmates of the reformatory were included in the enumeration and embraced as residents of the city at the time of the proclamation by the governor in 1911 declaring it a city of the first class; and that those living on the land are registered as voters in the city, their right to vote there never having been questioned until since the April election, 1917.
It is contended that in these various ways the “city has es-topped itself to deny its dominion ovér the disputed territory, and that at the suit of the state it may be compelled to retain and exercise jurisdiction. On the other hand, it is urged that ordinance No. 14 was void and could confer no municipal authority, and that as a general proposition, in an action between the city and the state, jurisdiction cannot be established or acquired by estoppel as claimed by the plaintiff.
If the territory was lawfully within the city it could not be seriously contended that the map defining the boundaries could work a contraction of the city limits, and the abortive effect of ordinance No. 1135 was declared in the former opinion.
When ordinance No. 14 was passed, chapter 97 of the Laws of 1885, as amended by chapter 69 of the Laws of 1886, was in force, and the former methods of adding territory were thereby superseded. The method prescribed by the amendment of 1886 was by the presentation of a petition to the judge of the district court, and upon favorable finding as to the advisability, and after certain prescribed publications, the city council was authorized to add such territory by ordinance, which it could do without such preliminaries in case the térritory sought to be added was subdivided into lots and blocks. Only a small portion of the land in controversy was thus subdivided when, the ordinance was passed.
From 1886 until 1914, 28 years, no attempt was made by ordinance to exclude any of this territory, and until after the April election of 1917 its citizens were, in the respects indicated, treated as residents of the city. The state is the creator of municipal corporations. It can give and it can take away. Hence, it may raise questions of power and jurisdiction when private parties will not be permitted to do so. When a city has by ordinance taken over additional territory, a private citizen will not ordinarily be heard to question the law under color of which such action has been taken. (Topeka v. Dwyer, 70 Kan. 244, 254, 78 Pac. 417; Railway Co. v. Lyon County, 72 Kan. 16, 84 Pac. 1031; Chaves v. Atchison, 77 Kan. 176, 93 Pac. 624; Gardner v. Benn, 81 Kan. 442; 105 Pac. 435; Price v. City of McPherson, 92 Kan. 82, 139 Pac. 1162; Horner v. City of Atchison, 93 Kan. 557, 144 Pac. 1010; The State, ex rel., v. City of Hutchinson, 102 Kan. 325, 326, 169 Pac. 1140.)
There being no private party who could under ordinary circumstances raise the question of jurisdiction, and the only authorized party — the state — having failed to raise it, the. result is that when this suit was begun the city had for nearly thirty years been holding itself out as including the disputed territory. Doubtless many important municipal matters, financial and otherwise, have been conducted on this assumption. The state has a right to present the facts to the court, to con sent that the long exercised authority be continued, and to ask that the city be required to give some valid reason why its exercise should cease. All this is proper for the avoidance of friction, confusion, and uncertainty in things involving the rights, duties, and liabilities of the defendant city and those dealing' with it.
The record presents a situation of power so long exercised and so acquiesced in and recognized that the otherwise imperative presumption that the ordinance was preceded by the required preliminaries cannot at this late day be permitted to be overthrown by the claims of the city to the contrary. The writ is allowed.
Marshall, J., dissents. | [
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The opinion of the court was delivered by
Dawson, J.:
This is the aftermath of a divorce case (Miller v. Miller, 97 Kan. 704, 156 Pac. 695), and is brought here to review an order of the trial court in which a motion to correct the original judgment nunc pro tunc, was stricken from the files and a consideration thereof upon its merits denied.
The motion was to correct the judgment so as to show that the ten thousand dollars’ worth of property awarded to the appellee in the divorce case for permanent alimony was for the support of her child as well as for her own support. The original judgment did not, in specific words, make provision for the child.
It is urged by appellee that this is not an appealable order. This court decides otherwise. It is a final order, and therefore reviewable. (Civil Code, §§ 565, 566.)
It is also urged that certain code provisions and rules of court relating to procedure and practice in appeals have been somewhat disregarded by appellant. These rules and provisions are wisely designed to guide attorneys in the logical and methodical presentation of their cases to the supreme court, but this appeal presents so simple a point that disregard of these rules in this instance does not confuse or perplex the court and will not necessitate a dismissal. (Civil Code, § 581.)
It is also urged that the briefs and arguments of counsel in the principal case, Miller v. Miller, supra, disclose that there was no mistake in the original judgment; that the minutes in the judge’s trial docket show that the judgment was ac-> curately entered in conformity with the trial court’s determination thereof; and appellee “emphatically” denies “that the journal entry of judgment did not speak the truth as to the judgment actually rendered,” etc. The element of estoppel is also brought forward. But all of these matters have re lation to the issue presented by the motion to correct the judgment. They are matters of defense to the motion. They may convince the trial court that the allegations of the motion and the evidence in support of it are untrue, and that the motion should be denied. They are, however, no answer to Appellant’s grievance, which is that the trial court would not hear him, would not consider his motion,, nor hear his evidence, and struck his motion from the files.
It is also contended that an appellate court will not review a decision of a trial court denying a motion nunc pro tunc to correct a judgment. That, again, goes to the merits or demerits of the motion. That rule does not apply, to the question of the appellant’s right to a hearing on his motion. How- ‘ ever little merit such a motion may contain, if it be intelligibly and respectfully presented, it should be héard, and should be sustained or denied according to its deserts.
Reversed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal which questions the propriety of rendering a judgment for default of an answer.
Plaintiff’s petition was to quiet his title to 60 acres of land. He alleged that the defendant and his wife induced him to place his mark on a blank form of deed which they afterwards filled out, and-that he was induced to do so through false and fraudulent representations by them that he was “about to be blackmailed by certain parties who designed to rob him of 60 acres of land,” etc.
Defendant filed a motion to make plaintiff’s petition more definite in certain particulars. This motion was sustained on October 18, 1915, and plaintiff was given twenty days in which to file an amended petition, and the defendant was given twenty days thereafter in which to answer. On March 7, 1916, plaintiff was given twenty days further time in which to file an amended petition. Sometime thereafter, 'date not shown, plaintiff made a slight amendment to his petition by interlineation, but the petition thus amended bore no mark of formal refiling, and the civil appearance docket contained no entry disclosing the fact of its refiling. Defendant’s attorney withdrew from the case in November, 1916; and, no pleadings having been filed by defendant after the informal amendment of plaintiff’s petition by interlineation, judgment by default was entered against defendant on February 17, 1917.
On May 22, 1917, defendant filed a motion to vacate the judgment because it had been rendered' when the cause was not at issue, and for various other reasons- — -mistake, unavoidable casualty and misfortune, etc. On June 25, 1917, this motion was heard, evidence introduced in its support, and the cause passed for further consideration, and nothing further concerning it has transpired in the court below.
The defendant assigns error in setting the case for trial on February 17, 1917, and in rendering judgment against him on that date for default; the essential point being that the matter was not at issue, that on that date the plaintiff, and not the defendant, was in default, and that there was no proper amended petition on file on which judgment could be rendered.
This court is inclined to the- view that on February 17, 1917, the cause was not properly at issue. While plaintiff amended his petition informally by interlineation (and ordinarily slight amendments may be so made), that was not precisely what -plaintiff had obtained leave to do. He was given time, and that time was later extended, to file an amended petition. No duty rested on defendant except to keep tab on what the docket files in the case would fairly disclose. The docket did not show that plaintiff had filed ah amended petition, and only by close scrutiny could defendant have detected an alteration in the 'original petition. With'out notice of the amendment by interlineation, he was ‘under no duty to concern himself further about the original petition, for its defects had been adjudicated and confessed. Defendant’s attorney had retired from the case, and he- had not yet procured another, but there was no need to employ another attorney until he learned or had a fair opportunity to learn that an amended petition had been lodged against him. That never occurred until after judgment. Hence, the judgment by default was not timely entered, and should be set aside.
The fact that the defendant sought to correct this snarl by a motion in the court below, after the judgment was entered, does not affect his right to appeal. The rule may be otherwise in some jurisdictions (2 Cyc. 524), but in this state, not only may judgments, intermediate or final, be brought up for review while certain features of the cause are undisposed of below (Civ. Code, § 565), but they must be so brought within six months, or the right of review may be lost entirely. (Civ. Code, § 572; Norman v. Railway Co., 101 Kan. 678, syl. ¶ 1, 168 Pac. 830; Leslie v. Manufacturing Co., 102 Kan. 159, syl. ¶ 5, 169 Pac. 193; Smith v. Lundy, ante, p. 207.)
The judgment entered by default should be set aside, and the cause will be remanded with instructions to that effect, and with instructions to permit defendant to plead to or join issues on plaintiff’s informally amended petition. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff appeals from a judgment rendered against her and in favor of the defendants for costs. The plaintiff seeks to-recover $2,000 which had been deposited with the clerk of the district court of Reno county by O. H. Dorr in lieu of bail for the appearance of one John Sanders, who was then charged with grand larceny. This is the second time this action has been before this court. (Campbell v. Reno County, 97 Kan. 68, 154 Pac. 257.) There a judgment in favor of the defendants was reversed, and the cause was remanded for further proceedings. A detailed statement of the facts was made in the former opinion. On the trial from which the present appeal was taken, the jury answered special questions, a part of which are as follows:
“Q. 5. Did the constable from Cowley county have Sanders in his custody at the time it is claimed a surrender was made? Ans. Yes.
“Q. 6. Did the constable from Cowley county, at the time it is claimed a surrender was made, with a view of effecting a surrender, give' Sanders his liberty and allow him to pass into the custody of Carl Duckworth through- a surrender by O. H. Dorr? Ans. No.
“Q. 7. Were the officers from Reno county holding Sanders all of the time he was in their custody, on the date in question, for the constable from Cowley county? Ans. Yes.”
Other than as modified by the special findings of the jury, the facts now presented are the same as those presented on the former hearing in this court.
The first question presented by the'plaintiff (who has succeeded to Dorr’s rights) is: “Could Sanders be effectively surrendered so as to entitle Dorr to reclaim his deposit without the consent and concurrence of the Cowley county constable ?” The plaintiff argues that the fact that John Sanders was in the custody of the constable from Cowley county could not and did not prevent Dorr from surrendering Sanders to the sheriff of Reno county, and thereby release the $2,000 which had been deposited with the clerk of the district court of that county. If Sanders was surrendered, so that the sheriff had control and custody of him, and could have held him as against the con stable, then the $2,000 was released. Before the surrender, or attempted surrender, Sanders had been arrested by the constable from Cowley county, and, under the findings of the jury, was continuously thereafter in the custody of that constable. At the time of his arrest by the constable, Sanders was out on bail. The sheriff had no right to take him out of the custody of the constable. It follows that neither Sanders nor his sureties had any right to deprive the constable of the custody of Sanders by surrendering him to the sheriff.
The plaintiff argues that when Sanders was released by habeas corpus proceedings in Cowley county, it was the duty of the state to secure an order from the judge of the district court of that county remanding Sanders to the custody of the sheriff of Reno county. The answer to this argument is that Sanders was not in the custody of the sheriff of Reno county when he was arrested by the constable. The sheriff did not have custody of Sanders on the charge filed against him in Reno county after he had been released on bail. When he was released in Cowley county, he was discharged from the custody of the officers in that county, and was given his freedom to the same extent as he had enjoyed that freédom when he was taken into custody by the constable. When Sanders was released in, Cowley county, he was again out on bail awaiting his trial in Reno county. The action against him in that county had been continued to the September term of the district court. When that action was called for trial, the state did not have Sanders in custody anywhere, and was not preventing his appearance, and was not preventing his sureties from producing him for trial. The authorities seem to be almost unanimous in holding that after he was released in Cowley county, it was his duty to appear for trial in Reno county, and his sureties were then under obligation to produce him for that trial. (Note in Ann. Cas. 1912 C, 747.)
The plaintiff asked the court to submit to the jury the following questions:
“1. What if anything was said by O. H. Dorr in the office of the clerk of the district court of Reno county just prior to the drawing of the check sued on herein about surrendering John Sanders to Carl Duck-worth, deputy sheriff, and to whom were such words spoken.
“2. What if anything was said by John Sanders at the office of the clerk of the district court of Reno county, Kansas, on the day the check sued on was drawn and shortly prior to such drawing on the subject of a surrender of said Sanders to Carl Duckworth, deputy sheriff, and to whom were such words spoken.”
These questions were refused. There was no error in refusing them. Questions are submitted to establish facts — not evidence. If these questions had been submitted, and had been answered, as the plaintiff evidently anticipated they would be answered, those answers would not have established any fact on which judgment could have been rendered, or which could have affected it. The answers might have been the basis for argument concerning the truth of other facts which should have been considered in rendering judgment.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Maeshall, J.:
The defendant appeals from a conviction for willfully obstructing a public highway. He was charged with so obstructing it “by damming up and. obstructing the waters of a natural watercourse running across the public highway.” The evidence showed that the defendant built a dam, or dike, across a depression that carried surface water, but that the depression was not a natural watercourse. The evidence also showed that the dam caused the water to cover the road and interfere with travel thereon.
The defendant argues that because the place where he built the dam was not a natural watercourse, the judgment of conviction cannot stand. He contends that there was a fatal variance between the charge contained in the information and the evidence introduced to support that charge. This matter was presented to the trial court by a motion to discharge the defendant, by requesting the court to instruct the jury to find the defendant not guilty, and by a motion for a new trial — all of which were overruled.
There are two Sections of the General Statutes of 1915 under which this action may have been brought. The first is section 4050, which, in part, reads:
“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. . . . 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 incorporate city.”
The court instructed the jury under this section. The other section is section 8806, which, in part, reads:
“If any person shall willfully . . . obstruct any such road [,] drain [,] or drains, by any means or in any manner whatever, every person so offending shall on. conviction be adjudged guilty of a misdemeanor, and be punished,” etc.
(For the punctuation of this section, see The State v. Kimble, 98 Kan. 657, 158 Pac. 1113.)
The information was good under either of these sections. The allegation concerning the natural’ watercourse was unnecessary and immaterial, and was surplusage. There was a variance between the pleading and the proof on this point, but that variance was not fatal. It was wholly immaterial, and was not in any way prejudicial to any right of the defendant. (The State v. Williams, 60 Kan. 837, 58 Pac. 476; The State v. Deuel, 63 Kan. 811, 66 Pac. 1037; The State v. Alexander, 66 Kan. 726, 72 Pac. 227; The State v. Parkhurst, 74 Kan. 672, 87 Pac. 703.)
Another proposition argued by the defendant, but one that is closely connected with the one that has been discussed, is that the defendant had the right to maintain the dam, for the reason that when it was first built, prior to 1911, the road officers of the township consented to the defendant’s constructing the dam and maintaining a ditch, by the side of the highway, to prevent the surface water from flowing over the defendant’s land. The difficulty with this argument is that the consent of the officers given prior to the passage of the act quoted did not authorize the defendant to violate either of those laws after they took effect. In addition to this, the defendant, after these laws took effect, maintained the dam and made repairs on it, although the road overseer had cut the dam after he told the- defendant that he was going to do so. That argument is not good.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for false representations. The plaintiff recovered, and the defendant appeals.
The petition alleged that in December, 1915, or January, 1916, the plaintiff and the defendant agreed to buy a tract of land together, for subsequent sale or exchange, the profit or loss to be shared equally. The defendant was to negotiate the purchase, and did so. The defendant said the land cost $6,500, and the plaintiff paid his share, $3,250. It cost only $5,660, so the plaintiff was defrauded. The answer was a general denial. The defendant’s version of the controversy was that he bought the land himself,, and that it was used in the affairs of a partnership with the plaintiff afterwards formed.
The court stated four propositions to the jury which the plaintiff was required to establish before he could recover: first, that at the time stated in the petition, the agreement was made to purchase the land and afterwards sell or exchange it, and share profit or loss equally; second, that the defendant purchased the land for the joint benefit of himself and the plaintiff, as agreed; third, that the defendant represented the cost to be $6,500, and that relying on the representation, the. plaintiff paid the defendant half the purchase price, $3,250; fourth, that the defendant paid only $5,660 for the land. An instruction was added that a partnership might be formed of the character alleged.for one transaction, without creating a general partnership. The jury were then told that unless the;, propositions stated were proven by a preponderance of the evidence, the jury should find for the defendant.
The defendant asked the court to give nine instructions, covering almost three and one-half printed pages of the abstract. His chief complaint is that the jury were not adequately instructed. After listening to the oral argument of the learned attorney for the defendant, and carefully considering his excellent brief, the court is of the opinion the instructions given were more extended than necessary. The reference to the formation of a partnership for a single transaction was superfluous. Otherwise the controversy was presented to the jury in admirable form..
The defendant says that fraud must be clearly proved, and that an instruction to that effect should have been given. Such an instruction is authorized when the inference of fraud is to be deduced from all the evidence. In this instance fraud was ■ proved if the particular facts specified in the instructions, were established, and it was sufficient that those facts be established by a preponderance of the evidence.
The defendant says that a statement that a thing cost a certain sum is not a fraudulent representation. Such a statement, if .untrue, is a fraudulent representation, when one partner is telling another the price paid for. partnership property, one-half of which the other is to contribute.
Complaint is made that a document was introduced in evidence. It was one of the papers connected with the plaintiff’s case, and in any event it did not determine the verdict.
The defendant pleaded two set-offs. One was that he was in partnership with Perry Fowler, who was entitled to forty percent of the receipts of the defendant’s office,, and that the defendant paid Fowler forty percent of the amount out of which the plaintiff was “skinned.” . Of course that set-off was not allowed to go to the jury. The other set-off was presented to the jury for its consideration, and the defendant was beaten on the facts.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff obtained a temporary injunction enjoining defendant the Garnett Light and Fuel Company and its officers, agents, and employees from interfering with the plaintiff’s drilling for oil on an 80-acre tract of land in Anderson county. The Garnett Light and Fuel Company appeals from the order granting the injunction.
The principal error assigned is that the court erred in granting the temporary injunction. On December 22, 1903, W. C. Tippen and wife executed and delivered to Fred Ball an oil and gas lease on the land. . Ball afterward conveyed a one-half interest in the lease to Frank McCuddy. On August 18, T904, Ball and McCuddy, as parties of the first part, entered into a contract with J. B. Levy, as party of the second part, to form a corporation to be known as the Garnett Gas Com pany, and designated in' the contract as party of the third part. By the contract the gas rights under the lease were separated from the oil rights. The gas rights were transferred to the Garnett Gas Company, while the oil rights were retained by Ball and McCuddy. The plaintiff holds under 1 Ball and McCuddy, and the Garnett Light and Fuel Company has succeeded to the rights of the Garnett Gas Company. The contract contained the following provisions:
“13. It is agreed that second party shall pay (until third party shall ratify this contract when it shall pay and be responsible for) one-half of the cash rentals on not to exceed 1000 acres of the short term leases, for two annual payments, after which first party is to pay the same, provided however, that when any cash rental falls due upon any of the leases herein mentioned as provided in said original lease (except as herein before specified and agreed) if said first party elect not to pay said cash rentals the said third party after ratifying this contract (and the said second party until said ratification) may pay the same and thereupon it shall be the duty of said first party to assign such lease or leases to the said second or third party as the case may be, upon tendering said first party the legal notary fees for so doing, first party giving thirty days’ notice to third party of their intention to abandon -said lease or leases.
“14. It is agreed that the party owning the oil right and the party owning the gas right shall operate their separate properties so as to interfere, as little as practical with the interest of each other.
“15. In case a gas well ceases producing and produces oil it is to become the property of first parties on payment of the actual value of the casing and equipment.
“16. It is agreed that if the party owning the gas right shall encounter oil in paying quantities in any of its wells to be drilled or that may be- hereafter drilled on the above leases the party owning the oil rights agrees to take such well and pay the actual cost of the same within thirty days from completion and if the parties owning the oil right while drilling on any of the above leases shall encounter gas in paying quantities in any of its said wells to be drilled or that may be hereafter drilled on said leases the party owning the gas rights agrees to take such well and pay the actual cost of the same within thirty days from completion and if the parties cannot agree as to the actual cost of such well or as to whether such wells are producing gas or oil in paying quantities then it is to be left to three disinterested persons each choosing one and these two so chosen choosing the third whose determination as to the actual cost of the well and as to whether it is producing gas or oil in paying quantities is to be final. ,
“17. In case a well produces both oil and gas in paying quantities the party drilling the well is to have his choice of surrendering or retaining the same.”
The Garnett Light and Fuel Company, or its predecessor, paid the rentals under the lease. There was no direct evidence that the plaintiff abandoned or released his rights under the lease and contract, although there is set out in the abstracts correspondence which tends to show that each of the parties to this action desired to place on the other the obligations arising out of the oil rights. The abstracts also indicate that there was some oral evidence introduced on the hearing of the application for a temporary injunction, and that there were statements and admissions made by counsel, none of which has been abstracted. Special findings of fact were not made by the court; but, in order to justify a temporary injunction, the court must have found and held that the plaintiff’s oil rights under the lease and the contract were in full force and effect. This conclusion is sustained by a statement of the court subsequently made in another proceeding in this action. That statement was as follows:
“Upon further consideration of the original lease, I am still of the opinion that it is in full force and effect, and that the rights of the parties must now be measured by the agreement of August 18, 1904.”
If the finding necessarily made by the court to justify granting a temporary injunction was correct, there was no error in granting the injunction. The abstracts do not disclose that such a finding was not correct.
The Garnett Light and Fuel Company contends that the lease from Tippen and wife expired on December 22, 1905. This contention is based on the following provisions contained in the lease:
“To have and to hold the same unto the lessee, his heirs and assigns, for the term and period of two years from the date hereof, and as much longer (not exceeding fifty (50) years as coal, oil, water, mineral water, gas, oí other mineral are found in paying quantities thereon. ... In case no well shall be found on the above described premises within two years from the date hereof, this lease shall become null and void and without any effect whatever, unless the lessees shall pay for further delay at the rate of one ($1.00) dollar [an acre] per year at or before the end of each year thereafter, until a well shall be found on said premises.”
By these provisions, the lease was to extend 50 years, if gas or oil was found in paying quantities, or if the annual rental of $1 an acre was paid before the end of each year until a well should be found on the premises. The rentals have been paid, and the lease has not expired. On October 11, 1917, the Gar-nett Light and Fuel Company obtained another lease on the same property from the then owners, which lease contained the same provisions as the first one. The second lease did not have any effect on, nor change, any right of the plaintiff under the first lease and under the contract.
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The opinion of the court was delivered by
Porter, J.:
The action was in replevin by the mortgagee under several chattel mortgages to recover possession of certain farm machinery sold to the defendants, and other property covered by the mortgagés. The defendants gave a redelivery bond and kept possession of the property. The answer set up several counterclaims for damages, and alleged that certain of the notes and mortgages were given in payment of a gas tractor which failed to fulfill a warranty, by which defendants were damaged in the sum of $1,500, besides expehses of over $900 for repairs which plaintiff failed to furnish under its agreement to make the.machine comply with the warranty. It was also alleged that defendants purchased from plaintiff a secondhand steam engine, represented to be in good working order, which was worthless, and that defendants were damaged in the sum of $600. There was a further set-off pleaded because of the sale of a separator which it was alleged failed to fulfill a warranty, causing damages in the sum of $750. The reply alleged various waivers by the defendants of defects in the machinery and failure of the warranties, and, in addition, alleged that full and complete settlements in writing were'made between the parties in which all controversies were fully settled, and renewal notes and chattel mortgages were given by the, defendants for all past-due indebtedness. Copies of the agreements for settlement were attached to the reply, which show that the defendants waived all claims or demands they might have against plaintiff by reason of the matters alleged in their answer. The jury returned a verdict for plaintiffs, and special findings allowing the defendants $1,350 damages on account, of the gas tractor failing to fulfill its warranty; $600 damages on account of fraud and misrepresentation growing out of the sale of the steam engine; $750 because of failure of warranty in. the sale of the new separator; and the further sum of $800 on account of repairs upon the gas engine. The plaintiff moved for judgment, notwithstanding the general verdict.The court overruled the motion and gave judgment in defendants’ favor for the damages found by the jury. The plaintiff appeals. ’
Among the several notes given by P. P. Jones to the plaintiff was one for $156 for repairs. On November 23, 1912, he wrote to Mr. Brown, president of plaintiff company, at Mansfield, Ohio, complaining that he ought to be allowed a credit of $95 on this particular note, because of a certain magneto and-coil which the Wichita office was asking him to pay for, and which he considered unjust because the magneto and coil were not satisfactory, and because the only reason the Wichita office had for refusing the credit was that he had not demanded payment ^before the year had expired since the magneto was purchased. In this letter he -said:
“If you insist that this $95.00 for magneto and coil be paid I will pay it but it will be an unjust charge.
“I hope you will take a broad view of the matter as I have been an Aultman & Taylor booster, to try and balance the favor you done me last year in extending some of my payments, and which I will ask some of you again this fall but from the present outlook I will be in shape to square up with you in full next harvest, as I have 860 acres of wheat this fall and it all looks good. It is my intention to put a 12 ft. push binder on the front of the gas engine -with a special hitch I am con structing and 4 8-ft. draw binders -behind, cutting a 44-ft. swath in width that is more than I ever heard of any one else doing, but I’m satisfied I can do it.
“I have two inquiries from prospective customers, I suppose, one from Ills, one from California, wanting to know what I can do with the gas engine and what I think of it. I will not answer either until I hear from you.
“I am writing you direct and hope to receive a favorable reply.”
Before he received any reply to this, he was notified by Mr. Bowers, manager of the Wichita office, to come there to arrange for settlement and extension of his notes. In addition to the $156-note for repairs, he owed the company five separate notes. He went to Wichita on December 6th, and a separate agreement was made in writing respecting each of the five notes. The agreements were all alike, except in describing the note extended, and read:
“In consideration of the extension of the time of payment herein given, to the 15th day of July, 1913, of a certain note signed by P. P. Jones in favor of The Aultman & Taylor Machinery Co., dated March 25th, 1911, due January 1, 1912, for $450.00 with interest, same being part of a debt contracted for- the purchase of a certain 30-60 A. & T.. Gas Tractor, 121.20 paid, we hereby acknowledge that the said debt is justly due and owing, and also expressly acknowledge full satisfaction and settlement of all real or supposed counter claims, set-offs or other defenses whatsoever and waive the same as against the collection of said debt or other debts or any part or renewal thereof, as represented by this or any other notes given for said purchase or representing other indebtedness to The Aultman & Taylor Machinery Company, and we agree to pay said note promptly on above mentioned date and to pay any other said notes at maturity of each without any offset whatsoever.”
Mr. Jones testified that because the letter he had written to the president November 23d had not been answered, the question of the $95 credit he was asking for on the repair note was left open and unsettled at that time. A few days later he received notice from Mr. Bowers that they had word from the president of the company in regard to the repair note, and asking him to come to Wichita again. He went on December 17 and signed the following additional agreement:
“In consideration of the Aultman & Taylor Machinery Co. allowing me a credit of $95.00 on my note No. 62709 given for certain repairs for my Thirty-Sixty Gas Tractor and the one GE 576 and one GE-247, I herewith waive any further claims for damages, defects, and shortages whatsoever. I have this day returned to the Wichita Branch one Remy Magneto and Coil in accordance with Mr. Brown’s letter of Dec. 10, 1912.”
His contention at the trial was that these agreements were all fraudulently obtained, and that he was not bound by them, because he understood he was merely signing agreements to extend his notes. He testified:
“He told me the company had agreed to grant me an extension of my notes and give me more time and told me to sign these and they would help me through.
“Q. Did you read them? A. No, sir. Never read any of them.”
On cross-examination he said:
“Q. What did he say to you? A. He told me this was the extension of my notes, giving me more time and all I read was the amount to see that the amount wasi correct. I did n’t read tljat. I took Mr. Bower’s word for that.
“Q. You could have read that if you wanted to? A. Yes, I could have read that. . . .
“Q. You had the opportunity to know what you were signing, did you not? A. Yes, sir.”
As an explanation for his. signing the agreement of December 17, he testified: “Bowers wrote that they would not give me any credit for the magneto unless I did sign it”; and that after he signed it he received credit for the $95. He also admits that when he went to Wichita on December 6 he intended to sign notes renewing his indebtedness (which of themselves would have constituted waivers of any claims he had for unadjusted-repair accounts, or for damages). Aside from this, however, there was no evidence to take the case out of the general rule that a person is bound by his written agreement, and cannot avoid his liability thereon by his failure to read and know the contents of a paper which he signs, when he has no other excuse for not knowing than that he did not care to read the instrument. (See Railway Co. v. Vanordstrand, 67 Kan. 386, 73 Pac. 113, where the only excuse the plaintiff had for not reading a release was that he was “somewhat hurried,” and authorities cited in the opinion; also, Fontron v. Kruse, ante, p. 32, 172 Pac. 1007, and cases cited in the opinion.)
The findings of the jury as to fraud in procuring these written agreements of settlement are as follows:
“8th. If you find that defendant was induced to sign any of the written waivers or agreements of settlement .that have been introduced in evidence, you may state specifically what particular one of said waivers or agreements was so induced by fraud and state fully the particular matters and things constituting said fraud which so induced said signing. Answer. In the plaintiff’s agent stating to defendant that he was signing extension of time only, and the manner in which they were placed for signature of defendant.
“9th. If you find any of said waivers of agreements were induced by undue influence you may state what particular one and what said undue influence consisted of. Answer. None.
“10th. If you find that any of said waivers or agreements were induced by mistake or are affected by mistake, you may state what particular ones are so affected and what said mistake consisted of. Answer. None.”
The jury found there was no undue influence-used, and that the signing of the agreements was not induced by, nor affected by, mistake. The plaintiff cannot escape his liability by such a flimsy excuse as that he thought he was only signing extension notes. We fail to find any evidence in the record upon which to support a finding of fraud, and besides, the letters written by defendant to the plaintiff covering a period of several years, in which he repeatedly expressed his satisfaction with the machinery he had purchased, his own admissions that in 1914, long after the settlements, he paid $1,000 on the indebtedness and extended and renewed his notes again, all indicate that the defense urged at the trial was an afterthought. The court should have sustained the motion for judgment, notwithstanding the general verdict. Since the jury found the special value of the property which the defendants retained by virtue of their redelivery bond, there is nothing left to try, and the judgment will be reversed and the cause remanded with directions to enter judgment for plaintiff. | [
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The opinion of the court was delivered by
Porter, J.:
The bank recovered judgment against C. M. Hildebrand on a promissory note, and he appeals.
Hildebrand gave his note for $367.50 in payment of premiums for policies of insurance issued by the Topeka Mutual Live Stock Insurance Company upon live stock owned by him. He claims that there was no consideration for the note, and that the bank was not a purchaser in good faith. On September 9,1915, at the time the policies were issued, the Topeka Mutual Live Stock Insurance Company was insolvent. The losses under Hildebrand’s policies amounted to $205, for which he never'received anything. The state insurance department made an investigation of the company in February, 1915, and each month thereafter; and the reports on file in the office of the superintendent show that at no time after February, 1915, was the company solvent, and that its liabilities were $64,000, its assets practically nothing. Notwithstanding the insolvent condition of the company, it was permitted to do business until December, 1915, when an action was brought by the state and the company placed in the hands of a receiver.
J. H. White, who organized the company, was its president, and also president of the White Insurance Agency, which appears to have been a trade name under which the insurance company transferred its premium notes. The day following the issuance of the policies the note in question was indorsed by the insurance company to the White agency, and transferred the next day by that agency to the bank. At the same time seventy other premium notes, given by various farmers throughout the western part of the state, were transferred to the bank; thirty-five of these aggregated $1,962.56, and thirty-six aggregated $2,001.97. The vice-president of the insurance company negotiated the delivery of the notes to the bank, and at the same time gave the bank two notes signed by the White Insurance Agency, one for $1,962.56, and the other for $2,001.97, receiving from the bank certificates of deposit for like amounts. The bank claimed to hold the two notes of the insurance agency, indorsed by the insurance company, as collateral to the seventy-one farmers’ or premium notes. The latter, as well as the two large notes, bore 10 per cent interest; the certificates of deposit which the bank gave in exchange for the notes bore 3 per cent interest. The' bank had been in the business of purchasing the insurance company’s premium notes in the same manner, and had already issued certificates of deposit to the amount of over' $4,000, in exchange for notes, which, together with those issued at the time-the Hildebrand note was purchased, amounted to over $8,000; and this was 44 per cent of the bank’s capital stock and surplus. The cashier testified that she knew the bank was permitted to loan upon the security of any one person or corporation no more than fifteen percent of the bank’s capital stock and surplus, and knew the Hildebrand note represented the payment of premiums on live stock, and understood that if a loss occurred the maker would have a claim against the insurance company as a set-off against the note, if held by the insurance company, and knew also that there would probably be losses under the policies.
In answer to special questions, the jury found that the bank acted in good faith and without knowledge of any infirmity in the paper.
The contentions of the appellant are, first, that there was error in the admission of testimony; second, that the court should have directed a verdict; third, that the court erred in' refusing to give certain instructions.
The bank was permitted to introduce a letter written by Clay Hamilton, receiver of the insurance company, to Hilidebrand, dated March 22, 1916. The letter was an apology for a former one asking Hildebrand to pay a note which Hamilton found among the papers of the insurance company, and which, it seems, was given in renewal of the first premium note. The letter stated that the receiver, not knowing the earlier history of the transactions, assumed the original note had been surrendered to Hildebrand, and that there was due the company the amount stated in the first letter; but informed him that he would not be called upon to make any payment on that note. The portion of the letter objected to was the statement that the receiver, .after making an investigation, had found that Hildebrand’s note was sold to the White Insurance Agency and later by that agency sold to the bank. The grounds of objection urged are, that it was a statement of matters, concerning which the receiver could have had no personal knowledge, which occurred before he became receiver; and that his, testimony was hearsay and necessarily derived from, the books of the company, which would be the .best evidence. These were all good grounds for the objection to the admission of the letter as a whole,.; We are unable to discover for what purpose it was offered or admitted; and on the other hand, we are unable to discover that the defendant was prejudiced by the admission, notwithstanding a number of the jurymen on their voir dire examination testified they were personally acquainted with the receiver, and notwithstanding the fact that his letter was referred to in the argument of counsel for the bank as evidence that the cashier acted in good faith. There is no dispute as to the facts concerning the manner in which the bank became the holder of the note, so far as the fact of indorsement and transfer is concerned. Prima facie, the indorsement and transfer of the note gave the bank a good title. Nothing contained in the letter written by the receiver purported to throw any light whatever upon the good faith of the transaction between the bank and the insurance company, which was the only question at issue.
It is urged that the verdict of the jury, as well as the finding of fact that the bank acted in good faith, is contrary to the evidence, and especially the testimony of the cashier, to which we have referred. The argument is, that when a person knows there may be a set-off or counterclaim against the note by the time it matures, he cannot acquire the note free from an infirmity. The argument is not sound. Every purchaser of a promissory note knows that, as between the maker and the payee, there may, before the note matures, arise a set-off or counterclaim in favor of the maker, but this will not prevent the purchaser from being a holder in due course; nor is the fact, of itself, evidence of bad faith in purchasing. The cashier did not testify that she knew the company was insolvent, or that the note was given without consideration. No authorities are cited by the appellant in support of his contention, and we think none are necessary to show its fallacy.
The provision of the statute making it unlawful for a bank to loan more than fifteen per cent of its capital stock and surplus upon the security of any one person or corporation (Gen. Stat. 1915, § 530) was not enacted for the benefit of a person in the situation of the appellant. It was to protect the rights of depositors and creditors of the bank that the law was enacted as a measure of sound public policy. The insurance company, if sued upon notes executed to the bank, could not raise the defense that the bank had extended it a loan in excess of the au thorized amount; and the special finding of the jury is, that the bank purchased appellant’s note in good faith, for value and without notice of any fact that would put it on inquiry that the insurance company was insolvent. Besides, the general verdict is a finding that no loan was made to the insurance company, its notes having been taken merely as collateral security for the payment of appellant’s note and others purchased at the same time.
The appellant requested the following instruction, which was refused:
“You are further instructed that if you find that at the time of the transaction between the plaintiff bank and the insurance company, the insurance company was insolvent, and the note sued on was without consideration, and the circumstances surrounding the transaction were such as to justify the conclusion that the failure on the part of the bank to make inquiry as to the consideration for the notes then taken by it, including the note executed by the defendant Hildebrand, arose from a suspicion that such inquiry would disclose a want of consideration for such notes, and if inquiry would have disclosed such want of consideration, then the plaintiff bank would be charged with the knowledge of such want of consideration as such inquiry would have revealed.”
On this matter the court instructed that—
“To constitute ‘notice’ of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his actions in taking the instrument amounted to bad faith. What is ‘bad faith’ in a case of this kind is a question of fact for the jury, and in this connection the court .instructs you that neither a suspicion of defect of title, knowledge of circumstances which would excite such suspicion in the mind of a prudent man or put him on inquiry, nor even gross negligence on the part of the taker will affect his rights, unless the circumstances or suspicions are so cogent and obvious that to remain passive would amount to bad faith.”
The doctrine upon which the appellant relies is stated in 8 C. J. 505, taken from the opinion in Goodman v. Simonds, 20 How. (U. S.) 343, 366, and is as follows:
“While he is not obliged to make inquiries, he must not willfully shut his eyes to the means of knowledge which he knows are at hand.”’
In the same section of Corpus Juris, however, it is stated that—
“Certain facts are not of themselves sufficient to show bad faith in not making inquiry, yet it often happens that evidence thereof is admissible, and, together with evidence of other suspicious circumstances, sufficient to require the submission of the question of bad faith to the jury.” <p. 506.)
The court submitted the question of bad faith to the jury-in an instruction which correctly stated the law as applied to the evidence. (Bank v. Reid, 86 Kan. 245, 120 Pac. 339.) The appellant has not called our attention to any evidence which would have justified giving an instruction directing attention ,to the failure of the cashier to make inquiries as to any particular fact. The cashier admits kn.owledge of certain facts, which of themselves would not, as a matter of law, make the bank a purchaser in bad faith, but which were proper circumstances to be considered by the jury, with all the facts and circumstances, in determining that question. We do not understand that the evidence shows there was any fact or circumstance to cause the cashier to suspect that the insurance company was insolvent. Such is not the contention, and it is not suggested what inquiries she should have made which would have disclosed a want of consideration. If the companyjhad not been insolvent, the issuing of the policies furnished a sufficient consideration for the note. On these facts it must be held there was sufficient evidence to support the finding of the jury that the bank acted in good faith, and the defendant, therefore, was not entitled to a directed verdict.
It is unfortunate for the appellant, find doubtless for many others, that a company organized and exploited as this seems to have been, for the mere purpose of plundering the public, was permitted to continue so long in business, but having put in circulation his negotiable promissory note, the appellant is compelled to pay, notwithstanding he received no consideration.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
In a petition setting out two causes of action, plaintiff sued to recover damages. In the first, he alleged that on November 13, 1915, about 9 o’clock at night, he was driving in a one-horse wagon along the public highway, accompanied by his wife and child; that defendant, driving a Ford, and accompanied by several other persons, came up from the rear and drove into the wagon, destroying it, injuring the horse and the plaintiff. It was alleged that the defendant and the persons with him were intoxicated and unfit to manage the car; that there were no lights upon it; that no horn or signal was sounded, nor any effort made to avoid striking the plaintiff. In his second cause of action, plaintiff alleged that on November 22, 1915, defendant maliciously and without probable cause complained in writing on oath before a justice charging him with having unlawfully taken, carried away, and used defendant’s car on November 17, 1915, with intent to deprive defendant of the temporary use thereof. It alleged that plaintiff was arrested and kept in jail for twelve hours, when he furnished bond; and that when the case was called for trial in the district court the county attorney of Johnson county dismissed it. Actual and.exemplary damages were prayed for. The defendant answered by a general denial. The trial resulted in a verdict and judgment in plaintiff’s favor for $1,000 and costs. The defendant brings the case here for review.
The instructions authorized, under certain conditions, the allowance of exemplary damages in either or both causes of action. It is insisted that there is no allegation in the petition to. warrant such an instruction, and that there was no evidence of acts that could be characterized as wanton or malicious. The' facts set forth in the petition showed wanton and reckless disregard of the plaintiff’s rights. It was not necessary for plaintiff to allege in so many words that they were wanton and reckless. We c'annot agree with the contention that there was no evidence upon which to base an allowance of exemplary damages. No special findings were requested by either party; the defendant might have asked for. findings to show whether the jury found upon one or both causes of action, but he did not see fit to do this.
The defense to the second cause of action was, that probable cause existed for procuring the plaintiff’s arrest, and that defendant made a full, complete, and truthful statement to the county attorney of all the facts known to him and upon which the complaint was predicated. The statute under which the plaintiff was charged makes it a misdemeanor for any person to take, carry away, and use any horse or automobile or other vehicle “with intent to deprive the owner of the temporary use thereof, against the owner’s will but not with the intent of stealing or converting the same permanently to his own use.” (Gen. Stat. 1915, § 3460.) It is insisted there was no controversy over the facts; no conflict in the evidence; and that the court erred in submitting to the jury the pure question of law as to whether probable cause existed. It is true the defendant testified he made a full, complete, and truthful statement to the county attorney of all the facts; and the plaintiff offered no direct evidence to show the contrary. Obviously, plaintiff was not in a situation to procure evidence as to what transpired between defendant and the county attorney. Nevertheless, it can hardly be said there was no conflict in the evidence.
The defendant was represented at the trial by Mr. Randall, the county attorney, who was also a witness, and who testified: “Mr. Hollenback informed me of the facts. I questioned him pretty particularly about that.” He further testified that he had been informed by defendant that some parties, whose names were unknown, except that plaintiff was one, had taken the car away from the possession of John Flynn, with whom defendant had left it, and that upon these statements he advised the filing of the complaint. On cross-examination, however, he testified that he did not believe he knew the car had been left in the custody of John Flynn; and it also appears from his testimony that he did not know that the car was being held for damages, nor that it was so badly damaged that it could not be used. The plaintiff’s testimony showed that defendant went to John Flynn’s place some days after the accident, claimed the car, and said he wanted to have it repaired; that John Flynn told him he had' better go and settle with the plaintiff, and that on the same day defendant met the plaintiff, and refused to make any settlement, but threatened at that time to have the plaintiff and his brother arrested.
We think it is very apparent that if the bounty attorney had been informed of all the facts concerning the matter within defendant’s knowledge, he would never have authorized the issuance of the warrant for plaintiff’s arrest. There was sufficient conflict in the testimony of defendant’s own witnesses as to the disclosures made to the county attorney, and some circumstantial evidence, to authorize the submission of the question of probable cause to the jury. However, in the absence of any finding showing upon which cause of action the jury based their general verdict, we regard this question as of slight importance.
There is the further contention that the court erred in granting a new trial, because the verdict, if based on the first cause of action, was against the weight of the evidence. Authorities are cited holding that where the trial judge is dissatisfied with the verdict of the jury on weighing the evidence presented, it becomes his duty to set the verdict aside and grant a new trial. We must assume in this case that the trial court was not dissatisfied with the verdict; that the evidence was carefully considered on the hearing of the motion for a new trial; and that the court approved the verdict. Quantitatively, the defendant produced what might be called a preponderance of the evidence to show that he was at home at the time the accident occurred; that he had sent his car, in charge of another person to town to have it repaired; and that this person was using it without the defendant’s knowledge or consent at the time the plaintiff was injured. But it cannot be said that there was no testimony to the contrary. The plaintiff’s wife identified the defendant as one of the persons who was present, and she testified she saw him running away after the accident occurred. The jury may have believed her testimony and disbelieved that of the defendant’s witnesses. The verdict may have been based entirely upon the first cause of action; it may have been based upon the second, or partly on one and partly on the other. The defendant saw fit to submit the case without any request for special findings, and it must be held that he has m,ade no affirmative showing of error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The facts of this case recall exciting times in the early days of Oklahoma, when a former sheriff lost a revolver which, his sons claimed the petitioner had in his possession and was exhibiting in certain performances given by him. It was sought to obtain possession of the weapon by an action in replevin, and afterwards a complaint was made that the defendant therein contemptuously failed and refused to deliver the revolver to the officer. A warrant for the arrest of Tilghman was issued, commanding the constable to bring him before the justice to answer the state concerning his disobedience of the writ of replevin. The return is to the effect that this warrant was read to the defendant in open court. At some time an entry was made finding that Tilghman knowingly concealed the property, and ordering that he be committed' to the county jail until he should deliver it to the constable. Afterwards the constable of Winfield, Cowley county, served on the petitioner in Sedgwick county a paper called “Commitment after trial,” which recited that Tilghman had been charged on oath with secreting the property in a certain replevin action, had been tried therefor and sentenced to the jail of Cowley county until he delivered the property to the officer, and commanded the constable to “receive the said Bill Tilghman into your custody, in the jail of the county aforesaid, there to remain until he delivers the property in said action to the officer therein, or be otherwise discharged by due course of law.” On this commitment the constable arrested Tilghman in Sedgwick county, handcuffed him and took him to the Cowley county jail, and this proceeding was brought by Tilghman to obtain his release.
Numerous complaints are made about the failure of the justice to keep his docket written up, about the absence of some papers and the nonexistence of others, and various items of alleged misconduct on the part of the court and counsel, but it was conceded at the argument that the one legal question presented touches the right of the petitioner to a discharge.
The petitioner contends that the matter all arises out of a civil action in justice’s court, and that neither the justice nor the constable had jurisdiction to cause his arrest or to arrest him in another county.
On the other hand it is insisted that the commitment was for contempt, which is criminal in its nature, and that the justice could send his criminal process anywhere in the state. .
The statute (Gen. Stat. 1915, §7696), provides that the jurisdiction of justices in civil actions shall be coextensive with the county; that constables (§ 11587) shall be ministerial officers in justices’ courts in their respective counties, and that civil and criminal process may be executed by them throughout the county, under the restrictions and provisions of the law.
Section 11588 provides that in serving process, civil or criminal, the authority of a constable shall, when not otherwise restricted by law, extend throughout the. county in which he may be appointed; and in serving process issued by a justice of the peace he shall have the same power over the property and possessions of parties as the sheriff or coroner under like process issued from the courts of record.
Section 7947 authorizes the justice, upon complaint that a criminal offense has been committed and that the offender has fled from the county, to issue a warrant directed to an officer of his own county or to that in which the offense was committed to apprehend the offender and take him before some magistrate of the county where the offense was committed.
Section 7948 provides that if any person against whom a warrant may be issued for an alleged offense committed in any county shall, before or after the issuing of such warrant, escape from or be out of the county, he may be pursued and apprehended in any county of the state.
The statute under which the contempt proceeding was begun is section 7769, which reads as follows:
“Whenever it shall be made to appear to the satisfaction of the justice, by'the affidavit of the plaintiff or otherwise, that the defendant or any other person knowingly conceals the property sought to be recovered, or, having control thereof, refuses to deliver the same to the officer, the justice may commit such defendant or other person until he or they disclose where such property is, or deliver the same to the officer.”
Is thip a criminal proceeding? In Wheeler & Wilson Mfg. Co. v. Boyce, 36 Kan. 350, 13 Pac. 609, an affidavit was made in a replevin action before a justice of the peace that the defendants refused to deliver the property, and a warrant was issued commanding the constable to arrest them and commit them to the Shawnee county jail, there to remain until they should deliver the machine. Under this warrant they were arrested and placed in jail without being taken before the justice and without any examination, hearing or trial. The action was brought for damages arising out of the imprisonment. In the opinion, after quoting the statute, it was said:
“The proceeding authorized by this statute is virtually one for the punishment of contempt. . . . Whatever procedure may be adopted, it is certain that a party cannot be condemned without notice; and a final judgment rendered, as was done in this case, without a hearing or an opportunity to. defend, is void. (Rapalje on Contempt, § 96.) While the language of the statute is not very explicit, it does not require the interpretation contended for, and if it did, it would necessarily be held void.” (pp. 355, 356.)
In the fourth paragraph of the syllabus it was said that the section referred to is “incidental to the action of replevin and virtually provides for the punishment of a contempt.”
Barton v. Barton, 99 Kan. 727, 163 Pac. 179, was an appeal from a decision adjudging the plaintiff guilty of contempt in failing to make payments for the support of a minor child under a decree in a divorce action. It was, insisted that the contempt feature of the proceeding was criminal in its nature and should have been prosecuted in the name of the state by an officer thereof. But it was said that the object of the proceeding was to protect private rights, to compel compliance with the decree of a court rendered in a civil action, and only incidentally to vindicate the authority of the law; that while the punishment took on a criminal phase, it was really civil in character, and the proceeding could be instituted by the aggrieved party in the original case to protect and enforce the private rights of. parties litigant. In Holloway v. Water Co., 100 Kan. 414, 167 Pac. 265, an order punishing for disobedience of an injunction was held to be civil in nature. It was said that the proceeding was not for the purpose of enforcing the criminal statutes, but for the vindication of the plaintiff’s rights. Numerous authorities were cited showing the distinction between contempt proceedings to vindicate the dignity of the coui;t and those to preserve and enforce the rights of parties litigant.
No pretense was made in the case before us that the peace and dignity of the state had been impaired or impugned. The complaint was that the defendant in a replevin action had refused to turn over a revolver. A commitment was issued in order to enable the plaintiff to obtain possession of the weapon to which he claimed to be entitled. It was to vindicate his rights, and not the peace of the state. Therefore, neither the justice nor the constable had any jurisdiction or authority to treat the matter as criminal in its nature and issue and execute criminal process in another county, and their attempt to do so was void, and the imprisonment resulting therefrom was without jurisdiction. For a release from a commitment under a void process, habeas corpus lies. (In re Dill, Petitioner, 32 Kan. 668, 5 Pac. 39; In re Jewett, 69 Kan. 830, 77 Pac. 567; 13 C. J. 6, 7.)
The petitioner is discharged. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on thp promissory note of the defendant, Gunn. The other defendants were joined on the theory that the loan evidenced by the note was made to them and Gunn as promoters of a corporation which was not organized. Judgment was rendered for the plaintiff, and thfe defendants, other than Gunn, appeal.
The principal question is whether or not the court properly overruled a .motion to quash the service on the appellants. The ground of the motion was that Gunn was inveigled into the jurisdiction by false and fraudulent representations that the plaintiff desired to discuss the business and settle the differences between them, when the real purpose was to begin action, get service on him, and then send summons to Finney county for the appellants. By amendment the further ground was added that the plaintiff and Gunn conspired to procure fraudulent service on the appellants.
Gunn resided in Missouri, the appellants resided in Finney county, and the summons issued from the district court of Wyandotte county, in which the action was commenced. The proof established the following facts: The plaintiff wrote to Gunn, asking him to come to Kansas City, Kan., the place where the plaintiff conducts its business, and discuss the liability of himself and the appellants for the indebtedness forming the subject of the action, which he did. He was not enticed into the jurisdiction of the court by any fraud'or deception, but came voluntarily and in good faith in response to the request contained in the plaintiff’s letter. All the matters now constituting the merits of the controversy were discussed, and Gunn was advised that the plaintiff intended to sue him and sue his associates in the abortive corporate enterprise. The place to begin the suit was discussed, and Gunn was informed that if he would permit service to be made on him in Wyandotte county, summons for his associates could then be issued to Finney county. The conversation occurred in the forenoon. Gunn desired that the liability of his associates for the debt be determined, and it was more convenient for him and for the plaintiff that the action should be prosecuted in Wyandotte county. Therefore, he agreed to wait while the petition and other necessary papers were in preparation, and to be accessible for service of summons on-him in the afternoon. In the afternoon he was duly served, and thereafter summons was duly issued and served on the appellants in Finney county.
The grounds of the motion were disproved, and no abuse of judicial process occurred. The situation was such that somebody had to be put to much trouble and expense. Gunn could have crossed the river and been safely in Missouri before the action could have been commenced, had he so desired. The plaintiff would then have been obliged to sue him in Missouri, and to sue the appellants in Finney county. Gunn, however, was interested in having the liability of his associates for the debt determined, and, as he viewed it, it was more convenient for him that the trial of the action take place in Wyandotte county than in Finney county. It was no fraud on the appellants for him to submit to the jurisdiction of the Wyandotte district court, and when the action was well commenced against him, summons was properly issued for the appellants to Finney county.
The principles governing the liability of the defendants for debts contracted by Gunn in the interest of the abandoned corporate enterprise (a bank) were stated in the case of Lithographing Co. v. Crist, 98 Kan. 728, 160 Pac. 198. The evidence was conflicting. It would serve no useful purpose to analyze it. That most favorable to the plaintiff was clearly sufficient to sustain the judgment.
The judgment of the district court is affirmed.
One-half the cost of the counter-abstract is taxed to the plaintiff, because of duplication of matter contained in the abstract, because of matter wholly unessential to consideration of the case, and because of failure to condense and summarize matter plainly subject to such treatment. | [
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Per Curiam:
This is an original contested proceeding in discipline filed by the office of the Disciplinary Administrator against Kerry J. Granger of Hutchinson, an attorney licensed to practice law in the state of Kansas. Complaints against Granger alleged that he violated MRPC 1.3 (1997 Kan. Ct. R. Annot. 276) (Diligence), MRPC 1.4 (1997 Kan. Ct. R. Annot. 282) (Communication), MRPC 3.2 (1997 Kan. Ct. R. Annot. 333) (Expediting Litigation), and MRPC 8.4 (1997 Kan. Ct. R. Annot. 366) (Misconduct).
FACTS AND DISCUSSION:
The facts are not disputed, though Granger filed exceptions to the findings of fact adopted by the disciplinary panel. Granger agreed to represent Angie Schwartz, who was seeking a divorce in June 1995. Granger drafted a petition, which was signed and notarized by Schwartz in July 1995. Schwartz paid $300 as a retainer, for which Granger wrote her a receipt. Between October 1995 and April 1996, Schwartz repeatedly left messages for Granger requesting information on the status of her case. Granger does not recall returning Schwartz’ messages or communicating the status of Schwartz’ case to her between October 1995 and April 1996.
Not until April 19, 1996, did Granger file Schwartz’ petition for divorce. He filed it 3 days after being notified of Schwartz’ complaint to the Disciplinary Administrator. At the time the petition for divorce was finally filed, Schwartz had been living in Oklahoma for more than 60 days. Despite this, the petition alleges Schwartz had been a resident of Kansas in the preceding 60 days.
During the disciplinary investigation, Granger learned through the investigator, Jerry Ricksecker, that Schwartz wanted the petition for divorce dismissed and her retainer returned. Granger dismissed the petition and returned the retainer to Schwartz through Ricksecker. At this point, Schwartz was satisfied and did not wish to further pursue the complaint.
The complaint was filed June 13, 1997, after the disciplinary panel was named and well after the hearing date had been set. Granger had been informed in Februaiy 1997 that a hearing was set for July 9, 1997. Granger received a notice of hearing before the formal complaint had been filed by the Disciplinary Administrator. Granger asserted that this procedure violated Supreme Court Rule 211(c) (1997 Kan. Ct. R. Annot. 223), which states a hearing will be set after a complaint and the time for an answer has passed. Granger argued to the panel that because the complaint was filed barely 20 days before the hearing, he did not have time to answer the complaint or prepare a defense for the hearing with due diligence.
At the hearing, the Deputy Disciplinary Administrator acknowledged her failure to comply with procedure set out in the rule and stated her office had not followed this procedure for approximately 10 years. She explained it was necessary to set a hearing date well in advance of the hearing so that all involved could avoid scheduling difficulties and attend the hearing. Thus, the office sets the date of the hearing prior to filing the complaint to accommodate the panel members and the parties. The Deputy Disciplinary Administrator argued that unless Granger could show actual prejudice, Supreme Court Rule 224(d) (1997 Kan. Ct. R. Annot. 253) prohibits a claim of deviation in procedure as a defense to a disciplinary proceeding.
The panel noted Granger’s objection. The panel then found clear and convincing evidence of violations of MRPC 1.3, 1.4, and 3.2 because Granger did not return his client’s phone calls or otherwise provide information about the progress (or lack of it) in her case over the course of 6 months. The panel did not find clear and convincing evidence of a violation of MRPC 8.4.
The panel found the following aggravating factors:
“a. Prior disciplinary offenses. In 1980, Respondent was publicly censured; in 1975, under the previous Canons of Ethics, he was informally admonished [in each case for his failure to handle an appeal with diligence and in a professional manner],
“c. Pattern of misconduct and d. Multiple offenses. The Kansas Supreme Court disciplined Respondent previously for a similar serious offense.
“g. Refusal to acknowledge wrongful nature of conduct. Respondent has refunded Complainant’s retainer and written her a letter of apology, but he does not acknowledge his wrongdoing in keeping her divorce on hold for more than six months.
“h. Vulnerability of the victim. The Panel does not find the complainant to be more or less vulnerable than is any other lawyer’s client. However, testimony at the hearing is that Respondent’s clients are usually indigent and have few options available in the legal arena.
“i. Substantial experience in the practice of law. Respondent is a 1967 graduate and admittee to practice and has sufficient experience to have been attentive to the duty to his client.”
The panel found the following mitigating factors:
“b. Absence of a dishonest or selfish motive. Respondent does not seem to have profited by his delay.
“g. Previous good character and reputation. Such evidence was presented through the testimony of the First Assistant Reno County Attorney, and the investigator, and letters from the Reno County bar.”
After considering the evidence, and the aggravating and mitigating factors, the panel recommended a 2-year suspension, the imposition of which should be suspended and during which time Granger should be placed on probation. The panel also recommended that conditions of probation should include that attorney Stanley Juhnke’s office should take Granger’s phone calls, that Granger should retrieve the messages daily, that Granger should return all calls within 3 working days, and that Mr. Juhnke should be available for consultations on office management and certain reporting requirements. Finally, the panel recommended that noncompliance with the conditions of probation should result in an indefinite suspension.
Granger filed exceptions to the final hearing report. He took exception to the panel admitting certain exhibits over his hearsay objection made during the hearing, certain findings of fact and conclusions of law, the aggravating factors considered, and other mitigating factors which were not considered. Again, Granger provides no specifics for any of these exceptions. Finally, Granger takes exception to the panel’s recommended disposition.
Granger complains to this court that it took too long between the time he was notified charges would be filed (February 1997) and the time the complaint was filed (June 13,1997). Granger cites In re Ratner, 194 Kan. 362, 373, 399 P.2d 865 (1965), to support his argument that the equitable defense of laches should apply to this proceeding. There, Ratner discontinued a particular practice after an Illinois case indicated the practice may be unethical. Six years after Ratner discontinued the practice, disbarment proceedings were brought against Ratner based in part upon the discontinued practice. Given these facts, the Ratner court noted that although no statute of limitations is applicable to actions seeking disbarment, this court has recognized that charges may become so stale that it would be inequitable to act upon them. The Ratner court found the charges to be stale. 194 Kan. at 372-73.
The facts in Ratner differ significantly from the facts in this complaint. Prior to the filing of the complaint, Granger was informed by the Disciplinary Administrator as to what charges would be brought. Three months later, formal charges were filed. While Granger claims this procedure violates Supreme Court rules and due process, he does not specifically state how he was prejudiced.
The Deputy Disciplinary Administrator argues that Granger generally takes exception with findings of fact and conclusions of law but does not identify a specific problem with them. She asserts a formal complaint cannot be filed until the disciplinaiy panel has been named. She contends that if a scheduling irregularity occurred, Granger was not prejudiced. We agree with the Deputy Disciplinary Administrator’s assertion. Granger’s claim that he was denied a speedy disposition of the complaint is without merit.
Finally, Granger asserts his actions do not justify the panel’s recommended penalty. He claims that all parties had previously agreed that an informal admonition with conditions would be the appropriate sanction. The Deputy Disciplinary Administrator denies that an informal admonition was the agreed sanction and recommends that the court adopt the panel’s recommendation of a 2- year suspension, the imposition of which should be suspended, and supervision of respondent’s office practice and management.
Considering the evidence presented, we have no hesitation in finding that there is clear and convincing evidence that the respondent failed to act with diligence, failed to communicate, and failed to expedite litigation. The panel found that Granger is an experienced attorney, capable of acting with diligence and in a professional manner. Under the circumstances, we do not believe that the proper solution to Granger’s failure to communicate requires consultation on office management and reporting requirements (i.e., enforced micro-management of his office under court supervision). We conclude that discipline by published censure is appropriate at this time. Should the respondent again appear before this court under similar circumstances, the solution will be simple and severe.
It Is Ordered that Kerry J. Granger be disciplined by published censure.
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of the proceeding be assessed to Granger. | [
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The opinion of the court was delivered by
Davis, J.:
Phillip J. Sedillos petitions this court for review of the Court of Appeals’ decision affirming his conviction and sentence for a third offense of driving under the influence (DUI), an unclassified person felony, in State v. Sedillos, 33 Kan. App. 2d 141, 98 P.3d 651 (2004). He argues the use of his prior convictions under K.S.A. 2002 Supp. 8-1567(l)(3) was erroneous and that the classification of his current DUI as a felony third offense violated due process. We affirm.
In February 2003, the defendant was charged with his third DUI offense in violation of K.S.A. 2002 Supp. 8-1567 for conduct committed on October 4, 2002. The defendant had a prior conviction for DUI in July 1997 and was granted a diversion for DUI in January 1996.
Under K.S.A. 2002 Supp. 8-1567(l)(3), now K.S.A. 2004 Supp. 8-1567(m)(3), any DUI conviction or entry into a diversion agreement “occurring during a person’s lifetime shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender.” Under an earlier version of the statute, only DUI convictions or diversion agreements, classified as convictions, “occurring in the immediately preceding five years, including prior to the effect date of this act, shall be taken into account” for purposes of determining the enhanced sentence of the subsequent offense under the statute. See K.S.A. 2000 Supp. 8-1567(k)(3).
The defendant filed a motion to strike his lifetime prior convictions, arguing that application of the rules of statutory construction to K.S.A. 2002 Supp. 8-1567(l)(3) barred the use of his prior convictions to enhance his crime and penalty. He reasoned that the legislature’s omission of “including prior to the effective date of this act” language in the July 1, 2001, amendment to K.S.A. 2000 Supp. 8-1567(k)(3), see L. 2001, ch. 200, sec. 14, barred the use of his prior DUI convictions that had occurred prior to July 1, 2001.
The district court denied the motion, finding that the statute as written applied prospectively rather than retroactively. It reasoned that the changed language was effective on July 1, 2001, well before the defendant’s present DUI offense on October 4, 2002. The amendment in K.S.A. 2002 Supp. 8-1567(l)(3) provided that all DUI convictions or DUI diversion agreements occurring during a person’s lifetime would be used in determining the enhancement penalty of the present DUI offense. Thus, the defendant was not entitled to any retroactive application.
The defendant waived his right to a jury trial, and the case was submitted for a bench trial on stipulated facts. The district court found the defendant guilty of DUI, a third offense, in violation of K.S.A. 2002 Supp. 8-1567(a) and (f). On this felony offense, he was fined $1,500 and sentenced to 1 year in jail, with work release granted after 48 hours had been served.
Before the Court of Appeals, the defendant argued that application of the statute violated the Due Process and Ex Post Facto Clauses of the United States Constitution. See U.S. Const. Amend. V and XIV; U.S. Const. Art. I, § § 9,10. He argued that the district court erred by using his two prior DUI convictions to enhance his DUI offense when K.S.A. 2002 Supp. 8-1567 does not contain a retroactive provision relating to prior convictions. The Court of Appeals rejected these arguments, as discussed below, and affirmed the trial court. See Sedillos, 33 Kan. App. 2d at 143-47. We granted the defendant’s petition for review of these issues pursuant to K.S.A. 20-3018(b).
Statutory Interpretation of K.S.A. 2002 Supp. 8-1567(l)(3).
The defendant argues the Court of Appeals violated several rules of statutoiy construction by interpreting K.S.A. 2002 Supp. 8-1567(l)(3) as mandating the use of his prior DUI convictions to enhance his current DUI offense. The interpretation of a statute is a question of law over which this court has unlimited review. State v. Williams, 277 Kan. 338, 346, 85 P.3d 697 (2004).
K.S.A. 2000 Supp. 8-1567(k)(3) provided in relevant part:
“(k) For the purpose of determining whether a conviction is a first, second, third or subsequent conviction in sentencing under this section:
(l) ‘Conviction’ includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section;
....
(3) only convictions occurring in the immediately precedingfive years, including prior to the effective date of this act, shall be taken into account, but the court may consider other prior convictions in determining the sentence to be imposed within the limits provided for a first, second, third or subsequent offender, whichever is applicable.” (Emphasis added.)
Subsection (k)(3) of K.S.A. 2000 Supp. 8-1567 is referred to as a “decay” provision. See City of Norton v. Hurt, 275 Kan. 521, 522, 66 P.3d 870 (2003). The statute was amended in 2001, and the decay provision was removed. L. 2001, ch. 200, sec. 14. The amended statute contains identical provisions to K.S.A. 2000 Supp. 8-1567(k)(1) in subsection (l)(1); however subsection (l)(3) was amended to read “any convictions occurring during a person’s life time shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender.” See K.S.A. 2002 Supp. 8-1567(l)(3); K.S.A. 2004 Supp. 8-1567(m)(3).
In a well-reasoned opinion, the Court of Appeals affirmed the district court’s use of the defendant’s prior conviction and diversion agreement occurring during the defendant’s lifetime under K.S.A. 2002 Supp. 8-1567(l)(3), reasoning:
“Under K.S.A. 2002 Supp. 8-1567(l)(3), ‘any convictions occurring during a person’s lifetime’ shall be used in calculating the sentence to be imposed for a third offender. The statute does not limit a person’s convictions to those that occur after July 1, 2001. To read such a requirement into the statute would be contrary to the plain language of the statute that a person’s lifetime convictions shall be taken into account. As stated by our Supreme Court in GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001): ‘Ordinary words are to be given their ordinary meaning, and a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. [Citation omitted.]’ Here, the statute plainly reads that a person’s lifetime convictions shall be taken into account when determining the sentence to be imposed and does not merely apply to those convictions that occur after July 1, 2001.
“If we were to construe K.S.A. 2002 Supp. 8-1567(l)(3) as applying to only those convictions that occur after the effective date of the amendment, such interpretation would produce an unreasonable result that would contravene the clear language of the statute. If we were to adopt Sedillos’ interpretation, those prior DUI convictions occurring before July 2001 would not be counted for sentencing purposes. Thus, the result would contradict the language of K.S.A. 2002 Supp. 8-1567(l)(3) indicating that a person’s lifetime prior convictions are to be taken into account for sentencing purposes. ‘As a general rule, statutes are construed to avoid unreasonable results. There is a presumption that the legislature does not intend to enact useless or meaningless legislation. [Citation omitted.]’ In re M.R., 272 Kan. 1335, 1342, 38 P.3d 694 (2002).
“Although the previous version of K.S.A. 8-1567 included the phrase ‘prior to the effective date of this act,’ this wording appeared to be unnecessary given what was already stated in the provision, that is, that convictions occurring in the immediately preceding 5 years would be taken into account. K.S.A. 2000 Supp. 8-1567(k)(3). Moreover, such wording is unnecessary for the amended version of 8-1567 where any convictions occurring during a person’s lifetime are taken into account for sentencing purposes. K.S.A. 2002 Supp. 8-1567(l)(3). As a result, we find that the trial court properly used Sedillos’ prior DUI convictions to enhance his current DUI offense to a felony.” 33 Kan. App. 2d at 146-47.
The resolution of the issue we are called upon to decide depends upon the following rules of statutory construction:
“The fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained, and when a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Where the face of the statute leaves its construction uncertain, the court may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. The legislative intent is to be determined from a general consideration of the entire act, and effect must be given, if possible, to the entire act and every part thereof, and it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.” State v. Van Hoet, 277 Kan. 815, Syl. ¶ 2, 89 P.3d 606 (2004).
“When the legislature revises an existing law, it is presumed that the legislature intended to change the law from how it existed prior to the amendment, and it is presumed that the legislature does not intend to enact useless or meaningless legislation. [Citations omitted.] The court should avoid interpreting a statute in such a way that part of it becomes surplusage. [Citation omitted.]” 277 Kan. at 826-27.
“Criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. [Citation omitted.]” State v. Brown, 272 Kan. 843, 847, 35 P.3d 910 (2001).
The defendant argues the Court of Appeals erroneously interpreted earlier versions of the statute in such a way as to render the language “prior to the effective date of this act” as meaningless and surplusage. He contends the legislature’s removal of this language from the amended version of K.S.A. 2002 Supp. 8-1567(l)(3) expressed its intent that convictions should only be counted from the effective date of the act. Thus, according to the defendant, the Court of Appeals read or judicially resupplied the omitted “prior to the effective date of this act” language back into the amended statute.
The defendant fails to consider whether the language of the amended statute is plain and unambiguous on its face, the first step in statutory construction. If the statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read the statute so as to add something not readily found in it. State v. Gordon, 275 Kan. 393, Syl. ¶ 2, 66 P.3d 903 (2003).
K.S.A. 2002 Supp. 8-1567(l)(3) provides that “any convictions occurring during a person s lifetime shall be taken into account when determining the sentence to be imposed” for a third offender. The plain language of the statute contains no reference to the effective date of the act. Rather, it uses the words “any” and “lifetime,” which are common words that convey a definite meaning. See GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001) (“Ordinary words are to be given their ordinary meaning, and a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it.”). Thus, the plain language of the statute provides that any of a person’s lifetime convictions shall be taken into account when determining the enhanced sentence to be imposed and does not merely apply to those convictions that occur after July 1, 2001.
The defendant’s interpretation of the statute is contrary to the plain and unambiguous language of the statute and leads to an unreasonable result because not all convictions having occurred during a person’s lifetime would be counted. Although the defendant claims the Court of Appeals effectively reads the “prior to the effective date of this act” language back into the amended statute, the defendant is asking this court to read into the statute a “start date” for lifetime convictions which does not appear in the plain language of the statute. The conclusion that all lifetime convictions shall be counted does not result from the judicial construction of omitted language, but from the plain language of the amended statute itself which essentially contains a retroactive provision by using the term “lifetime.”
Although courts should avoid interpreting a statute in such a way that part of it becomes meaningless, useless, or surplusage, the defendant correctly points out that the Court of Appeals interpreted the phrase “prior to the effective date of this act” as being unnecessary in the earlier version of the statute because the statute provided that all convictions occurring in the immediately preceding 5 years would be taken into account. See K.S.A. 2000 Supp. 8-1567(k)(3). However, the defendant’s interpretation of the amended statute would likewise render the amended statutory language “any convictions occurring during a person’s lifetime” unreasonable and meaningless by excluding any lifetime convictions committed prior to the enactment date, contrary to the clear legislative intent expressed by the plain and unambiguous meaning of the term “lifetime.” Thus under either interpretation, some portion of either the prior version of the statute or the amended statute would be rendered superfluous or meaningless, a result sought to be avoided by the rules or statutory construction.
A reading of the plain language of both versions of the statute solves this problem. We believe that the prior version of the statute, K.S.A. 2000 Supp. 8-1567(k)(3), included the language “prior to the effective date of this act” in order to specify the parameters of the.5-year time period. The amended version, K.S.A. 2002 Supp. 8-1567(l)(3), no longer requires such parameters because the plain language includes “any convictions occurring during a person’s lifetime.” This interpretation effectively gives meaning to the statutory language used in both versions of the statute. It explains the legislature’s use of the “prior to the effective date of this act” language in the earlier version of the statute while recognizing that the amended statute did not need this language because it now refers to any convictions during a person’s lifetime. Thus, although we disagree with the Court of Appeals’ conclusion that the “prior to the effective date of this act” language in the earlier statute was surplusage, we may uphold its decision on other grounds. See Drake v. Kansas Dept. of Revenue, 272 Kan. 231, 239, 32 P.3d 705 (2001) (The reason given by the district court for its decision is immaterial if the result is correct for any reason.).
Additionally, we note that the interpretation suggested by the defendant would not be in line with the apparent legislative intent when passing the 2001 amendment to impose harsher penalties upon those convicted of drinking and driving:
“I vote yes on SB 67. [L. 2001, ch. 200] This comprehensive legislation significantly enhances public safety by imposing harsher penalties on drunk drivers. Many Kansans’ lives have been tragically affected by the act of a drunk driver. My vote in favor of this legislation is offered in tribute to the innocent victims of this crime and their families — lives tom apart by the dangerous and senseless act of driving under the influence of alcohol or drugs. This bill says loud and clear that those who drink and drive in our state will face strong penalties. Those who commit this crime more than once will also be dealt with as the serious criminals they are.” (Emphasis added.) Sen. J. 2001, p. 1063. (Explanation of Vote by Senator David Adlans).
“Drunk driving is a continuing problem in the State of Kansas. Statistics clearly show that enhanced penalties reduce the incidents of drunk driving. This is a simple issue of public safety. This bill will enhance penalties and save lives. We strongly favor SB 67.” (Emphasis added.) House J. 2001, p. 558. (Explanation of Vote by House Representatives Dean Newton and Daniel Williams.)
Interpreting the amended statute to include only convictions committed after July 1, 2001, for enhancement purposes suggests more lenient rather than enhanced penalties for repeat DUI offenders. Consistent with the above expressed intent, the replacement of the “immediately preceding” 5-year provision with a lifetime provision must be construed to include all convictions during a person’s lifetime, not just those committed after the effective date of the act.
The Court of Appeals correctly concluded that all prior convictions, even those occurring before the enactment date, should be considered under K.S.A. 2002 Supp. 8-1567(l)(3).
Due Process Violation
The defendant also argues that if the legislature intended for the 2001 amendment to apply to all prior convictions then it violates both the Due Process and Ex Post Facto Clauses of the United States Constitution. He did not raise these arguments before the district court, and ordinarily, constitutional grounds asserted for the first time on appeal are not properly before the appellate court for review. See Gordon, 275 Kan. at 407. However:
“When it is necessary in order to determine the merits of the action or where the issues cannot be intelligently decided without doing so, the constitutionality of a statute should be decided, even if the parties failed to raise the constitutional question, failed to plead the question, or failed to present the question to the trial court.” 275 Kan. at 408.
The defendant concedes that his ex post facto argument was rejected by this court in Hurt, 275 Kan. 521. He continues to argue that application of K.S.A. 2002 Supp. 8-1567(l)(3) violates his rights to due process under the Fifth and Fourteenth Amendments to the United States Constitution. We. elect to address this issue, which involves a question of law over which we have de novo review. See State v. Burhans, 277 Kan. 858, 869, 89 P.3d 629 (2004).
According to the defendant, it is fundamentally unfair to apply the amended version of the statute and use his prior convictions that would have decayed under the previous version of the statute to enhance his sentence. He contends that if he had been advised that his prior convictions could be later used to enhance a DUI violation into a felony, he might have asserted his right to trial instead of entering into a diversion agreement or a guilty plea.
Before the Court of Appeals and on petition for review, the defendant relies primarily upon Stogner v. California, 539 U.S. 607, 156 L. Ed. 2d 544, 123 S. Ct. 2446 (2003), in support of his argument. In Stogner, the United States Supreme Court held that California’s new criminal statute of limitations permitting prosecution for sex-related child abuse where the prior limitations period had expired violated the Ex Post Facto Clause. In finding the new statute threatened the kind of harm the Ex Post Facto Clause seeks to avoid, the Court cited Judge Learned Hand’s statement that “extending a limitations period after the State has assured ‘a man that he has become safe from its pursuit . . . seems to most of us unfair and dishonest.’ ” 539 U.S. at 611 (quoting Falter v. United States, 23 F.2d 420, 426 [2d Cir.], cert. denied 277 U.S. 590 [1928]).
The Sedillos Court of Appeals rejected the defendant’s argument, reasoning:
“The decision in Stogner is inapplicable to the facts of tire instant case. The statute in Stogner retroactively applied to conduct that was committed before the statute was enacted and attempted to punish that conduct. Here, however, the only criminal conduct that is being punished is that which Sedillos committed after the 2001 amendment to K.S.A. 8-1567. His 1996 and 1997 convictions are only being used to enhance the sentence for his current DUI violation. Therefore, the application of K.S.A. 2002 Supp. 8-1567(l)(3) to Sedillos’ prior convictions does not fall under Stogner.
“Moreover, although Sedillos entered into his diversion agreement and plea agreement when K.S.A. 8-1567 indicated that only convictions occurring in the previous 5 years could be used to enhance the sentence for a current DUI offense, there is no indication that he relied on this provision when entering into those agreements. See K.S.A. 2000 Supp. 8-1567(k)(3). Indeed, such reliance would be illogical because the legislature could choose at any time to alter the manner in which it punishes an offense occurring after the amendment date. Because the 2001 amendment to the enhanced sentencing provisions of 8-1567 only punishes conduct which occurs subsequent to the amendment date and does not alter the sentence imposed in Sedillos’ prior convictions, we find that his argument fails. See K.S.A. 8-1567(l)(3).” 33 Kan. App. 2d at 145.
We agree and further note that Stogner is both legally and factually distinguishable from the defendant’s case. Stogner was concerned solely with an ex post facto issue rather than the due process challenge raised in this case. Stogner was being prosecuted and punished for a crime in which he no longer had criminal liability but for the new statute; the defendant was charged with felony DUI and sentenced accordingly solely on conduct committed after the 2001 amendment to 8-1567. Thus, the application of K.S.A. 2002 Supp. 8-1567(l)(3) to Sedillos’ prior convictions does not fall under Stogner.
Additionally, in State v. LaMunyon, 259 Kan. 54, 911 P.2d 151 (1996), this court found that a defendant’s juvenile adjudications could be used in determining the criminal history score under the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., even though the Kansas Juvenile Offenders Code, K.S.A. 38-1601 et seq. (Furse 1993), provided that no judgments or decrees under the Code should be deemed or held to import a criminal act on the part of the juvenile. We reasoned in part:
“Due process does not require that a defendant be informed of all collateral consequences which may result from a guilty plea. [Citation omitted.] One of the collateral consequences of which a defendant need not be informed is the possibility that the conviction may be used to enhance the sentence for a later crime. [Citations omitted.]” 259 Kan. at 62.
In this case, the amended statute, K.S.A. 2002 Supp. 8-1567(l)(3), allowing the use of lifetime convictions, became effective in July 2001, approximately 19 months prior to the date of the defendant’s current DUI offense. The defendant thus had suffi dent notice that all of his prior lifetime convictions could be used to enhance his sentence if he was convicted of a DUI after that date. Further, LaMunyon counsels that the defendant did not have to be warned that his DUI diversion or his DUI guilty plea could subsequently be used to enhance his sentence because that possibility was merely a collateral consequence resulting from his decisions to enter into those prior DUI convictions. The Court of Appeals correctly concluded that the defendant was not denied due process by the use of his prior convictions to enhance his current DUI conviction sentence under K.S.A. 2002 Supp. 8-1567(l)(3).
Affirmed.
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|
The opinion of the court was delivered by
Davis, J.:
Barbi Marquis was severely injured in an automobile collision. Jerry Auck, driving a vehicle within the scope of his employment by his wife, caused Marquis’ injuries: State Farm Fire and Casualty Company (State Farm) appeals from a declaratory judgment that Marquis’ claims of negligent hiring, retention, or supervision were permitted by the parties’ setdement agreement and covered under its contractor’s policy. We affirm.
On September 14, 1993, Barbi Marquis was injured when the car that she was driving was struck by a Mitsubishi pickup driven by Jerry Auck, which had run a red light. Jerry Auck’s blood alcohol level was found to be .20 following the accident. The truck was owned by State Farm’s insured, Sharon Auck, the wife of Jerry Auck. She was the owner of a sole proprietorship, Fresh Approach Cleaning Professionals (Fresh Approach). Fresh Approach was insured by State Farm Fire and Casualty Company under a contractor’s policy. Jerry Auck was an hourly employee of Fresh Approach, earning approximately $5.50 per hour. At the time of the accident, Jerry Auck was acting in the course and scope of his employment with Fresh Approach.
Keith Marquis, both as conservator for his wife, Barbi, and individually (plaintiffs), filed the following action against Jerry and Sharon Auck in Johnson County District Court:
“COUNT I
“1. Keith Marquis is the husband and conservator for Barbi L. Marquis. He brings this lawsuit on her behalf and on his own behalf.
“2. Jerry L. Auck, defendant, is a resident of Johnson County, Kansas ....
“3. On the 14th day of September, 1993, at approximately 5:37 p.m. in the evening, Barbi Marquis was operating a 1987 Suzuki Jeep in the outside left-turn lane of the northbound Strang Line Road at 119th Street. ■
“4. At about the same time and place as alleged above, Jerry Auck was operating a 1989 Mitsubishi westbound on 119th Street, in the city of Olathe, Johnson County, Kansas.
“5. As Barbi Marquis made her left turn with a left-turn arrow, Jerry Auck, coming westbound on 119th Street, ran a red light and struck Barbi Marquis’ vehicle. “6. As a result of the collision, Barbi Marquis sustained permanent brain injury and other serious personal injury, which has [sic] totally disabled her. She has incurred past medical bills and will incur future medical expenses. Her earnings capacity has been destroyed, and she has suffered great pain of mind and body.
• “7. Keith Marquis has lost the consortium and services of Barbi Marquis as a result of the negligence of Jerry Auck.
“WHEREFORE, plaintiffs pray that they be granted judgment in a sum in excess of $50,000 against the defendants and for their costs and such other relief as to the court appears just and proper.
“COUNT II
“8. Plaintiffs reallege the allegations contained in Paragraphs 1 through 7 of Count I as if fully set forth hereafter.
“9. Jerry L. Auck and/or Sharon Auck own and operate a janitorial company called Fresh Approach. Sharon Auck was the owner of the 1989 Mitsubishi which Jerry Auck was driving on the 14th day of September, 1993.
“10. Jerry Auck was an agent, employee, and/or otherwise working within the scope and employment of Fresh Approach and/or his wife, Sharon Auck, d/b/a Fresh Approach.
“WHEREFORE, plaintiffs pray that they be granted judgment in a sum in excess of $50,000 against the defendants and for their costs and such other relief as to the court appears just and proper.”
The Aucks answered the. petition, admitting that Jerry Auck ran the red tight and struck the Marquis vehicle. They also admitted that Jerry Auck was an employee of Fresh Approach at the time of the accident.
At the time of the accident, Sharon Auck’s vehicle was covered by a State Farm Mutual Auto insurance policy with a $100,000 limit, which covered Jerry Auck’s use of the vehicle. Sharon Auck’s business was covered by a State Farm Fire and Casualty Company contractor’s insurance policy with a $1,000,000 policy limit. Sharon Auck was also covered by a State Farm Fire and Casualty Company homeowner’s extra policy with a policy limit of $300,000.
The plaintiffs and both State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company entered into a settlement agreement in late 1994. The agreement was drafted by counsel retained to represent the Aucks under Sharon Auck’s State Farm Mutual Automobile Insurance Company policy. It provided:
“WHEREAS, Keith Marquis, individually, and in his capacities as husband of Barbi L. Marquis and Conservator of the Estate of Barbi L. Marquis, has caused a lawsuit to be filed against Jerry L. Auck and Sharon Marie Auck in the District Court of Johnson County, Kansas, as the result of an automobile accident which occurred on or about the 14th day of September, 1993 at or near the intersection of 119th Street and Strangline Road in Olathe, Johnson County, Kansas, all as more specifically set forth in the Petition in the case sfyled Keith Marquis, as Conservator and Husband and in Such Capacities and on behalf of Barbi L. Marquis, and Keith Marquis, Individually, Plaintiffs, v. Jerry L. Auck and Sharon Auck, Defendants, Case No. 94-C-5244, which is now pending in the District Court of Johnson County, Kansas; and
‘WHEREAS, Jerry L. Auck and Sharon Marie Auck are covered for the aforesaid accident by an automobile insurance policy, No. 2816-322-810-16C, issued by State Farm Mutual Automobile Insurance Company; and
“WHEREAS, there may be additional liability coverage in the amount of $1,000,000.00 for the aforesaid accident and claims under a Contractors policy issued by State Farm Fire and Casualty Company, Policy No. 91-03-6775-5, and in the amount of $300,000.00 under a Homeowners policy issued by State Farm Fire and Casualty Company, Policy No. 16-B7-8051-2; and
“WHEREAS, State Farm Mutual Automobile Insurance Company has offered to pay its full bodily injury liability limits of $100,000.00 in settlement of the claims set forth in the aforesaid Petition; and
‘WHEREAS, State Farm Fire and Casualty Company has agreed that it is willing to participate in a declaratory judgment action to determine whether or not it owes coverage under either or both of its aforesaid policies, and has further agreed that if it should be determined by the court that it owes coverage under said pohcy or policies, it will forthwith pay the lull amount of the liability hmits of said pohcy or pohcies in settlement of the claims arising out of the aforesaid accident, and will make no effort to litigate the issue of fault or the amounts of coverage under the said pohcies;
“NOW, THEREFORE, the parties hereto agree as follows:
“1. In consideration of the payment of the sum of One Hundred Thousand and no/100 ($100,000.00) Dollars, the receipt and sufficiency of which is hereby acknowledged, the undersigned, Keith Marquis, in his individual capacity, and in his capacity as husband of Barbi L. Marquis, and in his capacity as Conservator of the Estate of Barbi L. Marquis, hereby releases and forever discharges Jerry L. Auck, Sharon Marie Auck, Sharon Marie Auck d/b/a Fresh Approach, the State Farm'Mutúal Automobile Insurance Company, their heirs, executors, successors, agents and assigns, and all other persons, firms or corporations, hable or who' might be claimed to be hable, except State Farm Fire and Casualty Company, none of whom admit liability to the undersigned but all expressly deny any liability, from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries to Barbi L. Marquis, known and unknown, and all pain, suffering and disability resulting from said injuries which have resulted or may in the future develop from the aforesaid automobile accident which occurred on or about the 14th day of September, 1993, at or near the intersection of 119th Street and Stranghne Road in Olathe, Johnson County, Kansas.
“2. Keith Marquis and State Farm Fire and Casualty Company agree that they will participate in a declaratory judgment action for the purpose of determining whether or not State Farm Fire and Casualty Company owes coverage for the aforesaid accident under its Contractors pohcy No. 91-03-6775-5 and/or its Homer-owners pohcy No. 16-B7-8051-2.
“3. State Farm Fire and Casualty Company agrees that if it should be determined in the declaratory judgment action that it owes coverage under either or both of the aforesaid pohcies, it will forthwith pay the full liability hmits of such pohcy or pohcies in settlement of the claims arising out of the aforesaid accident and injuries, and that it will make no effort to litigate the issue of fault or the amounts of coverage.
“4. Keith Marquis agrees that he will, prior to the filing of the declaratory judgment action, dismiss with prejudice the ease of Keith Marquis, as Conservator and Husband and in Such Capacities and on behalf of Barbi L. Marquis, and Keith Marquis, Individually, Plaintiffs, v. Jerry L. Auck and Sharon Auck, Defendants, Case No. 94-C-5244, which is now pending in the District Court of Johnson County, Kansas.
“5. The undersigned hereby declare that the terms of the settlement have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of any and all claims, disputed or otherwise, on account of the injuries anddamages above men tioned, and for the express purpose of precluding forever any further or additional claims arising out of the aforesaid accident.”
According to the terms of the agreement, the plaintiffs dismissed their petition and filed a declaratory judgment action to determine whether there was coverage under either the homeowner s or contractor’s policy. On September 13,1995, State Farm filed a motion for summary judgment, claiming that under the plain language of both policies there was no coverage for the accident. On October 24,1998, the plaintiffs filed a cross-motion for summary judgment. As part of their motion, the plaintiffs argued that coverage existed under the contractor’s policy for the tort liability of Sharon Auck under the theory of negligent hiring, retention, or supervision of Jerry Auck. The plaintiffs argued that under the settlement agreement, as long as reasonable facts existed which would support their claim, State Farm was precluded from arguing that no negligent hiring, retention, or supervision had occurred.
At the hearing on the motions, State Farm argued that the plaintiffs could not make any claims against Sharon Auck for negligent hiring, retention, or supervision because such claims had not been included in the petition on which the settlement agreement had been based. According to State Farm, the settlement agreement excluded any claims other than those raised in the petition.
The trial court concluded that the homeowner’s policy excluded liability and entered summary judgment in favor of State Farm on that policy. The plaintiffs did not appeal from this determination. However, the trial court determined that the contractor’s policy did provide coverage for negligent hiring, retention, or supervision and that there was a question of fact as to whether Sharon Auck was negligent in her hiring or supervision of Jerry Auck. The court, therefore, permitted additional discovery on this issue.
On November 21, 1996, State Farm moved for reconsideration and filed a supplemental motion for summary judgment. State Farm requested that the trial court reconsider its determination that the plaintiffs could raise claims of negligent hiring, retention, or supervision. State Farm also asked in the alternative that the court enter judgment on its behalf because there was no factual basis for the claims of negligent hiring, retention, or supervision. In support of this contention, State Farm included 153 additional statements of fact.
The plaintiffs responded and filed their own motion for reconsideration. They objected to State Farm’s filing of a supplemental motion for summaiy judgment on the basis that the motion was out of time and not authorized by the court. The plaintiffs further asked the court to reconsider its determination that a factual question existed as to the claim of negligent hiring, retention, or supervision. They argued that once the court determined coverage was owed, State Farm was barred under the terms of the agreement from contesting whether such negligence had occurred.
Upon final consideration, the trial court changed its ruling on its earlier interpretation of the agreement. Leaving intact its ruling on the question of coverage, the court determined that the settlement agreement was unambiguous and provided that once a determination had been made that coverage was owed for claims of negligent hiring, retention, or supervision under the contractor’s policy, State Farm was precluded from litigating the issue of fault. Accordingly, the court entered judgment for the plaintiffs in the amount of $1,000,000, with interest, against State Farm on its contractors policy.
State Farm contends on appeal that (1) the settlement agreement between the parties prohibits the plaintiffs from proceeding on the new theory of negligent hiring, retention, or supervision; (2) the contractor’s policy excludes such claims because plaintiffs’ injuries arise out of the use of a motor vehicle operated by an insured; (3) the plaintiffs’ claims of negligent hiring, retention, or supervision are without factual basis; and (4) the tortfeasor was an employee acting within the scope of his employment, which precludes claims of negligent hiring, retention, or supervision.
(1) The Agreement
State Farm Contends that contrary to the trial court’s determination, the settlement agreement bars the plaintiffs from raising new claims of negligent hiring, retention, or supervision. According to State Farm’s interpretation, the settlement agreement limits claims to those raised in the petition filed by the plaintiffs. Moreover, State Farm argues that the statute of limitations and equitable considerations preclude new, further, and additional claims such as negligent hiring, retention, or supervision.
The interpretation of a written instrument is a question of law, and regardless of the construction given to a written instrument by the trial court, we may construe the instrument and determine its effect. See Galindo v. City of Coffeyville, 256 Kan. 455, 467, 885 P.2d 1246 (1994). The primary rule when interpreting a written contract such as the one in this case is to ascertain the intent of the parties. 256 Kan. at 467. As a general rule, if the language of the written instrument is clear, there is no room for rules of construction. Simon v. National Farmers Organization, Inc., 250 Kan. 676, 680, 829 P.2d 884 (1992). We first examine the settlement agreement as a whole to determine whether it permits the plaintiffs to maintain an action for negligent hiring, retention, or supervision. See Arnold v. S.J.L. of Kansas Corp., 249 Kan. 746, 749, 822 P.2d 64 (1991) (holding that the meaning of a written agreement should always be ascertained by a consideration of all pertinent provisions and not by the critical analysis of a single or isolated provision). If we are unable to ascertain the parties’ intent from such an examination, we then must determine whether the agreement is ambiguous.
A contract is ambiguous if it contains provisions or language of doubtful or conflicting meaning. In determining whether ambiguity exists, the language of the contract is to receive a fair, reasonable, and practical construction. Weber v. Tillman, 259 Kan. 457, 476, 913 P.2d 84 (1996). A reasonable construction of the contract is one that makes the contract fair, customary, and such as prudent persons would intend. 259 Kan. at 476. Ambiguity does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it generally uncertain which one of two or more possible meanings is the proper meaning. 259 Kan. at 476.
According to paragraph 2 of the agreement, the plaintiffs and State Farm agreed to participate in a declaratory judgment action for a judicial determination of “whether or not State Farm Fire and Casualty Company owes coverage for the aforesaid accident” under either its homeowner’s or contractor’s policies. Paragraph 3 provides that if it should be determined in the declaratory judgment action that State Farm owes coverage under either or both of the aforesaid policies, “it will forthwith pay the full liability limits of such policy or policies in setdement of the claims arising out of the aforesaid accident and injuries, and that it will make no effort to litigate the issue of fault or the amounts of coverage.”
According to State Farm, paragraph 5 bars the plaintiffs’ claims of negligent hiring, retention, or supervision. Paragraph 5 provides that the setdement was made for the purpose of “precluding forever any further or additional claims arising out of the aforesaid accident.” State Farm argues that the new claims for negligent hiring, retention, or supervision are “additional claims,” expressly precluded under the purpose of the agreement. However, the trial court determined that the contract was not ambiguous and that the claims of negligent hiring, retention, or supervision were not excluded. We agree.
The agreement itself essentially takes the facts out of the case. We have set forth the full text of the agreement in the statement of facts. Paragraph 1 setdes the suit on file for the $100,000 coverage under the State Farm auto policy owned by Sharon Auck, except as to State Farm Fire and Casualty Company. Paragraph 2 simply states that the parties will participate in a declaratory judgment action to determine whether State Farm “owes coverage for the aforesaid accident under its Contractors policy.” Paragraph 3 provides that if it is determined that coverage is owed, “it will forthwith pay the full liability limits of such policy or policies in settlement of the claims arising out of the aforesaid accident and injuries, and that it will make no effort to litigate the issue of fault or the amount of coverage.” (Emphasis added.) Had the parties intended to limit exposure to claims originally filed in the petition, it seems clear to this court that such limitation would have been expressed.
Paragraph 5, relied upon by State Farm, fails to support its claim that there was an intent to limit claims to those set forth in the petition. The claims set forth in the petition were dismissed with prejudice, and the parties were free to “determine whether claims were covered under the remaining policies.” The plaintiff accepted the terms
“for the purpose of making a full and final compromise adjustment and settlement of any and all claims, disputed or otherwise, on account of the injuries and damages above mentioned, and for the express purpose of precluding forever any further or additional claims arising out of the aforesaid accident.”
This language, properly interpreted as a part of the whole agreement, makes it clear that plaintiffs are settling for all claims arising out of the accident, “disputed or otherwise,” and not just those claims articulated in the petition filed. The agreement contemplates that the plaintiff may advance additional claims. Once the court determines whether coverage is owed, the cause is forever settled, “precluding forever any further or additional claims arising out of the aforesaid accident.”
We agree with the trial court that the agreement is not ambiguous and that the plaintiffs are not precluded from raising claims of negligent hiring, retention, or supervision. The agreement provides that
“if it should be determined by the court that [State Farm] owes coverage under either or both of the aforesaid policies [homeowner’s and contractor’s], it will forthwith pay the full amount of the liability limits of said policy or policies in settlement of the claims arising out of the aforesaid accident.” (Emphasis added.)
Had the parties intended to limit claims to those raised in the petition filed, the agreement would have tied claims to those raised in the petition. Instead, after settling the claims raised by the petition, the parties refer thereafter to all claims arising out of the accident, which necessarily includes claims not raised in the petition filed. Absent an express limitation, “claims arising out of the . . . accident” covers the plaintiffs’ claims of negligent hiring, retention, or supervision.
(2) Claims of Negligent Hiring, Retention, or Supervision.
State Farm contends that even if the settlement agreement does not bar the plaintiffs’ claims for negligent hiring, retention, or supervision, such claims are excluded by the express terms of the contractor’s insurance policy. State Farm argues that the contrac tor’s policy specifically excludes coverage for bodily injury or property damage arising from the use or entrustment of an automobile.
Resolution of this issue necessarily involves the interpretation of an exclusion in the contractor’s insurance policy issued by State Farm. Generally, exceptions, limitations, and exclusions to insurance policies require narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes the duty to define any limitations on that coverage in clear and explicit terms. Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689, 695, 840 P.2d 456 (1992). If an insurer intends to restrict or limit coverage, it must use clear and unambiguous language in doing so, otherwise the insurance policy will be liberally construed in favor of the insured. Farm Bureau Mut. Ins. Co. v. Old Hickory Cas. Ins. Co., 248 Kan. 657, 659, 810 P.2d 283 (1991). The burden is on the insurer to prove facts which bring a case within the specified exception. Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 150, 519 P.2d 737 (1974).
By way of background, we look to the decision made by the trial court in this regard. The trial court was faced with determining whether either the homeowner’s policy or the contractor’s policy provided coverage for negligent hiring, retention, or supervision. In addressing this question, the trial court reviewed both policies and concluded that the contractor’s policy did provide coverage.
The provisions of the homeowner’s policy provided the following exclusions:
“Coverage L and Coverage M do not apply to:
“e. Bodily injury or property damage arising out of the ownership, maintenance, use, loading or unloading of:
(2)a motor vehicle owned or operated by or rented or loaned to any insured; or
“f. bodily injury or property damage arising out of:
(1) the entrustment by any insured to any person;
(2) the supervision by any insured of any person;
(3) any liability statutorily imposed on any insured; or
(4) any liability assumed through an unwritten or written agreement by an insured; with regard to ownership, maintenance or use of any aircraft, watercraft, or motor vehicle (or any other motorized land conveyance) which is not covered under Section II of this policy.”
The exclusion contained in the contractor s policy upon which State Farm relies provides under coverage L that the coverage does not apply
“7. to bodily injury or property damage arising out of the ownership, maintenance, use or entrustment of others of any aircraft, auto, or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and loading or unloading.”
After reviewing both policies, the trial court construed the exclusion under the homeowner’s policy to bar coverage for negligent supervision, hiring, or retention. The language of the homeowner’s policy so provides. However, in reviewing the policy provisions of the contractor’s policy, the court found that the exclusion, unlike that contained in the homeowner’s policy, fails to clearly and unambiguously exclude coverage for negligent supervision, hiring, or retention and, thus, such claims were covered.
State Farm, in its homeowner’s policy, clearly and unambiguously excluded negligent supervision, hiring, or retention. State Farm did not clearly and unambiguously exclude negligent supervision, hiring, or retention in its contractor’s policy. Nevertheless, State Farm argues that the general exclusion in a contractor’s policy, covering the use or entrustment to others of an automobile owned or operated by any insured, excludes a claim for negligent supervision, hiring, or retention because the claims arose out of the use of an automobile owned by the insured.
In Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, we held that a homeowner’s policy exclusion for bodily injury or property damage arising from the ownership, maintenance, operation, use, loading, and unloading of automobiles did not exclude coverage for the insured’s liability for negligent entrustment of an automobile to another. “[E]ven though die immediate cause of the injury . . . was . . . operation of the automobile,” the legal theory of liability, which was well recognized under Kansas law, was not excluded by the policy. 214 Kan. at 150. Thus, the rule taken from Upland is that the theory of liability rather than the cause of the accident governs coverage. Where a policy seeks to exclude coverage for an accident arising out of the use of an automobile, coverage will still be found if the theory of liability establishes negligence independent of the use of the automobile, which negligence is covered under the policy.
Although Upland was a negligent entrustment case, its rule applies to claims based on negligent hiring, retention, or supervision. In this case, State Farm’s contractor’s policy excludes coverage for accidents arising from the use or negligent entrustment of an automobile, but does not exclude coverage for the negligent hiring, retention, or supervision of an employee. Under Upland, it makes no difference that the accident was causally related to the use of an automobile because the theory of liability is negligent hiring, retention, or supervision based on the independent negligence of Sharon Auck. Upland is the rule in Kansas.
The negligence alleged in this case is that of negligent supervision, hiring, or retention, which is negligence separate and distinct from negligence of the driver whose action caused the injury. Negligent supervision, hiring, or retention is a recognized cause of action under Kansas law; its focus is upon the actions of someone other than the person whose negligence caused the injury. In Upland, where the insured’s liability was premised upon a legal theory separate and distinct from the liability excluded by the policy, the policy provided coverage for that claim. Thus, under Upland, we recognized that the policy provisions excluded coverage for negligent claims against the driver but it did not exclude coverage for the distinct and separate liability theory of negligent entrustment.
State Farm contends that our decision in Upland should be limited and has been limited by the Court of Appeals and federal district court in cases which were decided after Upland. See U. S. Fidelity & Guar. Co. v. Heltsley, 733 F. Supp. 1418 (D. Kan. 1990); State Farm Mut. Auto. Ins. Co. v. Cummings, 13 Kan. App. 2d 630, 778 P.2d 370 (1989).
Upland is a minority rule in its recognition that policy provisions excluding coverage for the use of an automobile owned or operated by any insured do not necessarily exclude coverage for the distinct and separate liability theory of negligent entrustment. Perhaps the case which best expresses the majority rule and reasoning, and one relied upon by State Farm, is Oakley Transport v. Zurich Insurance Co., 271 Ill. App. 3d 716, 648 N.E.2d 1099 (1995). In Oakley, the court interpreted an exclusion similar to the one we now consider in this case. It noted that the employer’s negligent supervision could not be divorced from its employee’s negligent driving of the vehicle and, thus, coverage was excluded:
“In legal terms, the negligent use of the vehicle, which is directly excluded under the policy [as it is in State Farm’s contractor’s policy] is the nexus between the supervisor and the supervisee. Because the claim for negligent supervision is not independent of, but inextricably intertwined with, the employee’s use of the truck, any breach by the employer to supervise such use is necessarily deemed to have arisen therefrom. The majority of decisions from other jurisdictions which have considered the identical issues in factually analogous situations have likewise held that the ‘auto’ exclusion precludes coverage. [Citations omitted.] Accordingly, the claims of negligent supervision against Oakley are excluded from coverage under the ‘auto’ exclusion.” 271 Ill. App. 3d at 727.
In arriving at its decision, the court distinguished between the various different policies and purpose:
“Standard commercial liability policies are issued to cover all hazards incident to the operation of a business with the exception of certain excluded risks, including those involved in the ownership, maintenance, use or entrustment of an ‘auto.’ The premium charged by the CGL insurer reflects the underwriting objective of placing automobile accidents beyond the scope of coverage. These latter risks involve unique hazards to which the general business of the insured is not subject. For that reason, they are generally covered as a special class by an automobile liability policy or, as in this case, a trucker’s liability policy.” 271 Ill. App. 3d at 726.
See Standard Mutual Ins. Co. v. Bailey, 868 F.2d 893 (7th Cir. 1989), for a lengthy discussion of the rationale of the majority rule.
We acknowledge that Kansas remains in a minority position with reference to this exclusion. However, as late as 1992, this court had an opportunity to revisit Upland in Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689. We recognized again in Catholic Diocese of Dodge City that the coverage for parents’ liability for negligent supervision of their child was sufficient to invoke coverage even though the intentional act of the child in causing damage to a school was excluded from coverage. We held that even though the intentional acts exclusion would exclude coverage of the child’s liability, the policy did not exclude coverage for the separate and distinct theory of negligent supervision liabihty of the parents. In affirming Upland, we held that unlike other states, “Kansas does not look to the underlying cause of the injury to determine coverage, but to the specific theory of liability.” 251 Kan. at 697.
While the contractor’s policy in this case specifically included negligent entrustment of an automobile, it did not exclude the “well recognized” theory of liability on which coverage is premised in this case. Kansas law recognizes negligent supervision as a separate and distinct theory in addition to theories of neghgent hiring and neghgent retention. Anspach v. Tomkins Industries, Inc., 817 F. Supp. 1499, 1519-20 (D. Kan. 1993); Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 819 P.2d 587 (1981). Neghgent supervision includes not only the failure to supervise but also the failure to control persons with whom the defendant has a special relationship, including the defendant’s employees or persons with dangerous propensities. See Nero v. Kansas State University, 253 Kan. 567, 861 P.2d 768 (1993); J. W. v. State, 253 Kan. 1, 853 P.2d 4 (1993).
The principle expressed in Nero apphes with equal force in this case. Theories of neghgent supervision or control and neghgent hiring or neghgent retention of employees are separate and distinct from theories of liabihty of neghgent entrustment. Neghgent entrustment occurs when an owner of an automobile allows a third party to drive it while knowing the driver to be incompetent, careless, or reckless. McCart v. Muir, 230 Kan. 618, Syl. ¶ 1, 641 P.2d 384 (1982).
At the time the insurance contract was entered into by the parties, the law of Kansas was clearly established. State Farm specifically excluded neghgent supervision in its homeowner’s pohcybut did not specifically exclude neghgent supervision in the contractor’s pohcy. We agree with the conclusion of the trial court that coverage was owed. This conclusion is supported by our decisions in Upland and Catholic Diocese of Dodge City.
Statute of Limitations, Estoppel, and Laches
State Farm also argues that if neither the agreement or the policy is held to bar the plaintiffs’ claim for negligent hiring, retention, or supervision, the claim should be barred by the statute of limitations. According to State Farm, since no claim was filed against Sharon Auck in the petition, and the 2-year statute of limitations found in K.S.A. 60-513 has expired, any claim for negligent hiring, retention, or supervision is barred.
The argument is without merit. Even though the plaintiffs’ petition did not state a cause of action for negligent entrustment, Sharon Auck was a proper defendant on a respondeat superior theory. Amendments to the pleadings which would have related back to the date of the original pleading were available to the plaintiffs. See K.S.A. 60-215. More importantly, however, this matter is not a tort action but one sounding in contract based on the settlement agreement. The parties agreed to submit the issues to the district court for a decision on whether coverage existed. We have determined that the settlement agreement allowed the plaintiffs to assert claims of negligent hiring, retention, or supervision. The statute of limitations affirmative defense has been waived by the settlement agreement.
State Farm also contends that the plaintiffs’ assertion of a claim for negligent hiring, retention, or supervision is barred by equity. State Farm argues that both laches and estoppel should operate to bar such an assertion. According to its argument, because the plaintiffs did not mention claims for negligent hiring, retention, or supervision, plaintiffs should not now be able to do so, as a matter of fairness. However, the question is not one of fairness but rather involves a question of law involving the interpretation of the agreement entered into by the parties. Under the contract agreement, the parties removed the facts from the case and agreed to pay in the event the court determined that coverage was owed under either policy. Estoppel, laches, or other equitable considerations are not involved.
(3) Factual Basis for Claims of Negligent Hiring, Retention, or Supervision
State Farm argues that the plaintiffs’ claims against Sharon Auck have no factual basis and, therefore, should not be allowed. The plaintiffs argue that their claims have a factual basis and, therefore, State Farm, under the terms of the agreement, is prohibited from contesting those claims.
As we previously stated, the effect of the settlement agreement between the parties was to remove the facts from contention. Thus, under the terms of the agreement, once the plaintiffs articulated a theory and alleged facts which, if true, would result in coverage under the contractor’s policy, State Farm could not dispute those facts. We have examined the record and agree with the conclusion of the trial court that there exists a factual basis for the plaintiffs’ claims of negligent hiring, retention, or supervision.
(4) Respondeat Superior
The final argument made by State Farm is that the plaintiffs were barred from proceeding against Sharon Auck under the theory of negligent hiring, retention, or supervision because State Farm had already admitted that Jerry Auck was an employee acting within the scope of his employment and, therefore, the respondeat superior liability of Sharon Auck had already been established. In support of this position, State Farm cites a recent Missouri case, McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995).
In McHaffie, the Missouri Supreme Court ruled that in an automobile accident it was improper to allow a plaintiff to proceed against the employer under the theory of negligent hiring where the employer had already admitted respondeat superior liability. 891 S.W.2d at 827. The court reasoned that negligent hiring is a form of imputed liability in that the employer cannot be made more liable than the employee for the damages which were the result of the employee’s negligence. The court concluded that allowing a plaintiff to proceed on one fheoiy where liability on the other had already been admitted wasted judicial resources, engendered confusion, and might allow the admissibility of potentially inflammatory evidence which would be irrelevant to prove any contested issue. 891 S.W.2d at 826.
The rule in McHajfie that once an employer admits liability under respondeat superior the plaintiff may not proceed against the employer on a negligent entrustment or negligent hiring or supervision theory, is the majority rule. See Cole v. Alton, 567 F. Supp. 1084 (N.D. Miss. 1983); Elrod v. G 7 R Const. Co., 275 Ark 151, 628 S.W.2d 17 (1982); Armenta v. Churchill, 42 Cal. 2d 448, 267 P.2d 303 (1954); Clooney v. Geeting, 352 So. 2d 1216 (Fla. Dist. App. 1977); Willis v. Hill, 116 Ga. App. 848, 159 S.E.2d 145 (1967), revd on other grounds 224 Ga. 263, 161 S.E.2d 281 (1968); Wise v. Fiberglass Systems, Inc., 110 Idaho 740, 718 P.2d 1178 (1986); Ledesma v. Cannonball, Inc., 182 Ill. App. 3d 718, 538 N.E.2d 655 (1989); Houlihan v. McCall, 197 Md. 130, 78 A.2d 661 (1951).
However, other jurisdictions, including Kansas, have found that an admission that the employee was acting within the scope of his or her employment does not preclude an action for both respondeat superior and negligent entrustment or negligent hiring, retention, or supervision. See Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. at 362 (holding that liability under a negligent hiring, retention, or supervision claim results not because of the employer-employee relationship, but because the employer had reason to believe that an undue risk of harm to others would exist as a result of the employment of the alleged tortfeasor); Quinonez on behalf of Quinonez v. Anderson, 144 Ariz. 193, 696 P.2d 1342 (1984); Lim v. Interstate System Steel Div., Inc., 435 N.W.2d 830 (Minn. App. 1989); Clark v. Stewart, 126 Ohio St. 263, 185 N.E. 71 (1933). These cases rest on the proposition that negligent entrustment and negligent hiring, retention, or supervision are torts distinct from respondeat superior and that liability is not imputed but instead runs directly from the employer to the person injured. See Lim v. Interstate System Steel Div., Inc., 435 N.W.2d at 832-33.
Because the torts of negligent hiring, retention, or supervision are recognized in Kansas as separate torts that are not derivative of the employee’s negligence, an admission that the employee was acting within the scope of his or her employment does not preclude an action for both respondeat superior and negligent entrustment or negligent hiring, retention, or supervision. See Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. at 362. State Farm’s admission in this case that Jerry Auck was an employee acting within the scope of his employment at the time of the accident does not prohibit the plaintiffs from maintaining an action based on claims of negligent hiring, retention, or supervision.
Affirmed. | [
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In a letter dated May 16, 2005, addressed to the Clerk of the Appellate Courts, respondent Ronald G. Hoskins of Leawood, Kansas, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2004 Kan. Ct. R. Annot. 296).
At the time the respondent surrendered his license, two complaints had been filed with the Disciplinary Administrator’s office against the respondent. One complaint alleged negligence in the handling of a legal matter and the second complaint alleged misappropriation of funds in the possession of the respondent.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Ronald G. Hoskins be and he is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Ronald G. Hoskins from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2004 Kan. Ct. R. Annot. 301). | [
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The opinion of the court was delivered by
Davis, J.:
A jury determined that Stacey W. Speed was guilty of first-degree murder, felony murder, aggravated robbery, and aggravated kidnapping in the death of Victor Williams. He was sentenced to life on the first-degree murder charge, 170 months on the aggravated kidnapping charge, and 85 months on the aggravated robbery charge. The last two sentences were imposed to run concurrent with the life sentence. The defendant, both through counsel and in separate memoranda, raises numerous questions in this appeal. We affirm the convictions and sentence imposed.
Victor Williams owned a stereo shop in Wichita. On October 25, 1993, Williams’ body was discovered in his duplex by his former manager and another employee. Williams had been stabbed six times, four times in the neck, with one stab wound perforating his jugular vein and another his carotid arteiy. One hand had duct tape on it and the other hand bore evidence of duct tape. Williams’ garage door was open and his BMW was missing. His duplex had been ransacked. Fingerprints were taken at the scene, but none matched those of the defendant.
On October 30, 1993, the sheriff of Okmulgee County, Oklahoma, received a call from the sheriff’s office of the neighboring county, Okfuskee County, Oklahoma, stating that the defendant’s father had contacted the office. According to the defendant’s father, the defendant had stolen his father’s diary and address book and was driving a BMW automobile that the father believed to be stolen from a man who had been murdered in Wichita a few days earlier. The sheriff of Okmulgee County was notified that the BMW the defendant was driving had been found parked in a motel near Henryetta, Oklahoma. He had been further informed by the defendant’s father that his son was a black male in the company of an older white female from Pittsburg County, Oklahoma, and that his son would be returning to the motel to pick up the BMW.
The sheriff of Okmulgee County found the BMW in a parking lot near the motel and, based on the VIN of the vehicle, discovered that it had been stolen from Victor Williams in Wichita and might be in the possession of the defendant. He parked out of sight near the BMW and, approximately 7 hours later, he and other officers were still on the stakeout when they saw a car driven by an older white female, with a young black male as a passenger, drive through the parking lot, turn around, and start to drive back out. The car had a Pittsburg County license tag, and when the sheriff stopped the vehicle, the white female ran towards the sheriff, stating, “I haven’t done anything.” He and the other officers approached the vehicle with guns drawn. When the driver, who was the defendant, identified himself as “Stacey,” he was arrested for possession of a stolen vehicle. A key later identified as belonging to the BMW was found on the defendant’s person.
After the defendant was arrested and taken into custody in Oklahoma, Wichita authorities were allowed to question him about the murder in Kansas. The defendant invoked his Miranda rights, and the Wichita police officers stopped the questioning and began to leave. At that time, the defendant asked Ronald Johnson, a detective with the Okmulgee County sheriff’s office, if he could talk to him. Since Johnson did not know anything about the occurrence in Wichita, he advised the defendant that at least one of the Wichita police officers would have to sit in. Permission was granted by the defendant. Although the defendant did not invoke his Miranda rights again, he claims he was confused and that his statements were coerced. During the trial, the statements of the defendant were admitted dining the State’s case through Officer Landwehr of the Wichita Police Department.
Landwehr testified that at first the defendant told him that the BMW he was driving was owned by a friend, Kenny Walker, and that they were both driving it to Oklahoma City. When told that his story was not believable, the defendant admitted that Walker did not really exist and stated that a person named Arthur Sargent drove him to Henryetta, Oklahoma, and that he had permission to use the BMW from Alan Keith Copridge. Copridge has been convicted of felony murder, first-degree murder, aggravated robbery, and aggravated kidnapping in the death of Williams. We reviewed and affirmed his conviction in State v. Copridge, 260 Kan. 19, 918 P.2d 1247 (1996).
According to Landwehr, the defendant then told a different story. He stated that he had been contacted by Copridge and another person named Slim and asked by Copridge to drive Copridge’s car to Williams’ duplex, where Copridge and Slim were to pick up another car. The defendant told Landwehr that he waited for 40 minutes, but as Slim and Copridge came out, he got scared and drove away. Copridge and Slim then contacted the defendant at the house of the defendant’s girlfriend, and Copridge and Slim took stereo equipment from the BMW before loaning the BMW to the defendant to take to Oklahoma.
The defendant’s story then changed for a final time. The defendant told Landwehr that he went to Williams’ duplex with Copridge to watch television. An argument ensued between Copridge and Williams, at which point Williams brandished a knife. The defendant fled and drove to his girlfriend’s house, where he was later contacted by Copridge. In a statement to Landwehr, the defendant denied knowing that there was a robbery or homicide when he went with Copridge to Williams’ duplex.
The defendant was not tried immediately upon the charges giving rise to this appeal because he was charged in Oklahoma with possession of a stolen automobile, convicted, and served 2 years in prison. Upon the expiration of the Oklahoma sentence, he was then charged in Kansas in 1995 with the murder of Williams.
A key witness at the defendant’s trial was John Stevens, a friend of Copridge. Stevens testified that in October 1993, he was approached by Copridge, who wanted him to help steal stereo equipment. The defendant objected to any statements made by Copridge as hearsay, but the district court overruled the objection on the grounds that Copridge was present and available for cross-examination. Stevens spoke to Copridge on Saturday, October 23, 1993, and again Copridge tried to convince Stevens to help him steal stereo equipment, saying that the theft would take place that evening. Copridge also told Stevens that the victim knew Copridge but that Copridge would take care of it so the victim would not identify him.
The next day, Stevens again talked to Copridge, who told him the theft had not occurred the night before because the victim was not home. Stevens told Copridge he did not want to participate in stealing the equipment, but he did agree to let Copridge use his garage to strip the stereo from the victim’s Blazer which Copridge wanted to steal.
Stevens testified that he heard no more about the robbery until the following Tuesday, when he heard on the radio that a stereo shop owner named Victor Williams had been robbed and murdered. He immediately went to the police and told them about Copridge. A few weeks later, Copridge telephoned him from the jail and mentioned the defendant’s name.
Benjamin Amaro, Jr., also testified on behalf on the State. He had known Copridge for 10 years and also knew the defendant. He testified that on Sunday, he and Copridge had been at Copridge aunt’s house when the defendant knocked on the door and asked to speak to Copridge. Copridge, the defendant, and another person spoke to each other outside the house, and then Copridge took Amaro home. Copridge asked Amaro if he would hold stereo equipment from a job that they were going to pull, and Amaro agreed.
Amaro testified that at 4 a.m. on Monday, the day Williams’ body was discovered, Copridge knocked on Amaro’s door. Amaro noticed that a BMW and a Pontiac Grand Am were parked outside. The defendant was standing next to the BMW. Copridge took stereo equipment from the BMW, gave it to Amaro, and left with the defendant. The next day, Copridge returned to pick up the stereo equipment, and they both took the equipment to Copridge’s grandmother’s house. As they were riding around, Copridge told Amaro that he shot Williams.
The State called Lionel Sanders to testify. Sanders knew both Copridge and the defendant, although he was better friends with the defendant. Sanders testified that the defendant told him that the defendant and Copridge were going to steal a Bronco or Blazer from Williams’ stereo shop. The defendant told Sanders that he was going to take the vehicle to Oklahoma and sell it. The participants were to be the defendant, Copridge, and another person named Slim. The defendant told Sanders that he would just drive the car. Sanders testified at the trial that he was with the defendant at Copridge mother’s house when he heard the defendant and Copridge talking. From what he overheard, it sounded as if they were making plans to steal Williams’ vehicle.
Prior to trial, the defendant sought to suppress his statements given to the police. After a full hearing, the trial court denied his motion. Prior to the defendant putting on his case, the court again held a hearing on whether the defendant would testify. The trial court told the defendant that he had a right to testify or not to testify, and that it was his choice. The defendant stated that he did not want to testify “at this time.” The trial court informed the defendant that he had to make up his mind whether he was going to testify. The defense counsel explained that if the defendant was able to get his alibi witnesses into court, he would not testify, but if the witnesses were unavailable, the defendant would testify.
The defendant’s girlfriend, Darlina Sargent, testified that she was picked up around midnight Sunday evening by the defendant and Sanders. They dropped Sanders off at his home and went to her house. She stated that as they arrived, Copridge also arrived at the residence. The defendant’s girlfriend testified that after she went to bed, the defendant came back into the house and left again. However, she testified the defendant had returned to the house a little after 2 a.m., when she was awakened by her brother, Arthur Sargent, coming home. Sargent was called as a rebuttal witness and testified that he came home sometime after 2 a.m. and saw his sister on the couch but did not know if the defendant was there. He admitted that he had earlier told the detectives he had not seen the defendant when he returned home.
The defendant was convicted of both first-degree murder and felony murder by the jury as well as aggravated robbery and aggravated kidnapping. Other facts necessary for a disposition of the issues raised by the defendant are set forth within the opinion.
SUPPRESSION OF DEFENDANT’S PRETRIAL STATEMENTS
The first set of issues involves the defendant’s claim that the trial court erred in failing to suppress his statements to the police. The defendant argues that Detective Johnson in Oklahoma tricked him by pretending to be his friend and that Detective Johnson and Landwehr badgered, threatened, and coerced him and made assertions that he would be forced to go to Wichita and face the friends of Copridge who might do him harm, and if he confessed, he would be allowed to stay in Oklahoma. He also contends that the conduct of Detective Johnson after he had invoked his right to remain silent was the “functional equivalent of interrogation.” He further asserts that several comments made by him during the interrogation constituted a request that the questioning cease or that counsel be provided. He requests that this court adopt a rule that any unrecorded conversation between a défendant and a police officer requires suppression of any statement given by the defendant, whether voluntary or not. Finally, the defendant claims that the statements were the product of an illegal stop.
We begin with the claim by the defendant that the sheriff of Okmulgee had no reasonable, articulable suspicion to pull the car over in which the defendant was riding and, thus, any statements given after that point by the défendant should be suppressed. We find no merit in this contention.
At the time the defendant was stopped, the sheriff had knowledge that the BMW had been stolen from a murder victim in Wichita, the defendant had stolen the vehicle based on a report from his father, the defendant had parked the vehicle in a motel parking lot, and the defendant would be returning to obtain the BMW while riding with an older white female. It is clear the sheriff of Okmulgee had a reasonable, articulable suspicion that the person in the car was in fact the defendant and, thus, involved in criminal activity, vis., the possession of a stolen vehicle. Therefore, the sheriff of Okmulgee had probable cause to arrest the defendant. See K.S.A. 22-2402(1); United States v. Hensley, 469 U.S. 221, 83 L. Ed. 2d 604, 105 S. Ct. 675 (1985); State v. Johnson, 253 Kan. 356, 368, 856 P.2d 134 (1993).
The evidence does not support the defendant’s contention that Detective Johnson tricked the defendant or that he was coerced, badgered, or threatened by the Wichita police officers. Recently, in State v. Banks, 260 Kan. 918, 923, 927 P.2d 456 (1996), we stated:
“ ‘Under the Fourteenth Amendment due process voluntariness test, a case-by-case evaluation approach is employed to determine whether coercion was impermissibly used in obtaining a confession. Coercion in obtaining a confession from an accused can be mental as well as physical. In determining the voluntariness of a confession of crime, the question in each case is whether die defendant’s will was overborne at the time of the confession; if so, the confession cannot be deemed the product of a rational intellect and a free will’ ” (quoting State v. Waugh, 238 Kan. 537, 541, 712 P.2d 1243 [1986]).
The facts relevant in deciding whether a confession is a product of free will of an accused include (1) the accused’s mental condi tion; (2) the manner and duration of the interrogation; (3) the ability of the accused on request to communicate with the outside world; (4) the accused’s age, intellect, and background, and (5) the fairness of the officers in conducting the interrogation. 260 Kan. at 923. A statement may be considered voluntary if the accused was not deprived of his free choice to admit, deny, or refuse to answer. 260 Kan. at 923-24. Voluntariness of a confession is determined from the totality of the circumstances, and where a trial court conducts a full prehearing on the admissibility of extrajudicial statements by an accused, determines the statements were freely and voluntarily given, and admits the statements into evidence at trial, appellate courts should accept that determination if supported by substantial competent evidence and not attempt to reweigh the evidence. 260 Kan. at 923.
The defendant claims that the detectives used Detective Johnson as a “Trojan horse” to befriend the defendant and then entice him into a confession. However, the activity of Detective Johnson, from our reading of the record, fails to support the defendant’s contention. It is undisputed that he told the defendant he knew the defendant’s relatives. Also, during the interrogation of the defendant, Johnson encouraged the defendant to tell the truth and not to be afraid of Copridge. Such activity falls far short of the activity in cases cited supporting the defendant’s contention. See Span v. New York, 360 U.S. 315, 318-19, 3 L. Ed. 2d 1265, 79 S. Ct. 1202 (1959); People v. Blasingame, 412 N.Y.S.2d 153, 65 A.2d 455 (1978); Macon v. Commonwealth, 187 Va. 363, 46 S.E.2d 396 (1948). In Spano, the police denied the suspect’s continued request for an attorney. In Blasingame, the suspect was a 17-year-old boy who was in custody for 13 hours and questioned by an officer who was a friend of the family and who was further denied an opportunity to consult with an attorney. In Macon, the sheriff enticed the suspect to take a car ride with him, whereupon the sheriff and the district attorney, both of whom the suspect had known well for 20 years, advised her that the best thing for her to do would be to confess that she had killed her ex-boyfriend.
In this case, Detective Johnson denied the defendant’s contention that he kept trying to get him to talk to the other detectives or that he told him his relatives would be disappointed if he did not talk. We are not in a position to reweigh the evidence, and the trial court, based upon substantial competent evidence, determined that Detective Johnson’s statements were more credible.
The defendant also contends that Detective Johnson’s conduct was deceptive and that it promised leniency in order to coerce his confession. He relies on State v. Thaggard, 527 N.W.2d 804 (Minn. 1995). In Thaggard, the Minnesota Supreme Court noted that the use of trickery and deceit by police officers may invite suppression when the police used promises in seeking to persuade a suspect to confess to a crime. However, the court in Thaggard found no coercion where the suspect was not promised he would be free of prosecution if he confessed. 527 N.W.2d at 811-12. While the defendant argued that he was subjected to false promises, a review of the record reveals no such promises were made.
Based upon the totality of circumstances, including the fact that the defendant was not in a mental condition which would be more susceptible to coercion; the interrogation was not overly long or overly coercive; there was no suggestion that the ability of the accused to request to communicate with the outside world was compromised; or that the defendant’s age, intellect, or background played any part in his confession, we conclude that the trial court’s determination that the statements were voluntary is supported by substantial competent evidence.
As for the defendant’s claim that Detective Johnson’s statements were the functional equivalent of interrogation, the testimony was conflicting. While the defendant claimed that Detective Johnson attempted to get him to talk about the case and told the defendant that his family would be disappointed if he did not talk about the case, Detective Johnson denied he engaged in any such conduct. Instead, Detective Johnson stated that he came back in the room to get coffee, at which point the defendant asked to talk to him about the case.
In determining whether the trial court’s determination on a motion to suppress is supported by substantial competent evidence, an appellate court must accept as true the evidence and all inferences to be drawn therefrom supporting the finding of the trial court. State v. Straughter, 261 Kan. 481, 488, 932 P.2d 387 (1997). Applying this standard to the evidence, we conclude that the statements of Detective Johnson were not the “functional equivalent of interrogation.” The defendant claimed that Detective Johnson should have known that his coming into contact with the defendant would result in the defendant making an incriminating statement because both he and the defendant were black and because Detective Johnson had earlier indicated that he knew relatives of the defendant. However, such conduct is far removed from the authority cited by the defendant in Stewart v. United States, 668 A.2d 857 (D.C. 1995). In Stewart, the officer had known the defendant since his childhood and attended the defendant’s church. The officer went to the defendant’s cell, gave him words of encouragement by telling him that everyone makes mistakes, and then asked him if he wanted to talk about the crime. Under these circumstances, the court held that such action was the functional equivalent of interrogation. 668 A.2d at 867-68. There is no evidence in the record to support the conclusion that Detective Johnson’s conduct or statements were the “functional equivalent of interrogation” within the meaning of Rhode Island v. Innis, 446 U.S. 291, 302-03, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980).
Finally, the defendant asserts that he continued to invoke his rights during the interrogation but he fails to point to any exact statements he made. He does mention that at one point he told the officers to take him to Sedgwick County and another time to take him to the judge. He contends that several of his statements made during interrogation constitute requests that questioning cease or that counsel be provided.
Our review of the defendant’s taped statement revealed that at one point he stated: “And since we’re not getting anywhere I just ask you guys to go ahead and get this over with and go ahead and lock me up and let me go and deal with Sedgwick County, I’m ready to go to Sedgwick County, let’s go.”
We have held that when a suspect makes a statement which may be ambiguous as to whether the suspect is asserting a right to remain silent or to confer with counsel, the interrogator may ask questions to clarify but it is not required by the interrogator to clarify, and the interrogator may continue questioning. State v. Morris, 255 Kan. 964, Syl. ¶ 4, 880 P.2d 1244 (1994). In this case, the defendant made no unequivocal statement that he wished to remain silent or confer with counsel. Thus, we conclude the trial court did not err in admitting the defendant’s statements.
Turning now to the defendant’s argument that his statements should be inadmissible because the conversation with Detective Johnson prior to giving the statements was not recorded, we note that it has never been the law in Kansas that conversation between a suspect and a police officer during interrogation that is not recorded is not admissible. While other states have established such a bright line rule, see State v. Thaggard, 527 N.W.2d at 807, the majority of jurisdictions have specifically declined to adopt such a rule. See People v. Raibon, 843 P.2d 46, 48-49 (Colo. App. 1992); Coleman v. State, 189 Ga. App. 366, 375 S.E.2d 663 (1988); State v. Kekona, 77 Hawaii 403, 886 P.2d 740 (1994); State v. Rhoades, 121 Idaho 63, 73, 822 P.2d 960 (1991); People v. Eoerette, 187 Ill. App. 3d 1063, 1075, 543 N.E.2d 1040 (1989); State v. Buzzell, 617 A.2d 1016, 1018 (Me. 1992); Commonwealth v. Fryar, 414 Mass. 732, 742 n.8, 610 N.E.2d 903 (1993); Williams v. State, 522 So. 2d 201, 208 (Miss. 1988); Jimenez v. State, 105 Nev. 337, 775 P.2d 694 (1989); State v. Gorton, 149 Vt. 602, 606, 548 A.2d 419 (1988); State v. Spurgeon, 63 Wash. App. 503, 508-09, 820 P.2d 960 (1991). By this decision we adhere to and follow the majority rule.
TIME DELAYS
The defendant raises several issues in this appeal concerning a delay in bringing him to trial. The charges the defendant were convicted of arose out of an incident in 1993. The defendant was arrested in Oklahoma and charged with possession of a stolen vehicle, tried, and.sentenced to 2 years. Upon the expiration of his sentence, the defendant was returned to Kansas in 1995 for trial on the charges before the trial court. He first contends that the delay in bringing him to trial violated his due process rights. He argues that the failure to charge him and bring him to trial for 2 Vz years was unreasonable. However, the defendant did not raise this issue before the trial court. Thus, he is considered to have waived his argument. See State v. Alderson, 260 Kan. 445, Syl. ¶ 7, 922 P.2d 435 (1996).
Moreover, while the defendant claims he suffered prejudice by-reason of the delay, there is no support for his claim in the record. The defendant argues in his brief that he suffered the loss of a necessary witness without detailing which witness he lost or how the delay contributed to the loss of such witnesses. The defendant also claims that he should be allowed an evidentiary hearing to present his reasons why he feels the delay prejudiced him. In support of this contention, he cites State v. Bryson, 500 P.2d 1171 (Hawaii 1972). In Bryson, the Hawaii Supreme Court found that where a defendant originally claimed a speedy trial violation and alleged prejudice from preindictment delay, an evidentiary hearing was needed to determine if the delay prejudiced the defendant under United States v. Marion, 404 U.S. 307, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971). However, in Bryson, the reason the trial court failed to hold an evidentiary hearing on prejudice to the defendant -under the Marion standard is that the defendant did not raise the issue. Even now, the defendant is unable to articulate with any particularity the prejudice he claims to have suffered. The defendant attempts to do so in his additional memorandum filed pro se before this court. However, his claim of prejudice appears to be simply that waiting to deal with the charges caused him emotional distress and wore him out. No prejudice to his fair trial was argued, and under the facts the defendant does not meet the standards set forth in this state in State v. Royal, 217 Kan. 197, 201-02, 535 P.2d 413 (1975), or the standard set out in United States v. Marion.
Second, the defendant contends that his Sixth Amendment right to a speedy trial was violated by the preindictment delay. However, in Marion, the Supreme Court determined that the Sixth Amendment did not apply to delay which occurred prior to the arrest of the defendant. 404 U.S. at 313-20. Although the defendant argues that he had previously been arrested in Oklahoma, the arrest was for possession of a stolen car, a crime with which he was not charged in Kansas. He was not arrested in Kansas until after his release in Oklahoma. Under these circumstances, the right to a speedy trial under the Sixth Amendment does not apply.
The defendant finally contends that the trial court erred in failing to dismiss the aggravated robbery charge and the aggravated kidnapping charge on the grounds that the statute of limitations had run. Prosecution in this case was commenced on December 18, 1995, well outside of the 2-year statute of limitations for these crimes provided in K.S.A. 21-3106. However, the trial court determined that the statute of limitations was tolled because the defendant was absent from the state; specifically, he was in Oklahoma from October 30, 1993, to December 18, 1995.
K.S.A. 21-3106(5) provides for a 2-year statute of limitations for aggravated robbery and aggravated kidnapping. However, under the provisions of K.S.A. 21-3106(6)(a), the period specified shall not include any period in which the accused is absent from the state.
The defendant argues that his absence from Kansas was not voluntary and, therefore, should not have tolled the running of the statute of limitations. However, most recently in State v. Lee, 263 Kan. 97,105-08,948 P.2d 641 (1997), we addressed the same question and resolved it adversely to the defendant’s contention in this case. Lee contended that because he was incarcerated in the federal penal system, he was not absent voluntarily from the state and, therefore, the statute of limitations should not be tolled. 263 Kan. at 105-06. We stated: “As we read 21-3106, it is unambiguous and only requires that ‘[t]he accused is absent from the state’ in order to toll the statute of limitations, regardless of whether the absence is voluntary or involuntary.” 263 Kan. at 107.
HEARSAY STATEMENTS OF ALAN KEITH COPRIDGE
The defendant argues that admission of the statements made by Copridge, who was also charged with and convicted of the murder of Williams, to John Stevens and Benjamin Amaro, Jr., on the grounds that Copridge was in the courtroom and was subject to being called by either party, was error. He argues that the failure of Copridge to testify at trial denied him the right to confront witnesses.
Stevens and Amaro testified that Copridge approached them and asked them if he wanted to help Copridge steal stereo equipment from Williams. When Stevens asked how Copridge would be able to steal from someone he knew, Copridge stated he would “take care of it.” Amaro testified that Copridge asked him to hold some of the stereo equipment for him.
In State v. Fisher, 222 Kan. 76, Syl. ¶ 5, 563 P.2d 1012 (1977), we held that a declarant must testify at trial before hearsay evidence of his or her out-of-court statement may be admitted under K.S.A. 60-460(a), which was the exception relied upon by the court in admitting Copridge’s statement to other witnesses. We later modified Fisher in State v. Davis, 236 Kan. 538, 541, 694 P.2d 418 (1985), wherein we held that if the declarant is actually present and testifies at trial, the statements áre admissible whether admitted before or after the declarant testifies.
In the instant case, Copridge, the declarant, was not called to testify and, therefore, admitting the hearsay statements under the provisions of K.S.A. 60-460(a), as the trial court did, was error. However, the State contends that such statements were admissible under the provisions of K.S.A. 60-460(i)(2), which provide an exception to the hearsay rule for those statements which would be admissible if made by the declarant at the hearing if the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter, and was made while the plan was in existence and before its complete execution or termination. In interpreting this provision, we have held statements to be admissible under this exception where there is evidence other than the proffered out-of-court statement which establishes a “substantial factual” basis for a conspiracy between the defendant and the declarant. State v. Butler, 257 Kan. 1043, 1060, 897 P.2d 1007 (1995), modified on other grounds 257 Kan. 1110, 916 P.2d 1 (1996).
In this case, there was substantial evidence, absent the statements of the declarant, that the defendant and Copridge were involved in a conspiracy to rob Williams. Lionel Sanders testified that the defendant told him that the.defendant, Copridge, and Slim were going to steal a sports utility vehicle belonging to a person who owned a stereo store. All of the alleged hearsay statements by Copridge were related to this conspiracy and were made while the conspiracy was still in existence. Thus, they were admissible under the coconspirator exception to the hearsay rule. K.S.A. 60-460(i)(2). Although the trial court may have erred in admitting such statements under K.S.A. 60-460(a), K.S.A. 60-460(i)(2) provided a basis for their admission, and it was not error for the trial court to admit the same.
REPRESENTATION OF COUNSEL
The defendant raises three contentions in regard to his representation: (1) The trial court erred in denying his application for a new attorney; (2) the trial court erred in denying an evidentiary hearing on ineffective assistance of counsel; and (3) the court erred in preventing him from representing himself.
(1) The denial of the defendant’s application for new attorney
On April 17, 1993, the defendant filed a pro se “application for reassignment of counsel” in which he asked for a new attorney on the basis that a conflict of interest existed because the public defenders were employees of the State, one of his attorneys had an excessive workload, a communication gap existed between himself and one of his attorneys, his attorneys had ignored his request for investigative services and production of evidence, and his attorneys had withheld information from him.
The record fails to support any of the above contentions, and the defendant’s claim is without merit. Generally, the question of whether a new counsel should be appointed is left to the discretion of the trial court. State v. Hegwood, 256 Kan. 901, 903, 888 P.2d 856 (1995). To warrant substitute counsel, a defendant must show justifiable dissatisfaction with appointed counsel. Justifiable dissatisfaction sufficient to merit substitution of counsel includes a conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between the attorney and the defendant. 256 Kan. at 903-04.
The defendant argues that his attorneys were from the public defender’s office and, thus, paid by the State. We rejected the exact same argument in State v. Ferguson, 254 Kan. 62, 66-67, 864 P.2d 693 (1993), wherein we noted that any appointed counsel suffers from the same problems and that this fact does not deny the defendant a fair trial.
The defendant claims that his attorneys had an excessive case load. However, the trial court questioned the defendant’s attorneys, who stated that although they had a large case load, they had spent considerable time on the defendant’s case and were ready to proceed.
The remainder of the defendant’s assertions regarding this allegation concern communication gaps between him and his appointed counsel. Although the defendant makes such assertions, these assertions do not show a complete breakdown in communication occurred. In State v. Collier, 259 Kan. 346, 358, 913 P.2d 597 (1996), we held that as long as the trial court has a reasonable basis for believing the attorney-client relation has not deteriorated to a point where appointed counsel can no longer give effective aid and a fair presentation of a defense, the court is justified in refusing to appoint new counsel. Based upon the above circumstances, we conclude the trial court did not abuse its discretion in denying the defendant’s motion.
(2) Ineffective assistance of counsel
“Before counsel’s assistance is determined to be so defective as to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel’s performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that the deficient performance prejudiced the defense. This requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial.” State v. Orr, 262 Kan. 312, Syl. ¶ 1, 940 P.2d 42 (1997).
At the sentencing hearing, the defendant brought up numerous issues relating to the competency of his counsel. He asserted that this counsel was too busy to adequately represent him at trial and that his counsel failed to introduce evidence relating to his character. The defendant also claimed his counsel should have called Cortez Loudermilk because Loudermilk was at the victim's residence on the night in question. The defendant also asserted that his counsel should have called other witnesses, including Copridge. He further claimed that his counsel also failed to allow him to be present during the instruction conference. Finally, he complained that his counsel had failed to attempt to get the aggravated robbery and aggravated kidnapping thrown out as beyond the statute of limitations.
The trial court, having presided over the trial, concluded that an evidentiary hearing was not necessary and denied the defendant’s motion alleging ineffective assistance of counsel. Both the performance and prejudice prongs of an ineffective assistance of counsel inquiry are generally mixed questions of law and fact on appeal. State v. Orr, 262 Kan. 312, Syl. ¶ 4. However, where the trial court, after reviewing the performance of defense counsel for the entire trial and considering the allegations of the defendant, finds that the question may be resolved as a matter of law, the matter may be concluded without hearing.
With the exception of the defendant’s allegation concerning Loudermilk and Copridge, most of the defendant’s claims regarding ineffective assistance of counsel are without merit. They amount to bare assertions of the defendant without support in the record. We have previously examined some of the claims regarding ineffective assistance and concluded that claims such as the statute of limitations contention have no merit. Regarding the defendant’s claim that his counsel should have called Loudermilk and Copridge, it is clear that any attempt to call Copridge would have been futile as Copridge’s own conviction was on appeal and, thus, Copridge could have asserted his Fifth Amendment right not to testify. The defendant did not proffer to the court the content of Loudermilk’s testimony other than to indicate that Loudermilk would testify as to how long the defendant was at Williams’ apartment on the night of the murder. However, any testimony of this nature would have been suspect, especially considering the defendant’s statement to police that he was at Williams’ apartment until the purported fight between Copridge and Williams began. Under these circumstances, it would be reasonable for the trial court to assume that failure to call such witnesses was attributed to sound defense strategy. We conclude that there is sufficient evidence in the record for the trial court to have made a deter- ruination without hearing that the defendant failed to establish that counsel’s performance was deficient and or that any deficient performance by counsel did not prejudice the defendant. Therefore, we conclude the trial court’s denial of his motion alleging ineffective assistance of counsel was proper.
(3) The defendant’s right to self-representation
The defendant contends that the trial court prevented him from representing himself. There is no merit to this claim. Contrary to the defendant’s assertion, the trial court did not deny him the right to represent himself. While the court did advise against self-representation, the trial court advised the defendant he would be able to do so. The fact that the defendant did not avail himself of this opportunity does not mean that he was prevented by the trial court from representing himself.
ADDITIONAL TRIAL ISSUES
The defendant raises the following additional issues: (1) the sufficiency of the evidence; (2) the withholding of exculpatory evidence; (3) the trial court’s giving of an instruction on aiding and abetting over objection of the defendant; (4) the trial court’s failure to remove three jurors for cause; and (5) the defendant’s contentions that the clothing and buttons worn by the family of the victim prejudiced the defendant’s right to a fair trial.
(1) Sufficiency of evidence
We have previously set forth the facts regarding the crimes in detail. Under the facts, we have no hesitancy in concluding, after review of all the evidence, viewed in a light most favorable to the prosecution, that a rational factfinder could have found the defendant guilty of each offense beyond a reasonable doubt. See State v. Claiborne, 262 Kan. 416, Syl. ¶ 5, 940 P.2d 27 (1977).
(2) Exculpatory evidence
The defendant argues that the State withheld exculpatory evidence that prejudiced his right to a fair trial. Specifically, he argued that a travel pass he received from a probation officer, which would indicate that he had a reason other than for the sale of a stolen vehicle to be in Oklahoma, was withheld by the State. The basic flaw with the defendant’s contention is that the defendant had personal knowledge of this fact available to him before and during the trial. Thus, he is not prejudiced by the State’s failure to produce such evidence. State v. Peckham, 255 Kan. 310, 341, 875 P.2d 257 (1994). Further, Landwehr testified at trial that the defendant did in fact have an appointment in Oklahoma and that he arrived at that appointment. Thus, the jury was informed that the defendant did have a legitimate noncriminal reason for being in Oklahoma, and no prejudice resulted from the failure of the State to inform the defendant of the travel pass.
The defendant also contends that he was not informed by the State that State’s witness, Benjamin Amaro, Jr., was sent to Lansing along with Copridge. The defendant contends that he was entitled to know this information. However, he fails to show how the failure to receive this information prejudiced his case. Further, it was clear from the transport orders filed in this case that both Copridge and Amaro were at Lansing. Therefore, the State did not withhold information, and the defendant is not entitled to relief.
(3) Aiding and abetting
The defendant contends there was not sufficient evidence to show that he aided and abetted in the crimes charged and at most, the evidence established that he merely associated with Copridge, the true perpetrator. Contrary to the defendant’s contention, the evidence at trial disclosed that the defendant entered into a plan with Copridge to rob the victim and the defendant discussed this plan in the presence of others. The defendant admitted that he went with Copridge to the victim’s residence the evening of the robbery and murder. Ample evidence supported the giving of an instruction on aiding and abetting. See State v. Words, 226 Kan. 59, 64-65, 596 P.2d 129 (1979).
(4) Challenge for cause
We have reviewed the record concerning the defendant’s challenges for cause. Based upon this review, we conclude the defendant’s assertions in this regard have no merit In one instance, defense counsel suggested that the challenged juror be made an alternate. This was done, and the challenged juror did not sit on the panel that convicted the defendant. In a second instance, the trial court carefully questioned a juror’s prior knowledge of the Copridge trial. When it was determined that the challenged juror had no such knowledge, defense counsel decided not to object and the record supports that no subsequent challenge for cause existed. Finally, a juror indicated that she knew a witness who was to testify at trial. When the court determined there was no issue about the fact the witness was going to testify to, the court took no further action, Moreover, the defendant, in his statement to the police, admitted the very fact that the witness testified to at trial. Under the circumstances, there was no basis for a challenge for cause.
(5) Clothing and buttons worn by the family of the victim
The defendant next contends that the buttons and t-shirts worn by certain members of Williams’ family prejudiced his right to a fair trial. He argues that his conviction should be overturned due to this prejudice.
During trial, the defendant called the court’s attention to the fact that members of Williams’ family were wearing buttons in the courtroom with Williams’ picture on them. The defendant asked that the family members be directed to remove the buttons, which request was denied by the court. Later, the defendant showed the court that the family members were wearing t-shirts with a picture of Williams on them. The defendant requested that the family members be directed to remove the shirts, which request was also denied. In denying the request, the court noted that die jurors had been directed to decide the case on the evidence presented.
In State v. Bradford, 254 Kan. 133, 141-42, 864 P.2d 680 (1993), a similar incident was addressed when spectators wore buttons with the victim’s picture. We determined in Bradford that the district court did not abuse its discretion in failing to ask the spectators to remove the buttons at the outset of trial. 254 Kan. at 142.
In this case, however, the court refused to direct the spectators to remove the buttons and t-shirts and, thus, the case is more direcdy similar to State v. McNaught, 238 Kan. 567, 577, 713 P.2d 457 (1986). In McNaught, spectators at trial wore Mothers Against Drunk Driving and Students Against Drunk Driving buttons which the court refused to direct the spectators to remove. We held that, in the administration of justice, the trial judge is charged with the preservation of order in his or her court with the duty to see that justice is not obstructed by any person or persons whatsoever. We also noted that a large measure of discretion resides in the trial court in this respect and its exercise of that discretion will not be disturbed on appeal unless it appears that prejudice resulted from the denial of a legal right. 238 Kan. at 577. We then determined that where the record did not show the number of persons wearing buttons, or contain any evidence that the jurors showed concern about the buttons, no prejudice or abuse of discretion resulted. 238 Kan. at 580.
As in McNaught, there was no evidence regarding the number of spectators wearing the buttons or t-shirts and also no evidence that the jurors were in any way affected by the buttons or t-shirts. That being said, however, it would seem that the wearing of such buttons or t-shirts is not a good idea because of the possibility of prejudice which might result. Under the circumstances, it would have been better for the district court to have ordered the buttons removed or the t-shirts covered up. However, under the standard we set in McNaught, the defendant has failed to show that his rights were prejudiced by the spectators’ display.
COLLATERAL ESTOPPEL
The defendant also contends that the trial court erred in failing to dismiss the charges against him on the basis of collateral estoppel. He contends there had already been an adjudication on the merits in Oklahoma arising out of the same transaction. We find no merit in this contention.
Collateral estoppel means nothing more than double jeopardy when applied in the context of a criminal case. See State v. Pruitt, 216 Kan. 103, 105, 531 P.2d 860 (1975). The United States Supreme Court has determined that the Fifth Amendment prohibition against double jeopardy does not apply to prohibit prosecutions by separate sovereignties. See Heath v. Alabama, 474 U.S. 82, 87-89, 88 L. Ed. 2d 387, 106 S. Ct. 433 (1985).
K.S.A. 21-3108(3)(a) provides that a prosecution is barred if the defendant was formally prosecuted in a court of general jurisdiction of a sister state for a crime that is within the concurrent jurisdiction of this state, if the former prosecution resulted in a conviction or acquittal and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the offense was not consummated when the former trial began. In order for both states to have concurrent jurisdiction over the same crime, the two different courts must have the jurisdiction over the subject matter of the controversy, with either court being the proper forum for its resolution. State v. Henwood, 243 Kan. 326, 330-32, 756 P.2d 1087 (1988).
While Oklahoma had jurisdiction to prosecute the defendant for possession of stolen property, it had no jurisdiction to prosecute the defendant for the murder, kidnapping, or robbery. Thus, the provisions of K.S.Á. 21-3108(3)(a) do not bar the prosecution of the defendant in the state of Kansas for the crimes of murder, robbery, and aggravated kidnapping.
SENTENCING ISSUES
The defendant raises the following issues regarding his sentence: (1) The trial court erred in sentencing him without his presentence investigation (PSI) report and later denying his motion to be present and represent himself at a subsequent hearing, and (2) the trial court erred in sentencing the defendant on the first-degree murder, charge rather than the felony-murder charge.
(1) The PSI report
At the time of sentencing, the defendant did not submit his own report, and it was not included in the PSI report. He contended before .the trial court that he did not receive tíre proper forms, at which time the court stated that the defendant could either continue the sentencing to fill out his form, or the defendant could tell the court the information orally. The defendant then spoke to the court at length regarding his denial of the offense. The defendant’s contention that the sentence was improper because the court did not consider his version of the events in the PSI report has no merit.
The defendant further argues that he completed his PSI report form, but the court, after a modification hearing in which he was not present, failed to consider it. However, the hearing of which the defendant complains was not a modification hearing but simply a proceeding to determine whether a hearing was necessary because of the recently received information from the defendant’s completed form. Both the defendant’s attorney and the State informed the court that they had no objection to a further hearing with the defendant present. However, the court determined that no hearing was necessary. The hearing was not on a motion to modify sentence. The defendant had no right to be present, and the district court was not obligated to consider the new information contained in the PSI report, particularly because the defendant at the time of sentencing was able to present all of this information to the district court prior to the imposition of his sentence.
(2) Conviction of first-degree rather than felony murder
The defendant contends that felony murder and premeditated murder are no longer alternate methods but rather that felony murder is a lesser crime and, therefore, he should be sentenced to life with parole eligibility in 15 years under felony murder rather than life with parole eligibility in 25 years under first-degree murder.
The defendant bases this argument on an erroneous conclusion of law. The provisions of K.S.A. 22-3717(b)(l) and (2) provide that a defendant who is sentenced to life in prison for premeditated murder is eligible for parole after 25 years, while a defendant sentenced to life in prison for felony murder is eligible after 15 years. However, these provisions apply to crimes committed after July 1, 1994. K.S.A. 22-3717(b)(l). The defendant’s crimes were committed prior to July 1, 1994, and, therefore, his murder sentence is governed by K.S.A. 1993 Supp. 22-3717, which provides for life in prison with parole eligibility in 15 years regardless of whether the crime was premeditated murder or felony murder.
LESSER INCLUDED OFFENSE INSTRUCTIONS
As his assignment of error, the defendant contends that the trial court erred in refusing to instruct on the lesser included offenses of second-degree murder, voluntary manslaughter, and involuntary manslaughter, as well as instructions on withdrawal and mere presence or association. He contends that the failure to give such instructions entitles him to a new trial.
With regard to lesser included offenses, we have held:
“The defendant has a right to have the court instruct the jury on all lesser included offenses established by substantial evidence, however weak, unsatisfactory, or inconclusive the evidence may appear to the court. Even the unsupported testimony of the defendant alone, if tending to establish such lesser offense, is sufficient to require the court to so instruct. However, the evidence must be substantial and there must be evidence which, when viewed in a light most favorable to the defendant,' would justify a jury finding in accordance with the defendant’s theory.” State v. Harmon, 254 Kan. 87, Syl. ¶ 1, 865 P.2d 1011 (1993).
With regard to the defendant’s first-degree murder conviction, while there is evidence from which a reasonable person could conclude that Copridge killed Williams with premeditation, the evidence might be insufficient to establish the liability of the defendant in the first-degree murder. Further, it is questionable as to whether Copridge actually did kill Williams in a premeditated manner. Although there was evidence that Williams’ wrists had tape on them, indicating that Williams was at some point bound, there is no evidence to indicate whether Williams was bound when he was killed, or whether he somehow escaped confinement and tried to stop Copridge or the defendant, with the result that he was killed. This court has held that in a prosecution for premeditated first-degree murder, where there is no direct evidence as to the circumstances of the killing, and the evidence introduced against the defendant is wholly circumstantial and open to the inference by the jury that the offense committed may have been second-degree murder, it is the duty of the court to instruct the jury respecting that degree of homicide. State v. Sanders, 258 Kan. 409, 416, 904 P.2d 951 (1995).
In this case, where there is no direct evidence regarding the nature of the killing, instructions on lesser included offenses to first-degree murder were arguably required. However, the failure to give such instructions does not require a reversal of this case because the defendant was also convicted by the jury of the alter nate charge of felony murder. The rule in Kansas with regard to felony murder is that the jury need not be instructed on lesser offenses unless evidence of the underlying felony is weak and inconclusive. State v. Altum, 262 Kan. 733, 738-39, 941 P.2d 1348 (1997). In this case, the evidence of the underlying felonies was neither weak nor inconclusive, and no lesser included offense instructions were necessary with regard to felony murder.
The defendant also contends that the court should have, sua sponte, given instructions on withdrawal as a defense to aiding and abetting felony murder, aggravated kidnapping, and aggravated robbery. He argues that the evidence showed that he had withdrawn from the enterprise, leaving before any crimes were committed.
However, this court has held that while withdrawal is a defense to a charge of conspiracy, it is not a defense to a charge of aiding and abetting. See State v. Kaiser, 260 Kan. 235, 247-49, 918 P.2d 629 (1996). As a result, the district court did not err in failing to instruct on withdrawal as a defense to aiding and abetting.
The defendant further contends that the district court should have instructed the jury that mere association with the principals who commit the crime or mere presence in the vicinity of the crime is insufficient to support guilt as an aider and abettor. However, in State v. Hunter, 241 Kan. 629, 639, 740 P.2d 559 (1987), we held that the jury need not be instructed on mere association, because the pattern jury instruction clearly informs the jury that intentional acts by a defendant are necessary to sustain a conviction. Therefore, an instruction on mere association or presence was not necessary, and the district court did not err in giving such an instruction sua sponte.
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The opinion was delivered by
Luckert, J.:
The plaintiffs, Badr Idbeis, M.D., Gaiy S. Benton, M.D., Robert H. Fleming, M.D., and John D. Rumisek, M.D., are thoracic, cardiothoracic, and cardiovascular surgeons who filed this action seeking a restraining order and injunction prohibiting their employer, defendant Wichita Surgical Specialists, P.A. (WSS), from enforcing restrictive covenants contained in their employment agreements with WSS and seeking a declaration that those covenants are unenforceable.
Upon the filing of the petition, the trial court granted the plaintiffs a temporary restraining order (TRO). A hearing was conducted after WSS filed a motion to vacate that restraining order and requested its own TRO enforcing the restrictive covenants. The trial court granted a temporary injunction in favor of Drs. Benton, Fleming, and Rumisek and prohibited WSS from enforcing the restrictive covenants in their employment agreements. As to Dr. Idbeis, the court granted a temporary injunction in favor of WSS, requiring Dr. Idbeis to begin making payments of liquidated dam ages pursuant to the formula set forth in his employment agreement or to cease practicing medicine in Sedgwick County, Kansas, as required by the geographic restriction in his employment agreement.
Approximately 1 year later, after conducting discovery, the parties tried the case to the court after which the trial court verbally ruled that the restrictive covenants in the employment agreements of Drs. Benton, Fleming, and Rumisek were enforceable. However, the trial court granted these plaintiffs their alternative request that they be allowed the option of paying liquidated damages. As to Dr. Idbeis, the trial court ruled that the restrictive covenant in his employment agreement was enforceable and that he must pay a liquidated damage award or cease practicing medicine in Sedgwick County, Kansas.
WSS filed a timely motion to amend the district court’s judgment pursuant to K.S.A. 2004 Supp. 60-252(b) asking the court to change the liquidated damages formula. The court entered an order amending the final judgment by changing the liquidated damages formula. Plaintiffs filed a timely notice of appeal, and WSS filed a timely notice of cross-appeal. This court granted a motion by WSS to transfer the case to this court pursuant to K.S.A. 20-3017.
Factual Background
Wichita Surgical Group, P.A. (WSG) was originally founded in 1969. WSG did not initially require restrictive covenants in its employment agreements. However, as it grew, WSG began requiring restrictive covenants for the purposes of improving the quality of the group, protecting the strength and viability of the group, and protecting the group’s referral base.
The structure and ownership of WSG changed in 1994, resulting in the formation of WSS, a professional corporation organized and authorized to do business in Kansas. Although WSS formed a single entity for tax purposes, it organized five divisions each of which was managed by its own division council and through shareholder votes. This structure allowed each division to maintain a distinct existence and independently manage its own affairs, including employment decisions. WSS had a board of directors comprised of representatives of each of the divisions; those directors were members of their individual division councils.
The surgeons specializing in thoracic and cardiovascular surgery were members of the division known as the WSS division. The WSS division required restrictive covenants, although some other divisions did not. With some exceptions, if a surgeon from outside the Wichita area joined WSS, the employment agreement included a restrictive covenant with time and geographic restrictions. If a surgeon from an existing Wichita practice joined WSS, the employment agreement included a restrictive covenant with time and geographic restrictions but also a liquidated damages or “buyout” clause. If a surgeon brought a new specialty to WSS, no restrictive covenant was required. For new surgeons, WSS provided a guaranteed minimum salary for the first 2 years while the surgeons developed their referral base.
When Dr. Idbeis, who is board certified in general and thoracic surgery, joined WSG in December 1988, he signed an employment agreement which contained a covenant not to compete. In October 1994, he signed a new agreement with WSS. Because Dr. Idbeis had an existing practice in Wichita for 8 years before joining WSG, his employment agreement with WSS contained a 2-year geographic restrictive covenant and a liquidated damages provision:
“9. Restrictive Covenant. During the term of this Agreement and for a period of two (2) years after the termination of this Agreement for whatever reason, Doctor will not, without the prior consent of Employer, directly or indirectly engage in the practice of medicine and/or surgery, nor own, manage, operate, control, be employed by, invest in, participate in, advise, consult with, or be connected with the ownership, management, operation or control of any business engaged in the practice of medicine and/or surgery within 75 miles of the city of Wichita, Kansas.
“In the event that Doctor does engage in the practice of medicine in violation of this covenant, then Doctor shall pay to Employer, as liquidated damages, five annual payments in an amount equal to 20% of tire total taxable compensation received by Doctor from Employer for the twelve month period immediately preceding the termination of Doctor’s employment. Such annual payments will commence upon termination of this agreement and continue on each anniversary thereof until five annual payments have been made.”
The other plaintiffs’ contracts did not contain the liquidated damages provision and had different geographic limitations.
Dr. Rumisek was new to Wichita when he joined WSG, although he had extensive experience. He completed his general and vascular surgical residency training in 1979 and his cardiothoracic surgical residency training in 1983, after which he was' awarded a fellowship in pediatric surgeiy at Children’s Hospital of Philadelphia, University of Pennsylvania. Before coming to Wichita, Dr. Rumisek, who is board certified in general and thoracic surgery, served as Assistant Chief of Cardiothoracic Surgery Service at Walter Reed Army Medical Center, Washington, D.C., and worked as an Associate Professor of Surgeiy at the University of Florida. He joined WSG in 1989 at which time he signed an employment agreement which was later assigned to WSS. The employment agreement stated, in part:
“9. Restrictive Covenant. During the term of this Agreement and for a period of two (2) years after the termination of this Agreement, Doctor will not, within Sedgwick County, Kansas, without tire prior written consent of Employer, directly or indirectly, engage in the practice of medicine and surgery or own, manage, operate, control, be employed by, invest in, participate in, advise, consult with, or be connected with the ownership, management, operation, or control of any business engaged in the practice of medicine and surgery.”
Both Drs. Benton and Fleming started their private practice experience with WSG. Dr. Benton completed his residency training in 1989 and additional training through a cardiothoracic fellowship from 1989 to 1992, during which time he obtained certification in general surgery. He joined WSG in 1992 and secured his board certification in thoracic surgery in 1993. His employment agreement contained tire same covenant not compete as was included in Dr. Rumisek’s agreement, restricting competition for a 2-year period with the geographic restriction covering Sedgwick County, Kansas.
Dr. Fleming joined WSG 2 years after Dr. Benton. He had completed his residency training in 1992 and had additional training through a cardiothoracic fellowship from 1992 to 1994. He secured his board certification in general surgery in 1993 and his board certification in thoracic surgeiy in 1995. Because WSS’s market broadened geographically during the 2 years between when Drs. Benton and Fleming began their respective practices, the restric tive covenant in Dr. Fleming’s employment agreement contained a slightly different 2-year geographic restriction which prohibited him from practicing within 75 miles of Wichita. In all other respects the covenant was the same as those of Drs. Rumisek and Benton.
By August 2000, the WSS division council began discussing whether the restrictive covenants in its physicians’ employment contracts should be amended. Dr. Benton was appointed to a subcommittee to consider possible alternatives and recommend options to the shareholders.
In November 2000, the WSS division shareholders met and voted 14-2 against eliminating restrictive covenants altogether. All four plaintiffs in this case voted against eliminating restrictive covenants. The shareholders then voted 14-9 to approve a modification of the restrictive covenant. The minutes state: “[T]he restrictive covenants will be changed to provide financial restrictions after five years of geographic restrictions.” The departing physician would pay 80 percent of the previous year’s net income in payments made over a 4-year period. The intent was to allow each physician to choose whether to add this modification to his or her contract. However, there was conflicting testimony from the physicians about what they believed was supposed to happen next and whether they believed the modification was immediately available.
In January 2001, the WSS division council unanimously approved the modification to the restrictive covenants. The modification was sent to lawyers for legal review, and when it was returned, it contained material additions including an attorney fees provision that had not been reviewed by the shareholders.
In May and June 2001, the proposed modification was presented to the WSS division council and the WSS division shareholders. The shareholders were told that finalization of the amendment would proceed. The minutes of an October 2001 division council meeting stated that the amendment would soon be sent out to the physicians. The minutes never mentioned any plan to seek WSS board of directors approval. By the time plaintiffs left their employment with WSS, the amendment still had not been presented to the physicians.
During the fall of 2001, WSS faced another unrelated problem: revisions in federal legislation (the Stark law, 42 U.S.C. § 1395nn, and regulations) which would force the group to alter its structure and management. Dr. Ammar, the CEO, decided not to proceed with finalization of the restrictive covenant modification because of problems regarding restrictive covenants which would need to be addressed by all divisions as part of Stark compliance. The trial court also thought it likely Dr. Ammar knew that withholding finalization of the restrictive covenant modification would be a bargaining chip in negotiating the possible termination of the plaintiffs’ employment. By that time, such termination was contemplated because most of the shareholders in the WSS division found unacceptable Dr. Idbeis’ involvement with a proposed spine hospital.
In Januaiy 2002, the WSS division council, which is the governing body of the division, voted to notify Dr. Idbeis of this fact. A letter was sent to Dr. Idbeis giving him three options: withdraw from the spine hospital project, resign, or the division would vote on whether he should be terminated.
The WSS board of directors terminated Dr. Idbeis’ employment; his last day was March 17, 2002. As a result of Dr. Idbeis’ termination, Drs. Rumisek, Benton, and Fleming gave notice of termination of employment; their last day was March 22,2002. The four doctors made plans to form their own cardiovascular surgery group in Wichita, called Mid-America Surgical Associates (MASA). By establishing MASA, the plaintiffs violated their restrictive covenants, but, through the filing of this suit, they questioned the enforceability of the covenants.
In making findings of fact specific to the question of whether the restrictive covenants were enforceable, the trial court found that both the physicians and WSS benefitted from the provisions. Addressing the benefit to WSS, the trial court found that WSG and WSS would not have enjoyed the same degree of success without at least a reasonable restrictive covenant. Addressing the benefit to physicians, in particular new surgeons, the trial court found that they benefitted from WSS’s reputation and contacts with area doctors and hospitals, particularly WSS’s close relationship with St. Francis Medical Center and its successor, Via Christi. The trial court also noted that a cardiovascular surgeon’s business is almost totally dependent upon referrals from others, predominantly cardiologists, family practice doctors, and in some cases, the cardiovascular surgeon’s employer. Because referral patterns are well established in the Wichita area, it is difficult for a cardiovascular surgeon to enter the Wichita market without joining an established group.
Focusing more specifically upon the plaintiffs, the trial court concluded that all four benefited from their employment with WSS, especially Drs. Rumisek, Benton, and Fleming, who were able to get a foothold in the Wichita market and build a foundation for referrals which would have been more difficult, if not impossible, had they opened their own practices in Wichita. However, the trial court determined that, while WSS initially enabled Drs. Rumisek, Benton, and Fleming to establish a referral base, over time, WSS’s ability to influence referrals dwindled because of the surgeons use of what were referred to as the three A’s: “ability, availability, and affability.”
Trial Court’s Conclusions of Lato
The trial court’s conclusions of law were, in large part, framed by the considerations stated in Weber v. Tillman, 259 Kan. 457, 913 P.2d 84 (1996), in which the court upheld a restrictive covenant which prevented a dermatologist from practicing within a 30-mile radius from his former employer’s office for a period of 2 years. The Weber court stated the following general principles:
“A noncompetition covenant ancillary to an employment contract is valid and enforceable if the restraint is reasonable under the circumstances and not adverse to the public welfare. [Citations omitted.] The rationale for enforcing a noncom-petition covenant is based on the freedom of contract. [Citation omitted.] However, it is well settled that only a legitimate business interest may be protected by a noncompetition covenant. If the sole purpose is to avoid ordinary competition, it is unreasonable and unenforceable. [Citations omitted.] Additionally, noncom-petition covenants included in employment contracts are strictly construed against the employer. [Citations omitted.]” 259 Kan. at 462.
The Weber court also set forth the following factors to be considered in analyzing whether a noncompetition clause is reasonable:
“(1) Does the covenant protect a legitimate business interest of the employer? (2) Does the covenant create an undue burden on the employee? (3) Is the covenant injurious to the public welfare? (4) Are the time and territorial limitations contained in the covenant reasonable? The determination of reasonableness is made on the particular facts and circumstances of each case.” 259 Kan. at 464.
In applying the Weber factors, the trial court first considered the time and territorial hmitations and found those limitations to be reasonable. This finding is not disputed on appeal.
The court also found that enforcement of the restrictive covenants would impose a burden on Drs. Rumisek, Benton, and Fleming, but not an undue burden. The court noted that forcing the doctors into the national cardiovascular job market, which has a glut, would impose a financial hardship on them. The court considered the remedy of modifying the restrictive covenant so that it would prohibit only the practice of cardiovascular surgery rather than the practice of medicine. However, the court concluded this was not a realistic remedy because the doctors “would lose their CV [cardiovascular] skills, and as a practical matter they would also struggle as non-CV surgeons.” Even given these difficulties, the court found the restrictive covenants would not impose an undue burden on the plaintiffs. The court did not specifically mention Dr. Idbeis in making its findings about undue burden; however, it is clear that the court believed Dr. Idbeis was under less of a burden than the other plaintiffs since his employment contract gave him the option of paying liquidated damages and remaining in the Wichita area. Again, these findings are not specifically disputed by the parties.
However, the trial court’s conclusions of law regarding the other factors are disputed.
Did the Trial Court Err in Ruling That the Restrictive Covenants Are Not Unenforceable as a Result of the Incorporation of the AMA’s Declarations Regarding Restrictive Covenants Into the Plaintiffs’ Employment AgreementsP
Before we reach the remaining factors of the Weber analysis, however, we must address the plaintiffs’ argument that the Weber factors are displaced by the American Medical Association’s (AMA) ethics guidelines, which the plaintiffs argue are incorporated into the contract between the parties.
All four doctors’ employment agreements contained the following provision regarding professional standards:
“3. Professional Standards. Doctor hereby promises to engage in the practice of medicine and surgery in Employer’s behalf to the best of his or her ability and in accordance with the generally accepted community standards, and to faithfully adhere to the principles of medical ethics of the American Medical Association or other associations or boards concerned with the conduct in question.” (Emphasis added.)
The AMA Council on Ethical and Judicial Affairs has published an opinion which states:
“Covenants-not-to-compete restrict competition, disrupt continuity of care, and potentially deprive the public of medical services. The Council on Ethical and Judicial Affairs discourages any agreement which restricts the right of a physician to practice medicine for a specified period of time or in a specified area upon termination of an employment, partnership or corporate agreement. Restrictive covenants are unethical if they are excessive in geographic scope and duration in the circumstances presented, or if they fail to make reasonable accommodation of patients’ choice of physician.” AMA Council on Ethical and Judicial Affairs, Op. E-9.02 (1998).
The trial court ruled that, because all of the plaintiffs’ employment agreements required them to faithfully adhere to the principles of medical ethics of the AMA, the AMA principles were made part of the employment agreements. Accordingly, the restrictive covenants in plaintiffs’ employment agreements were required to make reasonable accommodation of the patients’ choice of physician.
Both plaintiffs and defendant contend that the trial court erred in its consideration of the AMA provisions regarding restrictive covenants. Their arguments involve the interpretation of the plaintiffs’ written employment agreements, which raises a question of law over which this court’s review is unlimited. See Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001).
The plaintiffs ask us to reach the same conclusion as did the trial court and determine that their employment agreements with WSS incorporated the AMA’s principles relating to restrictive covenants and that restrictive covenants violate those principles. However, the plaintiffs also contend that the trial court erred in failing to conclude that, as a result of the applicability of the AMA provisions, the restrictive covenants are unenforceable.
Defendant WSS contends that the trial court erred in ruling that the AMA provisions were incorporated into the plaintiffs’ employment agreements, and in relying on the AMA provisions to require that the restrictive covenants make reasonable accommodation for the patients’ choice of physician.
Both parties’ arguments on this point fail. The AMA provisions do not state that all restrictive covenants are unethical; rather, such covenants are only unethical “if they are excessive in geographic scope and duration in the circumstances presented, or'if they fail to make reasonable accommodation of patients’ choice of physician.” These requirements are really no different than the common-law requirement in Kansas that restrictive covenants be reasonable and not adverse to the public welfare. See Weber, 259 Kan. at 462; see also Community Hosp. Group v. More, 183 N.J. 36, 56, 869 A.2d 884 (2005) (AMA standards do not make restrictive covenants per se unethical but adopt a reasonableness standard similar to that applied by courts); Loeser, The Legal, Ethical, and Practical Implications of Noncompetition Clauses: What Physicians Should Know Before They Sign, 31 J.L. Med. & Ethics 283, 287 (2003) (“While noteworthy in its opposition to restrictive covenants, CEJA’s position has limited legal impact, as the opinion merely parrots the reasonableness standard applied by most courts to non-competition clauses generally.”).
Thus, even if the plaintiffs’ contracts did incorporate the AMA provisions, as urged by the plaintiffs and found by the trial court, the trial court was not required to automatically invalidate the restrictive covenants. Rather, the court was still required to review the restrictive covenants under the four-part Weber analysis. Consequently, the plaintiffs’ argument that the trial court erred in failing to set aside the restrictive covenants altogether fails.
Defendant WSS’s argument fails for the same reason, i.e., the AMA’s statements about when a restrictive covenant is ethical are really no different than common-law reasonableness requirements. Kansas courts have noted that patient choice is an appropriate consideration in determining whether a restrictive covenant is injurious to the public welfare. See Weber, 259 Kan. at 470.
Additionally, in Graham v. Cirocco, 31 Kan. App. 2d 563, 69 P.3d 194, rev. denied 276 Kan. 968 (2003), the Court of Appeals held that a 150-mile noncompetition covenant restriction on solicitation was reasonable but a 25-mile limitation on office placement and the prohibition of practice in the entire Kansas City metropolitan area were unreasonable. The court concluded that the non-competition covenant which prevented predatory behavior through the restriction on solicitation by the departing physician “while permitting patients and referring doctors to continue to exercise their own choices struck an acceptable balance among the interests of the two parties, the patients, and the referring doctors.” 31 Kan. App. 2d at 569. Thus, the court recognized patient choice as one consideration.
Consequently, even if the trial court erred in ruling that the AMA provisions were incorporated into the employment agreements, the court did not err in considering patient choice. Thus, defendant WSS’s argument to the contrary fails.
Did the Trial Court Err in Ruling That the Defendant Has Legitimate Business Interests to Protect Through the Enforcement of the Restrictive Covenants P
Returning to the Weber factors, plaintiffs next argue that the trial court erred in ruling that WSS has legitimate business interests to be protected through a restrictive covenant. WSS responds that it had a legitimate interest in its referral relationships and in maintaining its size, which allowed it to further its educational mission and introduce new specialties.
The parties agree that whether a restrictive covenant serves to protect an employer’s legitimate interests is a question of law over which this court’s review is unlimited. See Weber, 259 Kan. at 461-62.
First, the trial court found that the restrictive covenants in the plaintiffs’ employment agreements protected a legitimate business interest of WSS by enabling it to attain and maintain a larger size or “critical mass,” which allowed it to further its educational mission, introduce new specialties, and potentially negotiate favorable reimbursement rates from insurance carriers. Plaintiffs contend this interest is nothing more than a desire to prevent ordinary competition and point out that there is no authority in Kansas or anywhere else that maintaining the size of a business operation is a legitimate business interest which can be protected by a restrictive covenant.
Traditionally, courts have recognized that “a medical employer has a legitimate interest warranting protection by a noncompetition agreement if a departing physician was provided with (a) patient contacts, (b) training, or (c) confidential business information.” Berg, Judicial Enforcement of Covenants Not to Compete Between Physicians: Protecting Doctors’ Interests at Patients’ Expense, 45 Rutgers L. Rev. 1, 15 (1992). In Weber, this court noted a variety of legitimate business interests which have been recognized by other courts: “customer contacts, . . . the special training of employees, trade secrets, confidential business information, loss of clients, good will, reputation, seeing that contracts with clients continue, and referral sources.” 259 Kan. at 467. Weber also cited the Berg article for its review of noncompetition agreements between physicians.
None of these interests are related to the employer’s size or the special contributions the employer might be able to make to its community because of its size, and WSS’s argument that it has a legitimate interest in preserving its size is not persuasive.
The other business interest cited by the trial court as a legitimate interest for protection through a restrictive covenant was preservation of a referral base. Plaintiffs urge this court to conclude that WSS did not have a legitimate interest in referral sources.
Both sides cite cases from other jurisdictions which they claim are persuasive. For example, defendant WSS cites Medical Specialists, Inc. v. Sleweon, 652 N.E.2d 517 (Ind. App. 1995), a case upholding a restrictive covenant on the ground that the continued success of an infectious disease practice, which was dependent upon patient referrals from other doctors, was a legitimate interest worthy of protection.
We also note a recent decision of the New Jersey Supreme Court, which has- decided many of the leading physician restrictive covenant cases, in which the court reaffirmed that legitimate business interests for a hospital to protect with a post-employment restrictive covenant with a doctor include: “(1) protecting confidential business information, including patient lists; (2) protecting patient and patient referral bases; and (3) protecting investment in the training of a physician.” More, 183 N.J. at 58.
Plaintiffs cite several cases from other jurisdictions which refused to recognize referrals as a legitimate business interest to be protected by a restrictive covenant. See, e.g., Cardiovascular Surgical v. Mammana, 61 P.3d 210, 214 (Okla. 2002) (noting that referrals to cardiovascular surgeons are made based on reputation and not employment with a particular corporation, and “[o]ne surgeon has no legitimate business interest in another surgeon’s referral base regardless of a past employer-employee relationship”); Hoddeson v. Conroe Ear, Etc. Assoc., 751 S.W.2d 289, 290 (Tex. App. 1988) (“referring physicians are governed by die skills and qualifications of the receiving physician, rather than his associations” and employer “did not impart trade secrets, specialized training or confidential information to [employee]”).
These cases demonstrate only that courts are split on the issue of whether referral sources are a legitimate interest. In Kansas, however, the law is clear that referral sources are a legitimate interest which can be protected by a restrictive covenant even in the context of a medical practice. See Weber, 259 Kan. at 466-67; Graham, 31 Kan. App. 2d at 570. The trial court’s ruling diat WSS had a legitimate business interest in protecting its referral relationships was consistent with Weber and Graham.
The plaintiffs also ask us to uphold die trial court’s finding that any interest WSS had in referral sources no longer existed by the time the plaintiffs left their employment. The trial court concluded the plaintiffs had developed relationships with referring physicians based upon their own abilities and were no longer relying on WSS’s referral base by die time they left WSS. Defendant WSS claims the trial court’s conclusion that it lost its interest in referral sources over time is contrary to Kansas cases holding that the relationships developed by an employee during the course of his or her employment belong to the employer, not the employee. See, e.g., Eastern Distributing Co., Inc. v. Flynn, 222 Kan. 666, 567 P.2d 1371 (1977) (interest in “customer contacts” is a legitimate interest subject to protection). Flynn also established that the ultimate determination as to whether a legitimate interest subject to protection is shown is an issue of law, although there will be underlying facts determined by the court. 222 Kan. at 673. Here, the dispute is not with the trial court’s factual finding but with the conclusion of law drawn from those facts. As such, our review of that question is unlimited. See Weber, 259 Kan. at 461.
The Court of Appeals considered and rejected a similar argument in Graham. Cirocco, the employee, argued he might have come into contact with those same patients and referral sources if he had started a practice by himself; the court stated: “[T]he fact is he did not. Instead, he came to an entirely new area of the country, became board-certified while working for Graham, and, for 6 years, took advantage of Graham’s established contacts in the community to make a name for himself.” 31 Kan. App. 2d at 570.
In Weber, the court noted that Dr. Weber had invested “years, education, and effort in estabhshing his practice and the value of goodwill developed over 17 years,” which benefitted Dr. Tillman who brought no patients with him but who took patients when he left. 259 Kan. at 468.
Similarly, even though the plaintiffs’ reputations may have become over time the paramount factor influencing referrals, they each benefitted from their association and from the investment of WSS and its contribution of goodwill. Furthermore, it is a situation such as present in this case where the association “ posits a substantial risk of loss of clientele to an employee because of the nature of his work’ ” which warrants a covenant. Flynn, 222 Kan. at 672 (quoting Blake, Employee Agreement Not to Compete, 73 Harv. L. Rev. 625, 657-59 [1960]).
Finally, Weber instructs us:
“It is the duty of courts to sustain the legality of contracts in whole or in part when fairly entered into, if reasonably possible to do so, rather than to seek loopholes and technical legal grounds for defeating their intended purpose. Although restrictive provisions in contracts of employment must be reasonable and not such as to contravene the public welfare, the paramount public policy is that freedom to contract is not to be interfered with lightly.” 259 Kan. at 474; see Foltz v. Struxness, 168 Kan. 714, 721-22, 215 P.2d 133 (1950).
Over time, there were discussions within WSS about whether restrictive covenants should be removed from contracts. A majority of shareholders, including the plaintiffs, voted to retain the covenants, implicitly recognizing that the agreements continued to protect a valuable interest of the group. Dr. Idbeis, who was the one plaintiff who brought a Wichita referral base with him when he joined the group in 1988, renewed the restrictive covenant in 1994 with the restructuring. No argument is made that there was not valid consideration for the new contract because the business interest which WSS sought to protect had evaporated with time. The parties again imposed the restriction.
Furthermore, there is no showing made and the trial court did not find that WSS merely sought to prevent ordinary competition by including restrictive covenants in the contracts. Thus, no showing has been made that the parties’ freedom to contract should be overridden.
We, therefore, conclude that WSS had a legitimate business interest in the referral sources which it could seek to protect through restrictive covenants.
Did the Trial Court Err in Ruling That Enforcement of the Restrictive Covenants Would be Injurious to the Public Welfare?
As its first issue on cross-appeal, WSS argues that the trial court erred in ruling that enforcement of the restrictive covenants would be injurious to the public welfare.
The trial court considered whether enforcement of the covenants would result in a shortage of cardiovascular surgeons in the Wichita market. The trial court noted that Via Christi wanted two or three more cardiovascular surgeons to work in its facility, but the WSS division of cardiovascular surgeons opposed hiring more surgeons because some of them wanted more work. Dr. Idbeis opined that the Wichita market needs as many as 17.9 cardiovascular surgeons. A defense witness commissioned by Wesley Medical Center said there is demand for only 7.29 cardiovascular surgeons. Another defense witness believed Wichita requires 11 cardiovascular surgeons. Evidence was presented that advancing technology will decrease the future need for cardiovascular surgeons; however, evidence was also presented that, as baby boomers age, the future need for cardiovascular surgeons will increase. Conflicting testimony was presented about whether some of the cardiovascular surgeons in Wichita planned to retire in the near future and on whether patient care would suffer if three or four of the plaintiffs were removed from the Wichita market.
Ultimately, the trial court found it could not make a determination as to the need for cardiovascular surgeons based solely on numbers; rather, the quality of the surgeons being lost was also a factor. The trial court noted that, while there were 16 cardiovascular surgeons in Wichita, the four plaintiffs were some of the busiest. The court also noted that if Drs. Rumisek, Benton, and Fleming were required to end their cardiovascular practice, Wichita would lose one of the few surgeons who does pediatric neonatal cardiovascular surgery, one of the few surgeons who does beating heart surgery, and one of the few surgeons who does the Ross procedure. The court found all of these procedures were wanted and needed in the critical area of heart surgery.
First, WSS contends that the trial court improperly admitted Dr. Idbeis’ report and testimony regarding his assessment of the local need for physicians because Dr. Idbeis was not qualified to give an expert opinion. However, we need not address whether the trial court erred in admitting Dr. Idbeis’ report because, even if the admission was erroneous, the error was harmless because the trial court did not rely upon the report. The report addressed a purely numeric analysis of the demand for cardiovascular surgeons in the Wichita market. As WSS recognizes in its brief, the trial court’s findings were based upon what WSS labels a “subjective” analysis by the trial court, i.e., factors such as the specialized procedures performed by the plaintiffs and their good reputations for high quality care.
Second, WSS argues this subjective analysis was inappropriate. The problem with WSS’s argument is that it is not at all clear from the record that the trial court made any finding that enforcement of the restrictive covenants would be injurious to the public welfare because of the special qualities of the plaintiffs. Clearly, the court did refuse to make a finding that enforcement of the restrictive covenants would result in a shortage of cardiovascular surgeons, stating, “[T]his case is not just about numbers.” However, when the court reviewed the Weber factors it based its ruling that enforcement of the restrictive covenants would be injurious to the public welfare on the fact that, as to Drs. Rumisek, Benton, and Fleming, the restrictive covenants failed to make accommodation of patient choice, stating, “Having found the enforcement of the restrictive covenant in Drs. Rumisek, Benton, and Fleming’s contract — contracts injurious to the public welfare by virtue of the lack of a liquidated damage buyout . . . .” No mention was made of a shortage of cardiovascular surgeons, whether measured on a subjective or objective basis. Thus, the only clear finding of injuiy to public welfare did not deal with shortage of doctors.
Any restrictive covenant agreed to by a physician is going to malee some Hmitation on patient choice. Perhaps because of this, the AMA guideline condemns only those covenants which fail to make “reasonable accommodation” for patient choice. In each case, the varying circumstances must be considered in the effort to evaluate that impact. One valid consideration in this case is the nature of the typical relationship between a patient and a cardiovascular surgeon: it is usually short-term, lasting long enough to accommodate the surgical care and follow-up.
However, the trial court did not discuss such considerations, instead basing its ruling solely upon the lack of a liquidated damages provision in the contracts of Drs. Rumisek, Fleming, and Benton. In reaching this conclusion, the trial court appears to rely upon the court’s analysis in Weber in which, after noting that Dr. Tillman could continue to practice dermatology upon paying liquidated damages as provided by his employment contract, the court stated: “Thus, as a practical matter, the people of Hays and the surrounding area may not lose Dr. Tillman’s services as a dermatologist. Further, their welfare is not injured if they have to travel further to obtain dermatology services should Dr. Tillman elect not to pay liquidated damages . ; . .” 259 Kan. at 475.
However, the Weber court did not hold that the liquidated damages provision in Dr. Tillman’s contract prevented the enforcement of the restrictive covenant from being injurious to the public welfare. Rather, the court held that the public welfare was not injured regardless of whether Dr. Tillman paid liquidated damages and stayed in Hays or complied with the restrictive covenant and left the area. It is an overly broad reading of Weber to conclude that it is necessary that all restrictive covenants in the employment contracts of physicians have liquidated damages provisions in order to be enforceable, and the lack of one does not make the contract unenforceable.
Furthermore, the provision for liquidated damages is not a provision dictating the scope of the covenant not to compete. Rather, it represents the parties’ agreement on an available remedy if the covenant is breached. This is an important distinction, especially in the context of the trial court’s findings. It is the scope of the restriction, not the presence of a remedy, which makes the covenant enforceable. The remedy for breach of the parties’ contract is either an injunction to enforce the contract or a computation of monetary damages. The trial court made no finding that the liquidated damages provision which it grafted into the contract had any relationship to actual damages.
Thus, the trial court erred in finding that the restrictive covenants of Drs. Rumisek, Benton, and Fleming were injurious to the public welfare because of the lack of a liquidated damages provision.
Did the Trial Court Err in Allowing Three of the Plaintiffs to Pay Liquidated Damages Where Their Employment Agreements Did Not Contain Such a ProvisionP
The trial court further bolstered its ruling to add the liquidated damages provision by stating it was “merely finalizing that which was not finalized.” The trial court stated that this was the “controlling ruling.” The trial judge then added, “Now, which is prob ably a little bit unusual for a Court to do, in case I was wrong in my previous decision, I am going to set forth and address the issue regarding the amendment, a possible amendment to the contracts.”
The trial court found that, given the manner in which the divisions operated independently of WSS and the history of making modifications to employment contracts without the WSS board of directors’ approval, the November 2000 vote of the division shareholders to approve the modification to the restrictive covenants did not have to be approved by the WSS board and did not have to be in writing, even though the contract required modifications to be written to be binding on WSS.
Modification of a contract, like the creation of an original contract, requires a mutual assent or a meeting of the minds. Fast v. Kahan, 206 Kan. 682, 481 P.2d 958 (1971). Despite 53 pages of transcript, there is no finding which specifies what constituted the subsequent contract under the facts of this case. Was it the November 2000 version which was approved by the shareholders and ambiguously recorded in the minutes as “[T]he restrictive covenants will he changed to provide financial restrictions after five years of geographic restrictions”? Was it the June 2001 version which included the language added by attorneys? Or, was it some other agreement? Second, the trial court also found:
“Since it was not presented for signature, this Court cannot determine the identity of physicians who would have made the prepared written restrictive covenant amendment a part of their employment terms, who would have declined any change to the restrictive covenant, and who would have required a restrictive covenant that did not add material provisions to the shareholders’ approved modification.”
In light of this finding of fact, there cannot be a determination that there was a meeting of minds as to an agreement. The trial court did not make a finding specific to Drs. Benton, Fleming, and Rumisek regarding their acceptance. Rather, the trial court’s reasoning seems to be that the possibility of acceptance still existed at the time these plaintiffs resigned.
The trial court found the modification did not apply to Dr. Idbeis’ contract because, upon his termination, Dr. Idbeis
“did not accept the modification to the restrictive covenant as part of his contract and instead chose to negotiate the buyout that was part of his 1995 contract. The Court’s of the opinion that he is bound by his election not to have his contract modified with the new liquidated damages provision.”
As WSS argues, this must mean that the trial court determined that the doctors’ acceptance or rejection of the amendment occurred during • settlement negotiations which did not take place until well over a year after the shareholder vote. Again, this finding of fact is inconsistent with the conclusion of law that the doctors had agreed to a modification. Furthermore, WSS notes that in the same letter the other doctors proposed paying an amount different than that proposed in the draft amendment and, therefore, the conclusion must be that all of the plaintiffs rejected the modification.
As the trial court stated in its “controlling ruling,” any modification would be “finalizing that which was not final.” The trial court’s alternative findings do not support the conclusion that there was a modification which the plaintiffs accepted.
Plaintiffs also make arguments based on ratification, promissory estoppel, equitable estoppel, unclean hands, and breach of fiduciary duty. None of the plaintiffs’ arguments were mentioned by the trial court as a basis for its ruling, and the trial court did not make the findings of fact necessary to support these claims or allow our review of the issues. There cannot be ratification of that which is not final, and the trial court did not make findings to support reliance, fraudulent conduct, unclean hands, or breach of a fiduciary duty.
In conclusion, the restrictive covenant in each of the plaintiff s employment contracts is enforceable. Because only Dr. Idbeis’ contract included a liquidated damages provision, only he is entitled to pay liquidated damages in lieu of ceasing the practice of medicine as provided in his restrictive covenant.
Affirmed in part, reversed in part, and remanded for entry of judgment consistent with this opinion.
GERNON, J., not participating.
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The opinion of the court was delivered by
Nuss, J:
This case requires us to review a revocable trust instrument and a subsequent letter from the grantor to the trustee. Seven months after Marie McGinley established her trust with Bank of America, N.A., (Bank) as trustee, she signed a letter directing the Bank to retain Enron stock held in the trust. The letter also stated that McGinley agreed to exonerate the Bank from any loss it sustained for continuing to retain the stock and that she relieved the Bank from any responsibility for analyzing and monitoring that stock.
Years later when the value of the Enron stock decreased significantly, McGinley sued the Bank for the amount of lost value. She alleged nine counts including, among others, breach of fiduciary duty, negligent failure to supervise employees, breach of loyalty, tortious conduct of Bank employees, violations of the Kansas Consumer Protection Act, and fraud and misrepresentation by silence.
The district court granted the Bank’s motion for summary judgment. McGinley timely appealed, and we transferred from the Court of Appeals on our own motion pursuant to K.S.A. 20-3018(c).
McGinley raises the following arguments in her brief:
1. The letter and its exculpatory provision were invalid because the Bank failed to adequately communicate and explain them to McGinley. Specifically, the letter is ineffective as a trust amendment, i.e., there is no clear and convincing evidence that McGinley intended so because it was written by the Bank on its own initiative and because of the Bank’s other conduct.
2. The exculpatory provision is invalid because of the Bank’s failure to adequately communicate its contents and effect to McGinley.
3. Even if the exculpatory provision is valid, the Bank’s failure to recommend portfolio diversification lacked good faith and was indifferent to McGinley’s best interest which places its conduct beyond the provision’s reach. Specifically, when the Bank failed to disclose to McGinley its evaluation of her trust being overconcentrated and failed to recommend diversification, the Bank was reckless and indifferent to McGinley’s best interest. Additionally, McGinley specifically asked the Bank for its professional advice as to which stocks to sell and keep in 2000, and the Bank failed to disclose that in its professional opinion the Enron investment should be lowered to less than 15% of the value of the trust.
Despite these specific arguments, the core issue is whether the language in McGinley’s trust instrument and subsequent letter shield the trustee Bank from liability. We hold the Bank is shielded and affirm the district court.
FACTS
The material facts, including those expressly determined by the district court as its findings of fact, are undisputed. On November 9, 1990, 79-year-old Marie McGinley established the Marie McGinley Revocable Trust (the trust), with Bank of America, N.A., serving as trustee. McGinley signed the instrument as grantor, the Bank signed as trustee, and her husband Francis signed expressing his consent to its provisions. The trust instrument, as well as a revocable trust instrument for Francis, were drafted by the McGinleys’ legal counsel.
The trust was revocable at Marie McGinley’s sole discretion. Article III, Revocability, states in relevant part:
“During the lifetime of Grantor this trust shall be and remain revocable, with Grantor hereby reserving the right and power, at Grantors discretion, to revoke, alter, amend, modify or change this trust indenture, in whole or in part, at any time and from time to time, without the consent of the Trustee, any beneficiary or any other person or persons by written notification to Trustee.” (Emphasis added.)
The trust was for McGinley’s benefit, with funds to be provided to her at her request. Article V, Trust for Benefit of Grantor, states in relevant part:
“During the lifetime of the Grantor, the Trustee shall pay to the Grantor as much of ihe net income of the trust as may be requested by the Grantor. Such payments thereof, in the absence of the agreement otherwise by the Grantor and the trustee, to be made monthly.
“Should the Grantor at any time request the Trustee, or should the Grantor become mentally or physically incapacitated, the Trustee hereunder is hereby authorized and empowered to use and expend from either principal or income, directly in and about for her maintenance and support, without the intervention of a Conservator or Committee, and said Trustee shall be liberal in determining the needs of the Grantor.” (Emphasis added.)
The trust provided the Bank, as trustee, with certain discretionary powers. Article VIII, Powers of the Trustee, states in relevant part:
“In addition to the powers conferred by common law, by statute, and by other provisions hereof, the Trustee and all Successor Trustees of all the trusts created hereunder, without application to or approval by any Court, shall have the following discretionary powers and authority.
“A. To manage, care for and protect the entire trust estate in accordance with its best judgment and discretion and to collect the income and profits therefrom, and to hold and retain any of the property coming into its hands hereunder in the same form of investment as that in which it is received by it, although it may not be of the character of investments otherwise permitted by law to Trustees. It shall also have full power and authority to insure against loss, improve, sell, lease, mortgage or exchange the whole or any part of such property, whether real or personal, on such terms and conditions as to it deems advisable, and to invest and reinvest any of the trust corpus held hereunder, in such amounts as it sees fit, in such property, real or personal, as it deems advisable although the same may not be of the character permitted for Trustees’ investment by the ordinary rules of law.” (Emphasis added.)
These trustee discretionary powers contained some restrictions, however, as Article VIII. A went on to reserve to McGinley the exclusive power to control all purchases and sales of trust assets. It states that
“provided, however, that during the lifetime of Grantor, [s]he shall be consulted by the Trustee as to any purchase or sale, and the Trustee shall abide by the Grantor’s decision unless, in die sole opinion of the Trustee, the Grantor is incapable of managing [her] affairs, in which event the decision of the Trustee as to all investment matters shall be final and conclusive.” (Emphasis added.)
Later, shares of Enron stock previously purchased by McGinley were transferred into the trust with other assets. Approximately 7 months after the trust instrument was signed, a form letter bearing the signature “Marie M. McGinley” and dated June 21, 1991, was apparently delivered to the Bank by her husband. Titled “Direction by Powerholder to Retain Securities,” the letter was addressed to the Bank. The district court made a finding of fact, which McGinley does not dispute on appeal, that the letter was issued in accordance with Article VIII of the trust. In language the parties characterize as “directive” the letter stated:
“I hereby direct you to continue to retain the following securities as assets of the above referenced account:
“Shares or Par Value Security Name
“1,541 shares Enron Corp.”
In language McGinley characterizes as “exculpatory” the letter went on to state:
“1 understand that you do not monitor these securities, and I hereby agree to exonerate, indemnify and hold the Bank harmless from any and all loss, damage and expense sustained or incurred by the Bank for continuing to retain these securities as assets of this account. I also relieve the Bank from any responsibility for analyzing or monitoring these securities in any way. I hereby bind all beneficiaries of the designated account, my heirs, my executors, and my assigns to tire terms of this letter. This release and indemnification will remain in force and effect until my death, my disability (as determined in accordance with the trust agreement) or my written revocation of this letter.” (Emphasis added.)
McGinley amended her trust in February 1996 via an instrument drafted by her legal counsel but essentially reaffirmed the provisions of Articles III, V, and VIII. The amendment made no reference to the June 21, 1991, letter.
The value of the Enron stock substantially increased from 1991 through 2000. All increases in the number of Enron shares were the result of stock splits, as the Bank never purchased Enron stock for the trust. At the apparent height in value, December 29, 2000, the trust contained 9,500 shares of Enron stock valued at $789,687.50 and representing approximately 77% of the total market value of the trust.
Because of declines in Enron stock value, by March 30, 2001, the shares amounted to approximately 66% of the total market value of the trust; by June 29, 2001, approximately 64%; by September 28, 2001, approximately 50%; and by December 31, 2001, approximately 2%. By the latter date, the trust contained 8,000 shares of Enron stock valued at only $4,800.
McGinley never revoked the June 21 letter, nor did she ever advise the Bank to continue to hold the Enron stock in her trust. At all relevant times, she was capable of managing her own affairs. The Bank continues to act as trustee of her trust and as trustee of Francis’ trust, of which McGinley is a beneficiary.
On January 3, 2003, after the continued substantial decline in Enron stock value, McGinley sued the Bank. On March 22, 2004, the district court granted summary judgment to the Bank, summarizing its four pages of conclusions of law as follows:
“In sum, Plaintiff, through the Directive, explicitly released Defendant from any liability resulting from retention of the stock as well as from any responsibility for monitoring or analyzing the stock. The release is in writing and contains Plaintiff s signature. In addition, the release is to be effective until Plaintiffs deadr, disability, or written revocation, none of which has occurred. Nor has Plaintiff shown that the Directive is legally ineffective. Accordingly, the Directive must stand and Defendant cannot be held liable for retaining the stock or for failing to analyze or monitor the Enron stock in the Trust.”
ANALYSIS
Standard of review
McGinley does not dispute the district court’s factual findings. Accordingly, our standard of review is de novo. Ekan Properties v. Wilhm, 262 Kan. 495, 501, 939 P.2d 918 (1997) (The trial court’s granting of summary judgment, based on undisputed facts, is a ruling of law, and this court’s standard of review is de novo.). Likewise, the interpretation and legal effect of written instruments are matters of law over which this court has unlimited review. Stone v. U.S.D. No. 222, 278 Kan. 166, 178-79, 91 P.3d 1194 (2004) (citing Kansas Gas & Electric Co. v. Will Investments, Inc., 261 Kan. 125, 128, 928 P.2d 73 [1996]).
The statutes
As mentioned, the core issue on appeal is whether the language in McGinley’s trust instrument and subsequent letter shield the trustee Bank from liability for its inaction. Consequently, before we embark upon a detailed analysis of McGinley’s specific claims, an overview is in order.
The crucial events in this case occurred during an 11- to 12-year period: from the creation of the trust in 1990, through the June 21 letter in 1991, and through the Bank’s subsequent failures to diversify the trust portfolio and to advise McGinley of the Enron stock value — especially after 2000 when the value steadily decreased. Consequently, some confusion may exist over which particular versions of the statutes applied to the numerous allegations that McGinley makes for this lengthy period. As discussed below, we need not make these specific determinations since, regardless of which of the particular laws applied, the Bank is shielded from liability. The relevant laws are contained in two categories: (1) the “general trustee powers” law and (2) the accompanying “prudent investor” law.
1990
The general trustee powers law in effect at the time of the trust’s creation in 1990 was K.S.A. 58-1201 et seq., the Uniform Trustees’ Powers Act (Act). Part, of that act, K.S.A. 1968 Supp. 58-1208, described those trusts to which.it applied and stated in relevant part:
“(a) Except as herein specifically provided in subsection (b) of this section [testamentary'trusts] or as specifically provided in the trust, the provisions of this act apply to ány trust established after the effective date of this act [1968], and in the case of any trust established after the effective date of this act, to any trust asset acquired by the trustee.”
K.S.A. 1972 Supp. 58-1202 concerned the trustees’ powers under the Act. It stated in relevant part:
“(a) The trustee has all powers conferred upon him by the provisions of this act unless limited in the trust instrument.
....
“(c) Unless the [trust] instrument expressly states otherwise the prudent man rule, as expressed in K.S.A. 17-5004, shall apply as the standard for the exercise of the powers conferred Upon a trustee by the uniform trustees’ powers act.” (Emphasis added.)
The accompanying prudent investor law in effect in 1990, K.S.A. 1987 Supp. 17-5004, described the “prudent man rule” in subsection (a)(1):
“In acquiring, investing, reinvesting, exchanging, retaining, selling and managing property for the benefit of another, a fiduciary shall exercise the judgment and care under the circumstances then prevailing, which persons of prudence, discretion and intelligence exercise in the management of their own affairs (Emphasis added.)
However, subsection (c) acknowledged per se compliance with the prudent man rule in revocable trusts in certain instances. It provides:
“In acquiring, investing, reinvesting, exchanging, retaining, selling and managing property of. a trust which is revocable or amendable, a trustee following written directions regarding the property of the trust that are received by the trustee from the person or persons then having the power to revoke or amend the trust . . . shall be deemed to have complied with the foregoing standards provided in subsection (a) [prudent investor]. The trustee is authorized to follow such written directions regardless of any fiduciary obligations to which the directing party may also be subject.” (Emphasis added.)
1993
Relevant changes in the two categories — general trustee powers and the prudent man rule — occurred in 1993. K.S.A. 1993 Supp. 58-1202(c) essentially changed its references from prudent “man” rule to prudent “investor” rule.
K.S.A’. 1993 Supp. 17-5004 in turn amended the accompanying prudent investor rule. While it elaboratéd upon the trustee’s obligations to invest, manage, and diversify under subsection(a)(l), it also added some qualifications. .
First, subsection (a)(2) expressly recognized that the trust instrument can modify the fiduciary’s obligations under the prudent investor rule and, in so doing, shields the fiduciary from liability when it relies upon those trust provisions. It stated:
“If a trust, the provisions of this section [prudent investor rule] may be expanded, restricted, eliminated or otherwise altered by express provisions of the trust instrument. The fiduciary is not liable tó a beneficiary for the fiduciary’s reasonable and good faith reliance on those express provisions.” (Emphasis added,)
Second, relettered subsection (d) simply reiterated the prior law regarding per se compliance with the prudent investor rule when a trustee is following written directions by a grantor:
“In acquiring, investing, reinvesting, exchanging, retaining, selling and managing property of a trust which is revocable or amendable, a trustee following written directions regarding the property of the trust that are received by the trustee from the person or persons then having the power to revoke or amend the trust . . . shall be deemed to have complied with the foregoing standards provided in subsection (a) [prudent investor]. The trustee is authorized to follow such written directions regardless of any fiduciary obligations to which the directing party may also be subject.” (Emphasis added.)
The application of these statutory amendments to fiduciary conduct is contained in subsection (a)(5) which states: “On and after the effective date of this act [July 1, 1993], the provisions of this section shall apply to all existing and future trusts of conservator-ships, but only as to actions or inactions occurring after the effective date of this act.”
2000
The next relevant changes occurred in 2000. The act concerning general trustee powers, K.S.A. 1993 Supp. 58-1202, remained unchanged, but the Prudent Investor Act, K.S.A. 17-5004 et seq., was repealed on July 1, 2000, and replaced at that time by K.S.A. 2000 Supp. 58-24a01 et seq., the Uniform Prudent Investor Act.
K.S.A. 2000 Supp. 58-24a01, like its predecessor 17-5004(a)(1), concerned the prudent investor rule. It provided in relevant part: “(a) Except as otherwise provided in subsection (b), a fiduciary who invests and manages trust assets owes a duty to the beneficiaries of the trust to comply with the prudent investor rule set forth in this act.”
Subsection (b) was also quite similar to its predecessor, K.S.A. 1993 Supp. 17-5004(a)(2). It expressly recognized that the trust instrument could modify the fiduciary’s obligations under the prudent investor rule and, in so doing, shield the fiduciary from liability when it relied upon those trust provisions. It states: “(b) The prudent investor rule, a default rule, may be expanded, restricted, eliminated or otherwise altered by the provisions of a trust. A fiduciary is not liable to a beneficiary to the extent that the fiduciary acted in reasonable reliance on the provisions of the trust.” (Emphasis added.) K.S.A. 2000 Supp. 58-24a01.
The application of these statutory amendments to fiduciary conduct is contained in subsection 58-24all which states: “This act applies to trusts existing on and created after the effective date of this act [July 1, 2000]. As applied to trusts existing on the effective date of this act, this act governs only decisions or actions occurring after that date.”
2001
The next relevant changes occurred in 2001. Effective July 1, 2001, K.S.A. 2001 Supp. 58-1202(c) changed the reference from the recently repealed K.S.A. 17-5004 to 58-24a02. Subsection (c) now reads: “Unless the instrument expressly states otherwise the prudent investor rule, as expressed in K.S.A. 2001 Supp. 58-24a02, and amendments thereto, shall apply as the standard for the ex ercise of the powers conferred upon a trustee by the uniform trustees’ powers act.”
Its companion, K.S.A. 2001 Supp. 58-24a02, was also now amended to establish at subsection (g) the language which had appeared earlier in K.S.A. 1993 Supp. 17-5004(d) and K.S.A. 1987 Supp. 17-5004(c) regarding per se compliance with the prudent investor rule:
“In acquiring, investing, reinvesting, exchanging, retaining, selling and managing property of a trust which is revocable or amendable, a trustee following written directions regarding the property of the trust that are received by the trustee from, the person or persons then having the power to revoke or amend the trust . . . shall be deemed to have complied with the foregoing standards provided in subsection (a) [prudent investor]. The trustee is authorized to follow such written directions regardless of any fiduciary obligations to which the directing party may also be subject.” (Emphasis added.)
2003
Effective January 1, 2003, K.S.A. 58-1201 et seq., the Uniform Trustees’ Powers Act, was repealed and replaced by the Kansas Uniform Trust Code (KUTC), K.S.A. 2003 Supp. 58a-101 et seq. McGinley filed suit just 2 days later. While the KUTC therefore does not apply to the trustee Bank’s acts in this case (see K.S.A. 2003 Supp. 58a-1106[a][5]), it does demonstrate the continuity of Kansas statutory law on trust issues.
For example, despite the arrival of the KUTC, the Uniform Prudent Investor Act (K.S.A. 2003 Supp. 58-24a01 et seq.) still governs the investment and management of trust assets. See K.S.A. 2003 Supp. 58a-901. Additionally, K.S.A. 2003 Supp. 58a-1006 remained consistent with prior law (K.S.A. 1993 Supp. 17-5004[a][2] and K.S.A. 2000 Supp. 58-24a01[b]). It states: “A Trustee who acts in reasonable reliance on the terms of the trust as expressed in the trust instrument is not liable to a beneficiary for a breach of trust to the extent the breach resulted from the reliance.” (Emphasis added.)
A synthesis of these Kansas statutes leads us to conclude that during the time period relevant to the instant case the following principles apply:
1. A trustee which reasonably and in good faith relies upon express provisions of a trust instrument — including those which alter the prudent investor rule — is not liable to a beneficiary for breach of trust to the extent the breach resulted from the reliance.
2. A trustee which follows written directions regarding the property of the trust that are received from the grantor of a revocable trust:
a. Shall be deemed to have complied with the prudent investor rule; and
b. Is authorized to follow such written directions.
Discussion
McGinley’s petition asserted nine, somewhat overlapping, causes of action. The district court’s summary judgment decision correctly condensed them as follows: (1) breach of fiduciary duty to plaintiff; (2) negligent failure to supervise Bank employees in regard to trust assets; (3) breach of loyalty by negligently or intentionally failing to disclose its business relationship with Enron and/ or its subsidiaries; (4) tortious conduct of bank employees; (5) violations of the Kansas Consumer Protection Act (KCPA); and (6) fraud and misrepresentation by silence due to the failure to disclose the conflict of interest with Enron. The court then disposed of all claims by relying upon the language of the June 21 letter and McGinley’s failure to show the letter was ineffective. On appeal, McGinley frames a number of her basic arguments in ways different than the district court and even her own pleadings, which makes it difficult to match the district court’s holdings with her contentions.
McGinley’s First Argument: The letter and its exculpatory provision were invalid because the Bank failed to adequately communicate and explain them to McGinley. Specifically, the letter is ineffective as a trust amendment, i.e., there is no clear and convincing evidence that McGinley intended so because it was written by the Bank on its own initiative and because of the Bank’s other conduct.
The district court held:
“Defendant’s Motion for Summary Judgment is based on the contention that Plaintiffs Directive . . . [June 21, 1991 letter] defeats her claims and releases Defendant from any liability. . . .
....
“Plaintiff, on the other hand, asserts that Defendant’s rationale fails because the Directive is legally ineffective since it did not comply with the Trust Agreement and the then existing law. According to Plaintiff, K.S.A. 58-1202 required that the original Trust document include specific language providing that the Trust was not to follow the prudent investor rule, or the rule would, in fact, be the controlling standard. However, K.S.A. 58-24a01 provides that the prudent investor rule is a default rule that may be ‘expanded, restricted, eliminated or otherwise altered by the provisions of a trust.’ K.S.A. 58-24a01(b). Here, the Trust instrument essentially eliminates the prudent investor rule by providing that the Trustee must abide by Plaintiff s decisions. Plaintiff s decisions included retaining the Enron stock and releasing Defendant from any liability for losses due to retaining the stock.
“Furthermore, K.S.A. 58-24a01 precludes liability when a fiduciary acts in‘reasonable reliance on the provisions of the trust.’ The Trust specifically provided that the Trustee must abide by McGinley’s decisions. It follows that, because Defendant reasonably relied on Plaintiff s decision to retain the stock, Defendant cannot be held liable.”
We agree with the district court’s results but for slightly different reasons. See Jarboe v. Board of Sedgwick County Comm’rs, 262 Kan. 615, 623, 938 P.2d 1293 (1997) (judgment of trial court may be upheld on appeal although court may have relied upon the wrong ground). Here, the Bank was trustee of a revocable trust which McGinley established through her own legal counsel. As grantor, her intent is paramount. Godley v. Valley View State Bank, 277 Kan. 736, 741, 89 P.3d 595 (2004) (primary objective of trust law is to carry out the settlor’s intent).
Consequently,
“ '[i]f the text of the trust indenture is plain and unambiguous, the intent of the trustor (settlor) can be ascertained from the language used. [Citation omitted.] Where construction is necessary, [however,] the court must put itself in the situation of the trustor when the trustor made the trust instrument and, from consideration of the language used in the entire instrument determine the intent of the trustor. [Citations omitted.] The cardinal rule is that the intention of the trustor as gathered from the whole instrument must control unless contrary to settled principles of law.’ [Citation omitted.]” 277 Kan. at 741-42.
It is clear from the specific language used in Section VIII. A of the trust that McGinley intended to carve out, from the general discretionary powers granted to the Bank as trustee, an exclusive authority for herself regarding all purchases and sales of trust as sets. That section states the Grantor “shall be consulted by the Trustee as to any purchase or sale, and the Trustee shall abide by the Grantor s decision.”
Other trust provisions reveal McGinley also intended to retain a great deal of overall power. In Article III, she retained exclusive authority to revoke, alter, amend, modify, or change the trust instrument, in whole or in part, at any time without the consent of the trustee or any other entity or person. In Article V, she retained exclusive authority to direct the trustee to make payments for her benefit, not only from income but also principal.
We therefore hold that through the express provisions of Article VIII. A, as drafted by McGinley’s own counsel, she reduced the Bank’s responsibilities contained in the prudent investor rule, an alteration which is clearly authorized by the statutes previously discussed. The alteration required the Bank to abide by her decisions on buying and selling trust assets.
Pursuant to McGinley’s retained authority to control buying and selling trust assets under Article VIII. A, she also signed the June 21, 1991, “Direction by Powerholder to Retain Securities” which directed the Bank to continue to retain the Enron stock. There, she expressly agreed to exonerate, indemnify and hold the Bank harmless from any and all loss, damage and expense sustained or incurred by the Bank for continuing to retain the Enron stock. Moreover, McGinley also expressly acknowledged that the Bank does not, and would not, monitor the Enron stock. She not only specifically relieved the Bank from any responsibility to monitor the stock, but also from any responsibility to analyze it. The “release and indemnification” was to remain in full force and effect until her death, disability (as determined in accordance with the trust instrument) or her written revocation. None of these events has occurred: she attended oral arguments at this court, her counsel therein admitted that disability has never been an issue, and she never has revoked the letter.
Her June 21 letter essentially told the Bank: “Do not sell my Enron stock until I say otherwise in writing, or die or become disabled. There is no need to bother me with asking my permission to sell it and therefore no need to monitor or analyze it. I will let you know.” The letter was merely one manifestation of her right, reserved under the trust, to control the Bank’s sale of trust assets.
It is undisputed that at the district court level and on appeal the Bank has asserted the letter as the basis for its failure to act from 1991 forward. We therefore hold that the Bank took no action regarding the Enron stock because of the contrary “written directions” from the grantor — the person with the power to revoke or amend the trust. Consequently, under the statutes discussed earlier, the Bank complied with the prudent man/investor rule as a matter of law. Per these same statutes, the Bank was authorized to follow those directions.
McGinley argues, however, that the letter is invalid as an amendment to her trust because it does not meet the requirements, as had the 1996 formal amendment, and because there is no clear and convincing evidence that she intended the letter to be an amendment. The district court held that she had not shown the letter was legally ineffective, and we agree. The main problem with McGinley’s argument is that the letter is not inconsistent with the trust instrument such that an amendment is required. Once again, the letter simply evidences the exercise of her retained right, under Article VIII. A, to control trust asset sales by directing the Bank to hold the Enron stock.
McGinley also argues that the Bank’s conduct evidences that the letter was an ineffective amendment. On this issue, the district court held:
“Finally, Plaintiff contends that Defendant rendered the Directive legally ineffective by selling some Enron stock. Through this argument, Plaintiff seems to indicate that Defendant could release itself from its obligations to retain the Enron stock by simply selling some of the stock. This argument also fails since the language of the Directive clearly provides that it is to remain in effect until Plaintiff s death, disability, or written revocation. It is undisputed that none of the events required to render the document legally ineffective have occurred. Thus, Plaintiff has failed to show that Defendant’s action of selling some of the stock rendered the disclaimer ineffective.”
We agree. The same holds true for McGinley’s argument that internal Bank documents state there was “no investment directive on file” and “no investment restrictions.” Regardless of how the Bank described the trust in its internal documents, the legal effect of the express and unambiguous terms of the trust instrument control. See Guy Pine, Inc. v. Chrysler Motors Corp., 201 Kan. 371, 376, 440 P.2d 595 (1968) (“One party to a contract cannot unilaterally change the terms of the contract.”).
The essence of McGinley s argument is that the Bank’s actions operate as parol evidence to aid in this court’s interpretation of the trust instrument and the June 21 letter. The problem with this argument is that the trust instrument, and its resultant letter, are clear and unambiguous on their faces. Accordingly, there is no need to resort to parol evidence, i.e., conduct of a party which might aid in interpretation of those documents. See Godley v. Valley View State Bank, 277 Kan. 736, Syl. ¶ 2 (trust); Frazier v. Railway Co., 97 Kan. 285, 288, 154 Pac. 1022 (1916) (letter).
McGinley’s Second Argument: The exculpatory provision is invalid because of the Bank’s failure to adequately communicate its contents and effect to McGinley.
The district court held:
“Plaintiff also contends that the Directive is ineffective because Defendant failed to disclose the risks associated with the disclaimer. However, in her Directive, Plaintiff explicitly released Defendant from any and all liability sustained or incurred as a result of retaining the stock. Plaintiff further released Defendant from any responsibility for analyzing or monitoring the securities. The language of the Directive alone clearly indicates that Plaintiff was fully aware that there were risks associated with the disclaimer and Plaintiff was, at all times, capable of managing her own affairs.”
We acknowledge that the June 21 letter contains language concerning a release of liability which could therefore suggest McGinley “was fully aware that there were risks associated with the disclaimer.” We further acknowledge the Bank’s argument, based upon analogizing the letter to a contract, that a person who signs such a document is bound by its terms regardless of his or her failure to understand them, in the absence of fraud, undue influence, or mutual mistake as to the contract’s contents. Rosenbaum v. Texas Energies, Inc., 241 Kan. 295, 299, 736 P.2d 888 (1987). Nevertheless, these acknowledgments do not fully address McGinley’s allegation on appeal, i.e., that the trustee Bank abused its fiduciary relationship with its beneficiary (McGinley) because some evidence reveals that instead of fully and affirmatively communicating the contents and effect of the letter to McGinley personally, it merely obtained her signature through her husband. See Brown v. Foulks, 232 Kan. 424, 657 P.2d 501 (1983) (“fiduciary relation” has reference to any relationship of blood, business, friendship, or association in which one of the parties reposes special trust and confidence in the other who is in a position to have and exercise influence over the first party).
However, McGinley provides no relevant authority for her argument that the letter s exculpatory provision is invalid because of tíre Bank’s abuse of the fiduciary relationship. Her references to the Restatement (Second) of Trusts, § 222 (1959) and K.S.A. 2002 Supp. 58a-1008 are inapplicable primarily because they concern invalidation due to a fiduciary’s placement of exculpatory provisions in trust instruments, not the grantor’s subsequent letters to the trustee. See English, The Kansas Uniform Trust Code, 51 Kan. L. Rev. 311, 344 (2003). These authorities certainly do not concern letters issued in accordance with trust provisions that had been drafted by a grantor’s own legal counsel.
Similarly unpersuasive is her only other cited authority, the opinion of her expert witness, Steve Ramirez. Specifically, he opines that the letter was not an effective disclaimer of the Bank’s duties because the Bank failed to disclose the risks of the exculpatory provision and failed to disclose that while the provision was intended to protect the interests of the Bank, there was little or no likelihood that it would protect the assets of the trust. He cites no legal authority for this specific opinion, however.
Moreover, an expert witness’ opinions on the legal validity of the exculpatory provision are not determinative of the issue. The validity of the document and its provisions is a matter of law for this court’s determination. In re Estate of Sanders, 261 Kan. 176, 181, 929 P.2d 153 (1996) (legal effect of a written instrument is a question of law for the court to decide; it may be construed and its legal effect determined by the appellate court regardless of the construction made by the trial court). See also KPERS v. Kutak Rock, 273 Kan. 481, 493, 44 P.3d 407 (2002) (The existence of a duty being a matter of law for the court’s determination, the legal conclusions of an expert witness do not settle the analysis.). Finally, while McGinley also makes a vague reference to the common law, she does not point this court to anything more specific.
Clearly the better practice for the Bank would have been to have communicated to McGinley the letter’s contents and effect before she signed it, and to have notified her of evolving circumstances, e.g., steady decreases in Enron’s value which reduced the investment portfolio’s overall worth, or steady increases, though desirable, which unbalanced the portfolio. However, McGinley fails to direct this court to any relevant authority showing the Bank had a legal obligation to do so under the facts of this case.
In short, we do agree with the district court’s conclusion but on grounds other than the ones it relied upon. See Jarboe v. Board of Sedgwick County Comm’rs, 262 Kan. 615, 623, 938 P.2d 1293 (1997).
McGinley’s Third Argument: Even if the exculpatory provision is valid, the Bank’s failure to recommend portfolio diversification lacked good faith and was indifferent to McGinley’s best interest which places its conduct beyond the reach of the provision. Specifically, when the Bank failed to disclose to McGinley its evaluation of her trust being overconcentrated and failed to recommend diversification, the Bank was reckless and indifferent to McGinley’s best interest. Additionally, McGinley specifically asked the Bank for its professional advice as to which stocks to sell and which stocks to keep in 2000, and the Bank failed to disclose that in its professional opinion the Enron investment should be lowered to less than 15% of the value of the trust.
The district court did not address this issue in its memorandum decision, and the Bank argues that McGinley first raised it in her brief. The record on appeal reveals McGinley argued this issue, without objection by the Bank, at the hearing on the Bank’s motion for summary judgment. Accordingly, it is sufficiently raised for our consideration on appeal. See Jones v. Hansen, 254 Kan. 499, 867 P.2d 303 (1994) (plaintiff raised claim only upon oral argument to trial court on defendant’s motion to dismiss, and issue is a question of law that may be decided on established facts).
As with earlier arguments, this one fails under the Kansas statutes providing that a trustee which follows written directions regarding the property of the trust that are received from the grantor of a revocable trust shall not only be deemed to have complied with the prudent investor rule but shall also be authorized to follow such instructions. Until such time as McGinley died, became disabled in the Bank’s opinion, or revoked her letter in writing — none of which occurred in the instant case — the Bank was to follow her instructions to retain the Enron stock and to not monitor or analyze it. These instructions abrogated any Bank obligation to disclose to McGinley any overconcentration of Enron stock or to recommend diversification, e.g., disclose its opinion about reducing the stock to less than 15% of the trust’s overall value. As mentioned, it is undisputed that at the district court level and on appeal, the Bank has asserted the letter as the basis for its failure to act from 1991 forward.
In effect, McGinley argues that when circumstances evolve, the trustee should override the decisions of the grantor, i.e., protect her from herself. Overriding would be inconsistent with the Kansas statutes previously discussed because the trustee is only protected when following written instructions from the grantor or when relying upon the express provisions of the trust instrument, not when directly contradicting them.
McGinley references only Rajala v. Allied Corp., 919 F.2d 610, 614 (10th Cir. 1990), for her proposition, “The duty to disclose arises under Kansas law when there is a fiduciary relationship which may be created by contract or may arise from the relationship of the parties.” Although the court in Rajala discusses Kansas fiduciary duty law, it does not mention a duty to disclose, particularly after the trustee has received a written directive from the grantor to retain the stock and to not analyze or monitor it.
As for McGinley’s argument regarding tire failure of the Bank to disclose in its professional opinion the Enron investments should be lowered to less than 15% of the value of the trust, she cites no authority other than her expert witness, i.e., “Ramirez believes it was a breach of the Bank’s fiduciaiy duties.” Her record references, however, do not support this assertion. While one reference expresses that the Bank has some general fiduciary duties as a professional trustee, the others primarily concern the Bank’s alleged conflict of interest because of its national involvement in Enron. This issue was argued to the district court but abandoned on appeal. See Goldbarth v. Kansas State Board of Regents, 269 Kan. 881, 884, 9 P.3d 1251 (2000) (An issue not briefed by the appellant is deemed waived or abandoned.); see also KPERS v. Kutak Rock, 273 Kan. 481, 493, 44 P.3d 407 (2002) (The existence of a duty being a matter of law for the court’s determination, the legal conclusions of an expert witness do not settle the analysis.).
We have thoroughly reviewed other arguments suggested by McGinley scattered throughout her brief and conclude they have no merit.
Affirmed.
Luckert, and Gernon, JJ., not participating.
Rulon, C.J., assigned. | [
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On May 30, 2003, the court placed the respondent, Gary L. Conwell, on supervised probation for a 2-year period. See In re Conwell, 275 Kan. 902, 69 P.3d 589 (2003). The respondent has filed an affidavit verifying his compliance with the conditions imposed on him by this court. The Disciplinary Administrator’s office verified that the respondent complied with the conditions and recommends that the respondent’s probation be terminated.
It Is Therefore Ordered that the respondent’s 2-year supervised probation be terminated.
It Is Further Ordered that this order shall be published in the Kansas Reports.
Dated this 30th day of June, 2005. | [
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|
The opinion of the court was delivered by
Beier, J.:
Defendant Brilon Jones appeals the district court’s summary denial of his motion to correct an illegal sentence.
Jones was charged in 1993. He stands convicted on one count of felony murder, two counts of aggravated robbery, one count of burglary, and one count of theft. He was sentenced to life for felony murder, 10 to 40 years for each aggravated robbery conviction, 1 to 4 years for burglary, and 1 to 5 years for theft. The life sentence is consecutive to the concurrent sentences on the four other counts. Jones’ convictions were affirmed in State v. Jones, No. 70,532, unpublished opinion, filed January 27, 1995.
Now an inmate at the El Dorado Correctional Facility, Jones filed this motion pro se in September 2003. The district court denied the motion on the ground that it was barred by res judicata because of Jones’ prior direct appeal.
Jones now asserts that the district court erred by refusing to appoint counsel and permit a hearing.
Under K.S.A. 22-3504(1), the court may correct an illegal sentence at any time. We have long authorized the district court, however, to make a preliminary examination of such a posttrial motion to determine whether the movant has raised substantial issues of fact or law. If the district court determines that no such issues are raised, the motion may be denied summarily. See, e.g., State v. Davis, 271 Kan. 892, 894, 26 P.3d 681 (2001); State v. Duke, 263 Kan. 193, 196, 946 P.2d 1375 (1997). Although we have said that our standard of review on whether to hold an evidentiary hearing on a motion to correct an illegal sentence is subject to an abuse of discretion standard, Davis, 271 Kan. at 894, the question of whether a sentence is illegal actually raises an issue of law, reviewable de novo by an appellate court. State v. Jones, 272 Kan. 674, 677, 35 P.3d 887 (2001).
An illegal sentence is one imposed by a court without jurisdiction; one that does not conform to the statutory provisions, either in the character or the term of the punishment authorized; or one that is ambiguous with respect to the time and manner in which it is to be served. State v. Harper, 275 Kan. 888, 890, 69 P.3d 1105 (2003); Carmichael v. State, 255 Kan. 10, 16, 872 P.2d 240 (1994).
In essence, Jones argues that his sentences on the aggravated robbery convictions are illegal because they were imposed by a court that lacked jurisdiction. In his view, the district court divested itself of jurisdiction because of variance between the language used in the information and the language used in the juiy instructions on aggravated robbery. The information contained all of the essential elements of the crimes because it stated that Jones had taken property from the “person or presence” of his victims. See K.S.A. 21-3426; K.S.A. 21-3427 (defining robbery, aggravated robbery). In contrast, Jones asserts, his jury was erroneously instructed that the State must prove the property was taken only from the “person” of the victims.
Jones cites State v. Wilson, 240 Kan. 606, 731 P.2d 306 (1987), to support his argument. In Wilson, we held the prosecutor’s oral motion to amend an information was insufficient where the prosecutor never filed an amended information, never stated on the record the changes the State wished to make, and faded to strike out or write in the pertinent language on the document on file. 240 Kan. at 608. Wilson is of no help to Jones.
There simply was no amendment in this case, and thus no threat to jurisdiction. See State v. Little, 26 Kan. App. 2d 713, 994 P.2d 645, rev. denied 269 Kan. 938 (2000) (upholding district court’s decision to modify jury instruction and complaint during jury deliberations to include phrase “or presence”).
We note further that, to the extent the jury instructions narrowed the situations that would qualify as aggravated robbery, Jones’ chance of conviction was reduced. As recognized by the Court of Appeals in State v. Robinson, 27 Kan. App. 2d 724, 728, 8 P.3d 51 (2000), “[pjersonal property can be taken from a victim’s presence’ without being taken from his or her person,’ but it cannot be taken from his or her person without being taken in his or her ‘presence.’ ” In addition, the evidence at Jones’ trial clearly supported the jury’s conclusion that he had taken property from the “person” of his victims. One victim’s wallet was taken from his person; the other victim’s jewelry was taken from his person.
In short, Jones cannot, as a matter of law, successfully pursue this motion to correct an illegal sentence, because his sentence does not qualify as illegal. His motion raised no substantial issues of fact or law necessitating appointment of counsel or a hearing.
Affirmed.
Lockett, J., Retired, assigned. | [
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|
Per Curiam:
This is an original proceeding in discipline filed by the Disciplinary Administrator’s office against Steven L. Islas, of Wichita, an attorney admitted to practice law in Kansas.
The formal complaint filed against respondent alleges violations of KRPC 8.4(b) and (c) (2004 Kan. Ct. R. Annot. 485) (misconduct), KRPC 1.2 (2004 Kan. Ct. R. Annot. 350) (scope of representation), 1.4(a) (2004 Kan. Ct. R. Annot. 367) (communication). Respondent filed an answer admitting the violations alleged in Count I and denying the violations set out in Count II.
A hearing before the panel of Kansas Board for Discipline of Attorneys was held on December 9, 2004, in Topeka, Kansas. Respondent appeared in person and through counsel, Lariy Linn.
The final hearing report of the panel makes the following findings of fact, conclusions of law, and recommendations to this court:
FINDINGS OF FACT
COUNT I
“2. On approximately June 20, 2002, the Respondent reported, through his attorney, Larry Linn, that he had been charged in the Sedgwick County District Court in case number 02CR1535 with three (3) nonperson felonies. In addition, the Respondent was also charged with a misdemeanor. The charges included: two counts of making a false information, making a false application for a driver’s license, and driving while suspended.
“3. On March 20, 2003, a jury convicted the Respondent as charged.
“4. The Respondent appealed his conviction to the Kansas Court of Appeals, case number 03-90856-A. After receiving a stipulation filed by the parties, on April 6, 2004, the Court dismissed the case. Thereafter, on April 9, 2004, the Court issued its mandate and directed that the sentence be executed.
“5. On June 18,2003, because the Respondent had been convicted of a felony crime and pursuant to Kan. Sup. Ct. R. 203, the Kansas Supreme Court temporarily suspended the Respondent from the practice of law, pending the final disposition of the disciplinary proceedings.
“6. Prior to the hearing on this matter, the Respondent filed a motion to set aside the temporary suspension. After consideration, the Court denied the Respondent’s motion.”
COUNT II
“7. In 2002, Jamie Young retained the Respondent to assist him with a post-divorce child custody and support matter. At the time Mr. Young retained the Respondent he was obligated to pay $237.00 in monthly child support.
“8. On July 31, 2002, the Respondent filed a motion for change of custody in behalf of Mr. Young. The Respondent scheduled a hearing on the motion for August 12, 2002. The hearing on the motion was continued to January 17, 2003.
“9. On approximately December 15, 2002, and continuing to approximately March 15, 2002, Mr. Young was laid off of work. As a result, Mr. Young requested that the Respondent file a motion to reduce child support during that period of time.
“10. On December 18, 2002, the Respondent filed a motion for reduction in child support and confirmation of income tax dependency exemption in behalf of Mr. Young. While it appears that the Respondent scheduled a hearing on the motion for December 23, 2002, there is nothing in our record establishing what occurred on December 23, 2002.
“11. It appears that both of the motions filed by the Respondent were to be taken up by the Court on January 17, 2003. However, prior to the hearing, the Respondent withdrew the motion to change custody and settled the child support issue with opposing counsel. The Respondent was ordered to prepare an order reflecting the agreement of the parties. The Respondent failed to do so.
“12. Recause the Respondent failed to prepare the order reflecting the agreement of the parties from the January 17, 2003, hearing, and because Mr. Young had not made a child support payment since January 11, 2003, on April 12, 2003, opposing counsel filed a motion to settle journal entry, a motion for payment of back child support, and a motion to reinstate previous child support amount. Opposing counsel scheduled the hearing for April 29, 2003. The Respondent did not inform Mr. Young that the motion had been filed or that the hearing had been scheduled.
“13. The Respondent and opposing counsel entered an agreement, settling the issues pending before the Court. The Court directed opposing counsel to draft an order reflecting the agreement of the parties. Thereafter, the Respondent signed the order prepared by opposing counsel.
“14. The Respondent did not discuss the matter with Mr. Young prior to entering the agreement with opposing counsel. Additionally, the Respondent did not discuss the matter with Mr. Young prior to signing the order prepared by opposing counsel. As a result of the Respondent’s agreement with opposing counsel, Mr. Young’s child support increased from $237.00 to $724.00.
“CONCLUSIONS OF LAW
“1. Rased upon the findings of fact, the Hearing Panel concludes as a matter of law drat the Respondent violated KRPC 1.4, KRPC 8.4(b), and KRPC 8.4(c), as detailed below.
“2. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and prompdy comply with reasonable requests for information.’ In this case, the Respondent violated KRPC 1.4(a) when he failed to keep Mr. Young advised regarding the status of the post-divorce matters. The Respondent failed to inform Mr. Young that he received a motion from opposing counsel in April, 2003. The Respondent failed to inform Mr. Young that the motion was scheduled for hearing. The Respondent failed to inform Mr. Young that he reached an agreement with opposing counsel regarding the motion filed in April, 2003. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“3. Kan. Sup. Ct. R. 202 details the ‘grounds for discipline,’ in pertinent part, as follows:
‘A certificate of a conviction of an attorney for any crime or of a civil judgment based on clear and convincing evidence shall be conclusive evidence of the commission of that crime or civil wrong in any disciplinary proceeding instituted against said attorney based upon the conviction or judgment. . . .’
‘Id. (emphasis added). Accordingly, when an attorney is convicted of a crime, a ‘certificate of conviction’ is conclusive evidence of the commission of the crime in disciplinary proceedings. In this case, the jury found the Respondent guilty of three felony crimes and one misdemeanor crime. Rased upon Kan. Sup. Ct. R. 202, the Hearing Panel concludes that the Respondent made two false writings, tnade a false application for a driver’s license, and drove when his license to do so had been revoked.
“4. ‘It is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.’ KRPC 8.4(b). The Respondent violated this rule when he committed the acts which gave rise to his convictions for making false writings and making a false application for a driver’s license. Thus, the Hearing Panel concludes that the Respondent violated KRPC 8.4(b).
“5. ‘It is [also] professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The Respondent engaged in dishonest conduct when he informed the Department that in the last three years he had not experienced or been treated for any blackout spells, dizzy spells, epilepsy seizures, or loss or alteration of consciousness. Accordingly, die Hearing Panel concludes that by providing false information to the Department, the Respondent ‘engage[d] in conduct involving dishonesty, fraud, deceit or misrepresentation,’ in violation of KRPC 8.4(c).”
The hearing panel did not find a violation of KRPC 1.2.
RECOMMENDATION
The panel applied the ABA Standards for Imposing Lawyer Sanctions and pursuant to Standard 3, the panel considered the following factors:
“Duty Violated. The Respondent violated his duty to the legal profession to maintain personal integrity. Additionally, the Respondent violated his duty to his client to provide adequate communication.
“Mental State. The Respondent knowingly violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury. The Respondent’s dishonest conduct and criminal convictions tarnished the reputation of the legal profession. Mr. Young incurred additional attorney fees in getting the May 20, 2003, order amended.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent has been previously disciplined on two occasions. On June 12, 1997, the Disciplinary Administrator’s office informally admonished the Respondent for having violated KRPC 1.3. Then, on January 22, 1999, the Kansas Supreme Court ordered that the Respondent be indefinitely suspended from the practice of law for having violated KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 8.4(d), and Kan. Sup. Ct. R. 207. The Court, however, granted the Respondent probation from the indefinite suspension. In re Islas, 266 Kan. 679, 687, 972 P.2d 764 (1999). On April 25, 2001, the Respondent was released from probation after having successfully completed the plan of probation. In re Islas, 271 Kan. 310, 23 P.3d 801 (2001).
“Dishonest or Selfish Motive. The Respondent’s misconduct was motivated by dishonesty. In attempts at initially keeping, and later reinstating, his license to drive, the Respondent provided false information to the Department on three occasions. The Respondent’s misconduct was motivated by dishonesty and selfishness.
“Illegal Conduct. The Respondent engaged in illegal conduct when he provided false information to the Department on three occasions and when he drove when his license to do so had been revoked.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Personal or Emotional Problems if Such Misfortunes have Contributed to a Violation of die Kansas Rules of Professional Conduct. The Respondent suffers from diabetes and is insulin dependent.
“Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent is an active and productive member of tire bar in Wichita, Kansas. He enjoys the respect of his peers and clients and generally possesses a good character and reputation as evidenced by three letters received by the Hearing Panel.
“Physical Disability. The Respondent suffers from diabetes and has for a number of years. The Respondent is insulin dependent and takes four injections daily.
“Imposition of Other Penalties or Sanctions. Following a trial by jury, the Respondent was convicted of three felony crimes and one misdemeanor crime. The Respondent served his sentence and the Court discharged the Respondent from probation.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Reprimand is generally appropriate when a lawyer negligently fails to provide a client with accurate or complete information, and causes injury or potential injury to the client.’
Standard 4.63. Thus, if the Respondent was before the Hearing Panel for only the complaint filed by Mr. Young, the Hearing Panel would, most likely, recommend that the Respondent be censured and that the censure be published in the Kansas Reports. However, the complaint filed by Mr. Young was not the only complaint considered by the Hearing Panel. The following Standards are appropriate to consider regarding the Respondent’s misconduct in committing the criminal offenses.
“Disbarment is generally appropriate when:
‘(a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or
‘(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.’
Standard 5.11.
‘Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.’
Standard 5.12.
‘Disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system.’
Standard 7.1.
‘Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.’
Standard 7.2.
“While the Respondent’s convictions for making false writings, making a false application for a driver’s license, and driving when his license was revoked, are serious, the Hearing Panel believes that indefinite suspension is the appropriate recommendation in this case. An indefinite suspension with the requirement that the Respondent undergo a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219 should provide sufficient protection for the public, while, at the same time, providing the Respondent with a hope that he may be reinstated to the practice of law at some point in the future. The Hearing Panel recommends that the indefinite suspension not be retroactive to the date of the temporary suspension. Rather, the Hearing Panel recommends that the effective date of the indefinite suspension be effective the date the Court releases its opinion.”
The respondent does not take exception to the panel’s findings and recommendation of indefinite suspension. Respondent does take exception to the panel’s recommended date for the commencement of the indefinite suspension.
We conclude that the panel’s findings of fact established by clear and convincing evidence that the respondent violated KRPC 8.4(b) and (c) (2004 Kan. Ct. R. Annot. 485) and 1.4(a) (2004 Kan. Ct. R. Annot. 367). We agree with and adopt the panel’s conclusions of law and recommendations.
It Is Therefore Ordered That Steven L. Islas be and he is hereby indefinitely suspended from the practice of law in the state of Kansas, effective the date of this opinion.
It Is Therefore Ordered that Steven L. Islas shall comply with Supreme Court Rule 218 (2004 Kan. Ct. R. Annot. 301) and in the event the respondent would seek reinstatement, he shall comply with Supreme Court Rule 219 (2004 Kan. Ct. Annot. 312).
It Is Further Ordered that this opinion be published in the official Kansas Reports and that respondent pay the costs of these proceedings.
Lockett, J., Retired, assigned. | [
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The opinion of the court was delivered by
Allegrucci, J.:
Dana J. Mansaw appeals his conviction in Wyandotte County of possession of cocaine, K.S.A. 65-4160(a). A unanimous panel of the Court of Appeals affirmed. State v. Mansaw, 32 Kan. App. 2d 1011, 93 P.3d 737 (2004). We granted Man-saw’s petition for review.
Mansaw contends the trial court erred (1) in denying his motion to suppress evidence found during the search incident to his arrest; (2) in finding sufficient evidence to sustain his conviction; and (3) in concluding Mansaw’s statutory right to a speedy trial had not been violated.
We have carefully reviewed the entire record and conclude the Court of Appeals’ opinion adequately addressed the issues and reached the correct conclusion on each of the three issues. We, therefore, adopt the opinion of the Court of Appeals and affirm both the Court of Appeals and the district court. See Supreme Court Rule 7.042(c) and (f) (2004 Kan. Ct. R. Annot. 51).
Gernon, J., not participating.
Larson, S.J., assigned. | [
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On March 8, 2002, this court in In re Singleton, 273 Kan. 171, 41 P.3d 836 (2002), placed the respondent on a 2-year probation with specific conditions of supervision and named N. Trip Shawver to supervise respondent during said probation.
On January 4, 2005, Frank D. Diehl, deputy disciplinary administrator, filed a motion to revoke the probation of the respondent following an expedited hearing as provided by Supreme Court Rule 211(g)(10) (2004 Kan. Ct. R. Annot. 275). The office of the Disciplinary Administrator alleged facts showing that respondent has violated KRPC 3.2 (2004 Kan. Ct. R. Annot. 440), 3.3 (2004 Kan. Ct. R. Annot. 444), 3.4 (2004 Kan. Ct. R. Annot. 449), and 8.4 (2004 Kan. Ct. R. Annot. 485), all in violation of the terms and conditions of respondent’s probation. Pursuant to Supreme Court Rule 211(g)(10), M. Kathleen Babcock, chairperson of the Kansas Board for Discipline of Attorneys, appointed Jack Scott Mclnteer, Board member, to conduct an expedited hearing.
Board member Mclnteer conducted an expedited hearing on January 25, 2005, at the Sedgwick County Courthouse, Wichita, Kansas. Respondent appeared in person, pro se. The office of the Disciplinary Administrator appeared by and through Frank D. Diehl, Deputy Disciplinary Administrator.
The expedited hearing report of Board member Mclnteer makes the following findings of fact, conclusions of law, and recommendation to this court:
“FINDINGS OF FACT
....
“2. On March 8, 2002, the Kansas Supreme Court suspended the imposition of discipline and placed the Respondent on probation for twenty-four months, subject to the following terms and conditions:
....
“4. Additional Violations. The Respondent shall not violate the terms of his probation or the provisions of the Kansas Rules of Professional Conduct. In the event that the Respondent violates any of the terms of probation or any of the provisions of the Kansas Rules of Professional Conduct at any time during the probationary period, the Respondent shall immediately report such violation to the Disciplinary Administrator. The Disciplinary Administrator shall take immediate action directing the Respondent to show cause why the probation should not be revoked.’
....
“3. The Respondent suffers from serious medical problems. The Respondent’s medical problems are ongoing.
“4. The Respondent represented the City of Park City, Kansas, in City of Park City vs. City of Valley Center, Sedgwick County District Court case number 2003CV4038. Barry Arbuckle represented the City of Valley Center. Robert C. Brown represented a group of approximately 100 homeowners referred to as the Tntervenors.’
“5. The Respondent failed to appear in Court on a number of occasions for hearings on motions in the City of Park City vs. City of Valley Center case.
“6. The Respondent failed on behalf of the City of Park City to comply with discovery requests in the City of Park City vs. City of Valley Center case.
“7. Counsel for the City of Valley Center filed a Motion to Compel Discovery. The motion was scheduled to be heard on August 5, 2004. On August 5, 2004, the Respondent failed to appear at the scheduled hearing as ordered. Prior to the hearing, the Respondent informed opposing counsel that he would not be appearing due to health problems. The Respondent promised opposing counsel he would comply with the discovery request by August 9, 2004. The morning of the hearing, the Respondent contacted Judge Friedel on an unrelated matter and told him that he was ill and could not appear on the unrelated matter. He did not contact Judge Roth who was assigned to hear this matter and did not appear as previously ordered.
“8. Following the hearing on the Motion to Compel, Judge Roth granted the motion. Judge Roth entered an order compelling the Respondent to provide the discovery by August 9, 2004, at 5:00 p.m. Judge Roth set a hearing for August 18, 2004, to determine whether sanctions should be entered against the Respondent.
“9. The Respondent failed to provide the discovery as ordered by August 9, 2004, at 5:00 p.m.
“10. On August 10, 2004, Park City held a city commission meeting. During an executive session, the city commission determined it should cause the suit to be dismissed and so directed the Respondent. The City also decided to seek the consent annexation of an adjacent parcel which was planned to be an airport and believed dismissal of the suit would facilitate that annexation.
“11. On August 11, 2004, the Respondent directed his secretary, Judy Morris, to prepare a Journal Entry of Dismissal Without Prejudice. Ms. Morris asked the Respondent whether she should include signature lines for the other attorneys involved in the case. The Respondent instructed Ms. Morris to include a signature line only for the Respondent and to not include signature lines for the other attorneys involved in the ease. The Respondent signed the only approval block [of] the Journal Entry of Dismissal Without Prejudice.
“12. That afternoon, Ms. Morris took the Journal Entry of Dismissal Without Prejudice to the Sedgwick County Courthouse. Ms. Morris went to Judge Friedel’s chambers. However, Judge Friedel was not available to review and sign the Journal Entry.
“13. Ms. Morris then took the order to Judge William S. Woolley’s chambers. Judge Woolley was available. Ms. Morris presented the order as an ‘agreed to’ order. Judge Woolley signed the Journal Entry of Dismissal Without Prejudice. The evidence was in dispute as to whether Ms. Morris stated that the order was agreed; however, presentation of the order in the manner presented under the specific direction of the Respondent constitutes a representation by the Respondent that the order was agreed. The order was filed with the Clerk of the District Court at 1:51 p.m. on August 11, 2004.
“14. The Journal Entry of Dismissal Without Prejudice was not an ‘agreed to’ order. Sometime on August 11, 2004, the Respondent discussed the order with Mr. Brown. Mr. Brown indicated that with some reservations, he believed an order would be acceptable; however, he would need to discuss it with his clients.
“15. Prior to presentation of the order to Judge Woolley, the Respondent had not discussed the order with Mr. Arbuckle. At 2:22 p.m. on August 11, 2004, the Respondent left a message for Mr. Arbuckle. This was Respondent’s attempt to contact Mr. Arbuckle to obtain agreement for the order and occurred after the order had been filed. Mr. Arbuckle returned the telephone call on August 12, 2004. At that time, Mr. Arbuckle told the Respondent that he would discuss the matter with his client and let him know their position regarding a possible dismissal. The Respondent did not tell Mr. Arbuckle that he had already filed the order.
“16. On August 13, 2004, Mr. Brown contacted the Clerk of the Court about this suit for other reasons and was informed that the Respondent had already sought and obtained a dismissal. This was Mr. Brown’s first knowledge of the dismissal.
“17. Prior to the hearing scheduled for August 18, 2004, Judge Roth learned that the Respondent sought and obtained an order dismissing the action.
“18. On September 2, 2004, Mr. Arbuckle filed an objection to the Journal Entry of Dismissal Without Prejudice. Judge David Kennedy reinstated the case on September 10, 2004, after learning that the Respondent sought and obtained a Journal Entry of Dismissal Without Prejudice based on a false representation of approval by opposing counsel.
“19. For reasons unrelated to the matter now pending, the case was reassigned from Judge Roth to Judge Anthony Powell.
“20. On September 27, 2004, Judge Powell conducted a hearing in the City of Park City vs. City of Valley Center to determine whether sanctions should be entered against the Respondent and/or the City of Park City for failing to comply with discovery orders.
"21. At that time, officials from the City of Park City appeared with the Respondent. Judge Powell questioned the officials from the City of Park City regarding their knowledge of the Respondent’s disciplinary probation. The Respondent acknowledged that he had been placed on probation. The officials from the City of Park City informed the Court that they were aware that the Respondent had been placed on probation. The Respondent informed the Court that he was uncertain whether he remained on probation.
“22. The Respondent informed the Court that he had been unable to comply with the discovery orders because he had been suffering health problems. Judge Powell instructed the Respondent that if his health prevented him from adequately representing his client, he should withdraw from the representation.
“23. At the conclusion of the hearing, Judge Powell ordered the City of Park City to pay $1,200.00 in sanctions. Judge Powell took the request for attorney fees against the Respondent for failing to appear at one or more previous hearings under advisement. Judge Powell scheduled another hearing for Friday, October 1, 2004.
“24. On September 29, 2004, Chief Judge Richard T. Ballinger met with tire Respondent, his supervising attorney, Mr. Shawver, and Michael Herd, the Chairman of the Service to the Bar Committee of the Wichita Bar Association, in his chambers to discuss the Respondent’s practice.
“25. After learning of tire meeting, Judge Powell entered Judge Ballinger’s chambers and provided the Respondent with a supplemental order in the City of Park City vs. City of Valley Center case. The supplemental order directed the Respondent to appear in Judge Powell’s court on October 1, 2004, as previously ordered. At that time, the Respondent informed Judge Powell that his health would not allow him to be present at the hearing. Judge Powell ordered the Respondent to appear in his court on October 1, 2004.
“26. Also on September 29, 2004, Judge Ballinger executed Administrative Order 04-4. Administrator Order 04-4 provides:
‘Pursuant to Supreme Court Rule 221, this Court hereby appoints Michael D. Herd, Chairman of the Service to Bar Committee of the Wichita Bar Association, or his designees, to immediately take charge of those files and clients of Stan Singleton. The Court further finds due to medical reasons, those clients’ interests are not being protected and to avoid further neglect of the clients, Michael D. Herd, or his designees, shall take control of those client files, inventory them, and take whatever action is necessary to protect the clients and their interests. Those attorneys who have been designated by Michael D. Herd shall have the same protection as if Michael D. Herd were personally handling the case, as provided for by the Supreme Court Rule 221. This Order shall remain in effect until further ordered.’
“27. The City of Park City retained new counsel.
“28. At 7:00 a.m. on October 1,2004, the Respondent left a message for Judge Powell. The Respondent informed Judge Powell that he could not be present at the hearing because of his health problems.
“29. Several hearings were scheduled and rescheduled. The evidence does not indicate the resolution on the motion for attorney fees against Respondent; however, Judge Powell eventually held Respondent in contempt of court for failure to appear at the subsequently scheduled and rescheduled hearings in this suit.
“30. On October 6, 2004, the Kansas Supreme Court suspended the Respondent’s license to practice law in the state of Kansas for failing to comply with the annual licensing requirements. Specifically, the Respondent failed to pay the annual registration, the Respondent failed to fulfill the minimum continuing legal education requirements, and the Respondent failed to pay the annual continuing legal education fee. The Respondent’s license to practice law in Kansas remains suspended.
“CONCLUSIONS OF LAW
“1. On March 7, 2004, the Kansas Supreme Court adopted Kan. Sup. Ct. R. 211(g). Kan. Sup. Ct. R. 211(g) establishes when probation should be recommended in a disciplinary case. Additionally, Kan. Sup. Ct. R. 211(g) addresses the procedure to undertake when an allegation surfaces that a Respondent may have violated one or more of the terms and conditions of probation. See Kan. Sup. Ct. R. 211(g).
“2. Although the 24-month period of time expired March 7, 2004, the Respondent remained on probation because the Supreme Court has not discharged the Respondent from probation. See Kan. Sup. Ct. R. 211(g)(8).
“3. After receiving ‘other credible evidence,’ pursuant to Kan. Sup. Ct. R. 211(g)(9), on January 4, 2005, the Disciplinary Administrator filed a motion to revoke the Respondent’s probation.
“4. After hearing the testimony of tire witnesses and reviewing the exhibits admitted, the Board Member finds by a preponderance of the evidence that the Respondent violated one or more of the terms and conditions of probation.
“5. Specifically, the Board Member concludes that the Respondent violated term number four of his probation. That term provides:
‘Additional Violations. The Respondent shall not violate the terms of his probation or the provisions of the Kansas Rules of Professional Conduct. In the event that the Respondent violates any of the terms of probation or any of the provisions of the Kansas Rules of Professional Conduct at any time during the probationary period, the Respondent shall immediately report such violation to the Disciplinary Administrator. The Disciplinary Administrator shall take immediate action directing the Respondent to show cause why the probation should not be revoked.’ [Emphasis added.]
The Board Member concludes that the Respondent violated term number four when he violated KRPC 3.2, KRPC 3.3, KRPC 3.4, and KRPC 8.4.
“6. ‘A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.’ KRPC 3.2. In this case, the Respondent failed to make reasonable efforts to expedite litigation consistent with the interests of his client when he repeatedly failed to appear at scheduled hearings and when he repeatedly failed to comply with requests and orders for discovery. As such, the Board Member concludes that the Respondent violated KRPC 3.2.
“7. KRPC 3.3(a)(1) provides that ‘[a] lawyer shall not knowingly make a false statement of material fact or law to a tribunal.’ The Respondent violated KRPC 3.3(a)(1) when he instructed his agent to prepare the Journal Entry of Dismissal Without Prejudice without signature blocks for opposing counsel and present that Journal Entry to the Court as an ‘agreed to’ order. These actions tricked Judge Woolley into executing the proposed order on the mistaken belief that it had been agreed to by opposing counsel. The Respondent also failed to inform Judge Woolley that there was an outstanding order compelling discovery in the case. Therefore, tire Board Member concludes that the Respondent violated KRPC 3.3(a)(1).
“8. ‘A lawyer shall not . . . knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.’ KRPC 3.4(a). The Respondent violated KRPC 3.4(a) when he knowingly disobeyed the Court’s order to provide discovery. Additionally, the Respondent violated KRPC 3.4(a) when he knowingly failed to appear before Judge Powell on October 1, 2004. As such, the Hearing Panel concludes that the Respondent violated KRPC 3.4(a).
“9. Lawyers are required to be fair to the opposing party and counsel. See KRPC 3.4(d). Specifically, ‘[a] lawyer shall not ... in pretrial procedure, ... fail to make [a] reasonably diligent effort to comply with a legally proper discovery request by an opposing party.’ Id. In this case, the Respondent repeatedly failed to respond to requests for discovery in the City of Park City vs. City of Valley Center case. As such, the Hearing Panel concludes that the Respondent violated KRPC 3.4(d).
“10. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). ‘It is [also] professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). The Respondent engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation when he caused the Journal Entiy of Dismissal to be presented to Judge Woolley in a manner which falsely represented it had been agreed to. This conduct also prejudiced the administration of justice. Accordingly, the Board Member concludes that the Respondent violated KRPC 8.4(c) and KRPC 8.4(d).
“RECOMMENDATION
“The Disciplinary Administrator recommends that the Respondent’s probation be revoked and that the Respondent be indefinitely suspended from the practice of law in the state of Kansas.
“The Board Member believes that the Respondent is suffering a debilitating and extended illness which has greatly affected the Respondent’s ability to continue the practice of law and recognizes that this is a mitigating factor for consideration; however, the Respondent was aware of this illness and his inability to function adequately as a lawyer during the entire course of the Park City lawsuit. It was incumbent upon Respondent to obtain the assistance of other counsel or to refer the matter to other counsel rather tiran continue to impede the progress of the suit and the administration of justice.
“After carefully considering the testimony, exhibits, and the recommendation of the Disciplinary Administrator, the Board Member recommends that the Court revoke the Respondent’s probation and order that the Respondent’s license to practice law be suspended for a period of one year. Additionally, the Board Member recommends that the Respondent be required to undergo a hearing pursuant to Kan. Sup. Ct. R. 219 to ensure that the Respondent is fit to practice law. The recommendation for suspension is independent of the administrative suspension Respondent is under currently because of his failure to comply with the annual licensing requirements.”
The respondent filed a waiver of his right to file a response to the Board member s expedited report and further waived his right for oral argument before this court pursuant to Supreme Court Rule 211(g)(12) (2004 Kan. Ct. R. Annot. 275). The office of the Disciplinary Administrator waived its right to file a response pursuant to Supreme Court Rule 211(g)(12) and waives the right to oral argument.
The court, having considered the expedited hearing report, accepts and adopts the findings of fact and conclusions of law of the Board member. Those findings of fact establish by a preponderance of the evidence that respondent failed to comply with term number 4 of his probation by violating KRPC 3.2, 3.3, 3.4, and 8.4. After reviewing the record, the Disciplinary Administrator’s recommendation, and considering the seriousness of the violation, the court concludes that indefinite suspension is the appropriate sanction.
It Is Therefore Ordered that the respondent, Stan R. Singleton, be and he is hereby indefinitely suspended from the practice of law in the state of Kansas effective the date of this order.
It Is Further Ordered that the respondent shall forthwith comply with the provisions of Supreme Court Rule 218 (2004 Kan. Ct. R. Annot. 301).
It Is Further Ordered that this order be published in the official Kansas Reports and the costs herein be assessed to the respondent.
Dated this 18th day of May, 2005. | [
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The opinion of the court was delivered by
Nuss, J.:
A jury convicted Bobby Bruce White of first-degree premeditated murder for the shooting death of his son-in-law, and the district court sentenced him to a hard 25 life sentence. He appeals pursuant to K.S.A. 22-3601(b)(1) (conviction of off-grid crime).
The issues on appeal, and this court’s accompanying holdings, are as follows:
1. Did the district court violate White’s due process right to present his defense by refusing to allow White’s expert to testify, by failing to instruct the jury regarding the defense of mental disease or defect, and by instructing the juiy that mental disease or defect was not a defense? Yes.
2. Does K.S.A. 22-3219 unconstitutionally abrogate the insanity defense? No.
3. Did the prosecutor’s misstatements of the law in closing argument deny White a fair trial? No.
4. Did the district court err by failing to instruct the jury on heat of passion voluntary manslaughter? No.
5. Did the district court’s instruction that the jury could only consider voluntary manslaughter if the jury did not agree on first-degree murder violate due process? No.
6. Did cumulative error substantially prejudice White and deny him a fair trial? Moot.
Because of error on issue one, we reverse White’s conviction and remand for a new trial.
FACTS
On March 27, 2002, Bobby Bruce White drove from his home in Great Bend to the Wal-Mart store in Augusta. Once inside, he walked directly to the electronics department where his son-in-law, Aaron Ruboyianes, was working. He killed Aaron with three shots from a handgun. White then walked directly out of the store to the parking lot, where the police apprehended him a few minutes later.
After White was charged with first-degree premeditated murder, he filed notice pursuant to K.S.A. 22-3219 of his intent to rely on the defense of lack of mental state or mental capacity. Dr. Marilyn Hutchinson later performed a psychological evaluation of White and issued a 15-page report dated October 21, 2002. Among other things, Dr. Hutchinson found that White suffered from major depression.
On December 30, the State filed a motion to disqualify Dr. Hutchinson and disallow her expert testimony. After a response by White, the district court held a hearing on January 6, 2003.
The next day, the court held that the defense failed to relate White’s mental disease or defect to the lack of the mental element required in the offenses charged. Accordingly, the district court found that Dr. Hutchinson’s report and proffered testimony fell short of what K.S.A. 22-3220 requires, and the court granted the State’s motion to exclude.
White then filed a motion to reconsider on Januaiy 10, claiming that K.S.A. 22-3220 violates due process under the United States and Kansas Constitutions and that refusing to allow him to present his theory of defense was error. The motion was denied.
At the subsequent trial, the State produced five witnesses to the shooting. The identity of the shooter was never at issue. Witnesses, security videotape, and forensic evidence established that White shot Aaron once in the abdomen, once in the upper chest, and lastly, as Aaron was lying on tire floor, once in the head. One witness testified that after the shooting, the shooter —■ with the gun still in his hand — walked calmly outside the store and across the parking lot in the direction of the police station two blocks away. An additional witness testified that White set the handgun on the ground, took off his coat and laid it on the ground, and the police apprehended him without incident.
Much of the testimony during the 6-day trial focused on the relationships in the White family. White and his wife Mary have two daughters, B.W. and Wendy. When B.W. was 20, she gave birth to a son, B.A.W. B.W. and B.A.W. lived with her parents for a few months, moved in with B.W.’s boyfriend for a few months, and tiren returned to live with the Whites until 1998.
By 1998, B.W. had begun dating Aaron. After a few weeks, she moved out, leaving B.A.W. with her parents. On January 8, 1999, she voluntarily signed papers allowing her parents to have guardianship rights for B.A.W. In September 1999, tire Whites moved to Arkansas for Bobby White’s new job, taking B.A.W. with them. They asked B.W. to move with them, but she declined.
On October 2,1999, Aaron and B.W. were married. They moved to Augusta in April 2000, and the Whites moved there with B.A.W. soon after. At that time, B.W. and Aaron began sharing custody of B.A.W. with her parents. In December 2001, the Whites moved to Great Bend for Bobby White’s new job and wanted to take B.A.W. with them.
The Whites had concerns about how Aaron treated B.A.W. Aaron would give “wedgies” by pulling up on the back of B.A.W.’s underwear. Wendy White testified that during one of these episodes B.A.W. was screaming and his feet were lifted off the ground. Bobby White testified that B.A.W. mentioned a couple of times about Aaron “hurting his pee-pee.” Also, when B.A.W. would go to the bathroom, Aaron would follow him in.
According to White, one time when B.A.W. came to tire house B.A.W. told him that his bottom hurt. Upon examination, B.A.W. had feces caked to his bottom. When B.W. asked B.A.W. why he did not tell her, he would not answer. At one point, Maiy White told B.A.W. to tell her if anyone touched him inappropriately.
The Whites’ other concerns involved Aaron lifting B.A.W. by the arm; Aaron shaking B.A.W.; Aaron putting B.A.W. in time-out; Aaron taking B.A.W. to a chiropractor; Aaron and B.W. occasionally leaving B.A.W. at home alone; and pets in the Ruboyianes’ house.
Bobby White testified that one day in October or November 2001, he went to the Ruboyianes’ house and saw some disturbing pictures taken on a digital camera. One picture was of B.A.W. standing in a bathtub urinating; a second was of him naked on the toilet; a third was of him standing by the door naked as if waiting on something; and the fourth was of Aaron standing with an erection near B.A.W.’s face. White testified that he confronted Aaron, who grabbed the camera and went into the bathroom.
A month or so later, in December 2001, B.W. hired an attorney to terminate the Whites’ guardianship. At the hearing to terminate on Januaiy 10, 2002, the attorneys reached an agreement in which temporary custody would be transferred to B.W., she would try to get rid of pets to which B.A.W. was possibly having allergic reactions, and die hearing to terminate the guardianship would be reset for another 30 days. On Januaiy 12, the Whites visited the Ruboyianes’ home and found die pets still there. They believed this was contrary to their agreement, called the police to remove B.A.W. from the Ruboyianes’ home, and fired their attorney. However, B.A.W. remained in the Ruboyianes’ home.
At the hearing on March 25, 2002, the district court terminated the Whites’ guardianship. Bobby White said that he did not get to testify at a hearing because “they had outsmarted me.” Among other tilings, he had intended to raise the issue of the disturbing digital pictures of B.A.W. Mary White confirmed that neither she nor her husband was ever allowed to testify regarding their con cems about B.A.W. She testified that her husband was upset after this hearing, but would not talk about it with her.
On March 26, 2002, the day after the Whites’ guardianship of their grandson was terminated, Bobby White drove from Great Bend to the Wal-Mart in Augusta, a 2-hour drive. He testified that he went to Augusta to see B.A.W., but when he realized B.A.W. was at the babysitter’s house, he left. White testified that he was thinking about leaving his wife and his family to go to Texas or someplace similar, but he changed his mind when he realized that he had no money, that he did not have the title to his truck, and that he could be tracked down with his credit card. He returned to Great Bend that afternoon.
According to Bobby White’s testimony concerning the next day, March 27, he remembered getting up and going to work. The next thing he remembered was walking out of Wal-Mart with a gun in his hand. White further testified that he did not plan to kill Aaron and did not remember getting in his car, driving to Augusta to kill Aaron, or loading the gun. He had no recollection of how long he was in the police car after his arrest because he was unconscious part of the time.
The jury was given instructions on first-degree premeditated murder, second-degree murder, and voluntary manslaughter based on an unreasonable but honest belief that circumstances existed that justified deadly force in defense of another person, i.e., B.A.W. There was no instruction requested or given on the defense of mental disease or defect.
During its deliberations, the jury submitted the following question to the Court: “We have a concern about the emotional/mental well-being of the defendant at the time of the shooting. Is this something we should consider as we do not recognize this as being part of tire evidence?”
The court responded:
“To that question the Court provides the following answer and instructs you as follows: Under Kansas law, mental disease or defect may be an absolute defense to criminal responsibility under certain circumstances. In this case you were not given a jury instruction concerning this defense and, therefore, you may not consider mental disease or defect as an absolute defense in this case.
“Nonetheless, as part of your deliberations in this case, you should consider and weigh any evidence that you find to exist regarding the defendant’s state of mind at the time of the shooting as that evidence may affect your determination as to whether the State has met its burden of proving the claims set out in Instructions 4 [first-degree premeditated murder], 6 [second-degree murder], and 7 [voluntary manslaughter]. This evidence should be considered and weighed by the same standards as all of the evidence in this case. In that regard, please refer back to Instructions 1 [prefatory], 2 [reasonable doubt], 3 [witness credibility], and 4A [person ordinarily intends all. of the usual consequences of his or her voluntary acts].”
The jury found Bobby White guilty of first-degree premeditated murder. White received a hard 25 life sentence.
ANALYSIS
Issue 1: Did the district court violate White’s due process right to present his defense by refusing to allow White’s expert to testify, by failing to instruct the jury regarding the defense of mental disease or defect, and by instructing the jury that mental disease or defect was not a defenseP
Standard of Review
White claims the district court erred in excluding the expert testimony of Dr. Hutchinson, who would have testified that White suffered from a mental disease or defect, but would not have uttered “the magic words” that the mental disease or defect caused him to lack the mental state required as an element of the offenses charged. White reminds us that “[t]his court has previously recognized that under the state and federal Constitutions a defendant is entitled to present the theory of his or her defense and that the exclusion of evidence that is an integral part of that theory violates a defendant’s fundamental right to a fair trial.” State v. Evans, 275 Kan. 95, 102, 62 P.3d 220 (2003). He essentially argues that his only expert witness, psychologist Hutchinson, would have provided evidence integral to his defense of lack of intent caused by mental disease or defect.
The State responds that a defendant’s right to present his or her defense is subject to statutory rules and case law interpretation of rules of evidence and procedure, also citing Evans, 275 Kan. at 102. Such rules would include our oft-repeated statement that the admission of expert testimony lies within the sound discretion of the trial court, and its decision will not be overturned absent an abuse of such discretion. See State v. Brice, 276 Kan. 758, 775, 80 P.3d 1113 (2003).
For several reasons, we hold that our review of this evidentiaiybased question is de novo.
First, we are reviewing a statute, K.S.A. 22-3220. The interpretation of a statute is a question of law, and this court’s review is unlimited. An appellate court is not bound by the district court’s interpretation. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
Second, we have observed that even abuse of discretion standards can sometimes more accurately be characterized as questions of law requiring de novo review. See Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 456, 14 P.2d 1170 (2000) (district court failed to correctly apply the Frye standard). There we stated, “Questions of law are presented when an appellate court seeks to review the factors and considerations forming a district court’s discretionaiy decision.” 270 Kan. at 456. We cited, among other things, Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d 392, 116 S. Ct. 2035 (1996), which stated:
“Little turns, however, on whether we label review of this particular question abuse of discretion or de novo, for an abuse-of-discretion standard does not mean a mistake of law is beyond appellate correction. A district court by definition abuses its discretion when it makes an error of law. . . . The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.”
Third, while we have said that the admissibility of evidence is often within the discretion of the district judge, constitutional considerations still prevail. See Evans, 275 Kan. at 102.
Illustrative of these concepts is State v. Humphrey, 252 Kan. 6, 845 P.2d 592 (1992). There, this court acknowledged that the admissibility of expert testimony lies within the sound discretion of the district court. Nonetheless, we held that the district court had erred in holding under K.S.A. 60-456 that a psychiatrist’s testimony was improperly based in part upon hearsay, i.e., the defendant’s statements. In concluding the statements were not hearsay, we held that the psychiatrist should have been allowed to testify about defendant’s lack of intent to commit the murder. We concluded the district court had denied defendant his right to present his theory of defense, and reversed and remanded for a new trial. Abuse of discretion was not a basis for the decision.
Discussion
Our analysis begins with the statute. K.S.A. 22-3220 provides:
“It is a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the mental state required as an element of the offense charged. Mental disease or defect is not otherwise a defense. The provisions of this section shall be in force and take effect on and after January 1, 1996.”
PIK Ciim. 3d 54.10 is based upon this statute. As applicable to the offense of first-degree premeditated murder, it states as follows:
“Evidence has been presented that the defendant was afflicted by mental disease or defect at the time of the alleged crime. Such evidence is to be considered only in determining whether the defendant had the state of mind required to commit the crime. You are instructed the defendant is not criminally responsible for his acts if because of mental disease or defect the defendant lacked the premeditation and intent required for first-degree murder.”
As this court has often explained, prior to the effective date of this statute — January 1, 1996 — there were two defenses relating to mental disease or defect: insanity and diminished capacity. See State v. Hedges, 269 Kan. 895, 900, 8 P.3d 1259 (2000). Criminal insanity was evaluated using the M’Naghten test. 269 Kan. at 900. While the defense of diminished capacity was not a substitute for a plea of insanity, it could be used for the limited purpose of negating specific intent where a defendant was sane. 269 Kan. at 901. However, K.S.A. 22-3220 removed any reference to insanity and instead focused on a lack of the mental state required as an element of the offense charged. It now prevents a defendant from raising insanity or diminished capacity as a defense. See State v. Jorrick, 269 Kan. 72, 81, 4 P.3d 610 (2000). Accordingly, all capacity defenses, for crimes which took place on or after January 1, 1996, focus on the mens rea of the crime. 269 Kan. at 83.
As a result, K.S.A. 22-3220 allows a defendant to present evidence tending to show that he or she lacked the mental state required for the offense charged. State v. Davis, 277 Kan. 309, 329-30, 85 P.3d 1164 (2004); State v. Bethel, 275 Kan. 456, 474, 66 P.3d 840 (2003).
In Bethel and Jorrick this court cited with approval Raymond L. Spring’s article, Farewell to Insanity: A Return to Mens Rea, 66 J.K.R.A. 38 (1997). In discussing procedure under the new law, Professor Spring states:
“Evidence of the defendant’s mental state at the time of the alleged crime, through expert or lay testimony, is admissible as before except that the focus will be directly on the issue of the required criminal intent for the specific crime. In a jury trial die court does not give an instruction on insanity but does advise the jury that evidence of the defendant’s mental condition is to be considered in determining whether the defendant had the state of mind required for the crime.” 66 J.K.B.A. at 45.
With this background, we turn to Dr. Hutchinson’s report dated October 12, 2002, discussion between court and counsel, and the court’s ruling regarding the report and the doctor’s testimony.
Dr. Hutchinson found that White’s intelligence was high, but that he suffered from major depression. Her 15-page report stated in relevant part:
“Mr. White repeatedly denies having any conscious awareness or planning of his actions. While on the one hand, driving for two hours without the intervention of reason appears improbable, it does appear to this examiner that it did, in fact, occur in that way. If Mr. White had done any planning, he could have conceived of something more effective, efficient, or safe than the manner in which he conducted the shooting. If he planned to shoot Aaron and escape with the small amount of money he had withdrawn the day before, Mr. White would not have proceeded in full view of dozens of potential witnesses and without any attempt to protect himself from what would be the obvious and predictable aftermath of his actions. It appears that his only objective was to protect [B.A.W.], and nothing else mattered. His major depression and the intense emotion that occurred after the [guardianship termination] hearing prevented Mr. White from competently and rationally weighing the choices and alternatives that might have been available to him despite the grimness of the situation. His emotions strongly overpowered his rational thought about the actions in which he was engaged.” (Emphasis added.)
Dr. Hutchinson concluded:
“Mr. White suffered from major depression at the time of the incident and additionally was overcome with emotion in response to the judge’s decision that his grandson would be permanently placed with [B. W. ] and Aaron Rubianus [sic]. Mr. White believed that [B.A.W.] was in grave danger of physical, emotional and sexual abuse and that [B.A.W.’s] health was also compromised in that setting. Mr. White was unable at that time, and still to this day, to think of any other action that would have granted [B.A.W.] the safety that Mr. White believed was crucial and that he alone was responsible for providing. Seemingly ivithout thought for the consequences of his intended action, Mr White shot his son-in-law in a public place and then proceeded to place himself in the hands of authorities. Mr. White’s immaturity, neediness and instability prompted the sense of devastation that resulted from losing custody of [B.A.W.]” (Emphasis added.)
On December 30 the State filed a motion to disqualify Dr. Hutchinson and disallow her expert testimony, arguing that while K.S.A. 22-3220 allows expert testimony on the defense of mental disease or defect, the expert must specifically find that the defendant, because of mental disease or defect, lacked the mental state required as an element of the offense charged. It further argued that Dr. Hutchinson did not offer an opinion on this issue, that her testimony should be disallowed and her report suppressed, and that the court should make a finding that the defense had not presented sufficient evidence to support a legal defense of lack of mental state. White responded on January 3 that it is not necessary, and indeed is improper, for the expert to testify that the defendant was incapable of forming the intent to kill or premeditate due to the mental disease or defect.
During oral arguments on the motion on January 6, 2003, White’s attorney stated that when she had asked Dr. Hutchinson if she had an opinion as to whether White lacked the capacity to premeditate or intend to kill because of his mental disease and defect, Dr. Hutchinson stated, “No, I would not. I would not opine that. I cannot opine that. That invades the province of the jury.” Counsel continued, “She’s going to say T can’t give you that opinion because it’s speculation.’ ”
The district court later asked White’s attorney, “So it’s your statement to the Court, tiren, that Ms. Hutchinson will not be asked nor would she able to testify that the defendant, because of his depression, was not capable of forming intent or premeditation. She won’t be asked that question. And if she were, she would not be able to answer that, as I understand what you’ve told the Court.” White’s attorney responded, “She’ll be able to answer it. Her answer is, 1 can’t tell you that because I would be speculating. I wasn’t there. I wasn’t in his mind at the time.’ ”
The next day, after reviewing the report, the statute, and case law, the court held that die defense has to relate the mental disease or defect to the lack of the required mental element required in the crime. It found that although Dr. Hutchinson diagnosed White as suffering from a mental disease or defect, she did not go the next step and say that because of that mental disease or defect, he was not capable at the time of the offense of forming die necessary intent or premeditation. It stated:
“My final conclusion is that if Ms. Hutchinson’s report had gone on to say that it was her professional opinion that the defendant, because of his mental disease or defect, was not capable of forming premeditation or the necessary intent, then I would say she’s in; she gets to testify. She doesn’t say that. And [White’s counsel] offered to the Court that, in fact, she’s been asked that question and stated that she would not be able to offer that opinion, if asked, because it’s her judgment, apparently, that that would invade the province of the jury. I don’t see that that would be a problem. I think the problem here is that she can’t reach that conclusion. And because she can’t reach that conclusion, I don’t believe that her testimony should be allowed to support a mental disease or defect instruction under [K.S.A. 22-] 3220 because, as I reiterate, that statute specifically says, ‘Mental disease or defect is not otherwise a defense.’
“So I don’t think . . . she should be allowed to testify in support of a mental disease or defect defense; nor do I believe she should be entitled to testify in support of lack of premeditation; nor do I believe she should be allowed to present any testimony of mental disease or defect, because, as I read tire statute and as I read tire cases, unless that testimony is presented to support the defense of mental disease or defect, it’s not otherwise admissible.
“. . . I want to be clear because I don’t want you bringing her in here thinking that although you can’t use her for one purpose, you can use her for another. In my judgment, you can’t use her for any purpose. So I’m going to disallow her testimony entirely. So that’s the Court’s ruling on the State’s motion in limine. It will be granted.”
White’s counsel immediately asked to clarify her position for the record, i.e., that Dr. Hutchinson would make the required nexus. She stated in relevant part:
“I think that Marilyn Hutchinson does make that nexus. I think she will malee that nexus. She won t say those magic words, ‘He lacks the capacity to premeditate or intend to kill,’ but she will make the nexus between his actions, ultimately, and the disease that she has diagnosed — the mental disease or defect, and that his actions on that day are consistent with somebody who is laboring under the mental disease or defect, which she’s diagnosed. That’s what I was trying to say yesterday. She’s not going to say the magic words that because he had a mental disease or defect on that date, he lacked the capacity to premeditate and intend to kill. Rather, what she will say is he had this mental disease or defect and his conduct on that date was consistent with somebody acting under the mental disease or defect. She will also explain before that, obviously, that people who have this mental disease or defect can act irrationally, can lack the ability to premeditate, and can lack the ability to have intent. Do you see what I’m saying? So I think she will give that nexus.” (Emphasis added.)
Counsel next read into the record excerpts from Dr. Hutchinson’s report to support her argument the nexus had been made. She then concluded:
“What I would contend, Your Honor, is she is making the nexus between her diagnosis and his ultimate actions. Why she won’t answer that ultimate question and why she won’t use those magic words is, simply, due to her training; due to the American Board of Psychiatry’s opinion on the issue, quite frankly; and due to the fact that she will say, ‘Listen, I wasn’t there in his mind. I can only give ijou the opinion about the diagnosis. I can only tell you what this condition makes people do, and it makes people sometimes be able to lack the ability to premeditate and intend to kill. What I can tell you is that he suffered from that condition, and what I can tell you is his actions on this date were consistent with somebody who suffered from that condition.’
“If I didn’t make that clear yesterday, I apologize, Your Honor, but that’s how she would testify, if I put her on the stand.” (Emphasis added.)
In continuing our analysis, we observe that the adequacy of an expert witness’ proffered testimony regarding the mental disease or defect defense identified in K.S.A. 22-3220 and in effect since 1996 has not yet arisen. However, similar issues have arisen regarding the diminished capacity defense, a close relative. As Professor Spring stated in 66 J.K.B.A. 38, 45 (1997):
“Like insanity, diminished capacity disappears as a separate defense [with the appearance of22-3220] .Mens rea simply carries diminished capacity to the logical extreme. With the separate definition of insanity gone, there is no banter to accepting the idea that if one’s capacity can be so diminished by mental disorder as to destroy the capacity to form a special intent, then it may in some circumstances he so diminished as to destroy capacity to form any criminal intent at all. That has always been an illogical limitation, thought necessary only to avoid overlap of insanity and diminished capacity.”
Similarly, in State v. Hedges, 269 Kan. 895, 904, 8 P.3d 1259 (2000), we held that a jury instruction was not clearly erroneous because “the substance of the diminished capacity instruction given and the proper mental disease or defect instruction [under K.S.A. 22-3220] focus on the defendant’s ability to form intent. Therefore, the trial court’s instruction to the jury was not reversible error.”
Diminished capacity case law reveals that expert testimony expressing that a mental problem actually caused the defendant to lack the offense’s required mental state need not be stated in such “magic words.” State v. Maggard, 26 Kan. App. 2d 888, 995 P.2d 916, rev. denied 269 Kan. 938 (2000), contains the most parallels. There, defendant appealed his conviction of attempted rape, claiming that the trial court erred in, among other things, refusing him an instruction on diminished capacity. The trial court had stated:
“ ‘As to the instruction of diminished capacity, the Court, after consideration of the testimony given, does not find that any evidence was given that suggests Mr. Maggard’s problems arise above what prior cases have referred to as personality characteristic of poor impulse control. Also, there has been a lack of testimony that [make] a direct causal connection between Mr. Maggard’s capacity and the acts on November 17, 1995 [date of the offense].’ ” 26 Kan. App. 2d at 890.
Just as Dr. Hutchinson refused to speculate in the instant case, defendant Maggard’s expert witness, Dr. Barnett, had testified that “he would be merely speculating if he were to give an opinion as to whether defendant was having an episode of Intermittent Explosive Disorder on [the day of the offense.]” 26 Kan. App. 2d at 891.
After reviewing this and other evidence, the Maggard court stated:
“There is no question evidence was presented that defendant was mentally retarded and had Intermittent Explosive Disorder. A reasonable interpretation of Dr. Barnett’s testimony is that defendant has difficulty controlling his impulses to act and when he does act, he does not consider the consequences of his actions.
“Although the trial court is not required to give an instruction on diminished capacity, even when faced with some evidence of diminished capacity, defendant’s evidence unquestionably raised the issue of his capacity to form the specific intent to commit the crime for which he was charged. Contrary to the trial court’s conclusion, the evidence showed that defendant suffers from more than a mere personality disorder with poor impulse control.” (Emphasis added.) 26 Kan. App. 2d at 891.
The Maggard court also held that the defendant’s strange demeanor on the witness stand, “albeit likely to elicit sympathy, should have been considered by the jury in determining whether he was able to form the intent required in order to be found guilty of the crime of attempted rape.” 26 Kan. App. 2d at 892. Accordingly, the Court of Appeals held that the “no sympathy to either party” instruction under PIK Crim. 3d 51.07 should not have been given.
The Court of Appeals thus concluded:
“We find that the effect of the trial court’s instruction that the jury was to consider the case without sympathy for either party combined with the trial court’s refusal to instruct on diminished capacity was to remove from the jury’s consideration defendant’s capacity to form the intent necessary to commit the crime for which he was charged. The combination of these two rulings constitute an abuse of discretion by the trial court. Defendant’s conviction is reversed, and the case is remanded for a new trial.” (Emphasis added.) 26 Kan. App. 2d at 892-93.
In short, despite the apparent absence of the “magic words” of direct causation and a refusal to speculate on defendant’s having an episode of Intermittent Explosive Disorder on the day of the offense, Maggard’s expert witness was allowed to testify. Moreover, since the district court abused its discretion in refusing to instruct on diminished capacity, it is clear that the expert’s testimony helped provide evidence sufficient for a jury to consider whether the defendant had the specific intent required to commit the offense.
Although not cited by the Maggard court, several decisions of this court support its holding.
In State v. Jackson, 238 Kan. 793, 804, 714 P.2d 1368, cert. denied 479 U.S. 821 (1986), where this court formally acknowledged the diminished capacity defense, a psychological expert had been allowed to testify that defendant exhibited some symptoms of temporal lobe epilepsy and suffered from brain damage which had been in existence for a long time and prevented the full development of his intellectual academic skills and higher level activity. However, the expert did not testify as to whether defendant knew right from wrong at the time of the crime.
Similarly, in State v. Massey, 242 Kan. 252, 259, 747 P.2d 802 (1987), this court observed that the only evidence that defendant suffered an epileptic seizure at the actual time of the shooting, which we noted would negate mens rea, was defendant’s own testimony. Nevertheless, because the court held this evidence was corroborated, the failure to give an instruction on unconsciousness was clearly erroneous. 242 Kan. at 261. As apparent corroboration, an expert medical witness had testified that defendant suffered from seizures and merely “could have had a seizure from alcohol withdrawal” at the time of fatally shooting his wife. (Emphasis added.) 242 Kan. at 255.
After the Court of Appeals’ Maggard decision in 2000, this court decided State v. Greene, 272 Kan. 772, 37 P.3d 633 (2001). The primary issue involved allegations of ineffective assistance of counsel, in part due to defense counsel’s failure to request a continuance and retain an expert witness to testify about the defendant’s lack of intent to commit second-degree murder and aggravated battery. At the subsequent hearing on ineffective assistance, a newly-retained psychiatrist testified for the defendant. We characterized the doctor’s testimony as follows:
“Dr. Wisner offered the opinion, as a forensic psychiatrist and expert witness, that Flournoy’s taunting Greene with words like ‘bitch ass nigger’ and saying ‘He can suck this dick,’ caused the defendant to flash back to his previous subjugated position relative to Flournoy. Dr. Wisner testified that he would expect the emotional impact of the vivid reminder of not being able to protect his own [defendant’s] integrity to preclude Greene’s forming the intent to kill Flournoy. He regarded it as quite plausible that at that moment Greene lacked the capacity to form the intent to kill and just reacted, lashing out, to hurt someone or somehow protect himself. He concluded: ‘I think this is psychiatrically, this is almost a definition of what we’ve brought to the courts as things like crimes of passion, things like moments of overwhelming impulse, et cetera, all of which really adds up to . . . reduced ability to form a specific intent or appreciate outcomes and consequences.’ ” (Emphasis added.) 272 Kan. at 780.
We held: “Relative to defense counsel’s failure to request time to adequately prepare the defense, we note that Dr. Wisner’s tes timony would have supplied evidence of defendant’s mental state being altered in reaction to Flournoy’s taunting words.” 272 Kan. at 781. We concluded: “Because the testimony of Dr. Wisner could exonerate defendant of intentional second-degree murder, we are convinced that there is a reasonable probability that the outcome would have been different.” 272 Kan. at 783. Defense counsel’s failure to supply this expert for trial demonstrated his assistance was deficient and was a basis for reversing and remanding for new trial.
Furthermore, this court has held that “magic words” or “particular words of art” are not necessary in an expert’s medical opinion so long as the appropriate standard is met. See Sharples o. Roberts, 249 Kan. 286, 296, 816 P.2d 390 (1991); Nunez v. Wilson, 211 Kan. 443, Syl. ¶ 1, 507 P.2d 329 (1973).
Dr. Hutchinson’s profferred testimony reveals she would have testified that White had a mental disease or defect, that people with this disease or defect can lack the ability to premeditate and to form intent, and that his conduct on the date of the shooting was consistent with somebody acting under that disease or defect. Based upon this proffer and the cited Kansas case law, we disagree with the court’s ruling that her testimony was inadmissible under K.S.A. 22-3220. Moreover, under State v. Humphrey, 252 Kan. 6, 14, 845 P.2d 592 (1992), and State v. Evans, 275 Kan. 95, 102, 62 P.3d 220 (2003), we hold that her testimony was an integral part of White’s theory of defense and its exclusion violated his fundamental right to a fair trial.
Given this holding, it follows that the resultant refusal to give an instruction on mental disease or defect, though none was requested, was also error. See State v. Williams, 277 Kan. 338, 356, 85 P.3d 697 (2004) (In a criminal action, a trial court must instruct the jury on the law applicable to the defendant’s theories for which there is supporting evidence.); Massey, 242 Kan. at 256-61; Maggard, 26 Kan. App. 2d at 893. White’s complaint about the district court’s response to the jury’s question during deliberations concerning consideration of White’s emotional and mental well-being is therefore moot.
Issue 2: Does KS.A. 22-3220 unconstitutionally abrogate the insanity defense?
White next argues that K.S.A. 22-3220 violates his due process rights under the United States and Kansas Constitutions by abrogating the insanity defense. We rejected this identical argument in State v. Bethel, 275 Kan. 456, 473, 66 P.3d 840 (2003), and affirmed Bethel’s holding after an identical attack in State v. Davis, 277 Kan. 309, 85 P.3d 1164 (2004). White cites no post-Bethel authority that would alter this court’s analysis of that issue. We do not retreat from that position now.
White also claims the State committed misconduct and the district court committed additional error. These claims could now be disregarded because of our reversal and remand on previously noted grounds. We address them below, however, to supply guidance because they could arise in a retrial. See State v. Kunellis, 276 Kan. 461, 476, 78 P.3d 776 (2003).
Issue 3: Did the prosecutor’s misstatements of the law in closing argument deny White a fair trial?
White next argues that the prosecutor misstated the law of voluntary manslaughter in her closing argument, denying him a fair trial. Although no objection was lodged, a misstatement of controlling law denies a criminal defendant his or her right to due process, and this court must review such an alleged error on appeal despite the absence of an objection at trial. State v. Morton, 277 Kan. 575, 583-84, 86 P.3d 535 (2004).
Since we are reversing and remanding because of error on issue one, however, we need not determine whether error on issue three actually denied White a fair trial. We do observe that in the rebuttal portion of the prosecutor’s closing argument, she misstated the law regarding voluntary manslaughter, suggesting it contained no requirement of intent. The district court interrupted her twice and had counsel approach. After tire last bench conference, the court then correctly advised the jury of the controlling law and cured the problem:
"Members of the Juiy, tire Court wishes to, simply, remind you of tire jury instructions that I earlier gave you and to read those instructions closely. And when you do, you will see that premeditated first-degree murder, murder in the second-degree, and voluntary manslaughter all require a finding on your part that the killing was intentional. You may proceed.”
As a result, although repetition of the prosecutorial error at the new trial is possible, it is highly unlikely.
Issue 4: Did the district court err by failing to instruct the jury on heat of passion voluntary manslaughter?
White requested an instruction on voluntary manslaughter based on two theories: (1) upon a sudden quarrel or in the heat of passion and (2) an unreasonable but honest belief that circumstances existed justifying deadly force in defense of a person. See K.S.A. 21-3403(a), (b). The district court refused any instruction based upon the former, and White objected.
This court recently discussed the denial of this same instruction in State v. Horn, 278 Kan. 24, 39-41, 91 P.3d 517 (2004). The detailed analysis by the Horn court need not be repeated here. Greatly summarized, we held that the instruction on voluntaiy manslaughter was required if there were some evidence of sudden quarrel or heat of passion as a result of severe provocation which, when viewed in the light most favorable to the defendant, would reasonably justify a conviction on that lesser included offense.
White points to evidence that he was overcome with emotion; that without an opportunity to be heard, he lost custody of his grandson to a person he viewed as abusive; that he walked into Wal-Mart during daytime hours and, in front of several witnesses, shot his son-in-law, walked out of the Wal-Mart, and stood in the parking lot awaiting arrest. However, this is not evidence of an adequate provocation sufficient to instruct on voluntary manslaughter on the basis of heat of passion or sudden quarrel. See also State v. Follin, 263 Kan. 28, 38, 947 P.2d 8 (1997) (act of violence separated from the provocation by sufficient cooling time is not the product of heat of passion).
Unless this evidence changes at retrial, no instruction on voluntary manslaughter on the basis of heat of passion or sudden quarrel need be given.
Issue 5: Did the district court’s instruction that the jury could only consider voluntary manslaughter if the jury did not agree on first-degree murder violate due process?
White next claims that the juiy was given conflicting instructions on whether to consider the lesser offenses of second-degree murder and voluntary manslaughter, which he claims therefore violates his due process rights. Among other things, he complains that the jury may have understood that it must first consider whether White was guilty of first-degree premeditated murder before considering any lesser included offenses.
White points out that the jury was first instructed on the elements of first-degree murder. Regarding second-degree murder, Instruction No. 6 of which he complains stated in relevant part: “If you do not agree that the defendant is guilty of murder in die first-degree, you should then consider the lesser included offense of murder in the second-degree.” It then provided the elements of the offense. Instruction No. 7 of which he complains concerned voluntary manslaughter and stated in relevant part: “In determining whether the defendant is guilty of murder in the second-degree, you should also consider the lesser offense of voluntary manslaughter ... an intentional killing done upon an unreasonable but honest belief
White did not object to these instructions. More important, White’s argument was rejected in State v. Roberson, 272 Kan. 1143, 38 P.3d 715, cert. denied 537 U.S. 829 (2002), where the court reviewed the same instructions used here: PIK Crim. 3d 56.01, 56.04(b, d); 56.03; and 56.05. One year later this court confirmed its rationale in State v. Davis, 275 Kan. 107, 61 P.3d 701 (2003). The detailed analysis by the Roberson court, which appears at 272 Kan. at 1153-1155, and which was partially repeated by the Davis court at 275 Kan. at 126-127, need not be repeated here.
There was no error.
Issue 6: Did cumulative error substantially prejudice White and deny him a fair trial?
Lastly, White complains of cumulative error. This issue is moot in light of our reversal and remand for new trial because of error on issue one.
Reversed and remanded. | [
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In a letter dated March 9, 2005, addressed to the Clerk of the Appellate Courts, respondent Harry L. Felker of Topeka, Kansas, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2004 Kan. Ct. R. Annot. 296).
At the time the respondent surrendered his license, a panel hearing was pending on a formal complaint in accordance with Supreme Court Rule 211 (2004 Kan. Ct. R. Annot. 275). The formal complaint concerned allegations of misconduct that he violated Kansas election statutes by accepting improper campaign donations and attempting to conceal those contributions.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Harry L. Felker be disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Harry L. Felker from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that tills order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent fordiwith shall comply with Supreme Court Rule 218 (2004 Kan. Ct. R. Annot. 301).
Dated this 11th day of March, 2005. | [
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On July 11, 2003, the petitioner, James E. Rumsey, was disciplined by suspension from the practice of law in Kansas for 1 year, to be effective from July 11, 2003, ordered to pay the costs, and at the end of the 1-year suspension or any time thereafter comply with Supreme Court Rule 219 (2004 Kan. Ct. R. Annot. 312).
On July 12, 2004, Mr. Rumsey filed a petition with this court for reinstatement to the practice of law in Kansas. The petition was referred to the Disciplinary Administrator for consideration by the Kansas Roard for Discipline of Attorneys, pursuant to Supreme Court Rule 219. On November 30,2004, a hearing was held before a panel of the disciplinary board in the office of tire Disciplinary Administrator, Topeka, Kansas.
On January 31, 2005, the panel filed its report setting out the circumstances leading to Mr. Rumsey’s suspension, a summary of the evidence presented, and tire panel’s findings and recommendations. The panel concluded that Mr. Rumsey has fully complied with the orders of the Kansas Supreme Court. The panel unanimously recommended that Mr. Rumsey’s petition for reinstatement to the practice of law in Kansas be granted. The panel further recommended that Mr. Rumsey’s reinstatement be conditioned upon petitioner’s (1) continued participation and completion of the anger management behavior modification program, (2) reporting monthly to the Disciplinaiy Administrator of his progress and providing verification from Dr. Robert Schulman of successful completion, and (3) meeting with Mr. John Ambrosio monthly and providing reports of such meetings to the Disciplinary Administrator.
Although at the time of the disciplinary hearing Mr. Rumsey had contacted Dr. Schulman concerning the program to control his anger and is participating in the anger management behavior mod ification program, neither his suspension nor his reinstatement were subject to those conditions. For that reason, such participation and reporting will not be made a condition of Mr. Rumsey s reinstatement. Since the panel report recommends reinstatement, no response is required by petitioner, and pursuant to Supreme Court Rule 219(d), the matter is deemed submitted for consideration by this court.
The court, after carefully considering the record, accepts the findings and recommendation of the panel that petitioner be reinstated to the practice of law in Kansas.
It Is Therefore Ordered that James E. Rumsey be reinstated to the practice of law in the state of Kansas and the Clerk of the Appellate Courts is directed to enter petitioner s name upon the roster of attorneys engaged in the practice of law in Kansas.
It Is Further Ordered that this order shall be published in the official Kansas Reports and that the costs herein be assessed to the petitioner.
Dated this 22nd day of February, 2005. | [
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The opinion of the court was delivered by
Benson, J.:
The defendant in error, Ellen K. Hoffman, commenced this suit against the plaintiffs in error (her daughter and-her daughter’s husband) to quiet her title to a tract of land, alleging that she was the owner and in possession thereof.
The answer contained'a general denial, and a statement, in substance, that upon the death of Mr. Hoffman, thé plaintiff’s husband, it was verbally agreed that the plaintiff, his widow, should have all his property during her life, and that then it should become the property of her daughter, defendant Ella H. Martin; that after this understanding, however, a will was found giving the entire property to the widow, except certain notes against L. T. Martin, which were given to his wife, Ella; that by cooperation of all the parties the land in question was purchased by them jointly, the plaintiff contributing $2500 and the defendants $1000 of the consideration, under an arrangement that they should .occupy it together; that they accordingly took possession of the land, and so occupied it jointly, treating, it as their joint property, but that defendants accounted to the plaintiff for the present use thereof, the defendants making large improvements thereon, of which no accurate account was kept; that in the year 1904 the plaintiff removed to another state, the defend ants remaining in possession, the plaintiff giving to them an instrument as follows:
“Long Island, Kan., July 19, 1904.
“This is to certify that I have rented my farm, the N. E. ^4 sec. 23, town. 1, range 20, to L. T. Martin and Ella H. Martin, and they can make any improvements necessary to their comfort or that is required on place, it being understood between me and my daughter, Ella, that the place is to be hers at my death. But. if I should sell the place I must first pay them for any improvements whatsoever that they have put on the place.
Ellen K. Hoffman.”
The answer further stated that L. T. Martin was elected county clerk in 1904, and after consultation with the plaintiff rented the premises for $600 per year, of which she, the plaintiff, was to have $500, and that the tenant had been in possession since March 1, 1905, but that the tenant refused to pay the rent for 1905, because he had been notified by the plaintiff that he must not do so. The defendants further alleged that they had treated the plaintiff as children should treat a parent, and were desirous of preserving the premises as a home for her in her declining years, as it was the intention that it should be, and that it should remain to defendant Ella H. Martin when the plaintiff was done with the use of it.
The reply included a general denial and a statement that in making such purchase the defendants had furnished a house and lot, which was put in at $1000, under a verbal contract that the plaintiff should pay them $1000 therefor, which she had paid in full.
The tenant intervened in the action, reciting his promise to pay $600 rent, that both parties claimed it, and asking for the orders of the court thereon.
Before the trial, on motion of the plaintiff, the court ordered the clerk to pay her $300 out of the rents paid in by the tenant, which was done. The judgment was for the plaintiff.
The defendants ask for a reversal for error in allow ing such payment of rent to the plaintiff, and because of alleged erroneous rulings concerning evidence, in overruling the demurrer to the evidence, in rendering final judgment, and in refusing a new trial.
Upon the pleadings and the admission that the title to the farm was taken in the name of the plaintiff two principal issues of fact were presented, viz.: Whether the plaintiff was in possession when the suit was. brought, and whether the $1000, admitted to have been furnished by the defendants, was advanced upon an agreement that' they were to have a present interest in the- land therefor, as alleged in the answer, or whether that sum was to be repaid to them, as alleged in the reply. As stated by defendants, “this is the storm-center around which all the evidence hovered.” This was the vital question upon the merits of the case. If the Martins put in their house and lot to assist Mrs. Hoffman in making up the consideration upon her agreement to pay them $1000 therefor, and she did afterward pay it, then they cannot hold an interest in the land merely because they furnished part of the consideration. If, on the other hand, they so contributed this amount in pursuance of an agreement to purchase the land jointly for the use and benefit of all, then it may be urged that Mrs. Hoffman holds the title as a trustee to the extent of their interest. This issue, however, was determined agains.t the defendants by the general finding for the plaintiff. It was, as conceded, an important issue under the pleadings, and, no special findings having been requested, it was resolved against them by the general finding for the plaintiff. A general finding in favor of either party is a finding in his favor of all of the facts necessary to constitute his claim or defense. (Bixby v. Bailey, 11 Kan. 359.)
It was necessary for the plaintiff to prove that she was in possession. This she alleged and the defendants denied. This issue was also determined in her favor by the general finding. This finding established gen erally the plaintiff’s title and possession, and if no other interest was shown in the defendants was sufficient to support the judgment.
In the argument counsel for the defendants urge that their clients had an interest to the extent of $500 and more for improvements, and refer to the last clause in the instrument of July 19, 1904, as supporting that claim. No such interest, however, was pleaded. The only reference to this matter in the answer, aside from the recital-in the agreement copied therein, was this clause: “and making large improvements thereon by defendant L. T. Martin, of which no accurate account was kept.” This was not pleading an interest based on improvements, but was matter of inducement in the statement of the general claim, based on the alleged joint purchase and resulting common ownership, which claim, as we have seen, was disposed of by the finding. If the clause in the instrument of July 19,1904, reciting “if I should sell the place I must first pay them for any improvements whatsoever that they have put on the place” should be construed to give them the right of possession until such payments were made, then it appears that they voluntarily yielded such possession. The evidence clearly shows that the defendants urged Mrs. Hoffman to lease the place to another, informing her of their intention to leave, and advising that the place should not be left vacant. In referring to the amount for which they said they had leased the place and in obtaining her consent thereto they made no claim for any part of the rent, and made no suggestion of any possible lien for improvements, although .they did at another time ask for a note for the amount they claimed to have expended for that purpose. It is true that Mr. Martin executed the lease in his own name, but there was nothing in the correspondence to indicate to Mrs. Hoffman his intention to do so, nor did he report that fact to her, and when asked for the lease failed to send it or a copy of it. In the circumstances Mrs. Hoffman was amply warranted in supposing that the lease had been executed in her own name, and that the rents were hers.
The evidence upon which the general finding for the plaintiff was based cannot be reviewed in this court, except so far as to determine whether there was competent evidence.sufficient to support the finding. (Donaldson v. Everhart, 50 Kan. 718, 32 Pac. 405; Briggs v. Brown, 53 Kan. 229, 36 Pac. 334; Railroad Co. v. Swarts, 58 Kan. 235, 48 Pac. 953.)
Complaint is made of the rulings of the court in the admission of evidence. On cross-examination of the plaintiff as a witness she identified a letter written by her, and was then asked: “And in that letter you say — ”. At that point an objection was made, and the objection was sustained. The purpose of counsel in asking the question was not disclosed, but they now say in their brief that “every word that was written in that letter might have been repeated to the witness and she asked whether that was her statement at that time.” But she had said so in effect, for she had admitted that .she had written it. If they meant to repeat parts of the letter and then ask if she made the statements so repeated, then the rule as stated in Greenleaf applies, viz.:
“And if he [the witness] admits the letter to be his writing, he cannot be asked whether statements, such as the counsel may suggest, are contained in it, but the whole letter itself must be read, as the only competent evidence of that fact.” (1 Greenl. Ev., 16th ed., § 463. See, also, Jones, Ev. §§ 232, 850; Glenn v. Gleason et al, Ex’rs, 61 Iowa, 28, 15 N. W. 659.)
Notwithstanding this rule, it may be that where the purpose of counsel is to use an extract from the writing as a basis for some inquiry fairly tending to test the witness’s memory or credibility it ought, in the exercise of a wise discretion, to be permitted. (Wig. Ev. §§ 1259, 1260.) No such purpose, however, was indicated, and, counsel having read the letter in evidence, no injury could have resulted from the ruling, and under the authoritiés there was no error in this respect.
The same witness, over the objection of the defendants, was allowed to testify that she was “living on the premises when the suit was commenced.” This was objected to as a conclusion. It is true that her possession was an issue in the case; still, we think that where she was living was a fact. Yet, if it was a mere conclusion from other facts, they were also given. Thus she related when she went to the farm, that her household goods were there, and that she ate and slept there.
Some other minor objections to testimony were made, but we find no error in the rulings thereon.
Error is also predicated upon the order allowing the plaintiff to receive $300 of the money paid into court by the tenant. ■ As the defendants admitted that $500 of, this fund belonged to her it is clear that they were not prejudiced by the order.
Upon an examination of the record we conclude that the case was fairly tried, that the rights of all the parties were properly protected, arid that there was no error in the proceedings prejudicial to the defendants. The judgment is affirmed. ' ' | [
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Per Curiam:
This case involves the question whether a county attorney may maintain an action in the name of the board of county commissioners to recover fees alleged to have been paid to a former county officer in excess of those authorized by law. The question was determined in Kerby v. Clay County, 71 Kan. 683, 81 Pac. 503, and following the rule in that case the judg-' ment of the district court is reversed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The cancelation of a lease was the purpose of this suit. On April 29, 1897, G. D. Hartz leased a tract of land to W. M. Mills “for gas, oil or coal purposes,” giving him the “exclusive right to dig, bore and mine for gas, petroleum oil and' coal” on the land for a term of twenty years and as much longer as gas, coal and oil were found in paying quantities. Mills was given the right of way to and from any wells or mines dug or bored on the land, with the power to construct appliances thereon for mining purposes and the right to remove machinery from' the land “when the same is abandoned or the lease expires.” In consideration of the lease Mills agreed to pay one dollar and give a royalty of eight cents a ton on the coal mined, and, if gas should be found in paying quantities, to pay Hartz fifty dollars per annum for the gas obtained from each well, and also to provide sufficient gas to supply two stoves in his farmhouse. Mills never dug or bored for gas, oil or coal, nor made any development whatever upon the land; and, after the lapse of seven and one-half years, this suit was brought, in which Hartz alleged, as grounds for setting aside the lease, the failure to explore or develop the land to any extent, and, further, that Mills had never filed the lease for record with the register of deeds and had not listed it for taxation, as the statute requires. Upon the testimony produced the court found that the lease was not binding upon Hartz because of the abandonment of the same by Mills, and that it was void for the further reason that it had not been recorded within ninety days after its execution nor listed for taxation. Of these rulings Mills complains.
The single ground of abandonment is all that requires consideration. On the side of Mills it is contended that the lease did not provide for immediate or early exploration, but gave him twenty years to explore and develop; that it contained no conditions of forfeiture and did not contemplate a possible abandonment within the twenty-year period. On the other side it is contended that, although the lease contained no provision requiring development within a fixed time, it was granted upon an implied condition that the lessee should explore and develop within a reasonable time and that the failure to do so amounted to abandonment.
The lease is not a grant of land, nor of the oil, coal, or gas in the land. It does not transfer any estate to Mills, and hence some of the rules which he invokes as to non-user and abandonment do not apply. Hartz granted him the possession of a part of the land, with the right to search for minerals, and gave him an interest in so much of the minerals as might be found and taken out; but, if none were found, no interest in the undiscovered mineral could be acquired by him, and certainly no estate in the land. (Gas Co. v. Neosho County, 76 Kan. 335, 89 Pac. 750; Huggins v. Daley, 40 C. C. A. 12, 48 L. R. A. 320.) Having only the right to search for and procure gas, oil and coal, when must the search begin? Since the time for commencing the operation is not expressly stated, we must look to the terms of the lease and the subject of the contract to determine what was within the contemplation of the parties. We think the court rightly held that, under such a lease, it is the duty of the lessee to make a dili-., gent search within a reasonable time. The only consideration moving to the lessor for the right which he gave to the lessee to explore and procure minerals was the royalty on the coal to be found and the fixed compensation for each well when gas should be found and utilized, together with sufficient gas to supply two stoves in his farmhouse. If there were no search, nor any product, no possible benefit could come to the lessor for the exclusive rights which had been given to the lessee. It is not easy to infer that the lessor intended to give a valuable right for a nominal consideration, and permit the lessee to retain the right for a period of twenty years without development, when development was the chief purpose in the execution of the lease. Neither the character of the right given nor the nature of the instrument admits of such an irrational interpretation. The lease contemplates that the lessee shall proceed to dig and bore for gas, oil and coal, and that the lessor shall obtain gas for his farmhouse, not twenty years hence, but as soon as it can reasonably be procured. It is contemplated, too, that the compensation for each gas-well shall be paid annually and not at some remote period.
The case of Bluestone Coal Co. v. Bell, 38 W. Va. 297, 18 S. E. 493, involved the construction of a mining lease given for ninety-nine years, no time being fixed for the commencement of operations under it, and the court held that the lease contemplated that the lessee should begin operations within a reasonable time and if he did not do so the lessor had the right to treat the whole contract as abandoned.
The supreme court of Virginia, in speaking of a similar lease given for twenty years, said :
“Yet, looking to its nature and object, it cannot be contended that the lessees had the option to work or not to work the ore mines for an indefinite time, and thus convert what was designed to yield a handsome daily income to the lessor into a mere barren encumbrance on his land, a cloud on his title, an incubus and a manacle which would oppress him and destroy the marketable value of his land. No lease of land for a rent, for a return to the landlord out of the land which passes, can be construed to be intended to enable the tenant merely to hold the lease for purposes of speculation, without doing and performing in connection therewith what the lease contemplated. Such a construction would indeed make all such contracts a snare for the entrapment and injury of the unwary landlord. A man buying and paying for land may do with it as he likes — work it, or let- it lie idle. But a tenant to whom land passes for a specific purpose has no such discretion; he must perform what he stipulated to do and if he has obtained the lease by misrepresentation and fraud, the lessor may have it rescinded in equity.” (Rorer Iron Co. v. Trout and wife, 83 Va. 397, 409, 2 S. E. 718, 5 Am. St. Rep. 285.)
In Huggins v. Daley, 40 C. C. A. 12, 48 L. R. A. 320, a lease giving the right of possession for the purpose of exploration and development was before the circuit court of appeals. In treating of the nature of the lease the court remarked:
“The title is inchoate, and for the purpose of exploration only until the oil is found. If it is not found, no estate vests in the lessee; and, where the sole compensation to the landlord is a share of what is produced, there is always an implied covenant for diligent search and operation. There is, perhaps, no other business in which prompt performance is so essential to the rights of the parties, or delays so likely to prove injurious — no other class of contracts in which time is so much of the essence.” (Page 14.)
Farther along in the opinion it was said:
“Where the only consideration is prospective royalty to come from exploration and development, failure to explore and develop renders the agreement a mere nudum pactum, and works a forfeiture of the lease, for it is of the very essence of the contract that work should be done. ... No such lease should be so construed as to enable the lessee who has paid no consideration to hold it merely for speculative purposes, without doing what he stipulated to do, and what was clearly in the contemplation of the lessor when he entered into the agreement.” (Page 19.)
In Maxwell v. Todd, 112 N. C. 677, 16 S. E. 926, a mineral lease running for a term of ninety-nine years gave the lessee an exclusive right to explore a tract of land and take mineral from the same, paying to the lessors a part of the net proceeds received from the minerals which might be taken from the land. The lease contained no stipulation of forfeiture because of failure to explore or work the mines. The court held that “the law will construe the contract as if such a stipulation had been expressly written therein, and will adjudge such lease to be forfeited if, within a reasonable time, the lessee fails to carry out the purpose of the lease.” (Syllabus.)
(See, also, Venture Oil Co., Appellant, v. Fretts, 152 Pa. St. 451, 25 Atl. 732; Crawford v. Ritchey, 43 W. Va. 252, 27 S. E. 220; Steelsmith v. Gartlan et al., 45 W. Va. 27, 29 S. E. 978, 44 L. R. A. 107; Foster v. Elk Fork Oil & Gas Co., 32 C. C. A. 560, 90 Fed. 178; Elk Fork Oil & Gas Co. v. Jennings, 84 Fed. 839; Conrad v. Morehead, 89 N. C. 31; Hawkins v. Pepper, 117 N. C. 407, 23 S. E. 434; Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, 23 L. Ed. 328; Thornton, Oil & Gas, §§ 126, 129.)
When a lease provides how and when search for oil or gas shall be made there is no room for implications. Likewise, if parties provide for an option in the lessee to operate and pay a royalty on production, or to pay a stated rental if no development is made, the lessee »may elect to delay and pay the stipulated price of such delay. The case of Rose v. Lanyon, 68 Kan. 126, 74 Pac. 625, cited by plaintiff in error as an opposing , authority, is an example. It was there held that when parties enter into 'a written contract expressly stipulating that the lessee shall have an option to drill a well or pay the price of delay, and also stipulating the grounds upon which forfeiture may be taken, the contract, as to these things, is necessarily binding upon them and cannot be extended by implication. No such stipulations were written in this lease, nor does it contain any language indicating any other purpose than early exploration and operation.
According to the testimony Hartz repeatedly urged Mills to commence operations under the lease. At one time Mills spoke as if he intended to bore for gas “as soon as they could get to it,” but nothing in his conduct indicated such a purpose. At another time he stated that he did not have sufficient territory in that neighborhood to warrant him in drilling there. At no time, however, did he do anything toward drilling or exploring for gas, and he never asked for the possession of the land for that purpose. He stated on the trial that he never intended to abandon the lease, but his protracted delay and the failure to do the things contemplated by the lease are equivalent to a surrender and gave the lessor the right to treat the whole contract as abandoned.
Error is predicated on the ruling of the court denying the application of Mills for a jury trial. A suit to cancel a lease is equitable in its nature and one in which a jury may not be demanded as a matter of right. It is true, as plaintiff in error contends, that there were issues of fact to be tried, but the code provides that only issues of fact arising in actions for the recovery of money or specific real or personal property are to be tried by a jury. All other issues of fact are triable by the court, subject to its power and discretion to order any of the issues to be tried by a jury or by a referee in the manner directed by the code. (Civ. Code, §§ 266, 267; Gen. Stat. 1901, §§ 4713, 4714; Maclellan v. Seim, 57 Kan. 471, 46 Pac. 959.)
The objections to rulings on the testimony are not _ material, and we find no reversible error in the record. The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
On the 6th day of August, 1902, the probate court of Miami county probated the will of Jacob F. Miller, deceased, and appointed William Standing as executor. The 'will devised all of the testator’s estate to William Standing, Addie Nichols, Josephine Savage, and John T. Haight, in certain portions named' therein.
Afterward, on the 13th day of March, 1903, Jacob Miller, claiming to be one of the heirs at law of the deceased, brought this suit in the district court to contest the will, claiming that the testator was of unsound mind and under the undue influence of defendants at the time the will was executed. The case has never been brought to trial and is still pending in the district court. One of the defendants, William Standing, died, and the suit was revived. His widow, as his sole heir and executrix, and William Crowell, administrator de bonis non with the will annexed of Jacob F. Miller, deceased, were made defendants. «
While the suit was still undetermined, and on De: cember 16, 1905, Harriet A. Maurer, plaintiff in error, filed in the suit a motion to be allowed to intervene and set up her rights as an heir at law of Jacob F. Miller, deceased. This motion was allowed, and she filed her intervening petition. A demurrer was sustained to it, and afterward an amended intervening petition was filed, in which she alleged that she was an heir at law of Jacob F. Miller, deceased, and interested in the subject-matter, and the rights, title and interest of defendants in the action were adverse to her rights. She then set up the same grounds for contesting the will that are alleged in the petition of Jacob Miller, the original plaintiff. She also alleged that she resided at Cedar Rapids, Iowa, and that she did not learn of the death of Jacob F. Miller, the testator, nor of the pretended will, until two years after the will had been probated. The defendants in the suit demurred ,to this intervening petition, on the ground that the statute of limitations requiring a suit to contest a will to be brought within two years from the time the will is probatjed barred her cause of action. The court sustained the demurrer, and this is alleged as the sole ground of error.
The question is therefore sharply presented whether an action begun before the bar of the statute falls will inure to the benefit of a party wh'o intervenes after the time when the action would be barred. In the brief of defendants in error it is assumed that the ruling upon the demurrer was-correct. No reasons are suggested or argument offered in support of it; and no authorities are cited upon the proposition. Plaintiff in error relies upon the case of Lyons v. Berlau, 67 Kan. 426, 73 Pac. 52, where a question somewhat similar was decided. That was a suit to contest a will, and one of the devisees who'was friendly to the contestor afterward joined in the suit to have the will annulled, and was not made a party until two years after the will was probated. It was held that the bringing in of such party was permissible and that the prosecution of the suit thereafter was not affected by the statute of limitations.
In the present case it is conceded that the main suit can still be prosecuted, the only contention being that the cause of action belonging to the intervenor is barred. There is no discussion of the question in the opinion in Lyons v. Berlau, supra, and the only authority referred to is Hucklebridge v. Railway Co., 66 Kan. 443, 71 Pac. 814. There the sole question decided was that where an amendment simply adds the name of a party plaintiff, and does not substantially change the claim of plaintiff, the statute is not available as a defense. The same doctrine was declared in Service v. Bank, 62 Kan. 857, 62 Pac. 670, where it was said in the opinion, at page 862:
“If the substituted party had introduced a new claim and cause of action by the amendment, against which the statute of limitations had then run, the defense would have been available.”
(To the same effect see 25 Cyc. 1303, 1304, and cases cited.)
The principle' declared by this court in the cases cited has a pertinent application to the present case. The intervenor sets up no new cause of action or claim against defendants, but relies upon the same grounds to defeat the will which were alleged in the original petition. (See Suber v. Chandler, 36 S. C. 344, 15 S. E. 426; Becnel v. Waguespack, 40 La. Ann. 109, 3 South. 536.) In volume 25 of the Cyclopedia of Law and Procedure, at page 1301, it is said:
“A suit brought before the bar of limitation is complete will inure to the benefit of one intervening after the time when but for the commencement of the suit the claim would be barred.” (Citing Becnel v. Waguespack, supra; Foote v. O’Roork, 59 Tex. 215; Field v. Gantier, 8 Tex. 74.)
The two Texas cases referred to in the note are cited by plaintiff in error. Both were actions upon promissory notes and the intervenor in each case claimed an interest in the note. It was held that as the cause of action was not changed the intervenor took the cause as he found it, and that the statute was no defense. It is further said in volume 25 of the Cyclopedia of Law and Procedure, at page 1301:
“According to some decisions, however, intervention will not have this effect, when no privity of estate or community of interest exists between the parties.”
In the present case it is apparent that a community or privity of interest does exist between the intervenor and the other parties. The law favors, ánd our code makes ample provision for, the intervention of parties who have or claim an interest in the subject-matter of the controversy. (Civ. Code, § 42; Gen. Stat. 1901, § 4470.) A suit to contest a will is a proceeding in rem. The court acquires jurisdiction of the res, and its decree affects the interest therein of all parties who in fact have an interest in it. (17 A. & E. Encycl. of L. 185; Coleman v. Martin, 6 Blatchf. [U. S. C. C.] 119.)
In the present case, if the decree finally entered should adjudge the will to be invalid, it would inure to the benefit of plaintiff in error. No decree the court could enter could fail to affect her rights. For this reason she has the right to intervene and to prosecute the suit to its end, regardless of what the original plaintiff may do. Her right to recover does not depend solely upon his right to maintain the action. Pending the final determination he may see fit .to abandon the suit, or he may be found to have no right to maintain it for the reason that he is estopped by having accepted under the will, or some other obstacle may stand in the way of his maintaining the suit; but, if the grounds for setting, aside the will alleged in his petition are established, the intervenor may upon the same grounds maintain the action.
The intervenor takes the suit as he finds it. He is not permitted to change the form of the action or the issues, or to raise a new one. But his right to maintain the action after intervention “cannot be defeated by the dismissal by the plaintiff of the original suit, nor by the'plaintiff’s being non-suited.” (17 A. & E. Encycl. of L. 185.)
A case squarely in point is Bradford v. Andrews et al., 20 Ohio St. 208, 5 Am. Rep. 645. There the proceedings to contest a will were commenced within the statutory time. Only a part of the persons interested were made parties, and it was held that the right of action was saved as to all who were ultimately made parties notwithstanding some of them were not brought into the case until after the period of the statute of limitations had expired. In the opinion it was said:
“The interest of the parties is joint and inseparable. Substantially this is a proceeding' in rem, and the court cannot take jurisdiction of the subject-matter by fractions. The will is indivisible, and the verdict of the jury either establishes it as a whole, or wholly sets it aside. To save the right of action therefore to one is necessary to save it to all. The case belongs to that class of actions where the law is compelled either to hold the rights of all parties in interest to be saved, or all to be barred. And it seems now to be quite well-settled law that the preference will in such cases be given to the right of action, and not to the right of limitation. The right to sue is a favored right, and is guaranteed by constitutional provision, while the right of limitation generally meets with more or less disfavor.” (Page 219.)
The commencement of the original suit within two years from the probate of the will inured to the benefit of the intervenor, and the statute of limitations therefore furnished no defense to the intervening petition.
The judgment is reversed, with directions to overrule the demurrer. | [
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The opinion of the court was delivered by
Benson, J.:
The plaintiff and defendant made simultaneous entries upon a tract of school-land. Each made improvements exceeding $100 in value, and each resided on the land more than six months. Each published a notice of his intention to purchase as provided by law, and the date of hearing upon each notice was for the same day. Mr. Wood presented his proofs, and a finding was made by the probate court of the facts entitling him to purchase. He then made payment of the appraised value to the treasurer and received a certificate of purchase, and subsequently a patent was issued to him for the land. Mr. Erskin, however, published another notice, and on a later date, upon a hearing thereon in the probate court, a finding was made in his favor of the facts entitling him to purchase, whereupon he paid one-tenth of the appraised value and was given a certificate of purchase of the same land. He remained in possession and claimed to be the sole' owner when Mr. Wood commenced this action of ejectment, claiming that he was the owner and entitled to possession. The court, among other things, found as follows:
“There has been simultaneous settlements, improvements of practically the same character, and residence for the same length of time in the case of both parties. . . . Mr. Wood has a patent to this land, and the evidence shows that the defendant, Erskin, has not a patent, but that he holds a certificate of purchase, and that he has title to the land, for the purpose of this case, of equal importance as the title of the plaintiff. Now the question is whether or not the defendant, being in possession of the land, and the plaintiff,' being out of possession, and the titles equal, the plaintiff is entitled to recover in this case. . . . They made improvements of the same character. Each understood that the other was there, and each' understood when the other went there. Either party might have yielded his right to a portion of that land in consideration of the other party yielding his right to the other portion, but instead of doing that each went ahead with the understanding that the other party was there, and with the understanding that it might prove true that each party had as much right there as the other.”
The court held that the parties were tenants in common of the land, and that, as the defendant had denied the plaintiff’s right and claimed to be the sole owner, the plaintiff should recover an undivided oné-half, to be held jointly with the defendant. The conclusion was correct. In volume 1 of the sixth edition of Washburn on Eeal Property, section 878, it is said:
“In this country, wherever two or more persons acquire the same estate by the same act, deed, or devise, and no indication is therein made to the contrary, they will hold as tenants in common. Thus, where commissioners confirmed claims to the same land to two differ ent persons, they took equal shares in common, and the same would be the effect of two simultaneous conveyances to different persons. So where two creditors mqde simultaneous levies on land, as they took at the same time with equal rights, they were held to be tenants in common in equal shares.”
Where two grants bore the same date, and the surveys were recorded and certified on the same day, upon warrants issued at the same time, the grantees were held to be tenants in common. (Young v. De Bruhl, 11 Rich. [S. C.] 638, 73 Am. Dec. 127.) The same result was declared in Wisconsin, where under an act of the congress to ascertain and decide upon the rights of certain settlers the commissioners found and certified that each of the parties was entitled to a certain tract. Their action was confirmed by the congress, and this was held to be a grant of the same iand to each, although a patent had been issued to but one, and that each took an undivided moiety of the land. (Challefoux and Grignon v. Ducharme et al., 4 Wis. 554.)
It is claimed that tjie plaintiff’s title is defective because of an insufficient publication of the notice for the hearing in the probate court. The record contains this admission:
“It is admitted by the defendant that a notice was published which purports on its face to have been published on the 26th day of October, 1905, and that an affidavit by the printer was filed with the notice with the probate judge, and that the notice over the heading of it reads: ‘First published October 26th, 1905.’
“And that the affidavit of the printer shows that it was first-published in the issue of October 26, 1905.”
The paper was printed on Thursday, the 26th, and the testimony of the publisher on the trial was to the effect that the papers distributed through the mails were delivered at the post-office Friday or Saturday— that he was not sure that they were in on Friday. The assistant postmaster testified that he did not believe they were brought in until Saturday, and afterward said that none were brought in on Friday. In addition to this testimony there was the finding of the probate court that due notice had been given (Beedy v. The State, 4 Kan. App. 575, 46 Pac. 65), and the fact that a patent had been issued to the plaintiff. Considering all the evidence, along with the presumption of the regularity of the proceedings, we cannot overthrow the finding that proper notice was given. We do not now decide what would be the effect upon a legal notice otherwise properly published of a failure seasonably to mail that part of a newspaper edition circulated by that means, as the question is not necessary to the decision of this case.
The plaintiff sued for the entire tract, but upon the findings of the court recovered an undivided one-half. There was no error in this. One of two tenants in common may recover his undivided interest against his cotenant who denies his right thereto. (Gatton v. Tolley, 22 Kan. 678; Everett v. Lusk, 19 Kan. 195.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
In this case there was a contract in writing for the sale of eighty acres of land, executed June 23, 1902. The purchase-price was $3100. Brown, the purchaser, paid $500 and was given possession of the land. McCrie, the vendor, was to convey by good and sufficient warranty deed March 2, 1903, and to furnish an abstract showing perfect title in himself, at which time Brown was to pay the balance of the purchase-price, without interest. This action was commenced on April 4, 1904, by the vendor, to recover the purchase-price of the land, the petition alleging that on August 3, 1903,-the plaintiff tendered a deed and abstract of the kind called for and that the defendant refused to accept the same.
Defendant, filed an answer and cross-petition, the first count of which admitted the execution of the contract, the payment of the $500, and that defendant secured possession of the land at the time the contract was executed and “has since succeeded in holding the same.” All of the other averments of the' petition were denied. A demurrer to this count of the answer was overruled.
The controversy arises over the second count of the answer, to which the court sustained a demurrer. It specifically denied that a deed or abstract in compliance with the contract had been tendered, and alleged that the only abstract tendered showed numerous defects in the title. Some of the alleged objections to the title are technical, involving shadowy claims which time would cause to disappear and which furnish no ground to justify a court in affording any relief to the defendant. The principal objection to the title raised by the answer is that plaintiff never acquired any right to the land except such as, it was alleged, resulted from the sale thereof under an execution levied thereon, based upon a judgment against one R. D. Tucker, who on the date of the judgment owned the land and occupied it as a homestead. It was also alleged that the judgment was founded upon the liability of Tucker as surety for his son, and that no part of the consideration of the claim upon which the judgment was based was made up of the purchase-price or expense of caring for or placing improvements on the land; that while Tucker continued to occupy the land as a homestead for himself and family his wife became insane, and continued alive and insane and incapable of consenting to the alienation of the homestead until after the tender by plaintiff of a deed to defendant, and that she never joined in or consented to the execution of any conveyance of the land. It was further alleged that the insane wife of Tucker is now dead, and that Tucker asserts, and at all times since the execution of the contract sued on has claimed and asserted, that the title of plaintiff is void; that Tucker and his grantees have for all of such time threatened to eject defendant from the land, and that since the commencement of this action one George L. Tucker, who claims to have acquired the rights of R. D. Tucker to the land, has commenced an action in ejectment and for rents and profits against defendant and plaintiff, and that the action is pending in the same court. It was alleged that the land has increased in value one-third since the execution of the contract, and that the plaintiff, when requested to make good the defects in his title, insisted that his title was perfect and refused the demand. Defendant averred a willingness to pay the balance of the purchase-price when the title should be perfected, and prayed that all the parties appearing by the abstract to have any possible outstanding claim or equity in the lands be made defendants and caused to set up their respective claims, and that plaintiff be made' to satisfy all claims lawfully brought against the land, either in this suit or the action brought by Tucker, and after so doing to complete the abstract so as to show title perfect and to make the conveyance upon being paid the balance of the purchase-price.
The demurrer was sustained upon the theory that the case is controlled by Dunn v. Mills, 70 Kan. 656, 79 Pac. 146, 502. The court, however, is of the opinion that the facts set out in the answer and cross-petition are sufficient to take the present case out of the operation of the principles upon which that case was decided. That the rule declared in Dunn v. Mills is the correct one when applied to the facts in that case admits of no doubt. There the vendee had continued in the peaceable and undisturbed possession of the premises under the contract; he made no objection to the deeds, to the abstracts, or to the vendor’s title; and it was held that the circumstances presented a case governed by the well-established rule that a vendee who receives possession under the contract and whose possession is not, disturbed will not be permitted to deny his liability for the purchase-price on the ground that the title is defective and at the same time insist upon remaining' in possession.
In the present case, according to the averments of the pleading, the possession of the vendee cannot be said to have been peaceable and undisturbed, for it appears that the persons claiming adversely have at all times threatened to eject him from the land, and, further, that when the first deed and abstract were tendered he objected to the vendor’s title.
In construing the pleading every reasonable inference and presumption must be indulged in its favor. We have pro right to assume that the second action was collusive or that it was not brought in good faith. It further appears by the answer that the vendor’s title, if defective for the reasons stated, could not be cured by lapse of time, owing to the commencement of Tucker’s-suit before the bar of the statute.
In view of the equitable character of this action, and the power a court of equity possesses to grant to either party whatever relief his equitable rights demand, we are inclined to the opinion that it was the duty of the court to overrule the demurrer and retain the cause until the court could determine what the equitable rights of the párties were. It is within the power of a court of equity, under such circumstances, to inquire whether the second action is collusive or whether it has substantial merit; and if equity requires the postponement of this action until the second shall have been finally disposed of the court has power to make any order found to be necessary. It may determine, upon fuller investigation, that the rule declared in the case of Dunn v. Mills, 70 Kan. 656, 79 Pac., 146, 502, applies to the facts in this case. On the other hand, it may determine, under the facts and circumstances, that defendant is entitled to some of the relief asked for in his cross-petition. A court of equity can so mold and shape the subsequent proceedings as to protect the rights of both parties and avoid a multiplicity of actions. It may become the duty of the court to consider the question of the solvency of either party as affecting the rights of the other. In McIndoe v. Morman, 26 Wis. 588, 7 Am. Rep. 96, it was said:
“In all such cases the court may so shape and control its proceedings as to prevent injustice, and compel either party to do that which is equitable.”
In Mack v. Patchin, 42 N. Y. 167, 1 Am. Rep. 506, referring to the exceptions to the rule of law upon which Dunn v. Mills, supra, rests, it was said:
“But at an early day, in England and in this country, certain cases were declared to be exceptions to these rules, or, more properly speaking, not to be within them; as, if the vendor is guilty of fraud; or can convey but will not, either from perverseness or to secure a better bargain ; or if he has covenanted to convey, when he knew he had no authority to contract to convey ; or where it is in his power to remedy a defect in his title, and he refuses or neglects to do so; or when he refuses to incur expenses which would enable him to fulfil his contract; in all these cases, the vendor or lessor is liable to the vendee or lessee for the loss of the bargain, under rules analogous to those applied in the sale of personal property.” (Page 172.)
In Reeve v. Downs, 22 Kan. 330, it was said that the general proposition is “Subject to many limitations and exceptions” (p. 335),' and abundant authority recognizing some of these exceptions may be found in the excerpts from leading cases on the subject in the opinion in Dunn v. Mills, 70 Kan. 656, 79 Pac. 146, 502. Thus, in Sanderlin v. Willis, 94 Ga. 171, 21 S. E. 291, it was held that the general rule obtains “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.” (Page 173.) In other cases cited, as Dahl v. Stakke, 12 N. Dak. 325, 334, 96 N. W. 353, McLemore v. Mabson et al., 20 Ala. 137, and Wyatt v. Garlington, 56 Ala. 576, it will be found that the purchaser had never been disturbed in his possession or had never been threatened with dispossession.
The judgment is reversed, and the cause remanded for further proceedings in accordance with these views. | [
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The opinion of the court was delivered by
Graves, J.:
This is a proceeding to determine the sufficiency of an information, filed in the district court of Russell county, which, except formal and unnecessary parts, reads:
“I, M. F. Gernon, the undersigned, county attorney of the said county of Russell, in the state of Kansas, . . . come now here and give the court to understand and be informed that on the 23d day of October, A. D. 190.6, the said.defendant, Alna R. Rhodes, then and there being, was then and there the owner in fee simple of the following-described real estate, situate in the said county of Russell, in the state of Kansas, to wit: . . . That on the said 23d day of October, 1906, the said defendant, Alna R. Rhodes, and one Minnie E. Rhodes, his wife, at the said county of Russell, in the state of Kansas, made, executed and delivered to one Marc L. Friend their certain principal promissory note, in writing of that date, whereby, for value received, they promised to pay to the order of said Marc L. Friend, in five years after the date thereof, the sum of seven hundred dollars, with interest at the rate of six per cent, per annum until paid, according to ten interest coupon notes for twenty-one dollars each, and annexed to and bearing even date with said principal note.
“That for the purpose of securing the payment of said principal and interest notes, and the sums of money to become due thereon, the said Alna R. Rhodes and Minnie E. Rhodes, at the said county of Russell, in the state of Kansas, and on the said 23d day of October, 1906, made, executed and delivered unto the said Marc L. Friend their certain mortgage, in writing of that date, whereby they, said Alna R. Rhodes and Minnie E. Rhodes, did grant, bargain, sell and mortgage unto the said Marc L. Friend, his heirs and assigns, the aforesaid property situate in the said city of Lucas, in the county of Russell, in the state of Kansas; that said mortgage was duly filed for record in the office of the register of deeds of said Russell county, Kansas, on the 28th day of May, 1907, at one o’clock p. M. of said day, and duly recorded in volume 25 of mortgage records of said county, at page 592. A copy of said mortgage is hereto attached, marked ‘Exhibit A’ and made a part of this information.
“That the said Marc L. Friend is now and always has been the legal holder and owner of said note, mortgage and coupon notes, and that said mortgage, note and coupon notes have never been paid, or any part thereof, and that the same are outstanding and in force; that the said defendant, Alna R. Rhodes, is now, and ever since the time of the making of said mortgage, note and coupon notes has been, the owner of said real estate hereinbefore mentioned and described, and every part thereof.
“And I, the undersigned, county attorney, do further give the court to understand and be informed that, on the 21st day of May, A. D. 1907, and while said mortgage heretofore mentioned and described, and given previously to said Marc L. Friend, as aforesaid, was outstanding, and in force, as aforesaid, and unrecorded in the office of the register of deeds of said Russell county, Kansas, the said Alna R. Rhodes, then and there being, joined by his said wife, Minnie E. Rhodes, at and within the said county of Russell, in the state of Kansas, did then and there' wilfully and unlawfully, and with the intent then and there of him, the said Alna R. Rhodes, the said Marc L. Friend to defraud, make, execute and. acknowledge their other certain mortgage in writing of that date'to one Harriet Rhodes, whereby he, said Alna R. Rhodes, joined by his said wife, Minnie E. Rhodes, conveyed, sold and mortgaged to said Harriet Rhodes, for the purported consideration of three hundred and fifty dollars, the real estate heretofore mentioned and described and theretofore mortgaged to said Mare L. Friend, as aforesaid, to wit: . . . That said mortgage, so made and given to said Harriet Rhodes, as aforesaid, was, on the 22d day of May, 1907, at ten o’clock A. M., and prior to the recording of the mortgage given to said Marc L. Friend, as aforesaid, filed for record in the office of the register of deeds of said Russell county, Kansas, and recorded in volume 25 of mortgage records of said county, at page 591; and which mortgage, so made and given to said Harriet Rhodes by said Alna R. Rhodes and Minnie E. Rhodes, and recorded as aforesaid, with indorsements thereon, is in words and figures as follows: [Here follows an ordinary real-estate mortgage from Alna R. Rhodes and wife to Harriet Rhodes.] On the back of said mortgage appears the following record item: ‘State of Kansas, Russell county, ss. I certify that this instrument was filed for record on the 22d day of May, A. D. 1907, at ten o’clock A. M., and duly recorded in book 25 of mortgages, at page 591.’ That said Alna R. Rhodes, in the said mortgage so made and executed by him and the said Minnie. E. Rhodes to the said Harriet Rhodes, as aforesaid, and recorded as aforesaid, wilfully, purposely and unlawfully, and with the intent of him, the said Alna R. Rhodes, the said Marc L. Friend to defraud, failed to and did not recite or describe, or state in substance therein, the mortgage so made and given to the said Marc L. Friend, as aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state oí Kansas.”
“Exhibit A” attached to the information is an ordinary real-estate mortgage, from Alna' R. Rhodes and wife to Marc L. Friend, covering the same property as the one to Harriet Rhodes. On the back of this mortgage appears the following record item:
. “State of Kansas, Russell county, ss. I certify that this instrument was filed for record on the 28th day of May, A. D. 1907, at one o’clock P. M., and duly recorded in book 25 of mortgages, at page 592.”
A motion to quash was allowed. The journal entry thereof reads:
“Now, on this 2d day of August, 1907, at an adjourned session of the regular May, 1907, term of said court, there came on for hearing in said cause the cer-' tain motion of defendant made and filed in said cause on July 30, 1907, to quash the information filed in said cause, which motion, omitting the caption, is in words and figures as follows:
“ ‘Comes now the defendant and moves the court to quash the information filed herein, for the following reasons:
“ ' (1) That the court has no jurisdiction of the person of the defendant.
“ ‘ (2) That the information does not state a cause of action or a crime under the laws of the state of Kansas.
“ ‘(3) That the information does not definitely describe an offense against the laws of the state of Kansas.
“ 'Wherefore, the defendant prays that his motion be sustained, and that the information be quashed, and that he have his costs.’
“The said plaintiff appearing by M. J. Gernon, county attorney of said county, and L. B. Beardsley, of counsel; the said defendant appearing in person and by his attorney, George W. Holland; and thereupon said motion was argued to the court, and after argument of counsel, and the court being fully advised in the premises, said motion was by the court sustained and the information filed in said cause quashed, upon the ground and for the sole reason that, in the judgment of the court, section 99 of the crimes act, being general section 2092 of the General Statutes of 1901, has no application to, and does not cover, the offense charged in said information — that is, that a second mortgage is not a 'deed or writing for the conveyance or assurance of lands, tenements or hereditaments’ within the meaning of said statute; that this was the sole and only question passed upon by the court, and no other question was considered by the court in passing upon said motion. To which ruling and judgment of the court sustaining said motion and quashing said information the plaintiff, the state of Kansas, at the time duly excepted, and still excepts, and reserves the question for appeal to the supreme court of the state of Kansas.”
The statute under which the information was drawn, being section 2092 of the General Statutes of 1901, reads:
“Every person who shall make, execute or deliver any deed or writing for the conveyance or assurance of any lands, tenements or hereditaments, goods or chattels, which he had previously, by deed or writing, sold, conveyed, mortgaged or assured, or covenanted to convey or assure to any other person, such first deed being outstanding and in force, and shall not in such second deed or writing recite or describe such former deed or writing, or the substance thereof, with intent to defraud, and every person who shall knowingly take or receive such second deed or writing, shall on conviction be adjudged guilty of a misdemeanor.”
The only question presented here is whether a real-estate mortgage is a “conveyance or assurance of any lands” within the meaning of this statute. The word “conveyance” has no fixed technical meaning. In some states, by statute, it is defined to be the transfer of personal property or any interest in real estate. But in states where there is no statutory definition the a word retains its common-law meaning, which is the transfer of the title to real estate. (9 Cyc. 860, and notes.) In states where a real-estate mortgage conveys the legal title of the land to the mortgagee, mortgages are held to be conveyances. (7 A. & E. Encycl. of L. 488, and notes.) Where not controlled by statute the weight of authority seems to be that “conveyance” means the transfer of the title to reál estate. (See the two authorities cited above, where the subject is fully discussed, and cases cited in the notes.)
It is a familiar rule of interpretation that criminal and penal statutes will be strictly construed in favor of the defendant. (26 A. & E. Encycl. of L. 658; U. States v. Wiltberger, 18 U. S. 76.) The act made criminal by the statute under which this information was drawn is the “conveyance or assurance” of property which has been previously “sold, conveyed, mortgaged or assured,” or covenanted to be conveyed or assured. It will be seen that the language here used to describe the condition of property sought to be protected is much broader and more comprehensive than the language used to describe the acts which the grantor is prohibited from doing toward such property. This indicates that the word “conveyance,” as first used, was not intended to be synonymous with, or to include, the word “mortgage,” or both would not have been used. It seems, therefore, that the interdicted act was intended to be something more than making a mortgage. This idea is borne out by the fact that real-estate mortgages have not been regarded in this state as instruments of conveyance. A real-estate mortgage does not transfer any part of the land to the grantee. Under our law, such a mortgage is a mere security — an incident to a debt, to secure which it is given. (Kelso v. Norton, 65 Kan. 778, 70 Pac. 896, 93 Am. St. Rep. 308; Stark v. Morgan, 73 Kan. 453, 85 Pac. 567, 6 L. R. A., n. s., 934.)
It is urged that even in this state a mortgage at least conveys a lien. It would be more nearly accurate, we think, to say that it creates a lien upon the land in favor of the grantee, and, thereby constitutes an encumbrance upon it, rather than a conveyance.
The word “assurance” comes to us from very ancient times and refers to the instrument itself rather than to what it accomplishes. It is defined to be “any instrument which confirms the title to an estate.” (1 Bouv. Law Diet. 186.) It was anciently used to evidence and assure title to the grantor in a transfer of real estate previously made. (1 Words & Ph. Jud. Def. 591.) We conclude that an ordinary real-estate mortgage is not included in the words “conveyance or assurance,” as used in section 2092 of the General Statutes of 1901, and, therefore, concur in the decision of the district court.
This case was presented here by counsel for the state only. The defendant did not appear. That side of the case, however, has been very fully and ably discussed in a carefully written brief prepared by Messrs. E. W. Grant and Julius Cohn, students in the law department of the state university, who did so as friends of the court. We acknowledge our obligation to them for the assistance thus given.
The judgment of the district court is affirmed. | [
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Per Curiam:
The instruction which the defendant desired relating to expert testimony was proper enough, but it was one of the merely cautionary kind, whioh may be omitted unless due request be made that it be given. The oral outline of what the defendant wished was not sufficient. The request should have been in writing. The court, however, did instruct the jury very fairly, if quite briefly, upon the subject of the request. The instructions given are not open to the interpretation which the defendant seeks to impose upon them.
The fact that the attorney was obliged to make a special adjustment, not merely of his time and business but of his office itself, to meet the demands made upon him by his client had a legitimate bearing upon the amount of his compensation. There is no indication that mere loud talk affected the award of the jury.
The cross-examination of one of the expert witnesses upon the subject of his own charges in similar cases was entirely proper. Of course there could not be a trial of those cases, but the outlines could be sketched in order -to test the soundness of the opinion of the -witness. The proper limits of cross-examination were not transgressed.
The cross-examination of another expert witness of which complaint is made was also proper. The purpose and effect were not to prove an offer of compromise but to probe the witness. His recommendation of what ought to be paid by way- of compromise was quite pertinent to show how his judgment upon the question at issue was formed. If the defendant believed at the time that a limitation should be placed upon the bearing of the testimony he should have requested an instruction to that effect.
The substantial rights of the defendant were fully protected throughout the trial and the judgment of the district, court is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
This is an action by the L. Starks Com-' pany to recover from J. E. Brewer the price of two carloads of potatoes. The action was commenced in the district court of Dickinson county July 11, 1906. A demurrer to the petition, on the ground that it did not state facts sufficient to constitute a cause of action, was sustained, and the plaintiff brings that question here for review. The petition alleges a sale of the potatoes upon a written contract consisting of correspondence, which reads:
(Letter from defendant to plaintiff.)
“Abilene, Kan., January 13, 1906.
“L. Starks Company, Chicago, III.:
“Gentlemen — Kindly quote me your lowest price on a car of bright Early Ohio seed potatoes. I am not particular about the shipment being made for several weeks, but if the mild weather continues it will not be long before we will need them. Yours truly,
J. E. Brewer.”
{Letter from plaintiff to defendant.)
“Chicago, January 15, 1906.
“J. E. Brewer, Abilene, Kan.:
“Dear Sir — Referring to yours of 13, beg to advise that we would quote you on a car or two of our Wisconsin Ohio potatoes at 88c per bushel sacked, delivered Abilene. Quote this price to you subject to your acceptance by Wednesday. If you wished us to hold the stock for you beyond the first of February we would sell you under contract and ask you to carry $100 per car of the cost. Yours truly, L. Starks Company.” '
(Telegram from defendant to plamtiff.)
“L. Starks Company, Chicago, III.:
“Letter received, accept for two cars, send along your contracts. J. -E. Brewer.”
The foregoing letter of the plaintiff contains two propositions: One to deliver potatoes at Abilene for eighty-eight cents per bushel, if the offer is accepted by Wednesday; and another to sell under a contract to deliver after February 1. The telegram of the defendant was intended to accept one of these propositions, it is not very clear which; but the words “send along your1 contracts”'indicate that it was the latter. These words respond directly to that part of the letter, and not to the other clause. Business telegrams as a rule contain as few words as possible, and each word is chosen with care by the sender so that he may be clearly understood.. It seems reasonable, in this view, to assume that the word “contracts” was used in this instance to indicate an intention to purchase for delivery after February 1,, as mentioned in the plaintiff’s letter.
The correspondence, all taken together, is too indefinite to indicate a contractual purpose under the other offer. If the defendant intended to avail himself of a delivery at eighty-eight cents per bushel, it is reasonable to assume that instead of using the words “send along your contracts,” which do not have an intelligible connection with such offer, he would have given the date when he wished the potatoes delivered. Considering the whole transaction, we conclude that no contract was consummated.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The defendant, who resides at Arkansas City, gratuitously undertook to dispose of a car-load of flour for the plaintiff, who resides at Larned, agreeing to confer, with the plaintiff before closing a deal. The flour was in the possession of the United States Indian agent at San Carlos, Ariz. An offer of $2.50 per hundredweight was made for the flour by Brookner & Duncan, of San Carlos. The defendant replied they could have the flour at $2.75 per hundredweight, and requested an answer by telegraph. A copy of the letter to Brookner & Duncan was sent to the plaintiff. Brookner & Duncan telegraphed the defendant they could not use the flour, and the plaintiff was so advised. Some days later the plaintiff wrote the defendant as follows:
“In regard to the San Carlos car will say, while I think it an outrage to sell the flour at the price offered, $2.50, it may be best to do so rather than try to move it. I wish you would proceed to place it and get the matter settled up.”
On February 23, 1904, the defendant wrote Brookner & Duncan as follows:
“We received your telegram the other day, saying you could not use the car of flour at $2.75 per bbl. Would say that we are handling this flour for the Keystone Mills of Larned, Kan., who made the shipment, and have no interest in it at present except to try to see that they get a fair price for the flour. The price you offered us of $2.50 would net the mill just about $1 per cwt. for the flour, which was not the cost of the wheat when the flour was made, since which time wheat has advanced about 20c. per bushel, which is equivalent to at least $1 per barrel on flour, and we trust you can see your way clear to handle this flour at $2.75 per barrel, which is very much less than the flour could be made for at this time. Please wire us at our expense if you can use it at $2.75.”
On February 29 Brookner & Duncan wired the de fendant as follows: “Accept flour at two seventy-five per barrel. Regular terms.” On the same day the defendant wrote to Brookner & Duncan as follows: “We have your telegram of to-day, accepting the rejected flour at San Carlos at $2.75 per barrel, and we have wired the Indian agent to deliver the same to you.” On the same day the defendant wired the Indian agent to deliver the flour to Brookner & Duncan, and mailed a copy of Brookner & Duncan’s telegram, and a copy of .the letter to Brookner & Duncan which elicited the telegram, to the plaintiff.
In due course of mail these copies should have been, and it is not disputed were, received by plaintiff on March 1 or March 2. On March 5 the Indian agent wrote to the defendant as follows: “According to request contained in your telegram dated February 29, 1904,1 delivered to Brookner & Duncan 29,446 lbs., rejected flour.” On March 14, 1904, the plaintiff instructed the defendant to collect from purchasers of re.jected flour, including the Indian department, C. F. Weidemeyer and Brookner & Duncan, which it did. About the middle of August, 1904, on a settlement of accounts between the parties, the mistake in selling at a price per barrel instead of at a price per hundredweight was discovered. The plaintiff sued to recover for the difference, and. judgment was rendered against him upon substantially the foregoing facts. It is claimed here that the judgment is erroneous.
That the act of the agent was negligent and wholly" unauthorized cannot be questioned, but this fact does not establish liability. The agent was acting for its principal, and immediately notified the principal of its conduct. The principal then had the option of affirming or of repudiating the unauthorized act, and was called upon to do one or the other. Prompt action by the plaintiff might have averted loss. It is not certain but that delivery of the flour might have been prevented. The right to rescind was clear, since the letter to Brookner & Duncan containing the offer at a price per barrel disclosed upon its face that a mistake had been made, besides affording some notice that the defendant- was not a general agent.
It is said the plaintiff did not discover the mistake until months had passed. The agent, however, made a prompt statement of its conduct for the information of its principal, and it was the duty of the principal to examine the report and determine whether or not he was satisfied and would be bound. The law allows a reasonable^ time for this purpose, but in commercial transactions of this character a brief time is a reasonable time, in the absence of special circumstances extending it. The letter reporting the sale to Brookner & Duncan was indubitably read as early as March 14, and the plaintiff cannot be heard to say that, having examined his agent’s report, he did riot observe its contents. He had knowledge of. the unauthorized sale shortly after it was made. With such knowledge he made no attempt to disavow it, remained silent for some five months, and, according to the record, still has the proceeds in his possession. This being true, he ratified the transaction and cannot now repudiate it. The principles involved are all fundamental in the law of agency.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
It is claimed that the district court erred in permitting the intervenors to litigate the validity of the plaintiff in error’s tax deed in this proceeding, and that it also erred in adjudging that the deed was invalid. The Midland Valley Railroad Company inaugurated the condemnation proceedings in this case for the purpose of appropriating the land in controversy for right-of-way purposes. Apparently the proceedings were conducted in compliance with the statute; the land thereby became vested in the railroad company, and the money awarded as damages was transferred to the owner or owners of the land taken. Any dissatisfied owner might have appealed from the award of the commissioners to the district court, where the amount of damages could have been submitted to a jury. The plaintiff in error exercised this right.- In such cases the owners and all parties having an interest in the land must look to the damages, as finally allowed, for compensation, as such damages, so far as the landowners are concerned, take the place of the land appropriated. (C. K. & W. Eld. Co. v. Sheldon, 53 Kan. 169, 35 Pac. 1105.) The amount of damages awarded covers all the injury sustained by the owner or owners of the tract upon which the right of way is located. Where, as in this case, the entire tract is appropriated, the full value thereof is awarded. The land taken in this case was town lots in the city of Arkansas City. A part of the report of the commissioners reads:
“We find that the land herein condemned and appropriated over and across the same for a right of way and other railroad purposes, and required for the proper construction and operation of the Midland Valley Railroad, is the whole of said lots.
“And after going upon and personally inspecting and viewing the premises, we adjudge as full compensation for said land so taken, and for all damages done and to be done by reason of the construction and operation of said railroad over the same, . . . the sum total of $330, the said sum to be deposited with the treasurer of Cowley county, Kansas, to be paid by him to the party or parties who'shall by appropriate proceeding establish his or their right to the same.
“And so we award.”
From this it appears that the damages awarded were not intended to be compensation for the plaintiff in error alone, but were intended to cover the entire loss sustained by the owners of the land, whoever or wherever they might be. If the interveners had any right to the land before it was condemned, such right was, by the condemnation proceedings, transferred to the fund awarded as damages for the land taken, and to that fund they are compelled to look for compensation.
Where no express provision is made by statute for the filing of an interplea, an application to do so is addressed to the sound discretion of the court, and its action thereon will not be set aside unless it clearly appears that such discretion has been abused. A district court will, in furtherance of justice, permit such pleas to be filed by persons not parties to the suit,' or proceeding, whenever necessary for the protection of existing rights of such persons relating to the subject-matter of litigation. (Gibson v. Ferrell, ante p. 454.) The application to interplead was made by the intervenors in this case immediately after the amount of damages had been finally determined. It seems eminently just and proper that the rights of all parties interested in this fund should have been determined in the same proceeding, and as speedily as possible. The denial of this application would have occasioned unnecessary inconvenience, delay and expense to all parties. The action of the court was proper.
The tax deed under which the plaintiff in error claimed title to the land in controversy, and which the court held to be void on its face, describes all of the lands involved in this action, being six town lots. Each lot is described as a separate tract, and the tracts are designated as Nos. 1, 2, 3, 4, 5, 6. The deed recites that these tracts were severally subject to taxation for 1893, and were sold September 4, 1894, and then follows recitals which read:
“And whereas, at the place aforesaid, neither of the said parcels, tracts and lots of pronerty could be sold for the amount of tax and charges thereon, and each of them was, therefore, as they were severally and in due course, as aforesaid, offered for sale, bid off bv the county treasurer for said county, for the whole amount of taxes and charges then due and remaining unpaid on each of the said parcels, tracts and lots of said property hereinbefore described and severally numbered, to wit: On the parcel, tract or lot in said description numbered 1, the sum of one dollar and eighty-five cents ($1.85) ; on that numbered 2, one dollar and eleven cents ($1.11) ; on that numbered 3, one dollar and eleven cents ($1.11) ; on that numbered 4, one dollar and eleven cents ($1.11) ; on that numbered 5, one dollar and eleven cents ($1.11); and on that numbered 6, one dollar and eleven'cents ' ($1.11). And whereas the subsequent taxes for the year 1894, and of the year 1895, and of the year 1896, and of the year 1897, and of the year 1898, and of the year 1899, and of the year 1900, amounting for each of said years respectively, on each of said parcels, tracts and lots as hereinbefore numbered and described, as follow:
“On that numbered 1, for 1894, $1.15; 1895, $1.11; 1896, $.71; 1897, $1.06; 1898, $.83; 1899, $1; 1900, $.77.
“On that numbered 2, for 1894, $.81; 1895, $.78; 1896, $.50; 1897, $.75; 1898, $.58; 1899, $.70; 1900, 8 53
“On that numbered 3, for 1894, $.81; 1895, $.78; 1896, $.50; 1897, $.75; 1898, $.58; 1899, $.70; 1900, $.53.
“On that numbered 4, for 1894, $.81; 1895, $.78; 1896, $.50; 1897, $'.75; 1898, $.58; 1899, $.70; Í900, $.53.
“On that numbered 5, for- 1894, $.81; 1895, $.78; 1896, $.50; 1897, $.75; 1898, $.58; for 1899, $.70; 1900, $.53.
“On that numbered 6, for 1894, $.81; 1895, $.78; 1896, $.50; 1897, $.75; 1898, $.58; for 1899, $.70; 1900, $.53.
“And whereas three years had expired from the date of said sale and no person had offered to redeem said property or to purchase the same for the amount of taxes, penalties and costs due thereon; whereupon the county commissioners of said county did, on the 8th day of October, 1901, by an order of said board, authorize the county treasurer to execute and the county clerk to assign the several certificates of the sale of the several tracts of property, hereinbefore numbered and described, to C. B. Dye, on payment to said treasurer of the several sums of money as follows:
“For said tract numbered 1, six dollars and no cents.
For that numbered 2, six dollars and no cents.
For that numbered 3, six dollars and no cents.
For that numbered 4, six dollars and no cents.
For that numbered 5, six dollars and no cents.
For that numbered 8, six dollars and no cents.
“Said several sums having been paid to the treasurer of said county, on the 9th day of October, 1901, the said treasurer did give to C. B. Dye, of the county of Cowley and state of Kansas, certificates of that date, as in such case provided by law, for and concerning each of the said parcels, tracts and lots, and the county clerk of said county did, on the same day, duly assign to the purchaser aforesaid the said certificates of sale, and all the interest of said county in said property; and whereas, the said C. B. Dye did, on the 13th day of December, 1901, duly assign the several certificates of the sale of the said several parcels, tracts and lots of property aforesaid, and all his right, title and interest to said property to Eleanor P. Dye, of the county of Cowley, and the state of Kansas; and whereas, the subsequent taxes for the year 1901, amounting on each of said parcels, tracts and lots as hereinbefore numbered and described as follows:
“On that numbered 1, for 1901, $.91;
On that numbered 2, for 1901, $.63;
On that numbered 3, for 1901, $.63;
On that numbered 4, for 1901, $.63 ;
On that numbered 5, for 1901, $.63;
On that numbered 6, for 1901, $.63;
“Having been paid by the said Eleanor P. Dye as provided by law; and whereas, more than three years have elapsed since the date of said sale, and six months have expired since the date of the assignment aforesaid, and none of said property has been redeemed-therefrom as provided by law,
“Now therefore, I, George W. Sloan, county clerk of the county aforesaid, for and in consideration of the sum of forty dollars and sixty-six cents, taxes, costs and interest due on said land for the years 1893 to 1901, inclusive, to the treasurer paid as aforesaid, and by virtue of the statute in such case made.and provided, have granted, bargained and sold,” etc.
It is claimed that the deed is not in compliance with section 7677 of the General Statutes of 1901, for the reason that it does not show the amount for which each separate lot was conveyed. The statute reads:
“In any case where any purchaser at any tax sale shall purchase more than one parcel or tract of land or lots, he may require the county clerk to include all such lands or lots in one deed, .stating the amount of tax, interest and penalty for which each separate tract is sold and conveyed, the sum of which separate amounts shall be the gross or aggregate consideration of the deed; and in addition to the fee for any such deed the county clerk shall be allowed the sum of five •cents for each piece of land or lot so included in any deed.”
The deed states the amount for which each lot was originally sold, the amount of the subsequent taxes for each year thereafter, including the year 1901, and the amount for which each lot was sold under the order of the board of county commissioners, but does not show the amount for which each lot was conveyed, as required by the statute. According to this requirement, the aggregate consideration should be $40.06 instead of $40.66, the sum stated. This difficulty can be overcome, it is argued, by construction and assumption. If it be assumed that the sum of ten cents each, the fee allowed for issuing certificates of sale, is included in the aggregate consideration of the deed, this would account for the sixty cents excess in that amount. Cases decided by this court are cited wherein a similar proceeding was upheld. The tax deeds under consideration in those cases, however, had been recorded more than five years. In this case the deed had not been recorded for that length of time, and a different rule of construction applies. (Penrose v. Cooper, 71 Kan. 720, 725, 81 Pac. 489, 84 Pac. 115.)
Tax deeds, except where they have been recorded five years, to be valid must conform substantially with the requirements of the statute by stating facts which show that the prescribed legal steps have been taken. The recitals in such deeds will not be aided by liberal construction, inferences and presumptions which are permissible where the deed has been recorded five years or more.
The plaintiff in error’s deed appears to have been issued upon a compromise sale of the land, under the provisions of section 7672 of the General Statutes of 1901, which provide that such sales may be made for a sum less than the legal tax and interest thereon. The deed shows that each tract was sold for the sum of six dollars. Whether this was the correct amount of legal tax and interest chargeable against each tract does not appear upon the face of the deed, nor can this amount be ascertained with certainty from the facts contained in its recitals. In this respect the deed fails to comply with the statute. If the deed had been recorded five years this difficulty might be overcome by presumption and inference, as was done in the case of Gibson v. Freeland, ante p. 450, but, not having been so recorded, it must stand or fall upon its recitals as they are, unaided by such presumptions or inferences; and, when so considered, the recitals are insufficient. Taking the whole deed together, the district court properly held it to be invalid on its face. This conclusion disposes of the case.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
This is an action of ejectment, commenced by C. W. Carson in the district court of Clark county, July 18, 1906, against M. G. Stevenson, to recover certain lots in the city of Ashland. The plaintiff is the owner of the legal title; the defendant is in possession claiming title under two tax deeds, which have been recorded more than five years. The district court held the tax deeds void and entered judgment in favor of the plaintiff. The defendant brings the case here for review.
The defect in the deeds is that they fail to state the residence of the assignee of the certificate of sale. This precise question was before this court in the case of Havel v. Abstract Co., 76 Kan. 386, 91 Pac. 790, and after full consideration it was decided that such an omission does not render the deed void. We are now asked to reconsider and overrule that case. No new phase of the question has been presented. We are satisfied with the decision and are inclined to follow it.
The judgment of the district court is reversed, with direction to enter judgment in favor of the defendant for costs. | [
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Per Curiam:
In this case the defendants in error recovered judgment for $3375 for the negligence of the railroad company’s trainmen which resulted in the killing of their son at a crossing in Solomon. The defense was a general denial and contributory negligence. The evidence has been examined and found sufficient to sustain the finding of negligence on the part of the trainmen. It appears from the evidence and findings that the heads of the team the boy was driving were over or across the first rail of the track upon which the train which killed him was approaching when it was first possible for him to see the approaching train; that he immediately whipped up and attempted to cross ahead of the train, but his wagon was struck by the engine and he was killed. The circumstances were such that it was peculiarly a question of fact for the jury whether the boy exercised reasonable care to discover the approach of the train and whether he did what a reasonably prudent person would do under all the circumstances to avoid the danger after he discovered the approaching train. We cannot say that their findings are not supported by evidence nor that under the undisputed facts the boy was guilty of contributory negligence.
The trial errors assigned have been examined, and we find nothing to justify a reversal of the case. The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
W. M. Patterson filed his petition in the district court of Woodson county, claiming damages against the defendant railway company in the sum of $6336 for failure to deliver freight-cars as ordered by him, under the provisions of chapter 345 of the Laws of 1905. The defendant filed a general demurrer to-the petition and to each of the eleven counts thereof, which demurrer was by the court sustained. The plaintiff elected to stand upon his petition, and the action was dismissed at his cost. The case is brought here for a review of this order and judgment.
The demurrer was sustained to an amended petition, which had been filed in compliance with an order of court requiring the original petition to be made more definite and certain, and we are asked to review this order. The legality of making it has become only a moot question, which will not be considered here.
Each of the eleven counts of the petition is based upon an order for cars, differing only in date. The following is a copy of the first order:
“Rose, Kan., November 3, 1905.
“Mr. V. G. Madison, Rose, Kan.:
Dear SIR — Please set on your side-track at once at Rose, Kan., nine (9) cars suitable for loading with hay to be shipped to Kansas City, Kan.
“I herewith hand you $90 to apply on freight for above cars. Yours truly, W. M. Patterson.”
The portions of chapter 345 of the Laws of 1905 which pertain to the questions here involved read:
“Sec. 2. When the owner, manager or shipper of any freight of any kind shall make application in writing to any superintendent, agent or other person in charge of transportation of any railroad company, receiver or trustee operating a line of railway, at any point that cars are desired upon which to ship any freight, it shall be the duty of. such railroad company, trustee or other person in charge thereof to supply the number of cars so required at.the point indicated in the application within a reasonable time thereafter, not to exceed six days from the receipt of such application, and shall supply such cars to the person or persons so applying therefor in the order in which such applications are made, without giving preference to any person; provided, if the application be for ten cars or less, the same shall be furnished in three days; and provided further, that if the application be for thirty cars or more, the railway company may have ten full days in which to supply the cars.
“Sec. 3. Said application for cars shall state the number of cars desired, the place at which they are desired, and the time they are desired; provided, that the place designated shall be at some station or public switch on the line of its road.
Sec. 4. When the cars are applied for under the provisions of this chapter, if they are not furnished, the railway company so failing to furnish them shall forfeit to the party or parties so applying for them the sum of one dollar per day for each car failed to be furnished, to be recovered in any court of competent jurisdiction, and all actual damages that such applicant may sustain.
“Sec. 5. Such applicant shall at the time of applying for such car or cars deposit with the agent of the company one-fourth of the freight charge for use of such car or cars,- unless the said railroad company shall agree to deliver said car or cars without such deposit.”
Section 10 provides that “the provisions of this law shall not apply in cases of strikes, unavoidable accidents, or other public calamity.”
The first contention of the defendant — that the orders were not addressed to any superintendent, agent or any other person in charge of transportation of the defendant company — is untenable on demurrer. The petition alleges that the applications were made to the company and the company’s agent,- and the copies of the applications, made a part of the petition, show that they were addressed to Mr. V. G. Madison, Rose, Kan. This is a sufficient allegation, as against a demurrer, that V. G. Madison was the agent of the company.
We also consider that the application for the cars “at once” was sufficient to locate the time they were de sired. The statute prescribes the number of days which the lawmakers regarded as a reasonable time for compliance after the time set by the shipper. Hence the term “at once” may be regarded as equivalent to “immediately,” or “to-day,” which, the order being for nine cars, the statute extends to three days before any penalty may be imposed.
It is next contended that the line of the defendant’s railroad over which the shipments were to be made from Rose, Kan., to Kansas City, Kan., extends easterly from Rose to the eastern line of the state, and thence for a long distance through the state of Missouri, and returns into this state at Kansas City, Kan.; also, that the courts of this state take judicial notice of these facts. So far, at least, this contention is correct. (17 A. & E. Encycl. of L. 944; 16 Cyc. 861; S. K. Rly. Co. v. Duncan, 40 Kan. 503, 505, 20 Pac. 195; Peddicord v. Berk, 74 Kan. 236, 86 Pac. 465; Worden v. Cole, 74 Kan. 226, 86 Pac. 464.)
In view of these facts it is said that the carrying of the freight contemplated, is interstate commerce, and that' the statute in question, which imposes heavy penalties and allows no excuse for its infraction except “in cases of strikes, unavoidable accidents, or other public calamity” (Laws 1905, ch. 345, § 10), is a burden upon such commerce, and invalid; that it is in derogation of the powers conferred upon congress by section 8 of article 1 of the constitution of the United States. On the other hand, it is claimed that the statute in question is within the police power of the state, and that the provisions thereof cast no unreasonable burden upon interstate commerce; that in fact no interstate commerce question is involved; that if such question is involved the provisions of the statute are in aid of such commerce, instead of being a burden thereon.
The supreme court of the United States being the final arbiter of what constitutes interstate commerce, and having the province of determining the bounds at which police regulation by the states must stop to'avoid impinging upon the exclusive power to regulate such commerce which is delegated to congress, we turn to its decisions.
In Hanley v. Kansas City Southern Ry. Co., 187 U. S. 617, 23 Sup. Ct. 214, 47 L. Ed. 333, it was held that the state of Arkansas cannot legally prescribe a rate for a shipment between two stations in that state over a line of railroad the longer portion of which is in the Indian Territory. Such shipment is held to be interstate commerce and under the regulation of congress.
Following this decision, we are constrained to hold that the traffic in question is interstate commerce. It then remains to be decided whether the statute involved is invalid as an attempt by the state to regulate interstate commerce, or whether it is valid as a proper exercise of the police power of the state.
The case of Houston & Tex. Cent. Railroad v. Mayes, 201 U. S. 321, 26 Sup. Ct. 491, 50 L. Ed. 772, is analogous to the case at bar. The statute of Texas, the invalidity of which was determined- in that case, is substantially like our own, with two important exceptions. By that statute a penalty of $25 a day for each car not delivered within the time limited was imposed (Rev. Stat. Tex. 1895, art. 4499) ; in our statute the penalty is one dollar for each car per day. Under the Texas statute the excuses for delay were “that the provisions of this law shall not apply in cases of strikes or other public calamity” (Rev. Stat. Tex. 1895, art. 4502); in our statute they are “that the provisions of this law shall not apply in cases of strikes, unavoidable accidents, or other public calamity.” (Laws 1905, ch. 345, § 10.) Mr.-Justice Brown, in the opinion in the Mayes case, said:
“While there is much to be said in favor of laws comnelling railroads to furnish adequate facilities for the transportation of both freight and passengers, and to regulate the general subject of speed, length and frequency of stops, for the heating, lighting and ventilation of passenger-cars, the furnishing of food and water to cattle and other live stock, we think an absolute re quirement that a railroad shall furnish a certain number of cars at a specified day, regardless of every other consideration except strikes and other public calamities, transcends the police power of the state and amounts to a burden upon interstate commerce. It makes no exception in cases of a sudden congestion of traffic, an actual inability to furnish cars by reason of their temporary and unavoidable detention in other states, or in other places within the same state. It makes no allowance for interference of traffic occasioned by wrecks or other accidents upon the same or other roads, involving a detention of traffic, the breaking of bridges, accidental fires, washouts or other unavoidable consequences of heavy weather. The duty of the railroad company to furnish the cars within the time'limited is peremptory and admits of no excuses, except such as arise from strikes and other public calamities. If, for instance, the owner of a large quantity of cotton should make a. requisition under the act for a number of cars, the railway company would be' bound to furnish them upon the day named, or incur a penalty of $25 for each car, though the detention of the cotton involved no expense to the owner, or may' even have resulted in a benefit to him through a rise in the market.
“While railroad companies may be bound to furnish sufficient cars for their usual and ordinary traffic, cases will inevitably arise where by reason of an unexpected turn in the market, a great public .gathering, or an unforeseen rush of travel, a pressure upon the. road for transportation facilities may arise which good management and a desire to fulfil all its legal requirements cannot provide for, and against which the statute in question makes no allowance.
“Although it may be admitted that the statute is not far from the line of proper police regulation, we think that sufficient allowance is not made for the practical difficulties in the administration of the law, and that, as applied to interstate commerce, it transcends the legitimate powers of the legislature.” (Pages 329, 330.)
The right of the state to impose reasonable police regulations for the safety and protection of citizens of the state and of their business and property upon railroads operating within and receiving protection and other benefits from the state, even though such railroads may at the time be engaged in interstate commerce, is unquestioned, even though the regulations may impose some slight burdens upon interstate commerce. As before said, the supreme court of the United States is the final arbiter as to whether such regulations are reasonable and whether they impose an unreasonable burden upon interstate commerce. Each case being considered, in a generous spirit, upon its own merits, there is and can be no general rule.
One important objection to the validity of the Texas act, urged in the Mayes case, supra, was the great penalty imposed thereby upon a railroad, the penalty going to the shipper, who possibly had suffered no damage, but, it may be, had been benefited by the delay. The penalty provided by the Kansas act, on the other hand, is merely nominal, and is not sufficient, it would seem, to furnish any inducement to order cars not actually needed. It is the same amount per day on each car that is allowed as demurrage to the railroad companies for the failure of shippers promptly to unload their cars after arrival at destination. •
The only remaining ground for holding the Texas act to be an infringement upon the power of congress to regulate interstate commerce and not a proper police regulation to be exercised by the state was the paucity of excuses for delay in furnishing cars ordered which would exempt the railroad companies from penalty. The excuses under the Texas act were “strikes or other public calamity.” Under the Kansas act they are “strikes, unavoidable accidents, or other public calamity.” The addition of “unavoidable accidents” is also a wide departure from the Texas law. In The State v. Hansford, 76 Kan. 678, 92 Pac. 551, Mr. Chief Justice Johnston, speaking for the court, defined the word “accident” as “an undesigned contingency; a happening without intentional causation; that which exists or occurs abnormally; something unusual or phenomenal; an uncommon occurrence.” (Page 685.) It will thus be seen that the various incidents which it was said in substance in the Mayes case should not result in penalizing a railroad company for its failure to furnish freight-cars are excused under the Kansas act, provided they were unavoidable on the part of the company sought to be penalized.
If, therefore, as said in the ppinion in the Mayes case, the Texas statute “is not far from the line of proper police regulation” (p. 331), we are justified in concluding that the car-service- act of 1905 in question is well within that line.
The order of the district court sustaining the demurrer is reversed and the case is remanded. | [
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Per Curiam:
Samuel W. Hilt and wife, who reside in the state of Missouri, purchased a farm from Theodore Griffin which is located in Leavenworth county, Kansas. The purchase-price of the farm was represented by promissory notes of $1000 each, madé payable one each year, successively. These notes were secured by a mortgage on the farm and also by a mortgage on forty acres of land situated in the state of Missouri. There was also a note for $250 transferred to Griffin.
Sometime afterward the Hilts wanted the mortgage on the forty acres released, which the plaintiff did, and received in place thereof property in ‘ Armourdale, Wyandotte county, Kansas. Default having occurred, a suit to foreclose the mortgage and other securities was commenced by Griffin in the district court of Wyandotte county. He recovered judgment, and a decree of foreclosure was rendered. The defendants are •dissatisfied, and have brought the case here for review.
Complaint is made of the opening statement of the plaintiff’s counsel to the' jury. We have examined the statement and are unable to find anything seriously objectionable therein. No objection was made to it when delivered, nor afterward until the presentation of the motion for a new trial, when the court was informed that this was what counsel had in mind when “misconduct of the jury or prevailing party” (Gen. Stat. 1901, § 4754) was written in the motion. It was then too late for the court to make any order which might have prevented injury or do anything to avoid the supposed error. The complaint comes too late. (St. L., Ft. S. & W. Rld. Co. v. Irwin, 37 Kan. 701, 16 Pac. 146, 1 Am. St. Rep. 266.)
It is urged that the court erred in denying a motion to suppress depositions on the ground that the evidence was incompetent and hearsay. The motion was presented after the jury were sworn to try the case. The court denied the motion and reserved its ruling on the evidence until it was offered on the trial. This is the usual practice, and is not erroneous.
The defendants claim that the release of the mortgage on the forty acres and the conveyance of the Armourdale property in place thereof was not a mere exchange of security but an absolute conveyance of the Armourdale property at a stipulated price, to be applied on the notes in suit. The court admitted evidence to show whether the deed was intended as security or not. We see no error in this. (Moore v. Wade, 8 Kan. 380; McDonald & Co. v. Kellogg, Trustee, 30 Kan. 170, 2 Pac. 507.) The object of this conveyance, whether as security or not, was a question of fact and was properly submitted to the jury.
It is urged that the evidence concerning the conveyance of this property is not admissible as against the wife of S. W. Hilt, she not having been a party thereto. She, however, filed a joint answer with her husband, in which she recites the transactions and insists upon the benefits which she claims accrued to her thereby. She demands that the conveyance be declared absolute and that she receive a credit of $1250 on account thereof. Under such circumstances we see no error in the admission of evidence to show the true situation.
It is further contended that the court did- not have jurisdiction to foreclose a mortgage on land in another county. The Armourdale property, having been taken as security in place of the Missouri land, took its place in and became a part of the mortgage being foreclosed. Therefore the situation was the same as if the Armour-dale property had been originally included in the mortgage on the Leavenworth county farm, in which case the mortgage might have been foreclosed in either county. The jury made special findings of fact, by which it appears that the $250 note, the Armourdale property and the Leavenworth county farm were all held by the plaintiff as security for the payment of the notes sued on.
There are other minor and unimportant questions suggested by the defendants, which we have examined but are unable to find error in any of them, and their further consideration is unnecessary. The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
BENSON, J.:
Bailey & Kammerer agreed to drill six gas-wells for the Fredonia Gas Company, for which they were to receive eighty cents per foot. After drilling three wells the company ordered the work stopped. Bailey & Kammerer sued for damages arising from the breach of this agreement. A demurrer to the petition was overruled. An issue of fact was then made up, and tried by a jury. The plaintiffs having recovered, the company alleges error. It is argued that the petition was insufficient because the damages claimed were speculative, and that the evidence was insufficient for the same reason.
The petition alleged the making of the agreement, the readiness of the plaintiffs to perform, the breach by the defendant, and an averment of damages. A cause of action was stated, and the demurrer was properly overruled.
All the wells contracted for were to be on the same farm, and near together. Many wells had been drilled in the vicinity, and the average depth to the gas-sand was shown. The evidence tended to show that the average cost of drilling such wells was forty to fifty, cents per foot in that vicinity; that contracts for such work must be taken some time in advance; and that when this drilling was stopped no other work of the kind was immediately available. Witnesses of experience in such business were examined touching the probable cost of drilling such wells, who took into consideration the strata on that farm and in the vicinity, the liability to delay from accidents, and other conditions.
The court instructed the jury that the plaintiffs, if entitled to recover, should be allowed the reasonable profits that the drilling of these three wells would have afforded if the plaintiffs had been allowed to complete the contract, and that in determining these profits they should deduct from the contract price the reasonable cost and expense of the work to be done. The verdict was within the evidence, if the evidence afforded a proper basis for damages.
The defendant contends that damages in such cases are too uncertain and speculative; that the elements of profits and losses are so many and varying, such as the loss of time and labor, the breakage of machinery, the effects of storms, and other kindred difficulties, that no reasonably certain estimation can be made, and hence that there should be no recovery. This court has said:
“Damages for anticipated profits recoverable upon breach of a- contract must be established with a reasonable degree of certainty, must be the natural and proximate consequence of the breach, and be free from conjecture and speculation.
“Damages that are speculative, remote or contingent cannot form the basis of a recovery for the breach of a contract.” (Railway Co. v. Thomas, 70 Kan. 409 [Syllabus], 78 Pac. 861.)
In the opinion in that case it was observed:
“No fixed rule can be laid down which, when applied to the facts of a case involving damages for anticipated profits, will determine whether a recovery may or may not be had. Each case must be determined upon the facts peculiar to itself.” (Page 416.)
In that case the railway company had given' the right to Thomas to sell watches of a certain standard to its employees, the company to aid him in collecting the pay therefor. It was held that the damages claimed were too speculative. The company had not guaranteed the sale of any particular number of watches, and the profits depended not only on the cost of purchasing and handling the watches but upon the number that might be purchased by customers. Here there was a definite agreement to drill a certain number of wells at a fixed price; the element of uncertainty was the cost of doing the work.
Where the business upon which profits are claimed is not new or untried, but has been established and carried on to such an extent that a safe basis can be found, the anticipated profits thereof, if shown with reasonable certainty, rñay be allowed. In this case the experience of the witnesses in drilling wells in the same vicinity, where the conditions were the same, covering a considerable period of time, afforded a reasonable basis upon which they might estimate the cost and expense of drilling the wells, taking into consideration the vicissitudes of the business as usually carried on. Absolute certainty was not possible, but reasonable estimates, it seems, could be and were made, upon which the jury awarded damages. Recoveries, have been allowed for gains prevented by the wrongful seizure of cattle, based upon their anticipated continued feeding and growth. (Hoge v. Norton, 22 Kan. 374.) In another case the reasonable anticipated profits arising from the use of cows not furnished as agreed were allowed. The court said:
“We have no doubt but that the experience of dairymen can furnish estimates of the profits of cows kept for that purpose, that can be relied upon with the same degree of certainty that attends the result of all other ordinary business transactions of life.” (Brown v. Hadley, 43 Kan. 267, 273, 23 Pac. 492.)
Where a merchant was induced to move his stock ánd business to a new town upon certain considerations, which failed, it was held that the jury might take into consideration the loss of profits in the business so broken up in awarding damages. (Town Co. v. Lincoln, 56 Kan. 145, 42 Pac. 706.)- Where shocked corn was purchased to be fed to cattle and was wrongfully destroyed by the vendor, at a time when such feed could not be obtained in the vicinity, the wrong-doer was held liable, not only for the property destroyed, but for the loss resulting from the failure of growth and the shrinkage in weight of the cattle because they were deprived of the corn and the owners were compelled to put them upon straw and other fodder as a substitute. The shrinkage and loss were estimated and testified to by witnesses accustomed to feeding cattle, and this testimony was held to be competent evidence to prove damages. (Enlow v. Hawkins, 71 Kan. 633, 81 Pac. 189.) The foregoing cases, except the last, were reviewed in Railway Co. v. Thomas, 70 Kan. 409, 78 Pac. 861, and the distinction pointed out.
We think this case falls within the rule allowing anticipated profits, as declared in these decisions; that the testimony was competent to prove such damages, and that the instructions- of the court were proper and the verdict reasonable. The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The First State Bank of Jetmore obtained a judgment against T. C. Wilson upon a promissory note,'dated August 28, 1896, and given to the bank by a partnership of which Wilson was a member. The validity of this judgment depends upon the following facts found by the district court:
“ (1) That the First State Bank of Jetmore, plaintiff in this action, obtained a charter from the secretary of the state of Kansas, April 19, 1892; that its place of business was Jetmore, Hodgeman county, Kansas, the purpose of the corporation being that of receiving money on deposits and to allow interest thereon, giving to the person depositing credit therefor, and buying and selling exchange, gold, silver, foreign coin, bullion, current money, bonds of the United States and state of Kansas, bonds and warrants of cities, counties and school districts in the state of Kansas, of loaning money on real estate, chattel and personal security at a rate of interest not exceeding the legal rate allowed by law, of discounting negotiable notes and notes not negotiable, and to own a suitable building, furniture and fixtures for the transaction of its business of the value not to exceed one-third of .the capital of such bank, which was fixed at $10,000, divided into shares of $100 each — the duration of such banking corporation as fixed in said charter being twenty-five years; that it commenced business as such banking corporation in 1892, and continued to operate under said charter as a banking corporation until 1897.
“ (2) In February, 1897, it voluntarily proceeded to liquidate and wind up its affairs as a bank, and on December 7, 1897, there was filed in the office of the bank commissioner of the state of Kansas an official statement showing the financial condition of said bank at» the close of business November 29, 1897, and said bank surrendered to the bank commissioner of the state of Kansas its certificate to transact business as a bank that had been issued to it by the bank commissioner January 4, 1892.
“(8) Since December 7, 1897, it has not made any reports to the bank commissioner of the state of Kansas or to the secretary of state regarding its condition, and no requests have been made upon the officers of said corporation for a report as to the condition of the affairs of said corporation.
“(4) After said bank commenced to liquidate, in February, 1897, it did not receive deposits, and before December 7, 1897, it had paid all of its depositors in full, and since November 17,1897, it has never received deposits or paid out money' on deposits or renewed any notes — in fact has hot .transacted any business as a bank, and since that time C. E. Wilson, who was then cashier of said bank, has transacted what business has been transacted — that is, collected such of the indebtedness due the bank as he could, and paid the proceeds so collected to the stockholders of the corporation in closing up the affairs of the bank.”
The questions argued relate to the corporate character and existence of the plaintiff, to its capacity to bring suit, and to its right to sue without rendering statements respecting its financial condition either to the bank commissioner or to.the secretary of state.
The only way to determine the class to which a cor poration belongs is to look at its charter. The very purpose of that document is to establish the nature and character of the corporation and to fix its constitution as an organization for manufacturing, for banking, or for some other defined purpose; and so long as its charter stands unrevoked and unmodified the intrinsic nature and character of the corporation remains unchanged. Reading the plaintiff’s charter as epitomized in finding No. 1 with the banking act in force when the charter was granted (Laws 1891, ch. 48), it is plain that the plaintiff organized as, and actually became, a banking corporation and nothing else. So far as the findings of fact disclose, this charter has never been amended, and if the corporation is still in existence, it is still a banking corporation.
At the time the plaintiff organized, and ever since, there have been but three ways in which the corporate existence of a banking corporation might be terminated —by expiration of the period for which it was chartered, by a judgment of dissolution in voluntary proceedings to that end, and by forfeiture and judgment of dissolution in an adversary proceeding. None of these things has occurred, and, the plaintiff is still a banking corporation.
Although organized and in existence from the date its charter is filed (Laws 1891, ch. 43, § 3; Laws 1897, ch. 47, § 3; Gen. Stat. 1901, § 409; The State v. Mason, 61 Kan. 102, 107, 58 Pac. 978,) a banking corporation can do nothing except to elect officers, approve bonds and receipt for stock subscriptions and the like until it is authorized to commence the real business of banking by the certificate of the bank commissioner. So that at the beginning we have a banking corporation chartered, existing and organized for business, but unable to take a single step in the substantial attainment of its corporate ends. After a certificate has been secured from the bank commissioner the corporation may do everything its charter and the law authorize, and it may continue to do this as long as it is in existence, is solvent, obeys the law and retains the certificate given by the bank commissioner.
Of course the distinctive feature of the banking business is the receiving of other people’s money on deposit subject to check, or on certificates or other obligations of the bank, and it is this fact, and the using of such money by the bank, to its own profit, which make regulation and supervision by the bank commissioner necessary. But a banking corporation may loan money on real estate, chattel and personal security, and may discount notes, negotiable and non-negotiable; that is, among numerous things which it may do is the power to conduct a loan and a discount business. In the course of time a banking corporation may desire to discontinue all business except that of conducting a loan and discount business with its own money. If so it may pay off its depositors, discharge all its liabilities and surrender its certificate of authority to do a general banking business, whereupon it may continue to transact a loan and discount business. (Laws 1897, ch. 47, § 30; Gen. Stat. 1901, § 436.) If a banking corporation do this its charter powers are not affected; its corporate character is not changed, and its corporate organization is not modified. It is still a banking corporation the most of whose powers are suspended and whose remaining activities are restricted to a circumscribed field. If it should again desire to resume a general banking business it would not be necessary for it to obtain a new charter. It would still possess that right as an original power. It would only be necessary for it to obtain a new certificate from the bank commissioner.
If the banking corporation desire to give over the prosecution of all the purposes for which it was organized and to wind up its affairs, it may do so. When all its liabilities have been paid and its certificate from the bank commissioner has been surrendered the bank commissioner has no further concern with it, but its corporate integrity remains unimpaired and it may con tinue to collect its assets and to pay the proceeds to - its stockholders, all as a banking corporation, until it has been dissolved or until its charter has expired. (Morawetz, Corp., 2d ed., §§ 411, 1003; Bank v. Sewing Society, 28 Kan. 423; Warner v. Imbeau, 63 Kan. 415, 419, 65 Pac. 648; Rosenblatt v. Johnston, 104 U. S. 462, 26 L. Ed. 832; Merchants’ Nat. Bank of Minneapolis v. Gaslin, 41 Minn. 552, 43 N. W. 483.) There can be no doubt that the plaintiff had capacity to sue when this action was commenced.
So long as a banking corporation is doing business under the supervision of the bank commissioner it reports to him. When it surrenders the certificate of authority given by the bank commissioner, its depositors having been paid, it ceases to be subject to the provisions of the banking act, except that the bank commissioner may make examinations to determine if all its liabilities have actually been paid. (Laws 1897, ch. 47, § 30; Gen. Stat. 1901, § 436.) Therefore the plaintiff was not in default of statements to the bank commissioner when this action was instituted.
The general corporation law reads as follows:
“It shall be the duty of the president and .secretary or of the managing officer of each corporation for profit doing businéss in this state, except banking, insurance and railroad corporations, annually, on or before the 1st day of August, to prepare and deliver to the secretary of state a complete detailed statement of the condition of such corporation on the 30th day of June next preceding., ... No action shall be maintained or recovery had in any of the courts- of this state 'by any corporation doing business in this state without first obtaining. the certificate of the secretary of state that statements provided for in this section have been properly made.” (Gen. Stat. 1901, § 1283.)
It is not now necessary to determine the applicability of this statute to the case of a banking corporation which has surrendered to the bank commissioner the certificate received from him and which then proceeds to transact a loan and discount business. In view of the general policy of both the banking and general corporation acts it might be easy to say that the words “banking . . . corporations” in the exception clause of the section just cited mean “banking corporations conducting a general banking business under a certificate of authority from the bank commissioner,” but that lawsuit may wait until it is properly presented for decision. We have here the case of'a banking corporation which has paid its depositors and has surrendered its certificate, which has not engaged in the loan and discount business, which has done no business since-1897 except to collect its assets and distribute the proceeds to its stockholders in the process of winding up its affairs, and which as an incident to liquidation brings an action upon a promissory note given to it while it was a going concern. Was it “doing business” when the action was brought, or was it “doing business” in bringing the action, within the meaning of the statute?
The very terms of the statute discriminate between maintaining actions and doing business, and the only rational meaning of “doing business” is the carrying on of the operations of the corporation, or some portion of them, in the usual and regular course of the prosecution of the corporate enterprise for profit. Corporations are organized to run, not for the purpose of being brought to an end; and it is the ordinary display of corporate life which the statute covers, not the necessary functions attending corporate extinction. The primary purpose of the financial statements required to be filed-is the protection of those who may be financially interested in the solvency of the corporation. The members of the general public and the state are no longer concerned when the business of a, corporation is reduced to matters between it and persons who are indebted to it and between it and its stockholders. The reason for the regulation then ceases to apply. The words “doing-business” mean the same whether the corporation be domestic or foreign. Judicial interpretations in cases where foreign corporations have been concerned are very numerous and are substantially harmonious. Lists may be found in volume 19 of the Cyclopedia of Law and Procedure, at page 1280, and in other parts of that work indicated by the cross-references, in volume 13 of the American and English Encyclopedia of Law, at page 869 et seq., and in volume 3 of Words and Phrases Judicially Defined, at page 2155. It is universally held that bringing or maintaining actions does not constitute the doing of business within the meaning of these provisions and that the phrase is intended to comprehend only the exercise of corporate functions in the attainment of the end’s for which the corporation was organized.
It follows that the plaintiff was not in default of statements of its financial condition to the secretary of state when it sued the defendant, and from all that has been said it must be concluded that the plaintiff had the right to obtain the judgment which was rendered in its favor.
.Some arguments are advanced based upon testimony in the case respecting which the court made no finding of fact. They cannot be considered. (Shuler v. Lashorn, 67 Kan. 694, 74 Pac. 264.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
Chamberlain Hoel was convicted in the district court of Cowley county of perjury, and appeals to this court. His first assignment of error is the refusal of the court to quash the information. The state claims that Amasa'Thomas and Charles McEwen, while intoxicated, quarreled, and Thomas struck Mc-Ewen with a club and killed him. Thomas was charged with the homicide, and upon his preliminary examination therefor Chamberlain Hoel was sworn as a witness. He testified that he was not present at the time McEwen was killed, and did not see the transaction.
Thomas was bound over, and when he was tried in the district court Hoel was again used as a witness for the state and testified practically the same as on the preliminary examination. After the trial and conviction of Thomas the state filed an information against Hoel. It charges perjury, both at the preliminary examination and in the district court. He was convicted upon the count relating to the preliminary examination only. The information, after its introductory and descriptive averments, alleges:
“And all of said things did occur in the immediate presence of said Chamberlain Hoel, and he, the said Chamberlain Hoel, did witness all of said acts, and did have full knowledge thereof, . . . and that the testimony so given by said Chamberlain Hoel, as aforesaid, was false, and was by him at the time known to be false.”
. The appellant insists that the essential elements of the perjury here charged are that Hoel saw the fatal blow given to McEwen, and, at the time he testified, remembered having seen it; that the information, not having- an allegation charging' these facts, is fatally defective, and the motion to quash should have been allowed.
We are unable to agree with this contention. The information states that the acts occurred in the immediate presence of the appellant; that he witnessed and had full knowledge thereof; that his denial as a witness was false, and was by him then known to be false. This is sufficient. To witness is to see. (Webster’s Intern. Diet.) Unless he remembered the act he could not have known that his statement was false. The motion to quash was properly denied.
It is also claimed in this assignment of error that the court erred in refusing to strike out a part of the introductory statements in the information. These recitals give a history of the' murder, the arrest and the arraignment of the accused at the preliminary examination, and were evidently stated for the purpose of explaining how the trial originated in which Hoel committed the perjury charged against him. The language objected to was probably not essential, but we are unable to see wherein it was prejudicial to the rights of the defendant, and cannot say that the court erred in denying the motion to strike it out.
It is further urged that the court erred in refusing to direct a verdict of acquittal at the close of the evidence for the state, as requested by the defendant, and also in refusing to give to the jury instructions which the defendant requested, and in giving instructions to which the defendant objected. These three assignments are discussed by the appellant together, and we will so consider them.
When the motion requesting the court to direct a verdict of acquittal was presented the evidence was substantially the same as when the case was submitted to the jury. It was amply sufficient to justify con viction, and the court could not do otherwise than deny the request.
The defendant covered every possible phase of the case beneficial to himself by requests for special instructions. The principal point relied upon was that the defendant, on account of extreme intoxication, either did not see the homicide committed, or, if he did, the event had faded from his memory when he testified as a witness, and the facts were then related by him as he remembered them. The instructions given by the court, while not in the same language used in those requested, fully present, as we think, the defendant’s theory. In the instructions given the court said:
“Before you can convict the defendant in this case you must find from the evidence that he wilfully and corruptly swore falsely, as alleged in the information, and if you find that in giving the testimony complained of, if he gave any such testimony, he honestly testified to the facts as he remembered them, without any intention to swear falsely, you cannot convict the defendant, even though you find from the evidence that his testimony was false.”
“The court instructs the jury that if you believe from the evidence that the defendant was present at the time of the killing of Charles McEwen by Amasa Thomas, and that he was very drunk, then you may take into consideration that fact' in arriving at the fact whether or not the defendant was in a condition to see, hear, and retain after he got sober, as to what took place at the killing.”
“The court instructs the jury that, before you can find the defendant guilty in this case, you must believe from the evidence that the defendant falsely testified, as alleged, and that he knowingly and intentionally so testified falsely.”
The direct evidence as to whether the defendant actually saw the blow struck or not consists of the testimony of witnesses who saw the blow given and who testify that the defendant was then standing near the parties, with his face turned in that direction. The court, apparently acting upon the theory that, before the jury could find from this evidence that the defendant actually saw the blow administered, they must infer it, and that the rule relating to circumstantial evidence applied, gave an instruction which reads:
“The state may properly rely on what is called circumstantial evidence in order to show what knowledge the defendant had of the transaction claimed to have resulted in the death of said McEwen. . . . But before you would be warranted in finding that the defendant saw any particular part of the transaction, where circumstantial evidence alone is relied upon to support such a conclusion, the circumstances relied upon for such purposes must be proved to your satisfaction beyond a reasonable doubt from all the evidence in the case, and must be such as to satisfy you beyond a reasonable doubt that the defendant saw such portion of such transaction, must be consistent with the fact that he saw it, and must be inconsistent with any reasonable theory that he did not see it. And in determining whether or not the defendant saw any particular portion of the alleged transaction resulting in the death of said McEwen, where circumstantial evidence alone is relied upon to prove that he did see any particular portion of the transaction, if the facts and circumstances relied upon for such purpose are consistent with any reasonable theory that he did not see it the law would require you to determine that he did not see it.”
The other instructions given by the court fully and fairly cover the case, while these call the attention of the jury particularly to the points deemed important by the defendant.
In argument it is urged that, before a conviction for perjury can be sustained, two or more witnesses must have been produced whose testimony showed that the evidence given by the defendant, and charged to be false, was untrue, or at least one witness must so testify and his testimony be satisfactorily corroborated. Several cases are cited in support of this claim. Without considering what the law of this state is upon this subject, it is sufficient to say that the evidence given fully meets the legal requirement contended for by the appellant. John W. Kirkpatrick was within seventy-five feet of the parties when both blows were struck. He was well acquainted with the defendant, having known him for fifteen years. This witness watched the transaction, and could see distinctly. He says that defendant, when the fatal blow was given, was standing within four or five steps of McEwen and Thomas, with his face toward them, and also toward the witness. When the first blow was given defendant moved away from McEwen a .step or two. There was nothing to prevent the defendant from seeing the whole transaction. “He must have seen it unless his eyes were shut,” as the witness expressed it. Roy T.aylor testified substantially to the same facts. Wilbur Thomas testified that “Amasa Thomas hit Charley McEwen with a board, and Chamberláin and Leslie Hoel were there pretty close, so' they could see. They were looking at Charley. McEwen. Two blows were struck. Both Hoels were there till after both blows were struck and McEwen fell to the ground.” Amasa Thomas testified that defendant was there when he came up with the board. William Davey, soon after the transaction, 'said to the defendant: “Hoel, how come you to let Amasa hit Charley with that club ? Could n’t you stop that?” To which defendant replied: “Well, Bill, it was done before I had time to do anything.” There is abundant testimony to sustain the finding that the defendant actually saw the blows given which took the life of McEwen.
Whether or not he distinctly remembered the transaction when his testimony was given and knowingly testified falsely is a fact which it would be impossible •to establish by direct evidence, and therefore it, like other facts, may be shown by circumstances. The homicide itself would be likely to make a lasting impression upon the memory, and, although the defendant left the place after McEwen fell, he returned soon after and saw the body placed in an ambulance. He knew enough to advise about sending word to the friends of the deceased, and to relate the transaction to William Stiff. He appeared to be in great distress and apprehension, saying: “I had better keep my mouth shut. There may be something hereafter about this.” He-was heard to exclaim: “Oh, my God! This is awful! I don’t know what to do!” And when asked, “What i& there to it, Cham, that bothers you?” he replied, “Leslie [meaning his son, who was present with him and witnessed the homicide,] never was on the stand. He won’t know what to do when he goes on the stand.” The next day at noon he said to Mr. Charles: “I must get Les. I want to post him up a little before the inquest. He was never on the witness-stand.” In view of this testimony we are unable to say that the defendant, when testifying as a witness, had no memory upon this subject, nor can we "assume that the jury erred in finding that his memory was clear at that time.
It is urged that there was no motive to induce the, defendant to testify falsely, as Thomas admitted the killing, and therefore could not be benefited by the falsehood. It does not appear, however, that this admission had been made before the defendant testified at the preliminary examination or that it was known at that time that Thomas intended to confess his guilt.It does appear, however, from some of the evidence given, that the defendant was more than a mere observer of the tragedy about which he was called upon to testify. He actively encouraged and advised Thomas to do the act which took McEwen’s life — was in fact particeps crimims therein. What effect this fact may have had upon his mind we cannot say, but the circumstances, when considered as a whole, do not seem to justify the statement that there was no motive; and whether there was or not is immaterial after the verdict. It is not essential in all cases for the state to establish a motive for the commission of the crime charged. Its presence or absence is wholly evidentiary. The case is stronger with a motive established than without, but when the evidence satisfies the jury beyond a reasonable doubt that the defendant is guilty, without proof of a motive, such proof is unnecessary.
It has been urged in argument that the evidence' given by the defendant, even if false, was immaterial, for the reasons: (1) That Thomas was convicted notwithstanding this, evidence in his favor; (2) that Thomas admitted his guilt, which ended the controversy.; and (3) the evidence of defendant was not relied upon by the justice of the peace at the preliminary examination. We do not understand that the question of materiality is determined by these considerations. Any evidence is material which tends to prove or disprove a material averment of the information, without regard to the subsequently ascertained weight of it in the minds of the court or jury.
We are unable to see where the rights of the defendant were in the least neglected or prejudiced. He had a fair trial, the jury convicted him, and the court approved the verdict. There is nothing for this court to do but to affirm the judgment of the district court, and it is so ordered. | [
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Per Curiam:
This case was briefed and submitted with Davidson v. Hughes, 76 Kan. 247, 91 Pac. 913, between the same parties as plaintiffs and defendants in error. In this case a larger consideration was paid by the grantees at the time of executing the contract, yet we are constrained to hold that the same considerations prevail, and the judgment herein is affirmed on the authority of that case. | [
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The-opinion of the court was delivered by
Graves, J.:
This action was commenced in the district court of Reno county, July 21, 1905, by the defendant in error against the plaintiff in error,- to recover damages for injuries sustained by him while a passenger in a caboose attached to a local freight-train. On January 27, 1906, the plaintiff obtained judgment in the district court, and the defendant brings the case here for review.
The defendant complains of the trial court for refusing to give instructions to the jury which were re quested by it, and for giving others to which it objected. The instruction specially objected to reads:
“It is the duty of a railway company ... . transporting passengers ... on a freight-train to exercise the highest degree of care and diligence to which such trains are susceptible, and a failure to' use such degree of care is negligence on the part of the railway company.”
There is nothing in the entire charge of an explanatory nature by which the jury could properly interpret this instruction or correctly apply it to the facts being considered. This instruction is criticized as being misleading and erroneous for the reason that the language used therein might easily be understood by the jury as a direction from the court to measure the care and diligence of the railway company by a higher standard than the law requires. It is within the range of possibility to operate a local freight-train quite smoothly and gently, with little or no jolting or jarring; and in the exercise of the highest possible degree of care and diligence, as required by the court’s instruction, it would be negligence on the part of the company not to operate its trains in that manner. To do so, however, would destroy the train’s usefulness as a carrier of freight and make passenger traffic thereon undesirable because of its lack of speed.
It is not the purpose of the law to require a railroad company operating a local freight-train on which passengers are carried to manage the train in a way to destroy or materially injure the principal business for which such a train is designed. Carrying freight is the chief purpose of local freight-trains. They are constructed and equipped -for that business only. In the conduct of such business it is necessary to start and stop often, to take in and set out cars, shift the train on side-tracks, couple and uncouple cars, and load and unload freight of all kinds, each of which takes time. These movements necessarily cause more or less jolting and jarring. All persons who ride as passen gers in a caboose know this, and expect the delays, discomforts and inconveniences which are unavoidable in the operation of such trains. In determining the degree of care and diligence required of railroad companies in the operation of trains of this character these conditions should be recognized. We understand the rule to be that when a railroad company carries passengers on its local freight-trains as a business it must use the highest possible degree of care and diligence of which such a train is susceptible, in view of its construction, equipment and use as a carrier of freight. To say that such a train shall be operated with the highest possible degree of care and diligence of which it is susceptible, without regard to the considerations named, places a duty upon the company operating such train which the law does not recognize.
The instruction given and here criticized was copied from the case of Mo. Pac. Rly. Co. v. Holcomb, 44 Kan. 832, 24 Pac. 467. The statement as a legal proposition is correct, but as used in that case the words “to which such trains are susceptible” (syllabus) were intended to include the. conditions hereinbefore mentioned. The decision was made upon the authority of the case of Indianapolis, etc. R. R. Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898, and a large part of the opinion in that case was copied, adopted and followed. A part of the opinion in the last-named case reads:
“The terms in question do not mean all the care and diligence the human mind can conceive of, nor such as will render the transportation free from any possible peril, nor such as would drive the carrier from his ‘business, . , . but it does emphatically require everything necessary to the security of the passenger . . . and reasonably consistent with the business of the carrier, and the means of conveyance employed'.” (Pages 29'6, 297.)
From this it will be seen that this court, in the Holcomb case, held, as it does now, that a railroad company, when carrying passengers on a local freight- train, is held to the highest possible degree of care and diligence in the protection of the safety of its passengers, but when determining whether that duty has been performed or not the nature of the train, its construction and equipment, its duties as a carrier of freight and other circumstances necessarily involved in its operation should be considered. We conceive this to be the rule supported by the authorities generally. (Mo. Pac. Rly. Co. v. Holcomb, 44 Kan. 332, 24 Pac. 467; Indianapolis, etc. R. R. Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898.) In the case of Portuchek v. Wabash Ry. Co., 101 Mo. App. 52, 74 S. W. 368, the supreme court of the state of Missouri said:
“A passenger on a freight-train takes it with all the incidentals usual' in the operation of such a train and submits himself to the inconveniences and assumes the perils ordinarily attending such method of transportation, but by consenting to carry passengers on such trains the responsibility of the railroad for their safe transportation is not restricted or lessened, and the same degree of care is required in the management of a freight-train carrying passengers as in the operation of a train exclusively for passenger service. In the words of Justice Swayne, ‘Life and limb are as valuable, and there is the same right to safety, in the caboose as in the palace-car.’ Indianapolis, etc. R. R. Co. v. Horst, 93 U. S. 296, 23 L. Ed. 898. But in the language, approved in many of the decisions upon the subject, from the composition of freight-trains and the appliances necessary in their operation, there cannot in the nature of things be the same immunity from peril in traveling by freight-trains as there is by passenger-trains. The primary purpose of such trains is the transportation of freight, and the equipments therefore are adapted to such business, and such of the traveling public as elect to journey by freight-trains are charged with the knowledge of such fact. It is not to be expected that there will be the same exactness in drawing up to a station by a freight-train as by a train devoted to passenger service, and precisely the same degree of care exercised in the operation of both may produce different results respecting the safety of the passengers, from the dangers inseparably connected with the conduct of one train and not with the other, and this the public presumably understands, and conducts itself accordingly, and such inherent hazards the passenger is held to assume in taking a freight-train.” (Page 54.)
The case of Erwin v. K. C., F. S. & M. Ry. Co., 94 Mo. App. 289, 68 S. W. 88, is to the same effect. In the case of Olds v. New York, &c., Railroad, 172 Mass. 73, 51 N. E. 450, it was said:
“It is the duty of a carrier of passengers to exercise ‘the utmost care consistent with the nature of the carrier’s undertaking, and with a due regard for all the other matters which ought to be considered in conducting the business.’ ... If the business of a given line is the running of trains for freight with a car attached for passengers, the care required is such as ought to be exercised in running such trains.” (Page 77.)
In the case of Chicago & Alton R. R. Co. v. Arnol, 144 Ill. 261, 33 N. E. 204, 19 L. R. A. 315, it was said:
“But it is insisted that the rule announced in these cases has no application here, for the reason that appellee, having voluntarily taken passage upon a freight-train, assumed all risk incident to. the operation of such train in the usual and ordinary manner in which such trains are managed and operated. Persons taking passage upon freight-trains, or in a caboose or -car attached to a freight-train, cannot expect or require the conveniences or all of the safeguards against danger that they may demand upon trains devoted to passenger service, and are accordingly held to have accepted the accommodation provided by the company, subject to all of the ordinary inconveniences, delays and hazards incident to such trains, when made up and equipped in the ordinary manner of making up and equipping such trains, and managed with proper care and skill. The passenger has a right to presume that the train is thus made up and equipped, and that the cars, machinery and appliances are not, of their kind, so materially defective as to increase the ordinary hazards of transportation by such trains. He may take the train or not, at his option, and if he voluntarily selects such a train he should be and is held to have ac cepted it in discharge of the liability of the carrier to provide a safer and better mode of conveyance, and to have assumed the risk and inconvenience incident to its proper management and operation.
“But if a railway company consents to carry passengers for hire by such trains, the general rule of its responsibility for their safe carriage is not otherwise relaxed. Prom the composition of such a train and the appliances necessarily used in its efficient operation there cannot, in the nature of things, be the same immunity from peril in traveling by freight-train as there is by passenger-train, but the same degree of care can be exercised in the operation of each. The result in respect of the safety of the passenger may be wholly different, because of the inherent hazards incident to the operation of one train and not to the other, and it is this hazard the passenger assumes in taking a freight-train, and not hazard or peril arising from the negligence or want of proper care of those in charge of it. Ordinarily, carriers of passengers for hire, while not insurers of absolute safe carriage, are held to the exercise of the highest degree of care, skill and diligence practically consistent with the efficient use and operation of the mode of transportation adopted.” (Page 270.)
In the case of Dunn v. Grand Trunk Railway, 58 Me. 187, 4 Am. Rep. 267, it was said:
“Undoubtedly a passenger taking a freight-train takes it with the increased risks and diminution of comfort incident thereto, and if it is managed with the care requisite for such trains it is all those who embark in it have a right to demand. . . . ‘That a passenger takes all the risks incident to the mode of travel, and the character of the means of conveyance which he selects, the party furnishing the conveyance being only required to adapt the proper care, vigilance and skin to that particular means, for this, and this only, was the defendant responsible. The passengers can .only expect such security as the mode of conveyance affords.’ ” (Page 197.)
See, also, McGee v. The Missouri Pacific Railway Company, 92 Mo. 208, 4 S. W. 789, 1 Am. St. Rep. 706; The Ohio and Mississippi R. W. Co. v. Dickerson, 59 Ind. 317; Whitehead v. The St. Louis, I. M. & S. Ry. Co., 99 Mo. 263, 11 S. W. 751, 6 L. R. A. 409; Dodge v. Boston & Bangor Steamship Co., 148 Mass. 207, 19 N. E. 373, 2 L. R. A. 83, 12 Am. St. Rep. 541.)
The trial court may have given these instructions upon the supposition that the language used included all the conditions above suggested.. In the case from which the instruction was taken the court doubtless so understood it. But we think as an instruction to a jury the language is misleading and likely to give the jury an erroneous idea of the law applicable to such cases, when used without modification or explanation, as was done in this case.
The judgment is reversed, with direction to grant a new trial and proceed with the case in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Benson, J.:
In reviewing this case at a former hearing a judgment in favor of the plaintiff for nominal damages was reversed. (Latham v. Harrod, 71 Kan. 565, 81 Pac. 214.) The second trial resulted in a judgment for the plaintiff for $2000. The defendants now bring the case here insisting that the statute relied upon for recovery is unconstitutional, and that in any event the facts do not warrant a recovery.
The validity of the statute was not challenged at the first hearing. It is claimed that the title of the act is not sufficient under section 16 of article 2 of the constitution, which provides that “no bill shall contain more than one subject, which shall be clearly expressed in its title.” (Gen. Stat. 1901, § 134.) The title of this act is “An act to establish an insurance department in the state of Kansas, and to regulate the companies doing business therein.” The contention is that; the provisions for penalties is not indicated in the title,, and The State, ex rel., v. Bankers’, etc., Association, 23 Kan. 499, is cited in support of that claim. In that case the act was entitled an act to amend certain sections expressly named in the title, while the body of' the statute contained a provision purporting to amend' a different section, separate and independent from the subject specified. The title was restrictive, and could not be enlarged by interpretation. The distinction between broad and comprehensive titles and limited and restricted ones was carefully indicated, citing Bowman, et al., v. Cockrill, 6 Kan. 811, as illustrative of the rule applicable where the title is a comprehensive one. . The title of the act under review in the case last cited was: “An act to provide for the assessment and collection of taxes,” and was held to be broad enough to include a provision fixing a period of limitation for actions to recover land sold for taxes.
In Woodruff v. Baldwin, 23 Kan. 491, the article of the code of criminal procedure making provisions for the appointment of trustees for the estates of convicts was held to be embraced in the title: “An act to establish a code of criminal procedure.” Mr. Justice Brewer said :
“Evidently the legislature intended by this title one whose scope was broad enough to include the article,- and while there is a sense in which the article does not treat of criminal procedure, yet we must impute to the legislature an intent to use the title in a broader sense. . . . And while the constitutional provision is mandatory, yet it is to be liberally construed, and so as not to prevent or embarrass ordinary legislation.” (Woodruff v. Baldwin, 23 Kan. 491, 494.)
It is not necessary that the title should be an abstract of the entire act, but it will be deemed sufficient if it fairly indicates, although in general terms, its scope and purpose. (Lynch v. Chase, 55 Kan. 367, 40 Pac. 666.) The provision of the constitution, while mandatory, must be applied in a fair and reasonable way; otherwise it would become the source of more injury than the ills it Was designed to remedy. (City of Eureka v. Davis, 21 Kan. 578.) An examination of many of our general laws will show that the incorporation of penalties in acts having only a general and comprehensive title has been common practice in our legis lation. The executor’s act has such a general title, and yet it embraces an instance of embezzlement and provides punishment therefor. “An act in relation to marriage” is another example of this practice. “An act in relation to roads and highways” includes penalties for obstructing roads, defacing mile-stones, and the like. Whenever the penalty is fairly incidental to the regulation of the subject expressed it may properly be included in the act without special mention in the title. The act in question is to regulate insurance companies, and this suggests means to make the regulation effective. To regulate is to direct by rule, or restriction; to govern. (Otto v. Hare, 64 Kan. 78, 67 Pac. 444.) Penalties are plainly incidental to such regulation. The following cases are illustrative of the scope of such a general title: In re Pinkney, Petitioner, 47 Kan. 89, 27 Pac. 179; La Harpe v. Gas Co., 69 Kan. 97, 76 Pac. 448; The State v. Thomas, 74 Kan. 360, 86 Pac. 499.
It is also insisted that the act is void because it allows the penalties to be diverted from the school fund, contrary to section 6 of article 6 of the constitution. (Gen. Stat. 1901, § 182.) This provision, although unconstitutional, does not make the law void; the obnoxious provision alone falls. It can be easily separated and the law enforced without it.
It was held in Hardy v. Kingman County, 65 Kan. 111, 68 Pac. 1078, that a similar provision was not such an integral portion of the whole law as to be inseparable from it, and might fall without destroying the remainder of the law. The general rule is that only the invalid parts of a statute are without legal efficacy. When, however, the void and valid parts are so connected in the general scheme of the act that they cannot be separated without violence to the evident intent of the legislature the whole will fail. (The State v. Smiley, 65 Kan. 240, 69 Pac. 199, 67 L. R. A. 903.) This statute provides proper means for collecting the penalties. It then provides for a disposition of such penalties contrary to the constitutional mandate. This provision being invalid, the fund will be disposed of as the constitution directs. This disposition in no manner violates the legislative intent, nor does it impair the efficacy of the law. The decision in A. T. & S. F. Rld. Co. v. The State, 22 Kan. 1, is easily distinguished. That action was brought by the informer to recover the penalties for his own use, and he necessarily failed. It was a direct attempt to enforce the void provision. So far as his interests were concerned, and so far as that provision was involved, the act was void, and it was so declared. The general language used must be interpreted to apply to the particular claim presented and the matters under consideration.
We conclude that the statute in question is not void for either of the reasons suggested. It is argued, however, that the construction put upon this law at the former hearing is erroneous in this: that the penalties prescribed for its violations are exclusive — that an individual'suffering loss from any violation of its terms cannot recover damages therefor, and Jones v. Horn, 104 Mo. App. 705, 78 S. W. 638, is cited as sustaining that view. Some other authorities are also referred to holding that penalties imposed under various statutes are to be deemed exclusive of any other remedy. (Utley v. Hill, 155 Mo. 232, 55 S. W. 1091, 49 L. R. A. 323, 78 Am. St. Rep. 569; Mack, Appellant, v. Wright et al., 180 Pa. St. 472, 36 Atl. 913; Heeney v. Sprague, 11 R. I. 456, 23 Am. Rep. 502; Commonwealth v. Howes, 32 Mass. 231.) This court, however, adopted the contrary view, sustained by decisions in other states, and, as it was considered, by the better reasoning. The authorities do not appear to be in entire harmony on this subject:
“Two apparently inconsistent rules have been enunciated by the courts in deciding whether damage caused to an individual by the violation of a penal statute creating a new right or duty constitutes a civil cause of action in his favor, or whether the penal cause of ac tion is exclusive. On the one hand it has been held that, as a general rule, the wrong-doer is liable in damages to a party injured by the violation of the statutory duty, notwithstanding he may be subject to the penalty for the public wrong; on the other, that the offense against the state is the only cause of action, and the penal suit in expiation thereof an exclusive remedy. By the better authority the true test for determining whether or not such penal statutes confer a cause of action for private injuries resulting from the breach seems to be whether the intention of the law is to confer a right upon individuals in addition to creating a new public offense.” (1 Cyc. 679.)
The intention óf this law is obvious; it is to protect our citizens who may become policy-holders. (Morton v. Hart Bros., 88 Tenn. 427, 12 S. W. 1026.) The benefits sought are not altogether to vindicate the sovereignty of the state, but to secure safe insurance for our citizens. When the protection is for the benefit of a class, or individuals of a class, it is held that an individual right óf action accrues to the party injured. (Taylor v. Lake Shore & Mich. S. Ry., 45 Mich. 74, 7 N. W. 728, 40 Am. Rep. 457.) This distinction has not always been kept in view, and is sometimes shadowy, but in a general way it may serve to explain the divergence in the decisions. The supreme court of Iowa, in an action against an insurance agent to recover for loss under a policy issued in a company not licensed to do business in the state, said:
“The statutes regulating the transaction of the insurance business in this state were enacted for the protection of policy-holders, and especially to guard those seeking indemnity against loss from deception by companies incapable of performing their contracts and agents not authorized to bind them.” (Hartman v. Hollowell, 126 Iowa, 648, 646, 102 N. W. 524.)
The Iowa statute was similar to our own, and the court in the same opinion said:
“Plaintiffs, in the absence of knowledge to the' contrary, had the right to assume that both the companies and the defendant had complied with the law. That neither had so done must have been known to the defendant, as he had no certificate from the state auditor as their agent. ... In seeking patronage he must be held to Jiave been cognizant of the law with reference to foreign companies doing business in the state, and the necessity of his being authorized to act by the auditor of state.” (Page'648.)
In the same opinion, Jones v. Horn, 104 Mo. App. 705, 78 S. W. 638, was referred to and distinguished.
The opinion of the court in Landusky v. Beirne, 80 N. Y. Supr. Ct, App. Div., 272, 80 N. Y. Supp. 238, sustains the plaintiff’s contention. That was an action against an insurance agent, the policy having been taken out in an unauthorized foreign company. The court said:
“The plaintiff made out a violation of the defendant’s contract when he showed that the policy procured for him was not enforceable in New York or Pennsylvania, and that the company by which'it was jssued refused to pay the amount specified in the policy after receipt of due proofs of loss.” (Page 274.)
In Burges v. Jackson, 18 N. Y. Supr. Ct., App. Div., 296, 46 N. Y. Supp. 326, it was held that an agent who procured a policy to be issued by a company not authorized to do business in the state was liable for the resulting loss, on the ground of negligence in taking out such a policy, which was held to be void. It is true that in this state such a policy would not be void, for the company is estopped from pleading its own disobedience to law (Germania Ins. Co. v. Curran, 8 Kan. 9), but where it is shown that a loss has resulted from such a violation of law, notwithstanding the validity of the policy, the same rule ought to apply. It can make no difference to the policy-holder whether he loses because the policy is void or because it is valueless on account of the insolvency of the company. The wrongful act of the agent in either case causes the loss.
The contention of the defendants that the plaintiff was bound equally with the defendants to know that the company had not been authorized to do business in this state is without merit, for reasons fully stated in the former opinion. The parties were not in pari delicto.
An important question remains for consideration. The verdict was returned upon an instruction to find for the plaintiff. The claim of the plaintiff was based upon the alleged wrongful act of the defendants, agents of the insurance company, in causing the policy to be issued by a company not licensed to do business in this state, and, it was alleged, insolvent. A loss by fire was alleged, and the failure of the company to pay after due proofs of such loss had been made. The defendants admitted the issuance and delivery of the policy, and that they were agents of the company, and partners, as alleged, and denied the other averments of the petition. Upon this issue the plaintiff was required to prove the loss and its extent, that it made proofs thereof, the fact that the company was not authorized to do business in the state, and its insolvency. The fact that it was not so licensed to transact business in this state was shown by the deposition of the commissioner of insurance, and by the testimony of one of the defendants. Evidence of the destruction of the goods by fire, and of the amount of the resulting loss after applying other insurance, and of the delivery of proper proofs of loss, was given. Evidence was also offered that a judgment against the company for the amount of plaintiff’s claim had been duly rendered in a local court in Chicago, 111., where the home office of the company was located, and of the due return upon the execution that no property could be found to satisfy the same. The resident agent of the company at Chicago testified that when the policy was issued there was not enough money on hand to pay a loss of $2000; that the company had some securities, but whether of sufficient value to. make good the loss he was unable to state; that after the loss occurred the company suffered other severe losses; and that its financial condition was not as good as it had been previous to such losses. This evidence was uncontradicted; the facts, however, which the plaintiff sought to prove by such evidence were in issue.
The weight and sufficiency of testimony to prove a fact in issue is for the jury. It does not necessarily follow that a fact is established because testimony fairly tending to prove it is uncontradicted by opposing testimony. The burden of proving the material averments of the petition not admitted was upon the plaintiff, and it cannot be said, as a matter of law, that the jury were bound to accept the evidence as true, although not contradicted. (Jevons v. Railroad Co., 70 Kan. 491, 78 Pac. 817; Railway Co. v. Geiser, 68 Kan. 281, 75 Pac. 68.) Where there is evidence tending to show the constitutive facts advanced by the party sustaining the burden of proof it is for the jury to say whether the evidence is sufficient for that purpose. (2 Thomp. Trials, § 2243.) The jury determine the sufficiency of the evidence to prove the facts, and the court determines the sufficiency of the facts when proved. (Davis v. Miller, &c., 14 Grat. [Va.] 1.) When, therefore, there is no dispute as to the ultimate facts upon which the right of recovery depends, the court may direct a verdict. The rule and its limitations have been stated by this court as follow:
“There are cases where the court may and should instruct the jury in absolute form and direct a verdict in favor of one of the parties. This may be done where a party fails to show something essential to the maintenance of the action or defense, and also where there are no disputed facts for the jury to pass upon. Some of the courts have gone to the extent contended for by the defendant, and held that the court might direct a verdict in any case where a contrary verdict would be set aside as against the weight of the evidence. To this we cannot agree; neither is it in accord with the decisions of this court, where it has been held in effect that if the evidence fairly tends to establish the plaintiff’s cause of action or the defense of the defendant, the court cannot withdraw the case from the jury or direct a verdict, but must leave the weight and credit of the testimony with the jury.” (Sullivan v. Phenix Ins. Co., 34 Kan. 170, 177, 8 Pac. 112.)
Whenever the testimony must be weighed and conclusions deduced therefrom the jury alone must make the deductions in the first instance. (Avery v. Railroad Co., 73 Kan. 563, 85 Pac. 600; Railway Co. v. Watkins, 76 Kan. 813, 92 Pac. 1102.) We do not wish to be understood as doubting the sufficiency of the testimony to show the plaintiff’s loss or the insolvency of the company, but it was the province of the jury and not the court to weigh the evidence and find these facts in the -first instance, subject to the supervisory powers of the court to be exercised afterward, if found necessary.
Because of the error in directing a verdict the judgment is reversed, and the cause remanded for a new trial. | [
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Per Curiam:
A large quantity of snow mixed with cinders was thrown by a locomotive and snow-plow from the track of the railroad company against the station-house, breaking through a window and striking the agent, who was within, and destroying his eye, for which he recovered a judgment against the company. To clear the cinder platform at the station of snow the employees of the company unnecessarily shoveled the snow and cinders upon the track. It is contended that there was no testimony warranting the instruction which left it to the jury to decide whether snow mixed with cinders had been thrown on the track, and that the jury had in effect so found. In answer to the question “If you find that 'any cinders were thrown on the track, please state what witness or witnesses -testified to that fact,” the jury responded, “No evidence.” The finding that there was no evidence that any particular witness had testified to seeing cinders thrown on the track is not a finding that no snow and cinders were thrown on the track. There was no direct evidence of the shoveling of cinders upon the track, but there was testimony that the snow which fell on the cinder platform was shoveled upon the track, instead of upon the other side of the platform, and that the snow so piled on the track and thrown against and into the station-house was mixed with cinders, There were good reasons, therefore, for an inference that the cinders mixed in these snow piles were shoveled with the snow from the cinder platform, but whether the cinders in the snow were shoveled upon the track is not a very material fact. The piling of the snow upon the track, with or without cinders, was a negligent act, and the company might have anticipated that these accumulations and obstructions on the track might be thrown against employees or patrons in the vicinity in a way that would result in injury. There appears to be sufficient evidence not only to support the submission of the question to the jury, but also to uphold the verdict and judgment.
The judgment of the court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The pertinent facts of this case sufficiently appear in the admission and the stipulation as to the facts and in the findings of fact and conclusions of law of the court, which are as follow:
“ADMISSION.
“It is here admitted that the sheriff of Norton county served the other twenty-one jurors not admitted in the agreed statement of facts.”
“AGREED STATEMENT OF FACTS.
“It is hereby stipulated and agreed by and between the parties hereto that J. T. Renoe, J. F. Kennedy and G. W. Pippinger were appointed bailiffs and officers of the court, as alleged in the plaintiff’s petition, and performed services as alleged in said petition, for the number of days as so alleged, and that they filed their sworn voucher with the clerk of Norton county, Kansas, and the said voucher was audited and allowed by the board of county commissioners of Norton county, Kansas, as alleged in said petition, and that warrants were issued and paid as therein alleged; that their appointment and qualification were made orally, and they made no return of their services, except such as appears upon their vouchers heretofore referred to.
“It is further stipulated and agreed that Eric Anglund and Lew Redd were appointed in writing as deputy sheriffs, and that they performed services as bailiffs and officers of the court, as alleged in plaintiff’s petition; that they filed their sworn vouchers with the clerk of Norton county, Kansas, and that the said vouchers were audited and allowed by the board of county commissioners of Norton county, Kansas, and paid by said Norton county, Kansas, as alleged in plaintiff’s petition.
“It is further stipulated and agreed that J. T. Bis-bee, W. Sarvis, W. R. Garrison, A. L. Lee, J. W. Graves, Amon Butler, I. W. Burgess ánd Joseph. Page were appointed in writing, as deputy sheriffs, and that they performed services as such deputy sheriffs, as alleged in plaintiff’s petition, and received the pay in the amount and manner therein set forth.
“All the above named being the bailiffs and deputy sheriffs mentioned in the petition.
“It is further agreed that none of said bailiffs and deputy sheriffs ever made any return of the manner of the service in summoning the jurors mentioned in the petition, and never made any statement of their fees for such services, except the statement that they made in the filing of their vouchers and affidavits before th'e board of county commissioners of Norton county, Kansas, which vouchers and affidavits are statements filed by them with the county clerk for the purpose of receiving compensation for their alleged services.
“It is further agreed that the claims set forth in the causes of action in plaintiff’s petition numbered 887, 388, 389, 390, 391, 392 and 393 are for services and supplies which were actually rendered and furnished and paid for as alleged therein, and that a demurrer was sustained thereto by the district court of Cheyenne county, Kansas, upon the 6th day of December, 1905.
“It is further agreed that the warrants referred to in the petition of the plaintiff as having been issued to the various persons for attendance and mileage as jurors were paid by Norton coünty, Kansas, as therein alleged. This agreement shall be taken as proof only of the fact of the issuance and payment of such warrants.
“This agreement may be used upon the trial of this case as the evidence of the facts herein recited and set forth, subject, however, in every case, to all legal objections that may be made thereto.”
“FINDINGS OF FACT.
“In this case the court finds from the testimony and the admitted statement of facts that some time in the year 1903 a criminal action was begun in Cheyenne county, Kansas, in which Chauncey Dewey and others were charged with the crime of murder, in that they were charged with the killing of certain persons by the name of Berry.
“The complaint was duly made before a justice of the peace, charging the offense, and upon a preliminary hearing the parties were held without bail to appear before the district court of Cheyenne county, Kansas, to answer the charge of murder, as alleged in such complaint.
“That some time afterward an application by petition was made on the part of the defendants and presented to the district court of Cheyenne county, Kansas, asking that a change of venue of the trial of such action be granted to some other county in this judicial district. The petition was allowed by the court and the case taken for trial to Norton county, Kansas.
“The case came on for trial in Norton county, Kansas, at the regular February term, 1904; that at the beginning of the term several' cases were disposed of, after which this criminal case of the State of Kansas against Dewey and others was called for trial, and it became necessary in the view of the court in trying the case that a large number of persons should be drawn and summoned to attend in the trial 'of that case as jurors and to serve in the trial of the case. The number was something like 373. For the purpose of bringing these persons before the court to serve as jurors in that case several persons were appointed as deputy sheriffs, or bailiffs, or special officers, among whom were J. T. Renoe, J. F.' Kennedy, G. W. Pippinger, L. Redd, A. Butler, W. Sarvis, W. R. Garrison, and J. W. Graves.
“J. T. Renoe, J. F. Kennedy and G. W. Pippinger were appointed orally. The other persons were appointed in writing as such special officers. Each duly qualified' as such special officer, both to serve papers and also to take charge of the jury under the statute during the progress of the trial of the case.
“Each of the 373 persons heretofore referred to as jurors was duly summoned by these various officers to appear and attend at the sitting of the court as a juror in the trial of said case, and their per diem fees and mileage fees amounted to the total sum of $2762.10.
“Each of said jurors made his statement-to the clerk of the district court of Norton county, Kansas, showing the amount of fees, including per diem and mileage, which he was entitled to receive as such juror in such case, and within ten days after the rising of the court at that term a fee bill was made out by the clerk of said court and transmitted to the county clerk of said county, and by him filed in his office, and afterward such fee bill was allowed in full by the board of county commissioners of said Norton county, Kansas, and it was allowed in the sum of $2762.10, as fees due the persons who were summoned and who attended and served the sitting of the court in the trial of said case.
“That J. T. Renoe, after the adjournment of said court; presented*to the board of county commissioners his voucher as such bailiff, deputy sheriff, or special officer, in which he made a claim against said Norton county, Kansas, for his services as such officer, which claim was allowed in the total sum of $65, being $22.50 for attendance on the jury of twelve men who were impaneled to try the case of the State against Dewey and others, and his attendance upon the sitting of the court during the progress of that case, and also $35 for taking'charge of and caring for two jurors who became ill during the progress of the trial, and for some other items — medicine, etc. — to such two jurors, the whole totaling the sum of $65.
“That J. F. Kennedy, one of said bailiffs, deputy sheriffs, or special officers, was allowed $70.50 upon presentation to the board of county commissioners of his voucher therefor, for attendance upon said court and for taking charge of said jury of twelve men who were sworn and impaneled to try the said case.
“That G. W. Pippinger was allowed the sum of $46.50 by said board of county commissioners upon voucher presented to it for attendance upon the court and jury under the same circumstances.
“That L. Redd, one of such special officers, was al-. lowed $33 for attendance upon such jury and upon the court; and that A. Butler was allowed the sum of $48 for attendance upon such jury and upon the court; and that W. Sarvis was allowed the sum of $89.50 for attending upon said court and jury, being allowed the sum of $1.50 for such attendance during the daytime and $1 during the night; and that W. R. Garrison was allowed the sum of $57 for such attendance and service, being $1.50 for attending during the daytime and $1 during the night; that J. W. Graves was paid a total of $82.50 for such attendance, he being paid the sum of $1.50 for fifty-five days’ attendance.
“That the' board of county commissioners of Norton county, Kansas, allowed to these various persons, as mileage traveled in making service of summons upon .jurors, the sum of $147.50.
“That the total amount allowed them for making service upon such jurors was $80.50.
“That the total amount allowed these persons as per diem as bailiffs, during the sitting of the court, was $492.50.
“The court finds that to expedite the trial it was necessary that the additional bailiffs, or under-sheriffs, or special officers of the court, should be appointed, and that the persons named and,to whom fees were allowed as such bailiffs were necessarily in attendance at such trial during such term of court.
“That the trial of the defendants in that case resulted in an acquittal, and that they were discharged by order of the court from custody, and that the court at the time of making such order adjudged that Cheyenne county, "Kansas, should pay all proper costs incurred on the trial of said case.
“That the fees hereinbefore set out and sued for have not been paid by Cheyenne county; that prior to the bringing of this suit Norton county, Kansas, presented its. claim against Cheyenne county to the board of county commissioners of Cheyenne county for allowance, which claim was refused and denied.
“That the claim of Norton county against Cheyenne county, above referred to, was rejected by the board of county commissioners of Cheyenne county, at its October meeting, 1904.”
“CONCLUSIONS OP LAW.
“(1) The court finds that Cheyenne county is justly indebted to Norton county, for jurors’ fees paid out and expended by it in the trial of the State of Kansas against Chauncey Dewey and others, in the sum of $2762.10.
“(2) That Cheyenne county is justly indebted, and there is due from it to Norton county, for per diem of the special officers who served as deputy sheriffs, or special court officers, at the trial of said case, the sum of $492.50.
“(3) That Cheyenne county is justly indebted to Norton county for moneys paid out to the special officers who served as special officers, bailiffs, or deputy sher iffs, in making service upon persons who served as jurors on said case, in the sum of $80.50.
“(4) That Cheyenne county is justly indebted to Norton county for the mileage of such officers necessarily traveled in making such service upon such jurors in the sum of $147.50.
• “(5) That the plaintiff is entitled to recover from the defendant in this action the total sum of $8482.50.
“(6) The court further finds that there should be deducted from the amount found due the sum of $17.25, and that the judgment should stand as $3465.25.
“(7) That said judgment should draw interest from this date at the rate of six per cent, per annum.
“(8) That the item of fees for which the plaintiff sues in this case was paid by Norton county, Kansas, on the 12th day of July, 1904. [The defendant excepts to each and every part of the findings of fact as made and stated by the court, and to each and all of the conclusions of law drawn therefrom.]
“It is thereupon considered, ordered and adjudged by the court that the plaintiff do have and recover of and from the defendant the sum of $3465.25, together with «interest thereon at the rate of six per cent, per annum from the date of this judgment, together with all costs legally chargeable; against said defendant, to all of which judgment and order the defendant objects and excepts.” '
To reverse the judgment Cheyenne county brings the case here, and Norton county, by a cross-petition in error, alleges error in the sustaining of a demurrer to certain causes of action.
The plaintiff in error first contends that no one of the 395 counts in the petition states a cause of action, for the reason that in none of them is there an allegation that Cheyenne county is indebted to Norton county for the amount therein alleged to have been paid out. The objection is not well taken. In the first cause of action the facts in regard to the pendency of the criminal action, the change of venue and the trial are stated generally. Then follows the allegation that a certain man named was summoned to serve, and served, as a juror, stating the number of days he attended and the miles traveled, the sum the juror was entitled to as pay, that the clerk of the district court of Norton county made a return to the board of county commissioners of that county thereof, and that the board had audited and allowed the amount and had issued the warrant of Norton county therefor, giving the number and amount of the warrant. In each of the following causes of action from No. 2 to No. 374, inclusive, the general averments of the first cause of action are made a part thereof, and then follows a detailed statement of the summoning, attendance, mileage, amount of legal' fees, return of the clerk, allowance by the board, and the issuance of the county warrant therefor, with the number and amount of the warrant. The term of court, so far as related to the jury, was as completely devoted to the trial of the Dewey case as possible, and there is no accounting or apportioning of the jury costs necessary or possible. Preceding the prayer for relief a general statement is made, with reference to each cause of action, of all the facts the absence of which in each count is the basis of the alleged insufficiency. Except as against a motion (which was not filed) to require the plaintiff separately to state and number its causes of action this cures the defect, and the demurrer to these counts was properly overruled. ■
Counts No. 375 to 387 set forth claims of bailiffs, or deputy sheriffs, and were of the class of burdens which, as between the counties, should be borne by Cheyenne county. (Shawnee Co. v. Wabaunsee Co., 4 Kan. 312.) The facts upon which the claim in each of the several counts was based, with the concluding general allegations, were sufficiently set forth, and the demurrer to all of said counts, except No. 387, which was not included in the demurrer heard and decided by Judge Smith, was properly overruled. It appears that before the Honorable Charles W. Smith was elected judge pro tern, to try the case a demurrer to several counts of the petition, including No. 387, had been heard before Judge Geiger, and was evidently sus tained as to this count inadvertently, as the demurrer to all other counts of like character was at the same time overruled. The order sustaining the demurrer to counts Nos. 387, 388, 389, 390 and 391, inclusive, is reversed. These expenses for the board and care of jurors by order of the court, while such jurors were sequestered and not allowed the liberty of providing for themselves, must be borne by one of the counties, and on the authority of Shawnee Co. v. Wabaunsee Co., supra, Cheyenne county must bear the burden.
The demurrer to counts Nos. 392 and 393 having been sustained, we affirm the order. These expenses, if incurred, were principally for room rent, beds and bedding. Norton county could not collect rent for its. court-house, and room for twelve jurors should be, and usually is, provided in court-houses. The beds, towels, etc., are articles of more • than temporary use, and should be supplied in the room or rooms of the courthouse appropriated to such use.
Ordinarily jurymen are compensated by fees per diem and must provide for their own personal expenses. Occasions arise, however, when this rule may be departed from; especially in criminal trials when public feeling and passion for and against the accused run high, or when great interests are involved and the most impelling motives exist for, prejudicing or even corrupting the jurors charged with the duty of pronouncing the verdict of guilty or not guilty. On such occasions the courts, realizing the danger of justice being thwarted, and also realizing the public importance of having not even a suspicion of any wrong attach to the verdict, are impelled to sequester the jury from the time they are impaneled until their full duty is discharged. These occasions have arisen from time immemorial, and will continue to arise, although less frequently as the higher intelligence and probity of jurors advance. With the decreasing danger of improper interference the modern tendency is toward less surveillance over juries than was formerly customary. When, however, in the judgment of a trial court the necessity for the sequestration of a jury arises it has the inherent power so to order, and to impose upon the county where the action originates the additional expenses made necessary thereby. In the interest of economy this discretion should be exercised with caution.
It is urged with much force that none of'the bailiffs, or deputy sheriffs, who summoned the jurors was entitled to compensation therefor unless a return was made upon the process showing the amount of his fees and the items thereof, and this is the plain provision of section 3062 of the General Statutes of 1901. The agreed statement of facts shows this return was not made by the deputies to whom fees were paid for such service. This wise provision of the statute is to prevent such officials from charging constructive mileage — that is, where an officer has a number of writs to serve on persons in the same or a near-by locality remote from the county-seat, it prevents a return of mileage from the county-seat on each writ. It goes to the proof of service, and compliance should be strictly required before compensation is granted. In this case, however, the sworn statement of the officer, made on a separate paper, was allowed to be substituted for the unsworn statement required to be indorsed on the writ, and the commissioners of Norton county audited, allowed and paid the claim. Moreover, it was expressly admitted in writing on the trial of this case that the officers actually performed the services for which they were paid. At the trial, then, it was not a question whether the officers should be required to furnish the statutory proof or forfeit their pay. They had been paid, and the question was whether Cheyenne county should pay for services admittedly received or whether Norton county should lose the amount paid by reason of the informality in the proof of the claims. To adopt the latter solution would be to make a statute designed to prevent wrong an effective instrument of wrong. The officers should not have been paid until they met the statutory requirement of proof. Upon the formal admission in court, however, Norton county should be reimbursed. In the absence of the admission the statutory proof of service should have been required, and by amended returns it may be supplied at any time.
We pause to observe that it would be the better practice and avoid confusion if county commissioners would require sheriffs to present their own bills for services rendered, and also the bills of their deputies, and of all persons to whom they have incurred proper obligations under the orders of the court. Under the statute or under the orders of the court the sheriff incurs the obligations for the county, and should be responsible to the county for the proper exercise of the power. The expenses are, in. a sense, his official expenses, and he should collect therefor and disburse to the proper persons.
We think the trial court did not err in refusing to allow interest on the claims prior to judgment, and we have discovered no reversible error in the final trial. However, as we have held there was error in sustaining the demurrer to counts Nos. 387, 388, 389, 390 and 391, and there is no agreed statement of facts or findings of the court which determine the issues thereon, or which enable this court to determine what judgment should be entered thereon, we cannot order a correction of the judgment, but must reverse the judgment rendered and remand the case for further proceedings in accordance with the views herein expressed, and it is so ordered. As the judgment is reversed on the cross-petition in error, the costs of this court will be taxed to the plaintiff in' error. | [
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The opinion of the court was delivered by
Graves, J.:
On December 27, 1906, J. C. Moore was convicted in the district court of Cowley county of murder in the first degree for killing his wife, Clara C. Moore. A motion for a new trial was denied, sentence was. pronounced, and the defendant appeals to this court. Thirty-seven assignments of error have been presented, but as several of them relate to the same questions it will be unnecessary to consider them in detail.
Complaint is made of the district court for admitting evidence of domestic troubles between the defendant and deceased existing years prior to the homicide and in no way relating thereto. Mrs. Edith McCullough, a daughter of the deceased, and a stepdaughter of the defendant, testified to profane and vulgar lan- ' guage used by the defendant to her mother at different times during , a period beginning more -than twelve years before the commission of the crime charged; also, that in 1901 he put the witness and her mother out of the house and upon the porch.
Mrs. Moore was a member and regular attendant of the Baptist church. ■ This practice on her part was violently opposed by her husband. To prevent her churchgoing, he made threats of violence against her and used vulgar and profane language concerning her and other churchgoing people. This conduct of the defendant became so persistent and violent that the deceased left him, and on March 27, 1901, she commenced a suit for divorce,and alimony, alleging extreme cruelty. The defendant answered and alleged that they had a family controversy concerning a “Carrie Nation crusade” then being conducted in the city, in which he and the deceased, with her daughter Edith, were in opposition, and the conduct and talk of Edith so irritated him that he put her out of the house. On April 19, 1901, Mrs. Moore obtained a de cree of divorce and for alimony. A motion for a new trial was allowed June 4, 1901. The case was then dismissed by Mrs. Moore, and the parties resumed their marital relations. The reason for this reconciliation is given by one of the witnesses as follows:
“Why, I have heard her say before him, that she came back because he promised to do right and promised to go to church with her. I have heard her ask him to go to church with her; I have heard her offer to go to other churches, other than the Baptist church, with him, and I heard her say that he promised to and heard him say that he would n’t go; I have heard her ask him to go a number of times and told him that she came back to live with him because he promised to be a man and promised to do what was right.”
Some time afterward, and during the year 1901, Mrs. Moore, her daughter Edith, R. B. McCullough, who afterward married Edith, and his sister started to attend an entertainment at Chilocco, an Indian school a few miles away. The defendant followed, overtook them, and compelled his wife to return. It appears that the defendant was very much opposed to the relations then existing between Edith.and McCullough. The occurrence is described by McCullough thus:
“My sister had come to town and there was an entertainment at Chilocco; she drove in with a horse and buggy, and Edith Tombs proposed that we go to Chilocco and that her mother would like to go. I had no objections and I told her I would go with my sister; I took my horse and buggy down to John Moore’s house and Mrs. Moore and Edith Tombs — Tombs then — got in the buggy; just as they were driving away John Moore came up and he hollered something at them — I don’t just remember what it was — and they drove on in a way that they did n’t hear him, or went anyway, and he then jumped on to me and cursed me and shook his fist in my face and accused me of trying to take his wife out of town. I tried to argue the question with him. I told him I was n’t and I supposed he knew she was going also, and they were just going to Chilocco to an entertainment and would be back, but he paid no attention to my plea and I walked away and left him alone, went up town to my sister, where she was- in the buggy at a livery-barn, I think, and we hitched up and drove on to Chilocco and overtook them and passed them and was in the lead when some one drove up from behind and came around ih front -of Mrs. Moore and her daughter, and I drove on a, little, not very far, and stopped; I heard him order her to get out of the buggy and go back to town with him, which she refused to do; but her daughter got Out of the buggy and came and got in the buggy with me and my sister, and Mrs. Moore turned to go back to town; he also turned, and as he turned he put his hand on his hip pocket and turned to me as he said: ‘For two cents and a half I would put a hole through you.’ I drové on, and they drove back to town, and I seen no more of them that day.”
Minnie Tombs, another daughter of the deceased, testified substantially the same as her sister Edith concerning the treatment of her mother by the defendant years before the homicide.
On January 1,1906, another separation having taken place, the deceased caused the defendant to be arrested, for the purpose of - compelling him to give a bond to keep the peace. In her verified complaint she stated that the defendant had made threats to assault and kill her, and she was afraid he would do so.
The state introduced in evidence the verified answer of the defendant in the divorce suit, the decree, thé order granting a new trial, and the order of dismissal The complaint in the peace proceedings and the warrant issued therein, with the return thereon showing the arrest of the defendant, were also introduced. It was then shown by the statement of the justicé of the peace that the defendant was committed to jail, but that when the case came up for triál, the prosecutrix refusing to appear, it was dismissed.
It is urgently insisted that this evidence was irrelevant and prejudicial. We are unable to see the theory upon which it was admitted. The deceaséd was killed October 21, 1906, in open daylight, on a public street and in the very presence and sight of numerous people. The fact that the defendant did the killing in manner and form as charged was not disputed. It is difficult to see how the vulgar and profane utterances of the defendant made twelve years before would throw any light upon the homicide. When the decree of divorce was set aside in 1901, and the parties resumed their marital relations, it would seem that all past differences were reconciled and condoned. After the defendant had been arrested upon the complaint of his wife and she refused to appear against him there was another reconciliation, and. they again resumed the relations of husband and wife, which continued until about a year before the homicide. How far collateral facts may be properly admitted in evidence depends upon the peculiar features of the case being tried. Usually such evidence is confined to cases where the prosecution is required to resort to circumstantial evidence to connect the defendant with the offense, in which case motive, the former relations of the parties and threats and admissions of the defendant are important; but no such necessity exists here. The proceedings in the divorce case and in the application to compel defendant to give a peace bond seem quite remote and foreign to the homicide. The natural effect of. this class of evidence is to inflame and prejudice the minds of the jury against the defendant on account .of former cruelty and brutality in no way connected with the homicide, so that a fair consideration of his defense would be difficult, if not impossible. It is a familiar and elementary rule that evidence must be confined to the point in issue. Collateral facts not directly, connected with the subject under investigation are inadmissible. (21 Cyc. 929, 980; 1 Ell. Ev. § 175; Sutton v. Johnson, 62 Ill. 209; Farris v. The People, 129 Ill. 512, 21 N. E. 821, 4 L. R. A. 582, 16 Am. St. Rep. 283; Nickerson v. Gould, 82 Me. 512, 20 Atl. 86; State v. Brantley, 84 N. C. 766; People v. Sharp, 107 N. Y. 427, 14 N. E. 319, 1 Am. St. Rep. 851.) In the syllabus of the case of Raines v. State, 81 Miss: 489, as reported in 83 South. 19, it was said: -
“In a prosecution for wife murder, evidence that accused had for ten years before the alleged' crime cursed and ill-treated his wife, and committed many simple assaults upon her, was improperly admitted.”
In the syllabus of the case of Billings v. State, 52 Ark. 303, as reported in 12 S. W. 574, it was said:
“Evidence concerning a difficulty between the. de¿ fendant and the deceased which occurred twoand k half years before the homicide is irrelevant, where no connection is shown between the two events, and, being prejudicial to the defendant, is reversible' error.”
In the opinion in the state report it was said.:.: ;
“The general rule is well established, in civil- as .well as in criminal cases, that evidence shall be confined to the issue. It seems that the necessity for the enforcement of the rule is stronger in criminal cases. The facts laid before the jury should consist exclusively of the transaction that forms the subject of the indictment, and matters relating thereto. To enlarge the scope of the investigation beyond this would subject the defendant to the dangers of surprise against which no foresight might prepare and no innocence defend. Under this rule it is generally improper to introduce evidence of other offenses; but if facts bear upon the offense charged, they may be proved, although 'they disclose some other offense. The test of admissibility is the connection of the facts offered with the subject charged.” (Page 309.)
The conduct of the defendant was consistent' with the theory of insanity, and that was his defense.. There was substantial evidence to sustain this claim, and we are unable to say that the jury were not influenced to the defendant’s prejudice by this improper testimony.
We have examined the instructions requested'by the defendant and refused by the court, as well ah' those given by the court and objected to by the defendant, and are unable to find any error in the action: of ..the court in respect to either. The instruction given by the court on the subject of insanity, to which objection is made, when taken in connection with the other instructions given upon that subject, is fairly in harmony with the rule followed by the courts generally, and as heretofore adopted by this court. (The State v. Mowry, 37 Kan. 369, 15 Pac. 282; The State v. Nixon, 32 Kan. 205, 4 Pac. 159.) The rule as to dying declarations was correctly stated by the trial court. (The State v. Reed, 53 Kan. 767, 37 Pac. 174, 42 Am. St. Rep. 322.)
We think substantial error was committed by the admission of evidence concerning remote and collateral facts, as shown by the testimony of witnesses Edith McGullough, Minnie Tombs, R. B. McCullough, G. H. Mclntire, and the partial record in the legal proceedings. This conclusion will require a reversal. The other questions presented need not be considered.
The' judgment of the district court is reversed, and the case is remanded with directions to grant a new trial. | [
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Per Curiam:
The controlling facts of this case are the same as in the case of Davis v. Land Co., 76 Kan. 27, 90 Pac. 766, and for the reasons stated therein the judgment of the district court' in this case is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
The assignments of error embrace the exclusion of evidence offered by the plaintiff, improper cross-examination by the defendant, sustaining the demurrer to plaintiff’s evidence, and denying plaintiff’s motion for a new trial.
The principal point insisted upon by the plaintiff in his argument is that the words “special agent,” added to the name of the payee of the note, were merely descriptio personse, and therefore the note, by its terms, was owned by A. B. Headington, and the indorsement in his proper name was sufficient. Many cases are cited which support this contention, but in our view this question is not in the case. The plaintiff did not rest upon the prima facie effect of his note, but the payee was placed upon the witness-stand to prove that he owned the note when it was taken. This opened the door to a full inquiry as to whether the payee took the note for himself or for the company. From the evidence of this witness it appears that the note was taken by the payee while acting as the special agent of the Mutual Life Insurance Company of New York, when he was engaged in the -transaction of its business, and in payment of insurance which it was to furnish. It is not shown that he was authorized to sell notes so taken.
It further appears that no report was made to the insurance company informing it of such application for insurance and that payment therefor had been made by such note. The maker of the note has not been furnished with any policy of insurance. The payee ceased to be an agent of the insurance company in September, 1904, a few months after the date of the note and several months before it became due. The note may never become due. If the insurance company should ever receive the application for insurance it may decline to issue a policy thereon, in which case the premium will not have to be paid. No consideration whatever has been received by the maker of the note.
It seems to us that if the note itself furnished a prima facie case for the plaintiff it has been completely destroyed by the testimony which he presented: The court might well have concluded that when the note was taken it belonged to the insurance company, and that no authority existed for its transfer by the agent, Headington.
It is insisted that the plaintiff was erroneously prevented from showing authority on the part of the payee to sell the note by the refusal of the court to permit the witness to state what the rules of the company were in this respect; but this question was objected to on the ground that it was not the best evidence, and, the witness having before stated that whatever authority he had was contained in his contract with the company, we are unable to perceive error in this ruling of the court. The contract was the best evidence. The same rule applies to the offer of proof.
It is insisted that the cross-examination made for the purpose of showing that when the note was taken it belonged to the insurance company was erroneous, because it tended to contradict the terms of the note, and because it was immaterial as against an innocent holder. As a general proposition this may be correct, but here it must be remembered that the plaintiff himself raised the question of ownership. He by his testimony made this a material matter outside of the note. Having undertaken for his own purposes to establish the right of the payee to transfer the note, he cannot avoid ordinary cross-examination of the witnesses offered for this purpose. If the plaintiff is not willing to stand upon the terms of the note he cannot expect the defendant to do so.
We see no material error in the rulings of the trial court, and therefore the judgment is affirmed. | [
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Per Curiam:
The only question presented for decision in this case is if a child of the half blood can inherit property descending through her father when her father had been deprived of her custody by a decree of court entered in a divorce proceeding brought against him by her mother. The statute casting the descent of property uses the word “children.” The relationship of parent and child determines the right of inheritance. The divorce of parents does not affect this relationship. No matter who may have her custody, for .purposes of nurture, a daughter is still the child of her father, and-by statute children of the half blood inherit equally-with those of the whole blood.
The, judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was a suit for the specific performance of a contract for the sale of two lots in Walnut, Kan., upon which there was a grain-elevator. In July, 1905, Maggie J. Parker Adams, a resident of Waterville, Kan., was the owner of the property, and learning that J. G. Nider, a neighbor, was going to southern Kansas she asked him to look after her property and the collection of an outstanding rent account. He investigated and made a report, and, through his wife, entered into correspondence with George Goff in regard to the care and disposition of the property. Nider’s wife wrote the following letter, to which she signed her husband’s name:
“Waterville, Kan., July 7,1905.
“Mr. George Goff, Walnut, Kan.:
“Dear Sir — Please , find enclosed account against Chanute Grain Company for rent due on elevator situated on Lots 5 and 6, B. 23, near Santa Fe depot. Please push this and collect at once. We enclose a letter from J. M. Goff saying they would rent elevator at $10 per month and do their own repairing. They owe rent on this to the enclosed statement.
“Please observe this letter and return to me when you have collected same. If you think best you can have the attorney make the collection through you.
“We also enclose deed. Have attorney look up matter and see if the gasoline-engine was in elevator when the transfer was made.
“If Chanute Grain Company will settle for $600 net to Maggie J. Parker she will turn over deed to said property and receipt in full for rent on said property. You are to get your commission above this for collection. Please give us an early reply as to what you can do about this matter.
Yours truly, J. G. Nider. ■
“P. S. All delinquent taxes will be paid so- there will be no encumbrance on said property. J. G. N.”
A few days later Mrs. Nider wrote another letter to George Goff, as follows:
“Waterville, Kan., July 13, 1905. “Mr. George Goff, Walnut, Kan.:
“Dear Sir — In reply to yours of the 12th inst. will say it seems to me that the letter of agreement in which they agree to keep elevator in repair and $10 month rent would be proof enough that they should pay it.
“Mrs. Parker wishes you to get entire rent due if you possibly can. In making the offer of $600 she thought perhaps'they would be more likely to purchase. Push the matter along and get the best possible price for it. Yours truly,
J. G. Nider.”
On July 27, 1905, Goff sent the following telegram: “J. G. Nider, Waterville, Kan.:
“Have purchaser for buildings and rent account. Six hundred. Will you take it ? Answer quick.
George Goff.”
This telegram was received by Mrs. Nider, and after a telephonic consultation with Mrs. Adams she sent the following message.
“7-25-05. Waterville, Kan.
“George Goff, Walnut, Kan.:
“Yes, will accept as per your message.
J. G. Nider.”
Acting upon Nider’s telegram, Goff entered into a written contract for the sale’ of the property to Guy F. Carlton, who paid $100 as part payment, the balance to be paid upon the delivery of a warranty deed. On the following day Mrs. Adams sold the property to C. E. Benedict, who is made a party to this suit, and executed a deed accordingly. In a trial, which was had without a jury, the court found in favor of Carlton, directing the cancelation of the Benedict deed and directing Mrs. Adams to execute a warranty deed under the Goff contract.
The contention of Mrs. Adams in the district court was that the contract relied on by Carlton is obnoxious to the statute of frauds, and the same question has been presented here upon both pleadings and evidence. She rightly insists that under the amended statute she cannot be held upon any contract for the sale of lands unless “some memorandum or note thereof shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized in writing.” (Laws 1905, ch. 266, § 1.) It is conceded that the memorandum required by the statute may consist of several writings, or a number of letters and telegrams, if they are duly signed and sufficiently state the terms of the agreement.- It will be observed that Mrs. Adams did not sign the contract, nor any of the letters or telegrams connected with the contract. She did not give any written authority to any one to sign her name, and no one did sign her name to the letters, telegrams or agreement. The deed spoken of in one of the letters was the one conveying the property to her, which appears to have been sent for purposes of identity. It is true that George Goff, who was looking after her property, undertook to make a contract of sale and that he signed it as agent. If the writings under which he acted had been signed by Mrs. Adams it might well be doubted whether he had authority to conclude a contract for the conveyance of the lots, or that it could be said that he had conferred upon him any power beyond that of finding a purchaser for the lots. In the recent case of Brotan v. Gilpin, 75 Kan. 778, 90 Pac. 267, it was held that the ordinary transaction of listing land with a real-estate broker under a direction to sell it upon stated terms does not imply a power to execute a contract for its sale. In one paragraph of the syllabus of the case, formulated by Mr. Justice Mason, it was said:
“Communications from the owner to a real-estate broker with respect to the sale of lands will be regarded as giving the agent only the authority usually incident to his employment — that is to say, to find a purchaser —unless a different intention is clearly shown, and no wider power than that is. necessarily indicated by .the use of the words ‘to sell’ or ‘to make a sale’ in describing the purpose for which the agent’s services are engaged, inasmuch as in common parlance ‘to sell’ is often used as meaning to negotiate or arrange for a sale, and a sale is spoken of as made when its terms have been orally agreed upon.”
But even if the letters and telegrams purported to authorize Goff to execute a contract, it was not such authority as is necessary to take the contract out of the statute. The amendment of the statute of 1905 in- respect to the authority of an agent to bind a principal is important. It was changed from a provision, requiring lawful authority, which did not prescribe the form, to one requiring lawful authority in writing. Under the statute as amended it is just as important that the authority of the agent shall be in writing as that the contract which he makes shall be in that form. Before Goff, therefore, could make a contract binding upon Mrs. Adams he must have had written authority directly from her, and such authority must have appeared on the face of the writings. The only writings received by him which pretended to give authority were from Nider and not from her. Neither Mrs. Adams’s name nor any abbreviation of it was attached to any writing in the transaction. While she had knowledge of the writings, and some of them were prepared and sent- under her direction, her signature was not attached to any of them, nor was the name signed one which she had .ever adopted or used. If the writer of the letters or telegrams had attached her name in her presence or at her request there would be room for the contention that the signature was her own, but there is no claim of an authorized use of her name. Under the statute of frauds a binding contract for the sale of real estate cannot be made by an agent unless such agent had written authority from his principal. Goff was, in a way, the agent of Mrs. Adams, but did not have the quality of authority necessary to the making of a binding contract for the sale of her lots. (Albertson v. Ashton, 102 Ill. 50; Kozel v. Dearlove et al., 144 Ill. 23, 32 N. E. 542, 36 Am. St. Rep. 416; Newlin v. Hoyt, 91. Minn. 409, 98 N. W. 323; Thompson v. New South Coal Company et al., 135 Ala. 630, 34 South. 31, 62 L. R. A. 551, 93 Am. St. Rep. 49; Cockrell v. McIntyre, 161 Mo. 59, 61 S. W. 648; Trust Co. v. Garbutt, 6 Utah, 342, 23 Pac. 758; 1 Clark & Skyles, Agency, § 50.) To whittle out the requirement that the authority of the agent shall be in writing would operate to nullify the recent amendment and to defeat one of the main objects of the statute.
Neither the pleadings nor the evidence in the case disclosed a valid contract for the sale of the property in question, and hence the judgment of the district court is reversed. | [
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The opinion of the court was delivered by
Smith, J.:
The plaintiffs in error contend that the will is valid as a written will to dispose of all the property of the testator; that the probate court of Lane county had jurisdiction to probate it as such, and did probate and file it more than two years before the commencement of this suit; and that the action of the court cannot, by reason of the lapse of time, be attacked in this collateral proceeding. They also contend that a will may be signed by the testator in person or by some other person for him; that if signed by some other person such person may write the name of the testator or his own name thereto; and that however informal such instrument may be it will be sufficient if the purpose and intention of the testator can be clearly derived therefrom. They also contend that in the finding of the probate court “that said Moses K. Flory died intestate” the word “intestate” is evidently a clerical mistake, and' that “testate” was really intended.
That the probate court of Lane county had jurisdiction to, and did, probate the will more than two years before the commencement of this action must be conceded. There is nothing, however, in the proceedings of the court as presented to indicate clearly that the probate court undertook to determine, even if he had jurisdiction so to do, whether the will is a written will under the provisions of section 2 of the act relating to wills (Gen. Stat. 1901, § 7938), or a verbal will under the provisions of section'69 of that act (Gen. Stat. 1901, § 8007). Aside from the use of the word “intestate,” the following excerpt from the record of the probate court seems to indicate that the court regarded it only as a verbal will:
“That said Moses K. Flory died intestate; that the personal property belonging to said estate is worth about $250; that said Mary A. Flory and B. M. Bovard are competent and willing to discharge the duties of administrators of said estate.”
While the words “executor” and “administrator” are used somewhat interchangeably, yet the custom, in appointing the persons named in a written will to take charge of an estate, of designating such persons as “executors” is so nearly uniform and so generally known that the designation of the persons who were appointed in this case as “administrators” is at least some indication of the intention of the probate court to name them as caretakers only of the personal estate. Even when, for any reason, persons who are named in a will as executors thereof are not appointed to execute the trust, others appointed in their stead are usually designated as “administrators with the will annexed,” and not simply as “administrators.” It is not supposed, however, that any departure from the usual custom of designating such a trustee would in any way limit the powers conferred.
Whatever may have been the understanding or in tent of the probate court, the question was before the district court, and is now before this court, whether the writing in question constituted a will under section 2 of the wills act (Gen. Stat. 1901, § 7938) and devised the lands in question to Mary Ann Flory and Addie Bovard. We answer this question in the negative. The writing does not purport on its face to be the act of Moses K. Flory, but does purport to be a recital by B. M. Bovard and Elbert Fuller of oral statements made by Moses K. Flory as to his last wishes and reduced to writing and signed by Fuller and Bovard.
A will devising real estate has the effect of conveying the title to such real estate, upon the death of the devisor, to the deyisee. And while it is desirable to give effect to the wills of deceased persons, regardless of formality and mistakes occurring through ignorance, where all the requirements of the statute have been complied with and the intent of the testator is clear, it would be extremely dangerous to hold an instrument of the character in question, lacking in the statutory requirements, to be such a will as conveys real estate. A written will must be the act of the testator, although another may pen the words or otherwise assist him in consummating the act. It must be “signed at the end thereof by the party making the same, or by some other person in his presence and by his express direction.” (Gen. Stat. 1901, § 7938.) It is a usual and proper precaution, if the' testator is unable to sign his name, to have him at least make his mark and for some other person to write his name, although this probably is not absolutely necessary. Instead of writing the name of the testator it might, under some circumstances, be sufficient for the person called to his aid to sign his own name, but we do not so decide. It does, not appear which one of the two persons who signed the' instrument in question signed in lieu of the testator, if either so signed.
Section 7938 of the General Statutes of 1901 further requires that a written will “shall be attested and sub scribed in the presence of such party [the testator] by two or more competent witnesses, who saw the testator subscribe or heard him acknowledge the same.” This statute certainly contemplates at least three names to the certification of a will. Here there are but two, and whether these two, or either of them, signed the instrument in lieu of the testator or as witnesses does not appear.
From the character and purport of the instrument itself as well as from its certification the will fails to comply with the requirements of section 2 of the wills act. Whether it complies with section 69 of that act is not a question before us, but it seems to have been framed under the latter provision.
We understand the demurrer was sustained to the defenses of complete title and ownership alleged by Osborne and Whiting and does not affect the question of partition.
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The opinion of the court was delivered by
Burch, J.:
The plaintiff was a skilled machinist employed by the defendant to work in its shops at Parsons. He was directed to fit a large casting, known as a. smoke-stack saddle, upon the rounded top of the smoke arch of a locomotive. To do this it was necessary to chip off portions of the casting. The plaintiff marked lines on the casting to guide him in dressing it and secured it to a bench to hold it in position. He then held a handled chisel while a helper struck it with a sledge, the chisel being readjusted with reference to the marks on the casting after each blow. Just as the plaintiff was completing the preliminaries to the work of chipping the casting a helper named Fogleman appeared to do the sledging, bringing with him a sledge of his own selection from a collection of tools supplied to helpers by the defendant. The helper was sent to the work by a foreman, without direction from the plaintiff. The sledge was too highly tempered, and therefore brittle. There were old breaks in each face of it. It was defective and dangerous, and soon after work was begun a sliver of steel broke from it, flew into the plaintiff’s left eye, and destroyed his vision. The plaintiff sued for damages and recovered.
In this proceeding in error it is alleged that the petition stated no cause of action; that no cause of action was proved; that the plaintiff was’ guilty of contributory negligence; that he assumed the risk of the injury which he suffered; that certain instructions given to the jury were inapplicable, because they left to the jury questions which the court should have determined as matters of law; and that the defendant is entitled to judgment on special findings returned by the jury.
The petition stated the nature of plaintiff’s employment, his duties, the circumstances of the injury, and contained the following allegations:
“That said sledge-hammer, so used by the said James W. Fogleman, was by defendant supplied and' furnished to the servants and employees of defendant engaged as helpers to machinists, for their use in the work about said repair- and machine-shops of defendant; that said sledge-hammer was impropérly and too highly tempered, was hard and brittle, would break and sliver off when used, was because thereof not reasonably safe for use, and was because thereof a dangerous and defective tool for use, which facts, from the use and from the appearance of said hammer, were'well known to . defendant or by the exercise of ordinary care might have been known to defendant.”
It is said that this simple charge of knowledge and of means and opportunity for knowledge on the part of the defendant demolished the plaintiff’s cause of action. The argument runs thus: The knowledge of the defendant as to the condition of the sledge was no greater than that of the plaintiff; if the defects in the hammer could be ascertained by use and appearance the plaintiff, “who was the last to see the hammer in use before his injury,” could have ascertained them; he was called upon for his own protection to make observations and take precautions respecting the tool, particularly since the defects were ascertainable by use and from appearance, and no greater duty in this respect rested upon the defendant than upon the plaintiff.
The same argument is made in discussing the sufficiency of the evidence, the negligence of the plaintiff, assumption of risk, the pertinency of the instructions, and the effect of the special findings. It is continually asserted that the plaintiff owed the duty of scrutinizing his helper’s hammer, that he was obliged to know, because of the use and appearance of the tool, if it was safe, and that the defendant’s duty of observation rose no higher than that of the plaintiff. Since the argument is based upon a fallacy which permeates the entire brief for the defendant it may as well be disposed of now and once for all.
No duty rested upon the plaintiff to make an inde pendent investigation of the sledge which the helper brought to the work for the purpose of ascertaining if it was safe for use. It was the master’s duty to- provide the helper With a fit tool. It was not incumbent upon the plaintiff to stop his work to see if that duty had been performed. He could rest upon the assumption that the master would not permit a helper to appear with a defective sledge. Therefore, unless his attention was in fact drawn to the imperfections of -the sledge, or unless the sledge was so obtruded upon his gaze that he could not but observe it, the injury could not be charged to any want of care or breach of duty on his part. These principles are fundamental in the law of master and servant, and it is merely carrying coals to Newcastle to cite authorities for them. However, the case of Buoy v. Milling Co., 68 Kan. 436, 75 Pac. 466, is instructive. The facts are stated in the opinion as follow:
“James Buoy, an employee of the Clyde Milling and-Elevator Company, who was assisting in the construction of a warehouse, was injured by the fall of a negligently constructed scaffold. . . . Miller, the general manager' of the company, employed Richa to complete the building, and told him that he would send Buoy around to help him. According to plaintiff’s testimony, Richa had worked some time and had practically completed the scaffold when Buoy arrived at the building. Buoy inquired if the scaffold was safe, and the reply of Richa was that it could not be pulled down with a team. Plaintiff went upon the scaffold with Richa and within a few minutes it fell to the ground and the plaintiff was seriously injured.” (Page 437.)
The syllabus of the case reads:
“The furnishing of a safe place to work and safe appliances with which to do the work is among the absolute duties of the master; and unless the servant’s attention is drawn to defects or the dangerous condition of the place or the appliances furnished, or he should have known of them, he is not required to make an investigation, but may rest upon the assumption that the master has performed his duties in these respects.”
In the opinion it was said:
“The furnishing of a safe place to work and safe appliances with which to do the work are among the absolute' duties of the master. From the testimony a fair inference may be drawn that these duties were not performed. It is said, however, that plaintiff had an opportunity to examine and must have examined the scaffold before using it. According to the testimony he was told to go to the assistance of the carpenter, and when he went he found a scaffold erected upon which he was expected to work, and, unless there was a very obvious defect, he had a right to assume that it was properly built. (Kelley v. Railway Co., 58 Kan. 161, 48 Pac. 843.) . . . We cannot say that he should have known of the insecurity of the scaffold. Unless his attention was drawn to defects or to the dangerous condition, he was not required to institute an investigation, but might rest on the assumption that the company had performed its duty. . . . As we have seen, the scaffold was not built by him, and the accident occurred within a few minutes after he began work on it. It cannot be arbitrarily said that he knew, or should have known, of the danger to which he was exposed. Under the law, Jt is not only necessary that the employee shall know of the facts constituting the negligence of the master, or have opportunity to know them, but, in addition to these facts, he must have known, or by the use of ordinary observation ought to have known or understood, the danger to which he was exposing himself by reason of those conditions.” (Pages 443, 444.)
With but slight modification this syllabus and opinion could be adopted in the present case. The fact that the helper used a sledge the appearance of which condemned it was not conclusive upon the plaintiff. Such fact did not bind him to knowledge of the sledge’s unfitness for use or appreciation of the danger in using it. His relation to the sledge was not the same as that of the defendant, who was obliged to perform the active duty of furnishing its helpers with safe sledges. The plaintiff was under no duty to examine the sledge or to inquire into its condition. He could only be held to knowledge of facts actually brought home to him, or which, under’ the circumstances, he could not but possess ; and there is no warrant in the law for arbitrarily attributing such knowledge to him. So much being clear, it is plain the petition stated a cause of action and the court was required to proceed to a trial.
The plaintiff was employed in the mechanical department of the railway company, which was under the supervision and control of William O’Herin, superintendent of motive power and machinery. W. H. Brehm was master mechanic in general charge of the shop in which plaintiff worked. James A. Wilson was foreman of the shop. The workmen in the shop were divided into three gangs, each under a foreman. The plaintiff belonged to gang No. 3, of which Robert E. Bates was foreman.
The helpers of each gang did only unskilled and heavy work. Appropriate tools were provided for their use. Each evening the foreman of each gang ordered the tools for the helpers of his gang to be collected into a cupboard, or locker, of which he kept the key. This cupboard the foreman locked at night and unlocked in the morning. When the cupboard was unlocked the tools were likely to be thrown upon the' shop floor. Each helper took from the floor or from the locker such tools as he needed. Sometimes tools strayed from one part of the shop to another, and it so happened the plaintiff was injured by a sledge belonging to gang No. 1. The same.rules of oversight by gang-foremen prevailed, however, throughout the shop.
Gang-foreman Bates ordered the plaintiff to do the work upon which he was engaged, and ordered helper Fogléman to assist him, but no one ordered Fogleman to use the sledge in question. When he undertook to equip himself for work Fogleman found no hammer in the cupboard of suitable weight for the light work of chipping a casting. Looking about, he found this one on the shop floor.
The jury found specially that the sledge was not of the kind, character, quality and appearance of those constantly used by the helper before the time of the accident; that it was not a reasonably safe tool for use; that it was too highly tempered, hard and brittle, and would break and sliver off when used; that these defects appeared on the face of the hammer; and that it was defective and dangerous.
The evidence may be taken as establishing the fact that the defendant equipped the shop with a supply of safe hammers. Indeed, the plaintiff said that before he was hurt he had never seen a defective hammer in the shop. ■ When defective hammers were discovered by the machinists they were reported to the gang-foreman and either repaired or discarded. The defendant had no actual knowledge of the defects in the hammer which Fogleman used. No one had ever objected to it or asked that it be repaired, and it was first brought to the attention of those having authority after the plaintiff was injured.
The jury found specially that the plaintiff did not know the defective condition of the sledge before he was injured, but held the defendant responsible, returning the following special findings in connection with'the general verdict:
“(9) Ques. Do you find from the evidence that the said sledge-hammer was furnished by defendant to the servants of defendant for their use? Ans. Yes.”
“(16) Q. Do you find from the evidence that said sledge-hammer had been a long time in use by the, helpers in the machine-shops of defendant? A. Yes.”
“(36) Q. Does the evidence disclose the fact that the appearance of the hammer was such as to indicate that it was a dangerous and defective tool for use, and that the defendant by the exercise of ordinary care might have known the defective condition of the tool from its appearance? A. Yes.
“(37) Q. If you answer the above question in the affirmative, you may state how the railroad company could have known of the defective condition of the tool in the exercise of ordinary care ? A. Through foreman.”
“(17) Q. Do you find from the evidence that James A Wilson, in the discharge of his duty, by the exercise of ordinary care could have known of the condition of said sledge-hammer at the time plaintiff sustained injury? A. Yes.
“ (18) Q. Do you find from the evidence that Robert E. Bates, in the discharge of his duty, by the exercise of ordinary care could have known of the condition of said sledge-hammer at the time plaintiff sustained injury? A. Yes.”
The defendant argues that it discharged its duty to the plaintiff and that no negligence on its part was proved. It furnished safe tools. It did not direct this tool to be used. It had no knowledge of the fact that a defective tool was in use; and it asks the question, How could the defendant know that the sledge was unsafe when the plaintiff did not know it ?
The evidence and special findings so far adverted to do not complete the proof favorable to the plaintiff. There is much more which the defendant in its argument overlooks or ignores.
The defendant did not stop with supplying proper tools for helpers to work with. The helpers were unskilled men, without the expert knowledge necessary to determine whether tools were safe or unsafe, and the defendant undertook, not merely as a matter of law but as a matter of fact, to see and know whether the helpers’ tools were in proper condition for use. The testimony 'of Mr. James A. Wilson, general foreman, is conclusive upon these questions:
“Ques. What position do you hold with reference to the defendant in this action? Ans. General foreman of the Missouri, Kansas & Texas shops in Parsons, Kan.”
“Q. Frequently during the day do you usually get around the gangs where gangs Nos. 1, 2 and 3 are at work ? A. I pass through the gangs maybe twenty or thirty times a day, and maybe more than that.
“Q. There is a foreman with each one of the gangs? A. Yes, sir.
“Q. So, then, there is to direct the work of the machinists — what is to be done, how it shall be done— Mr. Brehm, yourself, and the foreman of the gang in which they are at work? A. Yes, sir.
“Q. And that'is the duty of all the three of you? A. Yes, sir.
“Q. As you pass around on the floor where these gangs are at work you see the tools lying around there do you? A. I generally do; yes, sir.
“Q. One of your duties is to see what is there, is it not? A. Yes, sir.”
“Q. What would you have done, and what would have been your duty, had you seen this hammer in the condition it was delivered to you in either of the gang-foremen’s cupboards,■ or upon the floor for use? A. Why, I would have taken it up.
“Q. What do you mean by ‘taken it up ?’ A. I would take it away, take it out of the shop, because I considered it a tool to be put in shape and in condition.
“Q. In other words, you considered it to be an unsafe tool to be used ? A. Under the conditions, yes.
“Q. Would it be the gang-foreman’s duty to know its condition and call your attention to it? A. Not where his attention was called to it.
“Q. Is n’t it his duty to look after everything that is there under his charge? A. Everything under his charge; yes, sir.
“Q. Are not the tools that are furnished to the helpers to be used under the charge of the gang-foreman? A. They are.
“Q. Then it is his duty to know whether a tool is a safe tool or unsafe tool for their use, is it not? A. It is.
“Q. And when he discovers that it is an unsafe tool for use, it is his duty to see that it is not used, is it not ? A. Yes, sir.
“Q. And to take it up? A. Yes, sir.
“Q. Either to take it to the blacksmith’s shop or cause it to be taken there and worked over, or take it or cause it to be consigned to the scrap heap ? A. Yes, sir.
“Q. And the helpers are not supposed to have, or possess, any skill in the matter of determining what are safe or what are unsafe tools to use, are they? A. No.”
Much other testimony is to the same effect.
The plaintiff, as a machinist, was rarely called upon to handle helpers’ tools. There is no finding that he was charged with the duty of examining helpers’ tools to determine if they were fit for the helper to use. There is abundant evidence that such was not his-duty. The helpers were incompetent to judge of the fitness of the tools they used. That function the company reserved to itself, and the evidence quoted means nothing less than that the presence of a sledge-hammer in a cupboard or on the shop floor constituted a license from the gang-foreman to every helper to use it, whether better ones were available or not.
Wilson and Bates each gave testimony to show that it was the duty of the machinists to inspect the tools of their helpers, but the jury-evidently did not credit them in this respect, and based their verdict and special findings upon the evidence to the contrary. It was the' special province of the jury to resolve conflicts in the evidence, and this court cannot reinvestigate the matter.
That the defendant had ample time and opportunity' to discover the defective condition of the hammer after it had become unfit for use was fully proved, so that the defendant’s duty and breach of duty were clearly established. The answer to the question propounded by the defendant in connection with its argument upon this branch of the case is now very plain. Under the law and under the organization and rules of the shop no duty of active vigilance rested upon the plaintiff with respect to the fitness of his helper’s tools. He could rest under the assurance that the master had performed its duty and take it for granted that the sledge was a proper one. The foreman was obliged under the law and under the organization and rules of the shop to inquire and see and know whether the helpers’ tools were reasonably safe. Reasonable opportunity having been afforded to the foreman to ascertain the facts, the defendant iá held to all the consequences of knowledge. The plaintiff is bound only by what he actually knew or under the circumstances could not but know.
The defendant claims that the plaintiff and his helper were fellow servants; that since the defendant furnished proper tools the choice of a defective sledge was the negligent act of a fellow servant, and hence that no cause of action was proved. From the evidence quoted it is plain the helper exercised no intelligent choice. He was not on the same plane as either the plaintiff or the defendant. He did not have the requisite capacity to determine between the qualities of different tools, and no duty rested upon him to make a choice so far as fitness for use was concerned. The foreman chose all the helper’s tools, and placed them at his disposal as being safe for use. Any so-called selection the helper might make was the selection of the foreman, and if the tool proved defective the foreman was responsible and not the helper.
It is strenuously insisted by the defendant that the plaintiff was guilty of contributory negligence in not observing the defects in the hammer and preventing its use. The entire argument, however, is confused and vitiated by the improper assumption noted in the discussion of the sufficiency of the petition. Negligence involves a breach of duty. When there is no duty there can be no neglect of duty. If a specific kind of care is for any reason not required in a given case a person cannot be negligent in failing to use such care. The defendant’s duty required that it should see and know what kind of a sledge the helper was using, and the failure to discharge that duty constituted actionable negligence. No duty rested upon the plaintiff to see and know what kind of a sledge the helper used. He did not owe it to the defendant or to the helper or to himself to look. He could remain passive under the assurance that the master had fulfilled its obligation. Therefore his failure to observe the defects in the hammér did not constitute negligence barring recovery.
The prudence of the plaintiff’s conduct is further shown by the following very enlightening bit of testimony given by Robert E. Bates, foreman of the plaintiff’s gang:
Ques. If, as a machinist, you had been working upon that same piece of work which Quinlan was working upon, dressing the smoke-stack saddle, and Fogleman or any other helper had started to get that hammer; if you had not known there was a defective hammer in use upon the floor, it would not occur to you to look at the hammer he was using for defects, would it? Ans. No, sir. •
“Q. It would not occur to any machinist under those circumstances to look and see whether it was safe or unsafe to handle, would it? A. I don’t think it would.”
The defendant shapes its argument to do further service under the heading of assumption of risk. Assumption of risk is an element of the contract of employment. A servant assumes only those hazards which are the natural incidents of the employment. Tools which are dangerously, defective are not the natural incidents of any employment. . It is the master’s absolute and unassignable duty to supply safe ones. If defective tools are furnished the servant may assume the risk attending their use, but he can be held to have done so only when he has knowledge or the equivalent of knowledge of the facts and of the danger. The subject is fully discussed and assumption of risk and contributory negligence are discriminated from each other in the case of Railway Co. v. Loosley, 76 Kan. 103, 90 Pac. 990. The flying of chips of metal from the casting the plaintiff was dressing was a natural incident of his work. He was bound to know that such a result would follow from the pounding of his chisel by the helper’s sledge, and was required to take all necessary precaution to protect himself from injury from that source. But he was not bound to take any steps to protect himself from a defective sledge when he could take it for granted the master had given the helper a sound one.
It is said the plaintiff knew how to temper steel, knew that sledges tempered until they were brittle would break under use, knew all about the kind of work done in the shops, knew that sledges were used for striking blows upon chisels, could comprehend a simple tool like a sledge, had good eyesight, was in fact a skilled mechanic, and had the means of knowing if this sledge was defective; all of which is true. But he had the legal right to rest upon the belief that the master would not-violate its duty and negligently expose him to the hazard attending the use of a dangerous sledge.
It is said the test o'f the tool was use; that the master could learn whether the tool was defective only by putting it to use, and that while the tool was in use the plaintiff assumed the risk. The argument is unsound in several respects, but it is enough to note a single flaw: The hammer was too old. The test had been made, and the proof of deficiency was written upon both ends of the implement long before the plaintiff lost his eyesight. When ample evidence of unsuitability for use had been supplied by use the plaintiff had the right to rely upon the master to perform its duty to take up the tool and no longer endanger his safety by permitting it to be used.
The one close question in the case now presents itself. Already it has been foreshadowed, and is this: Was the hammer so paraded before the plaintiff’s eyes that he must have seen it? If so, he was fully competent to estimate the probable consequences of using it and acted at his own peril. If not, he is entitled-to judgment.
The defendant does not segregate this question and discuss it upon its merits, but, starting from the false premise that it was the plaintiff’s duty to inspect and observe equally with the master, readily reaches the conclusion that the plaintiff’s opportunity to see furnished the virtual equivalent of knowledge. The subject is partially covered by findings of fact which read as follow:
“(14) Ques. Do you find from the evidence that plaintiff at the time he sustained injury knew the condition of said sledge-hammer? Ans. No.
“ (15) Q. Do you find from the evidence that at the time plaintiff sustained injury he was exercising ordinary care to prevent injury to himself? A. Yes.”
“(18) Q. You may state whether the plaintiff had good eyesight and was a reasonably careful and prudent man in observing the place where he had to work and the tools which he and his helper had to use. A. Yes.
“(19) . Q. Is it a fact that while the plaintiff held the chisel and his helper, James W. Fogleman, used the sledge-hammer in striking, the plaintiff could see said sledge-hammer as it was raised and lowered and could see the same when it descended upon and struck the chisel which was held by the plaintiff? A. Yes, when his attention was not directed to the point of chisel used by him.
“ (20) Q. Was there anything to prevent the plaintiff from observing the sledge-hammer and the condition of the same at the time he commenced his work in chipping off the casting and during the time he was engaged in his work? A. No.”
“(26) Q. Is it a fact, as shown by the evidence, that' machinists engaged in the shops of the defendant company at Parsons, holding chisels in the kind of work in which the plaintiff was engaged, ought to turn their faces away when the hammer descended upon the chisel, for the purpose of saving their face from flying particles? A. No.”
“(28) Q. You may state what is the fact as to whether the plaintiff turned his face away as the sledgehammer descended upon the chisel which he held during the time that he was making the repairs upon the locomotive and at the time he received his injury. A. No.
“(29) Q. You may state what defect, if. any, existed in the sledge-hammer that was used by James W. Fogleman at the time of the injury of the plaintiff? A. Such defects as appeared on the face of the hammer.”
“ (38) Q. Would an examination of the tool, from its appearances and conditions, have revealed the fact to the plaintiff that it was a defective tool? A. Yes.”
“ (40) Q. Would an examination of the tool by the plaintiff at the time of the commencement of his work on the day of his injury have revealed the fact that it was improperly and too highly tempered, and consequently was hard and brittle and would break and sliver off when used? A. Yes.” '
“(63) Q. You may state what observation, if any, as disclosed by the evidence, was made by the plaintiff in ascertaining the condition or appearance of the sledge-hammer at the time the same was selected by his helper or during any period of time when the same was being used. A. None.”
It is not shown how the helper carried the sledge when he came to the place where the plaintiff’s-work was to be done — whether upon his shoulder, or at his side, or in front of him, or by the end of the handle with the slivered head near the floor. The plaintiff was absorbed with the details of his own part of the work. The sledge was not in his thought. He was under no obligation to consider it. He was not obliged to suspect danger. He could rest secure that the helper had a safe sledge without taking notice. It was his business to prepare the casting to be chipped, and when that work was performed to adjust his chisel to the line where the cutting was to begin. Up to this point he had no occasion to look at the sledge, and from that time forward his eye was directed, not to the head of the chisel, where the hammer scarcely paused between strokes, but to the cutting edge of the chisel and the lines marked on the casting. The plaintiff testified as follows:
“Ques. When you felt the blows come down on the chisel which you held, and you observed the blows were all right, and that the hammer was all right as to weight, what was there to prevent you looking at the hammer when it descended on the chisel? Ans. Well, I was keeping track of the line where I was cutting.
“Q. In keeping track of the line, would n’t you necessarily have to keep your eye on the chisel and the hammer as it fell too ? A. No, sir.
“Q. Would you permit yourself to hold a chisel with a man who was using a dangerous hammer? A. Not if I knew it I would not.
“Q. Were you not yourself in duty bound to make an examination of the hammer before you commenced to work? A. No, sir; that was not my duty.
“Q. Did n’t you know it was your duty to report any defective tools you might find in your line of work to the gang-foreman that might be in your charge? A. Any one I had charge of.
“Q. You didn’t take charge of it and your helper might have charge of it and you would still sit by and allow him to use a defective tool on the chisel ? A. Not if I knew it.
“Q. Weren’t you' called upon to use your eyesight? A. Not that I remember of.”
“Q. You knew sparks 'and chips would fly from this casting? A. Yes, sir.
“Q. If there were glancing blows on that chisel you might be injured that way if the hammer was defective and there might be pieces fly from it; you would know that? A. If the chisel was not held in proper position.
“Q. Or if the hammer was badly battered the pieces might fly off? A. It is all a man can do to hold one of them chisels and keep track of the line; he cannot look around and examine anybody else’s tools; and it is not customary.”
“Q. Now, if you were particularly careful in selecting the chisel that you were holding yourself, will you explain to the jury why you would not make an examination of the tool your helper was using and see whether it was just as safe as the one you used? A. I had nothing to do. with the helper’s tools.
“Q. You relied upon the fact that the helper would get a good tool, one that was not defective, and use it; is that it? A. Yes, sir.”
“Q. Now, Fogleman came to you about seven o’clock, did he, to work? A. Somewhere in that neighborhood in the morning.
“Q. Well, did he have the hammer when .he came? A. Well, I don’t remember whether he did or not.
“Q. You knew he could not do the work that you had to do without the hammer? A. When I held the chisel up -and was ready for him, he had the hammer then.
“Q. That is the first time you noticed the hammer, was it? A. I never took no particular notice of the hammer; he just started right in striking when I says ‘we are ready.’
“Q. When you said ‘we are ready’ you are assuming he had the hammer? A. Yes, sir.
“Q. Did you notice it at the time when you said ‘we are all ready’? A. No.
“Q. You never took any notice of it even then? A. No.”
“Q. Did you see Stevens or Robinson there while you were working and cutting away this saddle? A. I never noticed anybody in particular.
“Q. Did you know Stevens and Robinson were right on the other side of the bench from you? A. I never noticed anybody.”
“Q. As a matter of fact, you were not taking notice of anything that morning? A. Not but what I was working on; that is all I was watching — my job fitting the saddle.”
“Q. Now, although you were facing in this direction, yet you did n’t see whether any persons were working here? A. I never noticed.
“Q.- Although you were standing and facing that way, and looking this way; but you were looking at your hammer? A. I was looking at the edge; there was a little bit of a line that I started,' and I watched right close to it. Of course, I could not see the line half the time, but it is .a mark made by machinists to govern where to cut, and I was holding my chisel on that line.”
“Q. What was absorbing your attention in the dressing of this casting, and where was your attention directed? A. Directed right on the line of the cutting edge of the chisel.
“Q. What line do you mean? A. The line where I was taking off material to fit — where I had marked it off.
“Q. Is the dressing and fitting of a smoke-stack saddle particular work? A. Yes, sir.
“Q. What is there about it that requires careful and close work? A. It must fit nice and snug over the boiler and leave no holes. It has a curved surface.
“Q. On account of the curvature on the top of the boiler? A. Yes, sir.
“Q. Was it that that was absorbing your attention at the time of dressing the casting to that line? A. Yes, sir.
“Q. Is that why you did n’t observe whether or not there were other parties before you? A. Yes, sir.”
The helper, Fogleman, testified as follows:
“Ques. What did Quinlan appear to be giving his attention to at the time? Ans. He was holding the chisel, looked as though he was watching the line; he had his cap kind of pulled over his eyes holding his chisel; I don’t remember the position in which he was holding it, but he was holding it at arm’s length.
“Q. Where did his attention appear to be directed? A. To the cutting end of the chisel.
“Q. Following the lines? A. Seemed to. I was not watching Quinlan particularly; I*was watching where I was striking — at the other end of the chisel.”
“Q. You were directing your attention to the surface of the chisel? A. To the center part of it.
“Q. That is where your attention was directed? A. Yes, sir.
“Q. Where did Quinlan’s attention appear to be directed at the same time your attention was directed there? A. At his chisel, cutting to the line where he was cutting; his attention seemed to be directed there. I did n’t see him look around at anything; in fact, he did n’t have time. I was striking every time he set the chisel. .
“Q. State what you mean by that. A. Every time I would strike and cut a chip he would bring his chisel back and set it at the place where he wanted to cut, and every time the chisel cut he would bring it back and set it. Of course, I had to wait until he set his chisél and I did n’t come down as fast as I pleased. I struck when he had his chisel set, -and therefore I had to watch the chisel.”
C. B. DeDual, a machinist, testified as follows:
“Ques. You observed him [Quinlan] while he was at work, did you? Ans. Yes, at times.
“Q. You observed where his attention was directed at those times when you did observe him? A. Yes, sir.
“Q. State to the jury where his attention was directed. A. His attention was directed to the smokestack saddle that he was chipping.”
It is the duty of the court to harmonize special findings with each other and with the general verdict, if that can be done. The jury have found specially that the defendant was a careful and prudent man, and was in the exercise of' reasonable care, although he did not observe what he might have seen had he looked. The reason he did not observe the sledge as it rose and fell is fairly stated by the answer to question No. 19. Finding No. 20, considered in connection with the others and with the general verdict, evidently means no more than that no physical obstruction to a view of the hammer precluded the plaintiff from seeing it. The other findings merely establish the fact of opportunity to see defects which were visible to any one looking at the sledge, and that the plaintiff, with good eyesight, did not see;
Under the circumstances the question was one of fact, and being a question of fact the inference of the jury expressed in the general verdict is controlling. It is very true that in many cases this court can and will disregard a conclusion of fact drawn by a jury. No matter what may be the opinion of the jury, the court will not tolerate the conclusion that a man did not see what he could not avoid seeing. If a person with good eyesight stand upon- a railway track, have an unobstructed view of an approaching train, and look in the direction of the train, a jury cannot be allowed to say, after he is run down, that he did not see the train. In such a case different minds could not rightfully reach different conclusions. Only one inference' could rightfully be drawn, and it would be the duty of the court to disregard any other. Usually the question arises in cases where a duty to be observant exists and the facts are to be estimated with reference to that duty. Here the legal obligation to see is wanting, and different opinions might well be entertained upon the question whether the plaintiff must have seen. Therefore the question was one for the jury. (St. L., Ft. S. & W. Rld. Co. v. Irwin, 37 Kan. 701, 16 Pac. 146, 1 Am. St. Rep. 266; A. T. & S. F. Rld. Co. v. Rowan, 55 Kan. 270, 39 Pac. 1010; Rouse v. Ledbetter, 56 Kan. 348, 43 Pac. 249; Railway Co. v. Michaels, 57 Kan. 474, 46 Pac. 938; Cement Co. v. Moore, 65 Kan. 762, 768, 70 Pac. 864; Hoffmeier v. Railroad Co., 68 Kan. 831, 75 Pac. 1117.
Certain decided cases’ cited by the defendant may be briefly discriminated: In Lanyon v. Bell, 64 Kan. 739, 68 Pac. 609, the plaintiff’s work lay amid stacks of zinc spelter. They were a necessary part of his environ ment. Their condition was open and observable, no negligence of the defendant was shown, and the plaintiff was held to be chargeable with knowledge of what he could, and under the law was bound to, see. In this case the defective sledge had no rightful, place in the midst of the plaintiff’s surroundings. It was an intruder of whose presence the plaintiff was ignorant, one which he was not bound to observe, and one which could be there only through the defendant’s negligence.
In McQueen v. C. B. U. P. Rld. Co., 30 Kan. 689, 1 Pac. 139, an employee injured because of defective wheels on a hand-car had used the car, had examined it, and several times had wiped oil off the defective wheels. Of course he not merely had full opportunity to see but must have known the condition of the wheels.
In Libbey v. Railway Co., 69 Kan. 869, 77 Pac. 541, a train conductor was struck by a train moving upon a track in the railway yards. Railway tracks are warnings of danger. They are laid for the purpose of running trains upon them, and every man must be vigilant in keeping out of the way of railway-trains. The following sentences from the opinion sufficiently distinguish the case from the one now under decision:
“He knew the dangers of the place; he voluntarily and' unnecessarily put himself into a place of danger; and he took no precaution for his own protection. In stepping upon a railroad track in front of a moving train without looking or listening, he ignored the plainest dictates of ordinary prudence.” (Page 870.)
In the case of Jackson v. K. C. L. & S. K. Rld. Co., 31 Kan. 761, 3 Pac. 501, a train conductor continued to use a defective step, with full knowledge of the defect, until he was hurt. Comment is scarcely necessary. In the case of U. P. Rly. Co. v. Estes, 37 Kan. 715, 16 Pac. 131, an employee voluntarily and unnecessarily placed himself in a place of danger, and in the case of Carrier v. Railway Co., 61 Kan. 447, 59 Pac. 1075, an employee voluntarily and knowingly chose an unsafe instead of a safe way of doing his work. In Railway Co. v. Withers, 69 Kan. 620, 77 Pac. 542, 78 Pac. 451, the syllabus reads:
“One may not knowingly stand upon a railroad track in a switch yard, or so near thereto as to be in an equally dangerous position, where he knows, or has reason to know, that cars may run at any time (another position being equally available), neglect to use his ordinary faculties to guard against danger, and, when injured through the negligence of the railroad company by a car passing along such track, recover damages. His contributory negligence bars such recovery.”
This is a restatement of the rule applied in the Lib-bey case. The plaintiff in the case under consideration was in a place of safety, and was not required to be on guard against the use of a defective sledge.
In the case of Railway Co. v. Weikal, 73 Kan. 763, 84 Pac. 720, it was held the plaintiff assumed the risk of injury from flying pieces of steel chipped off in furrowing out a key-seat in a steel shaft. The decision is sound, but not pertinent. The hazard was one which naturally and necessarily attended the work. So, in this case, the plaintiff and his helper assumed the risk of injury from chips of the casting they were dressing. But the doctrine of assumption of risk does not apply when the master, without notice or warning to the servant, exposes him to some danger which does not inhere in the employment.
In the case of Rush, Adm’x, v. Mo. Pac. Rly. Co., 36 Kan. 129, 12 Pac. 582, a switchman worked in the defendant’s yards doing switching every day for two and a half months. It was held he must have known the condition of those yards. He made no complaint of their condition, and it was held he assumed the risk. In this case a defective sledge was unexpectedly placed, not in the plaintiff’s hands, but in the hands of his helper. The plaintiff was busy with work which did not require him to use or see the condition of the tool, and within an hour or two he was.injured.
In the case of A. T. & S. F. Rld. Co. v. Wagner, 33 Kan. 660, 7 Pac. 204, it was not shown that the railway company was negligent, and the danger from which the plaintiff suffered was an ordinary and usual one naturally attending the work in which he was engaged. In the case of U. P. Rly. Co. v. Monden, 50 Kan. 539, 31 Pac. 1002, it was the plaintiff’s legal duty to be vigilant in noting marks and signs to designate an approach to a junction. He had made one trip over the road. It was held the court should have instructed the jury upon the question whether the plaintiff ought not to have known there was no marker at a particular junction. The case of Railway Co. v. Sledge, 68 Kan. 321, 74 Pac. 1111, relates to the continued use of a defective appliance after a promise to. repair.
In the case of Walker v. Scott, 67 Kan. 814, 64 Pac. 615, Scott was engaged in digging a trench and was injured by a slipping of the bank. The following extract from the opinion shows how foreign the decision is to the present controversy:
“He was fully alive to all the dangers of his employment and knew the conditions as completely as any one could. It was his judgment and belief that a cave-in would occur.” (Page 817.)
The case of Donnelly v. Packing Co., 68 Kan. 653, 75 Pac. 1017, involves a question of coservice, a subject which already has been sufficiently discussed. In the cases of A. T. & S. F. Rld. Co. v. Schroeder, 47 Kan. 315, 27 Pac. 965, S. K. Rly. Co. v. Moore, 49 Kan. 616, 31 Pac. 138, and S. K. Rly. Co. v. Drake, 53 Kan. 1, 35 Pac. 825, the injured employees had full actual knowledge of all the dangers attending their work.
Much reliance is placed by the defendant upon the case of Gillaspie v. Iron-works Co., 76 Kan. 70, 90 Pac. 760. There the plaintiff was injured by a piece of steel flying from the battered top of a snap, or set, when struck by a sledge-hammer in the process of riveting metal beams together. The plaintiff went personally with another workman to a tool-box and selected the de fective tool with all its imperfections staring him in the face. Besides this, he personally assisted in heating a piece of wire and bending it around the snap for a handle. He saw and knew the condition of the snap, and this court held him to the consequences of his actual knowledge, all of which were within the comprehension of an ordinarily intelligent man. If the plaintiff in this case had voluntarily gone to the cupboard where the helpers’ tools were kept, had selected a hammer head, had heated a wire and bent it around the hammer head for a handle, and then had turned the tool over to his helper to be used, the two cases would be parallel, and the court would say of the plaintiff, as it did of Gillaspie, that he saw the battered faces of the sledge, knew the cause of its condition, knew that slivers of steel would fly from it, and knew the danger attending its use.
The defendant has cited no decision of this court which would warrant its release from liability. On the contrary, the cases cited, together with the others which have been referred to, establish a consistent body, of legal principles which authorize a recovery by the plaintiff and with which the court is entirely satisfied.
Some decisions from other states are presented for consideration. They have all been .examined. Some of them are quite wide of the mark. One or two contain statements difficult-to reconcile with the settled views of this court. So far as they do this, they are disapproved. All of them are distinguishable by giving close attention to the facts. None of them presents the peculiar situation disclosed by the evidence and findings under review.
If the plaintiff, a skilled machinist, had been voluntarily and deliberately using the defective tool, the entire aspect of the case would be different. He would not be permitted to escape the consequences of knowledge. If the helper had been a machinist of equal grade and capacity with the plaintiff, or of sufficient capacity to estimate the fitness of tools for service, and the master had left it to the workmen to determine when a tool was worn out or unfit for further use and to report the fact, it might be said that each workman should be on guard against the use of defective tools by his associates. Then the cases cited might be controlling. But the plaintiff in this case had no supervision over helpers’ tools, so far as fitness for use was concerned. Those tools belonged to a distinct class. The helpers were not themselves able to pass upon the question of the fitness of their tools. The master undertook to supply this deficiency of knowledge and judgment through its foremen, so that whenever a helper took up a tool for work the machinist had the master’s guaranty that it was safe for use and would not injure him.
Since other opinions must be printed in the same volume of reports with this one, the discussion cannot be extended further. In the light of what has been said, the court rightfully overruled the demurrer to the evidence. The jury were properly instructed, the motion for judgment on the findings was properly denied, and a new trial was rightfully refused.
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|
Per Curiam:
The defendant in error commenced this suit in the district court of Pawnee county to quiet his title against the claims of the pláintiff in error. The court found and filed findings of fact and conclusions of law which, read:
“FINDINGS OF FACT.
“That on August 9, 1901, J. H. Hazen and Lena Hazen were husband and wife, and were jointly occupying as their home the quarter-section of land of which the tract in controversy is a part; that on that date defendant J., H. Hazen entered , into a parol contract to sell the tract in controversy to S. A. Miller for the sum of $12.50; that the defendant Lena Hazen had no knowledge of such agreement, and was in no way a party thereto at the time.
“The court finds that Miller forthwith entered upon the land and made lasting and valuable improvements thereon.
“The court, finds that on the 4th of March, 1904, Miller made a verbal assignment of his interest under ■ such agreement to plaintiff; that on the 7th of March, 1904, plaintiff took possession of the land in controversy; that at the time of taking possession he did • so with the knowledge and consent of defendants J. H. Hazen and Lena Hazen, and with their knowledge and without objection from them at once made lasting and valuable improvements thereon, and that on said date or on a later date between that time and March 19, 1904, the defendants J. H. Hazen and Lena Hazen, being together, verbally jointly agreed with the plaintiff to execute to him a deed to said property, pursuant to the arrangement with Miller, and plaintiff’s rights thereunder; that from the 7th of March, 1904, to this date plaintiff has been in open and notorious possession of the property in controversy; that on the 29th of March, 1904, the defendants J. H. Hazen and Lena Hazen, by deed of general warranty, conveyed the quarter-section of land of which the tract in controversy is a part, without reservation, to the defendant, Valentine Crane; that Crane, at that date, and at all times after March 7, 1904, had actual knowledge of the occupancy, possession and improvements of plaintiff.
“CONCLUSIONS OF LAW.
“The court concludés as a matter of law that the quarter-section of land of which the tract in controversy is a part was, on August 9, 1901, the homestead of J. H. Hazen and Lena Hazen; that the attempted agreement of J. H. Hazen to transfer a portion thereof, without the consent of his wife, was void.
“The' court concludes as a matter of law that the defendants J. H. Hazen and Lena Hazen, by this verbal agreement with the plaintiff to adopt the contract with Miller, and convey the land to plaintiff, was joint consent, verbally given, and that plaintiff’s immediate possession was in law sufficient to take such agreement out of the statute of frauds and make it binding.
“The court concludes as a matter of law that the ■ occupancy of the premises by the plaintiff at the time defendant Crane acquired his title thereto was notice of any and all interest that plaintiff might have "therein.
“It is therefore by the court considered, ordered and adjudged, and held, that plaintiff is the owner in fee simple of the land in controversy. •
“The court finds that the land in controversy was, on the 29th of August, 1904, of the value of $150; that, his title thereto be quieted against defendants and all persons.”
The finding of fact to the effect that the Hazens jointly agreed to convey to Cheney is assailed on the ground that it has no support in the evidence, and also, for the reason that at the time this agreement is found to have been made the Hazens had already sold the property to Crane and received $800 as part payment therefor.
As to the first objection, the evidence upon this subject is conflicting, and therefore we feel bound by the finding of the court thereon. The second proposition does not seem to be supported by the evidence. The court ignored this subject in its findings, which indicates that the evidence on that point was not deemed sufficient to challenge consideration. It seems quite clear that Hazen could not convey or make a binding contract concerning Crane’s land. If the land at the time this contract was made had been sold by the Hazens, that fact was important, and would undoubtedly have been shown. The date of the deed by the Hazens, and when the money was paid by Crane, were facts apparently material and easily shown, but Crane rested upon his unaided memqry of these facts and placed the date in March; when pressed for a more specific answer, he fixed the time “along about the first part or within the first half of March.” This was indefinite and unsatisfactory. The agreement with the Hazens took place March 14, while Cheney’s improvements were in course of erection. The evidence, therefore, indicated that the trade with Crane might have been after the contract with Cheney. There is not a word of evidence that any negotiation had been made with Mrs. Hazen by Crane, or that she had any knowledge thereof before she executed the deed, March 29; and whatever negotiations may have been had with Hazen alone were void. In any event, there is nothing in the evidence to indicate that Crane had a contract concerning the land which he was in a position' to enforce before he received the deed. The court was therefore justified in eliminating this whole question from its consideration.
Considerable has been said about the partnership existing between Cheney and Manderschied, and it is claimed that because of ‘such partnership Cheney could not maintain this action alone. We do not think this question important. The plaintiff’s right to recover here rests entirely upon the agreement of the Hazens to convey to him in ratification and confirmation of his contract with Miller. The promise was made person¿lly to Cheney. The partnership was not considered. Cheney alone, therefore, was the proper party to enforce the contract. The rights of the partnership must be adjusted between the parties interested.
As found by the court, Crane bought of the Hazens with full knowledge of the rights of Cheney and subject thereto.
The erection of improvements and investment of money by Cheney upon the strength of the promise of the Hazens eliminates the statute of frauds.
The findings of fact made by the court are sustained by the evidence, and they justify its conclusions of law and the decree. The judgment is affirmed. | [
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Per Curiam:
The refusal of the court to give an instruction that the burden of proof shifted from the plaintiff to the defendant could not have prejudiced the defendant, and was not, therefore, under any view of the case, reversible error. Besides, the burden was on.the plaintiff all the time. This is not a case where the material facts asserted by the plaintiff were admitted and an affirmative defense set up by a plea in confession and avoidance. On the contrary, the defendant denied the facts asserted by the plaintiff. The bill of particulars set up a contract made April 8, but in his proof plaintiff relied upon a different contract, which he claimed was made at defendant’s house on the evening of April 10. His evidence of what occurred at the latter date was contradicted by the defendant’s witnesses.
There was abundant evidence to support the special findings and the general verdict, and, as they have been approved by the trial court, the judgment is affirmed. | [
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The opinion of the court was delivered by
Kingman, C. J.:
The exceptions in this case raise but one question, and that is,- Can a defendant be a witness in his own behalf, in an action brought by an administratrix for indebtedness due the deceased in his lifetime ? This question is presented very broadly by the record. It is not Avhether such a person may testify as to a particular class of facts, but Avhether lie may in such a case be a Avitness at all in his own behalf. The fact of a person being a party interested does not prevent him from being a Avitness in his OAvn behalf. But § 322 of the code provides in Avhat causes a party shall not testify in his OAvn behalf, and among other causes rendering-his testimony incompetent is this, that he shall not be alloAved to testify in his OAvn behalf in respect to any transaction or communication had personally by such party with a deceased person. Subject to this restriction a party in such a case as this is alloAved to testify in his OAvn behalf. If the case presents any issues on which the party offered may testify, without necessarily testifying in respect to any transaction or communication had personally with the deceased, then the court erred in refusing to permit him to testify. The issues present many points upon Avhich the party might have testified without any violation of the restrictions of § 322, of which may be mentioned, according to the pleadings, the indebtedness for which the action tvas instituted, which was created between August 2d, 1857, and July 20th, 1859. To avoid, the effect of the statute of limitations the petition avers that the defendants had all the time, from the accruing of the-indebtedness to the commencement of the action, been out of the state. This statement is controverted by the general denial in the first clause of the answer. ' The party offered as a witness might have testified to essential facts on this issue, without touching upon any communication or transaction with the dgeeased. Again, he jnight have testified as to any transaction between defendants and an agent of the-deceased. The law has not restricted the party from testifying as to communications or transactions between the parties-except where such communications or transactions were personal. In New York, under a similar provision of the code,, so far as the point we are discussing is concerned, it has been held that a party may, as a witness, testify as.to a conversation heard by the witness between the deceased and a third person: Simmons, Adm’r, v. Sisson, 26 N. Y., 264, 267. All that is neeessaiy to decide in this case is, that, under the-issues formed, there were points upon which the party defendant who was offered as a witness was competent to testify. In refusing to permit him to testify at all, the court committed an error,* for which the judgment must be reversed, and a new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Has the district court jurisdiction of “an action for the recovery of money only,” when the amount claimed is between one hundred and three hundred dollars ? The district court is a court of general original jurisdiction of all matters, both civil and criminal. Ch. 28, Gen. St-at., p. 304, §1. Unless jurisdiction in any matter is elsewhere located in such manner as to exclude that court, it has jurisdiction. The mere granting of original jurisdiction in ordinary actions to other tribunals does not of itself operate as an exclusion. Both acts may stand—both tribunals have jurisdiction. The maxim, Expressio unius, exdusio alterius, does not apply, for both tribunals are granted jurisdiction. The rule may be different in mere statutory remedies. That question is foreign to this case, and we care not to examine it. Original jurisdiction in mandamus is by the constitution given to the supreme court. The legislature granted such ■ jurisdiction also to the district court. Such grant was sustained by this court. The constitutional grant was held not exclusive. Judd v. Driver, 1 Kas., 455.
The jurisdiction of justices of the peace is given by ch. 88, Laws 1870, p. 181, §1: “Under the limitations and restrictions herein provided justices of the peace shall have original jurisdiction of civil actions for the recovery of money only, and to try and determine the same rvhere the amount claimed does not exceed three hundred dollars.” Exclusive jurisdiction is not given. We may not add a term which the legislature left out. It does not purport to withdraw any jurisdiction previously given to the district court. The statute1 giving that jurisdiction is not in terms repealed, is not even noticed. It stands unless repealed or restricted by implication. But such construction is not favored. The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by the plaintiff in error, Isaac M. Ruth, for the purpose of having certain deeds of conveyance declared fraudulent and void, and to have determined who was the owner in law and equity of a certain piece of land covered by said deeds. The whole tract consisted of forty acres, but only the west three-fourths was in dispute. The action was tried by a referee, and the report of the referee and the judgment of the court gave the west ten acres of said tract to said Ruth, and the middle twenty acres to Gurdon Grovenor, one of the defendants below and one of the defendants in error. The east ten acres were not in dispute, but such tract belonged to the heirs of S. S. Snyder deceased.
It is difficult to see why Ruth should complain of the judgment of the court below, or why he should unite with King in bringing the case to this court. He got1 everything in the court below that he had any right in justice or equity to claim, even if everything that he stated in his petition below was true; and neither the evidence nor the report of the referee made any better case for him than he made for himself in his .petition. Whatever errors there may have been committed by either the court or the referee, were, so far as they affected Ruth, immaterial and unsubstantial, and will not therefore be considered by this court.
With King, the other plaintiff in error, it is different. He got nothing bjr the judgment of the court below. And therefore we are not surprised that lie should complain. If any error was committed in the court below affecting his sub stantial rights, he of course has a right to ask that the same be corrected. He docs not however seem to complain of the judgment as rendered between himself and Ruth, for he associated Ruth with himself in his petition in error; but he does complain of the judgment as rendered between himself and Grovcnor and the other defendants in error. We suppose it will be conceded that he cannot complain because the property was given by the judgment to Grovenor, instead of to one of the other defendants in error, or to Ruth; but he can complain only because the property was not given to himself. In other words, if it was legally shown that he had no right to the property he cannot complain of any disposition that the court made or might have made of the same.
We supjjosc it will hardly be questioned that the findings of the referee are sufficient to sustain the judgment rendered thereon; but it is claimed (and we think with very good reason as to some of the findings,) that the findings are not sustained by the weight of the evidence. It is also claimed that the referee erred in receiving a certain portion of the evidence.
The facts of this case present some strange transactions. S. S. Snyder was the patentee of the said forty-acre tract of land. On the 28th of July 1858, he and his wife conveyed by warranty deed, the same to George Ford and Isaac M. Ruth, and took a mortgage back for the same from them to secure the payment of $1,000, a part of the purchase money. The deed was recorded in the Pawnee District Recorder's Office July 28th 1858, and in the Douglas county register’s office August 18th 1868. The mortgage was recorded August 3d 1858 in the register’s office. Afterwards, sometime in 1858 or 1859, a parol agreement or arrangement was made between Ford and Ruth and Snyder whereby Snyder was to have the east ten acres of said tract, Fcpkl the middle twenty, and Ruth the west ten acres. On July 13th 1859, as the referee finds, Ford and wife and Ruth conveyed back by deed the west thirty acres of said tract to said Snyder. This deed was proved by parol testimony, the same having been lost or destroyed, if it ever had any existence. There Avas no evidence of its ever having been recorded. On the same day, July 13th 1859, Snyder and AA'ifeconveyed by warranty deed the Avest ton acres of said tract to said Ruth, and about this time Ruth mortgaged the same back to Snyder to secure the payment of $400 of the purchase-money. Said deed from Snyder to Ruth was acknowledged July 30th .1859, and recorded August 4th 1859. On July 21st 1859 said Ford and Ruth conveyed by quit-claim deed the middle twenty acres of said tract to Lemuel Fillmore the-husband of Ford’s adopted daughter, and to Rachael H. Ford the Avife of said Ford. This deed Avas acknoAvledged on the same day before said Fillmore, one of the grantees, he being a notary public;-and it Avas never recorded. On the next day, July 22d 1859, Snyder and Avife conveyed by warranty deed the middle tAvcnty acres of said tract to said Fillmore and Rachael H. Ford. This deed Avas recorded on the same day that it Avas executed. On July 25th 185.9, Ruth, and Ford and Avife, conveyed by quit-claim deed the east ten acres of said tract to said Snyder. This deed AA'as recorded August 11th 1859. On the same day, July 25th 1859, Ford convoyed by deed of assignment a large portion if not all of his property to his said son-in-larv, Fillmore, for the benefit of his (Ford’s) creditors, among which Avere Doan, King & Co., Avhom Ford owed about $1200. This assignment AA'as recorded the same day. On October 15th 1859 judgment Avas rendered in the district court of Douglas county in favor of Doan, King & Co., and against Ford for the sum of $1,284.29 and costs; and on December 16th 1859 an execution was issued on said judgment and levied on the undivided-half of’ the middle twenty .acres of said tract, and on the 6 th of February 1860 the same Avas sold at sheriff sale to said Doan, King & Co., Avho purchased the same Avith notice of the rights of the other parties, and in May 1860 this sale was confirmed by the court. On May 12th 1860 Fillmore and Avife conveyed by quit-claim deed the middle tAA'enty acres of said tract to Rachael H. Ford; consideration one dollar; recorded same day. On May 14tli 1860 Ruth conveyed by quit-claim deed the middle twenty acres of said tract to said Fillmore. This deed was recorded May 21st 1860. On August 14th, 1862, the sheriff of Douglas county executed a sheriff’s deed to Doan, King & Co. for the undivided-half of the middle twenty acres of said tract; recorded samé day. On the next day, August 15th 1862, Fillmore, as assignee of Ford, conveyed Ford’s interest in the undivided-half of the middle twenty acres of said tract to Witter S. McCurdy. This deed was recorded the same day it was executed. September 1st 1862 Fillmore and wife executed a warranty deed to said McCurdy for the middle twenty acres of said tract. This deed was recorded April 29th 1863. While both the last-mentioned deeds purport to have been executed upon consideration—the first five dollars, and the second three hundred dollars—yet there was really no consideration given for either, according to the oral testimony in the case. On February 2d 1864, Doan, King & Co. conveyed by quit-claim deed the undivided-half of the middle twenty acres of said tract to said Wyllys King, the plaintiff’ in error, who was one of the firm of Doan, King & Co. This deed was recorded September 23d 1864. On July 20th 1865, Rachael PI. Ford and George Ford executed a quit-claim deed to Gurdon Grovenor for the middle twenty acres of said tract, in consideration of a promissory note for $1,000 given by Grovenor to Rachael IP. Ford, which note had not yet been paid when this case was tried before the referee. This deed was acknowledged and recorded July 21st 1865. On August 10th 1865, another execution was issued on said judgment, and on the 15th of August 1865, the same was levied on the undivided-half of the west ten acres of said tract, and on the 7th of October 1865 the same was sold by the sheriff of Douglas county to Wyllys King. It does not seem that said sale has yet been confirmed by the court, or that any sheriff’s deed has yet been executed thereon.
There are really only two questions in this case, as presented in the brief of counsel for plaintiffs in error, and in their oral argument: First, Does the evidence sustain the findings of the referee ? Second, Did the referee err in receiving the testimony of George Ford ?
The first is more a question of fact than of law. As a question of fact we would agree with counsel for plaintiff in error; but as a question of law we cannot. There is some evidence to sustain every material finding of the referee; and while we would agree with counsel for plaintiff in error that the weight or preponderance of the evidence is against some of the findings, yet we do not think that a great preponderance ot the evidence is against any one of them. The findings-that counsel more particularly complain of are the following: that Ford and wife and Ruth executed a deed back to Snyder for the west thirty acres of said tract, and that said deed together with the other deeds mentioned by the referee necessary to vest title in Grovenor were executed in good faith and for a sufficient consideration. The evidence of the execution of said deed, it must be admitted, was weak; but as the case comes to us we think it is sufficient to uphold the findings of the referee thereon. Said evidence was all oral, and of course the referee could judge of its force and effect better than we can, who see it only on paper. And while the weight of the evidence as we think tends to shoAV that said deed and several of the other deeds were made for the purpose of hindering, delaying, and defrauding creditors, and Avere therefore void, yet the preponderance of the evidence tending to establish. this fact is not sufficiently great to authorize us to set aside the findings and grant a neAv trial. The supreme court will not upon a bare preponderance of the evidence set aside the findings or report of a referee and the judgment of the court founded thereon and grant a new trial. This court has already decided that “ The findings of fact by a referee arc equally conclusiAe Avith the findings of fact by a court, or the special verdict of a jury.” Walker v. Eagle Works Manufg. Co., 8 Kas., 397.
The points that counsel for plaintiffs in error make Avith regard to a Avant of consideration AAo suppose are hardly seriously made. Every deed sufficiently expresses a considera tion. The most defective expression of the same is in the following words, to wit: “For and in consideration of the sum of dollars lawful money of the United States of America to us in hand paid by the said parties of the second part at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged.” The deed from Ruth and Ford and wife to Snyder for the' west thirty acres expressed a thousand dollars consideration, according to the testimony of Ford, and tlic deed from Snyder and wife to Fillmore and Rachael H. Ford for the middle-twenty acres expressed the consideration in the words above quoted, except instead of saying “ sum of dollars ” as above, it said “ sum of hundred dollars.” But suppose that these deeds had not expressed any consideration : would that have-rendered them invalid ? In our opinion it was never necessary that a deed, or any sealed instrument, should express a consideration; and it'was not necessary at the time that these deeds were executed, that any contract should upon its face express a consideration : Comp. Laws, 351, § 6. The instrument itself imports a consideration: 2 Hilliard on Real Prop., 291, § 70. ■
Ford testified that he owed Fillmore $1,000, and that he owed his wife Rachael PI. Ford $2,500, and that the two last-mentioned deeds were executed in payment or par£ payment of these sums. The referee finds that these deeds operated as a payment to Fillmore of $700, and to Rachael PI. Ford of $800. Now if this was true, and done in good faith, (and the referee finds that it was done in good faith,) who can question the sufficiency of the consideration ? But it is said that Snyder and Fillmore and Rachael H. Ford cannot be considered bona fide purchasers, because the consideration for said conveyances was a past consideration, a pre-existing debt or debts. Such a rule as this has never been applied, that we are aware of) in any case where a party in good faith, in consideration of a pre-existing debt, purchased property from a party who in lav/ and equity was at the time of the.purchase the real and exclusive owner thereof. It is only applied where a party, on the strength of a pre-existing debt, purchases property from some person who is ostensibly the owner, but who in fact or in law or' equity is not the real owner, as where a party purchases from some person who was at one time the owner, but who has-parted with his title, or from some person who is apparently" the owner but who has obtained his ownership through fraud, and who is not therefore in law or equity the real owner. It is applied only where the person claiming to be a - bona fide purchaser, attempts to defeat a title older or of longer standing than his own, and never where the title he desires to defeat is junior in point of time to his, unless his is-actually fraudulent. (That a pre-existing debt is a sufficient - consideration to support a mortgage or other conveyance, see Work v. Brayton, 5 Ind., 396; Wright v. Bundy, 11 Ind., 400; Aiken v. Bruner, 21 Ind., 137.) Suppose A. should owe B. and C. each one hundred dollars; and suppose B. in good faith should take a horse from A. in payment of the' debt to B., would C. have a better title to the horse than B.,.. because B. had taken the horse in payment of a pre-existing" debt? This is just what the plaintiffs in error apparently claim. We however think differently. A person even in failing circumstances has a right to pay his debts by transfer- - ring his property to his creditors. And he may in the absence of statutory provisions prefer one creditor to another..Burrill on Assignments, 108, et seq., (2 eel.,) and cases there-cited. At the time these two deeds last mentioned were executed neither Doan, King & Co., nor Wyllys King, had any right, title, interest or lien whatever in, to, or upon any part"- or portion of said tract of land. The most that can be-claimed for them is that Ford owed Doan, King & Co. about $1,200. But the debt to Doan, King & Co. was of no higher' character than the debts to Fillmore and Rachel II. Ford-No judgment had at that time been rendered upon either.. If these two deeds were legal and valid, then ail Ford’s-interest in the middle twenty acres of said land passed from him through Snyder to Fillmore and Rachael II- Ford, long; before Doan, King & Co. obtained any judgment against Ford. And if tlie deed from Snyder to Ruth, dated July ,13th 1859, was also legal and valid, then all Ford’s interest in the west ten acres of said tract had passed from him .through Snyder to Ruth long before Doan, King & Co. obtained their judgment against Ford. It is admitted by all parties that neither Doan, King & Co., nor Wyllys King •ever got any interest 'in the east ten acres of said tract. Therefore upon the supposition that the three last-mentioned ■deeds are legal and valid, neither Doan, King & Co., nor Wyllys King ever obtained any interest in or to any part of ;said forty-acre tract of land, for all Ford’s interest therein had passed from him before their supposed interest had .attached thereto. If these three deeds are valid it makes no -difference whether the other deeds were valid or not. If King has no interest in the land, it makes no difference to him who has the interest. If he has no interest in the land ho cannot complain of the judgment of the court, even if it gave the land to the wrong person. The other defendants, -the two Fords and McCurdy, are not complaining of the judgment of the court below.
The next question is, whether the referee erred in receiving the testimony of George Ford. The objection to his testimony is that it cannot be received in a suit in which his wife is a party. It is not entirely-certain under what statute this action was tried. The case was referred May # ^ 28th 1866. The trial was commenced November 21st 1866; but it was not finished so that airy report thereof was made by the referee to the court below until June 22d 1869. The report is dated May 11th 1869. The testimony of George Ford was undoubtedly received at sometime between the 21st day of November 1866, and the 11th day of May 1869, but precisely when we cannot tell. There were two or three different statutes in force governing the introduction of such testimony during that time: Code of 1859, (Comp. Law's, 176,) § 320. Ch. 30 of laws of 1862, (Comp. Laws, 236,) § 4, and code of 1868, §§ 319-323. Either of said statutes we think would permit said testimony. Ford was not called as a witness either for or against his wife. He-was called as a witness for Grovenor and McCurdy, and against Ruth and King. The testimony of Ford was not received to affect tlie rights of his wife in this action in any manner whatever. The referee was bound notwithstanding Ford’s testimony to find the facts with reference to Mrs. Ford the same as though no such evidence had been received,, and we suppose he did so. It is true, the evidence of Ford might remotely benefit his wife. If Grovenor should obtain title to said land upon the testimony of Ford, he could not ■well plead a want of consideration if afterwards sued on the note held by Mrs. Ford. But this remote benefit to Ford’s-wife does not, as we think, render Ford an incompetent witness for or against the other parties. Both Ford and his-wife were mere nominal parties in this suit. Neither of them claimed any interest in the land in controversy. It is true that Ford at one time owned the land, or a part thereof, in his own right; but he admitted that he had parted with all his interest therein long before this suit was commenced; and it is also true that Mrs. Ford at another time owned or claimed to own in her own right said land, or a part thereof, but she admitted that she had parted with all her interest therein sometime before this suit was commenced. Each once had a real interest in the land, and each once had only a nominal or contingent interest therein by virtue of being the husband or wife of the other who at that time had thereat interest; but both admitted that neither had any interest in the land at the time this suit was commenced, and the-report of the referee and the judgment of the court were against both, decreeing that neither had any interest in the land. The testimony of Ford therefore did not, so far as this case is concerned, benefit either himself or his wife. It really benefitted only Grovenor and Ruth. The testimony of Ford may have been competent for other reasons than those we shall mention but we think it was competent under the following rule: In an action where a husband and wife- together with other persons have been made parties, and in which the judgment may be rendered for or against any one •■or more of the plaintiffs and for or against any one or more •■of the defendants, both the husband and wife are competent witnesses for or against any one or more of either the plain- - tiffs or defendants except for or or against each other. This we think follows from § 320 of the code of 1859, and from § 319 of the code of 1868 without regard to the other sections ■of either code heretofore mentioned. Under those other sections husbands and wives may in some cases testify for or ¡against each other. It would be strange if a plaintiff by making a husband and wife who had no direct interest in the result of the suit parties thereto could thereby deprive the •other parties of the testimony of such husband and wife. Upon this point see Crane v. Buchanan, 29 Ind., 570; Albaugh v. James, 29 Ind., 398. The judgment of the court .below is affirmed.
Kingman, C. J., concurring.
Brewer, J., not sitting in the case. | [
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